Title: Interview with Donna Blanton
Full Citation
Permanent Link: http://ufdc.ufl.edu/UF00067392/00001
 Material Information
Title: Interview with Donna Blanton
Physical Description: Book
Language: English
Publication Date: October 9, 2002
Funding: This text has been transcribed from an audio or video oral history. Digitization was funded by a gift from Caleb J. and Michele B. Grimes.
 Record Information
Bibliographic ID: UF00067392
Volume ID: VID00001
Source Institution: Samuel Proctor Oral History Program, Department of History, University of Florida
Holding Location: This interview is part of the 'Florida Election Project' collection of interviews held by the Samuel Proctor Oral History Program of the Department of History at the University of Florida
Rights Management: All rights reserved by the source institution and holding location.
Resource Identifier: FEP 34

Table of Contents
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FEP-34 Summary
Donna Blanton

Donna Blanton begins the interview by describing the call she received from the Bush
election team shortly after election day (page 1). As a lawyer for Steel, Hector, and Davis
she was asked to provide additional legal advice to Katherine Harris (page 1). She
describes her responsibilities on the Harris case (pages 2-3). She mentions early fears
of the Florida Supreme Court (page 4). Adam Goodman, the person hired as Harris'
media consultant is mentioned (page 5). She had no contact with Jeb Bush or anyone
from his office (pages 5-6). Blanton also insists she did not have any contact with the
George Bush campaign during the legal fight (page 6). She considers Harris'
relationship to the Bush campaign and how that affected the public's perception of her
(page 7). She speaks about the legality of the butterfly ballot used in Palm Beach (pages
8-9). She evaluates how Harris interpreted certain recount procedures (page 10).

Blanton describes the work Clay Roberts did in Palm Beach (pages 11-12). She
describes their arguments in Lewis I and Lewis II (page 12). She was not involved in the
Miami-Dade recount (page 14). Blanton and other attorneys advised Harris that the law
would not allow additional time for military or overseas ballots to be delivered and
counted (page 15). Blanton's team were upset, but not surprised when the Florida
Supreme Court put a stay on Harris' certification (page 15). She considers various
charges that Harris acted in a partisan manner (page 17). She analyzes the Florida
Supreme Court's decision, and the Supreme Court's reaction (pages 18-19). When
Harris certified the vote on November 26, Blatnon understood the election was not over
(pages 19-20).

Blanton believes the Republicans did a better job during the public relations battle
(pages 21-22). She mentions the contest in Seminole and Martin counties (page 25).
She speaks of previous cases that challenged election results (page 26). She discusses
the Supreme Court's decision and recalls how the various lawyers did in front of the
court (pages 28-30).

Blanton offers her assessment of the Election Reform Act of 2001 (page 31). She
speaks about voter education and considers voter apathy (page 32). She considers the
accuracy of the Civil Rights Commission report (page 33). She evaluates Katherine
Harris' overall performance (page 34). She considers other media reactions and opinions
of Harris' activities (pages 35-36). Judge Nikki Clark is mentioned (page 38). She ends
the interview by reflecting on the overall experience with the election recount (pages 40-

FEP 34
Interviewee: Donna Blanton
Interviewer: Julian Pleasants
Date: October 9, 2002

P: This is October 10, 2002. I'm in Tallahassee, Florida, and I'm talking with Donna
Blanton. Would you tell me when you were first approached to work with the
George W. Bush team during the 2000 election controversy and who contacted

B: Okay, well we were not approached by the Bush team. We got a call, it would be
Sunday night following the election, so five days after the election. I had been out
of town for the weekend. I got home, I guess about seven o'clock, and my former
partner, Vicki Weber, we were partners at Steel, Hector, and Davis together,
called me at home. [She] said that she had just gotten a call from Debby Kearney,
who was then general counsel to Katherine Harris [Florida Secretary of State,
1998-2002]. Debby is a friend of mine and was a friend of Vicki's. We had known
each other for years in a professional and social context. Debby Kearney had told
Vicky that night that they, in the Secretary of State's office, were getting
overwhelmed. They were having lawsuits filed against them all over the state from
various entities in south Florida primarily, but in other places as well. Debby had a
deputy general counsel and one other lawyer working for her, that was it. So there
were only three lawyers over there. She said they needed help, and she
wondered if our firm would be willing to help.

P: So you were approached on behalf of Katherine Harris through Debby Kearney.

B: Her general counsel.

P: They are the ones who called.

B: Yes, they contacted us.

P: They called Joe Klock?

B: No, they called us. They called Vicki Weber and me. So the contact was really
made through the Tallahassee office of Steel, Hector, and Davis, that's where
Vicki and I worked. Debby was our friend, so that's how we got into the case.

P: But Joe Klock had already agreed to represent Katherine Harris, is that correct?

B: Joe Klock didn't know anything about it at that point. No. Vicki [was] contacted
first. Now, what we did that night was, we called Joe Klock because he was the
managing partner of the firm. Vicki called Joe [that night] and asked him if he
thought it would be something that the firm could do. As you can imagine, there

FEP 34
Page 2

were a lot of concerns about getting involved in a case like that. We had to run a
conflict check and make sure that we didn't have any conflicts of interest. Steel
Hector's a big firm, so there were a lot of lawyers. We did that electronically very,
very early Monday morning, at like six o'clock Monday morning. As you can
imagine, in a firm like that, you have a lot of Republicans and a lot of Democrats.
There were lawyers in that firm on both sides who didn't want us to get involved in
the case one way or the other. Joe was very encouraging. Vicki and I really
wanted to do it. So, ultimately, later that Monday morning, we agreed to represent
them. I was over in the [Florida] secretary of state's office eight o'clock Monday
morning based on the understanding that we would go forward, so I was the first
one over there.

P: So in essence, the Secretary of State's office hires Steel Hector, right?

B: Right. The Secretary of State's office hired the law firm of Steel, Hector, and
Davis. Initially, you have to realize that first day we had no idea what was going to
happen weeks later. We thought maybe it would be something that would be
resolved in a week or a few days. At that point, we just didn't really know what we
were getting into. Katherine [Harris] was rapidly becoming the focus of the
attention. But that had just kind of happened over the weekend and the previous
Friday. The first couple days, I think everybody was focused on what was
happening in the individual counties and the recount, which had to happen
automatically. So it was not really till later that week of the election that Katherine
was really becoming so much of the focus, and it was clear that she had the
responsibility of certifying and all that. We just didn't quite know how big it was
going to be. We thought, at that point, that Vicki Webber and I, along with two
associates we had in the Tallahassee office of Steel Hector, would be able to
handle all the work. Obviously, if you've talked to Joe Klock, you know by the time
it ended, Steel Hector had twenty-something lawyers working on it pretty much full

P: So you came on board after Katherine Harris had officially ordered the automatic
one half of 1 percent recount.

B: Yes. We came in after that had occurred.

P: What was your initial responsibility?

B: Our initial responsibility was to help defend the variety of lawsuits that had been
filed against her. They were being served, literally, almost on an hourly basis with
suits. Hearings were being scheduled in West Palm [Beach], Miami, and all over
the place on one day's notice, two days' notice. Debby Kearney didn't have the
people to go to all these things, so the idea was that we would help defend some

FEP 34
Page 3

of those lawsuits. The events really sort of drove what our role was. One of the
first things we did was, within a few days of us being hired, two or three days, we
advised the secretary of state that what we ought to do is ask the Florida
Supreme Court to take all these lawsuits and just take jurisdiction of it. I believe
we filed a writ of mandamus or something like that with the Supreme Court
saying, we've got these different suits, different counties are using different
standards [and] there's no uniformity. So we asked the Court to take jurisdiction of
all of them, to put it all in one place under one judge, and deal with it.

P: That would have been in Leon County.

B: I believe we left it to the Court to decide where it would be. I don't recall precisely,
but I think that's what we did. We said either you, the Supreme Court, take it
yourself, or put them all under one judge in Leon County or wherever you think is
appropriate, but get it all in one place so we can have uniformity statewide. I will
continue, for the rest of my life, to think, if the Supreme Court had done that when
we asked, that everything would have gone so much more smoothly, because
they could have decided up front. Ultimately, when the Supreme Court did what
the Florida Supreme Court did, it was too late, and the U.S. Supreme Court,
ultimately, told them it was too late.

P: Part of that writ was the secretary of state asking them to stop the recount.

B: Yes. We asked them to stop the recounts, I believe, in one or two south Florida
counties where they were going on at that time because the recounts were going
on under different standards.

P: Palm Beach and Broward Counties, I believe, were the two.

B: Right, that's right. Our view was that, if we were going to do recounts in one or
more counties, we needed to do it consistently. They ought to be handled the
same way. We didn't, as I recall, express an opinion one way or the other as to
whether or not they needed to be doing them. We said, "You, the Supreme Court,
need to get this all in one place and figure it out." That was really the thrust of our
proposal to the Supreme Court. It got lost [because] the press picked up only on
Katherine Harris asking for the recount to be stopped. That was all that they
picked up on. I really think we made a big mistake by not communicating better, at
that point in time, what it was we were really asking the Supreme Court to do. We
just didn't tell people well enough that, it's not that we want the recounts stopped
because we don't want them to count votes, we want it stopped because we think
it all ought to be handled consistently statewide.

P: Ultimately, that was the crucial issue in the United States Supreme Court.

FEP 34
Page 4

B: Exactly. This was, I don't know what, November 8, 9, 10. I don't remember the
day, but it was within a week, I believe, of the election when we asked them to do

P: I talked with Mac Stipanovich [Republican strategist lobbyist]. From his
perspective, and I think he had talked with other people in the office, they were
upset that Joe Klock et al, had filed this suit.

B: That's right, they were upset. I want to be somewhat careful because some
[matters are] attorney-client privileged, and I don't want to broach that. The
[George W.] Bush people, I believe, were nervous about the Florida Supreme
Court from the get-go. They were worried, and I guess maybe it ultimately proved
to be correct, that the Court would side with the [Al] Gore forces more likely than
not. Our view, "ours" meaning Steel, Hector, and Davis only, and we did have
Debby Kearney, the general counsel for Katherine Harris, was with us when we
filed that. She knew exactly that we were doing it. It wasn't like we just went and
did it.

