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Terry P. Lewis
Terry Lewis begins the interview by relating how he first became involved in the 2000
election contest (page 1). IN the McDermott v. Harris case, he ruled that the state could
not ignore late election returns (page 2). He speaks about having to hear the case
instead of Judge Sanders Sauls (page 5). He mentions references made to a mystery
novel he wrote (page 7). He discusses the accusations of partisanship that were
leveled at him from the outset (pages 8-9). He speaks about Katherine Harris and how
she accepted his initial order (page 11).
Judge Lewis offers his assessment of the Florida Supreme Court's decision that allowed
three counties to recount their ballots (page 12).He reacts to the Palm Beach
Canvassing Board v. Harris case (page 13). He speaks about the Taylor v. Martin
County case (page 14). He did not approve of efforts to allow statistical sampling of the
ballots (page 15). :Lewis reacts to republican efforts to recuse Judge Nikki Clark (page
16). He studied various legal precedents prior to making his judgements (page 17).
Lewis speaks about his discussions about the cases with Judge Clark (page 18). He
speaks about the public's reaction to his decision (page 22). He reacts to some of the
praise he received from judicial colleagues (pages 22-23). He considers the strengths
and weaknesses inherent in the "reasonable man standard" used to recount the ballots
Lewis shares his analysis of the Supreme Court decision, how the lawyers argued their
case, and their options (pages 25-26). He offers his opinion on various decisions (page
26). He explains how he asked other judges for help in recounting the ballots (page
27). Lewis mentions the criticisms of creating standards for counting ballots (page 29).
He believes there should have been a state-wide recount (page 31). He considers the
safe harbor dates (page 32). He reacts and provides an analysis of the Bush v.
Gore decision (pages 33-36) Lewis speaks about the legislature's meddling into the
election crisis (page 37). He mentions the Sunshine Law and how it has influenced the
practice of law in Florida (page 39).
Interviewee: Judge Terry P. Lewis
Interviewer: Julian Pleasants
Date: December 19, 2002
P: This is Julian Pleasants and I'm in Liberty County in Bristol, Florida. It is
December 19, 2002, and I'm speaking with Judge Terry P. Lewis. Would you talk
about how you first got involved in the court cases in the 2000 presidential
L: The first indication, I didn't even really think that we would have the cases to tell
you the truth. I don't know the day, but I was doing a non-jury trial. About ten
o'clock the Deputy Court Administrator, Doug Smith, came in the back of the
courtroom and kind of waved to me to get my attention. So I took a break and
then he showed me the pleadings that had been filed. This is when it was on
behalf of Volusia County only, where they were asking for an injunction to be
able to continue their counting.
P: This case is McDermott v. Harris.
L: I think that's it, yes.
P: He's the Republican head of the canvassing board.
L: Yes, that's the way it was phrased, I believe. That was the first time I ever [got
involved]. That was ten o'clock, I guess, or somewhere thereabouts that morning.
P: This brief was asking for declarative relief, even though they would ultimately get
their recount done on time. They wanted to make sure [that] in case they did not
get it in on time, Secretary of State Katherine Harris would accept it. Is that the
L: That's the way I understood it, yes.
P: What did you rule about this? I know from talking to Dexter Douglass [attorney for
Al Gore] and Barry Richard [attorney for George W. Bush] this was a very hastily
called hearing. I don't think either one of them had time to even prepare a brief.
L: I'm not sure whether we did it at lunch or we did it at four on that first time.
P: I think it was right after lunch, from their recollection.
L: Yes. I guess it was fairly quickly because the time frame was fairly pressing, in
terms of when they had to have their things due. Do you have any information to
refresh my memory as to the date?
P: I can get the date.
L: On that Monday, that would have been the thirteenth, it was the day before it
[vote certification] was due. The Secretary of State [Katherine Harris] had said,
"No ifs, ands, or buts [about it]. I'm not going to count any late [election] returns
so you better get them in." That's what prompted the suit. We probably had it
either at lunch or sometime that afternoon, but I was in the middle of a trial so I
had to take a recess to do it.
P: The crucial issue in this case is 101-111 and 101-112, which is the state
elections statute, which says late returns shall be ignored or may be ignored.
How did you deal with the issue of that particular statute, which is obviously not
L: Yes. Actually, without having it in front of me, I think what it was was [that] it said
the returns shall be filed in one of those statutes. The other statute said that they
may be considered or rejected. It was typical statutory interpretation. I went to
see if there were any case law that would help me. There wasn't anything that I
can recall of significance. It was really kind of let me look at the statute [and] see
what I think the proper interpretation is. Of course, one of the principles of
interpretation is, if you have a conflict the more recent statute is going to prevail.
The Florida Supreme Court later said, "We're probably going to interpret in favor
of more rights to vote." I'm doing this from memory because I haven't looked at it,
but there was one case in which there was some late filing for some county. It
might have even been Volusia County, but some county had said, "We can't get
this in on time, we're late, we're going to get it in." It might not have been a
Secretary of State there, it might have been a local supervisor of elections, but
whoever was in charge of it had said, "We're not taking it," or had declined it
when it came in late. It went up to the Florida Supreme Court, and they said,
"You've got a little discretion here just because they were a little late. They told
you it was going to be late." That was the only thing that we had, but it was
certainly some precedent that said it's not automatic, it's not absolute, by golly if
it's not in at five, it's not counted.
P: Also in your ruling you mentioned that the specific statute would control over the
general statute. You indicated also that if they didn't get the returns in on time,
there was a $200 fine. The assumption would be that if they're going to fine them
for getting them in late, that that would be meaningless. If the law allowed the
secretary of state to ignore all the returns, there would be no reason to have a
fine in the statute for late returns..
L: That's a good argument. That's the way I saw it. You could make an argument
the other way that there should be a fine anyway because they've messed up the
election. But it's true, why fine them everyday until they're in? I suppose it's sort
of like a late fee on your rent.
P: So what you ultimately ruled is that she was not required to ignore late returns.
She had to use her discretion and look at the reasons and the general
information before she made a decision.
P: What was the argument on the part of the Republicans?
L: Well, at this point I guess Bush would have been a defendant, but I think most of
the argument came on behalf of the Secretary of State. But the argument
basically was for a strict construction [of the statute], and of course, "Judge,
that's not your job, that's the Secretary of State. You know, don't interfere with
the executives' job." It was a declaratory judgement. There was a dispute about
it, so of course I was going to have to make some declaration about it. Their
argument was simply [that] they're due at five and she has every right in the
world, every duty, to declare that they won't be counted.
P: I know Barry Richard, when I talked to him, said it doesn't matter about the
construction. Shall or may, she chooses not to. But your argument was simply
she had a choice, and therefore she had to take into consideration the reasons.
L: I agree with Mr. Richard's argument there.
P: Could you have ordered her to wait until the seventeenth when all the absentee
ballots came in? I notice that at one point in the hearing you brought up that
issue. "You're going to be certifying, but it's not a final certification on the
P: Could you have ordered her to wait until the seventeenth?
L: Well, theoretically I could have done a lot of things. According to later events,
according to the Florida Supreme Court, maybe I should have. But my view of
that was just like Barry Richard said, that's really the Secretary of State's call.
The only thing I was saying was that she had already made the call without
viewing any of the possible reasons that might justify an extension. The way I
saw it is it's her job to make that decision, not mine. But she had said ahead of
time, "I'm not going to count it, period. No ifs, ands, or buts." My only point was
that you really can't do that. You can't say ahead of time because you have a
duty to exercise your discretion. It'd be like me. I have discretion sentencing. If I
made a statement and said every DUI offender is going to get ten days in jail,
[people would say], "Now judge you can't do that, you have to exercise your
discretion on a case by case basis." That's the way I saw it.
P: Another issue that Dexter Douglass talked about was, why would the legislature
pass a provision for recounts if it were not possible to use that portion of the law?
L: Right. You mention the questions that I asked of the attorneys during the thing
about "Why don't you wait until the seventeenth?" And it is true. There's a
difference between good policy and legality. I was just sort of throwing out a few
things. "What's the big hurry here? You're going to have to wait [until November
17] to officially certify it. When you're deciding whether you should count these
votes or give them some more time, shouldn't that be a factor?" I didn't feel that
as the judiciary I could come in and tell her, "You have to do [it in] a certain
amount of time."
P: The Secretary of State's office ruled that there could be no recount unless there
was an act of God, a hurricane or a tabulation malfunction. Did that issue come
up in this particular trial?
L: I don't remember. I do remember, when I started looking in whatever case law I
could find, which wasn't a whole lot, that's when there was some case law that
suggested that those were possible reasons that you might have. [They were] not
necessarily exclusive [reasons], but then again, it wasn't my call. At that point I
would figure, "Well, if she has abused her discretion, if she has made an error
and not included things that could have been a justification, then that was, to me,
something that would be brought up in a contest," not in a injunction to keep her
from certifying the results.
P: Dexter Douglass indicated that when you got through that you said exactly that.
[That] if these issues come up, then the plaintiff has the right to go to the contest.
Was that sort of a hint that that might be the best thing for Gore to do?
L: Well, I don't know if it was a hint that it was the best thing for Gore to do. When I
was looking at the statute, I [said], "Well, there's a provision for recount [and]
there's also a provision for contest." The way I saw it, some of the things we've
already talked about, it must have been the intention [of the law] that if a
particular canvassing board area had what they thought were the criteria to
require a recount, then they should do it. They had a duty to do it, irrespective of
what the Secretary of State said. I don't care if she said, "I'm not going to count
them," to me they had a duty to count them. Now she had another right, the
authority, to not accept it, but they should have kept counting as far as my
interpretation was. Why would you use that if not for a contest later? You have to
read it as a legislative scheme and say, in terms of the proper remedy to me, and
I was trying to at least let people know how I was interpreting it and why, and that
would educate them as to what might be the proper remedy. I always say if
somebody comes in asking you for remedy, "I think you've got the wrong remedy
here. If you want me to tell the Secretary of State, who exercised her discretion,
that she can't do it, you're barking up the wrong tree. There is a remedy for you,
if you think she's done what she's not supposed to do or hasn't done something
she should, and that's the contest. That's right there in the statute and it
specifically says in there if you don't count legal votes that's a pretty good reason
to file a contest."
