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FEP 43 Summary
Summary of Interview (March 20, 2004)
McDermott gives his background before he was elected county judge of Volusia County in 1977,
a position he has held ever since. He was asked to be chair of the canvassing board during the
2000 calendar year elections. He describes the process of counting absentee votes during the
general election of 2000 and other circumstances of that event, such as who else was involved in
that process, members of the canvassing board, and the electronic process of counting votes. He
recalls that a defective memory card, which conveyed votes from each precinct's optical scanner,
had subtracted some 16,000 votes for presidential candidate Al Gore in a precinct of only a few
hundred voters. Another precinct lost 320 ballots when a defective ballot machine would not
accept any more ballots, and the operators decided to turn the machine on and off several times
which caused it to reset to zero. He adds that a recount of the paper ballots corrected the errors in
McDermott recalls that some absentee ballots were mangled by the machine that opened the
envelopes. He says in Volusia County military ballots were counted in accordance with existing
legal requirements. The interviewer pointed out that in Escambia County those military ballots
not conforming to the code were corrected and counted, some 800 of them, bringing up the
possibility that this action could have affected the outcome of the election. The interviewer also
pointed out that this practice was done by Deanie Lowe and her staff in Volusia County, not
previously known by McDermott. Florida election law requires a recount in close elections and
McDermott described how he and those involved came to define how to recount the votes. He
underscored that it is the statute which defines the procedure, not the persuasive opinion of those
occupying positions of authority. He recalls causes of concern of the vote tally such as an absent-
minded elderly poll worker who returned a bag of ballots left overnight in his car, though those
ballots turned out to have already been electronically tabulated, and other instances involving
bags of ballots being innocuously removed.
McDermott describes his actions as designed to ensure trust in the outcome of the election
results from that point on. Closing the elections office to the public was very contentious, and he
talks about his reasoning. He describes his involvement in the decision of how to perform the
recount. He discusses his conference call with Attorney General Butterworth.
McDermott describes reasons for conducting a manual recount rather than re-tabulating the
machine counts after hearing attorneys from both sides, the most persuasive argument being that
the decision for the next president of the United States hung in the balance. He recalls the time-
consuming hand recount process and security measures he took to safeguard the ballots.
DEn-43 MXAsppLo'c'c you 2
McDermott speaks about how hand-counted ballots amended the count to give Gore ninety-eight
additional votes, with the guide for each ballot's count being the intent of the voter. He recalls
incidents of how they determined the intent of the voter, as well as the events occurring outside
the recount area. He remembers his interviews with the various news media. To insure they
could complete the manual recount, he filed a lawsuit to extend the seven days ordered by
Katherine Harris per the statute. Though they were joined in the extension lawsuit by other
counties, including Palm Beach County, they withdrew the lawsuit because they were able to
complete the recount in time.
McDermott gives his opinion of the decision of Judge Lewis in Lewis I and Lewis II, the appeal
that gives Harris discretion in accepting the results of county votes. He feels Harris abused her
discretion in light of those who advised her, such as Mac Stipanovich, and her connection to the
Republican Party by participating in the campaign of George Bush. McDermott discusses his
feelings on the decisions of the extension of the recounts and of the U.S. Supreme Court decision
as well as other allegations of that election, such as deliberate voter disenfranchisement in
McDermott recalls instances that support his claim of Republicans stalling for time to cause the
recount to fail to meet the deadline. He summarizes lessons learned from the failures of the 2000
election and underscored that fraud was not included in those failures.
McDermott comments on his disapproval of the U.S. Supreme Court's decision on Bush v. Gore.
Other comments concern an interview for The New York Times and his unwanted sudden thrust
onto the public sphere. McDermott concludes with a few comments on his decision to micro-
manage the recount process and his handling of a bomb threat designed to fatally delay the
recount past the last moment.
Interviewee: Michael McDermott
Interviewer: Julian Pleasants
Date: March 20, 2004
P: This is Julian Pleasants, and I'm with Judge Michael McDermott in DeLand,
Florida. It is March 20, 2004. Would you talk briefly about your legal and judicial
background before 2000?
M: I graduated from Stetson Law School in January 1970. I practiced law as a trial
lawyer here in Volusia County, my office was in DeLand, for six and one half
years, until I was elected county court judge. [In] early January 1977, I became a
judge, and for the twenty-four years after that, through the end of 2000, I was a
county court judge here in Volusia County. [For the] first eighteen and a half
years I was stationed at the courthouse annex in New Smyrna Beach; thereafter,
I was transferred to the courthouse annex in Daytona Beach and presided there
the last five and a half years I was a judge.
P: How many times had you served on the canvassing board before 2000?
M: I would say, [and] I'm going to have to make a rough estimate here, at least ten
times, and probably more than that. The reason that I happened to be on the
canvassing board in November 2000 was that two years previous to that, I was
chair of the canvassing board for either the first primary or the general election, I
forget which it was. Afterwards, Deanie Lowe, [who] was the supervisor of
elections, talked to me privately and she said, I like the way you do things. You
get right to the point and you do not allow yourself to be distracted by
irrelevancies, and I would appreciate it if you could have this assignment on an
indefinite basis. I was about to rotate into a civil lawsuit assignment, so I knew
that I'd have much more flexibility with my schedule. That was calendar years
1999 and 2000 that I had several lawsuits as my primary assignment. So, I knew
that I would have the flexibility in my schedule to be able to do that. [During]
calendar year 1997 and 1998, I was doing misdemeanors, and that's a much
more highly structured thing because you have to have arraignment sessions all
the time and pre-trial conferences all the time, and at least one jury trial week per
month. So I said, well okay, I'll do that. So she wrote a letter to the chief judge,
sending a copy to me, and he called me and he said, Mike, do you want to do
this? I said, yes, I'm willing to do it. He said, okay, I'll enter an order just making
you the chair of the canvassing board whenever there's an election that requires
a canvassing board, and he did that. So, that's how I happened to be the chair of
the canvassing board at the first primary in September 2000, and in the general
election in November 2000. I was on vacation on the second primary, which was
in October 2000, but there were only a handful of races on the ballot of the
second primary. I think there might have been only one, so they had somebody
else cover that for me.
P: Were you on the canvassing board during the Beckstrom v. Volusia County
M: No, that was another judge, who's still on the bench.
P: Do you regret now having served on the canvassing board in 2000?
M: No. It was a huge amount of work, and for the nine or ten days in question,
rather than getting seven hours of sleep each night, I got no more than three [or
four] hours of sleep each night. I will say this, my secretary and I would talk a
couple times day while this was going on, and this was right after the
[canvassing] board had unanimously voted to conduct a recount, a full manual
recount, of all votes for President of the United States. She said, I'm going to tell
you what everybody over here is saying. I said, who's everybody? She [said],
judges, judges' secretaries, attorneys, deputy sheriffs, [and] court reporters, [are]
all saying the same thing. I said, what's that? They're all saying, thank God it's
McDermott, because he'll know what to do and he's got the backbone to crack
the whip over people.
P: Now talk a little bit about what Election Day was like for you and when you first
discovered that this was going to be an extraordinary election.
M: Well, the legislature has since changed the law on absentee ballots, which says
that you can now [be] processing absentee ballots up to five days prior to
Election Day. The law back then was that you cannot process absentee ballots,
that is, running them through the tabulating machine, whichever device the
county may have, until the polls open on Election Day. So all of us were
frantically busy putting several thousands of absentee ballots through the optical
scanners all day long, even into the night. In fact as I recall, we were doing it
even after the polls closed because there were that many absentee ballots
mailed in, not just from all over the country, but from all over the world. So, we
were very busy doing that. Problems would come up at precincts, so the three of
us who were on the canvassing board would get together and say, well, okay,
we'll do this, or tell them that. See, Deanie Lowe herself was on the ballot; she
was up for reelection.
P: So, she was not on the canvassing board?
M: That's right. She was our advisor, although we did also have the county attorney
there with us.
P: Okay, so Patricia Northey and Ann McFall were the other two members?
M: Well, eventually [they were the other two members]. To begin with, Ann McFall
and I forget his name, a man who since retired from public life, was on the
canvassing board. He participated in the vote to conduct a full recount, but he'd
had plans made and reservations made for a short vacation someplace. What
happened was that the county council of Volusia County had an impromptu
meeting in the elections office in which they voted to assign Pat Northey in his
position. So, the man who's name escapes me, but I'll think of it eventually, was
a member of the canvassing board through the decision to conduct a full recount
P: He was a county commissioner?
M: Yes, a county council member. After that the county council met in the elections
office either later that night, or I guess the next day. They had a quorum there,
some other people came in, and they said, well, he cannot be here so obviously
we're going to have to assign another of our number as a member of the
canvassing board. I talked to Pat Northey, one of them said, and she has agreed
to do it reluctantly. So, they conducted the vote and that's how it was done.
P: Now the original member, was he a registered Democrat?
M: I forget, I don't know.
P: I understand that Northey was a registered Democrat.
M: I don't know that either.
P: How about the other member, Ann McFall?
M: I have no idea about her political affiliation either, I don't think it ever came up.
P: At what point during the day of November 7, did you realize there were going to
be some problems with the vote counting?
M: It was in the evening. The various precincts would report their results over
telephone lines. Each precinct had one, or possibly more than one, optical
scanner, depending on how many people were registered to vote in the precinct.
P: Let me interrupt you. Are these precinct based?
M: Yes. In other words, in each precinct you would have one or perhaps more than
one optical scanner, and the results from each ballot being read were then
transferred electronically to a memory card, which is roughly the size of a playing
card except that it was about a quarter of an inch thick. Once the poll was
closed, then that memory card was placed in what I believe is called a modem,
and then the results were sent over telephone wires to the central facility in
DeLand. I'd go in there from time to time and you'd hear this strange squealing
sound as they would all be uploading into the main computer.
Two things happened that evening that at first I didn't realize were the same
problem. The first thing that happened, it seemed to me this was after the polls
had closed, I was still busy, I'm sure, struggling with absentee ballots, and the
county attorney came over to me. He said to me, something funny is going on. I
said, oh? He said, well, I've been looking at the results for president, that are
posted on some electronic bulletin board in the central office of the supervisor of
elections, and he said, more and more precincts are uploading their results into
the computer, but Al Gore has 10,000 fewer votes than he had about half an hour
ago. I said, that is strange, and I went back to work. Then about an hour after
that, the lady who is the number two person in the office directly under Deanie
came to me and she said, Judge McDermott, we have a corrupted memory card.
I stared at her for a few seconds and I said, what does that mean? She said,
well, I can tell by looking at it that it's been damaged. It was probably dropped on
a hard floor. Of course, by this time they were constantly delivering [ballots and
memory cards] from precincts from all over the county, the memory cards as well
as the paper ballots. I said, well I'm sure if we have the memory card from that
precinct, we, therefore, also have the paper ballots from that precinct. She said,
P: Now this is 216? Is that right? Do you remember?
M: It would be on the letter that I wrote to the Wall Street Journal. I said, so let's set
up a scanner here with a new memory card, and let's simply read those ballots.
Of course, once we read the ballots, we realized that there was a huge problem,
that indeed only ... If I can take a look at the letter I wrote to the Wall Street
Journal, I can tell you.
P: You said the count dropped something like 16,022.
M: Okay, now these are negative votes. Remember high school algebra?
