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FEP 36 Summary
Lawyer and volunteer for the Florida Democratic Party elections 2000
Interviewer: Julian Pleasants
Date: November 20, 2002
Democrat Harry Jacobs was asked to be an observer concerning the allowance of Seminole
County absentee ballots of the 2000 Presidential Election. Michael Leach, full-time employee of
the Republican Party, though unsupervised, had helped with the 4,700 ballots for about three
weeks to supply missing voter identification numbers on misprinted forms. Though the printer's
omission technically invalidated the ballot, after Leach's correction they were allowed by Sandra
Goard, supervisor of elections. Jacobs then reasons for a lawsuit he brought and the
circumstances of the lawsuit itself, Jacobs v. Seminole County Canvassing Board. As a result, he
suffered private and public opposition including death threats (pages 1-6).
Jacobs notes 537 votes carried Florida and therefore its electoral votes for the Republicans. His
position is that the absentee ballots should have been invalidated. Jacobs believes his case should
have been consolidated with the main case of Bush v. Gore because different laws apply in
presidential elections, but by not consolidating the cases inconsistent positions could be used.
The ballots were invalid and could not be counted because a printer's omission allowed no space
for voter identification through no fault of the voter. But, conversely, another position was that
every vote should be counted. Jacobs discusses these arguments (page 7-10).
Al Gore conceded the election rather than appeal the decisions. Jacobs discusses the Florida
Supreme Court decision, the Marin County decision, and the Seminole County decision (pages
11-13). Jacobs discusses the judges involved in the cases, his appearance on a television show,
and his conversations with people at the Florida Democratic Headquarters. He talks about the
different approaches of the Democratic party and the Republican party in pursuing the case, and
what could have happened had the cases been consolidated, such as a statewide recount (page
Jacobs disputes that the Florida Supreme Court was a "liberal Democratic Court," and discusses
the positions of the United States Supreme Court and the Florida Supreme Court. He discusses
possible case outcomes and his ideas how they would play out. Jacobs believes the Republican
Party's philosophy of "win at all costs" played a part in the Florida election of 2000 (pages 17-
He discusses possible Republican party bias, including Secretary of State Katherine Harris and
governor Jeb Bush, though he believes the Supreme Court decided the case from a pragmatic
position. Though the slim victory had no impact on subsequent Democratic voting impulses,
Jacob believes, it had a significant energizing effect on Republican voters. He discusses the
Republican win in 2000 in general and offers such advice for improvements in the election
process such as non-partisan election supervisors and a national holiday on election day to
improve voter turnout (pages 22-26).
He discusses media appearances such as Larry King Show, and the factors that shaped the 2000
election's general outcome. Back to the discussion of the ballots, Jacobs observes that each
Florida county differs slightly in its procedure, and the consequences of that practice. Jacobs
discusses issues of procedure about when to accept, reject, or follow-up incorrectly submitted
ballots, especially as it applies to the 2000 Presidential election (pages 27-33, end).
Interviewee: Harry Jacobs
Interviewer: Julian Pleasants
Date: November 20, 2002
P: This is Julian Pleasants, and I'm in Altamonte Springs, Florida. This is November
20, 2002, and I'm speaking with Harry Jacobs. Would you give me a little bit of
background about what Election Day 2000 was like for you and when you first
began to realize that this was going to be a traumatic election?
J: Which election day are we referring to?
P: This November 7, the 2000 presidential election.
J: Originally, when it was announced according to the exit polls that Vice-President
[Al] Gore had triumphed, I had called the state wide Democratic chairman, Bob
Poe, to congratulate him. I think I went to sleep, as I recollect, and woke up a
couple hours later and found out that things had turned around 180 degrees. Of
course, [I] realized that we were in for somewhat of a battle in determining who
indeed did win this particular election.
P: When did you first get some sense that there might be some problems with the
Seminole County absentee ballots?
J: I was asked to be an observer. I received a phone call from a woman whose
name I simply don't recollect, but she had asked me to come down and act as an
observer at Seminole County, which I did. At the time, there were no other
Democratic observers placed with the [elections] supervisor's office. While I was
there, several other individuals showed up on behalf of the Democratic Party to
observe the recount. One of those Democratic observers approached Judge
John Sloop, who was a member of the supervisor's board of elections, and
indicated to Judge Sloop that he had heard a rumor that someone had
tampered with the absentee ballots themselves. At that time, Judge Sloop
indicated that that was not at all possible, let alone it did not happen, simply said.
However, I think it was Sue Vargas, if I'm not mistaken, an employee of the
supervisor's office, had come forward after the judge walked away indicating to
the individual who had asked the original question that indeed someone had
tampered with the absentee ballot requests, not the absentee ballots themselves.
When I began to question her, [because] I was standing there listening to this
conversation, she had indicated that she didn't feel comfortable answering any
questions. [She] disappeared into a portion of the office that was separate and
apart from those areas in the office that the public was allowed to visit. I waited
for her to come out of that particular portion or section of the office, [but] she did
not come out. At that time, I approached another member of the supervisor's
board by the name of Ken Macintosh, an attorney. I repeated to Ken the
conversation that I overheard. [I] indicated to Ken that rather than make what
could be much ado about nothing in front of the media, because there were
media present, I suggested that we convene in some portion of the office outside
the presence of the public with this individual, as well as with a supervisor of
elections, Sandra Goard, and Judge Sloop. I'd be given an opportunity to delve
into exactly what she was referring to when she said the ballot requests had
been tampered with. He did [it] at the time.
We met in the supervisor's office. However, the supervisor would not allow this
young lady to answer any questions. She spoke in a representative capacity for
the young lady. When I questioned the supervisor, as I remember, she indicated
that there was a voter identification number that had been inadvertently omitted
by the vendor from the absentee ballot requests, and that she allowed an
employee of the Republican Party to come in for a day or two and complete the
absentee ballot requests. Later on, in our deposition, we learned that a day or
two became something, and again my memory is not as good as it was back
then, like three weeks. She had allowed this employee operative to remain in the
office, unsupervised, completing the absentee ballot requests and sorting the I.D.
P: In fact, wasn't there more than one individual?
J: There is some allegation that there was indeed a second individual. I don't think
we were ever able to put our finger on who that second individual was. Michael
Leach was the gentleman's name. Michael Leach, who was a full-time
employee of the Republican Party, was given the absentee ballot requests. Let
me go back a step. The supervisor called a staff meeting, as I remember.
P: We're talking about Sandra Goard.
J: Sandra Goard called a staff meeting and indicated to the staff that she had
invited this Michael Leach onto the premises for purposes of correcting, or
inserting, the omitted voter's identification number. [She told them] that they were
to segregate all of the absentee ballot requests that had come in without a voter's
I.D. number, and more or less deliver them to Michael Leach so that he may be
given an opportunity, via his laptop [computer], to incorporate the appropriate
voter identification number with each and every ballot request. Now, at the time
there were several thousand absentee ballot requests that had been invalidated
by the supervisor of elections, Sandra Goard. She had told her staff that she
would set these aside [because] they were invalid as a consequence of their
violating a statute, which specifically set forth that a voter I.D. number was
necessary. [She said] that she would not then issue the absentee ballot. The idea
being [that] absent of a valid request, no legal ballot could [be] issued. However,
once the employee, Michael Leach, remained in the office for a period of weeks
inserting the voter I.D. numbers, they were then returned to the supervisor.
Therefore, we also allege in our lawsuit that the only person under the statute
that was entitled to submit an absentee ballot request was the voter, his/her legal
guardian, or a member of his/her family. She indeed allowed the corrections to
be made by Michael Leach, and then Michael Leach resubmitted what had
otherwise been invalid absentee ballot requests. Again, a violation of the second
statute. So as a consequence of that, we brought our lawsuit.
P: Was Sandra Goard cooperative? What was your impression of how she
responded to your questions?
J: My impression is that it was definitely a cover up from the standpoint that
immediately, she said, it was a day or two that this individual was in the office,
and it turned out to be, as I remember it now, two or three weeks.
P: I wonder if you had not pressed the case would this have ever come out?
J: I don't know. I think there was some indication somewhere along the line by a
talk show host of, I think it was, 580 WDVO in Orlando, that had indicated on one
of his shows that some invalid absentee ballot requests were allowed to be
corrected by a Republican employee. I think that preceded our lawsuit. I'm not
sure, you know, we're two years down the road now.