I remember seeing Dexter Douglass sometime after that and making some
comment about, "Why didn't y'all, instead of appealing my order over to the
Supreme Court trying to get some extra time and going through all that and
wasting a lot of time, why didn't you just come back, amend it, and contest it." He
told me, "That's what I advised." I'm not saying that would have helped them one
way or the other, but in terms of resolving the issue quicker, that's where it was
going to have to end up. There was no way that they were going to let one
particular area of the state recount their votes, and not everybody else, when the
vote was that close, and it was an election of that importance. So they should
have, I think, gone that way anyway, but that wasn't my call either.
P: As a matter of fact, if [the Democrats] had done that and had amended it, it would
have been back in your court, would it not?
P: How would you have felt about hearing that case instead of Judge Sanders Sauls
[Leon County Circuit Court]?
L: I would have been fine. That's what I do. People have asked me about getting
these cases, and, of course, you're of a mixed mind [about it]. You don't want to
appear to be arrogant or whatever and say, "I can handle that kind of thing," but it
really isn't that much different than what you do everyday. The only difference is,
there are a lot of people interested and a lot of people watching. If you don't think
you can do it, you probably shouldn't be doing it, but of course on the other hand,
there's an honest, sincere humility of it. You know, I don't know that if I've got the
right answer, [but] all I can do is do my best and listen to both sides, both
arguments, and look at the law and try to come up with a solution. I'm willing to
do it. I would have done it. I would have had a quick hearing, and we would have
gotten to some resolution of it before they did.
P: Can I skip a little bit ahead? What was your reaction to Judge Sauls's decision in
the contest, and would you have made a different decision?
L: I have to honestly say I don't know because I did follow it, but not as closely.
Remember, his hearing was over the weekend and that was the weekend that
we had our circuit judge conference. I was, at that time, [and] still am,
educational chair for the conference. [I was] in charge of putting on the entire
education program, which is like six tracks worth of education. Plus I had
volunteered to teach three different courses myself, so I was busy. I was
watching that a little bit, but it was a little dry. You know, all that testimony stuff. I
pretty much knew what the issues were, and they would summarize and stuff like
that. So I don't really know, in terms of, would I have ruled the same way or not?
That's not fair because I wasn't there, [and] I couldn't judge the demeanor of the
witnesses and that sort of thing. I know that the basis for his ruling was
something my wife, who is not a lawyer nor a constitutional scholar until this
came up, said, "That's not the right standard is it," when she heard him read his
thing [decision]. I forget now what it was.
P: Probability that the recount would change the outcome of the election and then
the discretion of the canvassing boards. I know that Justice Major Harding
[Florida Supreme Court, 1991-present] said those are the criteria for the protest
as opposed to the contest.
L: She picked up on that, and that was something in the statute. So I said that may
be coming back for that reason, if you apply the wrong standard. Now all these
findings of fact and stuff, that's up to him and he can do that. But when he uses
the wrong standard....
P: I'd like to come back to that a little bit later as we go through, but let me get back
to your first decision. So, in effect, for Volusia County you grant in part, but deny
in part, their request. Now that decision is going to be discussed quite extensively
all over the country and all over the world. Obviously, now Florida and
Tallahassee are the focal point for the world media. The comments were very
interesting. Barry Richard and several other people said that they thought it was
interesting that you came to a decision that nobody else had thought about. That
you didn't take the options that either side gave you and that you sort of came to
a decision, if I may quote, that was "Solomon" like. You took a little bit from both
sides and really, in effect, turned it back to the Secretary of State. Would that be
L: Yes, because I think the one side wanted me to tell the Secretary what to do, and
the other side wanted me to back off and don't do anything. Again there wasn't a
whole lot of precedent and it was a short term, but I just had to look at the
statute, and that's just the way I read it.
P: Dexter Douglass said he thought your ruling was reasonable but you had a
reasonable basis to rule the other way. But then he said, "The one guy I know as
a judge that would have loved to rule the other way thought the law required him
to do what he did." He's talking about you.
L: That was talking about me?
L: That I would have loved to rule the other way?
P: But you ruled according to what the law required you to do. In other words, I think
he may have been referring to the fact that you're a Democrat. I think, that's a
L: Yes, I take that as a compliment. That was not an uncommon remark that I heard
or read about that decision, especially the second one when I came in and said
she [Harris] can exercise her discretion. As a matter of fact, there was a very nice
article written by a guy in Baltimore Sun [that] a friend of mine sent me. It was a
book review. I can't think of his name, but it was very nice because he started off
and said some nice things about "He's considered to be liberal in his social views
and decisions if pushed, but he had the courage or whatever to do that." Then
the rest of it was a review of my book. [He said,] "I learned in all of the media
stuff that he'd written this novel, so I thought I'll go out and find some insight into
this guy by reading it."
P: This was the mystery novel that you wrote?
L: Yes. So the rest of the column was that, but that was a presumption [about] "He's
liberal in his views as politics." But actually that's not necessarily true when
people make that assumption. I guess I'll take whatever label they give me if they
ask me a specific issue, but if it comes to wanting to rule a particular way on this,
P: It's interesting because at the very beginning, and of course this is a political
public relations issue as well as legal issue, the Republicans are denouncing,
even before they file suit, the Florida Supreme Court as the Dexter Douglass
court. [They said] it's a liberal Democratic Court, that you were a liberal
Democrat, that Judge Nikki Clark [Leon County Circuit Court] was a liberal
Democrat, and, "They're going to kill us if we get in their courts." So you see that
coming up very early on, and I'm not sure how to perceive that. I assume that this
was part of the public relations issue, as opposed to what we find later in that the
Florida Supreme Court ruled against Gore four or five times, you did three times,
[and] Clark did once. So these liberal Democrats, who could have given Gore the
presidency had they been partisan, ruled on the basis of law. Is that a fair
L: Yes, I think so. I think that one of the things that came out of that that was really
kind of disheartening, in terms of the public perception of the courts, is this notion
that the judges are partisan, that whatever their politics are that's how they lean
and that's how they're going to rule. That was egged-on by some of the
participants, and especially, I have to say, the Republican side of it. They were a
lot more vocal and strident in making those kind of insinuations or outright claims.
P: Particularly Jim Baker [spokesman for Bush campaign; U.S. Secretary of State,
L: Yes. So that was disheartening. I've always said that what that means is that if
you are such an ardent partisan you expect everybody else is. It's sort of like a
pathological liar. You think everybody else is lying because that's the way you
see it. So it never occurs to you that somebody actually would not make a
decision based on that, that they'll set that aside. It really was disturbing. I know
that at least most of the judges that I work with, [and] obviously it doesn't go
across the board, [are] always going to try to find in good faith what they think the
law would require them to do. Now sometimes obviously you cannot escape your
personal backgrounds. There's a good quote from [Benjamin] Cardoza [U.S.
Supreme Court Justice, 1932-1938], "There is a stream that we go through that's
based on our institutions that we were raised in our upbringing on. We can try as
we must, [but] we can only see things through our own eyes." When equities are
nicely balanced, then, of course, your personal experiences are probably going
to have some influence on that, but generally speaking, I think most judges are
going to try to look at it, apply the law as best they know it by the facts, and reach
P: And ideology is a factor to some degree, is it not?
L: Ideology in the sense, I suppose, of personal philosophy. But like I say, usually
the ideology is, "I'm going to apply the statutory principles that I know in good
faith." You have to be conscious [of your past]. Nobody can say, "Well, I grew up
poor in the South [so] does that make me more favor the underdog against the
big corporation" or something like that, or you had a bad experience with
burglaries. Whatever it might be, you try to acknowledge that you may have
some background, some internal influences [or] external influences. You have to,
as best as you possibly can [and as] reasonably humanly possible, set that
aside. At least not consciously, maybe sub-consciously, who knows, but you
consciously would never do that. That's the antithesis of good judging.
P: Let me read to you what the New York Times said of your first decision. [They]
said it was good common sense and "a rebuke to the partisan misreading of
Florida statutes by Harris, who has blurred her twin responsibilities as chief
arbiter of the state's election law and co-chairperson of the Bush campaign in
Florida." So people would say, "That's what we expect from the New York Times
since it's a liberal paper." Did you see any of that as part of your decision, that
she was arbitrarily reading the statute that way because she was a Republican?
L: I have to be honest. I didn't know, and still don't know [about], Katherine Harris.
I've heard things, accusations back and forth, and also defenses of her and from
herself as well. I don't know. From a policy standpoint, it's obviously not good. I'm
used to the judicial ethics of looking at anything that looks funny. You would just
never be in that situation where you're having to make a decision [where] you
have some opposite interests, [where you're] biased in the thing. But that
happens all the time in executive and legislative branches, so you can't judge
them by that same thing. If I were to have to guess, I would certainly be optimistic
and hope that she was trying to do what she thought she was supposed to do.
Again, subconsciously who knows, but I would certainly hate to think, and maybe
I'm naive, that she [would say], "Okay let's see how we can maneuver these
rules to get my guy to win, to hell with the law and all that stuff."
P: The argument is always that this is politics and its an elected position and it
wouldn't be unusual if they were partisan. But under circumstances like this, it
would seem to be an error in judgement to try to misread the law deliberately,
would it not?
P: Surely her legal advisors, Joe Klock, would tell her, "You can't get away with
L: That's what I would think. Like I say, I don't know what was going on. I did hear
that whenever my first order came out she contemplated not doing anything
about it, you know, not obeying the order, [but] they said, "You don't want to do
P: That's correct. I talked to Mac Stipanovich and Joe Klock. What they advised her
to do is to get written opinions from each of the canvassing boards as to why
they needed extra time, and then once she received those, she denied their
petitions. Did that help you in your second decision? That demonstrated she had
gotten information and made a judgement.
L: She got good advice. Instead of just throwing your nose up or thumbing the court
order, you say, "How can we comply with this." You can be cynical and say,
"They were just finding a way to do what they wanted to," but obviously she had
made a decision. A lot of judges get accused of finding a way to do what they
want to do, too.
P: The Democrats are going to come back in court and say she abused her
discretion. Did you see any of the letters submitted by the canvassing boards?
Was that part of the evidence?
L: I think I did see some of that. There were some things that were attached to the
petition. I don't know if I saw all of the letters, but I got the gist of it. Actually, I had
not contemplated that that's what she would do. When I did the first order I had
thought, "Well, in a few days Volusia County will get their thing in, and she'll
either count it or she won't. She'll make her decision, she'll give some reason for
it, and that'll be it." But she was proactive and said, "Why is it going to be late?
