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Tom Feeney begins by describing how he reacted to the events that unfolded on
election day (pages 1-3). Almost immediately, he believed the legislature would have to
play a role in the controversy (3). Feeney believed the legislature's power to act came
from Title Three, Section Five of the U.S. Code (page 3). He offers his interpretation of
the State Supreme Court's decision that placed a deadline on tallying the votes (page
5). He believed the state Supreme Court wanted Al Gore elected and based their
judgements on this desire (page 6). During the recount, Feeney suggested that the
court had created a constitutional crisis (page 7). He offers a historical perspective on
the recount controversy (pages 8-9). The state legislature consulted with several legal
scholars regarding their duties during the controversy (pages 10-11).
Feeney understood the controversy he created, but believed the legal basis for their
activities had deep historical roots (pages 11-12). Although Feeney was willing to select
his own slate of electors, the state senate did not seem interested in getting involved
(page 13). He acknowledges public relations difficulties (page 14). He discusses the
Supreme Court, their involvement, and his predictions for the outcome (pages 14-16).
He describes the political machinations involved in his plan's implementation (page 17).
Speaks about the creation of the Joint Legislative Oversight Committee on Electoral
Certification Accuracy and Fairness and the Election Reform Act of 2001 (pages 18-19).
Feeney allowed some democrats to participate in the election reform committees (page
20). He insists that Governor Jeb Bush did not push him to devise a plan for ensuring a
Bush victory (pages 22-23). He mentions the final vote tallies for his resolution (pages
24-26). He considers the Senate's reluctance to vote with the state legislature
regarding the selection of electors (page 25). He mentions his relationship with John
McKay, president of the state senate (page 27). Feeney offers his analysis of the U.S.
Supreme Court decision (pages 29-32). He places the Bush v. Gore decision within a
historical context (pages 30-31).
He speaks about the counting of military and absentee ballots (page 35). Offers his
views on the public relations fight between the Bush and Gore teams (page 36). He
speaks about the impact of the E electoral Reform Act of 2001 (pages37-39). He speaks
about the disenfranchisement of felons (page 40). He considers the impact of his and
his party's actions in the 2000 election (page 44). Finally, he considers the increasing
successes of the republican party within the state and on a national level (pages 45-46).
Interviewee: Tom Feeney
Interviewer: Julian Pleasants
Date: November 21, 2002
P: This is Julian Pleasants, and I'm in Orlando, Florida [on] November 21, 2002. I'm
speaking with Congressman-elect Tom Feeney. Give me a brief idea of what
election day was like for you, and when you first realized this was going to be an
F: Well, I guess to sort of jump ahead of there, it's sort of extraordinary that about
two or three weeks before the election, I was invited to my son Tommy's class at
Carillon Elementary. Tommy was in third grade at the time, and [his teacher's
name was Mrs. Cucinella]. I was asked to talk on the electoral college. One of
the things that I spoke about was the theoretical possibility of one candidate for
President winning a majority of the popular vote, but losing the electoral vote.
Most of my twenty or thirty minute talk that day, at the teacher's request, was to
explain the electoral college and explain Florida's role in that, and to explain that
it was possible for somebody to win most of the popular vote, but not the
electoral vote, and not become President. I remember some of the interesting
questions from [kids] that day, about what happens if the president gets shot and
the Vice President gets shot. We talked about the line of succession to the
presidency. On election day I was campaigning here [Orlando]. Of course, in
order to become speaker, you need to have a majority of [members of] your party
I campaigned here. I left on a private plane with my father, with my law
partner, Skip Fowler, with my Uncle Ed Feeney, [and], I think, my buddy Al
McKenna, who's a lawyer, was with me. We flew to Tallahassee late that
afternoon. The voting lines were very long in my precinct and it took me
considerably longer to vote than I expected. On the plane ride up I knew full well
that I would be watching some very close elections that night. We have 120
members of the legislature [and] there were probably forty-five genuinely
contested seats, with maybe ten or twelve that we thought could be within two or
three points, our margin of error in the polls. So, I fully assumed I'd be up late
helping this candidate or that candidate in a state legislative seat, and that was
my primary concern as incoming speaker. I can remember watching the results
come in [and] the networks making early calls against President Bush. [I
remember] thinking that while it was personally a great night [Feeney won
election to the U.S. Congress], I was sad [because] the candidate that I felt would
do the best job as President and was sympathetic to my beliefs was, it looked
like, not going to win, or it was going to be very difficult to win without Florida.
Then, late in the evening the networks pushed the presidential race, Florida in
particular, back into the undecided column. I can remember a few specific
details. There was a problem with some ballots missing in Volusia County. I
called two people. [I called] my other law partner, Mike O'Quinn, probably [at]
four or five in the morning [to] get him out of bed and ask him to go up [to
Volusia]. He ended up getting a judge up there, I forget which judge. I also called
George Albright, who was an outgoing member of the House [and] also a lawyer
from Ocala, and asked him to race over. I think it's been referred to as a black
duffel bag of ballots. The judge apparently issued an early morning order [for]
five-thirty, six o'clock, six-thirty, I don't know what time, basically having the
police quarter off the courthouse in Volusia County as I understand it. Of course I
wasn't there, but I did have a role in getting George Albright and Mike O'Quinn
up there to see if we couldn't secure things. I don't know if that answered your
question about election night.
P: It does. At this point you were Speaker Designate correct?
F: [I was] the Speaker Designate [and] this may become important later as we talk
about the legislature's role in the judicial proceedings. The constitution of Florida
really creates an infirmity on the part of the legislature for two weeks. Because as
of midnight, while there are 120 certified members of the House, we've taken a
position legally that at 12:01 you are a duly elected member and that swearing in
is more of a perfunctory clerical chore, [but] you have no [leadership]
organization. Under our constitution, the legislature does not organize until
fourteen days after the election. So, in effect, while we had 120 members, we
had no leadership, we had no clerk, we had no rules, and we had no ability to
function. That's one of the reasons why the legislature was not represented in the
first Harris v. Gore case, because only the presiding officers have the power to
select attorneys, and there were no presiding officers because we weren't
organized. So, I was Speaker-Designate because I had not been elected speaker
and had no constitutional power, as I understood it.
P: Were you involved in the [recount] activities as they unfolded? For example, what
was your reaction to the butterfly ballot in Palm Beach County?
F: You mean [on] election night?
P: No, after the election when the recount begins.
F: Well, I should tell you that in my view, and I haven't heard anybody say anything
different, it was the Florida House that first recognized the potential role of the
legislature. Within forty-eight hours of the election, and it may have been the next
day, a lawyer on my staff named Don Rubottom came and sat down with me and
we went over Article Two, Section One, of the Constitution. He had come up with
a theory at that time that we had a role, and if the election [dispute] was going to
continue to proceed, there may be a role for the legislature to be obligated to
protect our participation in the election.
P: Because Article Two, Section One says that the legislature is, in fact, responsible
F: [The legislature] shall determine the method. Each state shall appoint in such
manner as the legislature thereof may direct a number of electors. So, it's the
legislature that directs the method. I asked him to go back and do some
research. He did [and] he found Title Three of federal law, which also is very
important in all of this.
P: Let me clarify, that's Title Three, Section Five of the U.S. Code?
F: [Yes] I don't know whether Don advised me of Title Three on the first day he
came to speak to me or whether that was a day or so later, but at this point Don
and some of the leaders on my team became very interested in what, if any, role
we may have. We took a look at Title Three. We hadn't done the back up
research yet to go through the Hayes-Tilden [1876 presidential] race.
P: [In] 1876.
F: Which precipitated the enactment of Title Three. I don't think we were aware of
some of the historical precedents, but we read the law. We were very interested
in some of the provisions [of 3 U.S. 5] that basically said, if the electors were not
ready to participate on December 18 [then] the legislature could go in and
resolve the dispute. Those are my words [because] I don't have the language in
front of me.
P: I think another thing he must have referred you to is the Electoral Count Act of
1877 which says, the legislature can resolve disputes concerning the validity of
electors. If a state fails to make a choice by election day, because of, for
example, recounts [or] court challenges, the law provides electors may be
appointed on a subsequent day in such a manner as the legislature may direct.
F: That was the language, which is all in Title Three. I didn't pay attention to when
those specific parts of Title Three were enacted. We just read Title Three in its
entirety and we were very interested as it became clear once the Florida
Supreme Court extended the deadlines. Number one, we felt very strongly they
had done the wrong thing. We felt that they had changed the law after the
election. We felt like they had violated Title Three, that they had thrown the
validity of any electors that [were] certified, or the secretary [had] certified, in
doubt. We felt very clearly that Congress did not have to accept electors that
were chosen in an election pursuant to rules other than the rules that existed on
election day. So, that was our firm belief. At some point as we went through this I
can remember asking Don, number one, to call folks in the governor's office,
general counsel, [and] call people at the party [to] make them aware we were
looking into this, and ask if they were aware.
P: Did you talk to Frank Jiminez [chief lawyer, deputy chief of staff for Governor Jeb
F: I probably did talk to Frank Jiminez, but it more likely would have been Don
[Rubottom?] going over the details with him. I probably would not have been
there for the machinations of what the law or the Constitution did or didn't [say].
P: Did you notify them or consult them about interpreting the law?
F: Oh, I think it was, at first, primarily notifying them. Don asked me for permission
to contact both the Republican Party of Florida and the Governor's office to tell
them that we were looking into our potential responsibilities here. This was pretty
early on. It had to be, if not before the court acted, shortly after the court issued
P: The first seven-zero [ruling]?
P: That was November 16 I think.
F: That's right.
P: Let me go back and ask you a little about that ruling. The ruling was seven-zero.
F: What's the date that you have?
P: I think it's the sixteenth.
F: [The] seventeenth, [ruling] that she may not certify the results.
P: Okay. What is your reaction to this November 26 date? Obviously, you assume
that is making law as opposed to interpreting law.
F: Yeah, beyond that it was ignoring the law. I mean, there is a sentence in the
court's decision, something to the effect that they are not going to have a hyper-
technical reliance on the statutory scheme. I can remember to this day, telling
people that that meant the court intends to ignore the statute. My view was that
they took words like shall, and read that as shall not, and may, and read that as
may not. They basically took authority that the legislature, under our
constitutional authority, had vested in the Secretary of State. They undermined
that authority and they did so in a fashion completely opposite [of] what the
statute called for. Basically, the court, as I read their decision, acknowledged
that. They said that they were going to give precedence to the Florida
Constitution's will-of-the-people provision over the statutes. They basically
acknowledged they were rewriting or ignoring the statutes.
P: I think it's 1.11 and 1.12 that says the votes shall be ignored or may be ignored. I
know Judge Lewis in his second ruling, said that Secretary Harris had exercised
her discretion, as Barry Richard [attorney for George W. Bush in 2000 election]
puts it, they may be ignored [and] she chose to ignore them. So technically, in
that sense, she was following the law.
F: I can't pretend to have a recollection, or ever being as intimately familiar with the
Florida statutes as the lawyers who argued the cases were. I'm probably better at
talking about what the Florida Supreme Court and the U.S. Supreme Court did. I
paid more attention to that. I relied on our lawyers about dissecting what the
statutes did or didn't permit, but I became pretty comfortable with the fact that the
deadlines were the deadlines. Title Three said, if you're going to ignore the rules
that were in place on election day, then your electors are, basically, subject to
challenge, and may not be valid.
P: Where do you think the November 26 date came from when the Florida Supreme
Court made their decision?
F: You know, I don't really recall why.
P: Let me read what was at least in the press. This is your reaction, as quoted in the
newspapers, "The court's ruling indicated the tremendous lack of respect the
Florida Supreme Court has for the laws of the State of Florida and the legislature.
The court continues to supplant its personal preferences over the statutory law of
Florida." Did you consider this to be a partisan decision by a liberal Democratic
F: Well, that would probably be shorthand for what I was thinking, yeah. Appellate
courts have been accused, as long as there have been appellate courts, of being
result oriented. You know, adopt the reasoning to get you your result. This is
nothing new. I felt in a case of this extraordinary importance and world-wide
attention, that it was pretty obvious that the court was stretching, and not just
stretching the law, but ignoring very specific deadlines and statutes. I felt that
they were doing so because they had a goal that they wanted to achieve and that
they were going to go through any manner of legal contortions to get the result
that they wanted, the majority of them anyway.