P: You personally filed this lawsuit?
J: Yes, I did.
P: You did not file it on behalf of the Democratic Party?
J: No, I did not, as I remember.
P: Did you speak with either Al Gore [or] anyone in the Gore campaign about filing
J: Yes and no, and let me explain that. I was somewhat astounded when I found
out what had happened, and I contacted the Democratic headquarters in
Tallahassee. I asked to speak to one of the attorney volunteers. I don't remember
who I spoke to in particular. I know one time I had a conversation with Mitchell
Berger. Now, Mitchell Berger turns out to be very much a part of the Gore team.
However, when I first met Mitchell, he was fundraising, and I was raising some
money and worked on behalf of the Democratic Party. As a matter of fact, I met
him at a presidential debate in Wake Forest [University, in North Carolina] again,
and he was kind enough to introduce me to a number of people he knew there,
and we spent some time together. So, I looked upon Mitchell as I looked upon
myself, somebody who was a volunteer doing good work on behalf of the
Democratic Party. I did not look upon him in any type of official capacity with the
Democratic Party. When I talked to volunteers in Tallahassee, I, too, looked at
them, at that time, as people volunteering, as many people were here
volunteering in Orange County, Seminole County, and elsewhere. Later on, I
found out that some of these people, including Mitchell, had a more active role on
behalf of the party and on behalf of the vice-president [Al Gore]. So there came a
point in time, I think it was [when] I had given my deposition in this case, [that] I
had learned that some of these people had played a more significant role. I
indicated during my deposition that people I had thought were simply volunteers
no different than myself had played a more significant role.
P: Did you meet at all with Joseph E. Sander [general counsel for the Democratic
P: When did you contact Gerald Richman [West Palm Beach attorney], and what
was your relationship in terms of bringing the suit?
J: I had called and talked about, and I don't remember who I talked to in
Tallahassee, about attorneys that were volunteering to take suits and what not.
Now, I knew Gerald from many years ago. I was an evening student at the
University of Miami Law School and clerking for a bailiff in the law court for Judge
Sam Silver. At that time, Gerald Richman often came into court arguing cases,
and I got to know Gerald a little bit, and I respected the work he did. I had also
heard that he was available and willing to volunteer on behalf of the butterfly
ballot case, if I'm not mistaken, initially. However, he wound up not taking that
case. So, as a consequence of knowing he was available and interested, I
P: Did you also talk with Young, who was another one of the Gore lawyers?
J: Young? I'm not even sure I know a Young.
P: One of the accounts I have here is, on Saturday, December 7, Young deposes
Jacobs. I don't know the context of that.
J: Is Young representing the Republican Party?
P: No. I would think he would be a lawyer for the Democrats, but I'm not sure.
J: If I knew a Young, I certainly don't remember a Young right now.
P: What about the relationship between this suit and the Gore lawyers' campaign
team? Publicly, they said that they had nothing to do with this suit, [that] this was
an individual suit brought by, as they phrased it, "local attorneys." Was that
J: It was. As a matter of fact, I think I talked to Mitchell at some point in time, I don't
remember when, and I mentioned it to Ron Klain [chief of staff to Vice President
Al Gore; head of Al Gore's legal team during 2000 election] as well, when a
motion was filed to consolidate our cases in Tallahassee. Ron Klain really spoke
one or two sentences to me saying he had no interest. I was hoping that they
would consolidate both our cases. I thought it would work to the vice-president's
benefit, but no, they wanted us to remain separate in court.
P: When you say consolidate, you mean the Martin County and the Seminole
J: No, I'm talking about the Seminole County case with the main Gore v. Bush
P: At one point, Mitch Berger told me that when you were going to appeal the
Seminole County decision by Judge Nikki Clark to the Florida Supreme Court,
that the Democratic advisors to Gore were unhappy with that decision and
opposed it. Do you know if that's correct? He may have just talked with Mitch and
may not have talked with you.
J: I know, and my memory is not as good right now, that Gerald [Richman] and I
discussed it. Gerald indicated at the time that the party or the vice-president, I'm
not sure, [maybe] both, would prefer that we don't take an appeal. That I do
recollect. I don't remember where I was coming from though.
P: Let me talk a little bit about the actual case, which is Jacobs v. Seminole County
Canvassing Board. When you first brought your suit, what was the reaction of the
canvassing board, and what was the reaction of Sandra Goard?
J: I don't know. I can't speak for the board itself, but talking to the supervisor was
very hostile. She was none at all pleased. That hostility also spread to [the] local
county commission and various other local political individuals within Seminole
P: Did you get a lot of e-mails, phone calls, threats, opposition?
P: What kind? Can you give me an example of what people were saying?
J: I remember I contacted the chief of police of Altamonte Springs, as well as the
sheriff in Seminole County, because we received a number of death threats
thrust at the family and that kind of thing. People were very, very hostile. There
was certainly no feeling that one had a right to bring in action to determine the
validity of this particular incident. We were hounded by people wherever we
went. [People were] waving placards screaming, yelling, calling us names, and all
that kind of thing.
P: What was the situation like when you first started the hearings? Was there a
large crowd? A lot of media?
J: As I remember it, yes. There was a lot of media because I remember some
interviews. We limit our practice to personal injury and medical malpractice.
Apparently, somebody had obtained a portable device that sounded like an
ambulance [siren]. They would play that whenever I was being interviewed and
scream "ambulance chaser" and that kind of thing. It was just very nasty. [They]
tried to disrupt what was going on.
P: One of the things I understand, and you can correct this if it's incorrect, is that
never before in Sandra Goard's time as supervisor had anything like this
happened. Never had a member of a political party been allowed to come in and
do this, nor in the past had her staff helped somebody like that. Is that correct?
J: To the best of my knowledge.
P: This is the first time that that sort of thing happened.
J: [Yes, the] first time. I think what made it perhaps worse, in terms of what she
allowed, is this individual was allowed to come in with a briefcase that apparently
he carried his laptop in. [He] was placed in a room with not only the invalid
absentee ballot requests from various Republican voters, but absentee ballot
requests that had been completed by other members of other parties as well.
They were in shoe box-like containers, and he was not supervised at all. His
briefcase was not checked coming in, and his briefcase was not checked going
out. Not only that, but there were various computers that were left on in that
particular room that gave him access to other information with regard to what
was happening in the supervisor's office. I mean, he had the license to remove
absentee ballot requests because they were not inventoried as they were
received. So one would not know how many were received on a daily basis and
removed. He could have walked out if he wanted to, I'm not saying he did, with
hundreds of Democratic absentee ballot requests, and nobody would ever know
P: I understand, and I'm not sure, because I've seen several different numbers, that
there were 4,700 Republican absentee ballots that he was involved with.
J: [There] may have been.
P: That's an awful lot of absentee ballots, and one could guess that a huge
percentage of those would probably be for George Bush.
J: No doubt.
P: There are a lot of factors to consider in this election, but this one made a
difference in the outcome of the election.
J: Well, obviously 537 votes made the difference, so we certainly know we were
dealing with more Republican votes that were cast as a consequence of there
being forwarded the ballots, far more than 537.
P: The Republicans appeal to Judge Debra Meltzin to throw out the lawsuit.
Although, as I recall, she was an appointee of Gov. Jeb Bush, she would not
allow them to do that. So you went ahead with the hearing.
J: Yes, we did.
P: What was your major legal argument? The fact that by doing this, the supervisor
of elections had broken Florida election law?
J: That's correct, that she had violated two statutes.
P: Is it not correct that if you falsify an absentee ballot, it is a felony?
J: It's questionable, as I remember it. I don't remember the law in particular, but
obviously we were not interested in bringing any criminal actions, so we did not
deliver what we knew to the state attorney's office.
P: But the point is, it's a serious violation.
J: Yes, it is.
P: I've talked to several other attorneys. David Cardwell's view was that it was not a
violation of Florida election law, it was more a violation of public records law. How
would you respond to that? Partly because, once the documents were in her
possession, they were, in effect, the property of the state. By allowing them to be
used by a non-state employee, that broke that particular law.
J: No, I don't think they have to be mutually exclusive, elections law and public
records law. I think you can have a violation of election law and public records
law, and in this instance I would suggest it was a violation of both.
P: It seems very clear, by the first statement you made, if you use the attempt to
resubmit these requests as a request in and of itself, since this individual was not
a relative or guardian to any of those on the request orders, that it is clearly a
violation of the law, is it not?