Give me your reasons." I couldn't figure out why there was anything wrong with
that if [they knew], and they did. They knew why they weren't going to get them
P: Joe Klock and Mac Stipanovich said that the canvassing board said, "We need
more time." Harris was saying, "You don't have more time. This is the law, and
I'm not doing anything but enforcing what I see as a very strict deadline."
L: And mentioned those things that you said [about unless] there is some hurricane
P: And there was no indication that any of those factors influenced the fact that they
L: Right. It was just not finished.
P: The Democrats in Lewis II did not really present a lot of evidence to demonstrate
that Harris had abused her discretion. I don't recall for sure, but I don't think they
brought many witnesses.
L: They didn't bring any witnesses.
P: So they didn't have a particularly strong case in that context, did they?
P: What you essentially ruled is that she did not abuse her discretion.
L: I think that's the way that's interpreted. Like we were talking earlier, if she abused
her discretion, I think the remedy would be to challenge [or] contest the election.
What I said first of all was she had to exercise her discretion. She had not
exercised any discretion, [she] just said, "I'm not going to do it." It's the same
analogy that we used before in my court. If I have discretion in terms of a
sentence of a criminal defendant, and I say ahead of time I'm going to give
everybody a certain amount of time, that's not an exercise of discretion at all. I'll
be reversed. But if I exercise my discretion, and I say, "You slouch when you
stand and you don't say 'Yes, sir' to me so I'm going to give you five years
instead of two," well, I've exercised my discretion. But if it were appealed, it
probably would be considered an abuse of discretion because that's not a logical,
reasonable basis to enhance a sentence.
Similarly here, that didn't mean that I agreed with what she did or that I thought
that was a proper decision, that there weren't other factors that she should have
considered had I been her, but I wasn't. So when they came back and said she
abused her discretion, man that's a pretty high standard. She set forth reasoning.
Like you said, she sent out letters [asking], "What's your reasons," [and said,] "I
don't find those to be sufficient. I looked in the case law, here are some reasons
that have been given in the past, they don't meet any of these, [and] I'm not
going out on a limb." Now, like I said, you could contest that later and say, "The
machines didn't register all the votes, we need to count them, and we need a
little more time. Besides, you've got to wait till the overseas ballots come in, so
why don't you just wait until that time at least and see how we're doing." But
that's her call. If she is appealed, in other words, if there was a contest later, a
court like me might very well say, "No, you exercised your discretion but you
were wrong. You didn't count some legal votes, and we're going to count them
now." I think people interpret that as [me] saying she didn't abuse her discretion,
[but] I wasn't even looking at whether she abused her discretion so much as I
was whether she exercised it or not. If you wanted to pursue the abuse of
discretion you need to file a contest.
P: In fact your first order stated as much.
L: Right, they didn't listen did they?
P: So she, in effect, complied with your order, [and] therefore there were no grounds
for you to make any other judgement, right?
L: Yes, because they [the Democrats] were basically saying, "She disobeyed your
order, judge, and you need to tell her to do something else." [I told them,] "No,
what I told her was to exercise her discretion. She's exercised her discretion [and
the] case is over. You've got another remedy guys if you want to pursue it, but for
this particular thing, I'm not going to issue an injunction at this point and macro-
manage the Secretary of State and tell her what she has to consider and not
P: By the way, it's kind of unusual for circuit court judges to overturn decisions
made by state officials, isn't it?
L: Yes, and if you talk to Barry Richard, that was his argument. I take that very
seriously. I'm a judicial branch, unless there's a real good reason, I'm not sticking
my nose into what the executive or the legislative branch is doing.
P: I want to mention one of the things said by Dexter Douglass, and this is vintage
Dexter Douglass. He said that when Harris ordered Palm Beach to stop counting
and then the Florida Supreme Court allowed them to continue, she issued a
second opinion that said the recount was too late because the deadline had
passed. I quote Dexter Douglass, "Sort of like a traffic cop asking you to stop and
pull over and then give you a ticket for blocking traffic." [laughing]
L: [laughing] That's pretty good.
P: Which is a good anecdote but not evidence.
L: Right. And like you said before, they came in and made argument but they didn't
present any evidence to me to show that she was being completely
unreasonable. I had no basis on which to find, for example, "How long is it going
to take Palm Beach to finish? I don't know, do you know? No, I don't have any
evidence of this." I asked them at the end of this, "Is there any evidence that
anybody's going to present or are you stipulating to some facts?" They were kind
of hemming and hawing. They just kind of wanted a feel good, "Let's go in and
get the judge to stop her because we don't like what she's done." That's just not
the way you operate. You've got to have some evidence, got to have a record on
which to base it.
P: The Florida Supreme Court on November 21, is going to make a seven-zero
decision to allow those three counties to recount the ballots, and then the court
decides that they will pick November 26th, as the day for certification. So it gives
the canvassing boards five more days to complete the recount. What was your
assessment of that decision, and where did the November 26th date come from?
L: I have deep respect for all of those folks on the Florida Supreme Court and know
a lot of them personally, don't question their integrity at all, but I think that was a
mistake. I get reversed from time to time, unfortunately. I'll rule and it goes up in
either First D.C.A. [District Court of Appeals] or ends up in the Supreme Court
and I get reversed. Sometimes I'll look at the opinions and say, "Okay," because
a lot of times it is on a close issue. I don't know how the law is, I could go this
way, this way, I'll go this way. Then they come back and say, "No, it really should
be this way." No problem. You hate to have those ones where you do something
that they come back and say, "Well, the law is real clear on this, you should do
this," and they reverse you. Knock on wood, [but] I haven't had one of those yet
where I feel really embarrassed that I missed something basic. Sometimes I'll get
reversed and I look and say, "Uh, I don't see this."
Here is the same thing. I know this was a unique situation because of the time-
frame, but generally speaking, an appellate court will say, "Trial court you erred,
let me send it back to you to consider these things. You applied the wrong law,
you overlooked the evidence, or whatever it is that you made an error, and
correct that error in the trial court." But what they did was just say, "Oops." And
remember, just like I said, there wasn't a record, [and] there was no evidence of
anything to pick that day. How did they come up with the day? That's just
something an appellate court should never do. I'm sure they had their reasons.
They never shared those except in the written opinion, which I disagree with, but
that's the way our courts work. As a matter of fact, I saw Major Harding after that
[because] he's in the same Rotary Club. He said, "Nothing personal, of course." I
said, "Of course not." He said something about, "We're not last because we're
right, we're right because we're last." I reminded him of something I heard him
say one time. When he was asked, "How did it feel when as a Florida Supreme
Court justice you got basically reversed by a federal district court judge, a trial
judge, in a death case for example." He said, "Well, they have just as much right
to be wrong as anybody." He laughed then and thought it was funny. [Laughing]
P: So now this seven-zero decision is Palm Beach County Canvassing Board v.
L: Yes, although I think it was six-zero because I think one of the justices didn't
L: I remember thinking it was six-zero.
P: But technically what they have done is reverse your decision, is that correct?
P: The other issue that comes up later is that, by picking a new date, the Florida
Supreme Court have, in fact, made law rather than interpreted law. That's what
the United State Supreme Court is going to deal with. Did you agree with that?
L: Well, like I said, I thought that was a mistake because I didn't see, "Why is their
judgement about a date to extend any better than the Secretary of State." I think
they could have very validly said, "No, I think the reasons the Secretary of State
gave are insufficient [and] it's abuse of discretion." Then you get a question, as
we were talking earlier, "Well, what do you do there?" My thought was you
contest it. As a matter of fact, during the oral argument, there was some
discussion, some questions back and forth between the justices and the lawyers,
about why should they be counting? If you're having a recount, it doesn't that
mean [the ballots will be counted]? One suggestion was, "No, you use that
recount for the contest," which is what I had thought, but apparently they didn't
agree with that interpretation.
P: It's very interesting from this point. The Gore lawyers are looking at all of these
decisions. It should have clicked in at some point that, "We really do need to be
in the contest." The December 12th Safe Harbor date is coming up, and they're
wasting time. Of course, it's easy to say that in hindsight. Also that seven-zero
decision was [a] very critical, very harsh denunciation of Katherine Harris, and
some of the terminology, her decisions were "arbitrary, unnecessary, contrary to
law, unreasonable." They argued that the right to vote was paramount and that
what you do first is count the votes, otherwise you violate democracy. Isn't that a
little unusual for the Supreme Court to be that personal in a decision?
L: Probably. I don't know if it's personal. I've seen strong language like that before.
But I don't know, perhaps they were trying to give a basis of why their opinion
should be accepted as right, so they had to say something fairly strong. Again,
they don't come out and discuss it so I don't know.
P: Now let's go to Taylor v. Martin County. How did you happen to get that particular
L: It was just straight rotation.
P: This is a case in Martin County where the elections supervisor, Peggy Robbins,
had allowed the Republican Party to take absentee ballot requests outside of the
office and put voter ID numbers on them. When you got the case, what was your
general thought as you came to making a decision?
L: Have you talked to Nikki Clark yet by any chance?
L: Nikki Clark had the Seminole County case, which had even more voters affected
by that. When she got that case, I came down and commiserated [with] her and
said, "Nikki, they're all looking at what Sandy Sauls is doing, but you may have
the sleeper case. This is 15,000 votes here, and if those get thrown out, we're
counting 900 votes down in Dade County that's not going to mean anything." The
pressure's on, basically. So when I got the Martin County case I said, "Hmm,
same issues [and] very similar facts." I met with her and said, "What have you
come up with in the law?" She had the law clerk working on it, so I got on that
and did my own research. That was at that same time when the circuit judge
conference was going on, so I was reading stuff on the way over and having
phone conference hearings over there. That was one of those where the law
wasn't all that unclear. I thought the law was fairly straightforward, and [it was]
just [a matter of] applying that law to the facts. If the facts were as alleged, they
were going to have to show me something other than what was done was done.
P: So basically they would have to show something like either violation of the law or
substantial noncompliance with the law or fraud or something like that?
L: Yes. I think the bottom line too, and, again, it's been a long time since I read that
or looked at it, but as I recall the most important thing was were the people's
votes not counted that should have been counted. Was there something that
interrupted the will of the people? Was it thwarted in some way in what they did?