P: When you say a goal they wanted to achieve, was this the election of Al Gore?
F: I think if not the election of Al Gore, at a minimum, they felt strongly that we
should take as long as it took to let the canvassing boards in Palm Beach,
Broward, Dade, and elsewhere if necessary, just keep counting. Of course
there's seven of them and each one of them had a complex mix of motives, but
there were seven different sets of motives, [and] maybe some of the justices just
felt very strongly that it was critical that every vote be counted by the canvassing
boards. Maybe they weren't so concerned with whether Gore or Bush became
President as they were with the fact that every vote should be counted.
P: Why do you think they didn't set a standard at this juncture?
F: I'm not sure that they had the authority to set the standard. I don't know that they
completely thought through the ramifications of their orders. I think that the court
was really on a wing and a prayer trying to keep the ball alive in a way that would
A, keep Gore in play, and B, the count going. I don't think that they fully thought
through the ramifications of some of the decisions that they made. I mean,
there's a reason why games, or in this case political contests, come to an end
and you have a time when you stop counting. Whether you're using paper
ballots, punch ballots, or any sort of system, there's a reason why the clock runs
out. In this case they didn't seem to have fully thought out the end game or the
implications of what they were [doing].
P: I talked with Justice Major Harding [Florida Supreme Court justice, 1991-2002].
One of the things he said was that they were hearing cases, hearing limited oral
arguments, and making decisions that normally might take two or three months,
and they had two or three days. Obviously, they didn't have a lot of time to think
through all of these decisions.
F: Absolutely. I can tell you that we would have been prepared in the Florida House,
had we been invited, to advise the court, for example, of McPherson vs. Blocker,
which I don't think ever appears in their [first] Harris v. Gore decision [tape
P: We were talking about the Florida Supreme Court.
F: They were making momentous decisions of incredible constitutional complexity
on very short notice. In their defense, I am confident that, if they had had the
luxury, they would have studied this case individually and collectively for not just
days and weeks, but probably months, before issuing decisions in a different
P: In your discussion of the seven-zero Florida Supreme Court decision, one of the
things you mentioned was that the court, instead of resolving the issues, had
created a constitutional crisis. What exactly did you mean by that?
F: I'll start out by saying, Justice [Charles T.] Wells [chief justice, Florida Supreme
Court, 1994-present], in Harris v. Gore two, basically says the same thing. While
I'm on that topic, I hate to get off on too many tangents, but it's been two years
and I remember these things. Justice Wells, swore-in myself and the rest of the
members of the House the same day that the opinion was issued, which was
fourteen days after the election. I know Chief Justice Wells. He's a great guy,
he's a friend, [and] he's a very thoughtful man. He looked like a tortured soul. I
have no idea why he issued that first Harris v. Gore opinion. I know the love he
has for the Florida Supreme Court and the law, and my guess is he was probably
led to join a majority opinion that he was uncomfortable with. He certainly [is a
person who] is rarely uncomfortable. He's just a great guy and he was very
uncomfortable during these proceedings. As we dismissed early, we actually
rewrote the agenda so he could get back to work. Having said that, Chief Justice
Wells in his second Harris v. Gore decision said that the Florida Supreme Court's
decision did have the potential to create a constitutional crisis.
We had studied and had not had the opportunity to give the Florida Supreme
Court the benefit of our study, things like the Federalists Papers, [in which] both
Madison and Hamilton weigh in on the importance of having the legislatures
involved. We read the McPherson vs. Blocker case, which never came up in their
decision. We read the Constitution as basically saying that the legislature has
plenary authority to select electors. What that means is [that presidential
elections are] unlike any other power that we are used to, we have power over
education, transportation, or any [typical] power that [is] shared by the three
branches. In the House, our view, along with our constitutional experts, the
power [to select electors] came directly from the United States Constitution to the
Florida legislature. It's one of the reasons we ultimately used a resolution, and
not a bill, to select electors. We didn't think Governor Bush had the power to veto
or be involved in anything we did. We didn't think that the court could, in any way,
abridge or undermine our power. We didn't think the Florida constitution was able
to modify [our authority], which of course, was the whole theory of the first
[Florida Supreme Court decision].
P: Let me stop you there. There was some conflict about whether a resolution could
be used to seat electors, right?
F: No question there was. We went back and looked at history, and they used to
select U.S. Senators, before the Seventeenth Amendment, by resolution. So, we
used that precedent, but our theory, remember, was this is not a state power, this
is a legislative power. So, we did not want to use a bill that the governor could
veto. We used a resolution not because we were afraid Jeb [Governor Jeb Bush]
[actually] would, but our whole theory was this is the legislature's [sole] power.
The court can't abridge it, can't modify it, can't undermine it, and neither can the
executive branch. So, when I said that, I was fully aware, and I don't think the
justices of the Florida Supreme Court were aware, of both the Federalists
Papers, some of the history, and especially McPherson vs. Blocker. My theory at
that point was [that] this is a legislative power and it doesn't matter, it makes no
difference, what the Florida Supreme Court says we should or shouldn't do. The
United States Constitution confers, under Article Two, the power of the
legislature to determine the method [of selecting] electors, and the court cannot
review what we've done or how we've done [it]. Congress can, Congress has the
power to strike the electors under certain scenarios in Title Three, but the Florida
Supreme Court was irrelevant.
P: Partly because this is a presidential election and you have electors that must be
F: That's right, and because Article Two confers the power on the legislature. It
doesn't say states should select electors, it says that the legislature [should]. If
you go back and read McPherson v. Blocker, the Blocker case makes it very
clear that the court can't modify or abridge what the legislature does. Now, the
courts are not used to that. They're used to the Madison vs. Marbury theory that
they get to review what we do [and determine if it] is constitutional, [but] not in
this case. Our theory was the court and its edicts were basically irrelevant. By the
way, the United States Supreme Court never actually got to that issue, although I
think three justices clearly were prepared to [adopt our view].
P: Thomas, Scalia, and Rehnquist?
F: Probably, yeah, and maybe more, but I think that the importance of getting a
united court, as united as it could be, of seven [out of nine] votes led the [U.S.
Supreme Court to its reliance on] the Fourteenth Amendment conclusion. By the
way, I think they got the right result for partially the wrong reasons, under my
P: Some Constitutional experts were critical of Bush v. Gore because they believe
that there would not have been, technically, a constitutional crisis. Because even
if two sets of electors had gone up, there's a procedure whereby Congress would
have determined the President, and according to the circumstances at the time,
Bush would have won.
F: Well, I don't know that that is correct. Let's assume for example, that the Florida
Supreme Court had issued whichever appropriate writ, [a] writ of mandamus for
example, to Secretary Harris. That she, pursuant to some vote count that might
have turned out different than it did [and] that showed that Al Gore got the most
popular votes well after the time for counting votes had stopped, and [they]
ordered her to send the Democratic slate of electors to Congress. There's no
question in my mind, because I have it on good authority from congressmen in
Washington, that the U.S. House would have voted to object to the [second] slate
sent up by Harris if it had been ordered by the court. There were, at that point,
fifty Democrats, thanks to Jim Jeffords [U.S. Senator from Vermont] who
switched parties, who probably would have objected to the slate [Harris originally
certified], and you would have had a constitutional crisis. Remember that
Jefferson's election, I think, wasn't decided by the electoral college [but] in
Congress. Congress went to something like seventeen votes, [taking] until
P: That's 1800.
F: On top of that, while we're playing what ifs, suppose Al Qaeda had decided at a
constitutionally infirm moment of America's history to attack us, or some other
hostile nation or group of terrorists. I think this would have been a constitutional
crisis. My theory is this [crisis potential is the] reason the United States Supreme
Court ultimately jumped into a political question, number one, and number two,
didn't do what I would have suggested had I been a law clerk, and that is to say,
we take judicial notice that under Article Two and under Title Three, the
legislature can act any time they want. And by the way, this guy Feeney
apparently is fully aware of [the legislature's authority], and so is the [Florida]
senate. They've signed the [joint] resolution. We take note that the legislature
can fix this in Florida anytime they want. I would have just basically declined to
take [the] case if I'd have been a [Constitutional] purist. They had other
considerations, and I think one of those is that they saw a constitutional crisis
P: Judge Posner [Judge, 7th Circuit, U.S. Court of Appeals; author of Breaking the
Deadlock: The 2000 Election, the Constitution and the Courts], and we'll get to
this a little later [because] I'm a little ahead, called their five-four decision in many
ways a pragmatic decision, not a strongly argued Constitutional opinion.
F: I agree with that. I think that they have, especially the conservatives, opened up,
even inconsistent with their philosophy, a pandora's box of Fourteenth
Amendment claims in voting behavior.
P: Now the Rehnquist court is an activist court.
F: Well, they got the right result, [if by imperfect reasons].
P: Apparently from around November 10th, 11th, and 12th, you began consulting
with prominent law professors. You talked with Michael Denning, and I believe
his advice to you, or to Don Rubottom, was that if a state fails to make a choice
by election day, then in his view, the legislature had to determine the electors.
F: I don't know that I spoke to Denning, probably Don Rubottom did. I did a couple
things after we became aware that the court was going to take up this case, and
of course, on [November] seventeenth, issued its first decision preventing the
secretary from, in our view, doing her job. Number one, I asked Don to get us
some of the best constitutional minds we could find. He went to, I think, Judge
Bork, who was either ill or busy and he sent us to a couple other attorneys.
Denning may be the one that Dan Webster [Florida state senator, 1998-present;
Florida state representative, 1980-1998; Speaker of the Florida House, 1996-
1998] in the Senate talked to. I don't know.
P: Maybe so.
F: I'm sure our guys talked to him, but I don't think we ever retained him, and I don't
know whether I ever personally talked to him. We ended up, through a circuitous
route, that Don Rubottom would be the one to talk to because I sent him on the
mission of finding us the best constitutional minds that we could find. I wanted
two things. Number one, I wanted a talking head on TV. I did not want it to be
Tom Feeney against the Florida Supreme Court or Tom Feeney versus Al Gore. I
knew that I was going to have to potentially preside, at this point it became
increasingly clear, over an historical occasion. I wanted to, insofar as possible,
be an umpire, which is what, as Speaker of the House, you have to be. You vote
on causes, although in the U.S. House Denny Hastert [Speaker of the U.S.
House of Representatives] does not vote except when he wants to. But you have
got to preside over the decorum of the chamber, you've got to keep order. So, I
wanted [our] partisan majority leader, for example Mike Fasano, to go on TV and
debate with Lois Frankel [Florida state representative, 1986-1992, 1994-]. I didn't
want to be in that position. I was happy to answer questions from time to time,
[especially on procedures,] but I short of shied away from the press.
I wanted the constitutional authorities that would A, look good on TV, and
B, more importantly, give us the best constitutional advice we can get. We
essentially challenged, and I did talk on the phone to Charles Fried, [a] former
solicitor general of the United States, a former Massachusetts Supreme Court
Justice, [and a] brilliant man. He brought in Einer Elhague [Harvard law
professor] who is, again, a brilliant man. [He's] not necessarily a constitutional
scholar. I think Einer would describe his extraordinary legal skills a little bit
differently. We went through some of the materials we had on Article Two and
Title Three, we went through the McPherson v. Blocker case, and we said, here
is our theory about what has to happen next if this continues to go on. We said,
tell us what's wrong with our theory. These brilliant men sort of sat kind of
stunned and amazed and fascinated. It was obvious from afar, we were on
telephone conference call, that these two Harvard law professors were just
thrilled to be in an arena where they could give us advice on this matter. So, I
think we gave them like twenty-four hours to tell us where our theory is wrong.
This is well before I ever went out and made even the first peep of a comment to
the press. Within a day or two they were back on the telephone saying that while
all this was unchartered territory in modern times, they absolutely could not poke
a hole in our reasoning, our logic, or where we talked about going.