P: Katherine Harris signed off on it.

B: Yes, she did. Obviously, we wouldn't file anything without the client's approval, but
some of her other advisors, such as Mac Stipanovich, were nervous about us
asking the Supreme Court to take it over. I guess, when the press hit the next day
about us, you know [that] Katherine Harris asked for recount to be stopped, they
felt like that was damaging. I disagree with Mac on that. I think we would have
been much better off if the Supreme Court [took the case], we all knew they
ultimately were going to get these cases.

P: You mean the Florida Supreme Court?

B: The Florida Supreme Court, right. We knew the Florida Supreme Court [would get
these cases]. We didn't know the U.S. Supreme Court would ever get involved
with it, but we knew the Florida Supreme Court was going to get these cases. We
figured, you know what, we don't have that much time. I mean, the election's been
a week ago, let's give it to them now. It's an emergency. Take it, deal with it, put it
all in one place, tell us what we need to do so we can be uniform about it.

P: From another perspective, and, again, this is through various interviews, Barry
Richard [attorney for George W. Bush in 2000 election] had talked, as he did
frequently, to Jim Baker [U.S. Secretary of State, 1989-1992]. They were a little bit
concerned for the same reason that Mac [Stipanovich] was concerned. [They
were] also concerned, for the same point you just made, that it made Katherine

FEP 34
Page 5

Harris seem partisan, i.e. she was trying to stop the count, and that part of the
whole issue here was a public relations issue.

B: Right, and I will be real honest, I don't think we handled the public relations issue
well at all. Katherine did not have a press secretary at that time. He had quit some
time before. I'm talking about a state employee, you know, Department of State
Press Secretary. She had some advisors that came in to help her handle the

P: Didn't she get Adam Goodman [political media consultant]?

B: Adam came in, but he was kind of volunteering. You know, he wasn't her regular
press secretary. Frankly, I mean I wasn't in charge of press stuff, I was in charge
of legal stuff, but I don't think the press was handled well. I think we had a good
story to tell. I think everything we did was legally defensible. You can argue about
whether it was wise or not, but I don't think it was motivated by partisan activities.
If anything, we were just trying to get it to the place we knew it was going to end
up, and get it there early. But we never told that story very well to people. I think
that was a big mistake.

P: Let me ask a little bit about the structure in Katherine Harris's office. I guess Ben
McKay was the chief of staff.

B: He was at that time, yes.

P: Were there political advisors? Legal advisors? In other words, did Mac
Stipanovich sit in on the legal discussions? How was all that sorted out?

B: It varied. Primarily, the legal [advising] was handled by Steel, Hector, and Davis,
me, Vicki Weber, [and] Joe Klock came in about the second or third day, he
wasn't there the very first couple of days. Debby Kearney was always involved.
Kerey Carpenter, who was the deputy general counsel, was usually involved. Mac
[Stipanovich] wouldn't be there when we were hashing it out. A lot of it was done
across the street over at Steel Hector's office. We had associates researching
things and that sort of thing. I spent most of my time in the Secretary of State's
office. When we came to a conclusion, we the lawyers, about what we thought
ought to be done, we would usually present it to a group that included Katherine
[Harris] most frequently. Mac was sometimes there. His role was really more
political, but he is a lawyer, so he did hear and participate in some of the legal
discussions. He wasn't really making the legal decisions, but he was involved in
some of them.

P: Did you have any direct contact with Florida Governor Jeb Bush or Frank Jimenez

FEP 34
Page 6

[deputy chief of staff for Gov. Jeb Bush] or anybody else.

B: I had no contact with Jeb Bush. In fact, in the very beginning, we, in Steel Hector's
office, had a policy that we would not talk to them. We didn't think it was
appropriate other than lawyer to lawyer, and that had to do with more scheduling
and kind of procedural things. We talked to the Gore lawyers about that, too. They
made some efforts to contact us, they being Frank Jimenez. I forget what he was.
He worked for Jeb Bush. He was deputy general counsel or deputy chief of staff,
something like that, at the time. But he took an unpaid leave of absence, as I
recall, to work on the issue. He was a former Steel, Hector, and Davis partner, so
he knew all of us. Right after we got hired, he called a couple times to discuss
strategy, and I flat out told him not to call anymore. I said, "I just don't think it's
appropriate for us to be working with you. We are officially neutral in this thing." I
know Vicki Weber and I always felt that it was so important for us to project, and
not only to project but to maintain, that neutrality that we had. I'm not sure how
good of a job we did of projecting it, but that was always our goal. So I told Frank
to stop calling. Reg Brown, who was also in the governor's office at the time, I
think he also took an unpaid leave of absence, I told him the same thing. He had
clerked at Steel Hector, so we knew all those guys, and they were friends. I don't
think they were trying to do anything improper, but we just felt like we really
shouldn't talk to them.

P: Did you have any contact with Jim Baker or George W. Bush's campaign staff?

B: I did not. Joe Klock may have. I did not. And I think, if Joe did, it was pretty

P: Did Katherine Harris?

B: Not to my knowledge. I was never with her where she was talking to those people.

P: One of the things in her book, she talks about very early they established a
firewall, which would both physically and legally separate her office from the
executive branch. What did that firewall consist of?

B: I think it was, and I may not know all of it, but from what I understand and from our
perspective, it was that we would communicate among ourselves in the Secretary
of State's office and make our decisions among ourselves. [We would] not run
them by the Bush campaign, the Gore campaign, or anybody else. Some of the
political people, I suspect, talked, but Katherine and her staff and her law firm, we
took that very seriously. We felt like we needed to come to our own conclusions
legally and make the decisions based on what we thought the law required, not on
what somebody might want us to do for their own special interests.

FEP 34
Page 7

P: Let me mention what Mac Stipanovich told me. He said, "We were going to
adhere to the law, but we wanted to bring that election to a close as soon as
possible with George W. Bush the winner."

B: I fully believe that that's what Mac intended. I don't think that's what Steel, Hector,
and Davis lawyers intended. And I'm not suggesting we intended to get [Al] Gore
in there either. I think, and I can speak for Vicki Weber and myself at least, and
the lawyers working out of the Tallahassee office for Steel Hector, that our goal
was always to figure out what the law required and to get it done. It didn't matter
to us how the chips fell on that. Mac, I think, had a different view.

P: Do you think it hurt Katherine Harris that she had been part of the George W.
Bush campaign team and had actually campaigned for him?

B: From a public perception standpoint I think it hurt a lot. I think she would have
been perceived as much more neutral had that not occurred.

P: We should point out that Bob Butterworth [Attorney General of Florida, 1986-
present] was also on Gore's campaign team.

B: Right, exactly.

P: In this case, most people I have talked to, argue that public officials who have to
make these kind of decisions ought not be actively campaigning.

B: Yes. I think, in retrospect, you would not find, of course we don't have a secretary
of state anymore, but I think you would find that that whole experience would stop
people in the future from doing that kind of thing. No one ever had any idea that
something like this could happen, of course. The secretary of state in Florida is
partisan. You know, they're elected in partisan offices, they're political, they run
statewide, and they've always been, to some extent, involved in politics in the
state. I don't think when Katherine did that she necessarily did anything wrong.
She was doing what, I think, her predecessors had done, they'd been politically

P: That goes for Democrats, too.

B: Yes, exactly, both Democrats and Republicans. Of course, the way it turned out, it
ended up looking bad. I don't think anyone in that position would ever make that
[decision again].

P: A question that comes up frequently is the one half of 1 percent automatic

FEP 34
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recount. I talked to a lot of the elections supervisors from the large counties. It is
not clear what the recount meant. Eighteen counties retallied the machines, but I
noticed that Clay Roberts [director, Florida Division of Elections], six or nine
months earlier, had stated specifically that recount meant to actually recount the
ballots. Where did you stand on that issue?

B: I don't know because the recount, the automatic recount that everybody had to
do, had actually already occurred by the time we got in the office. I do recall the
discussion that it was being handled differently in some counties than others, but I
don't recall us doing anything about it or directing it. That may have happened
before we got involved.

P: Were you involved at all in the Palm Beach activity?

B: Some people from Steel, Hector and Davis were. I was not personally involved.

P: I know Kerey Carpenter was down there.

B: Kerey Carpenter was down there. John Little, from Steel Hector's West Palm
Beach office, was handling a lot that, and we had lawyers there, but Kerey
Carpenter was the main one.

P: Did you see that the butterfly ballot, in and of itself, was an illegal ballot? That was
one of the early issues pursued by the Gore team.

B: Yes. I do remember we had a case, I think I handled the brief in the Florida
Supreme Court on that case. I forget which one it was, but there was a case on
the butterfly ballot. I don't believe that we thought, and again I'm hazy on the
details now, I'd almost have to go back and reread all those briefs, but I don't
believe that we took the position that it was an illegal ballot. I'm sure we didn't. It
had been approved by the supervisor of elections down there, and I think it had
gone through all the normal processes.

P: The Democrats had signed off on it and Republicans had signed off on it. What
they said later was, and obviously part of the issue is going to be these votes for
Pat Buchanan [unsuccessful presidential candidate, 1992, 1996, 2000] in the
mainly elderly Jewish area, they said that the ballot was not configured according
to state law. This is because it was not listed in order of how they finished in the
gubernatorial campaign, which is what the law says, because it was Bush,
Buchanan, and then Gore, and that the punches should be on the right hand side.
But quite clearly, from Judge LaBarga [Palm Beach County Circuit Court] on,
almost everybody said it met the standards.


FEP 34
Page 9

B: Right, yes. I recall that that was our position. But I was not personally involved in
that too much.

P: What is your view of the fact that it was a confusing ballot? I don't think anybody
would disagree with that. Is there a remedy to that kind of problem?

B: I honestly don't know. If I had been a lawyer hired by the Gore campaign, for
example, I'm sure I would have looked for any remedy I could find, and I guess
they did. You know, there have been some changes to the election laws,
fortunately, since 2000, and frankly I'm not sure if that's something that's been
addressed, confusion of ballots or not. I think it was in some fashion, but it's
awfully hard to go back.