If that wasn't done, even if there were illegalities, that's a very harsh remedy, to
throw out somebody's vote because somebody else did something that wasn't
P: Plus there was really no way to tell which of the absentee ballots might have
been tainted by this process. So the only option would be rather draconian, to
throw them all out. Now I do know the Democrats came up with a proposition.
They had some experts come in and try to say, "If this county is primarily
Republican and we can guess that there would be so many Gore votes and so
many Bush votes." Did you have any acceptance of that argument at all?
L: No, it doesn't appeal to me. It seemed to me from the evidence that there wasn't
any intent or intentional wrong doing in terms of trying to change a vote or give a
fraudulent vote. What they did was not proper, it was improper, nobody should
condone it, but when all the dust was settled, there wasn't any real suggestion at
all that people who wanted to vote didn't get to vote and that their vote was not
counted for the person they wanted.
P: Plus these are not ballots, they're requests for ballots, so that's a different
process. Did you find in this case, and at least in Martin County, that the
Democrats had been denied equal access? Would that have been a factor in
L: If I remember [correctly], I think Judge Clark made some particular findings about
that. I don't think I did. That was something that was important to her was that,
"Well, only the Republicans got to do it, not [the] Democrats." To be honest with
you, I don't remember whether that was something that was presented [or]
argued. It obviously didn't have a whole lot of weight with me because I don't
remember right now. I just remember the bottom line to me was, I didn't see a
situation where people were denied the right to vote or their votes didn't count
P: When you make a judgement similar to Judge Clark, I believe that you
determined that at the very least both supervisors used bad judgement. I
presume both of you ruled that it was a violation of state law, is that correct?
L: I think so. Definitely, I think it was not something that should have been done. I
don't know if it was saying a criminal law was violated or anything, but it was not
in accordance with the proper legal criteria or legal procedures.
P: Under Florida law it's a felony for an unauthorized person to request an absentee
ballot. It has to be done either by a guardian or the individual or the family, but
this is not exactly a request for an absentee ballot, it's modifying that request.
Some people argued that it was not only a violation of election law in Martin
County, it was a violation of public records law because she allowed those
requests out of the office.
L: Yes, I think that was argued, and without a doubt it should never have been
done. It shouldn't be read to condone that, but in terms of discounting the votes
that were casts as a result of that, as far as I could tell, it was a no brainer.
P: Because the key is still the will of the voters.
P: Was there any penalty on either of these two individuals for violating the law?
L: [I] don't know. That's why we have state attorneys. If there has been a violation
of the law....
P: They could have brought charges and chose not to do so.
L: I don't know. I didn't follow what happened after that. I saw the Secretary of
State, and the people that were involved didn't strike me as being really
intentionally doing something. That doesn't mean they didn't violate the law, it
just didn't seem like a nefarious conspiracy of great proportions either. But even
if it had been, the remedy would be to prosecute them, not to throw out the
P: Right. That is certainly unusual and both of them admitted it had not been done
[End of side Al]
P: What was your reaction to the Republican's attempt to recuse Judge Clark? I
know, for example, Barry Richard refused to sign the recusal request. What did
you think of that?
L: I have a word for it but it wouldn't go on here, and the word starts with chicken.
P: Do you think that this is an example, as some Democrats have argued, that the
Republicans were willing to do whatever it took to win? They were playing
hardball. If they thought they could get an advantage by recusing a so-called
liberal Democratic judge, that they would do that.
L: I don't know. Of course, we talked earlier about the fact that to me it seemed like
the representatives on the Republican side were more strident, as you call it,
hardball. They were more likely to be aggressive in terms of what they wanted.
I've heard that from the Gore side he was very much insistent that they not
criticize the courts, be gentlemanly, and et cetera. As long as they play within the
rules, that's part of our adversary system. However you choose to do it, you
choose at your risk. If playing hardball is legal, well, you play it hardball. In those
kind of tactics where you say, "We're going to try to recuse the judge," I don't
think they had a grounds for it and obviously it didn't work. Those kind of things
could backfire on you, [but] Judge Clark's not like that. She's not going to rule
against you because you tried to recuse her, but it doesn't look good for you.
Barry Richard said, "I'm not going to sign that," and I think that's what should
have been done. You shouldn't do that as a lawyer. You shouldn't try to recuse a
judge. That's not playing within the rules as far as I'm concerned, unless you
have a legitimate reason to believe and if you look at the law and analogize the
facts. I'll give them the benefit of the doubt and say somebody thought they did.
But that's one of the things you have is where do you draw the line between
zealous advocacy of your client or being an officer of the court. A lot of people
have a hard time drawing that line.
P: I noticed the Democrats talked about recusing Judge Sauls, but Dexter Douglass
and others, Deeno Kitchen, said not to do it.
L: I guess they had a reason in terms of one of the lawyers said there was some
P: John Newton.
L: So I guess they had some reason.
P: But pretty flimsy.
P: When you are considering a case like the Martin County case, did you look at
precedents like Boardman v. Esteva (1976)? Was that a critical part of your
thinking? Or Beckstrom v. Volusia County (1996)?
L: Yes, absolutely. I remember the names of those cases now that you bring them
up. Like I said, to me when we got in the Martin County and Seminole County
[cases], the law was a lot more clear and a lot more enlightening in terms of
analogizing it to the facts. As I recall, there were all kinds of awful things that
went on in some of those other cases, and they said, "We're not going to
discount the votes because of this." So that made it easier.
P: Boardman v. Esteva, as you recall, was the case where they had somehow
mangled the envelopes on 429 absentee ballots. The Florida Supreme Court
ruled that, same as you ruled, this is a question of will of the voters, and the fact
that the envelopes are damaged does not affect the ballot. This is where we get
into hyper-technicality. I was intrigued to see that now the Republicans and
Democrats have completely changed their arguments. They're exactly the
opposite of where they started.
L: Will of the voters.
P: Yes. Gore is saying...
L: I follow the law.
P: This hyper-technicality, that you've got to adhere to the law. Now Bush is saying
we need to count every vote.
L: You know what I think, and you'd probably know better than I do, that as far as
the Martin and Seminole County cases [go], I'm not sure that Gore himself, in
terms of heading that up, was in favor of that. I think that was really brought by
some other Democrats.
P: I've talked to Harry Jacobs. There's no question that Harry brought that on his
own hook, but it is also clear that, while Gore did not enter into that suit, the Gore
lawyers supported Harry. Let's put it that way. Without formally or publicly getting
L: "We want to look like we're not involved," but good luck.
P: Exactly. Of course, at that point, and I think you mentioned this earlier, these
were really stealth cases. They had gone under the radar and all of a sudden
people are saying, "Hey, if Gore wins either of these, he's President of the United
States." Were you aware of the extraordinary burden in making a decision like
L: Yes. Like I said, you say, "If we rule this way that's it." Had it been a lot closer, it
would have made it a lot harder, obviously, but Judge Clark and I both agreed. I
mean, we met and talked and came to the same conclusion.
P: Let me ask about that. Is it unusual for two judges in different but similar cases to
sit down and discuss the decisions?
L: That's a little unusual because you wouldn't have the cases that were that similar
all the time, but it's not unusual at all to, for example, me get on the phone and
call someone and say, "Listen, I've got this case, here's the issues, you know
anything about it?" [And for them to say], "Well, I had a case like that, you might
want to look at this case, or this is how I would interpret that statute myself." Now
if you go to a judge for factual information, you can't do that. You can't go to
anybody else without letting all the parties know that, "Listen, I've got this article
written by Judge So and So that I'm going to consider and ya'll need to be able to
brief it." But that's not unusual.
P: Both your and Judge Clark's decisions were very similar, particularly in the law.
The facts were a little bit different. Did you specifically sit down and discuss the
issues or did you write your opinions separately?
L: [We] wrote them separately. What we did was got together and basically said,
"I've looked at the law in this area [and] this is what I think they mean. They
mean this, this, and this. I agree with you, that's the way I read it too. [We] said
your issues are very similar to mine," so we agreed to share our draft of our
opinions with each other, but I know that I didn't change mine. They were very
similar because the law is very similar. Like we talked about earlier, she had a
couple things maybe that were important to her that she put in her opinion.
P: How about the incredible pressure, and you know that time is of the essence
here, of trying to make these kind of decisions in one day and having probably
shortened hearings? How does that affect the ability to make a judgement when
normally, you might have had two or three weeks to sit down and consider your
L: Obviously, that's a factor. It's not a good factor. I t's a negative, generally
speaking. There's a point, of course, which more time's not going to do you any
good, it might make it worse because things get forgotten or a little more hazy.
This did have to be done quickly. [The Martin and Seminole County cases]
weren't that complicated. The case law wasn't that extensive. You read it and
you applied it. [It was] very similar to the first one where I didn't have hardly any
case law. If I want to take me a whole long time, I can think and think and think
and think, but [it's] probably not going to change anything. You might get more of
an opportunity [to find something], maybe they [could] come up with a case out of
state somewhere, but it really wasn't going to make that much difference. Same
thing on the Seminole and the Martin County [cases]. That was difficult because
we had to get the evidentiary hearings in, and of course we were going pretty
long and the lawyers were getting tired.
P: I know that Sandra Goard appeared in the Seminole County case. I don't believe
Peggy Robbins testified in your case, did she?
L: I don't remember.
P: Were there many witnesses?
L: Probably four, five, or six.
P: There were more than that in the Seminole County, apparently. You announced
the verdicts at the same time?
L: They were the same issue, and we figured it would be better to do it sort of like a
joint announcement. A statement [stating], "Here are the decisions." I wrote up a
summary when she told me, "Here's my thing [and] is this okay as a joint
statement? Here are the rulings. Here her come out at the same time. Get
the lawyers together at the same time." We were going to be close together
anyway, so why bring them in again three hours later for basically the same
thing. [It] just seemed to be administratively more convenient for everybody.
P: Talk a little bit about how the courts were able to organize both cases. I
understand the courtrooms were right across from each other, and you started
early in the morning. Was this primarily to accommodate Barry Richard and the
lawyers so they could go back and forth from one courtroom to the other
L: Yes. Actually, we ended up using the same courtroom. We figured [it's the] same
lawyers and I can't go while she's going and vice versa. She had hers scheduled
for 8:30 or something, [so I said], "We'll start it early, we'll go till she's ready to
start, then whenever she's finished we'll come back and finish ours." They didn't
have to move their stuff around.