At some point, on or around the seventeenth when the Florida Supreme Court
issued its decision, a reporter from the Washington Post asked me about their
decision. I was upset by not only the decision, but language like they were not
going to have a hyper-technical adherence to the statutory scheme. I'll forever
remember that phrase. The reporter said, what happens if the vote count just
keeps going and going, and she had a couple other what-if scenarios. I've got the
quote right here. This is the first time it was ever said publicly. I think it was Tom
Feeney that said, "It is the state legislature that determines the method of
selecting electors. The question is whether or not the Florida Supreme Court has
any role whatsoever. If they try to interfere with our responsibilities, then we still
have to fulfill them." Remember my theory here, under Blocker, is this is a
plenary power with the legislature, and neither the court nor the executive branch
can stop us from filling a duty that is [authorized] by the U.S. Constitution. So,
while I didn't exactly articulate all that [to the reporter], within twenty-four hours I
had 500 press requests and about a quarter-million emails and faxes. At that
point, obviously, PR management became sort of preeminent as well. We had
spent a lot of time studying our duty and roles and the possible things we would
be required to do, but the public relations battle became very important at that
P: Immediately, as you make that statement, the Democrats protest. I remember
Lois Frankel [Florida state representative, 1994-present] said it would be
politically risky for the legislature to step in, in place of the will of the people. How
did you create the sense that this was not a political issue, it was rather a
F: Well, in the first place, I think Lois was exactly right. I not only knew this was
politically risky, but I fully understood that this could be my career, and the career
of a lot of other colleagues, politically going down the tubes. If at any point,
somebody had been able to laugh at, or mock [our theory] in a thoughtful and
responsible way based on constitutional law, then we were all political dead
ducks. We had spent a lot of time studying and that's why I asked these Harvard
law professors to poke holes in what we were doing. By the time I had said
anything publicly, I don't talk about the Constitution here, I don't refer to Article
Two, I don't talk about McPherson v. Blocker, I don't talk about the Federalists
papers, we had done our homework before I ever mentioned to the Washington
Post that, regardless of what the court did, we may go ahead anyway. So, Lois
was right. It was very politically risky to inject ourselves. But again, we believed
we had a constitutional responsibility and it didn't matter to me whether my
political career was over. What mattered was that I had taken an oath at that
point to do my duty, and that's what I started explaining to colleagues in
leadership, and then ultimately to membership. We had a couple of Republican
members from districts that you would describe as politically soft. They were very
concerned about how this vote would play in their district. I think the initial polls
probably showed that no more than 25 percent of the people of Florida thought
that the legislature should get involved in this. I think Lois was right. We weren't
following the edicts of the polling trends, we were looking at our constitutional
responsibility, [American] history, and federal law.
P: Let me make an argument that some of the constitutional lawyers made after the
fact. Their argument was that the plenary power of the legislature is to set the
method. Once the method is set, then it switches to the will of the people. So,
you set the date and the time that they vote and the standards, but the vote then
becomes the crucial issue. If there is a dispute, they argue that then the
separation of powers comes in to play and the Supreme Court of the state of
Florida must interpret whether or not the law has been violated.
F: We thought about that and I have two responses to that. Number one, it's a case
of first impression. To my knowledge, it's never been resolved whether the
plenary authority is to set the method of election, and then you're out of the
system or not, but we could have argued that either way. Maybe it's a fifty/fifty
likelihood either way in terms of what the result ought to be in that case, but even
if our only real plenary authority was to select the method of an election and then
get out of the way, you still have Title Three you have to deal with. Title Three
basically says as long as the electors are not in place by December 18, and it
talks about having all of the contests and controversies resolved and then it goes
on to say that the legislature has the authority to reconvene and set the electors.
So, you still have Title Three to get around if that theory is correct. Remember,
that at this point you mentioned some forty lawsuits that were going on. There
were contests and controversies popping up everyday.
The average time to resolve [a] contest in Florida is 17.7 months. The
longest contest took sixty-nine months, you know, five years I think we're talking.
The shortest was sixteen days, but with no opinion until thirty-six days, and did
not go to the Florida or the U.S. Supreme Court. So, we basically felt like it was
an absolute, given the fact that both sides were dug in, there was no way you
were going to have all of the contests and controversies resolved by December
18. The interesting question is on the margins of this. Supposing we have an
election and the legislature just doesn't like it, can it just ignore the election
results? Well, I can argue that yes, and you do so at your peril. You can be
tossed out on your rear end next election. Or [I can argue] no, that's not what the
Constitution envisions, it envisions following the election results as long as there
are results that are not contested. So, that's a constitutional hypothetical we
didn't have to get to because we felt like there was no way that one side or the
other was going to give up all of its contests to get results.
P: When did you begin considering holding a joint session of the Florida legislature.
I assume that you talked with John McKay [majority leader of the Florida Senate]
F: I talked to John McKay on a fairly regular basis. The Senate was going belatedly
[in the direction we had staked out]. Don Rubottom used to work for Speaker
Dan Webster and we were working through Dan Webster, who we had a lot of
confidence in. Dan is a former house guy, so I think some of the senate old bulls
probably didn't have a whole lot of confidence in him, [but we did]. Dan was
talking to some constitutional scholars of his own. I forget their names, and it
might have been that Denning fellow, but they had a little different theory of some
of the constitutional issues than we did, and there were lots of minor differences
of opinion. The senate never really did get to the point where a majority of them
were anxious to go in and take any action, public or, let alone, organize [a
special] session before [it became] absolutely necessary. Another professor
came along to help in the Florida House, Professor John Yoo, I think, from UC-
Berkeley, a wonderful guy. [He] worked gratis, just for the good of the order. [He]
loved the constitutional issues. He was even more firm than our two paid lawyers
that not only could we act, but we had an absolute constitutional duty [to act, and]
we would be derelict in our duty [if we did not]. Not only did we have to act, but
Professor Yoo's opinion was that the sooner the better. Because, if all the issues
got resolved in terms of the contests and controversies, the Florida Supreme
Court got things resolved, and everything worked out, [then] hunky-dory, fine, no
harm done, at least to anything but our political careers, but [there would be] no
constitutional harm done. He thought we were being absolutely derelict to wait
any longer than we had to. To go in and say, the elections been held, our view is
that the counting time stopped in accordance with the rule of law and the statutes
in existence on election day, we're going to ratify this slate [because] it's already
been certified by Katherine Harris, and our job is done. If some court wants to do
something different then we're out of here.
The Senate's legal folks never pushed that hard or were that assertive
about the timetable. They did finally reach the conclusion we had the right to do,
and ought to be prepared to do, this selection of electors, but we'll never know
with certainty what the majority of the Florida Senate would have done.
P: So, what you're trying to decide is you don't want to wait too long, but you don't
want to act too precipitously. You have to let some of the legal problems be
ironed out, because by this point, I presume the United States Supreme Court is
starting to get involved.
F: Well, that's right, and there are two different timetables here. Number one is to
make sure we're on firm constitutional grounds. The legal situation is changing
hour by hour. I mean, this was an emotional roller coaster for everybody in
America. I still meet people that tell me, [they] couldn't sleep, [they] couldn't eat,
thank God [I] came on TV and said, don't worry, the legislature's going to handle
it. So, this was very emotional for not just people intimately involved in what was
going on physically here in Florida, but [people] around the country. We didn't
want to act too early in declaring what our intentions were or what our options
were because the legal landscape was changing every minute. The longer you
waited, the more intelligent choices you would make. We continued to do
homework, although we were pretty satisfied that we had found everything there
was to find about the history of the electoral college and resolving these issues,
but there was also the PR timetable.
We felt like, number one, probably 80 percent of American voters had
very little familiarity with the electoral college. I mean, [it's] something that you
may visit in elementary school once or twice, but it's not something that the
average person pays a lot of attention to. In most places the majority wins,
whoever gets the most votes wins. It's not true when you select presidents. So,
number one, we had the uphill PR problem of explaining to America in an
intelligent way what the electoral college does. Of course, all these TV
commentators understood that pretty well, and there was a lot of debate about
that. The second issue was what the legislature's role was. I venture to say [that
prior to election day] not one-percent of Americans, me included, had any real
understanding of the legislature's historic role in selecting electors. So, we had
this extraordinary challenge to try to explain.
I felt like one of the best ways to do that was for us to have a couple committee
hearings where we would get these constitutional experts [to] come in and
explain to the members what their duties were rather than Tom Feeney, again,
standing up on TV and saying, by golly here's what we're going to do. I wanted to
have Harvard law professors explain to us, and Stanford law professors explain
to us. I wanted to invite [them]. Remember we had already played the game
albeit on short notice, to poke holes in our theories. [To this day] there has yet to
have been a really meaningful challenge to the fact that Article Two vested [sole]
power with the legislatures. There has yet to be a meaningfully articulated
challenge to [our] Title Three [authority]. What happens if you've got contests and
controversies still swirling around when it comes time to select electors? So, we
felt like we were on firm ground, we just had to help educate ourselves and
America about what the responsibilities were. So, we selected the committee. I
selected some articulate lawyer types [to be] members of that committee. Rather
than say what we're going to do, we invited constitutional experts to come tell us
what we were either required to do, or had the right to do, depending on their
P: You are organized and you are officially the speaker as of November 21, right?
F: Yes. If the election was the seventh it would have been the twenty-first. Now I
have the authority to hire lawyers and I have the authority to select lawyers to
represent us in front of courts and so forth.
P: Let me go back to something you mentioned earlier. You got lots of emails.
Could you give me some sense of their content? I know you couldn't read all
450,000, but were there death threats? Were there funny anecdotes? Were there
supporters? How did people respond?
F: It was the whole gamut. We had a lot of people telling us that they were praying
for us, a lot of people supporting us, [and] a lot of people that were just interested
in trashing Democrats, which wasn't very useful to us. We had some people that
told us to keep our nose out of the business of selecting presidents and told us
that we were trying to disqualify their votes, and we had death threats. My guess
is I had a dozen or two dozen death threats, and a couple of them were
creditable enough that the FBI and the appropriate authorities weighed in. I had
to have, as I suppose a number of the key players did, twenty-four hour
protection by two FDLE [Florida Department of Law Enforcement] officers. [They]
came and delivered me at home every night [and] they stayed with us in the
office. We had some really funny stuff that my wife has collected so she can take
it home and read aloud when we go back to the in-laws over Christmas. One
doctor from California suggested I [must] have my hair done the same place
[that] his poodle does. We had some very funny letters written that we held onto,
but [I received] something like a quarter-million emails and faxes within very short
P: Did you expect from the beginning that the United States Supreme Court was
going to get involved?
F: I don't know when I thought the United States Supreme Court would get involved.
I'm certainly aware of the political question doctrine. I guess it was always my
fear that the United States Supreme Court was going to leave us out there
hanging until we had really a major constitutional crisis in the United States. Of
course, there's a potential that the Florida Legislature, especially me, could have
been the big goat in the outcome. If the outcome had been for reasons that we
hadn't thought of, if there had been some easy constitutional precedent or
historical precedent that proved us wrong and we had gone ahead and acted
anyway, I can imagine a pretty horrible scenario for those of us that stood up, but
I can't say that I ever really knew that the United States Supreme Court would
act. I was delighted when they took cert in the first case and the second case. I
remember being absolutely thrilled. I was most delighted when during some of
the questioning, one of the justices asked, I think, Lawrence Tribe...
P: It was Justice O'Connor asking Lawrence Tribe.
[End of side Al]
F: I'll never forget the thrill when I was listening to, I think it was, the hour tape
delayed proceedings of the court. Sandra Day O'Connor basically asked
Lawrence Tribe, who by the way is perhaps the foremost liberal constitutional
scholar in America and Vice-President Gore's main lawyer, whether the
legislature had the authority to act under Article Two Clause One. Professor
Tribe's answer was something to the effect that, well, I'm not sure. To me that
was match, game, and set because here you have the best constitutional lawyer
that the Gore team's ever going to find with a zealous obligation to represent his
client, who, if he had said, yes, they can do what they're doing, would have
basically forfeited the presidency on behalf of the Gore campaign. Yet he couldn't
say no either. If the answer had been no, if my theory had been wrong, we would
have known at least that Professor Tribe thought I was wrong. He did not think I
was wrong. [He] didn't necessarily think I was right, but he could not state on
behalf of his client unequivocally that the legislature didn't have the authority.