P: Yes. [laughing]
M: These are negative votes for Al Gore, even though only a grand total of 219
people voted in that precinct all day long. So ,we realized that there was a huge
problem. This was perhaps by eleven o'clock at night when we finally recounted
electronically the results of that precinct.
P: And once you had done that, then you will report the new numbers right away?
Is that correct?
M: I forget exactly how we did do this. Deanie Lowe, [who] was the supervisor,
could tell you more about the nuts and bolts of what was done and how it was
P: The reason I say that is because at one point the news programs, CBS or ABC,
is calling the election for Bush. Then suddenly, the vote totals change and they
are saying, now it's too close to call. My understanding was that this shift,
16,000 votes or so, obviously changed the vote total of the entire state, and
therefore it was too close to call.
M: Yes. But recollection is that, electronically, the results from the re-tabulation from
that precinct were substituted for the original results that were uploaded.
Something else was going on at the time, and that is that by eleven o'clock at
night, we were starting to get some extremely nasty telephone calls from
Tallahassee from the Division of Elections. They were saying, what is going on
down there? Every other county in the state has recorded all of its results, and
you still haven't reported your results. Deanie Lowe told me that she said to the
elections people in Tallahassee, look, we're having problems, we're working on it,
we will send these results to you as soon as we have them. So, we were there
until three o'clock in the morning on the Wednesday.
P: Wasn't there another case where precinct 305 shut down and you lost 320
M: Yes. We did not discover that until we were in the process of conducting the
P: You didn't know that the night of the seventh?
M: Exactly. The only thing we knew for sure on the night of November 7, 2000, was
that one precinct had reported wildly inaccurate results, and they had been
initially uploaded into the central computer in DeLand.
P: While we're on that, what was the problem with the loss of the 320 ballots?
M: You're talking about the precinct that we discovered during the course of the
M: Well, Deanie Lowe conducted an inquiry with the people who were working at
that precinct, and what happened is that sometime during the day, when the polls
were still open, voters were coming in and marking their ballots and coming over
to the optical scanner to put them in, and the optical scanner would not receive
any more ballots. So they [decided] to deal with the problem by rapid
manipulation of the power switch: on, off, on, off, on, off, back and forth, and that
eventually did get the machine back into operation. The problem is that it
rebooted itself, apparently, and it cancelled all of the previous votes that had
been cast. It started back at zero. So, all these people were electronically
disenfranchised as a result of that good faith effort on the part of somebody
working at that precinct. Consequently, we re-enfranchised those people as a
result of the recount.
P: I wanted to let you comment on an article in the Washington Post by a woman
named Dana Millbank. She observed, and this is right after November 7, that
problems in the election supervisor's office in Volusia County were systemic due
to lax state oversight, inadequate funding, technical glitches, poor training, and
general ineptitude. What would your reaction be to those comments?
M: Well, in the [Daytona] Beach News Journal, an editorial, perhaps two weeks after
we completed the recount, said very much the same thing. I really don't have
any perspective on that because I voted myself earlier that day and my vote went
into the machine, so I did not observe any problems at the precinct where I vote.
I really do not have any perspective on how well organized or how poorly
organized the office was on Election Day of 2000.
P: We have an interview with Deanie Lowe, and she said she thought some of that
went back to Beckstrom, where they had taken the requests for absentee ballots
and had marked on them. I just wondered, do you agree with the Florida
Supreme Court decision in the Beckstrom case?
M: I haven't read that in a very long time.
P: It's interesting because it's going to be very close to what they're going to do in
Jacobs v. Seminole County. It essentially said that it did not in any way corrupt
the ballot, even though they marked on it, because it was a request for a ballot.
What becomes predominant is the right to vote, and, therefore, you have to allow
that to take precedence over hypertechnical glitches.
M: What they should have done, of course, is do what we did ourselves with
absentee ballots that came in all messed up. In fact, one of the problems that we
had is the machine they had opening them sliced several hundred ballots.
P: In 2000?
M: In 2000, yes. So we spent hours and hours and hours prior to Election Day
scotch taping them together and then duplicating them. We would have the
severed ballot, which we scotch taped together, and there would be two of us
working as a team, and we would make sure that we correctly reproduced what
the voter had done. Then there's a tab of receipt, so to speak, that you can
attach to the new ballot, so you can always check to make sure that the
reproduced ballot accurately reflects the votes as written on the damaged ballot.
P: While we're speaking on that, did you have many overseas military ballots?
M: Yes. Of course, the statute allowed for tabulating them after Election Day.
P: You've got ten days.
M: Yes, and we did that, I suppose it was the tenth day after Election Day.
P: Were there many of those that you threw out because they lacked either an APO
[Army Post Office] or a signature, or a witness signature?
M: There were some. Now, what percentage we might have disallowed, I cannot tell
you, but yes, the statute says what it says, and any ballot that did not conform to
the clear requirements of the statute was disallowed.
P: You do know that in counties like Escambia they accepted those ballots?
M: Oh, did they?
M: Even though the statute says that they did not comply with requirements?
P: In several counties, and the New York Times did a study of this and I forget what
the final number was, but something like 800 votes which would not normally
have counted, they went back and recounted those overseas ballots. They said,
this is a different set of circumstances, these are our fighting men, they get
special privilege, and, therefore, these votes should count. Now, there's no
specific way of telling who those votes would have been cast for, but I think the
general assumption, at least on the part of Democrats, is that most of them would
probably have been for Bush. But there's no way to tell that. So, that's another
issue. If an overseas ballot that is not counted, it's invalid in Volusia County, and
one that's counted, the same ballot, in Escambia County, isn't that a violation of
the Fourteenth Amendment?
M: It certainly appears to be. We did not engage in any social engineering. We
read the statute and we said, the statute has certain conditions, certain
requirements, and those ballots that are submitted in conformity with those
requirements will be allowed, and those that are not will be disallowed.
P: Just for an example, some of them had no APO, some of them were faxed, and
some of them were mailed from the United States that were supposed to be from
overseas. Obviously, that does not conform to the law, and they were, I guess,
invalid votes. Deanie Lowe, also indicated in her interview, very much like
Seminole and Martin Counties, that some of the Republican absentee ballot
requests did not have the voter ID number, so they put that number on for the
Republicans, and I had not heard that before.
M: Nor did I.
P: I just wondered, again, if it was legal, because both Judge Clark and Judge
Lewis ruled in those cases that it did not effect the actual ballot, therefore you
couldn't disenfranchise large numbers of people because of voter ID numbers
M: The voter ID numbers were put on by the canvassing board?
P: No, by Deanie Lowe or her staff.
M: Okay. Are you saying that was done in Volusia County?
P: That's what my understanding is, yes.
M: From Deanie Lowe?
P: Yes, which I had not heard that before.
M: Nor had I. I have no recollection that we allowed that sort of thing to happen, but
of course the thing is, whatever Deanie Lowe and her staff might have done prior
to the canvassing board meeting and passing on any questions, we would not
P: I thought it was interesting because it's clearly hard to know, legally, but it was
probably a violation of either election law or public records law. So, while it's not
criminally enforced, I guess, it was certainly bad judgement. At least that's what
they said about the elections supervisors in Martin and Seminole County. Now,
once the vote is one half of one percent, it's that close, there is an automatic
P: Did you get specific notification from the secretary of state's office to do an
automatic recount, or did you just go ahead and start?
M: My recollection is that it was obvious to us that we were well within the statutory
margin that mandated an automatic recount for president. I do not remember at
this time whether we received some kind of notification from Tallahassee
because it was obvious to all of us that we're going to have to do a recount.
P: When you do the recount, did you recount all the ballots, or did you just re-tally
M: Well, there was a long discussion because the Democrats contended that we
needed to do a physical recount of all the 184,000+ ballots. We had a very
lengthy discussion, at least two hours, in which the county attorney was heard,
the attorneys representing the Republican Party were heard, as well as for the
Democratic Party. We concluded that the statute required a recount simply
tallying the tapes that were printed out by the computer; however, with the
express agreement of the Republican Party, we did do a manual recount of
precinct 216, which had generated the extremely bizarre results on election night.
They agreed to that. So, when we concluded the meeting of Wednesday,
[November] 8, we were satisfied that we had complied with the letter and spirit of
P: And were there problems in this one half of one percent tally?
M: Not that I recall.
P: Let me read you what, and I think this is what the Democrats were talking about,
on June 22, 2000, Clay Roberts said as follows, "Checking the totals is not
enough. In order to do a recount, you should run every ballot through the
machines again. The secretary of state's office believes this is the only correct
way to conduct an automatic recount."
M: Who is Clay Roberts? The name rings a bell [but it has been more than three
P: He was the director of the Department of Elections. Was that presented to you at
all? Did you get any advice from the secretary of state's office or from Clay
M: It seems to me that the Democrats did present this letter from Mr. Roberts;
however, we took the radical step [of] reading the statute. We said, with all
respect to Mr. Roberts, we do not think the statute requires what he says it does.
It was the equivalent of an opinion of the attorney general [in that] it's not legally
binding authority. The legally binding authority is, of course, the statute, and any
appellate cases construing the statute. This one comes under the heading
generally referred to as persuasive authority, which is a bad name because
persuasive authority may or may not be persuasive.
P: Once you have done this automatic recount, what transpired at this juncture to
ultimately persuade you to do a full hand recount?
M: Well, there was one bizarre incident that occurred, it seems to me it was [during]
our meeting of [November] 8. In the middle of the meeting this elderly gentleman
came in, talking mainly to himself, and he walked up to the counter and slammed
down a bag full of ballots. He said, my wife was one of the poll workers and she
told me to take it back to headquarters election night and I forgot all about it. I
just realized now that these were in my car, so here they are. Of course, I'm
sitting there saying to myself, I cannot believe this is happening. It sounds like a
sitcom, something you'd see on television, but this was happening for real.
Obviously a lot of people were unsettled by that; I was very unsettled by that
because I'm saying to myself, I wonder if there are any more ballots out there
that should have been returned election night.
P: Although, it turns out those ballots had actually been counted, is that correct?
M: Yes, they had been counted because the memory card for that precinct had
downloaded and then uploaded into the main computer, so they'd been counted,
but of course they should have been physically returned to election central [on]
election night. So, it was in the eyes of some people a red herring; however,
there was yet something else that should not have happened that caused people
to be ill at ease about the reliability of the results.
P: There was another occasion of a woman who left with two bags, and people
thought that maybe she had taken ballots. I believe maybe you, or somebody,
got the Sheriff's office to go and actually, I wouldn't say apprehend, but discover
what was in her bags.
M: Well, here's what happened. I left election central [at] roughly three o'clock in the
morning on Wednesday, November 8, thinking that we'd finally got it right, and
got in bed. I don't think I'd fallen asleep yet. [At] roughly four o'clock in the
morning on Wednesday, November 8, the telephone rang. It was Deanie Lowe,
and she said, Judge McDermott, we have a problem. I said, now what? She
said, well, there are several people here, there are several people from the
Democratic Party and there are several people from the Republican Party, and
this attorney from the Republican Party from Ocala says that he, or somebody,
saw somebody leaving the voting office a little while ago with bags, and they
figured there might be ballots in those bags. So, I talked to him for awhile, and
he seemed [to be] a reasonable fellow, he wasn't crazy or anything like that. I
said, give me back to Mrs. Lowe. So I said, Deanie, I'm coming down there. How
many deputies are still there? Because during the day when the ballots were
coming in, there were three or four deputies there. She said, well we have just
one deputy here now. I said, I'm going to call the shift commander at the
communications center and tell them we need some more deputies. So, before I
left here I called the communications center for the sheriff's office and I said, I'm
Judge McDermott, I'm the chair of the canvassing board. [The sheriff's office
replied] Yes, Judge, I know that. I said, well we have a serious problem. There's
an allegation that ballots may have been removed. There's only one deputy
there now, I want two or three more deputies, and I need them there Code Three.