P: I understand that she finished a little earlier than you expected her to. You were
out shooting some hoops, I guess to sort of settle down, and your wife had to
come get you.
L: Yes, that was one of the funny stories. My wife, she's a little more excitable than I
am. But yes, I was down playing some basketball because she [Judge Clark] was
not supposed to be through until 8:00 or something like that. She [the wife]
comes running in [saying], "They're done, they're done, they're waiting for you,
they're waiting for you." So of course I had to rush down.
P: And the Florida Supreme Court approved your decision on the Martin County
case, I think, within twenty-four hours with very little comment. So, I assume their
approval demonstrated that you were on the right track.
L: Well, like I say, sometimes I agree, sometimes I don't have to agree with them on
that. If they'd have said no obviously I'd look at it and see why, but I thought it
was consistent with their previous decisions.
P: Let me ask you a question that doesn't exactly relate to this case but there's an
interesting point that came up. I forget which lawyer brought it up, but one of the
issues is going to be the plenary power of the state legislature under Article Two
of the Constitution of the United States. A Democratic lawyer argued that if it
were unconstitutional for the Florida Supreme Court to extend that deadline to
November 26th, because they had no power to do so because that was up to the
legislature, wouldn't it have also been unconstitutional for the governor, the
executive branch, in this agreement with the federal government to extend by ten
days the date of the receipt of absentee ballots?
L: Good point. Nobody ever argued it to me, but it's a good point.
P: It is an interesting point, yes.
L: Actually, that came up in the first hearing we had. I wasn't familiar with it. It's not
an area of the law that you get a lot of, so when they mentioned this thing about
a consent decree [for] ten additional days for overseas [ballots], I said, "Where's
that in the statute?" [They answered,] "Well, it's a consent decree." [I said,] "Well
what does that mean? If you can consent to that, why are we going to have to
bother with this right here? I don't understand." Nobody ever really gave me a
good explanation. They got sued apparently. That was a consent that the state, I
guess, agreed to. I don't know whether the legislature has to affirm that or ratify it
or something, or whether they did.
P: I don't think they did.
L: Yes, so that's a good argument.
P: I thought it was interesting because I had not heard that particular argument
before. Now talk a little bit about the Florida Supreme Court decision, this is by
now Gore v. Harris. In that four-three decision the Court ruled that there was a
remedy. They would give Gore 168 votes in Miami-Dade, 215 in Palm Beach
County, and they sent the case back to Leon County Circuit Court and directed, I
guess in the beginning it was Judge Sauls, to count all the under-votes. He
decided that he didn't want to take that case. He recused himself. Was that out of
pique or frustration, or do you know?
L: I've never talked to him about it. I think he was upset, that was the report I got
down the hallway, so he recused himself. So it just went to the natural rotation,
which would have been Nikki Clark.
P: And she recused herself.
L: No, she said she was not available.
P: What's the difference?
L: If you go into the cycle, because it had to be done, it goes to the next judge. But
if they're not available [it goes to the next judge], and what's not available is in
the eye of the beholder I suppose, but she had gone home. In her defense, she
had had a hard week because they had that recusal stuff, and she had gotten
some threatening phone calls or something. So she was home, and she really
didn't want to take it. I, unfortunately, happened to be in my office at the time
thinking everything was done and relaxing and it's five o'clock in the afternoon.
[Then], "Here, Judge Clark's not here and you are next to hear this [case]. [I
said,] "Okay." I actually told Judge Reynolds, he was the chief judge, "Maybe you
should take it because it really looks like it's not something you have to make a
legal decision on so much as it is administrative...."
P: To carry out the order of the Florida Supreme Court.
L: To count votes and stuff like that. He said, "No, I don't want anybody thinking I
took the case or something like that. It's going to go the natural rotation. Now if
you say you're not available, I guess...," I said, "Well, I'm not going to say I'm not
available. I'm here, I'm ready, give it to me, let's go."
P: While we're on that subject, did you get a lot of e-mails [and] threatening phone
L: I didn't get any really bad threatening phone calls. I got a lot of e-mail stuff, some
good some bad.
P: Can you give me some examples of some of the more interesting ones?
L: Oh, yes, because when I've been asked about this before I remember it very
well. Most of them were very good. They were very complimentary. Of course,
they changed between Lewis I and Lewis II. I didn't know the reaction. Of course,
even before I entered Lewis I they were telling me, people like Rush Limbaugh
[right-wing radio personality] [were saying,] "He's a liberal Democrat," just giving
me a hard time. Then as soon as I entered my ruling on Lewis II, it's, "He's an
American stallion, a hero." So it depended on your perspective. That's what I
meant. All of these partisans don't look at the process. They don't look at it in
terms of did he do a good faith effort to decide what the law is. They say, "Do we
like how he ruled? If we did, he's a hero; if we didn't, he's a goat."
P: In fact, even Jim Baker even praised you. He said you upheld the rule of law. But
his kindness towards the courts didn't last very long.
L: Right. You have to kind of discount [some things]. You know you're going to get
those. Like I say, I think the bulk of them thought that I had applied the law and
used integrity. I think a lot of it is, as we talked about earlier, the perception that
you may not have agreed or you didn't like the result, but you were willing to do
what you thought was right. Of course, I had some that were saying, "This is why
they burned Atlanta, and we're coming to Tallahassee." Probably the best one
was the lady who had called our office several times talking to my JA [judge's
assistant], and she was from Louisiana. She had a real thick accent. She
basically said something to the effect of, "I hope you burn in hell and have a long
miserable life before that," and something about my anatomy too. But my all time
favorite, which I kept, was a card from a lady from Kentucky who started off and
said, "You are one fine looking man," and then talked about "that luxurious
mustache" and asked me a lot of questions. So I kept that. That's in the
scrapbook. My wife likes that one.
P: [Laughing.] Some of the Florida Supreme Court justices, after this four-three
decision, including Major Harding, had death threats. Did you have anything that
L: No. I mean, I might have had some vague allusions to that, but nothing that I
P: In their four-three vote, there are several issues that are important. Why do you
think they said just count the under-votes? I know that in the hearing you held,
Joe Klock said, "The law says you have to count all the votes." In fact, as I
understand it, in a contest, that's what the law does say. Do you think that they
misread the law, or was it a question of the December 12 deadline for
L: I don't know. I doubt it was that, but I don't know why. When I read that, they
talked about no-votes and under-votes. Of course, the issue came up later about
over-votes. I wasn't sure, and I've been asked before, "What were you going to
do about over-votes and things like that." I said, "Nobody argued it to me, in
terms of I didn't make a final decision [and] I have to listen to both sides," but I've
always been of the impression that I've indicated my gut tendency would be that
the intent was to count those votes that the machines did not count, if you could
determine the clear intent of the voter. An over-vote, to me, would be the same
as a no-vote because it just doesn't register as a vote. So over- vote, under-vote,
whatever you call it. It's an under-vote because maybe they didn't press the thing
hard enough or something, but there are a lot of over-votes where they voted for
two people and it didn't count. But if you look at the actual ballot, sometimes it
was easy to see that they, for example, circled two and the machine couldn't tell
the difference, it was two so it wouldn't count it, but they X'd through one of them
and they wrote in the name of the other one. So it's pretty clear who they wanted
to vote for.
P: I looked at some of these, they had bubbled in Bush and had written Bush in.
Technically, that's an illegal vote, but the argument made by the Supreme Court
was that if you could look at that and ascertain the will of the voter, it should be
counted. But they didn't count the over-votes.
L: I don't know why.
P: Also, I thought it was kind of strange in Nassau County where they did two
counts, and when they recounted they got fifty-one more votes for Gore, but
when they certified, they certified the original number, which was a machine
count. The Gore people had asked for those fifty-one votes, and the Florida
Supreme Court wouldn't give it to them.
L: Did they say why?
P: No, and I thought that was kind of strange, if they're going to give them votes in
Dade County and Palm Beach County. Now there was another issue in Palm
Beach County. There were two totals, 215 and 176. Apparently, they turned that
back to Judge LaBarga to reconcile the discrepancy. You didn't have to deal with
that issue did you?
L: Yes, and I didn't pay a whole lot of attention to those numbers at the time
because it was done very quickly. My main concern was how we were going to
get them all counted.
P: The way they argued this is, under Florida election law, if there are a number of
legal votes sufficient to change the outcome or place a doubt in the outcome,
then that triggers the recount, right? Your job was, in essence, not to make any
determination per se, but to carry out the recount of the under-votes. Do you
think they made a mistake in not setting a more specific standard than the intent
of the voter?
L: No. I think they did what the law required. I think perhaps they and I could have
handled that better. You mentioned earlier that when the U.S. Supreme Court
had their first thing and they set that date of November 26 or 27, they were
making up the law, that's nowhere in the statute. In defense of them not giving
more specific standards or criteria in terms of determining the clear intent of the
voter, that's all the statute says. It doesn't give you, "Do this, do that, [or rules for]
hanging chad." That's not in the statute, so they would have been rightly accused
or subject to the accusation, "You're making up the law [because] it's not there."
People have asked me would I do something different. If you ask me in hindsight,
I would have analyzed that issue a bit that night when we were talking about it.
What they said was, we need more criteria. "Well, you've already asked the
Supreme Court a couple of times to give [you some] and they haven't. This is
what they said will be the standard" and that's what I've got to go by. If I had the
chance to do it again, I would have made note of that, that, "You know folks, you
complained last time that they went outside the statute. Show me where it is in
the statute and we'll go with it, but if it's not in the statute we're going to go with
what's in the statute," and that's what the legislature did. The point that I've made
on that before is that doesn't give me a bit of heartburn. Everybody goes, "Oh,
lack of standards." That's what the U.S. Supreme Court complained about, but I
analogize it again to jury verdicts....
P: Reasonable man standard.
L: Right. And negligence cases are reasonable doubt. Have you ever tried to figure
out what reasonable doubt means in a criminal case? You may try a case with
very similar facts in Miami and one in Tallahassee and get a different verdict.