The other great one was Justice Kennedy who asked David Boies whether or
not, after the fact, the legislature could just go in anytime it wanted and just
change the legal method of voting. David Boies said, well no, Title Three
prohibits you from changing the law after the fact. Justice Kennedy said, well, if
the legislature, who makes laws, can't change the law after election day, how is it
that the court, who is not supposed to make law, can change the law after
election day. Now remember, I can count, and you've now got Thomas,
Rehnquist, and Scalia who I always assumed were going to follow the
constitution as I read it, and now you've got Kennedy and O'Connor considered
the swing justices. So, I felt like the ball game was over. At that point I was in one
sense, at least in terms of confidence in our constitutional theories, more
emboldened than ever.
P: In fact, when the U.S. Supreme Court accepted the first cert, you, and I guess
the Senate as well, sponsored a friend-of-the-court brief which, I understand, was
written by Charles Fried [Harvard law professor and attorney representing the
Republican-led Florida legislature in the 2000 election].
F: And Elhague. If you look at much of the reasoning in the ultimate decision by the
United States Supreme Court you will find that there is probably more from the
legislative brief in the ultimate opinion of the majority, referred to or at least our
arguments are incorporated, than either the Gore campaign or the Bush
P: Was this decision to file the brief voted on by the house, or was this a decision
that you and the senate president made?
F: Our rules provided it's the presiding officers that can select attorneys to represent
the house or the legislature. We wanted to act jointly, we did act jointly, and so
this would be John McKay and Tom Feeney selecting the lawyers to file the brief.
P: Did you consult, throughout this period, with the Democratic members of the
house as to what you were doing?
F: Yeah. We didn't necessarily tip off Lois [Frankel] two days ahead of time what we
were doing, but we made clear, for example, before I appointed the committee of
the house to take a look at our responsibilities. I told Lois what I intended to do. I
was probably speaking to Lois at least a couple times a day. Some of it was to
make sure procedurally that her members knew when we expected them to be in
Tallahassee to act. I didn't want people having business back home and [being
afraid to] go back home. Some of it was to tell her what I expected to happen
next, but it's not like every time we had a new idea we came in and shared it with
P: This is Lois Frankel who was the minority leader.
F: Yes, and she's a friend. Our philosophies couldn't be much more different, but
she's somebody I respect. She's very bright and she got more TV time as a
consequence of this controversy than most [politicians] ever dream about.
P: From time to time there was a lot of fighting and jostling to get on television by
F: That's right, but Lois and Mike Fasano, who was my majority leader, really both
did a great job presenting their respective viewpoints in a very easy to
understand way. I think Americans really did get a wonderful education about the
legislature's involvement, [and the electoral college].
P: Let me ask you about this committee, the Joint Legislative Oversight Committee
on Electoral Certification Accuracy and Fairness. Who came up with the idea for
this committee and what was its major purpose?
F: Well, ultimately I would have approved it, but probably Don Rubottom and Paul
Hawks, who was my chief policy coordinator, Dudley Goodlette I expect was
involved, Johnny Byrd, who's currently just been recently selected Speaker of the
House, some of my key members, Gaston Cantons, Mario Diaz Bilart. This would
have been a House decision. We would have been talking to the senate
because, while the senate was at a [lower] level of enthusiasm for early and
certain action, we couldn't do anything without them and we knew that. We had
to go at a pace that they were comfortable with, so we would have talked to them
about it. It had a couple purposes. I wanted the members of the committee, and
through the committee I wanted the entire House, anybody who wanted to sit in
and participate was welcome to sit in the audience and listen or hand questions
to members of the committee, to really have a thorough understanding as best
our legal experts could provide them with. Not just Professor Elhague, but also
Professor Yoo and the senate constitutional scholars and lawyers.
Number two, I wanted, again, to invite opponents to poke holes in our
theory. I really wanted to know before I acted, rather than later, that this idea was
just not in accordance with any legitimate reading of the Constitution. I think there
was a Professor Akerman or somebody, [but] I never heard any arguments that I
found persuasive that I ought to change course. Number three, I thought it had
the advantage, again, of helping to educate all of us, but also the world. Anybody
who was interested in this matter or what the legislature's role is, what the
Constitution calls for, [and] the fact that we were acting in accordance with the
Constitution as advised by our lawyers [could watch]. I wanted the world to see
two great Harvard law professors and a great Stanford law professor look at us in
the eye and say here's what the Constitution says you can or must do.
P: When you started out, one of the purposes, at least expressed publicly, was to
address voter irregularities. Did the committee ever get into that sort of thing?
F: Actually, the follow-up to the committee really did because we passed an historic
election reform bill as a consequence of some of the things that this committee
P: This is the Election Reform Act of 2001?
F: Yes. Now that committee was broadened dramatically before we finalized it, but
remember, the most immediate thing this committee had to do was to tell us how
to get ourselves out of this mess before December 18, and how to resolve it in
accordance with our constitutional duties. While they were at it, any ideas they
had about avoiding similar miscues in the future were part of our long term goal.
P: Who decided who would appear before this committee?
F: Well, you're stretching my memory a little bit. Certainly in terms of the people
presenting the case that leadership had endorsed at that point, here's what we
feel like we have to do, we wanted our lawyers, Elhague, Fried, Yoo, who was
volunteering, [and] the Senate lawyer [Roger] Magnuson [dean of Oak Brook
College of Law, Fresno, California]. I think there may have been several other
witnesses we wanted to hear from. I don't know whether we invited any
historians or not.
P: The Democrats are going to complain that these are conservative Republican
lawyers making a presentation, and their point of view was not presented.
F: Oh, they had two or three lawyers come.
P: I think they had Tom Julin come, did he not?
F: I can't remember the names, but it was clear to me that there were two or three
people. I don't think I selected which lawyers opposed our action, I don't think I
censored them. I'm sure that if there had been an effort, I can't claim that there
was, to filibuster, delay things, or just to embarrass, I'm sure I would have
stopped that. But if there were genuine constitutional arguments to be made by
anybody, we were prepared to hear them. Remember, I wanted to know why I
was wrong. At every point I wanted to ask people [to] poke a hole in our theory
P: There were eight Republicans and six Democrats on the committee. Obviously,
more Democrats on this committee than the ratio in the House. Who chose the
members of the committee?
F: I think I chose all of the members. My guess is that I probably asked Lois for
some input as to a couple of the members. I know I did that [on] subsequent
committees. That may not be true, but that's certainly what I did after this. There
were two Democrats on the committee whose districts voted for Bush who were
conservative Democrats. I think [Will] Kendrick and [Dwight] Stansel were on the
committee, weren't they?
P: Stansel was.
F: We felt that there was a chance. Kendrick had voted for...
P: This is Will Kendrick?
F: Will Kendrick, had voted to designate me as speaker. Number one, there was a
chance to work with Will, and we're always trying to build our majority. That's
how we went from forty-six members when I got there to eighty-one as I left.
Number two, we thought that he would be open on this issue. I think
representative Stanzel from Lake City was [another]. So, clearly I picked some
Democrats that we thought could go either way depending on the arguments.
P: In fact, a new senator from Alachua County, Rod Smith, who had not yet even
taken office, was selected, perhaps, because he was a moderate as well?
F: That was a senate decision.
P: The Democrats, as soon as these activities begin to take shape, are going to call
you an extremist and accuse you of a power play to get Jeb Bush's brother
elected. I would like to know what kind of conversations that you had with Jeb
Bush throughout this period of time.
F: Well, in the first place, my defense to those attacks was always, if you're mad at
the Florida Legislature for following Article Two, your quarrel is with the founding
fathers and not with the legislature. We had fun responding because we kept
taking them back to the Constitution. The one thing that they couldn't poke holes
in is the Constitution and Title Three. The more they used the ad hominem
arguments, the more confident we were we were right on the law.
I talked to the governor on several occasions. Most of our [later] discussions
revolved around the time for going into session. I'm sure I had one or two early
conversations with the governor to sort of tell him from our perspective what our
obligations were, what we were doing mechanically in the house to set up a
committee, what we thought the end-game may be if the courts didn't resolve this
in time, to talk to him a little bit about the constitutional issues.
P: Was he encouraging you to call a special session?
F: No, I think it would be fair to say he was discouraging me from acting before he
was confident it was necessary. Neither Jeb, and my guess is, I never heard
from, certainly, the folks in Austin [George W. Bush campaign], [wanted to act too
P: So you had no contact with Jim Baker or the George Bush campaign or Ben
Ginsberg [attorney, represented George W. Bush in 2000 election] or any [of
F: Ben Ginsberg is an old friend of mine. He does [a lot of Florida Republican legal]
stuff, so I'm sure I talked to Ben. I talked to people in the Republican party on a
regular basis, and certainly my staff lawyers and constitutional lawyers were
conferring with them. I never met with James Baker. I don't believe I ever spoke
to him. I never talked to Katherine Harris about these issues during this time. I
probably would have spoken to Ben about what our professors were up to
because he is a top lawyer that has done work for the Republican party while I've
been in [the] Republican leadership. But, in terms of coordinating with the White
House or the governor's office, that did not happen in any direct way. I don't want
to deny talking to a bunch of political operatives, you know in Tallahassee you
couldn't turn around and get a sandwich [without encountering a political
operative], but as much as anybody, I was a captive in my office. I could not go
outside. I would have been mobbed by people that wanted to hang me and
people that wanted to love me to death. I was going to die either way. I was
captive, and I'm sure Katherine Harris was in the same boat.
I think it's fair to say that Governor Bush really did not want this election
to hang on action by the Florida Legislature. He was hoping and praying it would
resolve itself favorably in the courts because he could just see a two year
nightmare about Tallahassee's involvement in this. I understood that and I had
the same concerns. The Bush campaign never ever encouraged us [for] a
moment. Neither [did their] top leaders, until on television, at the same time the
rest of the world saw it live. James Baker III announced that there was always
the legislature that had a responsibility. That was the first signal we got. I think,
gosh, I had been out there since the seventeenth. Do you remember when he
said that? It seemed like an eternity before somebody from a leadership position
from the Bush campaign said, "That's the way boys, if you have to do it do it, and
that was it."
P: I don't have that date, but I'll try to find that.
F: I'm guessing it might have been in response to the second...
P: I think it's after the four-three decision, was it?
F: Yes, that makes sense to me, but I don't have it on my timeline here.
P: There's this argument, of course, that since you ran on the ticket with Jeb Bush
on his first run for governor that you were partisan, and that you and Katherine
Harris were "taking orders" from Governor Jeb Bush and Governor George W.
Bush of Texas.
F: Well, I'm guilty on the first part of that claim, I am a partisan. I'm a friend of Jeb's,
I was Jeb's running mate, and I had as much interest in having the president of
my choice elected as anybody in the country, but it would be wholly inaccurate to
say that we coordinated, let alone got encouraged at any point, by either the
governor directly or the President-elect or any of his top folks. Were Republican
operatives giving us all sorts of advice, go, don't go, this, that? Yes. For the most
part, people outside my office and outside my constitutional legal team were
saying go slow, slow this down. Remember, we had a two-week head start on
doing our homework and studying this stuff. Even people that wanted to resolve
the thing favorably in the legislature if necessary, they hadn't spent anywhere
near the time we had on the constitutional or historical issues. So, if anything,
Jeb and I had some earnest words [about his concerns].
P: Once you formed this electoral committee and talked about a special legislative
session, Governor Jeb Bush calls this activity "an act of courage" and states very
clearly that if the legislature were to meet and choose a slate of Bush electors
that he would sign the bill. So, it's very clear that he's not in any way opposed to
the action by the legislature, understandably.
F: No, no.
P: I mean, it is his brother.
F: No, I don't think Jeb ever took the position with me that he was opposed to acting
if necessary. I forget exactly, the timetable of all of our discussions. I'll tell you the
first time that I was in contact [with the governor]. I think Sally Bradshaw, the
governor's chief-of-staff, called because a day after the election the Democrats
were holding press conferences blasting the [election] processes, [alleging]
racism, claiming the police had been pulling over people, and civil rights were
violated. I mean, you'd have thought this was the old Jim Crow South by some of
what they were saying. I was asked to go out and talk about the fact that we were
going to review all of the allegations and complaints, but that we were perfectly
confident that the election process had operated on election day as designed,
and sort of just to calm things down on [Florida's] behalf. So, we were in contact
on things like that, but in terms of coordinating strategy for the legislative action, I
think it'd be fair to say that Jeb took every opportunity to urge caution. If anything,
to an extent we had, I don't want to say heated conversations, but energetic
conversations, it was the governor's notion that we should do everything in our
power to not act until absolutely necessary and [to wait] until every other potential
resolution had been given time to work itself out. I think if I'd have told him we
were going to act at one minute to noon on December 18, he would have said
that might be a little too early.