That means with lights and sirens. I said, this is a very serious matter and I
need to get things under control, and I need at least two, and preferably three
more deputies there as fast as you can get them there. He said, okay Judge,
we'll do it.
I didn't put on my coat and tie again, I was dressed very casually, as I am today,
and I went down there. Sure enough, there was about four or five Democratic
people and four or five Republican people, all of whom I knew because they were
very prominent politically and have been for many years, and there were several
sheriff's cars there by then, one of which was interviewing this woman who had
left. They had removed everything from her car and were inventorying
everything they had removed. Apparently, what was in the bags was dirty
laundry, as it turned out, because the sergeant who was in charge of that detail
came to me and said, Judge, this lady has consented to us searching her car.
[He said], we have removed everything from the trunk and from the glove
compartment, we've looked under the seats, [and] we even looked in the engine
compartment, [and] there is nothing in her vehicle that belongs to the department
of elections, no ballots, nothing. I said, okay, that's good news.
We still had some ballots that were not put in the vault, so I said to each group,
the Democrats and Republicans, we can't have all of you come in, but I'd like you
to designate three people from each group so you can observe us put, as I recall
they were primarily absentee ballots, in the vault and lock the vault, and so they
did that. Then, I talked to the representatives of both parties and I said, how
concerned are you people about the possibility that ballots might have been
removed? [They said], well Judge, we're relieved to hear what the deputies have
told us, but we're still wondering about it. The sheriff's office was in charge of the
detail, and by that time there were about four or five deputy sheriffs there. I said
[to the sergeant], I'm ordering that the public areas of this building be closed to
the public. I said, the only people that I want coming in here are members of the
canvassing board and the employees of the [supervisor of the elections.] I said, I
need to establish public confidence in the integrity of the ballots and their
security, and in order to do that I need to get total control over this building where
these ballots are being kept.
He said, okay Judge, if that's your order, we'll have this building closed. Shortly
thereafter he said to me, Judge, do you want us to set up a crime scene log?
That had a nice "take charge" sound to it, so I said, yes, by all means, let's do
that. It was only half an hour later that I got up enough nerve to say, sergeant, by
the way, exactly what is a crime scene log? He said, well, everybody who comes
in has to sign in and then [put down the] time, and the women have to have their
purses searched, and then when they leave, they have to sign out and [put down]
the time. I said, okay, okay, well keep on doing that.
P: By the way, they had crime scene tape around.
M: That happened later. When I came down there it was four o'clock in the morning,
so the office was closed anyway, at least as far as the public area. So, I left
about eight o'clock in the morning, maybe eight-thirty [or] something like that, and
by that time the sheriff's office had wrapped crime scene tape around the whole
building [that] says, police line, do not cross, or whatever they say. I thought to
myself, well this is overdoing it a bit, but I did order them to close off the public
areas of the building, and I did order them to set out a crime scene log, so I said
to myself, if that's what they want to do, that's their decision.
So, I went home and I thought to myself, I better call Rob Rouse, the chief judge,
and bring him up to date on what's going on because he's probably going to start
getting some phone calls. He and I go way back. He and I, when we were both
lawyers, used to slug it out in the courtroom. I called his office at nine o'clock
and he was there, and I said, I want to bring you up to date on what's going on.
He said, well let me take notes. So, I just walked him through, event by event by
event in chronological order, what went wrong. I said, and that's why I have
ordered the public area of the elections office closed to the public until I order
otherwise. There was silence on the other end of the line. He said, Mike, let me
make sure I get this, you closed the elections office to the public? I said, that's
right. There was more silence on the other end of the line. He said, well Mike,
you and I go back a long way, and I've always had a lot of respect for your
judgement, and if you think this is what needs to be done, you're the chair of the
canvassing board. He told me later that he got several phone calls from people
complaining, and he told me that his response to them was, Judge McDermott is
the chair of the canvassing board, it's his responsibility, [and] it's his call; I'm not
going to interfere with that. Of course, he knew that he could not order me to do
something or not to do something, that all he could do would have been to enter
an order removing me as chair of the canvassing board and assigning another
judge as chair. But he and I never discussed that because he said, well Mike,
based on everything you've told me, I think you're doing the right thing.
P: By this time I assume that the world press had descended on DeLand.
M: Well, it's interesting. Then I went out [at about 6:00 a.m. on Wednesday] and a
lieutenant from the DeLand Police Department was there. He was the watch
commander, and I told him what I had done. He said, well where should we park
all the TV trucks? I said, what do you mean? He said, when the word gets out
what you have ordered here, all the networks are going to be here. CNN is going
to be here. I said, well okay, how about this area of the parking lot? He said,
okay, we'll close that off to every vehicle except for television stations. I said,
okay, if you think this is necessary. He said, Judge, this is going to be
necessary. I said, okay, well that's my order. So, I came home, it was about
nine o'clock. I talked with Judge Rouse, for, it seems to me, it was about half an
hour, and he told me, I've known you for a long time, I've got confidence in your
judgement based on what you've told me, I think you've done the right thing.
Then I tried to go to sleep, but then my phones started to ring. The first
telephone call I got, perhaps ten o'clock in the morning, was from the county
attorney. He's a rather nervous fellow anyway, but on the phone he sounded
even more nervous than he usually is. He said, Judge, a lot of people are very
upset about the fact that you closed the elections office to the public. I said, well,
I was there at four o'clock in the morning, and I was there listening to the
concerns of the county officers of the Democratic Party and county officers of the
Republican Party, and I've done what I think is necessary. He says, don't you
think we can open it now? And I said, no. We had a meeting scheduled for one
o'clock that afternoon, of the canvassing board, and I said, what I want to do is to
have the representatives of the Democratic Party and the representatives of the
Republican Party to state to me in the presence of all the news media that they
are satisfied that the integrity of the ballots has been safeguarded, and that it is
no longer necessary to close the public areas of the elections office to the public.
I want them to ask me to reopen the [election office]. I said, that's how I want to
do it, I want it on the record. I want the people from both political parties to say
that in front of God and everybody, with all the television cameras rolling, so that
they'll be on the record as saying that they're satisfied that all of the ballots have
been safeguarded. He still wasn't happy about it and he said, you can't do it
before then? I said, no, absolutely not, and he hung up.
Then about an hour later, about eleven o'clock, the sheriff himself called me. He
said, Mike, a lot of people are very unhappy with you. I said, well I understand
that. So, I explained it to him again. I said, this is what I want to do and this is
how I want to do it, and this is when I want to do it, at the beginning of our one
o'clock meeting today, with all the news media there. That way all the
representatives from both parties will be on record saying they are satisfied that
the integrity of the ballots has been safeguarded. That will be a big plus for the
whole process. The sheriff said, you know Mike, I think you're right. I said, well I
hope I am. I told Judge Rouse what I'm doing and he said essentially the same
I don't recall getting anymore telephone calls that morning, so, shortly before one
o'clock I drove down there, and indeed, all the local television stations were
there: Channel 2, which is NBC, Channel 6, which is CBS, Channel 9, which is
ABC, Channel 13, which is a local news, 24-hour a day type of station, and
Channel 35, which is FOX. They all had their trucks there, and they all had their
antennas extended. It looked like a forest with all their microwave antennas
extended pointing down towards Orlando. I thought to myself, that [the]
lieutenant from the DeLand Police Department was right. So, I went in. Both of
the members of the canvassing board, Ann McFall and the man whose name I
still cannot remember, were totally bent out of shape. They said, don't you
understand we've got the Sunshine Law in this state, and here you are ordering a
public building closed to the public. This is an outrage. I said, well, you know,
talk is cheap. I came down here at four o'clock in the morning and the people
were very concerned about the integrity of the ballots, and I've done what I think
is necessary. Well, that did not mollify either one of them. They just kept on and
on and on. I said, we're about to convene a meeting of the board, and both of
you are out of order, and I said it in a way so that they knew I was very serious.
Especially the fact that there were all these deputy sheriff's around who were
willing to do whatever I said to do. The sheriff was there in his dress uniform;
white shirt [and all], he looked great. I said, Sheriff Vogel, please allow the news
media to come into this public area. So, they all came in like a herd.
The first thing I did was I got the Democrats to state that they were satisfied that
the ballots were safeguarded, and I got the Republicans to state that they were
satisfied all the ballots had been safeguarded, and I asked each one of them, is
there any need for me to keep the public area of this building closed to the
public? And, of course, each of them said, no Judge, no need at all. I thought to
myself, that's what I wanted. So, I turned to Sheriff Vogel, [and said] please
open this building to the public. [He had a] big smile on his face, and he had all
his deputies with him. Very quickly they took off the crime scene tape and a few
people came in, because most of the folks who were gathered around were news
P: Now at this point, do you go on with the canvassing board meeting?
P: Okay. Describe to me what happened at that point.
M: As I recall, it was pretty much a mechanical thing, cleaning up loose ends. I don't
think anything of any significance really occurred at the one o'clock meeting.
P: So, at this point you're not yet considering doing a full manual recount.
M: Oh no, absolutely not. We might have said, you know, the results are pretty
close, it looks like we're in the area where we're going to have to do a mandatory
recount. We probably discussed that and we all nodded, yes, we're going to
have to do that, but that's no big deal, we were thinking to ourselves.
P: Now, by law, obviously, the canvassing board has the right to call a recount, they
can do that legally on their own, but I noticed in talking to Judge Burton in Palm
Beach County, of course this is his first time, they ended up requesting an
opinion from both the secretary of state and the attorney general, and as you
know, those were two opposite decisions. How do you interpret the law? The
law says that there has to be a problem with the voting technology, or words to
that effect. It doesn't say voting system. Did you interpret that to mean
machines, or the fact that there might have been some ballots that were missed
by the machine?
M: Well, clearly the events of election night, which was the thousands of negative
votes reported for Al Gore, indicated that there was a malfunction in the
tabulating mechanism. Then, of course, with the elderly gentleman coming in.
But that was later, that was Wednesday night. It was just unsettling, even though
the recounts showed that all the ballots cast in that precinct that day had been
accurately uploaded into the computer.
P: And Al Gore had won by about 15,000 votes, or something like that, in Volusia
County. Did you at any point consult either the secretary of state or local county
attorneys about whether you should have a recount?
M: No. You're aware that I did receive a telephone call from the Attorney General,
[End of side Al]
P: Discuss the phone call you got from Bob Butterworth, attorney general.
M: Well, first I got a phone call, and I suppose this was in the afternoon of
Wednesday, [November] 8, because it was still daylight, I can still picture that.