That doesn't mean that's illegal or it's violation of equal protection, that's our jury
system. So you have a canvassing board with the criteria of: is it clear what the
intent of the voter is. If it is, we count it; if it's not, we don't count it. That's another
thing I didn't do. I had a good sound byte and didn't use it, which my wife
suggested was, "If in doubt, toss it out. If the glove doesn't fit, [you] must acquit."
But that was a common sense thing and I could have done that. I could have
said, "No, that's the standard, but if you want a little bit of common sense
guidance for you, if you can't tell [by] looking at that thing real quick, then it's not
clear. So if it's not clear, you don't count it." If it is, I mean if you look it up, like
you had in the example, they crossed through this thing or they wrote Bush and
they also did it, that's pretty clear who they wanted to vote for. I don't think any
reasonable person would disagree [that] we count that vote.
P: The problem is really going to be on the under-votes and whether or not they're
going to count one corner, two corners, and that sort of thing.
L: Then again, if I've got to do this, then that ballot's going out. If I've got to look up
P: See if light comes through it...
L: Yes, it's gone.
P: David Boies [attorney for Al Gore] said it was a Catch-22. He said if the Supreme
Court had set a standard, they would have been overturned because they made
law. If they didn't set a standard, they violate Fourteenth Amendment, the equal
protection clause. He said he thought either way the Court went....
L: Not equal protection, maybe due process. That might be what they argued, equal
protection, I never have seen that for the reason I just mentioned. There probably
was a Catch-22, but I think they could have addressed it. Had they done that, or
if I'd have said something about it, maybe the U.S. Supreme Court might have
said, "We're not going to get involved, we don't see that as a particular problem."
But when you just say, "Here's a standard" and then somebody argues, "Well,
there's no criteria,"that sounds like a pretty good argument on the face of it. They
say, "There's no criteria, you had said any standards, it's just willy-nilly, whatever
they want to do." In that limited context, without giving an analogy like we're
talking about it, it does seem kind of arbitrary.
P: If you take it to the logical conclusion, there would be one voting machine and
one standard in all fifty states.
L: Right, and that's exactly what I've said. I've said, "Well, in that case we should
throw the entire election out because the voting machines in Dade County aren't
nearly the same as the voting machines in Leon County." There's been evidence
in the record already that, as opposed to a 98 percent accuracy rate, you're
going to have 75 percent or something. If equal protection is going to be the
basis, we're in trouble.
P: Let me mention also while we're on this, Justice Wells made a very strong
dissent to the Florida Supreme Court's 4-3 decision and said it had no foundation
in the law, that it was going to create a constitutional crisis, and made a kind of
interesting statement. He said this is not going to withstand scrutiny. He didn't
say by the U.S. Supreme Court, but if you look at the Constitution of the United
States, I think he was probably thinking about Article Two. And Justice Harding
and Leander Shaw also dissented [Florida Supreme Court justice, 1983-present],
and you know Shaw is thought of to be one of the more liberal members. Were
you surprised that the decision was four-three and that they had those three
L: No. My personal feeling is that I liked Harding's analysis of it. It's not that this is
not a proper thing to do, I think [Chief] Justice [Charles] Wells's [Florida Supreme
Court, 1994-present] observation was a little too critical because obviously
there's no precedent for this. But they were interpreting the law, and that's their
job, and he may disagree, obviously he did, that's in the dissent, but there's a
basis for them to conclude, "We've got a state contest. There's no real guidelines
on how to do that, so here's how we're going to do it." But I agree with Harding
and Shaw to the extent that what they basically said [was that], "We don't have
enough time to do this consistent with due process." If somebody made that
argument I can accept that, because we were doing everything lickety split. To
conclude that everybody can't be heard in arguments in a manner consistent with
due process is fine, I just didn't buy the equal protection problem.
P: It's pretty clear in their decision they were very aware of 3 U.S. 5 because when
they made that decision they said, "We're basing our decision on the contest
statute passed by the legislature." So, at least in that context, they were very
much aware of the plenary power of the legislature. But apparently their failure to
respond to the first remand from the United States Supreme Court may have hurt
them a little bit. Do you think that was a factor?
P: And think of what they had to do and all of the decisions they had to make in
such a short period of time. They just didn't get around to that remand response
until it was too late.
L: Yes. It's always easy, hindsight being 20/20. But obviously I think that hurts. In
that period of time you've got the U.S. Supreme Court in there. That's why I said,
that first opinion, I think, didn't help. Maybe they had a good reason, [but] I just
personally disagreed with it. I think it hurt because it was perceived to be
arbitrary and a "making up the law" kind of thing. So once you do that, you've
almost got a reputation with the U.S. Supreme Court. You come back, "Oh,
here's the Florida Supreme Court folks again" and you're almost prone to believe
they're doing something they shouldn't again.
P: You are going to implement this four-three decision. You order the Dade County
ballots, which are already in Tallahassee because Judge Sauls had ordered them
up, to be counted beginning at eight o'clock on Saturday. You call for judges to
help you. How exactly was that set up? Did the judges do the counting? Did you
do the disputed ballots?
L: In Leon County, yes, it was set up so that we had two judges per team. They had
the clerks of the court actually doing the counting and putting them over there in
a pile if there was some question about it. The judges were supposed to agree
[on these]. If they couldn't agree, they put it in a pile for me to look at. So that's
how they were doing it.
P: Did you actually look at any of those or were you stopped before you got a
L: I never got a chance.
P: Now at the same time, the counting of those votes go very rapidly. They're doing
like a 1,000 an hour, and I think there were 9,000 to be counted. You would have
finished those votes by the end of Saturday, would you not?
L: Yes. I think we would have had the reports from most of the counties by the
P: Which was two o'clock Sunday.
P: And you think almost all the recounts would have been done by that time?
P: What does that say about the Miami-Dade Canvassing Board's decision that they
couldn't finish the count when you could do it in one day and they had five days?
In your case, there's no protest, so it goes faster.
L: Yes, it was streamlined then. Nobody's going to object [now], you can object
P: In fact, in your order you specifically stated that you could have observers, but
they could not verbally object. Is that right?
L: They can make their notes, and if it came to it later, I could hear it all at one time.
I don't know what was going on down there in Miami. At first they said they're
going to count it, then they're not. I didn't know whether it could be done, but
apparently it could have been done.
P: When you implemented the Florida Supreme Court decision, did you actually
issue a formal order to each county?
L: No, I entered just one order and relied upon the Secretary of State to get it to all
the canvassing boards.
P: Was that done rapidly?
L: As far as I know it was. I think so.
P: You also asked that each county send back to you a plan for counting these
votes, but thirty something counties never sent back an outline.
L: I don't know. I mean, I got a lot of them. I never counted them, I guess. Actually, I
thought we got more than that.
P: That's why I asked that because a lot of times what you read in these published
reports is completely wrong.
L: I didn't do a count, but it seemed like I got reports from just about everybody.
P: One of the counties that had some problems was Duval because they had to
separate the under-voted from the rest of the ballots. It's possible they might not
have finished because of that.
L: That was the one significant county that I knew might be a problem.
P: I understand that Bay County sent you a fax and said, "We're not going to do the
recount since we'd done it right the first time." Do you remember that?
L: I know there were at least one or two counties who had actually already counted
manually. Of course, I told them "No, you don't have to count it again." I think it
was Bay County that sent me a fax that said something to the effect of, "We're
not sure that we're going to do it because we're not sure you have the authority
to order us to do it." I think that was Bay County. I sent them a thing back and
made a copy of the Florida Supreme Court opinion that said we're going to tell
the canvassing boards to do it. I said that's the only authority I have. If that's not
good enough for you....
P: This is the highest court in the state, if that doesn't work....
L: I'll let you take it up with them.
P: If you had some problems, let's just say the count continued, there would have
been a basis to appeal your decision. Is that right?
L: That's right.
P: One of the problems is you are running up against December 12th and that's
why you really had to get an expedited count.
L: Right. I wanted to get something, have some tally, [and] let them go appeal it,
which I knew they were going to [do].
P: All through this the Republicans are saying, "There are inconsistent standards
again, and there are judges counting in Leon County and non-judicial personnel
in other counties." Did you see that as a delaying tactic?
L: Well, obviously, they're the winners. They don't want anything to change that, so
they're going to do whatever legally they can to do it. I think I remember one
person commenting that they were making their arguments to the U.S. Supreme
Court when they were outlining all that stuff to me.
P: As a matter of fact, Phil Beck [Lawyer for George W. Bush] said that specifically.
He even said that you ought to set a standard. He had no intention of having you
set a standard, he just wanted to use that as a basis for appeal to the U.S.
Supreme Court. That argument seemed very perceptive.
L: Yes, I mean, that's what I would be doing. Obviously, the Florida Supreme Court
wasn't going to give them much help. They had said, "Let's do a recount, and by
God we're going to do it now."
P: Were you surprised when the U.S. Supreme Court issued a stay on the recount?
L: Yes, I was.
P: What was your reaction? I understand at one point that you got a fictitious
telegram from Justice Rehnquist telling you to stop the count.
L: Yes, I got a fake order. But when it was directed specifically me, I knew it was
P: It had to be directed to the court, obviously.
L: Yes. I was surprised that they took the first case because, generally speaking,
[they say,] "That's state law [and] we're not going to fool with it. [We'll] let ya'll get
it all over with and we'll see what it all is." But to do it [wasn't normal]. So I guess
I wasn't as surprised as I might have been had I not seen that first thing. Before
the Supreme Court got involved, the Eleventh Circuit [Court of Appeals] issued
an order that said, "Count but don't certify the election or anything like that till we
have a chance to review." I thought that made more sense. Obviously, there
were going to be issues and they obviously had heard it before. So that didn't
surprise me that even the Supreme Court would agree with that and say, "Okay,
don't begin certifying any results...."
P: But allow the counting to proceed. Because that Eleventh Circuit court, which
voted eight to four on that decision, is known generally as a fairly conservative
court. They didn't have any interest in the Fourteenth Amendment. Now the
major issue here, it seems to me, was when Justice Scalia writes the opinion,
and I presume he wrote for the majority in this case, and he said that there would
be irreparable harm to Bush and that you can't count the votes and then
determine if they're correct. But it's hard to see irreparable harm if Bush is in the
L: Yes, that's what I said. I didn't see the rationale. I didn't see why they would stop
the vote. I didn't see any irreparable harm. Everybody seemed to be so
concerned that this might get into the electoral college or it might have to go to
P: But there's a constitutional basis for that.