J: Yes, it is.
P: This is prima facie evidence. You can't do that.
J: As a matter of fact, as I remember it, there was a memo coming from the
secretary of state's [Katherine Harris] office which simply reiterated what the
statutes set forth. [It] said that, in the event that any absentee ballot request did
not comply with the provisions set forth in the statutes, they should be
P: One of the things that is going to eventually come up is, in order to win the case,
and ultimately, as we know, this gets to the Florida Supreme Court, you have to
demonstrate substantial noncompliance with the law. What exactly does that
mean in relationship to this case?
J: I don't know if we had to demonstrate substantial noncompliance in light of the
U.S. Supreme Court decision in the main case of Bush v. Gore. We were dealing
with a presidential election as opposed to a state election. Different rules [and]
different laws apply. This is why we would have been better off had we been
allowed to consolidate our case with the main Bush v. Gore case. To my
knowledge, I think the legal team who was representing Vice-President Gore
wanted us to consolidate both cases, but there was a political decision made by
someone that it would be better for the purposes of public perception to refrain
The reason that it would have been better to consolidate is [that] Barry Richard
walked into the U.S. Supreme Court and made the following argument: under the
U.S. Constitution, nowhere does it talk about the will of the people or suggest
that any ballots that remain uncounted, under-votes, over-votes, et cetera, take
precedence over strict statutory compliance. Another way of articulating that is,
the United States Constitution provides that every state shall devise its own
manner in which it is going to decide, via statute and law, to elect its slate of
electors. The Constitution provides that those laws, as enacted by each state,
must be strictly complied with. Period. He made that argument to the U.S.
Supreme Court when he argued that Katherine Harris's certifying the date on
which she did, and suggesting that the count not go forward, that she was correct
in doing so because the statute called for a particular date. The U.S. Supreme
Court came back and said to Barry, "You're right. In the event the Florida
Supreme Court, which had allowed the count to continue, had simply decided
that the will of the people trumped strict statutory compliance, then the Florida
Supreme Court was wrong."
However, in the event the Florida Supreme Court were deciding a conflict
between two statutes and resolving that conflict, [if] the manner in which they
resolved it could be construed as to allow the count to go forward, then the
Florida Supreme Court was correct. However, due to the fact that it was
somewhat of an ambiguous opinion, as I remember, the U.S. Supreme Court
said, "We can't tell, so we asked for clarification." They asked for a clarifying
opinion. If you remember, I think they took a little bit too long in terms of the U.S.
Supreme Court's case, and the U.S. Supreme Court slapped the Florida
Supreme Court on the wrist, so to speak. Ultimately, the Florida Supreme Court
came back and said there were two conflicting statutes, and our resolution of the
conflict allowed us to continue the count.
P: So, in effect, they said they were interpreting law rather than making law.
J: Right. In effect, Barry [Richard]'s argument was the same argument we were
making in the absentee ballot case, which is the Constitution provides that state
statute must be strictly construed. It's not a question of whether there are ballots
to be counted, under-votes, over-votes, or whatever the case may be, but there
is no provision in the U.S. Constitution that the will of the people trumps strict
statutory compliance. In fact, we had two statutes that were violated, and
therefore these absentee ballot requests should be dishonored. Now, Barry,
because we did not consolidate cases, was put in position where he could, and
did, take an inconsistent position in terms of his argument. Before one court he
would argue strict statutory compliance, [then] walk down the hall in front of
Judge Clark and say, "We're just dealing with technicalities here, and the will of
the people trumps strict statutory compliance." If we had consolidated the cases
as both legal teams wanted to do, then you could not take that inconsistent
position in front of the same judge.
P: Yes, it's certainly hypocritical in a way. To argue, as he said in this case, hyper
technicality, but in the other case, strict adherence to the law, that's an important
issue. Who do you think finally made that decision? From all the people I've
talked to, it seems Al Gore made it.
J: I'd be guessing. I really don't know, but this is all speculation. Warren Christopher
[and] Al Gore, at the time, were continually espousing the philosophy that every
vote should be counted. I know that after the fact, I think it was Mitchell [Berger]
who told me, the perception among the people making that decision ,whether it
was Al Gore or others on his behalf, [was] that the public would simply not
understand how on one hand they could argue every vote should be counted,
and we were arguing to invalidate these absentee ballot requests. We came back
and suggested, at the time, that the position could have very simply been that we
were arguing every legal ballot be counted. But again, absent of valid ballot
requests, no legal ballot could be issued. So we did not think our position and
their position were inconsistent.
P: This is the same kind of argument they ended up making with the military ballots
because they didn't want the public to see them trying to prevent military ballots
from being counted. The issue is, if ballots in, let's say, Duval County were illegal
because of an over- vote, and military ballots were illegal because they were
postmarked November 14th, as several of them were, an illegal ballot's an illegal
ballot. The difficulty for you was to, at least in legal terms, get that before the
J: I think we got it before the courts, but for whatever reason, Judge Clark decided,
and I don't know if we'll ever know why, that the voters themselves did nothing
wrong, therefore, those ballots should be counted. We took the position that it put
those voters in a special class. In my opinion, and I didn't discuss this with
Gerald Richman, it diluted the value of everyone else who comported with the
law. For instance, the same argument could be made that if we had a busload of
voters, and it doesn't matter what party they belong to, but for no reason of the
voters on this bus or the driver, a phantom vehicle drives the bus off the road and
they get to the polls at ten [minutes] after seven o'clock. Somebody [could] make
the argument [that] this is 7:00 PM, the deadline is just a technicality, [and] these
voters did absolutely nothing wrong so they should be allowed to vote.
Somebody drove them off the road. They would have been there at 6:30. That's
the kind of argument they made. In my opinion, what that does is, everyone else
who was on their way to the poll and perhaps ran into traffic thought they were
caught in a business meeting, or whatever reason, and realized they couldn't get
there by seven o'clock and chose not to vote as a consequence of that, then
you're diluting the entire pool if you don't apply the rules universally and fairly. In
other words, each vote is not given the same weight. I thought that was another
argument that, I don't know if we made it, could have been made if we did not
P: Part of the problem is also the remedy if you throw out all of the absentee ballots
because of the few spoiled, but that's fairly draconian. Did you propose at all that
a percentage be thrown out?
J: We did.
P: What was Judge Clark's reaction to that?
J: As a matter of fact we put on an expert. I forget the gentlemen's name. He had a
doctorate and I think he was associated with [the] Treasury [Department], I'm not
sure what [he does], from one of the Ivy League schools. He had come up with a
formula statistically by which to randomly select several thousand rather than all
the absentee ballots [to throw out]. Apparently, she just didn't buy the theory.
P: Of course, part of the problem is, you really couldn't identify which ballots had
had the requests.
J: That's correct.
P: So, in that sense there was a difficult choice for her. Now some of the other
cases, for example Boardman v. Esteva (1972), it was the same sort of hyper
technicality. They had fouled up the envelopes for the requests. Since there was
no showing of tampering with the ballots, the Florida Supreme Court allowed
those votes to count. Same thing I think in the Beckstrom (1998) case, where the
Court said, since there was no fraud the votes would be allowed. It seems to me,
from previous cases, there had been some precedent for allowing the votes to
count even though there were some technical problems.
J: But as I remember it, those cases dealt with state elections. We were, therefore,
dealing with the Florida Constitution, and I think the Florida Constitution does
take into consideration the will of the people when it comes to election law. The
United States Constitution does not. You can't argue state law when it comes to
the presidential election. Federal law would apply, which is, again, the U.S.
P: But when you appeal to the Florida Supreme Court, you obviously had to deal
with those issues, did you not?
J: Oh, certainly. We certainly argued those issues, but I think what takes
precedence would be the federal law as it relates to the U.S. Constitution, as it
relates to a presidential election.
P: How important was the Florida Constitution and the Florida Supreme Court ruled
this in the 7-0 and again in the 4-3 decisions, that the intent of the voter is what
should be dominant in any election? Was that a basis for any kind of argument
J: I think that's ground to appeal, as well as several others as I remember it. For
whatever reason, we were dissuaded from doing so. We were given some
indication at the time that the vice-president was going to concede [the election]
and that it would be foolish and foolhardy to take an appeal.
P: But at some point, you intended to appeal the Florida Supreme Court decision to
the United States Supreme Court.