Somebody said, Judge McDermott, Judge Rouse is on the line. Judge Rouse
was then the chief judge. So, I went back into some office and I picked it up and
I said, hi Robby, what's on your mind? He said, Mike, I've gotten a phone call
from the Attorney General. I said, what's the Attorney General have to do with
this? But then I thought, well, he's the chief law enforcement officer in the state,
and there was an allegation that ballots might have been taken, which would be a
crime. I said, so, what's he want? He said, he wants to talk to you. I said, about
what? He said, well, I'm not sure. I said, okay, so then he hung up. Then maybe
ten minutes later it was Judge Rouse again, but there was also Mr. Butterworth
on the line, so it was a conference call. I was in DeLand, Judge Rouse was in
Daytona Beach, and Mr. Butterworth was in his office in Tallahassee.
Very quickly Mr. Butterworth starts talking to me about his contention that the law
requires a full manual recount of all ballots for president of the United States. I
had read the statute and I did not read the statute that way. He talked for no
more than a minute and a half and I interrupted him. I said, Mr. Butterworth, in
what capacity are you making this call? He said, as attorney general of Florida. I
said, well, my understanding is that you are also the state campaign manager for
Mr. Gore. [He said], oh yes, that's true, but I mean the election's over now. I
said, Mr. Butterworth, with all due respect, I believe that you have a conflict of
interest. He got very huffy. He said, well, if you want me to leave, I'll just leave
the room and I'll let you talk with one of my associates. Before I could say
anything he put the phone down, and whatever room he was talking from did not
have carpeting because I could clearly hear his footsteps as he's walking toward
the door, [and] then I heard the door slam. Then somebody else comes on, a
man, a deputy attorney general I'm assuming, and he starts saying the same
thing to me, our contention is the statute requires a complete manual recount. I
interrupted him and I said, listen, I can read the statute. The board will make its
decision based on our reading of the statute, and we do not need any further
advice from Tallahassee, thank you and goodbye. Now Judge Rouse is still on
the line, and by this time it was obvious that I was irritated. I said, Robby, I do
not want any more phone calls from Tallahassee telling me what I have to do or
what I don't have to do. I said, I can read the statute, and we've got the county
attorney here, and I'm sure we'll have plenty of attorneys from each party to help
us in analyzing the statute. I don't want any more of this. He said, Mike, I
understand, and I assure you there won't be. So, he hung up and that was the
end of that discussion.
P: Let me give you Bob Butterworth's interpretation of the same story. What he said
was that he got a telephone call from the sheriff telling him that the canvassing
board was not counting in accordance with the law, and apparently somebody
else, a county commissioner, it was never quite clear who he was referring to,
also had some problems. So, he did decide to call Judge Rouse, and then get
through to you. What he said, and he pretty much said what you said, that you
didn't want to talk to him and you thought he had a conflict of interest, so he did
hang up the phone and walk away. What he also said, and I'll quote him, "I did
not intend to pressure the judge, but to make sure that he followed the state law."
Now my question to Butterworth, and to you, would be, why wouldn't he go to
Clay Roberts, and have Clay Roberts call you, or why didn't he make the same
phone call to others? There were eighteen other counties that re-tallied the
results that didn't recount the votes. Why wouldn't he have made phone calls to
the other eighteen counties?
M: Did he tell you that he did not?
P: He did not.
P: He just called you.
M: It was obvious to me he was trying to pressure me. See, people who know me
realize when anybody tries to pressure me I tend to dig in my heels. That's
exactly the wrong thing to try to do with me, is to put any kind of pressure on me.
And, of course, I was about to retire, so what are they going to do to me? But, to
me, it was an obvious attempt to put political pressure on me. Here's the
Attorney General of the state of Florida calling me, but the point you make about
Mr. Roberts is very well taken. Of course, Mr. Roberts is not with the attorney
general's office. He was the Director of Elections under the secretary of state, a
totally different [office].
P: And as you know, it was even on the Attorney General's website, the opinion of
the secretary of state's office is binding, but his opinion is merely advisory. So he
knew that, he knew that his opinion was advisory. Now, also I should say what
he saw, and eventually the Florida Supreme Court will agree with his judgement
by a close vote, that what should have taken place, according to his
interpretation of the law, was that all the votes should have been recounted in the
automatic recount. The secretary of state, of course, had a very different opinion
on that. He said the reason he intervened, because as the chief law enforcement
officer of the state of Florida, if he saw the law was not being properly enforced,
that he had an obligation to intervene.
M: Well, I don't accept that simply because it's not his duty to enforce election laws.
It's his duty to investigate possible criminal conduct and, where his office deems
it advisable, to initiate criminal prosecution.
P: Deanie Lowe, by the way, agreed with you. She said she thought that the
purpose of the call was to pressure. So, after this phone call, what do you now
do in the canvassing board?
M: I went back to the canvassing board and told them that I'd gotten a call from the
attorney general, and that it was a very brief call because I terminated it. But my
recollection was that they, [the canvassing board], felt that procedurally I'd
handled the matter correctly. I said, whatever we do I want it to be in front of
God and everybody. I do not want to get any of us involved in private
discussions with anyone regarding what we're going to do or what we're not
going to do or how we're going to do what we do. My recollection is they agreed
with me on that.
P: What process did you go through to actually decide on a recount? Did you have
M: We had a meeting, and this was at night. And by that time the lawyers from the
Democratic Party and the lawyers from the Republican Party were arguing.
There were obviously very different interpretations of the statute about what form
the recount should take. After the meeting, as I recall it lasted at least two hours,
we decided that the Democrats were wrong, that the statute did not require a full
manual recount but simply a re-tabulation of the tapes from each precinct, and
that's what we did.
P: But at what point, and for what reason, did you decide to do a full manual
M: Well, that takes us back to Thursday night, which would be November 9. Also, at
another evening meeting of the canvassing board, the Democratic Party
submitted a written request to conduct a full manual recount. Of course, we
heard the discussion at great length from the attorneys from both the Democratic
Party and the Republican Party about their various perspectives on that question.
P: Were these local attorneys, or were these outside attorneys?
M: At this point they were local attorneys, for the most part. Except for the one
infamous attorney from Orlando who was invited to leave.
P: Brown, is that his name? David Brown, yes.
M: Is that what it is?
M: But we're getting ahead of ourselves. Generally speaking they were Volusia
County attorneys. The bottom line with us was at that point the news media was
stating that the margin between George Bush and Al Gore was fewer than 400
votes. This is out of more than 6 million votes cast. We realized that we had
some serious problems in terms of public confidence in the accuracy of our
numbers simply because of the malfunctioning of that one precinct on the night in
question generating thousands of negative votes for Al Gore, and then the
incident of the elderly gentleman coming in and plopping down the bag of ballots
on the counter the previous night. All three of us on the board said, listen, the
Presidency of the United States is in the balance, we have got to make sure that
our numbers are accurate because we do not want the race to be decided based
upon an inaccurate reading of our ballots. So, we discussed it among ourselves
and then we unanimously voted to conduct the recount. Now, after we had made
that vote, the attorney from Orlando, and you told me his name, I don't know [if]
that's his name, he continued to argue, as he had done previously, that we ought
not to conduct a full recount. I said, excuse me, we have already voted to
conduct the recount, and that did not stop him. He kept on arguing again, we
ought not to conduct a full recount, [so] I said to him, you are out of order. And
he said, you are out of order. That's why I looked at a deputy and I pointed to
him and I said, remove him, now. All the television stations picked that up, my
pointing at him and then the deputy sheriff taking him out. See, a Volusia County
attorney would have known better than to try a stunt like that with me.
P: At this point, do you immediately start the recount? Because at some point you
move the ballots to the County Administration Center.
M: Right. No, we concluded the meeting after that, but then we got together the
next day, and that's when Deanie Lowe got together with people from the county
manager's office about how we're going to do this. In fact, as I recall, we started
the recount actually in the elections office, and it became obvious that there was
just not enough room. We did not have enough people, and we were stumbling
all over each other. That's when, I guess it was sometime later that day, that
Deanie came in with one of the assistant county managers and they said, you
know what we really ought to do is move everything across the street on the
ground floor of the County Administration Building. They've got, I think it's called
the training room, and there's plenty of room there and we can set up tables.
The following day, which I guess would have been [November] 10, we did that.
We had trucks and we had deputy sheriffs all over the place. Also, by that time,
several officers or agents, I forget what they're called, from the Florida
Department of Law Enforcement, came in. They told me that they had been
ordered to help us out by a request from the secretary of state. Of course,
they're dressed in business suits, they look like businessmen, but I said, I want
you to wear your badges so that everybody can see that you're a law
enforcement officer. It seems to me there were four of them, four or five of them,
and they were with us to the very end.
P: In other words, the entire time you had pretty effective security for the members
of the canvassing board. Did they accompany you home, or did they try to make
certain any time you went out that you were protected?
M: They didn't follow us home. See, my main concern was protecting the integrity of
the ballots, as well as the process itself. As long as we were there in the
elections office, the ballots were locked in a vault. Once we moved across the
street, the ballots were kept in a room that we sealed every night with crime
scene tape, but it was not nearly as secure, physically, as the vault. So, one
thing that I ordered was that [it be guarded]. I would say the sheriff's detail had
nine or ten deputies, in fact it was commanded by a major, the one who was in
charge of the service division, and then we had four or five FDLE officers, and
then we also had several uniformed but unarmed guards from the jail. Now,
once again, the deputy sheriff's and the FDLE officers were armed. So, we had
a lot of security there, but during the nighttime, when we would go, I ordered that
there be a detail of one sergeant plus three deputies to safeguard the ballots
during the night.
P: Did you get any death threats, or anything of that sort, either by phone or email?
M: I did not.
P: Did anyone?
M: I'm not aware of anybody else getting any death threats.
P: I bring that up because in Palm Beach County and other counties, they got some
very serious kinds of death threats so that every time Teresa LePore went back
and forth, there was a SWAT team that followed her around.
M: Really? No, I never received any [death threats]. I talked to my secretary two or
three times a day and had there been anything of that nature coming into my
office in Dayton, she would have told me that.
P: What happened at this point as you're organizing the count? Do you use county
employees and allow one member from each party to watch, so that there would
be four people looking at the votes?
M: Here's what we did. We set up twenty to twenty-five tables, something like that,
in the training room, and at each table there were four people. The ballots were
to be handled by two county employees. The two county employees would be
sitting across the table from one another. One would have a stack of ballots,
uncounted. That employee would hand it to the other employee across, and that
employee would then show it to the other people, a representative of the
Democratic Party on one end and a representative of the Republican Party on
the other end, four people at each table. If they were all able to agree that, yes,
this is a vote for whoever, that was tallied both by one of the county employees,
as well as each party representative. Now, if they are not able to agree on what
the vote was for president, then that went into an envelope which came to the
canvassing board to make the decision.
P: Were you deciding them as you got them?
M: Yes, we were.
P: And what standard did you use?
M: The intent of the voter.
P: I should point out you have the optical scan machines. If somebody had not
blackened the oval but had circled Bush or had written in Bush, would you then
award that vote to Bush?
M: Yes. It's amazing how creative people were in mis-marking the ballots, and I'm
sure these were virtually all absentee ballots because if you go to a precinct and
you mis-mark your ballot, it's going to be rejected by the optical scanner right
there. You put it in the slot [and] it'll kick it right back to you.
P: So, technically you can't overvote.