P: On December 1 you and President McKay announce that you were going to call
a special session of the Florida legislature.
F: That's right, a joint session.
P: You were going to convene, I believe, on December 8. Is that correct?
F: My records show that on Monday, December 4, our joint committee, both the
house and senate members of the committee, recommended convening a
special session. So, we signed a proclamation on Wednesday, December 6, to
call a special session on December 8.
P: In that resolution, what did you state as the purpose of the special session?
F: Well, in the purpose we recited parts of Title Three and the United States
Constitution that we were relying on. We talked about how the election had been
held in accordance with the law as it existed prior to election day. We basically
said, that the November 7 election ultimately failed to make a final choice of
electors, I inserted the word final, but that was our point, and that therefore we
were going to certify the twenty-five electors that had already been certified by
Secretary Harris. So, in essence, rather than doing a new certification of new
electors, we ratified the twenty-five existing electors.
P: Did you have a specific date by which you felt you had to do this? December 12
would be the last date for you?
F: There was a lot of debate by the constitutional scholars. I think the senate's
position was you could wait until the eighteenth, the very last minute. There's
language in the Constitution that talks about six days before the date for
convening [the elcectors].
P: This is a safe harbor.
F: Yes. We had one or two of our lawyers suggest that probably convening on the
twelfth would be the ideal time. Then we had Professor Yoo, and maybe several
others, saying no, no, no, do this as soon as possible. [He said,] that if this thing
resolves itself then the election will proceed as though we never acted, but if it
doesn't resolve itself by December 12, then here are the twenty-five electors. So,
there was a difference of opinion about exactly when the [right] time to act [was].
P: One thing I learned [while] doing a little research about the "safe harbor" [is] that
it is voluntary. It's not required that you meet it by that date. It is up to the
legislature, and I'm quite certain that the legislature, controlled by the Republican
party, would have chosen that December 12 would be the final date. In fact, I
guess that is the time that you did take your vote. December 12, is that correct?
F: Yes, on Tuesday, December 12, the Florida House casts its vote. So, we would
have put the Senate in position, at that point, of deciding either later that night or
any time through the eighteenth under some theories of when was appropriate.
P: This was the same day, but before, the United States Supreme Court five-four
decision which came out sometime around 10:00 PM.
F: That's right.
P: So you did not know that that decision, in fact, was forthcoming, right?
F: No we didn't. In fact, I can remember there are two TV's on the Speaker's
podium, and throughout these processes, regardless of what we were doing on
the floor, I was constantly watching one of the cable networks. If there was a
decision by the Florida Supreme Court or U.S. Supreme Court that would have
affected the processes, we would have stopped, take a twenty minute recess,
talk to our lawyers, and decided whether to go back. So, I was constantly
watching to see whether a Supreme Court decision occurred while we were on
the floor that day.
P: What was the final vote and exactly what did the resolution that you voted on
F: [Seventy-nine] yays, forty-one nays.
P: Seventy-nine to forty-one. Now, I believe that Kendrick and Stansel may have
voted with you on that?
F: That's right.
P: Two Democrats. Did some Republicans voted in the negative?
F: No, every Republican [voted positive]. There were seventy-seven Republicans
and two Democrats, so that sounds right to me.
P: Specifically, you stated that you wanted to keep the citizens of Florida from being
disenfranchised [and] that you wanted Florida's electoral votes to count,
therefore the House is going to seat, in effect, the electors certified by Katherine
Harris [on] November 7.
F: Well, you have to remember this goes back to the old legislative intent theory.
We had seventy-nine yay votes on a resolution, [but] there could have been
seventy-nine diverse reasons. I felt not only did we want Florida to be counted, I
wanted the right electoral votes to count. My theory was that the election had
been held in accordance with the law of Florida. It provided for a time for
counting votes, that that deadline had come and passed, the votes had been
counted and recounted, and that any changes either to that deadline, or just as
pernicious, changes in which ballots did or didn't count [with the] standards for
counting changing on an hourly basis from table to table in the four counties
doing recounts. I felt the right electors were important. Now there could have
been some members that voted yay that just said, we have to get this resolved
and be represented, but from my perspective, to get it resolved and get it
P: Why do you think the Senate didn't act at the same time you did?
F: I think there were senators that wanted to act early. I think the Senate in Florida,
like the upper chamber in most legislative bodies, tends to be a little bit more
reserved. They like to think of themselves in that way. I think there were senators
that did not want to vote on this resolution. I think there were senators that were
not just afraid of the political ramifications themselves, but I think for good reason
felt that it might do damage to the working relations in the Senate. But there were
probably senators that were afraid that it was a tough political vote one way or
P: In retrospect do you wish you had now waited until after the Bush v. Gore
Supreme Court decision?
F: No. Knowing [now], what I knew then I would have proceeded the exact way I
did. I probably would have gone in earlier than we did. I would have sent as
strong a message as I could, and I did [at] every opportunity to the Florida
Supreme Court, that I thought they had trampled upon the rule of law. They had
trampled upon the way we had designed the election system, and that they were
busy ignoring the United States Supreme Court's plenary power in the legislature
to select electors. So, I wouldn't have done anything differently. Now, if the
Supreme Court of the United States had issued its opinion before we actually
took the vote I would have held a recess. I would have conferred with my top
legislative lieutenants [and] with my constitutional scholars, but it would have
been moot at that point. My guess is we would not have voted if we knew what
the Supreme Court's decision was.
P: The Democrats criticized the special session. Once Lois Frankel, was the
minority leader in the House for the Democrats, claimed it was ultimately a
partisan act that was unnecessary, unfair, and unjust, and would cast a dark
stain on the integrity of the legislature. How did you respond to that?
F: Well, in the first place, as I always did when we heard these criticisms, I referred
people back to the founding fathers. I quoted Federalist forty-five and Federalist
sixty-eight where both Hamilton and Madison talked about the critical nature of
the legislature being involved in selecting electors, and I, of course, refer to
Article Two and Title Three. But secondly, I talked about how proud I was of,
number one, the legislature doing its constitutional duty. It wasn't popular, it
wasn't easy, there were a lot of members put in tough situations, but that we took
an oath to uphold the United States Constitution not when it was fun or
convenient, but all the time. Third, I was really proud of the House as an
institution. Anybody that watched those proceedings, and I wish the whole things
had been televised live, the debates were largely based on [the] Constitution and
the law. They referred regularly to historical documents like the Federalist
Papers. They were not redundant as you would expect in a situation where sixty-
three brand new freshman are thrown and thrust into the limelight.
P: Due to term limits for over half of the House, this was their first act as a
F: Their first formal act, other than organizing, was selecting electors, which hadn't
been done in the country in 120 something years. The arguments are
extraordinary in the fact that the [debates were] at a very high intellectual level,
much higher than you're going to see at the United States Congress on a typical
debate about welfare reform or the budget. This was extraordinary stuff. People
had prepared their remarks. We had adopted a new rule that hasn't been used
for some time in Florida where we actually, as is done in Congress, give on great
issues like this each side a certain amount of time, and they have floor
managers. That helped in a great measure because people were able to prepare
their arguments for and against and coordinate with other members so that not
everybody would address the same three or four issues. So, it was just really a
wonderful part of American democracy to be part of. The arguments were cordial
in the most partisan decision that any of us will ever make in our life. People
treated one another with respect, they treated one another's arguments with
respect, and I was just really proud of the House.
P: Although again, the vote was pretty much on partisan lines.
F: It was on largely partisan lines. You know, I think that there were some legitimate
arguments against, including we ought to wait and see what the court does. But,
of course, remember while we're describing partisan motives [that] one of the
things that we Republicans believe is that the Democrats and some members of
the court wanted to just keep on counting until December 19. If they could have
prohibited Florida from participating in the electoral college then Vice-President
Gore would have potentially been named president without Florida ever
participating. That would have been a constitutional disaster in my view.
P: Would it have been possible for the Democrats to filibuster the debate in the
F: No, because we have rules, as most lower chambers do, for cutting off debate,
unlike the United States Senate.
P: Because they have fewer members.
F: They have fewer members and you can only enact a cloture on debates on the
[U.S. Senate] floor with sixty votes. Here, it would have been perfectly possible
under our rules for a majority, sixty-one [votes were needed] to basically get its
result. It might have taken an extra day. Resolutions only have to be read twice
instead of three times like a bill. That was one advantage of using a resolution,
[it] shortened the time frame to act. The Senate has a different set of rules. Well,
I'm not even going to get into the Senate rules, but one of the things we had to
consider was both bodies' rules to make sure we had plenty of time left. We did
not want to bump up against that eighteenth, and some of us didn't want to go
past the twelfth.
P: If, for example, the Senate had come up with a different resolution then that
would have had to been resolved.
F: Well, we actually, in our resolution, I think we had agreed to the language of what
was going to be...
P: Before hand.
F: Right. You have to remember that President McKay and I had a lot of disputes
after this, but this was really the first significant difference of opinion. He was very
reticent to act. Several times I thought I had an understanding with him about
when we were going to sign that resolution, and it turned out that that got
postponed. There was always one reason or another why it seemed to me the
[goal line] kept moving, and I was very uncomfortable and I didn't have the
confidence in the Senate leadership to agree to something and then do it. So, I
think in this resolution we agreed on the actual language, but that still didn't
mean they had to get twenty-one votes. Anytime they wanted to pull the plug
they could have. While I believe there's a ninety-percent chance they would have
passed this resolution, I've spent the last two years after the fact [talking with the
Senate], and I can't guarantee on any given moment what they're going to do.
P: You did not adjourn the legislature until December 14, and I guess that was after
Gore had officially conceded. So, you officially stayed in session until all of the
issues had been resolved?
F: Well, there's some interesting twists about this. We wanted to extend it even
further. While the legislature [was] in session we felt like we were immune from
process or service of process. Some of us were at least theoretically concerned
that the Florida Supreme Court would issue subpoenas for us to come down
[and] explain what we were doing to them. Remember, under our theory of
McPherson vs. Blockerwe had a plenary power, and some of us would have
thought long and hard about whether we had to respond to subpoenas. We were
basically acting in defense of our institution. We did not want to be stopped in the
course of the proceedings, and that was one of the reasons we extended it.
There are a lot of these little fascinating parts that we thought long and hard
P: Let me go back and talk a little bit about some of the court decisions and get your
response. What was your reaction to Judge Sander Sauls' decision? Now the
Democrats are in the contest, and Sauls is going to hand down his opinion which
states very clearly that Gore had to prove a probability that the electoral outcome
would be changed, and Gore had to demonstrate the canvassing boards had
somehow violated their discretion. He did not find that. So, now it goes to the
Florida Supreme Court. Then they vote four to three, and in this case you again
sent up a friend-of-the-court brief, right?
P: Was this the same brief that you had sent to the U.S. Supreme Court, or is it a
F: I think it's a different brief. You'll have to refresh my recollection on this. Is this
the same as Harris v. Gore two, or is this a separate decision by the Florida
P: This is the Florida Supreme Court. This is, I think it's Gore v. Palm Beach
F: I can't tell you.
P: This was on the sixth, and the special session is on the eighth. Did that provide
impetus for you to go ahead and meet in your special session?
F: I think by that point I was pretty well resolved. I would have issued a
proclamation several days before that, so nothing they did in that decision
deterred me, but I can't say it encouraged me either. At this point, by early in
December, I'm convinced that the contests and controversies are not going to be
resolved by December 12, yet alone December 18. I want to go in. I want to say
that we believe we have a duty to preserve the election outcome and we're going
to act to do it. I can't remember my exact reaction to that.
P: Let me read that to you. "I am terribly saddened. Once again the Florida
Supreme Court has changed the law and prevented a final determination of all
contests by December 12." What was your major objection to their decision?
The fact that they were now going to recount all the under votes or the fact that
they're going to award to Al Gore votes in Dade County and votes in Palm Beach
F: You know professor, I'm sure I had intricate thoughts at the time, but two years
later I can't tell you what my legal reaction was. Remember, I've studied more of
the appellate decisions by the U.S. Supreme Court and the separation of power
issues, and a lot less about the statutory issues. They've gone out of my mind in
two years, but my reaction in general, was that the Florida Supreme Court had a
majority that was very result oriented here. [They were] going to twist and turn
and contort language so long as they thought there was a chance to get the
result they wanted, which was Vice-President Gore to become president.