J: That's correct.
P: Talk a little bit about the Florida Supreme Court decision. This was the decision,
and the way they did Martin County and Seminole County pretty much at the
same time, they very quickly, in a very short opinion, rejected your suit. What did
you think of their reasoning?
J: Number one, we were denied oral argument. We weren't given an opportunity to
argue our case before the Florida Supreme Court. It appeared to us, based on
the opinion, [and] I haven't read it in quite a while, that it was a very hasty
decision and it was something that they simply chose not to [take]. If I were to
guess, the Florida Supreme Court simply did not want to engage in any type of
act which would cause it more controversy, no more controversy than they
already had with regard to this election. They simply wanted to put things to bed.
The Supreme Court opinion obviously acknowledged the fact that there was
wrong doing on the part of the supervisor, but I guess, reading between the lines
as I remember the opinion, the wrong doing did not reach the threshold by which
the Court would declare that all the ballots be set aside.
P: In fact, Judge Clark said, not only was it bad judgement, but Sandra Goard did in
fact break the law. Was there any difference in what happened in Martin County?
Peggy Robbins actually allowed the Republicans to take the ballot requests out
of the office, which seemed not only bad judgement, but, again, a violation of
state law. Did that help at all?
J: No. I don't think it helped or hindered our case, it just raised some questions. The
question that was raised, of course, was the fact that, for the first time in our
knowledge, two judges who were on two different cases, Judge Clark as well as
the judge on the Martin County case, were conferring during the course of the
trial and, obviously, on reaching the decision.
P: This is Judge Terry Lewis, who was hearing the Martin County case?
J: Correct. [They] had conferred during the course of their deliberations and then
had obviously decided to offer a decision, which was basically the same decision
in each case. We thought that was highly unusual that two judges would confer
when we obviously had different evidence that was being introduced at the time.
P: That's why I'd asked that question, because their two decisions are almost
exactly the same, and they were issued at the same time.
J: Yes, they were.
P: Isn't it also a little unusual that the Martin County case started at 7:00 and then
Judge Clark started at 8:30 or something. I guess it was to allow Barry Richard to
go back and forth.
J: That's correct.
P: Isn't that highly unusual as well?
J: It's somewhat unusual. To me that was a lot less unusual than two judges
conferring during deliberations with regard to, perhaps, the same subject matter,
but the evidence and the facts were certainly different.
P: Do you think you got a fair chance before Judge Clark to present all the
information that you wanted to?
J: Yes, we did. In terms of how she conducted the trial, I think she did an excellent
P: The Republicans, interestingly enough, tried to recuse her because she had been
passed over for a position on the First Circuit Court of Appeals by Jeb Bush.
That's a rather limited basis for recusal of a judge, is it not?
J: It is. If I were to be somewhat Machiavellian, I wonder whether or not they
brought that motion because we did not know at the time that her sister was the
chair of a department or a director of a department for George W.'s father,
President Bush. Perhaps that may have been some reason to explore recusal. Of
course, we didn't realize it until after the case was concluded. So being
somewhat Machiavellian, one wonders whether or not the Republicans were
attempting to use that motion to more or less put themselves in a better position
should we find out with regard to her sister's position, but I don't think that would
have been grounds for a recusal either, quite frankly. We do have a quota of
public influence in the media, and, certainly, if that had come to light it would
have played a part, in terms of the media's perception of fairness.
P: While we're on that subject, just about everybody I've talked to says that the
Republicans won the public relations battle. If so, I wonder how important that
was in the scheme of things.
J: How important it was? I'm not sure how important it was to Judge Clark. Judge
Clark came across to me as a very strong individual, as she was certainly in
control of the courtroom. I think she did what she did for reasons outside of any
influence by the media whatsoever.
P: I just talked to Justice Major Harding of the Florida Supreme Court, and he
admitted, as all judges do, they are somewhat influenced by what goes on
around them. They can't be totally isolated. There's some sense that maybe the
U.S. Supreme Court, watching television and hearing Republicans say, "This
chaos in here, people are eating chads, there are chads on the floor," and the
stopping of the Miami-Dade recount, believed it needed to bring some order to
what was a chaotic situation. Do you think that's a factor in a judge's mind?
J: A factor? No. If I were to say anything, I would say the U.S. Supreme Court was
far more political in its five-four decision in determining that it went to the
P: I also wanted to ask you very briefly about your appearance on the television
show Hardball with Chris Matthews. I think this was late November. What was
your main motivation to go on Chris Matthews's show? Were you looking for a
forum for your views?
J: I went on a lot of shows at the time. At the time, I was attempting to what we
spoke of earlier, which is influence the public and more or less present a
counterpoint to what was being said.
P: How effective was Jim Baker [spokesman for George W. Bush in the election
controversy; U.S. Secretary of State, 1989-1992] in all of this?
J: I think he was very effective. By the way, just to clear up a record with regard to
Chris Matthews, as I remember it, I was on his show twice. The second time he
had referred to me as lying, nationally. Now, I think what they were talking about
is, as I said earlier, initially, when I dealt with people at the Florida Democratic
headquarters I never called and asked a question [in this way]. I said "Look, I
would never call and say I came across this incident and here's what I'm thinking
of doing, Mr. Attorney [who's-volunteering], and tell me if I'm on the right track." I
never said to them or prefaced my conversation with "Tell me what your official
capacity is. Are you paid? Not paid? Are you a volunteer? Do you know the vice-
president? Don't you know the vice-president?" I simply would ask a question of
a volunteer and say, "Are you familiar with election law?" [And they would say,]
"Yes, I am." "Well, here's what I'm thinking of doing, tell me if we're on the right
track or not."
However, as we walked farther down the road afterward, I did come to learn [a
number of people], like Mitchell Berger, had a more integral part than just being a
volunteer. So during my deposition I mention it, that people who I had originally
dealt with, that initially I had thought were just volunteers like myself, turned out
to have a more vital role on behalf of the vice-president. Someone had supplied
some information, and I think they did it out of context because I never lied.
Somehow they had supplied some information to Chris Matthews and others,
because somewhere, at some [web]site, we just came across it during my
campaign for Congress, that there was some memo that was being forwarded by
the Republican Party to the electronic media concerning me. We were never able
to get our hands on that particular memo.
P: Somebody like Matt Drudge?
J: It was published on some websites because, as you might be aware of, when
you run for elected office, they do research on you, and you do research on
yourself as well as your opponent. We came across this website that indicated
some memo had been forwarded. But again, we tried to track it down because
we wanted to know what was being said, and we could never track it down.
P: In the discussion of public relations, someone that I talked to has argued that Jim
Baker was willing to do, in effect, whatever it took to win. In other words, the
bottom line was winning. They said that Gore and the Democrats seemed to be
too concerned with the issue of public opinion and how it would play politically.
Did you get a sense of that?
J: Yes. The sense I had, and although we're not talking about this election, it was
no different. The Republicans in this instance went to Jim Baker and said, "Do
whatever it takes to win [and] we'll worry about the public later," whereas the
vice-president was more inclined to be considerate of the consequences of what
he was doing, in terms of the public. The difference is winning and losing. [The]
Republicans did anything [and] said anything that it took to win.
P: After you had appealed this case to the Florida Supreme Court, did you, at that
point, talk with any of the individuals who you knew were on the Gore team,
people like Ron Klain?
J: I talked to Ron Klain in passing. Actually, [he] wouldn't talk to me. I talked to him
[when] I was being interviewed in Tallahassee [by] CNN outside in one of the
tents. I saw Ron Klain, I recognized him from television, walking the other way.
This was shortly after they filed the motion to consolidate the cases, I believe, our
case with their case. The Republicans filed that. I mentioned that we had just
gotten a motion, and I may have said something like, "It might be a good idea."
His only comment was, "That's very interesting, thank you very much," and [he]
P: So you didn't get any legal help or financial help or anything like that from the
P: Were you upset that they didn't help you?
J: No, I understood why. I mean, they made it known right away when I called.
P: Would it have made any difference in the long run?
J: I don't think so.
P: What would have happened if you could have appealed it to the U.S. Supreme
J: Oh, would it have made any difference if we consolidated the cases? Yes.