M: Exactly. The poll worker would say, well, you've mis-marked your ballot. Let me
take this one from you, let me give you another blank ballot, and please vote for
only one candidate for president [and] fill in the oval. On the ballots that we had
to look at, somebody would fill in an oval for one of the candidates for president,
for example, then they would cross through that, and then they would draw an
arrow to another candidate and say, this is the one I want.
P: So, the machine can surely read that. [laughing]
M: Yes. So, the thing is, we had to look at several hundred ballots, and in most
cases we were able to discern the intent of the voter, mostly by majority vote.
Sometimes it would be two to one, and sometimes I would be in the majority
[and] other times I would be in the minority. But in the vast majority of cases, we
were able to unanimously agree on what the intent of that voter was.
P: Did you have a lot of undervotes?
M: I forget.
P: There's really no way that anybody could tell anything. Thank goodness you
didn't have one of these Vote-a-matic machines where they might have a dimple
or hanging chads; you didn't have to worry about that kind of decision I guess.
P: That's interesting. I guess the crux of this election is, what takes precedent?
Whether or not, technically, the voter has voted properly, therefore punched out
the name or blackened the oval, or intent of the voter. Because as I understand
it, after you hand counted, there were ninety-eight additional votes for Gore?
M: That's right.
P: So, that puts some pressure on the system, because obviously the machine
count, if you use the intent of the voter, was not as accurate as the hand count.
M: Well, the thing is, I'm certain that virtually all of the problem ballots were
absentee ballots, for the reason I indicated earlier. But we continued to be
amazed at the number of different ways that people would mis-mark their ballot,
so that it would be rejected by the optical scanner. But once we looked at it, in
the vast majority of cases, we could say, oh, he obviously thought about it and
changed his mind two or three times, but the final choice of the voter is this
because he wrote it out in his own handwriting in the margin and crossed out all
his previous votes. Now, there were a few cases where the ballot was so
inherently contradictory that we were not able to ascertain what the intent of the
voter was, because once again, that's the statutory mandate, to ascertain the
intent of the voter.
P: But again, what the Republicans were arguing was that the votes were actually
invalid. I don't want to take this to a pejorative level, but their attitude was that if
they're too dumb to vote, their vote doesn't count.
M: Well, that sounds like a typical Republican response. I would like to state on the
record [that] I am a registered Republican, and I was then. And I think that
probably helped somewhat with the Republicans because they said, well he is
one of us. But I've always voted for the candidate that I consider to be the best
candidate, and I've never voted a party line. And let me say this too, one of the
phone calls my secretary got one day was, somebody called in to complain.
They said, Judge McDermott is a Republican, but he's not acting like a
Republican. And my response to that was, you're exactly right, I'm acting like a
P: Which you're supposed to do.
M: That's right, that's my job.
P: Were you offended, and I've heard this from just about everybody, they assumed
that because Judge Lewis and Judge Clark were Democrats they'd vote for
Gore, they assumed since Teresa LePore was for Gore that she would do certain
things. It's rather interesting that the public perception of public servants and
judges would be that they would vote on the basis of their political affiliation. Is
that offensive to you? That's probably the wrong word.
M: I've got a pretty thick skin, and I've been called a lot of things over the years, and
I've long since learned to just let things go by. Perhaps offensive is not the right
word, but my view is that I'm a judge, I'm required to follow the law, even where I
myself might disagree with the law. My duty under the law is to follow the law.
Everything that we did was under very close scrutiny because, for example at the
table when we'd have the meeting of the canvassing board, there was at least
one representative of the Republican Party there to observe everything we did,
and there was at least one representative of the Democratic Party to observe
everything we did. We allowed them to be heard on individual ballots. At first we
would discuss, well it looks like this is a vote for Gore. What does the
Republican say? Oh, I don't think so Judge. In fact, it got actually funny for
awhile because you'd have a ballot that would be creatively mis-marked where
we would determine that the voter wanted to vote for Gore and the Republican
would object, in fact they even took photographs with a digital camera of any
ballot that they weren't happy with. Yet, we would get another ballot that would
be just as mis-marked, it's actually the same way, and we'd say, well it's obvious
to us that this is a vote for Bush. I'd turn around and say, are there any
objections by Republicans? And they'd say, no, no objection. I'd say, are you
absolutely sure about that? Because it seems to me two ballots ago we had one
where we concluded that the intent of the voter was to vote for Gore and you
objected vociferously, and here we are with the same kind of mis-marked ballot
and we're saying that it's our interpretation that the voter intended to vote for
Bush, and you're not objecting.
P: And, of course, I presume the Democrats would object to that?
M: No, the Democrats for the most part were pretty reasonable. The Republicans
P: Also, wasn't there some sort of rowdy Republican demonstrators outside the
M: Yes. That was roughly halfway through the recount, as I recall. I ordered the
doors to be opened because with all those people in there breathing and exhaling
water vapor and carbon dioxide, it was getting a little stuffy and the air
conditioning system was really not designed in that room for all those people.
[Plus] it was early/mid-November, so it was cool outside. I said, let's open the
doors so we get some fresh air in here. So one day, as I recall it was in the
afternoon, I heard a group of people yelling, "Bush", in unison. Then another
group of people yelling, "Gore," in unison. They were going back and forth, back
and forth. I said to one of the deputies, what is going on out there? This was on
the lawn of the county administration building very close to where we were
working. He said, well there's some Bush supporters and they're chanting, and
then there's some Gore supporters and they're chanting. I said, move them off
this property. Tell them they have to go across the street to the steps of the
courthouse. As I recall, it was the Major in charge of the sheriff's detail, [and] he
stared at me in disbelief. I said, I just gave you an order, move them, and move
them now. He says, okay, okay. They went across the street to the steps of the
courthouse and they chanted back and forth at each other for no more than half
an hour, I guess they got hoarse, and they left and they never came back. Of
course, by this time the international news media were there, so the county
information officer, I guess that's what his title is, set up a tent, and two or three
times a day we would have a news conference.
P: Would you conduct it yourself?
M: Well, I would be the primary interviewee, if that's the right word. But, I mean I'd
go in there and there were several rows of chairs where the reporters were, and
then in the back I counted a total of twelve television cameras, each on its own
tripod. There were people from the New York Times and the Wall Street Journal
and from CNN, as well as all the national networks. By this time, in addition to
the trucks that had the big antenna stands up to send the microwave signal back
to Orlando, there had arrived several very large trucks that had satellite dishes
on them. So, after I ordered those people removed, the first question in the news
conference was, Judge McDermott, did you order those demonstrators removed
from this property? I said, yes I did, and here's why. [I said], there's a time and a
place for everything. Now, traditionally in this county, the place to make political
statements is the steps of the courthouse, and that's the place to which I ordered
them removed. I said, secondly, this is not a political event. We are recounting
votes that have already been cast, and I'm not going to allow this location to
politicized by anybody. And much to my amazement, there was no follow up
question to that. They all seemed to accept that, yes, that's the reasonable thing
P: One of the things that I remember coming out of here when the tv stations started
reporting, the first thing they started talking about were the bags in the car, the
woman with the bags leaving, and they sort of just blew it completely out of
proportion. Were you aware of what was being reported on television?
M: In general. With twenty-four hour news, they have to talk about something don't
they? But once the international news media got there, we put that to rest pretty
quickly. We explained to them the investigation that the sheriff's office had
conducted. I also explained that I got a commitment on the record in front of all
the news media that each party was satisfied that the ballots had been protected
and preserved, and there's no question about the integrity of the ballots
themselves. So, in terms of questions that were asked of me, after we had been
going about a day or so, those were no longer presented to me.
P: One of the things I forgot to ask you, for example, one thing Palm Beach did,
they took a one percent count. The Democrats, or whoever was bringing the
request, can pick three precincts up to one percent of the vote, and the
canvassing board looks at that to see if there is a basis for full recount. You did
not do that?
M: No. We made a decision, either we should do a complete recount of all votes, or
we should not. My [idea] is if you're going to do something, either do it and do it
right, or don't do it.
P: At this point you were aware, I'm certain, of Secretary Katherine Harris' decision
that she was going to certify the election, as the law states, seven days after the
vote, which would have been November 14. At what point did you determine you
might not get finished by that time, and at what point did you decide to file the
M: Well, we realized rather early that there were a number of problems. Finding an
appropriate place to do the recount and get organized and everything. I forget
exactly when it was, but it was very early. One of the meetings we had of the
canvassing board while the recount was going on I said, listen, we need an
insurance policy. We need to file suit against Katherine Harris seeking a court
order which would allow us to go beyond the seventh day in the event that we're
not finished by then. The board agreed, and so the county attorney, pursuant to
our instructions, filed the lawsuit.
P: So, that was your idea rather than say, the Democrats?
M: I forget. It seems to me it was my idea because I remember saying these words,
we need an insurance policy. If you look at the statute in one place, the seven
days is ironclad, and then you look somewhere else and it looks as though
there's some wiggle room.
P: That was the vague statute that said late returns, "may be ignored" or "shall be
M: Exactly. I said, I don't know, looking at the statute as a whole, what it means. I
do not know what it means, so we need to file a lawsuit to buy us an insurance
policy, buy us some time, in case we are not able to conclude in seven days.
P: Palm Beach County joined that suit, as did Al Gore. Did you talk with Palm
Beach County at all about joining the suit?
M: I did not. Our county attorney told me that Palm Beach County had intervened
as a party plaintiff in our suit, and I said, well, that's up to them. I did not discuss
the matter with anybody. Once we had concluded within the statutory seven
days, I told the county attorney to get on the phone to the county attorneys in
Palm Beach County and say, we no longer need this lawsuit, so we're going to
dismiss ours, but I said, tell them what we're going to do so that we do not create
problems for them. He said, okay, and he did that. Then he got back with me.
He said, I talked with the county attorney down there and told him that we're
going to dismiss our appeal of Judge Lewis' ruling, but we want to make sure that
we don't do anything that would in any way jeopardize your right to pursue the
appeal. To answer your question, I myself never spoke with anybody at Palm
Beach County about this at all.
P: What was the Republicans' reaction to the filing of this suit?
M: I don't recall. I'm sure there was one, and I'm sure they would have been
unhappy. But, I do not have any recollection about anybody from the Republican
Party saying anything either to me or in my presence.
P: Well, as I understand, and this could be wrong, you finished just before the final
deadline, I mean something like five or ten minutes.
M: [It was] no more than ten minutes.
P: So, you immediately sent in your returns.
M: Well, here's what happened. It was interesting. Katherine Harris sent us a letter
on her letterhead, I forget if it was sent by mail or by fax, but it was a letter signed
by her on her letterhead. [The letter said], we will send a representative to
DeLand, and this representative has authority to accept your certified results.
The date and time of the receipt by our representative in DeLand will be noted on
the papers that you hand to our representative, and this will be deemed to be a
timely filing in Tallahassee. We had a letter from Katherine Harris to that effect,
and sure enough, on the last day of the recount, this very nicely dressed young
man came in and he told me who he was. I said, I need to see some
identification. He showed me his identification, and I was satisfied that he was
who he said he was. The news media wanted to see it, so we had a ceremony of
sorts, with all the cameras flashing and all the TV stations filming. I was standing
in one location, and directly opposite from me, about five or six feet away, was
the secretary of state's representative, and between the two of us, facing all the
news media, were the other two members of the canvassing board. I said, are
we ready? So, I handed it out and I held it there for about a minute or minute
and a half while all of this filming is going on. I said, I'm going to let go now, and
he held it. I said, let the record show that the time is, I think it was five minutes
P: But you had actually finished a little earlier. You knew you were going to make
M: I would say by mid-afternoon on the last day we realized we were going to make
it, but just barely.