L: That's the way things work. If we can't resolve it the way the state legislature
said, and we get up to the deadline and they have to do something, they say,
"Sorry guys, but ya'll didn't resolve it." That gets back to what I said I think Major
Harding and Justice Shaw were saying, "We've run out of time." That would be
fine to me. "Well, you've run out of time, we can't take it, we're going to take the
electors that were there. You tried to contest it [and] you couldn't get it done, [so]
we'll take those. Or, we're going to take it up and resolve it in the electoral
P: This is interesting. Several people have said that in a historical sense, not so
much a legal sense, that it would have been better for the Supreme Court to
allow the recounts to be completed. They could still, as you said, rule on the law
and say they violated the Fourteenth Amendment. But the argument that comes
down is, what if Gore had gotten ahead? Then the Supreme Court would be
overturning a Gore victory, and that would have been a lot tougher. So you don't
know how they think, but that's one issue. Also, a couple of lawyers told me that
they thought it was much easier for the U.S. Supreme Court to overrule the
Florida Supreme Court because the Florida Supreme Court had a four-three
vote. It was a closer vote. Do you think that might have been a factor?
L: [I] don't know. I'd just be guessing. Like I said, there are a lot of people that know
a whole lot more about the Supreme Court than I do and have opinions, because
they know the personalities and things like that. I don't know.
P: What would be your guess based on what you know about the count of the
under-votes? Do you have any sense of how the election would have turned out
had that been completed?
L: No, all I know is I've read the various consortium of newspapers that have done
it. I do remember what I thought was fairly ironic was the conclusion that if they'd
have counted the way Bush wanted Gore would have won and vice versa.
P: Yes. If Gore had gone after the over-votes, and they never asked for that. There
is a remedy of course, although I guess you have to do it county by county, but
they could have asked for a statewide recount.
L: That's what I think should have been done. Like I said earlier, there was no way
just a few counties or districts were going to be counted. If this thing was going to
change, it was going to have to be everybody is going to be counted. They
should have gone right to the heart of it and said, "We've got a difference of 300
votes in this state. We have evidence that legal votes were not counted." Just like
the Florida Supreme Court eventually said, "Yes, let's count them all." They
should have had a statewide recount. They could have been doing that while the
contest was going on. If you brought it in and said, "We have this [and] here's
what we're going to do. If you're right, it's going to have to have a recount. If
you're wrong, what's the harm?
P: So they could have proposed a recount at the same time they were in the
L: Or while the contest was going on. In other words, I think there's fairly broad
powers for the presiding judge on a contest.
P: The judge can do pretty much anything, right?
L: Yes. Just like Sauls said bring up the ballots, I think he could have said, just like
we did at the end, "Counties, I want you to go through and any vote that wasn't
counted by the machine, I want you to count them if you can. If you can't, don't
count them, [and] let's see what we got." If you get to the end and you listen to
the evidence and there is a grounds to have a contest, obviously the remedy is
not to revote, so you count them. Who knows what would have happened.
Maybe it gets to the point and you say, "It's still so close. Even if the votes are
over on one side that's not enough to throw out the election, but we've counted
them. But those are illegal votes [so] they didn't count. They didn't vote like
they're supposed to do." Then the Florida Supreme Court looks at it and they
say, "No, you shouldn't count those votes." It would be the same way, but the
point is you wouldn't wait until December 9 or 10 to start doing that.
P: David Boies originally agreed to the December 12th as the Safe Harbor day, and
then when he saw time was running out, he said it could be the eighteenth. Other
constitutional lawyers say it could be any time up to the inauguration. There's no
specific date. There's certainly nothing in the Florida statutes or the Florida
Constitution. The December 12th deadline, as I understand it, is voluntary, but I
know specifically that the Florida legislature intended to ask for Safe Harbor.
Once that's the case then that does become the end date, does it not?
L: I don't know. You probably know more about it than I do. I knew that was out
there. All I knew was, "Whether you're right or wrong on the date, we need to do
it quick." I was going to play it as safe as I could and assume that the twelfth was
the date. You know, if we had some more time, then we did, but I didn't want to
count on it.
P: So, in your processing the Florida Supreme Court's order, you wanted to
complete it because of December 12t In the Supreme Court five-four decision,
part of that decision was, "We're out of time anyway." Because their decision
came back two hours before midnight on the twelfth, so it wouldn't have been
possible to count the votes anyway. Somebody mentioned that there were some
counties that continued counting after the stay. Do you know about that?
L: I don't know if it's true or not. I did hear that same day that in Okaloosa, or one of
those counties in the north west, [that] they were barricading themselves in and
they were going to count. I don't know if that's true or not, that could have been
P: One little thing that comes up is that in your order to carry out the Supreme Court
decision, you indicated that there would be no reporting of partial recounts, either
formally or informally. Then Ron Klain and others reported that Gore had gotten
fifty-eight votes. So the Republicans, playing hardball, try to have him cited for
contempt, that he had violated your court order. What was your reaction to that?
L: We had the hearing, but it was after the fact. I was pretty much [saying] there's
certainly no harm done at this point. It was a fairly minor infraction, if any, and
subject to differing interpretations, in terms of my order.
P: Whether it just applied to the canvassing boards or to everybody.
L: It's one of those things where, had it still been going on and we were doing the
counting, I would have reamed them out pretty good. [I] probably wouldn't have
him in contempt, but [I would have said,] "Don't you understand that this means
you" kind of thing. At this point, I said, "Guys it's over, they've stopped the
counting. Don't do it again." That's about all I did on the telephone.
[End of side A2]
P: What was your reaction to Bush v. Gore, the five-four decision by the United
States Supreme Court?
L: I have to admit that I didn't read it carefully. I watched a lot of the news reporting
on it. After the stay, I pretty much knew what was going to happen. My only
comment was, as I've said before, to the extent they based it on equal protection,
I just don't understand it.
P: That's certainly very unusual for the Rehnquist Court.
P: Do you see that decision as partisan? Justice Stevens said, in very strong
dissent, that it really was a blow to the credibility of the Supreme Court because it
looked like, from at least the public perception, a partisan decision by a
"conservative Republican court".
L: Yes, and similar to the Florida Supreme Court earlier decision that I mentioned. I
know those folks, and I don't question their integrity and all that, but it leaves the
impression when people look at it. The same thing with the U.S. Supreme Court.
I don't know any of those people so I'm not going to presume that they had any
bad intentions, motivations, ulterior motives, or whatever. But when you look at it
in the legal community, the professors, law professors, and people that look at it,
they say, "That just doesn't ring true, that doesn't persuade me, in terms of the
reasoning." You can't escape the perception, and that hurts. That hurts the courts
whenever that is [the case]. Every time something like that happens, people
[say], "See, I told you." Cynical folks say, "It's all politics and they're all going to
do what [is in their interest]." So that just knocks us down a few steps and you
have to build that trust back up.
P: Judge Richard Posner [7th Circuit Court of Appeals; author of Breaking the
Deadlock: The 2000 Election, the Constitution, and the Courts] said it was not a
strongly argued constitutional decision, but it was a pragmatic decision. Do you
think the Court at this point just wanted to end it?
L: I've heard that and read that. Probably so. It was a very pragmatic thing [to say],
"Enough of this, we're stopping this." But like we talked about before, what are
you stopping? You're stopping the natural, legal resolution of this. If we count
them and you don't like what happens here and you don't have enough time to
appeal and it goes to the electoral college or the legislature sends it up, so be it.
P: I noticed that Justice Ruth Bader Ginsberg [U.S. Supreme Court, 1993-present]
had a really strong dissent and her argument was basically, "We should never
have taken the case to start with." She said that maybe three times in the history
of the Court have they overruled a state supreme court on these kind of issues. I
guess that's the old Erie Principle, that the state courts know better how to
interpret state law. Then Justice Stephen Breyer [U.S. Supreme Court, 1994-
present] comes in and says, "Let's send it back and have them finish the count."
If the Supreme Court tells them, it is possible to recount. If the Supreme Court
says, "We'll send it back to you guys and you set a standard or whatever and
finish the count." Yet there didn't seem to be much support for that argument.
Could that have been done?
L: Sure. Both of those are very valid arguments, a lot more persuasive than the
majority to me. On the one it's, "We shouldn't get involved in this," and I said
earlier I was surprised that they did. I consider myself a very conservative judicial
person in that extent, so I would agree with the concept that you don't get
involved in something if you're not supposed to [or] if you don't really need to.
P: Why do you think they didn't focus a little more in their decision on 3 U.S. 5?
Some lawyers have argued this, that they would have been in better standing if
they had argued this is a violation of 3 U.S. 5, that the plenary power of the
legislature had made the statute, and they were, in effect, changing the rules of
the game after the election. Would that have had more constitutional standing
than the Fourteenth Amendment?
L: I don't think I like that one any better. Equal protection I don't like. If I had to think
about that a little more, I don't think that flies either because they specifically
said, "We're interpreting state law and applying state law. So you could say we
don't agree, we don't believe you, but you should have deference there." I
suppose, at some point, the reviewing court, the U.S. Supreme Court, could have
that same conclusion that they're wrong with that. It's just a slippery slope that
once you start down what's to stop you from anytime coming in and saying, "We
disagree with your interpretation."
P: One argument was that it's not right for an unelected court to decide for the first
time in history a presidential election. That seems to some critics to be a
violation, if you look at it the other way, of due process. You're taking away the
decision, theoretically, from the voters. Another issue that came up that I found
interesting is that many overseas military ballots were counted that were illegal
ballots. They either had no postmark, voted on the ninth, came in on November
19, or some were faxed in. There's no question about that. Those votes were
counted. But in Duval County, when some of the voters didn't vote correctly, their
votes were thrown out. In Duval there were illegal ballots thrown out, whereas the
ballots in the military were kept in. I know specifically that a ballot in Alachua
County, which would not have been counted, was counted in Okaloosa County.
They were exactly the same kind of ballot. Isn't that a violation of Fourteenth
L: Well, that's a violation of the election laws. It just makes hypocritical the
arguments that are advanced, like you were alluding to before, "Well, when it's
this way for us, we're going to argue this, when it's this way we're going to argue
the other way." But if you're the person in the middle, like the judge would be, it
ought to be the same. It ought to be applied the same way. The overseas ballots,
from what I've heard, was a strategic thing on their [Democrats] part not to
challenge those because they want to appear to be [hurting] "our poor service
P: They don't want to appear unpatriotic.