P: Let me point out something that Barry Richard mentioned to me. People talk
about a partisan Florida Supreme Court, but this vote was four to three, and as
you know, Justice Wells had a very stinging dissent. They voted against Gore on
the butterfly ballot. They voted against him on restarting the Dade recount. They
voted against him on Seminole and Martin Counties, and of course, if they
wanted to change the result of the election, Seminole County would have done it
very easily. So, do you see, if you look at the overview of the decisions of the
Florida Supreme Court, that it is a partisan court?
F: Well, I think it's an activist court, and just because courts are result-oriented
doesn't mean they turned a blind eye to all reasonable arguments of the other
side. Again, I'm not a psychologist, and for that matter I'm not really an expert on
the makeup of the Florida Supreme Court, but if you wanted to cover your tracks
you would throw some victories to one side and some to the other, and you'd
say, well there's win and lose. But as long as you kept the vote going and
allowing people to change the standards that were dominated by Palm Beach,
Dade, and Broward Counties, the likely result is that you're going to be helping
out Gore make up the 500 vote or whatever the vote difference is.
P: 537 votes. At that juncture you indicated that because of this four to three
decision, that the Florida Legislature should take a look at how the Florida
Supreme Court operates, and that you might consider imposing term limits on the
current justices. What was the thinking behind that statement?
F: I don't know whether I said that sua sponte, or whether I was invited to talk about
what I would call court reform. You have to remember that this wasn't the first
sort of difference of opinion I've had with the Florida Supreme Court. On a
number of issues, including a number of death penalty cases, extending the
Florida Constitutional privacy right to young children, thirteen-year-olds, that want
to get an abortion, where the legislature has taken one policy perspective and the
Supreme Court has issued opinions that undermine the policy. I essentially said
that there are times when I felt like the court saw itself as a super legislature, and
instead of just interpreting the law and Constitution, was looking for ways to
achieve results that they wanted.
So, the Harris v. Gore cases were hardly the first time that I had taken
differences of opinion with the court. [As] a matter of fact, I like to say that I would
be thrilled one day, to read an opinion by any of the justices, and I would come
over and wash his or her car, if it would start out [by saying,] those fools and
imbeciles in the legislature have done it again, they have produced one of the
worse pieces of legislation in the history of free government, but we find
ourselves powerless to change what they have done because they are, after all,
the legislative body and there's nothing in the four corners of the Constitution that
prohibits this foolish piece of legislation. I think that would show the appropriate
respect and deference to the policy makers. I have felt that this has been an
activist court in Florida on some of the key policy issues, so this was not a new
kind of policy run-in with a sister branch of government.
P: Some of the critics argued that you didn't really understand the separation of
powers, because although the legislature has the right to make laws, the
Supreme Court of Florida has the right to interpret these laws.
F: Well, I happen to believe in Marbury v. Madison, and I actually had a debate
people can refer to that was sponsored by the James Madison Institute between
myself and Sandy D'Alemberte [President of FSU and former president of the
American Bar Association] that I think people would find sort of interesting. I'm
not the first legislative leader to complain that courts are making law rather than
interpreting the law. But in the Harris v. Gore case, I think they made our case for
us. This is a situation where they clearly, by their own acknowledgment in Harris
v. Gore one, were not going to have a hyper-technical adherence to the statutory
scheme. Remember, in this instance the U.S. Constitution empowers one body,
not the three branches, but one body, the legislature, to determine the method of
selecting electors. We don't believe either of the other two branches have any
ability to interfere with what we do. Title Three [of] federal law, by the way, goes
beyond that and says you can't change the law after the election. We clearly
believe, like most of the U.S. Supreme Court, that the Florida Supreme Court did
in fact, change the law after election day, and they made [new] law to boot, which
is two sins in my book.
P: Justice Harding, in his dissent in that four three decision, thought that Judge
Sauls had gotten the right result for the wrong reasons, that when he was talking
about probability by law, that applied only to the protest phase, not the contest
phase. But his argument was, and this is something that is really relatively new,
is that the key issue here is the different standards. Broward County would count
a vote for Gore that would not count, let's say, in Palm Beach or another county.
So, what influence do you think the four-three vote had on the United States
Supreme Court? I've had one lawyer say that if it's seven zero [it] might have
made a difference. Other people say that the five-four had already been
determined when the U.S. Supreme Court remanded the case back to the Florida
Supreme Court. [If] you look at Scalia's opinion [it's] pretty clear that they have
five votes at that time. Maybe it made it easier on them to overturn the Florida
Supreme Court because the vote was four to three.
F: I really hadn't thought about it at that point. I think the United States Supreme
Court was motivated by a couple factors. Most importantly [was] the fate of the
republic and avoiding any severe U.S. constitutional crisis. Secondly, the fate of
the United States Supreme Court. Whether it's the Nixon tapes case or other key
cases during constitutional crises, I think the court has wanted to act with a
strong majority. They wanted to look for a decision that they could not have a
five-four [decision], and [not have the] embittered four members dissenting and
attacking the legitimacy of the court itself. Because after all, the Supreme Court
doesn't have control of the armies or police force [or appropriations process]. All
it has as its resources is the legitimacy that Americans subscribe to it. I think
third, they were concerned about the public's response to whatever they came up
with. It certainly had to be an opinion that Americans would acquiesce to and
hopefully most Americans would embrace.
I can't really say that I've ever thought about whether a four three vote by the
Florida Supreme Court mattered much. I have thought about the fact that the
Harris v. Gore one was already back in possession of the Florida Supreme Court.
They had been basically reprimanded in a very public way by the U.S. Supreme
Court, and the Florida Supreme Court had yet to respond. When the second
decision was issued by the U.S. Supreme Court, the Florida Supreme Court still
hadn't resolved the first case.
P: In fact, they did not respond to the request for clarification until December 12.
F: That's right. I think, if anything, if I were a Supreme Court justice at the United
States level I would be somewhat offended.
P: Justice O'Connor was.
F: This is a national emergency with the clock ticking with Florida's involvement in
the electoral college in question, and the Florida Supreme Court had yet to do
anything in response. Now remember, the last paragraph of the U.S. Supreme
Court's first decision basically says two things.
[End of side A2]
F: The U.S. Supreme Court's first decision [the remand] said, we have no idea how
you reached your conclusion, [you need to] rethink it, and by the way, in the
second part of that last paragraph it says, while you're rethinking it read Article
Two of the Constitution and read Title Three. I had been out there since the
November 17 saying, oh, by the way, there is Article Two of the Constitution and
Title Three, so I was thrilled by that last paragraph. [It] sort of fascinates me that,
I think in the Palm Beach case as I remember, the four member majority of the
Florida Supreme Court continued to sort of just ignore what is pretty clear
language in the Constitution and in federal law. I think the three members got it
P: One of the arguments that I've gotten from some Democratic lawyers is that
Chief Justice Wells' dissent was so strong partly to try to alleviate what he feared
was pressure from the legislature to reform the court.
F: Well, I think that's wrong. I think Chief Justice Wells is an incredibly honorable
man. I think he loves the Florida Supreme Court. He certainly loves his state and
his country. I don't think that's what was motivating him. I believe, and I don't
know this, but I believe that Chief Justice Wells probably reluctantly signed onto
the first Harris v. Gore in order to keep the court as a seven-zero decision in
order to keep collegiality and the members of the court intact during very difficult
times. I think at this point he had probably lost some patience and confidence in
some of his colleagues. I think that at this point he did read the last paragraph of
the U.S. Supreme Court decision, he did read the Constitution, [and] he did read
Title Three. I think he basically felt, how in the world can we make the same
mistake twice within a ten day period on an issue of this importance. I don't think
it was in response to anything that the legislature was doing. I think it was in
response to some loss of patience, perhaps, with the reasoning of four members
of the court.
P: One of the issues that comes up a after the concession speech by Gore [is that]
you're recorded in the paper as saying it was an evil speech, and you called
Gore a loser. What specifically did you mean by that? Most people thought it was
Gore's best speech and that it was conciliatory.
F: Well in the first place, the next day I apologized for those remarks. In the second
place, while they were probably accurate, we were in a fairly jovial mood
celebrating the ultimate resolution of this. [It was the] first time I had been let out
of the Speaker's office to relax with a Republican victory party, and it was a
mistake for me to say those things. In fact, Vice President Gore's speech,
especially given the difficulty of the times [and] the pressure on him from both
sides, a lot us were under pressure and certainly nobody more than him, I think
his speech was important for the republic. It was a mistake for me, even in what
was supposed to be a private party setting, but reporters are always lurking
around Tallahassee, to even in jest be saying things like that.
P: Let me go back to the five-four U.S. Supreme Court Bush v. Gore decision.
Some experts have argued that this was really a seven-two decision because
seven of the justices brought up the issue of different standards and a violation of
the Fourteenth Amendment's equal protection clause. Would you agree with
F: Well, yes. Ultimately there were seven votes to stop the recount, and two of
those votes might have been for [a] largely practical basis. I understand their
practical reasoning. I actually differ with using the Fourteenth Amendment as the
ultimate resolution to this, but I do think that they were right. They were watching
different standards being applied in the same counties from one table to the next,
[and] even at the same table. They were watching standards change over time.
All of the reasons why you do not have recount after recount after recount, were
brought to light as you watched these butterfly ballots get in worse and worse
shape and continue to deteriorate.
P: Chads were being knocked off?
F: Yeah, chads were being knocked off. Even if you have nobody who is maliciously
manipulating ballots, just by virtue of doing recount after recount you're going to
have numbers change. So I think the justices, for practical reasons, basically
implicated the whole recount process in Florida, which I agree with. But I think
that fundamentally the constitutional decision could rest on sounder ground, and
that was [with] the legislature. In my view one of those grounds could have been
that Article Two empowers the legislature to resolve these issues.
P: I thought it was interesting that the Eleventh Circuit Court of Appeals, one of the
most conservative courts in America, voted eight to four against Bush's injunction
to stop the recount. They did not, in any way, consider the Fourteenth
Amendment. That was not a part of their reasoning. For a lot of people [it was]
sort of surprising for a Rehnquist court to use the Fourteenth Amendment's equal
protection as a basis for a decision.
F: In our brief I think we raised some of those arguments. I was less comfortable
with those arguments than the facial constitutional arguments which I thought
were fairly clear. I think the court could have rested on federal law and Article
Two, and didn't have to get into the appropriate way to treat voters [equally]
when you count their votes. Because if it's true that people in Naples, Florida
have to be treated the same as people in Palm Beach County, Florida in counting
ballots, then what about people in Utah or Las Vegas?
P: What's the end result?
F: There are a lot of places where we have different ways of counting ballots in
America. I'm not sure that all 270 million Americans, or at least those eligible to
vote, have to use exactly the same equipment and have exactly the same
recount systems. You get into federalism issues here as well.
P: Isn't that the logical application of Bush v. Gore?
F: I'm concerned about that. So, I agree with the decision, but would have used a
different result in an ideal world. But remember, I think courts, just like Chief
Justice Wells did, in cases of this magnitude have to be concerned about the
integrity of their own institution. When you can get seven votes for a proposition
as opposed to just five, I understand that too.
P: Also it's very clear, from a point of view of Safe Harbor, when they gave their
decision, part of it was there was not enough time to recount. Because it was ten
o'clock, Florida technically had two hours to do it. So, in another sense they had
run out of time.
F: That's right.
P: Let me ask a question about the dissenting members of this five-four decision.
Justice Ginsberg argued, as did Don Middlebrooks, in the first appeal to a federal
court, that this was a state issue. Under no circumstances, said Ginsberg, should
the US Supreme Court have taken the case.