P: Of the four counties that were challenged by Gore for recount, you were the only
one who got your recount in on time. Could you have done it had you had Vote-
a-matic machines, punch card machines, or if there had been [more ballots to
count]? Volusia, obviously, is the smallest of the four counties, so you didn't
have as many votes to recount.
M: I doubt it, because I saw on television hearings of the holes in the IBM cards,
dimpled chads, and hanging chads, and pregnant chads. I mean, to me it was
P: So, it turns out Deanie Lowe had gotten the county to pay for these optical scan
machines only a few years before that, and it turned out to be a very wise
M: Yes, I think so.
P: At this point, the original suit you had filed is going before Judge Lewis, and
Judge Lewis, in Lewis I, is going to say that the secretary of state has to use her
discretion; she can't just automatically reject the returns. Then, in Lewis II,
appealed apparently by the Democrats, but not by Volusia County. Were you out
of the suit by then?
M: Well, here's what happened. We got the results in of Judge Lewis' decision, we
had the copy of it and we all read it. The county attorney said, and this is in a
meeting where we're all sitting around the table, oh, this is a wonderful decision,
and he went on to talk about why he thought it was so wonderful. When it was
my turn I said, this is not a wonderful decision, this is a terrible decision, this
gives her discretion. I said, we must not allow the votes of the people of Volusia
County, Florida, to be subject to the discretion of anyone. These are votes that
have been cast, and they have to be counted. I didn't say what I was thinking
because I knew that the secretary of state was very active in the election
campaign of George Bush. I thought to myself, I think I know how she would
exercise that discretion. I did not say that out loud, but there were plenty of other
people who were saying it anyway. So, we conducted the vote and we
unanimously voted to instruct the county attorney to take an appeal. I turned to
him and said, you have your instructions, and he glared at me because his ego
was on the line. You know, he went out on that limb. He's the county attorney
saying it's a wonderful decision, and here I am saying, no, it's a terrible decision.
I convinced the other two members of the canvassing board, who were
themselves members of the county council, to vote with me to order him to take
an appeal. So, his ego was bruised.
P: Now, in the appeal, Lewis II, what Katherine Harris does is she writes letters to
each of the canvassing boards in the four counties. I presume you must have
gotten this letter asking you to state reasons why you needed extra time. They
determined that because it was a large county and it happened to be punch
cards, that was not sufficient, that you had to demonstrate that there had been
some technological failure or hurricane or something that would prevent you from
getting the votes in on time. Therefore, Lewis said that she had exercised her
discretion. What was your view of that decision?
M: What was the date of that? I'm trying to remember, was that after we had
completed? Probably not.
P: I think that was before you had finished, but it would have probably been that
M: Of course, this was the second order issued by Judge Lewis in a different
lawsuit, or the same lawsuit?
P: It was in the appeal. In other words, the first case is obviously McDermott v.
Harris, so he rules that she must use her discretion. That is appealed, and then
he rules that she did use her discretion.
M: Well the thing is, of course, the appeal would have been to the first district court
of appeals in Tallahassee. So, the first district would not have had an opportunity
to rule on our appeal at that point. As a technical point, if we took an appeal from
his order, there's a question whether he had jurisdiction to do anything since we
appealed his order, but he went ahead and did what he did. It's coming back to
me now. You're saying he made a finding that she properly exercised her
discretion in denying our request for an extension.
P: Yes, and the way he put it in his judgement, and I did talk to Judge Lewis, he
said the way he viewed it, according to what the law said, it was not my place to
tell her what to do, she's secretary of state, she knows what the law is, she
certainly has an option. She could have, in his view, determined that you could
have had three extra days or whatever, but she decided, as she had the right to
do legally, that she was going to adhere to the seven day legal statute.
M: Surprise, surprise.
P: [Laughing.] Although technically, and legally, she was correct.
M: Well, if you look on one page of the statute she was correct; if you look on
another page of the statute ... See, and this is the point that I made at the
meeting, in cases where someone has discretion to do something or not to do
something, there are limits to that discretion. The discretion is never unbridled;
there have to be standards. You know, you read decisions made by a trial judge,
and usually it's evidentiary questions, and the appellate court will say, well, it was
within the sound discretion of the trial court to do this or not to do this, or to admit
it under these circumstances. In the absence of an abuse of that discretion, we
will not set aside the decision made by the judge. Well, looking at the whole
picture here, I mean here you've got the secretary of state who was very publicly
instrumental in the election campaign of George Bush, one would think that she
would want to bend over backwards to avoid giving the appearance of being a
partisan, wouldn't one?
P: But she was being, as I have determined, advised by people like Mac
Stipanovich and other individuals, and as Mac told me, he said, my objective was
to bring home the election with George Bush at the wheel.
P: So, he was advising her. Now, at this point, and jumping ahead a little bit from
your particular responsibilities, the Florida Supreme Court will overturn Judge
Lewis. They are going to vote 7-0 to extend the time to get these votes in until
November 26. What immediately becomes an issue there is that by changing the
date, did they change the rules after the game? Did they, in fact, make law as
oppose to interpret law? What was your reaction to that decision?
M: Well, now that decision came down after we had concluded.
P: You were finished, yes.
M: I don't think I had any strong opinions one way or the other because all the
litigation that was going on had nothing to do with us because we did conclude
our recount within the seven day period. My reaction was, well, here we have a
contradictory statute and also we have actions taken by the secretary of state,
herself, which tended to delay recount in some of the other counties. Should the
people who voted in those counties be disenfranchised because of actions taken
by the secretary of state? To the extent I had a reaction, it was along those lines.
P: In fact, they were rather harsh with her because what they thought had happened
here was the right to vote had been nullified. These people had voted but their
votes would not get counted simply because of the hypertechnical view of the
statutes. Because she could have allowed, at the very least, until November 17,
when the overseas ballots were due. The totals couldn't be formally certified until
M: That's right.
P: So, they looked at her, and the reason they picked November 26, and I talked to
Justice Harding about this, is they figured that she had delayed the count by five
days or so by erroneous interpretation of the law, so they added five days. They
said they were interpreting the statute, and perhaps, as Justice Harding said, we
were trying to fashion a remedy. Maybe that was a bad term, "to fashion a
remedy", it sounds like they're making up law, but they claimed they interpreted
law. Would you agree with that explanation?
M: You know, the Supreme Court of Florida was presented with a really impossible
situation. You had the actions taken by the secretary of state, upon which some
of the other counties relied, to their detriment, and when it finally gets to the
Supreme Court of Florida, they said, well this clearly is not fair to those counties
that wanted to conduct a full recount but have been relying upon interpretations
generated by the secretary of state. So, I can understand their point. I can
understand the position of the Supreme Court of Florida.
P: There's one other case that came up that once again involves your name,
Touchston v. McDermott, and these are Republicans suing to stop the recount in
all four counties, because they're going to argue in court that it was a violation of
the Fourteenth Amendment. Judge Antoon, like Judge Middlebrooks, denied that
request. Did you think that was the correct decision at that point?
M: Yes, because the rationale for the lawsuit was, we have different standards in
different counties. Palm Beach County had those God-awful punch card ballots,
whereas we had fill in the oval ballots. The whole process of ascertaining the
intent of the voter was far easier in our county than in Palm Beach County. So
yes, there were different mechanisms for ascertaining the intent of the voter, but
the statutory mandate was still the same, and we followed the statutory mandate.
P: And what Judge Middlebrooks said was that because they have different
standards for different voting machines, there's no harm to either party, it's
neutral, that's the way it's been for all the years that Florida has voted, and,
therefore, it is no harm to either party and it's a state matter, not a federal matter.
Do you think that was a sound decision?
M: Oh, I think so, yes. Obviously, the judges said we were right, that tends to make
you feel good anyway.
[End of side A2]
P: The public at least tends to look at it in that way. Let me ask another question.
Did you ever anticipate, at this point, once the Supreme Court of Florida has now
ruled and you've already done your recount so you don't have to worry about
making the November 26 deadline, yours are already in, did you ever anticipate
that this would get to the United States Supreme Court?
M: No, I really did not. That surprised me. But, you know there was federal litigation
going on. In fact, I was a party defendant in two cases in federal court, so you
would work your way up the chain and eventually you can go to the Supreme
Court [of the United States] if they'll accept the case.
P: Did you testify in Touchston v. McDermott?
P: What other two cases were you involved in?
M: Well, there was Touchston v. McDermott, that was in Orlando I believe, and then
there was another case filed in Miami, also seeking to enjoin us from conducting
a recount. I forget who the plaintiff was in that case.
P: But you didn't have to testify in either of those cases?
M: No, because the staff county attorney handled the whole matter.
P: I ask that because when the contest took place before Judge Sauls, Judge
Burton ended up going and testifying in that case. Let me just get your reaction
to some of the court decisions. So, on November 26, the new date, we see that
the Florida Supreme Court gives Katherine Harris an option: five o'clock on
Sunday or nine o'clock on Monday, and she chooses five o'clock Sunday, and
Palm Beach does not get their vote in on time.
M: Because Judge Burton said we need to take Thanksgiving off.
M: Well, my attitude is you do whatever it takes. I worked at least eighteen hours
every day and I was running on adrenaline. Every day I had to flog myself to get
out of bed, and I said to myself, listen, this is probably the most important thing
you're ever going to do in your entire life, get out of bed, you can catch up on
your sleep once this thing is over.
P: I think you said a couple of times, it's the right thing to do, we have to get it right.
M: Of course, of course. When I heard that Judge Burton had decided to take
Thanksgiving off, I said to myself, what is he thinking? I mean, you've been
given an extension by the Supreme Court of Florida. So, he took Thanksgiving
off and they didn't make the deadline, and so, consequently, they reported what
they had, but there were some people [who were] disenfranchised.
P: No question about it. And, of course, his discussion of that, I don't want to get
into it in this interview, but they were so tired and they'd had so much conflict
because of looking at these little pin pricks of light and trying to see the dimples.
He just thought it would help them speed up the process if they took time off.
What they probably should have done is taken off one morning, or maybe an
afternoon, and then come back to work. Then they would have finished, because
they only finished a couple hours after the deadline.
M: Well, my response to that is, take all the time you want after you've gotten the job
P: Now, at this juncture, and I just wanted to get your comment on this, the
Democrats will go to the contest. In other words, they protested four counties,
and they really only got a positive count out of Volusia County because Miami-
Dade quit and Broward County had to be included in another Supreme Court
decision. Do you think they should have gone to the contest sooner? That's
what Dexter Douglass advised the Gore team.
M: You mean if they had contested in every county?
M: I have no idea. You know it's interesting, during the course of the recount when
I'd go to media tent, I'd get all sorts of strange questions from these people from
CNN and NBC and so forth. They'd say, how are you doing, how's it looking? I
would say, I have no idea, we're just recounting votes. This is very clinical what
we're doing here. I said, I'm not cheering for one side or the other, and neither is
anybody else on the canvassing board, we're simply recounting votes in a very
calm, very rational, clinical fashion. So, in terms of what strategy the Democratic
Party should have adopted or what strategy the Republican party should have
adopted, I have no opinion on that.