P: Yes, I understand that. If you had consolidated and they had supported you, and
then you would have appealed it to the U.S. Supreme Court, would it have
J: No. I don't think we would have appealed it. They could have used us. Talking
after the fact, they would have used our case by way of obtaining leverage for
either a statewide recount, or used it as a bargaining chip to get what they
wanted. Because once the cases were consolidated, then of course, they knew,
as I mentioned, that you could not take an inconsistent position in front of the
same judge. You couldn't argue strict statutory compliance with regard to the
main case in chief, and just that we're dealing with hyper-technicalities in our
particular case. It just doesn't make sense. So as a consequence of that, they
could have given up our case, for instance, if they wanted a statewide recount, or
anything else they wanted. They could have used it as a chip from which to
bargain, and that would have been fine with me.
P: What about the decision, and I've talked to Dexter Douglass and Mitchell Berger
and Ben Kuehne and some of the other attorneys, about going sooner to the
contest phase? The Florida lawyers had advised Gore to do that. In the end,
would that have made a difference?
J: I don't know. I really don't know if it would have made a difference.
P: Certainly, it would have been less chaotic if you had a judge counting the votes.
If, for some reason, they had amended their first motion to Judge Lewis and
proposed the contest, it could have resulted in a different outcome, could it not?
J: It's possible. Whether's it's probable, I really don't know under the circumstances.
[End of side Al]
P: Comment, if you will, and I know you're not directly involved in these cases, on
the argument that the Florida Supreme Court was "a liberal Democratic court"
and was, therefore, partial to Al Gore in its decisions.
J: Suffice it to say, I think behavior speaks louder than any type of rhetoric. In fact,
at the Florida Supreme Court there, what it did in our case, it could have decided
the election in favor of the vice-president very easily by simply stating that there
must be strict statutory compliance, that we were correct in that the absentee
ballot requests should have been invalidated and no ballots should have been
issued. Certainly, the election would have been decided in favor of the vice-
president. The Florida Supreme Court did not do that. Therefore, simply said, the
Florida Supreme Court, as a matter of fact, could have used the U.S. Supreme
Court's most recent decision that had just come down as precedent to make that
decision. We know that the U.S. Supreme Court had slapped the wrist of the
Florida Supreme Court. The Florida Supreme Court would have had a very easy
time using that case as precedent by which to invalidate the absentee ballot
requests. So I don't know how anybody can say we're dealing with a liberal court.
P: What would the U.S. Supreme Court have done if the Florida Supreme Court had
made that decision on the Seminole County case?
J: I personally think they would have been stuck. They would have been very hard
pressed to invalidate statements that they had made via their opinion just a week
or so earlier.
P: Also, it should be pointed out that the Florida Supreme Court voted against Gore
on the butterfly ballot, on resuming the Miami-Dade count, and both the Martin
and Seminole County cases. So, several decisions, and then the four-three
decision, does not indicate a 7-0 liberal Democratic court, does it?
J: No, it does not.
P: Give me some analysis, if you would, of this four-three decision. The key factor
here is the choice of November 26th, to extend the certification to that date. The
Republicans argue that by doing that they are making the law rather than
interpreting the law.
J: I wish I could provide you with in-depth analysis. I don't really remember the
particulars other than the fact that they had, what I thought, was good reason to
continue the count at that time. We're talking about the Florida Supreme Court
here [and] that there were two statutes in conflict at the time. In resolving the
conflict, I think it was a valid decision.
P: Were you surprised that the United States Supreme Court even took the case?
Justice Ruth Bader Ginsberg [U.S. Supreme Court Justice, 1993-present] said
this was a state problem. Judge Middlebrooks [of the District Court for the
Southern District of Florida], in his decision, said it was a state problem, and it
should not be a federal issue.
J: Well, certainly, based upon the history of the Court, they should have refrained
from taking it.
P: Were you surprised that the Fourteenth Amendment, the equal protection clause,
was a deciding factor for a conservative [William] Rehnquist [Chief Justice of the
U.S. Supreme Court, 1986-present] Court?
J: I think this was a question of the difference between deductive and inductive
reasoning. They had decided what the conclusion was and found ways to reach
that conclusion. In this particular instance, I thought it was far more political than
P: Judge Richard Posner [7th Circuit, U.S. Court of Appeals; author of Breaking the
Deadlock: The 2000 Election, the Constitution, and the Courts] looked at it a little
bit different in his book. He said that it was not a very strongly argued
constitutional decision, but it was a pragmatic decision, which, in effect, ended
the possibility of a constitutional crisis. What would be your reaction to his
J: I wonder if the Court would have been concerned with a potential constitutional
crisis in the event the decision would have favored Al Gore and he would be the
P: How would this have worked? Let's just say for some reason Al Gore got ahead
in the recount. Would the Bush team now be saying, "We've got to count every
J: They may have been. But [to] the Bush team, and many of the Republicans on
board, it was simply a question of obtaining the end, whether the means to an
end, in terms of process. I mean, we have a gentleman who's now in charge of
the Congress on behalf of the Republicans, Mr. [Tom] DeLay [U.S.
Representative from Texas, 1985-present], who bragged publicly at the fact that
he had sent a staff down to disrupt the vote. This is a man who is supposed to be
a public servant and a protector of the process, who brags about violating the
very process by violently disrupting the continuing of the hand count in Dade
County. Of course my former opponent, the former Speaker of the [Florida]
House [of Representatives], Mr.[Tom] Feeney, had attempted to put together a
special slate of electors. Regardless of the outcome of the Court, he would have
taken that slate if it was the wrong outcome to Washington to decide the election
in favor of George W. Bush. This was the type of behavior, character, demeanor,
that we were dealing with. This was a party that would do anything to obtain its
P: And they did.
J: Yes, they did.
P: Let me talk about Tom Feeney a little bit. He argued that under Article Two,
Section One of the U.S. Constitution, the Electoral Reform Act of 1887, and 3
U.S. 5, a U.S. code, that elections are, in fact, the responsibility of the legislature.
He was saying that we have to protect the right of the Florida voters to be heard,
and if we don't get that issue resolved by December 12, which was the Safe
Harbor day, the legislature was going to present a slate of electors. What's your
reaction to that argument?
J: My reaction is simply that once those laws were enacted by the legislature in
determining how the electors would be elected, then it was up to the courts, if
there was a dispute, to resolve that dispute and any conflict, not the legislature.
P: One constitutional expert said, in writing about this, that the legislature
determines the method. The method was the vote, so their job was done.
J: That's correct.
P: Then the vote is the will of the people, "not the will of the legislature."
J: They determined the modus operandi by which these individuals are going to be
elected. But if there is a question as to the election itself and a controversy, then
that controversy should be resolved by our courts. That's the purpose of the
P: That's a good example of the 101-102 Florida statute about shall and may, the
ballots shall be counted/may be counted. Well, obviously that's not very clear, in
terms of what it means in the law. There is an argument that this was a very
dangerous precedent because, if the legislature, which is controlled by the
Republicans, a Republican governor, and Republican secretary of state,
determines they don't like the outcome of the election, they can simply vote in a
second slate of electors. If that had been carried out, Bush would have won.
J: That's correct.
P: They would have split the House and Senate and it would come back to the
governor, and I think we know how he would have made a decision.
J: No doubt about that.
P: Constitutional experts that I have read believe that is a very dangerous
precedent. So in California, if the Republicans win, the Democrats control the
legislature, so they can always send up a second set of electors.
J: They could find reason to, that's correct.
P: Why do you think the House voted to seat the electors and the Senate never did?
J: For the same reason the House voted as it did often times at the behest of Mr.
Feeney. Apparently he had a great deal of influence. He's Speaker, he controlled
the House. Nothing got by him.
P: Do you think he did that at the behest of Jeb Bush?
J: I'm sure he took Jeb Bush's opinion into consideration. Tom Feeney is to the far
right, and that may be an understatement. As a consequence of that, he believes
as he does.
P: So this is another example of win at all costs?
J: Oh, most definitely. I mean, we may not want to get into it, but the same kind of
thing occurred during this election where I opposed Tom Feeney [This was] not
only in my race. I was somewhat intimately familiar with Buddy Dyer
[unsuccessful candidate for Florida attorney general, 2002; Florida state senate,
1992-2000], Bob Butterworth [Unsuccessful candidate for Florida senate, 2002;
Florida attorney general, 1986-2002], [and] historically [Bill] McBride's
[unsuccessful candidate for Florida governor, 2002] race as well as my own race.