P: Judge Richard Posner [of the 7th Circuit, U.S. Court of Appeals; author of
Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts]
argued that the problem was the Democrats confused voter error with machine

B: Right, they did.

P: The argument that he makes is, if there is a voter error, if you vote incorrectly, that
is an invalid vote. Now the Democrats come back and say, "Oh wait a minute, the
issue is the intent of the voter, the will of the people." So even though the voting
machine is like a grocery scan and it doesn't pick it up, you can still go back and
recount, and you can look at it, and sometimes make a clear distinction as to what
the voter intended.

B: You know as I recall, the law at that time dealt with issues relating to mechanical
error. I always felt that the people asking for the recount didn't couch their
argument correctly. If they had couched it in a way that meant the statute, and,
again, I haven't refreshed my recollection on these statutes in a long, long time,
but I think there might have been a way that they [could have] gotten what they
wanted if they had argued it differently. They didn't understand the difference that
you're making now between voter error and mechanical error. The way that the
statute was worded, I think, had they argued it differently, there might have been a
way that they could have gotten what they wanted.

P: The statute, which I looked at, says, if there's an error in voter tabulation. It's not
quite clear what tabulation means, and perhaps if they had pursued it from that
angle, it might have had a better chance of success.

B: Right, that exactly.


FEP 34
Page 10

P: But there is some argument on the part of elections supervisors. They claim that
Katherine Harris did not give them enough specific information about these
issues. Her office declared that it has to be a hurricane or a major malfunction.

B: Right, that's exactly what we said. Right. It had to be a major act of God. I think
we even used those words, or something to that effect.

P: She also indicated in her book that, in fact, prior to that time, they had actually
given some seminars around the state and handed out some specific references
to make certain that people followed the law, as it were.

B: Right.

P: So you don't feel like, as some Democrats have charged, that she neglected her
duties in at least explaining the law more carefully.

B: You mean before the election?

P: Before and during the election.

B: And during the election.

P: During the recount.

B: Yes, I think during the recount it was tough. I know Clay Roberts, who was the
director of the Division of Elections, was getting a lot of requests for advisory
opinions, some of which he put out, trying to interpret the law the best he could.
The problem is, the laws were written in a way that certainly didn't contemplate
something like this happening. It's kind of difficult after the fact, when you've had
an election this close and you've had all the situations occur that we had occur in
the various counties, for Clay or anybody else to take a look at those laws and try
to figure out exactly what was intended by the legislature in this particular factual
situation. I think Clay and Katherine did the best that they could trying to interpret
laws that were not precisely clear on some of these issues. I mean, the laws just
didn't address some of these issues, and I think they did the best they could. It
would have been hard before the election to anticipate that something like this
could have happened and to tell everybody here's what we're going to do if it

P: One of these examples is that they "shall ignore" or "may ignore."

B: Right, I remember that. [laughing] I remember that.


FEP 34
Page 11

P: It's a little unclear. As a matter of fact, Clay Roberts gave one opinion that shall
means shall, and then Bob Butterworth came back with another opinion that says,
"It's okay to recount, you may choose." Barry Richards said that legally there was
no problem. It says you shall or may, either way you could choose not to. I mean,
there's an option there, it doesn't say you have to. The option is still up to the
discretion of the secretary of state.

B: Well, yes. You know when you get a lot of lawyers looking at the language, you're
going to get as many opinions as you have lawyers. I think Clay [Roberts] and
Katherine [Harris] did the best job they could under very difficult circumstances
trying to interpret those things. You're always going to have people that are going
to interpret them differently.

P: Now one of the criticisms was that, and I understand in her book Katherine Harris
points out that the secretary of state has a lot of hats and does a lot of different
jobs, but the criticism was that she really didn't understand Florida election law.

B: I think that that was not her area of primary interest. She had a director of the
Division of Elections who obviously reported to her, but she didn't spend her time
up there in the division of elections on a day to day basis. I think that's true. It's
not something she was well versed in. Clay and the other lawyers who were
involved in this spent a lot of time with her going through [it]. She's not a lawyer,
and the election code is confusing and it's vague on some of these issues. But
she did spend a lot of time, during this whole crisis, trying to understand it and
trying to listen to what we told her we thought it meant. I mean, she was intimately
involved in all those discussions. I think the perception that she knew nothing
about it is wrong, but I do think it's true that before this whole crisis that probably
she couldn't have told you what the law said about recounts or certification or all
that. She had people that were responsible for all that and she trusted them to do
their jobs.

P: How long had Clay Roberts been director of the Division of Elections?

B: I believe he came in when she came into office. Prior to that, Clay had been on
the staff of the elections committee in the House, I believe. So he had been
dealing with elections.

P: So he was experienced.

B: Yes, he had been dealing with elections. Now, of course, she had only been
Secretary of State, I guess, two years at the time. But he had been up there. He'd
been through an election or two, and he knew election law pretty well.


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P: I talked with Kerey Carpenter about this, in Palm Beach, and I talked with Judge
Charles Burton [Palm Beach County Court; chairman; Palm Beach County
Canvassing Board] as well. Judge Burton, in his first time out, is chair of the
canvassing board. He was thoroughly confused about whether they could recount
or not. He said that he wanted an opinion from the Secretary of State, and that
when he requested that opinion, he did not know that it was binding. Several
people have said, "Well, maybe you should have." It doesn't matter because once
he requests it, the formal response is the formal response, unless a court tells him
differently, right?

B: Sure. That's right.
P: So did you all work pretty carefully on responding to Palm Beach County?

B: Clay [Roberts] did that. I believe, if it's the request that I'm thinking of, I believe
that was the one that was released the first day we were hired. There were
several requests for advisory opinions, and I know Clay [Roberts] primarily was
responsible for preparing those. We did get a little bit involved in some of them,
but Clay was the primary person on that.

P: Do you have any recollection of the first Republican injunction to Judge Donald
Middlebrooks of U.S. District Court to halt the recount?

B: We didn't get involved in that case because Judge Middlebrooks was a Steel,
Hector, and Davis partner before he went on the bench, so Steel, Hector, and
Davis couldn't be involved in that case. We had a conflict of interest. That was the
only case that we weren't involved in that the Secretary of State had.

P: Talk a little bit about Judge Terry Lewis [Leon County Circuit Court, 1998-
present] and we generally refer to his rulings as Lewis I and Lewis II. In Lewis I,
did you all prepare the brief for that case?

B: Yes, we did.

P: What was your major argument?

B: Well, I'm trying to remember now. Refresh my recollection about the issues in the
first case. That was when you had to certify right?

P: Yes. That was really the issue. She had stated that she intended to certify on the
14th of November.

B: Right, that's right.


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P: The argument is [that] the Democrats say, "Wait, you can't do it, there are votes
still to be counted." As a matter of fact, I'd like to bring that up. I was talking to one
expert in Florida election law, David Cardwell, who said, "The reason they put
"may" in there was for the circumstance where a large county like Palm Beach
County could not complete a recount in seven days. It was just physically
impossible. But from your perspective, I think what you argued is, the law is the

B: That's right.

P: Seven days is seven days.

B: That's exactly what we argued. Yes, that's exactly what we argued. Then, of
course, Judge Lewis came up with his opinion. We had to come up with criteria,
as I recall. Steel, Hector, and Davis developed those criteria. We spent a lot time
in our office researching what courts had said in the past, and we crafted those
criteria based on the Florida case law that was out there on election law. I think
those criteria were very objective. I felt very good about that, and I think Judge
Lewis did too, as he ruled in the second case that those criteria were good.

P: It seemed like a pretty intelligent decision on his part. He says Harris can use her
discretion, but not to come up with some criteria or some reason is a violation of
that discretion.

B: Right, she has to explain it. It has to be based on defined criteria. Exactly. That's
why we came up with the criteria that we did. I felt like, had some of those
counties tried to justify, to explain, their situation based on the criteria that we
came up with, if they had tried to use the criteria to explain why they did what they
did, they might have had a much better shot. But nobody really did, they didn't get

P: I've talked to Judge Burton and Joe Klock about this. Burton would argue that it
was really kind of a perfunctory request they put in for the delay, that it really
wasn't very effective. Joe Klock said the same thing. As you looked at these
requests, did they have legal validity? Did you go through the requests from Palm
Beach and Broward Counties?

B: Yes, we did. We looked at them and they just didn't give us any basis, they didn't
give us any reason. I think, if they had made an argument, it might have been a
different situation. They should have had lawyers preparing something, making a
legal argument about why they were entitled to it, and I think it certainly would
have been given consideration.


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P: Well, they had plenty of lawyers. [Laughing.]

B: Yes, but their request didn't really reflect that.

P: Yes, Theresa LePore [Supervisor of Elections, Palm Beach County] had two
lawyers, Bruce Rogow was one of them, and the county attorney. But again, I
think the point you made earlier, nobody had ever gone through this kind of thing.
What do you argue? And you're limited in your time, therefore, it's hard to do.

B: Sure.

P: What is your view of Lewis II, when he says, pretty specifically, that Harris can go
ahead and certify the vote, and therefore, she has used her discretion? Did you
think that made sense?

B: Absolutely. That's exactly what we argued. We were thrilled with that opinion.

P: Did you get involved at all in the Miami-Dade recount?

B: We had people involved. I was not personally involved in that.

P: The argument has been, I don't know whether it filtered back to Tallahassee, that
David Leahy [Supervisor of Elections, Miami-Dade County; member, Miami-Dade
Canvassing Board] and Judge Robert W. Lee [Broward County Circuit Court;
member, Broward County Canvassing Board] and others were intimidated by
what has been referred to as a Wall Street mob. [laughing]

B: That's what I've heard. [laughing]

P: But on the other hand, people I've talked to, Elections Supervisor Leahy had
always voted against recounts. In numerous occasions in the past. Even the
Democratic lawyers, Kendall Coffey for example, knew exactly how he was going
to vote. The question comes up, could they have finished counting just the under-
votes in that time?