P: One other thing I meant to ask you about that occurred at Bethune-Cookman.
There were apparently two precincts, and they changed the precincts, or
something like that, I forget. They'd had a very strong voter registration and there
were complaints from approximately 100 students who said that they were not
allowed to vote, their names were not on the rolls, or [the] DMV [Division of Motor
Vehicles-responsible for registration under the Motor-Voter bill] didn't shift their
application to the proper precinct. Did you see any, or were you aware of, any
racial discrimination in voting in Volusia County?
M: I was not aware of any evidence of that. I heard about that contention, but the
board was never called. We did have one man who came to us who satisfied us
that, indeed, he was a registered voter and that he had been prohibited from
voting in his precinct because of a clerical error, and we unanimously voted to
allow him to vote right there in election central on Election Day.
P: This was still on Election Day?
M: This was on Election Day. We could not have done that after the polls closed,
but he came to us and he had the proper identification and we got on the phone
to the poll workers in his precinct and they agreed with him 100 percent. So, we
voted unanimously to allow him to vote and we said, never mind going back to
your precinct, we're going to allow you to cast your ballot right here, and we
walked him over to one of the optical scanners. One of us stayed there with him
and we said, go ahead an mark your ballot, and then we'll let you put it in the
P: What is your view on provisional ballots?
M: Well, that's one of the suggestions that I made afterwards. I talked with Deanie
Lowe after the election and she said, well the legislature wants to revisit this
matter. I had a telephone conference with the state representative who was
spearheading this. His name escapes me right now, it's an unusual name, but I
said, you know, it would be nice to have a provisional ballot that comes to the
canvassing board to determine whether that voter was or was not properly
registered as of Election Day, or as of the cut-off date. That would eliminate a lot
of unhappy people saying that they were not allowed to vote. Let them go ahead
and cast a provisional ballot and let that ballot be brought to the canvassing
board, and the canvassing board will decide, based on the evidence presented to
it, whether that ballot should be allowed or not.
P: Did you have any problems with the felon list that was sent to all of the elections
supervisors, as it turned out that the list was flawed?
M: Not that I can recall. I have no recollection of that, and I think I would have if
we'd had to address that.
P: Should felons be allowed to vote?
M: I don't know. I understand both sides of the argument, but there are convicted
murderers who are paroled after twenty-five years. I mean, I understand the
argument against allowing them to vote, but I can also understand the arguments
of, look, he's paid his debt to society. You know, he's either maxed out on his
sentence or he served his time and he's been paroled out and the parole is up,
he ought to be allowed to vote. I understand both sides, but I don't have a really
strong opinion on that.
P: Did you get a lot of complaints from the Republicans in Volusia County? In Palm
Beach they were saying that people were eating chads, they claimed it was
chaotic, that there were all kinds of problems, and that they were stapling chads
to the back of ballots. Did you get any kind of complaints like that here?
M: Well, the Republicans were always complaining about something, but their
complaints tended to go to the decision of the board on an individual ballot. It
was, to me, a case of intellectual dishonesty because of the kind of thing that I
described earlier happened again and again and again. We would say, we're
interpreting this as a vote for Gore, [and] they would object. Then when we'd
have another ballot that was mis-marked in essentially the same way and we
would say, we're interpreting this as a vote for Bush, they would not object.
P: So, it was purely delaying tactics.
M: Yes, they were stonewalling. They were trying to stretch things out so that we
would not meet the deadline, and of course my response to that was, we'll just
work eighteen hour days, that's what. So, we were all exhausted. I was
exhausted, the rest of the canvassing board members were exhausted, the
attorneys for both political parties were exhausted. I didn't say this, but I realized
very quickly what was going on. There were many times when I had to say, this
discussion is over, here's what we're going to do, and here's how we're going to
do it, now get on it.
P: I should point out that Bob Butterworth had great praise for you for getting this
job done. He said that you went ahead with it, worked the amount of time
necessary to get it finished on time, and managed it efficiently so that it did get
done. You moved the ballots to where you had more room, you got enough
people to work. In Broward County they couldn't find enough county employees
to get all the votes counted, and that was a problem that they had, so it looked
like you resolved some of the issues that really bedeviled some of the other
M: I think that I really have been given too much credit for [our] success. And every
opportunity I've had in talking with the news media afterwards I've pointed out
that the county manager's office deserves a lot of credit. They furnished us with
a large room so that we could work efficiently, they furnished us with county
employees who are being paid by the taxpayer but who were, rather than
working in tag office or the environmental office or zoning office, or lord knows
where those people came from, they were being paid to count ballots. We could
not have done this without the cooperation of the county manager's office and
without the cooperation of Deanie Lowe and her advice. So yes, I think I deserve
part of the credit because I'm the one who kept cracking the whip and cutting off
what I considered to be unnecessary discussion and saying, we've made a
decision, let's move on.
P: So, you said then, and I presume you feel the same way, that you were proud of
the board's performance and felt it was very satisfying to have done it and done it
right and got it done on time.
M: Oh, absolutely. Absolutely. Our concern was that the results that get reported
out of Volusia County must be absolutely accurate because we realized that the
Presidency of the United States was in the balance. We said, we owe this not
only to the people of Volusia County, we owe this to the people of the United
States to make sure that our numbers were right.
P: What do you think we learned from this election?
M: What did we learn? [We learned] the many ways in which people make
mistakes, we have to have legal standards that can be interpreted in a consistent
fashion, to determine whether there's a recount for example, but that we must,
emphatically, not rely on machines, because machines can report erroneous
results, as we discovered in two incidences in our own arena. First, before the
recount, we discovered the problem election night with all those thousands of
negative votes for Al Gore, and then, subsequently, during the recount we
discovered that there's another way to have a computer-driven machine report
P: What is the solution for this problem?
M: Well, my suggestion is that if certain counties want to adopt a touch screen
format, that is acceptable, as long as the touch screen format generates a paper
ballot which is then examined by the voter before that voter then inserts the
paper ballot into an optical scanner.
P: Do you think that the fact that now we are aware of these problems, that the state
government spent more money on voter education, people have bought new
machines, there are no more Vote-a-matic machines, no more punch card
machines, do you think all of that will play out favorably in 2004? Or are we
going to be right back where we were in 2000?
M: Well, it's obvious to me that the news media are going to be paying very close
attention to what happens in Florida. If there's anything that looks like, tastes
like, or smells like a repeat of some of the massive failures that occurred in 2000,
we're going to be on world-wide news again.
P: We already have a Miriam Oliphant, elections supervisor in Broward County, had
problems with one of the municipal elections. Some of the touch screen
machines shut down [and] they didn't open the precincts on time. Wouldn't you
guess that would be the case in any state in the country? That there would be
overvotes, undervotes, and problems with the machines?
M: Yes. You have problems that happen anywhere and everywhere, and that's
where people are acting honestly in good faith. The old saying in Chicago was,
"vote early and vote often." I'm not talking about that, I'm talking about where
people are honestly and sincerely trying to follow the law and make sure that
everybody gets to vote, things go wrong.
P: Well, in this state, with a few exceptions, I don't think there was any massive
fraud. Did you discover any fraud at all?
M: I'm not aware of any in Volusia County, and I don't recall reading about anything
of that nature in any other county in Florida.
P: I do know that there were three people who voted six times and things like that,
but this was really very unusual. There were some people who were not legally
registered who voted and some underage people who voted, but this was not in
any way designed to try to change the outcome of the election, so it's not vote
fraud per se. Do you think the media was fair to you and to the state of Florida?
M: I think the vast majority of people in the news media were very fair to me. In fact,
one of the reporters that I talked with after the election said, well you know,
everybody liked you, we felt immediately that we could trust you. Of course, the
thing is the local news media knew me, the Daytona Beach News-Journal and
the Orlando Sentinel, and they did the best job reporting because they knew all
the players. So, to what extent people like CNN and The New York Times and
Wall Street Journal might have talked to local news people who knew me and
knew about me, I have no way of knowing that, but I think that with very few
exceptions, the national and international news media were very fair to me.
P: But they were pretty harsh on Florida. You know, "Flori-duh," the state that
doesn't know how to count. That sort of thing.
M: Well, you look at the circus that they had in Miami-Dade County. You look at the
circus they had in Palm Beach County. And, quite frankly, you look at the circus
in Broward County. I remember, I guess it was the day after Thanksgiving, I was
watching CNN, and the judge who was the chair of that canvassing board said,
well, we just wrapped things up. Then he said, my view is, if somebody voted
straight Democratic on all the other races, it was the intent of that voter to vote
for Al Gore. I remember, I yelled back at the television, I said, you cannot do
that. Your duty under the statute is to ascertain the intent of the voter in that one
race, in the President of the United States. Somebody can say I'm voting for
straight Democratic for all these other races; however, for president I'm voting for
the Republican candidate, or I'm voting for one of the other minority candidates.
I mean, he actually stated that on live television, that was his rationale.
P: I think what they did is they changed their standard, and what they were doing is
that even if there were dimples, if there was a pattern in the dimples, i.e.,
Republican or Democrat, they would count that vote for, if it were all Democratic
votes, they would assume that would be the vote of the individual for president. I
think that's one of the key factors in the United States Supreme Court decision,
violation of the Fourteenth Amendment, because the recovery rate on ballots in
Palm Beach, was, and I forget the numbers, 10 percent, and in Broward it was 60
M: When you're saying recovery rate, what does that mean?
P: When they were counting the ballots where they didn't know from the beginning
what the vote was, most of the time in Palm Beach County they would simply
say, we can't determine that, but in Broward County they were saying, well, this
is a dimple, and we're counting a dimple, and they changed it from two hanging
chads to one hanging chad. So, they counted more votes in terms of the
recovery rate in Broward. The United States Supreme Court says, well that's not
fair, a vote ought to be a vote, and if you use different standards that's a violation
of the Fourteenth Amendment. So, that may have contributed to that issue.
Would you comment on your reaction to the performance of Governor Jeb Bush?
Did you have any contact with the governor's office or anybody else from the
state of Florida?
M: No I did not, no.
P: Did you think that he acted in a non-partisan manner considering the fact that his
brother was a candidate?
M: I don't recall anything specifically that he did that made my eyebrows elevate.
Did you have anything specific in mind?
P: No, there were some statements by some of the press, the St. Petersburg Times
and others, that he was behind the scenes controlling what Katherine Harris did.
M: That may or may not be so, I have no knowledge of that.
P: I actually don't think it was so, but you know how these kind of rumors start.
Would you comment on Bush v. Gore, the 5-4 decision by the United States
Supreme Court? What was your reaction to that?
M: I thought it was bad law. I thought the rationale of the majority was deeply
flawed, and for them to contend that there was simply no more time, as they did,
that was false.
P: You could argue, as some of the Democrats did, that one reason there was no
more time is that they had remanded the first case back to the Florida Supreme
Court, and if they had done things differently, there might have been enough
time. Plus, other people think that the operative date for the safe harbor is
November 18, not November 12, so they could have had more time. In fact,
Justice Breyer said in his dissent, let's send it back to the Florida Supreme Court
and finish the count. Were you surprised that they stopped the count?