F: I respect her support of federalism and am enthused by it, will hopefully remind
her of it if there's an opportunity, but remember that our reading of the
Constitution was that the legislature had a plenary authority. It is the United
States Supreme Court that interprets what Article Two of the United States
Constitution ultimately means. Does the Florida court have a role? In our opinion,
they had no role [and] neither did the governor. Secondly, it is certainly accurate
to say that in voting behavior increasingly since the 1950s, the federal system,
and courts especially, have been protecting the rights of voters on Civil Rights
grounds and Equal Protection grounds. To the extent that the court's ultimate
decision rested on Equal Protection, whether I like their analysis or not, nobody
denies that they have the right to come in and save Mrs. Jones or Mr. Smith if
they are [members of a] protected minority class. I disagree with her that this is
just a state issue because it's a federal constitutional principle [of] who selects
P: When the issue of the military votes came up, and I don't know if you took a
specific stance on that, but a military vote in Alachua County was not counted
while the same vote, under exactly the same circumstance, in Okaloosa County,
was counted as a vote. If a vote had different standards, even though a military
vote, obviously that's also a violation of the Fourteenth Amendment.
F: Well, I don't know what is or is not a violation of the Fourteenth Amendment
under this new decision. It's one of my concerns about the rationale. But in
Florida we have sixty-seven different supervisors of elections. Traditionally, each
of them have had a different process for things like how you can acquire
absentee ballots. We have a law that says, for example, you may need two
witnesses at any time. They have different forms. They have different procedures
for requesting those absentee ballots. You'll remember the Seminole County
case was started because the Seminole County supervisor required technical
compliance with absentee ballot request forms that most supervisors didn't worry
about. [If it] didn't hinder their ability to collect ballots, they didn't worry about [the
fact that] she had a technical adherence to her understanding of what the rules
required. As long as you can have a constitutional system that empowers
supervisors to use different types of equipment, different recount mechanisms,
different ways to request absentee ballots, or so forth, as long as the rules are
applied equally to everybody within that county [and] as long as nobody has their
ultimate ability or right to vote hindered, you don't have an equal protection
problem. As long as the military voters in Alachua County knew what their
responsibilities were and had the ability to comply with them, I don't think it's
necessarily an equal protection problem that people in other counties had an
easier time or a longer window or whatever.
P: That's essentially what Judge Middlebrooks said.
F: I have some problems with the Equal Protection reasoning.
P: What was your stance on military votes?
F: Obviously, my position was that if they arrived in time and were postmarked, that
there should be every effort to liberally allow people that got their ballots here to
P: Gore is saying count all the votes, but then he's trying to get some military ballots
thrown out in Seminole and Martin Counties to get those thrown out. Some argue
that's hypocritical. On the other hand, the Republicans are saying, we strictly
adhere to November 7 as the certification date. Harris is right. But then on some
of these military ballots [they say] well it's okay to let them go because we do not
want to adhere to hyper-technicalities. So, both sides seem to be a little
F: Well, clearly both sides were trying to gain every advantage, but that implicates,
once again, the recount process. The more you delay the decision, the more you
recount, the more opportunities for fraud and for just clerical error occur. The
human error potential is what you ought to try to minimize when you create an
election system. It's what we've done in our elections reform package, I think,
pretty successfully. But there's no question that both sides had some hypocritical
arguments. With respect to the military, there is a federal law that supercedes
state law on that issue. Obviously, the federal government has imposed a statute
that binds Florida to go out of our way to try to allow men and women in the
military overseas to have their votes counted even after our normal counting
P: Almost everybody I've talked to indicated that in two respects the Republicans
outdid the Democrats. First in organization, and secondly, the argument is they
won the public relations battle. Do you think that's true and do you think that had
any impact at all?
F: You know, I don't know. Again, I was sort of a captive in my office. I was talking
to reporters and I was talking to [legislative] members and lots of lawyers, but I
wasn't out there watching the Grass Roots Organization in the streets in Miami,
Palm Beach, or even Tallahassee for that matter. With respect to the public
relations battle, I wasn't doing polling at the time, [but] I'm not sure that anybody
had a huge advantage there. I think that you had hard-core thirty percent
Republicans on one side, a hard-core thirty percent Democrats in the country on
another side, [and] you had forty percent in the middle that were just sort of
confused and didn't know who should resolve this. Should it really be the Florida
House of Representatives? I mean, I knew that was a tough sell. I believed it, but
I knew that was a doggone tough sell. Should it be the U.S. Supreme Court?
Should it be Congress? That probably would have been a tough sell as well, but
that's what the Constitution calls for if we had had two sets of electors, or even
one set that had been stricken by one of the two bodies of Congress.
I can remember that it must have been awfully uncomfortable for Vice-
President Gore, in the Vice-President's house in Washington, to have protesters
around basically screaming "get out of Cheney's house." [Vice-President-elect
Dick Cheney] I recently saw an interview with him. But I don't think that was
seventy percent of the country that felt that way at the time. I think it was 30/30
and forty percent were confused and undecided.
P: I talked to Mac Stipanovich and he very candidly said, that we, within the law,
sought to do whatever it took to win the recount. He thought Gore paid too much
attention to political issues like how it might play public opinion. For example,
backing off the military ballots because they didn't want to seem unpatriotic.
F: Well Mac's a hardball player, but let me tell you, I think it would have been
devastating for the Democratic party as a party to publicly and permanently take
the position that if it takes disqualifying military ballots to win, then that's what
we'll do. I think that would have had devastating long term effects, so I disagree
with Mac that you do whatever, whenever, no matter what the PR cost is. I
haven't said that there's no question we had a lot of talented people, lawyers,
and skilled people working as Republicans. I did have a lot of contact with them.
P: Talk about the Electoral Reform Act of 2001. Obviously, the recent vote
[November, 2002] went much, much better than the 2000 vote. One of the things
you do [is] you get rid of these punch-card machines. Why didn't the legislature
designate one uniform voting machine for the whole state?
F: Number one, we don't feel compelled to micro-manage supervisors. We do have
a constitutional provision in Florida where supervisors run elections. They're in
most places elected. In Miami-Dade County they're appointed under their
charter. Number two, technology changes from year to year. One of the things I
hate doing as a legislator is mandating a particular type of technology because
about the time we pass a bill, that technology's obsolete. So, there will be better
technology next year and ten years from now. We do have a set of standards
that equipment has to comply with in order to be used. They have to have a very
low error rate, for example. They've got to be intelligible to the average voters,
and of course we have now, notices to voters of what their rights are. But within
those perimeters we trust local supervisors to make some decisions about what
would be most affordable and most common sensible in their communities.
P: But the legislature did designate some money to help with the purchase of new
F: We did, and that money didn't have to be spent on the purchase of new
machines. We had the equipment problem of some counties, like Seminole
County, already having been updated. So, what we did in those counties is to say
that we're going to also give you money, but you can use that for voter education
programs, for training poll workers, or any of those sorts of things. Again, the
emphasis here is allowing some discretion at the supervisor's level as long as
they have a functioning equipment system and a functioning personnel system.
You'll remember in Broward County, in the Democratic gubernatorial primary,
they didn't have a functioning personnel system. They didn't get their places
open on time. Some of the polling places didn't open till eleven. No amount of
laws issued from Tallahassee are going to run a smooth election if your poll
workers don't show up and turn the machines on until eleven o'clock in the
P: One of the things I think we can see by the use of the new technology is that
there were literally no over-votes, or very, very few. So that eliminates some of
the problem. You still have under votes, but you'll never get rid of those.
F: No, and a lot of people deliberately under vote.
P: They don't want to vote for a particular candidate.
F: I'm proof in point. In the most recent congressional election where I was
successful, we waged a very expensive [and] I would admit, the nastiest
campaign I've ever been involved with. We were the first race on the ballot
because we're the only federal race in my area. Right after us was the
gubernatorial race. I think there were about 6,000 ballots fewer cast in my race
than in the [Jeb] Bush/McBride race [Democratic Nominee for Governor, 2002].
People weren't inadvertently skipping over our race. They came to vote for
governor in 6,000 cases, and it wasn't because they didn't know my opponent
and I because we had only spent a cumulative total of something like $10 million
telling people who each other were. I think that there were some people that
were either undecided about who was the least of two evils, or just were turned
off by the negative campaigning. Now fortunately sixty-two percent of the people
that did vote endorsed me, but the point is [that] the first race on the ballot, with
both candidates having ninety plus percent name ID, was skipped deliberately by
P: Did any of the issues from 2000 play out in this campaign because Harry Jacobs
was the lawyer that brought the Seminole County suit?
F: His involvement was a lot more important in the campaign, both in terms of the
amount of discussion about it and probably in the way voters felt about it, than
mine. I don't know that Mr. Jacobs ever once talked about my role in convening
the House. Our polls showed that that never would have played. But disqualifying
or disenfranchising voters is a big deal to everybody, including Democrats and
independents. When the Republican party for the most part, but also my
campaign, talked about disenfranchising 16,000 absentee voters, especially at a
time when more and more people are availing themselves of absentee voting
[and] early voting, [it] was a very unpopular thing. So his role hurt him, I think, in
P: In Judge Nikki Clark's ruling in the Seminole case she ruled that Sandra Goard
[supervisor of elections, Seminole County] had violated state election law, but it
was a technical violation. It was the request for a ballot, it wasn't a ballot,
therefore, a draconian decision to throw out all the ballots would have been a
little too much.
F: What she essentially ruled, in layman's language, is that there was harmless
error [that] didn't have any impact, but I think that's right. Your last point is
probably most important. The only remedy asked for in the lawsuit was to throw
out all 16,000 ballots. Of the 16,000 ballots it might have been 2,000 or 3,000
that were as a result of these request forms that were missing an identification
number. So even the plaintiffs, and Mr. Jacobs my opponent, had to
acknowledge that the remedy he asked for was to disqualify 12,000 or so votes
where nothing was wrong, either in the request form or the ballot. He just couldn't
tell you which of the 16,000 ballots were infirm. So, that was disenfranchising
people. By the way, even the people whose ballot request forms may have been
technically wrong, as Judge Clark ruled, didn't do anything deliberately. They
didn't do anything mischievous. They weren't trying to commit vote fraud, they
were just trying to vote. So, nobody did anything intentionally wrong, and 12,000
of them didn't have anything wrong with either their request or their ballot. It was
fair game for us to say this fella tried to disenfranchise 16,000 absentee ballots,
and people have sort of a hostile reaction to that.
P: Another part of the Electoral Reform Act is the provisional ballot. Were you in
favor of that?
F: Yes. I don't ever want to disqualify a legitimate voter who has complied with the
rules. I also don't want to have people who are dead voting. I don't want to have
people who voted once in one county vote again in another county. I don't want
people who voted in New York absentee once, [but] also live here part [of the]
year and have the residence here, [to] vote [again] in person. So, I think it's a
perfectly reasonable thing to do, although it does postpone, in close elections,
when you resolve the election, but I think that's a very responsible tradeoff. To
make sure everybody who's entitled to can vote, [saying] we can take a look at it
later. You don't have the problem like you did in the Jacobs lawsuit where 2,000
or 3,000 ballots may have a legitimate question about them, so you're going to
throw out all 16,000? You don't get into that problem. You put these provisional
ballots to the side [then] after the fact you go through [them].
P: Should felons vote? What should be done about updating the felons list?
F: Florida's one of the few states that do not allow automatic restoration of felons
rights to vote. I'm not in favor of automatic restoration. I am in favor of [allowing]
felons [the right to vote] who go through the process of, number one, proving that
they are not a recidivist. Number two, making their victims whole. If they owe
their victims money, reimbursing their victims. Number three, go demonstrate,
through a process, that they are a changed person. I'm in favor of allowing them
to go through that process, and I think we ought to streamline that process. I
think there are too many hurdles. The fact that you have to physically go to
Tallahassee and apply may be wrong. Maybe you can do it in front of a local
judge, but I don't think the problem with democracy is that there are too few
felons out there voting.
P: How did this entire experience impact your life, both personally and
F: I won't deny that I was convinced, especially once we got some brilliant
constitutional scholars to sign off on what we were doing, that I was at an historic
time and moment. It was an emotional roller coaster for everybody involved. I
clearly believed that George W. Bush would make the best president, [and] I
clearly believed that the Florida vote on November 7 had made him president.
So, I felt as though, whether this was the end of my career or not, it might have
been Providence that I was in that place where I could be a leader, or at a
minimum, the mouth of the lion of the Florida House that roared. I felt it was an
extraordinary responsibility, but I was up to it regardless of what the personal
costs were going to be.
P: What was the physical cost?