B: Yes. I don't know. I remember sitting in my office working on a brief, and we got a
lot of our news, during the course of all this, from MSNBC and CNN [both are
cable news networks]. We had a TV going all the time. Someone came running in
my office and said, "They've stopped the recount." We were all shocked. You
know, what's going on? So we all run out there and watch television. There was
so much going on that we each kind of had our little individual projects. I
remember one day I defended nine depositions or something in the Seminole
County case. Everybody was kind of in their office doing different things, [so a] lot

FEP 34
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of this we were tangentially aware of, but I didn't have any personal involvement
in it.

P: I'll ask you about those cases later, but were you involved, and I know Barry
Richard did the pleading in both of those cases, with his firm? Did you discuss
briefs, issues?

B: Not really. Jonathan Sjostrom, who's now a circuit judge here, who was one of my
partners at Steel Hector, was handling the Seminole County and the Martin
County cases for us. He may have coordinated with them to some extent, but I
didn't. I can remember talking to one of Barry [Richard's] lawyers, Seann Frazier,
about just procedural issues, you know, about who's going to do this, when are
we having this hearing, and that kind of thing. But it wasn't [about] strategy.

P: One thing that intrigues me is that Katherine Harris allowed flexibility on
November 14th to allow these counties to get in their requests. The Democrats
argue and say, "See, there is no drop dead date, the 14th." She herself allowed
them an extra day to get in their requests; therefore, she could have delayed the
certification until the 17th when the overseas ballots came in.

B: That was not our view at the time, and I don't recall right now exactly why, but we
felt like the law didn't really allow that. Of course, the Supreme Court ultimately
told us when we had to certify. [laughing]

P: Even some Republicans have said that it might have been better, politically, if she
had said, "Okay, we've got all these problems." The election could not be certified
formally until the 17th of November anyway, until you get all the absentee ballots
in. So why not just wait until the 17th ? That would have, at least in public relations
matters, been seen as less partisan.

B: Yes, that may be true. But I think we felt like that they had, under the law, to get
their votes in when we told them they had to get the votes in. Obviously, you're
right, we couldn't certify until the 17th, but I think we felt pretty strongly at the time
that that's what the law required. She [Katherine Harris] didn't really have the
flexibility at that point to wait more.

P: Were you surprised when the Florida Supreme Court put a stay on her

B: I know we were unhappy. [Laughing] I'm not sure I was surprised by it. I had
clerked at the Florida Supreme Court in the early 1990s, so I felt like, although
some of the judges had changed, I had a pretty good sense of that Court and
what they might do. So I was not too surprised that they did that.

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P: They also, in that decision, allowed the recounts to continue. At this point, what
was your legal strategy? Did you appear in the Supreme Court hearing?

B: No, Joe Klock did. Once the Supreme Court ruled, our view was that we were
going to follow that Supreme Court opinion to the letter. The law is the law. We
didn't agree with the opinion, but we followed it, and we got a lot of grief for that. It
said that we would certify if the office was open on Sunday, at five o'clock on
Sunday, I believe the time was. The votes had to be in from the counties at five
o'clock on Sunday if the office was open, or if not, nine o'clock on Monday
morning. Well, the office was open on Sunday, and we told them, I told them. I
can remember at a press conference after the Supreme Court ruled, we told them
that, "We will be open Sunday and we'll take the votes until five o'clock on
Sunday, as the Supreme Court said in the opinion." We got a lot of grief for that.
People said, "Oh no, you should have given them the weekend and done it
Monday morning." Well, we told them in the beginning that it was going to be
Sunday and it was going to be at five o'clock, and we followed the law on that. We
got a lot of grief for that.

P: One thing Katherine Harris says in her book, she couldn't have known that Palm
Beach would take Thanksgiving off. She argues, and I think it is correct, they
never did finish the recount. They never did send in any certified totals, did they?

B: That's right, they never did. Even days and days after we kept thinking they were
going to send something in, and they never did.

P: Even in the four-three Florida Supreme Court decision on the recounts, they had
two totals, 215 and 176.

B: That's right.

P: As far I've been able to learn, nobody knows what the actual count was.

B: Right. I think once we certified they just stopped and didn't send anything else in.

P: What final figure did you certify?

B: Gosh, I'm trying to remember. I think we certified what was actually in at five
o'clock, or maybe what they had sent in earlier. We certified, I'm trying to
remember, I think we certified what they had sent in originally because that's all
we had. We had some partial things.

P: Because you can't certify a partial count.

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B: That's exactly right. We couldn't certify a partial [count], so we certified what they
had originally sent in.

P: It seems strange to me that the Florida Supreme Court would say 5:00 PM
Sunday or 9:00 AM Monday. Doesn't that seem sort of bizarre?

B: Yes, and I don't know why they did that. But they said if the office is open on

P: But normally it's not.

B: It's normally not, but frankly, during this time period, the office was open around
the clock, everyday.

P: But not for public business.
B: No, right. It wasn't open for business other than election business, which we all
were involved in. I think, at the time, I wasn't too shocked by it because everybody
knew we were all working everyday around the clock. I just assumed the Court
was kind of in the same [situation]. They were working around the clock, too. It
wasn't a holiday, you know, it was a regular work day. So it didn't strike us as
particularly surprising. I don't know why they decided to do that, but I do know we
told everybody up front, right after we got the opinion, that we will be here
Sunday, so plan on five o'clock Sunday.

P: Now this lends credence to the Democrats' charge that she was partisan, saying
"Oh, she should have waited until nine o'clock Monday and then Palm Beach
could have gotten their votes in." I know Judge Charles Burton was very upset
because he thought, "We just need two more hours, wait until Monday to count
them." But it's very clear from Katherine Harris's book [that] she obeyed the law.

B: That's right. We obeyed the law and we told them up front. As she told you or Joe
[Klock] told you, I don't who, but we couldn't have predicted how they were going
to count over that long weekend. We didn't know they were going to take days off.
I mean, we told them, "Here's when it's going to be, it's going to be five o'clock

P: Broward County finished.

B: Right. That's what we kept telling them, Broward [County] finished. Dade [County]
stopped, but.... [laughing]

P: Where do you think they, the Florida Supreme Court, got this November 26th

FEP 34
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B: I don't know.

P: One supposition is that they saw that all of the discussion about recounting had
delayed the process five days, so they added five days. Or, they counted back
from December 12th Safe Harbor day, and tried to allow enough time.

B: Yes, I remember us having some discussions about why that date was picked. I'm
not sure I know.

P: Did you see that as changing the law, or as it's later argued, changing the rules in
the middle of the game?

B: Yes, I mean, I think I do. I think they pulled it out of the air. I'm not as harsh on the
Florida Supreme Court for that as some people are, though I think we were in
never-never land. We were in a very unique situation that the laws really were not
written to address. I think, in the Secretary of State's office, we tried to apply the
law literally as written as best we could. On the other hand, and again I'm
speculating, but I think the Supreme Court looked at it and said these laws just
don't address this so we're going to make something up, we're going to come up
with something we think fits. We didn't feel like we could do that. We felt like we
were more bound by the statutes. So it's just a difference of philosophy.

[End of side Al]

P: The Florida Supreme Court, as you indicated, argued that what's really important
here is the voter's intent. If you can discern with reasonable certainty, whatever
that means, their intent, that's better than sticking to strict guidelines. What you
want to do is not disenfranchise any voter. So they took it from a more populist

B: A public policy argument, yes, as opposed to a strict statutory argument.

P: This is where they're going to get into trouble later because they never really deal
with the U.S. Supreme Court's remand. They don't really ever explain, until the
very end after five- four U.S., Bush v. Gore decision, why they did that. I can
understand there was so much they had to do and so many cases, that may have
just slipped through the cracks.

B: Yes. They really didn't explain it.

P: And Justice Sandra Day O'Connor was not happy that they failed to do so.

FEP 34
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B: It may have been a different story if they explained it. Who knows.

P: Well I'm sure they didn't mean to snub the U.S. Supreme Court. [laughing] This
opinion was very critical of Katherine Harris.

B: Yes.

P: It was almost derogatory.

B: Yes.

P: What was her reaction to that?

B: She was very hurt by it. Those of us that were lawyers working with her, I think,
were offended by it. We saw somebody that really was trying to follow the law in a
very difficult situation where the laws don't address every scenario that's
occurred. For them to attack her the way they did in that opinion, I thought, was
unprofessional and uncalled for. She was very hurt by it. I had defended the
Florida Supreme Court. I was one of the ones that advocated early on that, "Let's
send it to them, let's let them [handle it]." I was probably the main person that
said, "Let's get it in their hands because they're going to get it eventually." This
was the first week. People said, "Oh, well they hate Republicans, they're going to
side with Al Gore. They're not going to do that. They don't like blah, blah, blah. I
really thought the Court was above that, I disagreed with that. I said, and I told
people, that "No, I thought they would apply the law and they would be fair." When
they, then, in that first opinion that came out, or whichever opinion it was, I believe
it was the first one, where they took the shots at her.

P: That was the seven-zero opinion.

B: Yes, exactly. The way they did [that], I was very disappointed.

P: Why do you think they did that?

B: I honestly don't know. I suspect that all of the judges were not comfortable with
that language, even though everybody signed on to it. I guess the author of the
opinion maybe felt that way, and if someone else had written it, it might have been
different. I honestly don't know why they did it.

P: Some speculation, of course we know absolutely nothing that went on, [indicated]
that Justice Barbara Pariente wrote that.


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B: I've heard that speculation, but I don't know [laughing]

P: Well, we shouldn't speculate, but sometimes it's easiest to do so.

B: Now, I will say that that was the speculation that most people at the time [had].

P: So, now, on Sunday, November 26th, Katherine Harris formally certifies the vote.

B: Yes.

P: Did you all assume, at that point, that the election was over? We should point out
that George W. Bush is certified as the winner.

B: No, we knew then that the election contests would start. One point, that I always
felt like got lost, is that we always felt like a contest was where the Gore people
were going to get what they wanted, maybe not get what they wanted, but were
going to be in a forum where they could get what they wanted. By certifying earlier
rather than later, the contests could have started earlier. We could never
understand why they were so opposed to us going ahead and certifying quickly,
because they could, then, file their suit and be before Judge Sandy Sauls [of Leon
County Circuit Court], or whoever they were going to be before. If they were to
prevail in one of those cases, there would be time to count the votes, if that's what
the judge ordered. But it was so late by the time the Supreme Court said we could
certify, the contests got started so late, that you're backing up on that December
12th deadline pretty quickly. Basically, they just ran out of time.