L: Yes. That you can't deal with. But if the issue is brought up, yes. I'm sorry if it's
not properly cast. Now if we're going to go with the general overriding
interpretation saying, "Yes, that's not quite right, but if we can tell it's a vote we're
going to give it to them." At some point, you can't even do that because you say,
"Well, you came in at 7:30 on Tuesday and the polls are closed. We can tell what
you voted because you handed it to us and said, 'I vote for so and so,' but we're
not going to count it." So at some point you have to cut it off. But, theoretically,
you could interpret some of those and give them a little leeway.
P: You come down on the side of the intent of the voter as opposed to strict
adherence to the law.
L: I'm probably in the middle. Since I'm a trial court, I'm going to follow what the
Supreme Court [says]. The Supreme Court says, when we did the Martin County
[case], they had just come out a few days before saying, "[Unclear], will of the
voter, if you can count it." So that made that call a lot easier. Again, it's hard to
give a blanket statement about where you fall except that if it's very clear and it's
the kind of thing that's not going to affect the entire process. In other words, if it's
an irregularity that's fairly innocuous, that doesn't threaten to affect the credibility
of the whole system. In other words, you can't let people just vote any way they
want to and not follow the rules just because we know what they want to do. On
the other hand, you shouldn't let form overrule substance. [You shouldn't] extol
form over substance all the time and say, "Yeah, maybe they put the stamp in the
wrong place. But geez, they substantially complied." [That] is a term that's often
P: Yes. If they voted for all ten presidential candidates, clearly, that's an illegal vote.
But the other argument is, an illegal vote's an illegal vote. If they don't punch it
through or they put it in upside down....
L: The punch things, that's what I said, that wouldn't be too hard. I would not be
looking up to that because, I'm sorry, but I can't tell. But if it's one of those where
it's fill-in the thing and they've done it, those are fairly easy to tell. Just because
they didn't follow the directions quite right, it's not like they did anything illegal. So
you have to look at every factual situation. It's the kind of thing where some
people would be saying, "Well, if they're too dumb to figure out the directions and
vote, then they shouldn't have their votes counted." Well, I guess that's a policy
or philosophical thing to do, but I think, generally speaking, these are people that
are fairly well educated. You know the butterfly ballots and all the things they had
down at Palm Beach. These are not people that are fourth grade education
people, these are smart people that didn't figure it out. We all make those kind of
mistakes. So if it's an innocent mistake, I'd be more inclined to say it's not an
illegal vote, it's a vote that wasn't counted by the machine. That doesn't make it
illegal, it's a vote. Just because we used machines. If you did it by hand would
you just throw it out? Can you tell? Because they didn't go to you and say, "I
need another ballot because I made a mistake," do you say, "Sorry, you don't get
another ballot?" [They reply,] "Okay, well, here's what I mean." "Nope, you didn't
follow the directions right." You could be too picky.
P: The idea is to help them vote. Gore said it's like a scanner. You know, you come
out of a grocery store and it doesn't pick up two items. Machines are not perfect.
Therefore, what's the remedy? It's look at it with the human eye. The downside is
that humans aren't always objective.
L: Right, and then you get back to the standards.
P: One other question that intrigues me. I talked with Tom Feeney, and the House
voted seventy-nine to forty-one generally on party lines to seat the Bush electors.
He argued that they were basing that decision on Article Two of the Constitution.
He said they have the plenary power to determine the process whereby electors
are chosen. Would you agree with that in terms of the right of the legislature to
seat electors even though the vote might have been for Gore? Then you get two
sets of electors.
L: I'm probably not knowledgeable enough to answer that intelligently. All I know is
from what I've heard, in terms of what that means. Because you did on the
federal constitution interpreting that as applied to not only our state statute, but
our state constitution. It would seem to me, just looking at it logically, that the
legislature under the federal constitution does have that right to decide that.
Whether that means that they can just say, "Okay, forget about the election,
we're going to seat these." I mean, what if there had been an election [with] no
question that Gore won, but they [say], "Well, you know, those voting machines
aren't all that good. We think from our exiting reports that Mr. Bush won. We
have a majority [so] Mr. Bush wins." No, I think they decided, in exercising their
authority, "We're going to enact this election code. This is how we're going to
decide our electors." That's fine, they can change it if they want to, but there's a
way to change it, and that's to have a session and pass a bill. But again, you
don't pass it retroactively, generally speaking.
P: He said they passed a joint resolution.
L: A joint resolution is a joint resolution, it's not law.
P: That's right. Which is an interesting constitutional question in and of itself. That
would set a dangerous precedent. If the Republicans were in power and the
Democrats won, they could say, "I don't like that, I'll change it."
L: What would happen is that it would all end up in court anyway. They would say
we're seating these people, that would be challenged.
P: Although, if they sent up two sets of electors, it would go to the U.S. Congress.
L: Which is fine, but you'd still be having somebody challenging in the state courts
saying, "They can't do that." It'd be resolved one way or the other, but it'd end up
in the U.S. Supreme Court. It's a mess, but I don't think, just from the little bit I
know about it, that the legislature would be able, by resolution, to just get
together and say, "We're going to seat the electors unless that's the way the
statute was written." They could write it. What they did was they wrote it in there,
"Here's how we're going to contest elections. There's no reason that it has to
come to us." They could have easily said, "We're going to have a dispute
commission if there's a dispute in an election, especially a federal election
because we've got to do it quick. The panel's going to get it [and] they're going to
look at whatever evidence [there is] and make a decision."
P: And they have the constitutional authority to do that.
L: It seems like they could do it either way. Or they could say it's going to come and
it will come directly to the legislature, and the legislature will decide to certify the
electors because their constitution says the legislature will decide. But they'd
have a hard time staying in office.
P: Of course, if the constitution says they decide the method, some people would
argue that the method was decided. The method was the vote, and you have to
adhere to the vote because that's what you chose as the basis.
L: They could write that in and say, "Here's the method. The method is people will
express their purposes by vote, the votes will be given to the canvassing board,
they'll count it, the legislature will get it, and if the legislature agrees we'll send it
up." Just like the electoral commission or electoral college. It could come up [and
they could say], "We're taking these people in but we're voting for somebody
P: As we know, at one time United States senators were selected by state
legislatures and not by direct popular vote. So they could literally change it any
P: How would you assess the performance of the attorneys who appeared before
you, understanding the pressure they were under? I was talking to Barry Richard
and he said he had something like forty-two cases.
L: I thought, almost without exception, [that] all the lawyers that appeared before
me were very professional, prepared, [and] made good arguments. Even though,
as we talked about, [there were] some tactical, strategic things that were done,
for the most part everybody agreed to cooperate, in terms of getting the issues
presented. If somebody [had] wanted to, they could have jammed things up
pretty easily. But they all did things by e-mail, they got copies to everybody
almost instantaneously, and really cooperated in that respect. I thought the
caliber was very high.
P: Do you think that changed the public's perceptions of attorneys?
L: I don't know. I think the public still saw that as "here come all the lawyers
trooping down to Florida." Although compared to the O.J. Simpson trial this was a
L: I mean seriously, if you're going to compare the legal system and you look at this
and you look at the O.J. Simpson trial, which got a lot of publicity, it's got to be a
P: What's your view of the Sunshine Law and the fact that all of these trials were
literally instantaneously seen all over the world.
L: I think it's great.
P: Do you think it affects anybody's performance in court because they're on
L: Maybe marginally. Florida's been doing it for awhile so I think the Florida lawyers
are pretty much [used to it]. I think once you get going, it's almost out of your
mind. You don't even think about it that much. Perhaps, in some instances [they
are aware]. Like we talked about Phil Beck, he knows other people are watching
[and] not just getting a transcript somewhere else. But that's okay. Considering
the entire picture, I think it's much better to have it open than it is to have [it] like
in the U.S. Supreme Court [with] an audio tape in there and pictures of the
people. I do understand the reluctance of that, especially when you have a trial
like O.J. Simpson, but that's not the answer to me.
P: Should the U.S. Supreme Court open it's doors to the media?
L: I don't see why not.
P: How did this experience change your life?
L: I hate to say it didn't change my life. Anything you do always changes your life,
but it's not like all of sudden I'm this person and now I'm this person. I don't think
I've changed at all. It was a very interesting time, and I'm glad I was involved in it.
I'm glad I got a chance to hear the issues and do what I do [as a judge]. I mean,
if you're a judge you like to make decisions like that, an interesting thing that I've
never had before. It's intellectually challenging, so it was good. I had my fifteen
minutes of fame so to speak because my picture was plastered on newspapers
and stuff and people recognized [me], "Oh aren't you that judge," or something
like that. But that died down pretty quick.
P: When you look back at your decisions, is there anything you would have
changed or done differently?
L: [Not] other than what we talked about earlier. I really think I would have done it a
little differently. I probably would have talked about the standards a little bit and
given some direction so that not only the general public, but also the appellant
courts, could have seen it's not just willy nilly. We do have some standards, we're
going to get it done, it's going to be as fair as we can get it. That's why I wanted
to use judges [in the recount of under-votes], [so] we don't have partisans.
P: As a matter of fact, I remember now that you mention is, the Republicans were
saying that the count in Leon County and Dade was chaos. The reality was it
went as smoothly as it could go, correct?
L: It was wonderful.
P: There were no problems at all, were there?
P: But the public perception, and maybe again they hoped Supreme Court justices
might be listening or watching.
L: Could be.
P: How much television did you watch during all this prime time?
L: A bunch.
P: Did you read a lot of newspapers as well?
L: Yes. People sent [them to me]. I got newspapers from all over the world because
here's your picture in Aruba or Italy or Japan or wherever. It was fascinating. I
was fascinated just like everybody else.
P: Is there anything we have not covered or talked about that you would like to
L: No. Whatever you're interested in, I'm glad to talk about. But it has been fun
because when you talk about it you remember things. You probably do put it
more in context [because] hindsight's 20/20. Like I said, there's some things I'd
do different, but [there's] nothing I can do about it now.
P: On that note we'll end the interview, and I want to thank you very much.
[End of the interview.]