F: There was a lot of tension and pressure, but it was also, in some respects, a
joyous time for a guy like me that loves history. I love the Constitution. I love
some of the legal theories about separation of powers. I think if you talked to
former House speakers or contemporaries of mine, they will tell you there was no
better person to have been at that place, at that time, [and] in the Florida House
than Feeney. Because he just loves the stuff, he soaks it up. He loves the theory,
he loves the history of all of it. From a personal perspective it was really a
remarkable place to be. I wish we had not had a constitutional crisis, but given
the fact there was one, I wouldn't have been anywhere else on the planet.
P: Were you treated fairly by the press and the media?
F: On the whole, yeah. I really think I was. I think that I got beaten up a little bit, but
some will say I injected myself and the House into this controversy. Remember,
our theory is that we were duty-bound under the Constitution to engage, but on
the whole, I think my critics had every right to take the shots they did. I mean, I
volunteered to be Speaker of the House, I volunteered to be a legislator, [and] I
took the oath. I don't think there were too many cheap shots at me. I was more
offended by some of the things said about Katherine Harris, for example.
P: Ms. Cruella Deville and catty remarks about her makeup and all that.
F: She is a beautiful and brilliant woman. I will tell you, in all fairness, I point out to
mostly partisan audiences, I can't think of one female Democratic politico who is
routinely savaged because of her looks. I'm sure not every Democratic politico is
Bo Derek [film actress], and yet, Katherine is a beautiful woman who's also
remarkably talented and brilliant. I was more offended because of the personal
attacks on her than anything I can remember being said about me.
P: Do you think they were unfair about the portrayal of the state of Florida? South
Carolina had more over-votes and more under-votes. If you subjected any state
to that kind of microscopic examination there would have been some flaws.
F: I think it was the closeness of our election, more than anything else, that resulted
in the problems. But I do think that in Florida there were certain counties,
because we do vest individual discretion at the supervisor's office, that had been
sort of derelict in terms of bringing equipment up to speed. I do think that the
Supreme Court of Florida opened up the door to all sort of potential mischief and
fraud when it continued the vote counts. Then you have a bunch of partisan
people sitting around tables with ballots that are dilapidating in front of their
P: Although, it would be hard to commit fraud when the whole world was watching.
F: But all you have to do is treat roughly [the] ballots and chads. I mean, there's no
question that there was a lot of give and take at these tables. It's not necessarily
fraud, mischief would be another word. When you've got canvassing boards
changing the standards, after the fact, that they're applying, and that was
occurring, you can say that's deliberate or mischief. You can refer to it however
you want, but I think that the human component of doing those counts is a huge
problem and we're trying to take some of that out of the recounts.
P: Although, as far as I can determine, there was no proven case of fraud, at all, in
this election, which is to Florida's credit. You couldn't say that about Louisiana or
Chicago, for example.
F: I think that's a great point. I think that most of the close calls that were resolved
by partisan people at supervisor's offices or elections boards were probably
because we all see things through the shades of the glasses that we look. I
admitted to my biases. Having said that, I am offended by the United States Civil
Rights Commission, Jesse Jackson and others, [who have] routinely accused
people like Jeb Bush and others of everything from setting up police roadblocks,
[and] have really tried to create a division in Florida as a consequence of this
close election. [There are] all sorts of wild accusations based on, as you say,
allegations that not only have not been proven, but to the extent you can
disprove a negative, have been disproved.
P: I looked into the Leon County police stop. It was there for an hour and a half,
[and] it was several miles away from any polling place. I forget the numbers, [but]
they stopped sixteen people, twelve were white and four were black, and they
gave out six tickets or whatever. Lucy Morgan did a little investigation, and she
said she thought that they didn't even know there was an election on. But from
Ed Jennings' [Representative, Florida House] point of view, I talked with him, he
felt like that was an attempt to intimidate. Have you read that Civil Rights report?
F: I've read parts of it. I have also read the minority report.
P: Abigail Thernstrum?
F: Yes, which the commission majority refused to allow to be printed. To the extent
that there is a cover up involved, it's by the United States Human Rights
Commission, and not anything that Jeb Bush or Katherine Harris are doing in
Florida. They basically have disqualified Harvard statisticians because they
volunteered their time and said they can't be part of the report.
P: As an objective person I've read through that, and it's all anecdotal.
F: Right, the minority report.
F: The majority report. Oh, I have read through parts of it. It's just completely [filled
with] anecdotal allegations that are unsubstantiated. Look, charging people with
racism is one of the ugliest charges that you can [make]. It'd be almost like
accusing somebody of being a communist back in the 1950s. It's a very ugly
charge. Where you find a racist you ought to condemn him or her, but you've got
to be awful reticent to make the charge. Then, when you are given
responsibilities as a chairman of a commission designed to promote civil rights, I
think you really make a mockery of your own cause and you really create a lot of
backlash that's harmful.
P: For example, one of the things they complained about [was] that people,
because they didn't have provisional ballots, who were allegedly registered but
not on the roll at that particular precinct, could not get through to the supervisor's
office. Well, nobody could get through. Then, some of the people who had
complained were at the wrong precinct. Of course, that happens sometimes, they
change the numbers, but the reason their name was not there was not due to
discrimination, it was due to the fact that they happened to be at the wrong
precinct. So, that seems a little flimsy if you're going to talk about racism.
F: I think so, especially if responsible leaders are going to be making those charges.
Now let me say, I've never been the victim of discrimination against racial or
ethnic minorities because I'm not one. There are a lot of things that go wrong in
my life that if I were African-American or Hispanic, I may wonder. I may have a
legitimate wonder if this bad thing happened to me because somebody's
discriminating? But bad things happen to all of us. What we need to make sure is
that there aren't any conspiracies, especially any engaged in by government
officers, to make bad things happen to people because of their race. There was
absolutely no evidence of that and it's irresponsible for the people that are
running around claiming so. It's actually very divisive and harmful to the country. I
will say this, if you want the single biggest variable, I understand, in terms of
voter error, it is whether or not your supervisor of elections was a Democrat or a
Republican. If you add length of time, the longer your Democrat supervisor had
been in office, the higher error rate you had. You may want to check on those
statistics, but that's my understanding. If you want to look at raw numbers, [of]
where errors and how errors occurred.
P: That's partly because in the largest counties, like Broward...
F: I understand the chicken and egg argument, I don't mean to cut you off, but I'm
just saying if you want the single biggest variable that you can identify, that would
P: In that context, should elections supervisors be non-partisan?
F: Or term-limited. By making an office non-partisan I don't believe you necessarily
get any less partisan activist. I would refer you back to Harris v. Gore two, the
four judges who did ignore the U.S. Supreme Court's suggestion that they read
P: What impact did the 2000 election have on the recent, 2002 election? Clearly Jeb
Bush won very handily in what was thought to be, in the beginning at least, a
F: I would turn that around and say the 2002 election had more impact on the 2000
election. We have put, in Florida, the 2000 election to bed. There was not a
whole host of voter turnout to punish or to reward Jeb Bush based on what his
brother did in Florida two years ago. I think Republicans voted for Jeb, and
independents and some conservative Democrats, because of what he achieved
policy wise. I think a lot of Democrats stayed home because they were un-
enthused about McBride, especially [during] the last three weeks [of the
campaign]. I'm going to turn your question around and say, the good news is that
2002 basically said that 2000 is behind us as a state, and we're ready to move
on and judge the quality of candidates and their policies. That's good news.
By the way, to return to that if I can, I was asked at the time by some
Republicans in swing districts where Al Gore had won, who were freshman
especially, about, gosh, this really terrifies me that we have to cast this vote.
There weren't a lot of them, but there were clearly six or eight or ten that I can
remember. I told them a couple things. I told them that every vote when you're
new here seems like it's the potential end of your political career. The elector has
a very short memory for any one given vote. Now if you get a reputation of being
corrupt or selling your vote, you're in trouble. If you're on the wrong side of a
local issue, [such as] do I build a bridge from one side of the river to the other? If
your on the wrong side of that issue you may be in trouble. But for the most part,
incumbents survive what they did on issues of principle. Then I would always
refer to point B, which is that we all took an oath and I'm going to ask them to
listen to the arguments of the attorney's and the constitutional scholars, and then
make their mind up what their oath requires and do as they see fit. But there was
clearly discussion early on by the freshman of the political ramifications of casting
P: Almost all of those were reelected, I believe.
F: Every single person that voted for the resolution was reelected. There were a
couple that voted against the resolution, probably Sarah Romeo and Perry
McGriff, who were not reelected.
P: But those were different issues, especially in Perry McGriff's race.
F: They probably were, and I didn't follow his campaign, you're up there. But if there
was any district where a vote against the resolution might have hurt, it would
have been Perry's. I have no idea what the issue matrix was, [but] I doubt that
was even involved.
P: I don't think so. Let me end with a broader question. For the first time in the
history of this state the Republican party not only controls and dominates the
legislature, [but it] has the governor, and all cabinet positions. What has been the
reason for the rise of the Republican party in Florida, let's say, the last twenty
F: I don't think that Jeb or George W. have done any better vote-wise than Ronald
Reagan did. I don't think you can subscribe it all to the electorate has moved
dramatically right. I think there's been a slow, but probably steady, evolution to
some conservative politics. But I think people's willingness to vote Republican
has moved from the top of the ticket all the way down to dog catcher. There's no
question that, in most of the state, being Republican is no longer a liability. I think
the decade of the eighties was remarkable for three things that Reagan did. As
Lady [Margaret] Thatcher [Prime Minister of England] says, [he] won the Cold
War without firing a shot [and] cut marginal tax rates from eighty to forty percent,
but he also restored a view of federalism, allowing states to make changes that
are important. As a consequence, Republicans came to power at a time where
we actually had the flexibility to do welfare reform. We've been able to change
some of the Medicaid and Medicare formulas by getting waivers from the federal
government to suit our needs better. We've done some very controversial
education reform. We've done away with racial quotas, which is another
P: Are you talking about One Florida?
F: Right. We've done away with racial quotas, not necessarily opportunities in other
things. We've reduced taxes dramatically. We've done a whole host of reforms
that are very controversial. I don't think the fundamentals of the electorate have
changed in this sense, I think there's forty percent of the voters out there that are
going to vote Republican almost no matter what. Forty percent will vote
Democrat almost no matter what. I think the twenty percent in the middle are
more inclined, at the moment, to lean Republican. As long as we behave, don't
get too far afield, don't let corruption seep in, or we don't promote an extremist
agenda, I think that they're more inclined to vote Republican.
P: Is that because of terrorism, 9/11, the possible war with Iraq? [Do] you think it's
an appeal to patriotism?
F: I think there's a lot of that to be said. It's not just Florida where we had big
victories. Typically, in an off-year election, nationally, two years after a president
gets elected, his party loses something like 350 state legislators. [The
Republicans] gained 295. This was the first time ever the U.S. Senate has swung
from one party to a new president's party. [This was] the first time since 1934 that
the House has actually picked up seats as a consequence [of a new sitting
President]. So, there's certainly something that went on across the country the
other day. One of the few Republicans unelected was the Tennessee governor
who was out there promoting a state income tax for the first time. Don't offend
your base is number one [rule] in politics, but the timing of the security threat
clearly [affected it]. But that's not the only thing though.
I will point out that our pollsters are telling us that Republicans are [close]
even on the issue of who people trust to handle the public education system in
America. People that said education was their number one issue in the Clinton-
Dole race were with Clinton by about 72 to 18 percent. Extraordinary. It's now
within a handful of [percent]. So, if President Bush ran against Vice-President
Gore in a rematch today, it's within four or five points either way. Same thing, to a
lesser extent, on Social Security and Medicaid. As a matter of fact, there was no
gender gap in this election nationally, which is pretty extraordinary. It either
means that female voters are getting tired of being told that George W. Bush is
going to close down their kid's school and throw seniors out of hospitals and
they're becoming much more politically savvy and immune from the negative
attack ads; or it means there's a fundamental realignment of their views of policy
issues. I tend to think it's the former. I think they're just becoming weary of being
told time after time [that] Republicans want to kill seniors and children. That's my
P: Now is there anything else that you would like to talk about [that] we haven't
F: There's probably a million things, but that will run you out of tape.
P: Okay. Well on that note, I want to thank you very much for your time. I appreciate
[End of the interview.]