In each of those races we were inundated with political television spots that
inaccurately distorted the truth, lied, and I never saw the same thing coming back
our way. In other words, I didn't see Bob Butterworth lying, Buddy Dyer lying,
McBride lying about [Jeb] Bush's record, or myself about Feeney's record. Yet
the Republicans would say anything and do anything to win, and apparently it
worked. They ran ads in my campaign saying I was attempting to disenfranchise
15,000 men and women serving in the military. [The Republicans charged] that
was the focus of the lawsuit, which, as you know, it was not. They distorted my
record when I served on the Altamonte Springs Commission, which two different
networks said it was just a lie and distorted. But they would say anything and do
P: Do you think Feeney regrets actually having taken that vote? Because in reality
they didn't need to take that vote.
J: No, absolutely not. As a matter of fact, I think he put it in his pocket as political
capital in which he could come back to Washington, when he was considering
running against Darrel McLean, who was the Republican chair of the Seminole
County Commission, in the primary, [and use] that as capital by which to get
people in Washington, if not Jeb Bush himself to dissuade Darrel from running.
P: Which is what happened.
J: Which is what happened.
P: Do you think there is any impact of the 2000 election on your recent
congressional campaign against Feeney? [Jacobs was the Democratic nominee
in Florida's 24th U.S. Congress District versus Tom Feeney, the Republican
candidate. Feeney won the election.]
J: Very much so. The difference is in terms of speaking the truth. The [Orlando]
Sentinel picked up that we outspent him three to one, which was very surprising.
In fact our experts, Baldwick, are guesstimating, as well as our media
experts, that between soft money and hard money, Mr. Feeney, down the road
we will find, that they spent between $7,000,000 and $7,500,000, which is a
fraction of what we spent. Because the majority of the television spots that were
being run by the statewide Republican Party. [They] were not being run by Mr.
Feeney. So that's what our guess is, $7,000,000 to $7,500,000. Even after the
election, in his little victory speech, he spoke about being somewhat shocked
since we had outspent him three-to-one. When there is even no reason to lie, he
P: Plus, I think it's pretty clear [that] in every race in the state, the Republicans
outspent the Democrats by a huge amount, particularly in the gubernatorial race.
If you take in all of the ads that were, in effect, for Jeb Bush, regardless of the
J: There is no doubt about that. He attempted to make our absentee ballot lawsuit a
very partisan issue, which it was.
P: While we're on the subject of partisanship, how did you perceive the actions of
Secretary of State Katherine Harris? Did you see her as partisan or non-
J: There were times when I thought that she was being partisan; there were times
when I thought she was being non-partisan. At all times I think she was a pawn
of Jeb Bush and the Republican Party.
P: Do you think it was a bad decision for Mac Stipanovich, who is a political
operative, to go over and sort of help her through the crisis? It certainly was a
good decision on the part of the Republicans.
J: Right. Yes, as it turns out I think it was a wise decision for the Republicans. Do I
think it was wrong? I'm sure [it was], but ultimately they prevailed.
P: If you look at her decisions, all of them favored George W. Bush, but none of
them violated the strict legal requirements. Even something that was probably
not a wise decision for her, opening on Sunday to receive the recounts instead of
Monday at nine o'clock. In fact, Mac Stipanovich said, "We should have opened
Monday because, although by law the Court gave her a choice [and] she
exercised her discretion, politically speaking, it would have been better to open at
nine. But legally she was on sound ground." What about Jeb Bush? How did you
view his participation in this election?
J: Obviously partisan. I mean, needless to say, he's a Republican, he's a member
of the same family, and he certainly did everything he could legally to use the law
as best he could to see that his brother prevailed.
P: But that's understandable. Had it been a Democratic governor, the Democrat
would've probably done the same sort of thing.
J: No doubt about it.
P: Do you see him as orchestrating any of the activities of the Florida House,
Senate, Secretary of State?
J: No. If I were to guess I'd say he was taking his marching orders from Jim Baker
and the legal team. I think Bush put that team in place, and there weren't going to
be two quarterbacks here, or two captains. We had one captain, that was Jim
Baker, and I think Jim Baker was calling the shots and using whatever resources
he had available, including that of the governor's office.
P: Certainly on a public level, [Governor Jeb Bush] stayed pretty much out of the
basic process, but he indicated that he supported the special session of the
legislature. [He] said that it was a courageous act and said if they passed a slate
of electors for George W. Bush he would sign it. That seems to be a little bit
beyond a non-partisan position, but again, you could argue, "Well, it's his
J: Yes. If the shoe were on the other foot, I'm sure that if a Democrat had a
Democratic brother who was running in the same shoes of George W. Bush, he
would do the same thing. [That] doesn't necessarily make it right, but one would
suspect they would do the same thing.
P: Politics is politics. What about the criticism of the United States Supreme Court?
Alan Dershowitz [lawyer; professor, author] and others said that the decision, and
I don't want to be too hyperbolic here, was criminal and that they had disgraced
the Court. How would you assess the Bush v. Gore 5-4 decision from a legal
standpoint, and did it undermine the credibility of the United States Supreme
J: I think it certainly went contrary to the history of the Court in terms of federal
rights versus state rights. If one were to look at historical legal precedent, then
one would think that the state had a right to decide this election by whichever
manner it decided to decide the election. However, Americans have a short
memory. As a consequence of that, I think the Supreme Court is very well aware
of the fact that if it brought this to an end as it did, from a pragmatic standpoint,
[a] political standpoint, that in the end it really wouldn't make a difference, it
would be accepted. And it was.
P: What about Justice Stephen Breyer's [U.S. Supreme Court, 1994-present]
suggestion? He was one of the four justices who dissented and said that there
was still time, that they could have remanded the case back to the Florida
Supreme Court and they could have somehow...
J: There was time.
P: So you don't see the December 12, Safe Harbor day as....
J: No, there was time to continue the count if that's what the Court decided.
P: But the Florida Supreme Court, at this point, pretty much realized the game was
J: At some point, yes. It was either at that point or somewhat earlier. But again,
needless to say, I'm on the other side of the court of public opinion with regard to
whether it's a liberal court or not. I think that some of the decisions the Florida
Supreme Court was making was not a consequence of their favoring Democrats
or Republicans. I think, in some instances, they were taking what it considered
it's own best interest in terms of making a decision, that they were seeking to
avoid continuing controversy.
P: Is there any precedent in this decision? They indicated that it just applied to this
election. Do you think that from now on any issue that has some Fourteenth
Amendment problems will be appealed to the courts?
J: It certainly could be mentioned whether or not they've taken into consideration in
ultimately making a decision. I don't know, because as you mentioned, it did say
it was limited to this particular election.
P: Justice John Paul Stevens [U.S. Supreme Court 1975-present] dissented
strongly. He said, "The decision was wholly without merit, the nation's confidence
in the judge as an impartial guardian of the rule of law has been undermined."
That's pretty strong for a justice in a dissent, is it not?
J: It's very, very strong. I think to this day you'll find half the country agrees with him
and half the country thinks that it made a right decision, because half are
Republican and half are Democrat. I think that the vast majority of Democrats
would agree with the justice that it was a political decision.
P: What has been the impact of the 2000 presidential election on Florida politics,
especially the elections of 2002?
J: I would have liked to say that I would have thought, in hindsight, that it would
energize the Democrats to get out and vote, but this last election [has] obviously
showed us just the opposite. The Republicans got out and voted and the
Democrats stayed home. That was not only here though, that was also across
the entire United States. So I'm not sure. I think if anything, it energized
Republicans and had little or no impact on the Democratic base. In other words,
it didn't motivate them to vote [and] it didn't motivate them not to vote. It simply
had no impact.
P: In effect, the Democratic Party in the 2000 election, depending on how you look
at it, almost won Florida with a Republican legislature and Republican governor.
So, from the Republican point of view they might say, "Well, we don't want it to
be that close again." In that sense, it may have energized them. Isn't it pretty well
accepted that the Democrats in this state have to get labor and minorities to the
polls, and if they don't get them out in large numbers that they can't win?
J: That's true. Looking at this last election, and looking at it throughout the United
States, quite frankly, I think the deciding factors were September 11 [2001
terrorist attack on the World Trade Center and the Pentagon], the War against
Terrorism, and perhaps, I'm not sure it would have made a difference, that there
was no unified message coming from Washington with regard to an alternative.