P: Dexter Douglass [attorney for Al Gore in 2000 election] had advised the Gore
people very early on that, "Lets go directly to the contest because, once you get to
the contest, you're not going to have all these Democrats and Republicans sitting
in the recount booths arguing over each ballot. Put the ballots in the hands of the
judge, let them do it." I notice that in Judge Terry Lewis's second opinion, he
pointed out, "Well, we're going to go ahead and let her certify, but you guys can
always go to the contest."

B: That's right, yes.

P: Even the judge said that.

B: They never understood, and I don't want to be too critical because God knows a
lot of things were going on, but there was always confusion about the protests and
the contests. People didn't understand, at least initially, that you couldn't really go
to a contest until after certification. We tried to communicate that to people.
Probably, again, we may have failed in some of our communication efforts. But we

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never understood why they were so hostile and so upset with the idea that we
wanted to certify, because that let them file their lawsuit and get into the contests,
and have a shot, at least, of getting what they wanted.

P: I can tell you why, a little bit, from talking to the Democratic lawyers. First, they
were making some progress. They were getting some votes. Obviously, the four
counties they had asked for re-counts from were majority Democratic counties, so
they thought at least there was a potential for votes. Secondly, I think that Gore
thought once it was certified, that he would have a lot of pressure from the
Democratic party to accept defeat. And in the public opinion, the certification
would seem, in the public, as a final solution to the election. Plus, and I think the
real reason, Dexter Douglass and Barry Richard said this, that he [Gore] didn't
understand the Florida law, and that some of these decisions were being made by
outside lawyers.

B: That's what it looked like to us. Because we thought the law, once we studied it a
little bit, was pretty clear, that you couldn't have a contest until you had
certification. We couldn't understand why they didn't want to do that, but the
political aspects of it makes sense.

P: While we're on that subject, almost everybody I've talked to said that the
Republicans won the public relations battle. You can remember Jim Baker said,
"The votes have been counted once, counted again, recounted." Al Gore says
count all the votes, then he's opposed to counting all the military ballots. Did you
think that was correct? Did that have some impact on the legal strategy or on any
of the judges?

B: I don't know. I do think the Republicans did a better job of the public relations
battle. In my former life, before I went to law school, I was a political reporter for a
dozen years, so I was pretty interested in the press coverage and all of that. It
was one of the few times since I've been practicing law I wished I'd been a
reporter again. I was more focused on the terrible job that Secretary of State's
office was doing in communicating what we were doing. I was very frustrated. I
thought we had a story to tell. I thought, if we could have explained to people why
we were making the decisions we were making on certification and on a variety of
other things, that she would not have been savaged the way she was in the press.
For whatever reason, her political people felt like they were going to get a bad
shake from the press, no matter what. I think Republicans feel like this in general,
some of them, that "The press is Democratic, the press is liberal, so we're not
going to tell them anything. They're going to say what they want to say even if we
go talk to them, so we're not going to go talk to them." I think that was a huge
mistake. Huge. I think, if we had been allowed through whomever they wanted to
get up there and tell them, [it would have been better].

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I don't know if you recall the press conferences that we had. I had one with
Katherine [Harris], and then [with] Joe Klock. Ben McKay wouldn't let more than
four questions be asked [at that first press conference]. One of them was after
Judge [Terry] Lewis ruled, and I was handling that press conference. We were
saying that we agreed with Judge Lewis's opinion, and we were explaining how
we were going to come up with criteria. The press had a lot of questions, which
they should have, I mean, it was not a simple thing. We made a little statement,
and Ben McKay hustled me out of there after three or four questions, and I felt like
that was a huge mistake. I knew a bunch of those reporters sitting out there, and I
think we could have told our story and explained it, and we would have gotten a
much better shake. [The] same thing happened a couple days later when Joe
[Klock] had his press conference.

P: Why do you think he did that? Are they afraid you were going to make a
misstatement or what?

B: I think they were just afraid of the press. I think that they felt like the press was
against them, the press was not going to report it accurately anyway. They
[already knew what they] wanted to report, so why talk to them.

P: A little bit of Nixon paranoia here?

B: I wouldn't want to be quoted accusing Katherine [Harris] of that.

P: In her book, she says that she thinks that's a mistake. She says that she should
have appeared more, that they should have discussed these issues more
thoroughly, and that, had they done so, as you indicated earlier, the position she
took would have been, at least from the press's point of view, presented to the

B: That's right, and that was our biggest mistake in the whole thing. I mean, after
those press conferences that Joe [Klock] and I had, we got calls from every media
outlet in the world. The Today Show [NBC television morning show] wanted us,
Good Morning America [ABC television morning show] wanted us, Larry King Live
[CNN television talk show] wanted us, and they wouldn't let us do any of that. I
don't care personally whether Joe did it or I did it, but somebody should have
done it, you know, just to communicate.

P: Who made that decision? Was that Mac Stipanovich or Katherine Harris?

B: I think it was a combination [of the two], and this is only my speculation, of Mac
[Stipanovich] and Adam Goodman. I was not hired to be their political advisor or

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their media advisor, although I tried to do it sometimes, but they didn't think we
ought to do it. I worry a little bit that maybe they didn't trust us enough to let us go
out there and do it, "us" being me and Joe Klock.

P: I noticed, talking to Barry Richard, in the first case they brought in another lawyer.
They [Bush's legal team] knew Barry Richard was a Democrat, and they said,
"Well, I don't know if we want to get him up in the court, we're not sure we trust
him." Then, once he appeared and demonstrated his skills, they put him in the
forefront the rest of the time, and they allowed him, encouraged him, to go on all
these shows. He was on Larry King Live.

B: That was smart, and I think we should have been allowed to do that as well. They
did let Joe [Klock] do it once or twice, a little bit, but, by and large, we were not out
there in the forefront selling our position or making our case. I truly think we
should have been. I think Mac [Stipanovich] might be the one, or Adam Goodman,
I don't know if you're talking to him, but they could probably explain better why
they didn't do that. But I think they're the ones who made that decision.

P: I think the way Mac Stipanovich explained it to me was that it was for the sake of
expediency. The idea was to get it done, and the less time spent talking about
these issues, the better it was for the process. I don't think he indicated that
people were incapable of doing that. I think he also wanted to stay away from
what some people might interpret as political activity designed to put the spin on
what's going on.

B: That may be.

P: Now the case goes before Judge Sauls, the contest. What kind of argument did
you make in that case?

B: Joe Klock argued that case and he was handling that. I was working, at that point,
on a number of other matters. I guess I did a little bit on that case, but I was sort
of the gate- keeper. I was handing out assignments and editing briefs, and Joe
was much more involved in that particular case than I was.

P: In that particular argument, the Democrats are going to say, once again, the intent
of the voter should be considered, and Joe Klock and Barry Richard are going to
argue that there are two issues here. One, can the Gore people prove a
"probability" that recounting would change the election, not a "possibility."
Secondly, did the canvassing boards abuse their discretion? That was one reason
to bring Judge Burton up there to testify. Burton testified as to the great care they
took with each vote. Apparently, those arguments that Joe Klock and Barry
Richards made were, almost word for word, part of Judge Sauls's opinion. So do

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you think that had an influence on him?

B: Yes. I was not that involved in that case, so Joe [Klock] or Barry [Richard] would
be better to speak to that case than I would be.

P: Once that has been done, it's pretty clear from the Democratic viewpoint, that they
need to get to the Florida Supreme Court as soon as possible. What was your
reaction to the four-three vote by the Florida Supreme Court, which allowed them
to count the Palm Beach ballots, recount 9,000 ballots in Dade County, and count
all the under-votes?

B: I felt there was absolutely no authority for it in the law. I didn't know where they
came up with that. It was surprising to me. I recall thinking that Judge Wells's
dissent was right, absolutely right, well reasoned. Judge [Charles T.] Wells [chief
justice, Florida Supreme Court, 1994- present], if I recall, and I have not read this
in almost two years, pointed out that the Court had tried in its previous opinion to
fashion a remedy, to come up with a way to deal with this, but that too much time
had gone on. He may not have said it quite this way, but I read it as him saying,
"We have gone far afield of following the statute at this point, and we can't do
anymore." I thought he was absolutely right.

P: It was a very stinging dissent.

B: Yes, it was.

P: One of the issues that you hinted at there, he says, "We've created a
constitutional crisis now."

B: Yes.

P: And it needs to go on. Were you surprised at all by the closeness of the vote?

B: Yes. I think, in the first opinion, and this is just based on nothing more than having
worked at the Court for a couple years, ten years ago, the judges tried very hard
to come up with a unanimous opinion in the first opinion. I think they knew the
whole world was watching, and they knew that everybody was analyzing who was
a Democrat and all of that, and they wanted to project unanimity. I think they
would have loved to have done that the second time too, but, clearly, there was
no way. They were just obviously a very fractured court.

P: One of the things that Justice Major Harding said was, "If we carry this through to
a logical conclusion, anybody who loses can make Gore's argument."


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B: Right.

P: One of the things that Barry Richard said in his argument, he said, "Well, just send
the votes right to the judges and we'll just do away with the canvassing board." At
what point do you have rules? An election has to end at some point, it can't go on
forever. The Democrats assumed, knowing Judge Sauls is pretty conservative,
they were going to lose anyway, and therefore, they wanted to get it in the Florida
Supreme Court. One of the arguments Barry Richard made was that the Florida
Supreme Court was not partisan. That four-three vote demonstrates that to a
degree. It was not a "Dexter Douglass" liberal court. They ruled against Gore five
times. They ruled against him on the butterfly ballot, on counting Dade, on
recounting in Seminole and Martin Counties. So it appears, if you look at the
broad context, that this was, in fact, not a partisan Court. Would you agree with

B: I would agree with that. I've never thought they were motivated by the
personalities, you know, "We want Bush to be president, or Bush is a Republican,
or Gore's a Democrat and, therefore, we want him to be president. I never, ever,
thought they were motivated by that. I think that some of those judges have very,
very different legal philosophies on everything. Judge Pariente and Judge Wells, I
think, are [as different as] night and day. Not just on this, but on many things. So
it's not too surprising to me that the Court was fractured. They'd had a number of
fractured opinions on other issues during that time period. I think a few less now.
They had split pretty harshly on a number of cases around that time. I think it was
just more a difference in judicial philosophy, not a Democrat-Republican thing.