You know, "We consider this," whether it was a tax relief act or some other
economic domestic policy. "This is the better way, and this is why it's the better
way. If you vote for our candidates this is what you can hope to get." There was
no unified message coming, so a lot of people were blaming [Richard] Gephardt [
U.S. Representative from Missouri, 1976-present; House minority leader, 1983-
2002] and [Tom] Daschle [U.S. Senator from South Dakota, 1987-present;
Democratic minority leader in Senate] and others for not putting together a more
coherent message and delivering it.
I'm not so sure, personally, whether that would have made a difference. I think
that the president's willing to expend political capital by making these frenzied
trips around the United States, campaigning on a national level saying that we
need these members of the House and the Senate as allies and to fight this war
against terrorism to help in this potential war against Iraq. [He] rallied
Republicans [and] they came out in large droves. Now, we as Democrats did
gain a number of governors, but I think our situation here in Florida was a little
more unique. People were saying that when it comes to voting for a governor,
one doesn't look to the president or foreign policy. But in this instance, of course,
our governor was aligned with his brother, and I think that the Republican
conception was that supporting Jeb was supporting George W.
P: Oh, absolutely, because they're looking to the 2004 election.
J: Exactly, and therefore, that same philosophy would not be true in other
governor's races where democrats did prevail over Republicans. Maybe Terry
McAuliffe [Democratic National Committee chairman, 2001-present] helped
spread that on by saying, "We need this race."
P: In fact he said, "Jeb is done, we're going to get him."
P: That was not an intelligent statement because you knew that they were not going
to let the president's brother lose, whatever it cost.
J: I agree with that. For me, this last election, and the direction we're now moving,
is very frightening in terms of civil liberties, the justice system, [and the] economic
system. [It] just frightens me.
P: The Republicans not only have a stronger margin in the House and the Senate,
they have the governor and they have all the cabinet. That's the first time in
history. So they are obviously very strongly entrenched in Tallahassee. What was
the impact of the 2000 presidential election on you personally?
J: Well, being in Seminole County, which as we know is very Republican, it
probably cost me any number of clients personally, as far as the law firm is
concerned. There were people who certainly think I did the right thing, and there
were other people who think I did the wrong thing. There are those individuals
that you could sit there and explain the law from now until doomsday, and they
will simply walk away and say, "You did it because Al Gore suggested you do it.
There's nothing legal about it, it was purely partisanship." But that's life.
P: In that sense, it's very clear that, like Tom Feeney wanted Bush to win, you
wanted Gore to win.
J: Well, there's no doubt about that. I mean, I was campaigning for Gore before,
raising money, [and] gave substantial money to the presidential Democratic
P: By the way, is it something that ought to be changed? We're no longer going to
have a secretary of state, but the fact that she was an official member of electoral
team for Bush in Florida, she had an official position....
J: Yes, I think that's wrong. I think it was wrong, [and our] Attorney General, Bob
Butterworth, and I consider him a friend, I think it's wrong for any elected official
to have an official position. I'd go a step farther [and say that] although everybody
has a right to be a member of a party, I think we'd all be better off if the
supervisors also ran on a non-partisan basis rather than as a Republican or a
Democrat supervisor of elections. Going a step farther, I'd suggest that we have
a national holiday on Election Day. I mean, if we want more capable volunteers
other than our senior citizens, and God bless them, but we don't have enough of
them to go around, [by] using teacher and other employees, if we had a national
holiday on Election Day, we'd see the vote numbers increase and less problems
at the polls.
P: One thing some political scientists expected after 2000 was that thought people
would realize, "Your vote really counts. People now know what elections
supervisors do. They know more about ballots and that sort of thing." But the
turnout was not as high as expected, so it did not have a positive impact in terms
of voter turnout like some thought.
J: Yes, there's no doubt about that. I think some of that we have to take
responsibility [for], as the Democratic Party, that we didn't provide alternative
messages, and we didn't provide enough of a reason to get the Democratic base
out to vote. But on the other hand, again, I think September 11 changed the
P: Although the technical aspects were obviously much better. In the primary there
was some difficulty, but now it is pretty well accepted that the technology that we
have in the state of Florida was very efficient in recording votes accurately.
J: Definitely, I agree with that.
P: How would you characterize the press and their depiction of you and the state of
Florida? Were they fair?
J: [It] depends [on] which newspaper.
P: [laughing] Well, be specific.
J: If I remember correctly, and I don't remember the articles all that well, but, for
instance, I thought the St. Petersburg Times did an admirable job of being non-
partisan in covering the election. On the other hand I found the [Orlando] Sentinel
to be biased, but then again, it's a Republican paper. In this past election, I
received two out of three endorsements, [the] Today paper in Brevard County,
and the Daytona Beach Journal in Volusia County. I received their
endorsements, and reading those and comparing them to the Sentinel's
endorsement of Tom Feeney with regard to me, you'd think they were talking
about two different people. Of course, they endorsed [Jeb] Bush as well. [They]
then went on to say in their endorsement of Bush that here's a governor who has
cut several billions of dollars in taxes when he shouldn't have. Our public school
system is in poor shape. He campaigned on cleaning up the Department of
Children and Families, and yet they're not responsible [and] can't find the
children they've been entrusted to serve. But despite all that, he's a leader and,
despite facing a billion dollar deficit in the next coming legislative session, he
should be reelected, which is absurd.
P: I've talked to Lucy Morgan and Tim Nickens, both of whom were political
reporters for the St. Petersburg Times. It really impressed me, and generally
speaking we would consider that a liberal Democratic paper, that they really tried
to report what happened accurately and fairly. Did you find that the reporting by
the news services, by CNN and NBC, [and] the networks, did they do a good
J: As far as the absentee ballot lawsuit the answer is yes. I think, generally
speaking, the networks, especially CNN, MSNBC, all the national electronic
outlets, did a fairly reputable job of reporting the facts accurately. I think certain
newspapers were a little more biased than others.
P: One thing that I'd forgotten to mention was that for a long time the Seminole case
was really sort of under the radar, wasn't it? Everybody was focusing on the
butterfly ballot and all of these other issues in the four counties that were
recounting. Do you find that you had sort of a hard time getting people to pay any
attention to this case?
J: No. I think the media started coming to us at some point. Maybe [it was] after we
got to Tallahassee, although I remember being interviewed beforehand. We
weren't out there seeking to make our views known publicly at that particular
time. We were more interested in concentrating on the legal consequences of the
case and preparing a case.
P: Are there any interesting stories or things that happened to you during this period
of time that you can relate?
J: Interesting stories?
P: Interesting people you met or talked to. Were you on Larry King at all?
J: I was.
P: What did you think of that experience?
J: I think I was probably on every major talk show that I wanted to be on. Some I
chose not to be on that I felt [were] somewhat biased. For some reason I
remember Hannity and Colmes was one that had asked me several times to be
on it and I said we have no desire to be on it. I thought Larry King threw softball
pitches and allows anybody he's interviewing to hit a home run, as he did with
Vice-President [Dick] Cheney when Cheney was on before the election, if you
remember. As a matter of fact, interesting stories, I wound up spending about
$50,000 of my own money in producing a spot that was done by Joe Slate White
of Buffalo, New York. That was a spot depicting a child from Myanmar, which
was formerly known as Burma, and chronicling to a small degree Cheney's
presidency at Halliburton and what occurred.
Starting at the beginning, I had picked up the Wall Street Journal one morning.
Under its foreign relations column, I think the gentleman's name was Peter
Waldman, who had written a lengthy article detailing the outcome of a federal
court case where it was a Republican judge that had dismissed a case brought
by some citizens. What that article set out was the fact that Halliburton, while
Vice-President Cheney was president [of the company], if you would go to its
website, according to the article, there was no mention of a contract that
Halliburton had with the country of Myanmar to lay a pipeline connected to a
pipeline in Thailand, [and] that was one of the largest contracts it had back in
1994-1995. The author brought to the attention of the reader the fact that that's
somewhat surprising, since it was one of the largest contracts Halliburton had.
The allegation was that the infrastructure for the pipeline was being built by men,
women, and children being forced into slave labor. When they went to the Vice-
President at the time through a spokesperson, he said that it's unfortunate, but oil
and gas isn't reserved to Democratic countries. He himself, through Halliburton,
was not using men, women, and children being forced into slave labor. When the
same question, as I remember it, was asked, what about the infrastructure, he
had no comment. To me, that did not speak well of the man's character. There
was nothing other than pecuniary dealing for entering into this contract, and the
fact that we were dealing with a regime that I think President Reagan had shut
down our embassy at the time as a consequence of human rights abuses, and
the fact that the military head was now controlling the country. So, I ran this spot
hoping to encourage people to take a look at his tenure at Halliburton, and
unfortunately that's about broke, nationally. I ran it here, locally. I disseminated it
to all the national media, but it broke at the same time as [news of] George W.'s
DUI broke, so it was obscure.
P: I noticed that we didn't see much of Cheney in 2000, and he was virtually non-
existent in 2002. Why do you think they didn't use him more? He was used
privately to raise money, but seldom in a public forum.
J: Well, it could have something to do with the fact that Halliburton is still under
investigation by the Securities and Exchange Commission.
P: So, he avoids having to answer questions from press?
J: Oh, there's no doubt about that. He wouldn't let the press near him when he was
down here raising money for Tom Feeney.
P: That's why I specifically asked that question.
J: And if he does, the press is informed in advance that he will entertain no
questions with regard to Halliburton and the continuing investigations, so the
questions aren't asked.
P: But they didn't even get a chance to ask when he was here this time.
J: No, that's correct.
P: Any other stories? I'm glad you brought that up because I had that on my list and
I had forgotten to ask it. Anything else?
J: No. Other than the fact [that] the first time I'd ever spoken to the Vice-President
[Al Gore] was probably several months [later, while] he was still Vice-President,
but it was all after the election and the fact that George W. was now our
president. I received the call in my office, or my secretary had buzzed me and
told me that the vice-president's secretary was on the telephone and wanted to
know whether it was a convenient time for me to chat with the Vice-President. I
told Margie, my secretary legal assistant, that I thought this was a very
convenient time and I'd be happy to take the phone call. He was just calling to
say hello and thank me for the efforts I made.
P: I thought that was part of where he really excelled at the end of this. Some
people have argued that his concession speech was the best speech he'd made.
If he had presented his case that way throughout the campaign, he might well
J: I think that's probably very true.
P: What significance did the butterfly ballot and/or the Ralph Nader candidacy have
on Gore's performance?
J: I don't think Mr. Buchanan received the number of votes [he got] according to the
butterfly ballots. Obviously, the butterfly ballots could have decided the race. We
could have decided the race. Certainly if Nader was out, and the Green Party, I
think it was 95,000 votes [that went to it] if I'm not mistaken, the majority of those
would have gone to Gore. There's no doubt in my mind.
P: When you look back now, based on some of the re-voting analysis done by
Miami-Herald, St. Petersburg Times, USA Today, New York Times, and all of
these papers, who do you think won the state of Florida in 2000?
J: A consensus is that the Vice-President would have won.
P: But we can never really know that, right?
P: Because in looking at some of these recounts, each of those used different
J: Just like all counties.
P: Exactly. The final issue for me was, when you deal with the Fourteenth
Amendment, something that Judge Middlebrooks said in his opinion, "Well, of
course it's different standards. There's sixty-seven different counties. That's the
way we've always done it." If you would carry that conclusion to its logical end,
every county in America would have the same standard.
J: Or should have.
P: Or should have, or the same machine. That seems a little illogical, does it not?
J: No. Does it seem illogical? Let me say it another way. Do I think it would be good
if we had uniform [standards]? If every vote is to be given the same weight, let's
say, then I think it would be fair to say that every vote would be given the same
weight. In the event we had uniform standards, not only throughout Florida but
throughout the entire United States when it comes to a federal election, if we all
use the same machines and we all voted on the same day and at the same time,
we'd get a much more honest result. So do I think we should have uniform
standards? Yes, I think we should. I don't think the standards should vary, nor do
I think the machines should vary from county to county because we have a
P: One of the problems, I think, has been eliminated with the punch card machine.
Now it's much easier to correct an over-vote, for example. You still get under-
votes, but there would be less of a complication trying to interpret the intent of the
voter. Do you see that as a violation of the Fourteenth Amendment, if votes in
Broward County are counted differently, by a different standard, than they were
in Palm Beach County?
J: Do I see it? I mean, you can argue it either way. Historically, has it been? No,
because obviously we've survived this long. But the argument could be made
that, yes it is, especially when it comes to federal races as opposed to state wide
races because then we have a different standard.
P: You could also argue there were African American votes thrown out in Duval
County because they voted every page or wrote in Gore or Bush or whomever,
[and] they allowed illegal military votes to be counted. That would also be a
violation of the Fourteenth Amendment, would it not?
J: Yes. We had that happen here in Lake County as well, where people crossed off
[a name]. In some instances they may have crossed off George Bush and then
wrote his name in. For whatever reason, as I remember it, the Lake County
supervisor of elections disallowed those particular ballots, despite the fact that
the box that was checked or whatever was consistent with what was written in.
Other counties allowed it.
P: How would you feel about that, if the key is the intent of the voter, and they
circled Bush and write in Bush, which technically is an over-vote, therefore, an
illegal ballot? Do you count that?
J: Would I count it? Yes, I would. Again, I think there should be uniform or universal
standards throughout the entire United States, let alone the state of Florida. I
think we'd be better off. But as we know, often times it doesn't make a difference
when there's 537 votes that makes a difference and we start examining
everything under a microscope and with a magnifying class. But where you have
tens of thousands of votes that decide election, it becomes less likely to be
P: In fact, I know in the past sometimes the absentee ballots weren't even counted,
or weren't counted until four weeks later because the result was very clear and it
didn't really matter about those votes. Also, it should be pointed out that other
states, South Carolina for one, had more over-votes and under-votes than we
did. New Mexico was another state that had problems with their voting. Chicago.
I think also, and I'd like to get your reaction to this, it appears from what I know
that there was no fraud in the state of Florida in the 2000 election. Is that correct?
I don't know of any examples.
J: Fraud? No, but one wonders when it comes to the felony list. For example, that
we knew in advance that at least 10 percent [or] something like that, some
significant percentage of those names should not have been on the list, that
there was time to rectify that problem in advance of the election, if I remember,
when that came through to the public. But of course, no attempt was made. One
could argue no attempt was made because one knew that the majority of those
individuals, the vast majority, would have been Democratic voters.
P: They would have been African American.
J: Sure. The same argument could be made in my particular lawsuit with regard to
the supervisor. When it first came to her attention, she had the option of having
someone, it have even been an employee of the Republican Party, notify by
telephone every voter who had submitted an absentee ballot request that lacked
a voter ID number. That voter could have been told, "You need to submit another
one or you need to come in and vote on election day." Now they could have done
that by telephone, they had enough time, or they could have done it by letter, or
they could have done it by telephone and a letter. Now is that fraud? No, but I
believe that they allowed this Republican to come into the office because there
was a very, very close relationship between the supervisor and the Republican
Party. She's a Republican [and] she's been supported by the Republican Party.
The Republicans did what they did because they knew that any number, I don't
know how significant a number, but certainly some of those voters that were
contacted by telephone, letter, or both, would not have resubmitted a ballot [or]
would not have voted. So there's only sure way to make sure they got a ballot to
vote, and that's by having somebody come into the office. Is that fraud? Probably
not. However, if one would think that that was a conscious decision, that we had
the time to notify these individuals in writing, by telephone, or by both, but that it
would exclude a number of primarily Republican ballots, from being cast and
counted, it walks a fine line in my opinion.
P: Obviously, they didn't have any problems. As I understand it, the printer had left
off the voter ID number and even a place to put it, and the Democrats, therefore,
didn't have any need to come in. Would they have been afforded the same
J: Well, you'd have to ask the supervisor. In fact, we found a number of absentee
ballot requests that had been invalidated for one reason or another, that were
registered Democrats. How they voted we would not have known, but they were
registered Democrats. Nobody contacted these individuals to notify them that
their absentee ballot requests were not completed properly, nor did they allow
them to be recounted and send out a ballot.
P: In the beginning, do you know whether Sandra Goard got in touch with Michael
Leach, or did he contact her? Do you happen to know that?
J: It was not Michael Leach, and I don't think it was Jim Stelling, who was the
Seminole County chair. It was somebody else at the statewide party. Either she
had contacted them or they contacted her, I don't remember.
P: Anything else that you would like to contribute?
J: No. Thank you.
P: On that note, we'll end the interview. Thanks very much.
J: Thank you.
[End of the interview.]