P: Well, as a matter of fact, all the lawyers I've talked to were pretty clear how
Justices Barbara Pariente, Peggy Quince, Major Harding, and Charles Wells were
going to vote. Then the middle group, Harry Lee Anstead and Leander Shaw,
were less predictable. They were not sure how they would break down. I think
possibly any lawyer who goes in wants to argue the issues and the facts, but they
also have some idea...

B: Of the mind sets.

P: Yes.

B: Sure, absolutely.

P: Because that's going to influence whatever a judge or a justice does.

B: That's right.


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P: Let's talk about Seminole and Martin Counties. Now, were you involved in both of
those cases?

B: I was to some extent. We had a lot of people involved in them. I ended up taking
telephone depositions. I think it was the Seminole County case [that] there was
one Sunday, it seems like, where we had ten or eleven depositions in one day. I
was covering them by the telephone. So yes, I was involved in those cases. I think
I handled the briefs on the appeal too.

P: The issue is, in this case, Sandra Goard [supervisor of elections, Seminole
County] allowed Republicans to come in and put identification numbers on the
requests for absentee ballots. It did not impact the ballots themselves. The
argument that Harry Jacobs [a Democratic operative who filed a protest against
Goard's action] and others made is that this is a violation of Florida Election law. It
was a violation of public records laws, since they were no longer, literally,
controlled by her, and that she had, in fact, denied the Democrats the opportunity
to do what the Republicans did. What was the counter- argument?

B: We never felt like they had any support in the law for that. Again, I don't
remember the details of it right now without going back and looking at the briefs,
but we felt like they were allowed under the law to do what they did. Whether they
should have done it was really a different issue, but as I recall, there was really no
basis for reviewing or redoing anything based on what happened. The law just
didn't provide for that.

P: Both Judges Terry Lewis and Nikki Clark said they'd used bad judgment.

B: Yes.

P: But since you had no way of knowing which ballot was which...

B: That's right. How can you fix it?

P: You can't disenfranchise all of the voters for what is a technical violation.

B: That was basically our argument. I don't think we said that it was okay that they
did this, but we said, "Clearly, under the law, there is no way you can go back now
and do anything about it." That's pretty much what we stuck to.

P: Although from the Democrats perspective, and I can understand this, I forget the
figures, but something like 900 Republican absentee ballots were sent out through
this process. Right there is enough to win the election.


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B: Absolutely. I remember that.

P: Somebody else said it's one of the few times that the Democrats did it right. The
Republicans hadn't put in the little ID number, and they had to go back.

B: That's right, they had to go fix it. Yes, that's right. There was just no remedy for
that, but I don't think you'll see that happening again in too many supervisors'
offices either.

P: I'm not good on all these cases, but it seems to me that Boardman v. Esteva, was
one of these cases cited that said you can't throw out votes for technical
violations. Is that right?

B: That sounds right to me. I remember the case name, and I know there were cases
saying that.

P: As in Beckstrom v. Volusia.

B: That's the sheriff case.

P: They allowed the results of that election to stand.

B: The case law was pretty strong in our favor on that.

P: Were you surprised at all that the United States Supreme Court granted
B: Yes. Well, let me think about that. I remember feeling at the time that everything
had spun out of control so much. That weekend when, you know, the canvassing
boards were trying to get together and count. You have people in the library here.
You had people all over the state counting votes. It was a mess in every county.
You'd watch television, and nobody knew what was going on. Some of them were
saying they couldn't do it, and they didn't know how to do it. I remember sitting
there thinking that the Supreme Court's got to take this to stop it, to bring it to
some kind of closure. I remember thinking that it had just gone on too long. It was
not so much that I thought they'd take it on legal grounds, but that I thought they
would take it just because on policy grounds, it had to be brought to some sort of

P: There's some argument that on the first remand, which was five-four as well,
Justice Antonin Scalia, from his comments, made it pretty clear where those five
people stood in terms of, particularly, this differing standards issue. So some
people I've talked to thought that the game was up even at that point. Did you feel
that way?

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B: Yes. I remember feeling that if the Supreme Court took it, that I thought we would
probably prevail. I think I probably had that feeling from some of the language in
the first opinion. I remember feeling like the Florida Supreme Court, in the opinion
on Judge Sauls's case, hadn't gotten what the U.S. Supreme Court had said. I
remember thinking that, "Boy, did they read it?" I guess, from the other side of it, I
think the Florida Supreme Court, the four justices, felt like this is clearly an issue
of state law. "It's our responsibility. It doesn't matter what they think, they have no
jurisdiction over this." I think that's what they felt.

P: Well, that was probably foolish. Because the U.S. Supreme Court had already
remanded it back with specific instructions, it's pretty clear that, if they didn't get a
proper explanation, that they were going to put a stay on that decision. It's easy,
in retrospect, to think so.

B: Yes, it is. I guess we all thought, I do remember feeling, that when the Florida
Supreme Court opinion came out, I thought, "Boy, I wonder what the U.S.
Supreme Court's going to do with this." I remember thinking, "This is just not what
they had in mind."

P: One of the issues you might explain to me is, if you have an emergency
injunction, you have to demonstrate irreparable harm. One of the issues was, the
Supreme Court ought not take it because Bush is in the lead. How can there be
irreparable harm? Then Justice Scalia comes up and says, "What if they count
first and then validate? Secondly, what if the results are changed? Then it could
do irreparable harm." Did you think that as well?

B: I don't recall focusing on that too much at the time. That's a good point, but I just
don't remember thinking about that.

P: Did you help Joe Klock prepare his brief before the U.S. Supreme Court?

B: We all did. We had a team working on that. I worked in Tallahassee on it. I helped
edit some of it. He went up to Washington with John Little and a couple of
associates, and they prepared very carefully and detailed up in Washington. Other
than the briefs, I was not involved in the actual sit down, preparing him for the oral

P: What was the essence of Joe Klock's argument before the Supreme Court?

B: I'm not even going to try to characterize it because I know you've talked to Joe
and he can state that, but I was not that involved in it. I was mainly trying to edit it
to make sure it made sense and clean it up.

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P: Plus there's such a time limitation to present your arguments, and they always ask

B: And at that time, when they were working on that case, I was working on the
appeals of some of the other cases. The butterfly ballot case, the Seminole case,
[and] the Martin case, all of which were winding their way through the Florida
Supreme Court. So I was more focused on the state court stuff.

P: You should have spent more time teaching him the names of the justices.

B: I was so mortified. We all were just mortified.

P: It didn't bother him.

B: No, I know. Well, that's what he says. Speaking of preparation, I do know that we
told him, the lawyers from Steel Hector told him, I didn't personally tell him, "Don't
mention their names. Don't call them by name." John Little told him. I don't know if
you talked to John Little. He told him that. They all told him, and he did it anyway.
I thought it was highly embarrassing, but Joe Klock has maintained from day one
that it wasn't a big deal. I don't know if he told you, he wrote letters of apology to
the justices, and they sent him nice letters back saying no big deal.

P: Well, he also said he was so impressed with the knowledge and intelligence of the
justices, that it was an extraordinary experience to appear before them, although
he was limited because there were other people who represented other
individuals. Now what is the overview of the five-four decision. There is, at least in
academic circles, a discussion that this was a pragmatic decision, not very strong
in constitutional legal terms.

B: Right. The fact that those five judges relied on the equal protection analysis is
somewhat interesting. The academics have addressed that, and I agree with that.

P: The [Chief Justice William] Rehnquist Court had rarely decided anything on the
14th Amendment..

B: [Correct]. That's been covered pretty well in the literature, but I agree that the
equal protection analysis was very strange. I think it was a results driven opinion
that I think was the right decision because it needed to end. Bush was ahead,
Bush had been certified according to Florida law as the winner of Florida's
electoral votes. The law was followed to the degree that we could follow the law in
Florida, given this bizarre situation. I think it was absolutely the right decision. I

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don't know if I would have used that analysis, but on the other hand, what analysis
do you use? Clearly, it was a results driven decision, and you had to get there
somehow. You couldn't just say, "Bush wins." [laughing]

P: Something that's forgotten here is the Electoral Count Act and the December 12th
Safe Harbor rule. By the time they decided, the justices ruled that, there's no more
time anyway.

B: There's no more time, right. I mean, the time was up. We had to have a winner, or
else it was going to be thrown into chaos, at that point.

P: Well, but there is a constitutional remedy if there are two sets of electors that are
presented, and the legislature was clearly going to seat the Bush electors.

B: Oh, they were ready. They were ready. [laughing]

P: We know what would happen, ultimately, which surprised me, is that the Gore
people were going to lose in any event.

B: That's right. That's another reason I say that it was the right decision. It was a
result driven decision because they needed to end it. It was pretty clear how it
was all going to play out, it was just a question of how it was going to play out.

P: There are two other aspects that are forgotten. One is due process, and the
second is the Second Amendment. The Second Amendment says the legislature
makes these determinations, not the Court. So people tend to focus on the
Fourteenth Amendment. Some people are going to argue, as you know, that this
was a partisan decision. Alan Dershowitz [lawyer; professor, author] and others
say that the whole design of all of this was, a Court that had eschewed judicial
activism is going to intervene in a state case in order to get George W. Bush

B: I don't know if I agree with that, and I've thought about it a lot. I think all the
judges, both the U.S. Supreme Court and the Florida Supreme Court, have been
unfairly criticized by a lot of people. They were called on to deal with what could
have been a constitutional crisis. [It was] clearly a very bizarre situation involving
the election of the president. I think both courts did the best they could to handle it
with no clear law to follow. I criticize the Florida Supreme Court a little bit for their
attacks on Katherine [Harris], but that is really the only thing I would criticize them
for is for personally attacking her. I think they tried to do the best they could. I
didn't agree with their decisions, but it was not what I argued or what my firm
argued. I do think they tried, and I think the U.S. Supreme Court tried, to grapple
with a very difficult situation and come up with a result that was best for the

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country. I don't mean Bush being the best president for the country, I mean
ending it. It needed to end when the U.S. Supreme Court finally ruled.

P: They were both constitutional issues and a federal issue. This was, after all, a
presidential election. It's not as they've just done with the New Jersey senate
race. It would be much easier to justify taking the Florida case than the New
Jersey case.

B: Sure, yes. I mean, it wasn't a governor's race or something of that nature. Right.

P: One argument that David Boies [attorney for Al Gore in 2000 election] made, he
said that, once they got before the Supreme Court, he thought there was a Catch-
22. If the Florida Supreme Court had set a standard, they'd be making law. If they
didn't set a standard, they would be violating the Fourteenth Amendment. He
thought they were going to lose either way.

B: Yes. I remember hearing him say that at the time.

P: Judge Middlebrooks, in his decision, argued that in Florida you have sixty-seven
different standards because the electoral elections supervisors in this state have
different ballots. That's the way it's always been, and what you do is, you rely on
the canvassing boards. So if Broward County is different from Palm Beach
County, so what, that's the way it's always been.

B: That's the way it is.

P: That the federal court should not intervene because this really is a state matter. If
you carry this to the logical conclusion from the U.S. Supreme Court, there should
be one standard and one voting machine throughout the country.

B: That's an interesting point.

P: Otherwise, any election...

B: Right, you've got equal protection problems. [laughing]

P: Yes, exactly. For example, let's take Duval County military ballots, which were
brought in on the 17th of November. They didn't have signatures, didn't have a
witness, did not qualify as a legal ballot, but were accepted. Whereas some votes
in an African-American community, where they voted for ten candidates for
president, they were thrown out. You could argue that's a violation of the
Fourteenth Amendment.


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B: Yes. I don't think you'll see that case relied on very much for anything.

P: No precedent.

B: I don't think it has any precedential value. I think it's meaningless. Not
meaningless, obviously, it decided the president of the United States, but it's
meaningless for any other purpose.

P: Another thing that was brought up, and David Boies talked about this, he said
what the U.S. Supreme Court should have done is deal with this issue on the
"reasonable man" standard. If you look at the death penalty, in Georgia they
would put a person to death and in Minnesota they would not. It's the same for
any jury, so you must accept that standard for canvassing boards. Does that have
any validity?

B: Well, I think it's a good argument. The system we have here in Florida, unless we
change it, as Don Middlebrooks pointed out to you, it is set up on a county by
county basis, and you're going to have different procedures [and] different ballots.
You can do the best you can with uniformity and hope for the best, but I think
you're never going to get it to be, as you said before, carry it to the logical
extreme, [that] we'll have the same voting machine in every precinct in the
country, and there will be no variety on anything. But it's not how we've done
things historically.

P: Will the Election Reform Act of 2001 solve some of the problems since the old
Votamatic machines have been discarded by the legislation?

B: I'd like to say yes. We've just been through another election where you might be
doing an oral history about that one someday. I think, probably, in retrospect from
the 2002 primary, what we've seen is that probably it will solve a lot of the
problems, but it's too much too soon. Those big counties down in south Florida
either didn't have time or didn't adequately gear up for the 2002 election. I think
ultimately that the reforms probably will be very helpful, and probably were
needed and were good, and time will tell. I suspect as time goes on, if you have
another very close election ten years from now, you'll have a better legal
framework to deal with it. The law will be clearer.

P: But the law did not set a standard.

B: Right.

P: The standard is still the intent of the voter.


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B: Yes.

P: I talked to John McKay [President, Florida Senate, 2000-2002] about this. I asked,
"Why don't you just have one machine?" "Have the precinct-based scan
machines, because you can't over vote, it will spit it back." He said, "Cost." Yet,
Palm Beach County bought those computers which are ten times more expensive
and they were not online or broken down, and a lot of elderly people had trouble
using those kinds of machines because they have no experience with it.

B: They have no experience, right.

P: Is the answer voter education?

B: I think voter education is important. I don't know that we have money for the state
to do voter education to the degree that it would need to be done. Maybe we don't
have the political will to do it. You've got, and this is my personal opinion,
Republicans in charge of the legislature, and I don't know how much they want to
educate some Democratic voters. [laughing]

P: Probably not too much.

B: Right. I mean, I don't know that they would want to spend, [or that] it would be
their priority to spend, millions and millions of dollars to go into poor precincts and
make sure everybody understood everything and encourage them to get out and
vote, because that's not going to help Republicans. I mean, that's just [the] reality
of the situation.

P: Plus, there's such a significant amount of apathy anyway. Such a small
percentage of Americans even register to vote, and of those registered, a small
percentage actually go and vote.

B: I do think, with the large elderly population we have in Florida, there ought to be
more efforts to help them through the process. Whether it's voter education or at
the polls themselves. I know there's only so much you can do at the polls
themselves and preserve the secret ballot, but they want to vote. They care and
they're interested, and [they're] generally informed citizens. There ought to be
something done to make it easier for them.

P: That was one of Katherine Harris's [points], [that] we need to help people who are
"disabled." A lawyer was telling me the other day that he would get an elderly
person to sign a will, and he would say sign by the X, and they'd try to sign
somewhere else. He'd almost have to guide their hand, [saying], "No, no, no, right
here," because they couldn't see very well.

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B: They couldn't see well enough to see where to do it.

P: So that's a problem of people trying to vote. And they do want to vote.

B: Yes, and they generally know what they're voting on.

P: Yes. Is there any credibility to the Civil Rights Commission Report? I don't know if
you were aware of it, the report concluded that there was discrimination against
minority voters, that Haitians did not have enough assistance, and there was, in
Tallahassee, a highway patrolman making stops not too far from the polling place.

B: I don't know. I haven't seen any evidence of that, and I'm somewhat familiar with
their report. I will tell you this. When they were here, shortly after the election, and
they had Katherine Harris down there, I thought they treated her incredibly
shabbily. They were hostile to her, they were rude to her, and I thought it was
uncalled for.

P: She also mentioned in her book that the Civil Rights Commission never really
formally gave her an opportunity to reply to the initial report, which was, ultimately,
later changed a little bit.

B: Again, I don't know if those things occurred or not. I was not in those counties [so]
I have no knowledge, but I didn't see any evidence that they occurred. I think the
Civil Rights Commission was bound and determined that they had occurred. They
had made up their mind before they started on their fact finding mission.

P: Were you involved in any of that at all?

B: Not really, no. Only very peripherally.

P: Do you think that Katherine Harris presented a persuasive case?

B: I think she did a good job. Katherine [Harris], we talked a little bit about this before
you turned on the tape recorder, she's a very, very smart woman, and she's a
very knowledgeable woman. Her forte is not appearing in public and talking about
these issues. The press conferences during the election are a prime example, and
I think maybe her presentation to the Civil Rights Commission may be another.
She doesn't do as well in that forum as she would one-on-one, or if she could sit
and communicate with you, or if she could write it or something. But I do think that
she knows what she's doing. It's hard for her in those kind of forums.

P: What's your reaction to the press vilification of her, talking about her make up and

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all that sort of thing?

B: I thought it was unfair. I think a lot of it, we're back to where we were earlier, might
have been avoided, or some of it might have been avoided, if she had been
available, or if somebody from her office had been available to talk to them. They
had the idea that she was holed up and wouldn't come out, wouldn't talk to

P: In the war room.

B: In the war room, yes.

P: That Gov. Jeb Bush was calling the shots.

B: Oh yes, and we didn't go out and tell them differently. I think that fueled some of
[it]. They were angry and they were upset with her for not talking to them. There's
nothing worse you can do to a reporter than not giving them an interview or not
coming out and being on camera. So that, I think, fueled some of the personal

P: Otherwise, was the media fair in their treatment of her office?

B: I will probably be in the minority on this one. I think, and I generally defend the
media having been a reporter, I think they tried to be fair by and large. Now, there
are probably some that weren't, but as a group, as a whole, I think they tried to be
fair. I don't think we did a good job of communicating our position to them. Had we
done a better job of that, I think we would have been treated more fairly, and I
think everybody would have been more comfortable with the coverage. [But] that's
easy to say in retrospect. They don't have time to read fifty-page briefs, they don't.
They're going to report what you tell them, and if you don't come out and tell them
anything, then your side of the story doesn't really get much play.

P: Then it gets filtered through the media.

B: Yes. Somebody will tell them what we said in our brief, but it would be better if we
had done that.

P: And often even those on camera people went to the wrong parts of the decisions.

B: Sure. Oh, yes. They're working under a tremendous deadline, and most of them
aren't lawyers. You know, you need to help them a little bit, and we didn't do a
very good job of that. I think most of them tried to be fair.


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P: Is there anything that we have not taken up that you would like to discuss?

B: I don't think so, I think we hit on the high points. I'm sorry I didn't reread the briefs
before we talked because I might have been a little more specific on some of
them. A lot of it, as you bring it up to me, it comes back to me as we talk. I have
buried a lot of it because it was, without a doubt, the most intense thing that I've
ever been through. We worked around the clock for a month and existed on three
or four hours of sleep.

[End of side A2]

B: Okay, I was just saying I put a lot of it back in the part of my mind where I didn't
want to think about it for a long time. I didn't read any of the books that came out.
I was interviewed for some of them. I read a portion of the Washington Post book,
which I think was the first one that came out. [I read] only the chapter that dealt
with Katherine [Harris] and our decision on certification, I believe, was the main
focus of that. I didn't read any of the others. I didn't want to talk about it with
people, and, of course, everybody wanted [to]. You know, you go home for
Christmas that year and that's all they want to talk about. I had to distance myself
from it. Up until this election cycle, where I represented Katherine [Harris] again in
her case over here in the circuit court on her resignation, it brought back to me
some of it. For the first time, I felt like I was really ready to think about some of
those issues again. It just was too intense and too much, and I needed to get
away from it for a long time.

P: Do you think you will, at some point, go back and read some of the briefs?

B: Yes, I do. I'll tell you, the [Jeffrey] Toobin book, which I did not read, he talked to
Mac Stipanovich. My former partner, Vicki Weber, did read it. Jeffrey Toobin didn't
talk to us, and I felt like the version of what Mac [Stipanovich] gave him was not
exactly the way that we would have told it, in terms of what happened in the war
room and the decisions we made about certification, and why we came up with
the criteria that we came up with.

P: Even Mac Stipanovich was dissatisfied with how Toobin interpreted what he told

B: Okay. Well, so maybe it was not Mac [Stipanovich], it was maybe Toobin's spin on
what Mac said.

P: That's always the case for anybody who writes. It's pretty clear from that book that
he was displeased with the final outcome of this election.


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B: Right [laughing].

P: So, once you sort of start with that mind set, he's going to find controversial
issues. And there are mistakes in that book, by the way.

B: Yes. Well, that's what I've been told, and that's another reason I haven't read it. I
think highly of Jeffrey's work. I read the O.J. [Simpson] book, I read the Vast
Conspiracy, the Monica Lewinsky book, and I think he's fabulous. So I was really
thinking that would kind of be the definitive, the best book about it. When others
read it, I was very disappointed in what they told me, so I just didn't even read it.

P: That's precisely one of the reasons that I'm doing this. I don't know how many
times I've been told from various people that this has been reported incorrectly. I
didn't do it, I wasn't even there. So it seems to me the logical way to approach it is
to talk to everybody involved and get their story. Then, at some point, another
historian will come back and look at the overview, and hopefully piece it together
in a much more logical, factual way. There's always an interpretation, but when
you write these books too soon, and Jeffrey Toobin didn't really have enough time
to absorb everything, you're going to find those kind of mistakes.

B: [There's only one] other thing that I would add that we didn't touch on, and it's
something that didn't happen, so we probably don't really need to touch on it. I
think what would have been very interesting is, at the time [of] five o'clock on that
Sunday afternoon when the deadline was for everybody, had those counties
finished their recounts and had Gore been ahead after the recounts. I think the
Secretary of State's office would have gotten tremendous pressure from the Bush
campaign not to certify, and I think we would have certified anyway.

P: So the game would totally change as soon as Gore took the lead. Then they'd
switch positions.

B: Right. If they had finished, if they had worked on Thanksgiving, and Gore had
been ahead by 100 votes or 200 votes or something, flip flop, at five o'clock, I
think the Bush people would have pulled out all the stops to try to keep us from
certifying. In talking with Clay Roberts, who is head of the Division of Elections,
and with some of my partners, about that possibility, we were sitting there Sunday
morning in my office over at Steel Hector talking about that possibility. We had
had some inklings from some phone calls that, "If Gore's ahead, I don't know if
we're going to certify." Not from the Secretary of State's office, but from others.
We were going to say, "We've got to follow Florida Supreme Court. They told us
we've got to certify, and we're going to certify."

P: Boy, it'd be hard to change it at that point.

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B: Yes. I don't know how you could not have, but I think the Bush campaign would
have pushed very, very hard both politically and legally, I don't know what they
would have filed where, to prevent us from certifying Gore as the winner. It never
happened, but there was about three or four hours on that Sunday morning where
I thought, "Boy, this is going to be the biggest crisis of the whole thing, if we get in
that situation." We didn't know what their counts were showing. We knew they
were frantically counting down there, and we knew the Gore people thought that,
if they finished that they might have been able to have enough votes.

P: Particularly if Dade County had continued to count.

B: Yes, and I think, by that time, they had stopped counting. It was just Broward and
Palm Beach [Counties] at that point. I think that would have been fascinating.

P: If they had had a little more lenient standard. They argued that, I can't remember
the number, something like 2,900 votes in Palm Beach County that should have
been recounted with a more lenient standard. In fact, David Boies went down
there and appealed to them directly to have a more lenient standard. So if you
take that into account, with as few votes as you're dealing with here, it could have
made a difference.

B: It could have been, it could have happened. Some of us in my office spent a fair
amount of time that Sunday morning worrying about it, but it never came to pass.

P: Does that demonstrate one of the aspects of this recount that the Republicans
fought harder, more effectively, more efficiently to win the recount, which they
did? Would that be a fair statement?

B: Yes. [The] Republicans played that much smarter and much better from a political
standpoint, and even from a legal standpoint. I think the Republicans had their act
together much better in their arguments than the Democrats did. We talked about
it a little bit earlier, but the Democrats tried to run it from wherever Al Gore was,
and didn't listen to their Florida lawyers. John Newton and Dexter Douglass and
those guys knew what they were doing, they knew Florida law. And Davis Boies
was fabulous. I mean, he's a great lawyer, there's no doubt about that, but I think
some of the strategic decisions they made could have been better.
P: Was money a factor the Republicans, in the recount, they outspent the Democrats
by two or three to one?

B: They always outspend the Democrats. [laughing] Yes, it probably was. I mean,
from what I hear, and again I was not involved in this, but they apparently bussed
people in to protest. I know I saw them the night we certified. The Bush people

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were just packed in that capital courtyard. I don't know where those people came
from, but I didn't see any Democrats doing similar kinds of things.

P: Except for Jesse Jackson and a few senators. The Republicans had Bob Dole
[U.S. Senator from Kansas,1969-1996] there.

B: Speaking of stupid decisions. I don't know if anybody's talked about this, but
Jesse Jackson [activist, civil rights leader] sitting in [Judge] Nikki Clark's
courtroom that first day of the Seminole County case was the stupidest thing he
could have done. He obviously didn't know Nikki Clark, because I don't think she
took very kindly to that. I think she was offended by it. I would talk to her.

P: The Republicans, as you know, tried to recuse Nikki Clark.

B: I remember. I was pretty involved in some discussions on that. I told them, the
people who asked me, that is a very stupid thing to do. I don't think Barry Richard
signed that.

P: Barry Richard wouldn't sign on to it. He knew she was independent [and] fair. The
argument was [that] she's a Democrat, she's black, she got passed over by Jeb
Bush, she's got to be against us just on that standard alone.

B: Right. I heard that. I [thought] that that would be a huge mistake and we shouldn't
engage in that practice, and we didn't. Of course, some of the Bush people did do

P: This is perhaps an example of the bare knuckles approach. You know, "We're
going to win this thing. As long as it's within the law, we don't really care how we
win it. If we recuse her."

B: They didn't care.

P: They didn't care.

B: I mean, they didn't have to stay here and practice in Tallahassee and have cases
before her again.

P: But Jim Baker's job was to win the recount for George Bush.
B: Yes.

P: Hypocrisy aside, you might remember the four-three Florida Supreme Court vote
[where] he was denouncing the activist court intervention. Then [in] the five-four
U.S. Supreme Court [decision] we don't hear anything about activist courts.

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B: That's right. The end justified the means.

P: Then on the other hand, Gore was [saying] count all the votes, and then they were
challenging the military votes. So, there was hypocrisy on both sides because the
object was not legal arguments, per se, but whatever argument would win the

B: That's right.

P: Is that fair?

B: Yes. I think that's right. And they were smarter about it than the Democrats, or
maybe more calculating, strategically.

P: One thing that's come up that intrigued me that I've sort of learned by talking to a
lot of people is that the Democrats [had] Mitch Berger in Palm Beach County and
he was up here, and Ben Kuehne was in Broward and Dade Counties.
Republicans had Steel Hector and they had Barry Richard for them, and they
were working together. They had organized people for briefs and for connections
with other lawyers, and the Democrats were kind of scattered around and there
was no central person making all the decisions other than Al Gore. Whereas, as I
understand it, the Bush people pretty much allowed the lawyers to do their thing.

B: That was the impression I had. I do know that I felt like Katherine Harris allowed
us to do what we were supposed to do. We were not getting marching orders from
anybody to come up with a particular legal strategy or to reach a specific
conclusion. Mac [Stipanovich] may tell you differently, but I can tell you as the
lawyer working on it, we felt like we worked independently, and we gave her
advice as to what we thought the law said. I'm a Democrat, I mean, I voted for Al
Gore, but I have absolutely no regrets about any legal arguments we made on
behalf of Katherine Harris. I think they were right, very defensible. I resent when it
[is] said by people that she acted purely politically, and that all of our arguments
were calculated to help Bush. I really, really resent it because it just wasn't the

P: It's interesting that the main defenders here, Joe Klock and Barry Richard, are
both Democrats. And Barry Richards will tell you the same thing, that they argued
the law and they thought they were right. Of course, you work for your client.
B: Sure. Some people who aren't lawyers, I think, think the law is a hard and fast
concept that it says what it says. But all laws are subject to various interpretations,
and obviously you take the interpretation that best meets the objective of your
client. I always felt the objective of my client, the Secretary of State, was to do

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whatever the law required, not to help George Bush. I didn't view that as her
objective. Now I think her political advisors, Mac Stipanovich, may have had a
different view of the whole situation, but I didn't feel like that affected my advice.

P: In retrospect, are you glad to have participated in this case?

B: Yes. It's the biggest case I'll ever be involved in, I don't care what else happens
for the next twenty years. Yes, absolutely. It was a draining experience, and when
it was over I [have] never been so glad something was over in my entire life. I
didn't want to think about it or talk about it for a year or more. But, yes, I'm very
glad that I did it.

P: It was for most people not only a great challenge, but really an exhilarating sort of
opportunity to be involved in such an incredibly important case.

B: Absolutely. It gets the adrenaline flowing, and you can live on three hours of sleep
a night when you're working on something like that, that's as important and as
fascinating as that was. Although by the end, we were all so tired. I think that's
why Joe [Klock] messed up the judge's names. He was so tired.

P: He was exhausted.

B: Oh, yes, and he, literally, outworked any of us. We all were working hard, but that
guy can exist with no sleep. He, literally, can, and just keeps going.

P: Is there anything else that we would like to talk about?

B: I don't think so.

P: Okay. Well, I want to thank you very much for your time.

B: Thank you.

P: I appreciate it.

[End of the interview.]


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