M: Oh yes, very much so. I haven't read the majority and minority opinion lately, but
I read each of them very carefully, and I did not find convincing the rationale
stated by the majority.
P: It's also interesting to note that for the most part, although elections are a little bit
different, the United States Supreme Court under Rehnquist has generally stayed
away from state issues, and the Fourteenth Amendment has not been a basis for
many of their decisions. So, some of the Democratic lawyers I have talked to
have referred to the "Activist Rehnquist Court."
M: It's interesting too, that the majority opinion says in so many words that this
decision stands alone.
P: For just this one time.
M: And what that means is it does not have precedential value. Now that's a
travesty. One of the purposes, obviously, of an appellate opinion is [that] that
should be the law of that case, but there are reliance interests out there. People
order their affairs in reliance upon a statement by the court of last resort about
what the law is on this point or what should be done, and what will be allowed
and what will not be allowed. And for the Supreme Court of the United States to
state as they have in so many words, this opinion stands alone, [is bad law].
P: Do you think it was a correct decision when Judge Richard Posner said that he
thought it was a pragmatic decision, that they had to do something to prevent "a
constitutional crisis," but it wasn't very good law. Do you see it as a partisan
M: I do not know what was going on in their minds. I have a problem with Judge
Posner because in an interview that was published in the Atlantic Monthly in
January or February 2001, he made a wisecrack. I quote, "I don't think anybody
knows what standard they followed in Volusia County."
M: So, Judge Posner is not one of my favorite human beings. [He's a] brilliant man,
I mean he was number one in his class at Harvard Law School and I respect his
intelligence, but once I read that I said, well, I have no use for this guy.
P: As we talked a little earlier, and I just wanted to get this on the record, there is a
lawsuit now pending from a congressman against Teresa LePore and the current
Secretary of State to provide a paper record for the new touch screens. Do you
think that lawsuit has validity?
M: I think it does because the statute still requires that a mechanism be allowed for
a recount, and if there's no paper ballot, there's no means to conduct a recount.
P: One of the things that Judge Lewis said that in the state statute, there are fines
for late returns. He said, well they must have to allow late returns if they put a
fine in there. They must have assumed that sometimes they're going to have a
recount, and in a county like Dade, you can't do all that in seven days.
M: Well, if they were organized they could have, and if they had not been
intimidated, as they were, they could have.
P: How has this experience changed your life?
M: Well, it's interesting. By nature I'm a very private person. Not only do I not seek
the limelight, I try to avoid it. And there I was for eight to ten days on, not merely
nationwide television, but on worldwide television. I remember the end of the
week after we concluded the recount on time I got a telephone call from my
former law partner. He said to me, well Mike, I've been seeing you on television
every day, several times during the day. He was calling me from Italy. He said, I
have seen you on CNN International, I have seen you on BBC World Television,
when I was in Germany I saw you on German television, and now that I'm in Italy
I'm seeing you on Italian television. It was nice. There was a period for about
three months when every time I went to the grocery store or got gasoline,
somebody would walk up to me. All the feedback I got from ordinary people was
very nice, and still once in awhile someone still says to me, you know I've never
met you until now, but I'd like you to know that I'm very proud of the job you did
on that recount. But you know, as I said, not only do I not seek publicity, I tend to
want to avoid it, so I felt uncomfortable.
But it's interesting, the day after we concluded our recount I was here having
lunch, and I [had] just finished watching my favorite judge on CNN [when] there
was a knock at the door. [It was] two reporters from The New York Times. One
of them was Somini Sengupta, who had been down here since the Thursday
following Election Day, and the other one was David Barstow, who had just flown
down from New York city. David Barstow is one of their top people. Months go
by and I don't see his byline and I say to myself, I wonder if he's still working for
the Times, then there will be a front page article above the fold on which he's at
least one of the authors [of] something very, very big that he's been working on
for many months. So, they sat right here in my living room for an hour and a half.
The first thing they wanted to know was, fill us in on what happened before
Somini got here, because she got here that Thursday. We had Election Day and
the day after Election Day, and then all of a sudden she's here, so they wanted a
detailed rundown and make sure they have their facts straight. Then, they
wanted some personal thing because they were going to do an article on the
members of the canvassing board, and 3/4 of it was about me. So, just being
interviewed in my own living room by two reporters of The New York Times is not
something one does everyday.
P: Have you read many of the books about it?
M: I have. I've read portions of Dershowitz's book and several other books.
P: Jeff Toobin and people like that?
M: Exactly, [the books] that have to do with us.
P: Were they accurate?
M: Essentially. I have those books, but I have not read the books in their entirety,
I've simply read the portions of the books that touch on what we did here in terms
of what had happened and why it happened.
P: I wanted to go back and talk a little bit more about the Florida Supreme Court
decision. In talking with David Boies, he says it was a Catch-22. If the Florida
Supreme Court had set a standard, they would have been making law, but if they
didn't set a standard they violated the Fourteenth Amendment, so either way they
went he felt the United States Supreme Court would vote against them 5-4. The
other argument he made, which I thought was interesting, is that the intent of the
voter standard is essentially the same as a reasonable man standard. So, you
could be tried for murder in Mississippi and get the death penalty, and in Vermont
you might not. That intent of the voter standard had been up to the canvassing
boards for all the years that we had votes in Florida, or at least when we had
canvassing boards. He thought that if you carried the Florida Supreme Court
decision to its ultimate conclusion, you'd have the same standards and the same
voting machines all over the country. Is that overstated?
M: Well, that's a good argument, I hadn't thought of that, but yes, why should Florida
be singled out solely because there was litigation?
P: Well, I forget, something like 40 percent of the voting precincts in America had
punch card machines.
M: Did they? I didn't know it was that high.
P: That may be a little bit high, but there were certainly a huge number of people in
this country who voted on those machines. If you assume that the machine,
because of the nature of that machine, is inherently discriminatory, then you
would have to apply it all over the country, wouldn't you?
M: Yes, that's something you have to think about.
P: Do you think the voting public understands the importance of the vote? Do you
think they're better educated about the function of the canvassing boards and
election supervisor, and do you think that we will ultimately get higher turnout
because of what happened in 2000?
M: I have no idea, I really don't. The news media, especially with twenty-four hour
news television now, tend to trivialize virtually everything, rather than engaging in
the incisive analysis that really says something of significance. So, I'm not
optimistic by that score. By the way, I had my exterminator come the day before
yesterday, and he said, I saw you on television the other day. I said, what? He
said, yeah, when you were in charge of the recount. [It was] just one of these
voice-over things showing me sitting at the end of the table, I suppose, presiding
over the canvassing board, so the beat goes on.
Just to return briefly to what effect this has had on me, I [have] spent a lot of time
talking with people like you who are writing books and so forth in the hope of
getting the historical record correct. I've been disappointed, for example, by the
article written by US News and World Report where I counted several factual
errors on an article that took less than one page. I talked with the reporter that
they sent down here afterward. He was a very intelligent guy, he has a
bachelor's degree in history from Yale, so he's no dummy, but I was just really
pained to see how badly he messed it up. He just got so many facts so wrong in
such a short space of words that it was breathtaking, it really was.
P: I think that's one of the advantages of this oral history, that we get your version
down word for word, so that anybody who reads this transcript sees exactly what
you said. It does not get filtered through the press or television, and therefore
the accuracy is much higher. Because anytime you start writing and changing
things and giving your interpretation, which is what historians do, sometimes we
overstep the case or are biased in one direction or the other.
M: Well, too, this thing about biography, especially autobiography, it tends to be
mainly lies or rationalizations, or people look back on, say, their career as a
political figure or whatever, they're constantly tweaking things to make them
come out [as] they wish they really had. There are numbers of notorious
examples of that in our political history. There's big difference between what
some political figure writes in his autobiography and what actually happened.
P: The best examples of that are Richard Nixon's memoirs.
M: Exactly, that's one of the people I was thinking of. Sure.
P: And Eisenhower to some degree as well. Are you glad you had the opportunity
to go through this?
M: You mean the oral history?
P: No, I'm sorry, the recount.
M: It's emphatically not something that I would have volunteered for, but I harken
back to what my secretary told me people in the courthouse in Daytona Beach
were saying. [They were saying], thank God it's McDermott, because people in
the court system that knew me, I'd been a judge at that point [for] almost twenty-
four years, I was coming to the end of my twenty-fourth year as a judge, [they
knew] that I try to get to the point. I do not allow myself to be distracted by what I
consider to be irrelevancies, and I do not put up with any nonsense from
anybody. I think when I threw that Republican attorney out that night when we
made the vote to do the complete recount, I didn't do it for the purpose of setting
a tone, but I think it did have that effect, because after that nobody messed with
P: I wanted to read into the record some comments on the recount. The Daytona
Beach News Journal and the Orlando Sentinel had very high praise for you.
[They stated that] you remained calm, deliberate, unflappable, and nonpartisan;
outstanding performance under great pressure. Obviously, with the world
watching, it had to be a pressure-filled, tension-filled sort of activity, and you
knew, as you said earlier, this could determine the outcome of the vote for
President of the United States.
M: A lot of people asked me afterwards, they said, gee, I watched you on television
day after day and I was amazed at how calm you were. I said, well I think I'm a
pretty "steady as she goes" type of fellow anyway, but I said in addition to that,
fatigue is a great tranquilizer. It was amazing to me. I would go out into that
media tent, and there were several rows of chairs, and very quickly I got to know,
she's with the New York Times, he's with the Wall Street Journal, [and] he's with
CNN. After awhile I got to know who everybody was with, and then I looked at
the back of the tent and there are these twelve television cameras, each on its
own tripod, and it really was not at all stressful. It was just, well this is something
I have to do. I'm the chair of the canvassing board and one of the things I have
to do is to let the public know what we're doing, and that means I have to deal
with the news media. Although I dealt with the news media from time to time
during my career as a judge, I'd never done anything on that scale. But, you
know, that was my response, fatigue is a great tranquilizer. Rather than getting
seven hours of sleep a night, which was then and still is what I normally would
get, I was getting no more than four, and I'm sure very frequently it would be a
fitful sleep at that, and not really that restful. Every morning when the alarm
would go off, I'd have to flog myself to get out of bed. But I said, come on, let's
go, you can catch up on your sleep after this is over, you've got a job to do, let's
P: Is there anything that we have not talked about or I have not asked you about
that you would like to discuss?
M: There is one incident that occurred. Let me give you a little background. Rather
early I made a decision to micro-manage the recount. I'm something of a control
freak anyway, as the saying goes, but I realized that there were certain things of
necessity I had to go to the board for and make decisions by majority vote,
whether or not to conduct the recount, for example. Unlike some of the judges in
other counties who always seemed to be asking for an opinion from this or that
authority in Tallahassee, I realized that the judge who was the chair of a
canvassing board has a great deal of inherent authority. Rather than wringing
my hands and constantly saying, oh my goodness, what will I do, what will I do, I
chose to exercise that authority. I found very quickly that the people from the
sheriff's office or the elections office were constantly coming to me, asking me,
well, what do we do about this? In fact they'd even follow me into the bathroom.
I said to myself, I'd rather [that] they come to me rather than they [might] go off
half-cocked and do something that turns out to be counterproductive. So, I lived
with that all during the recount. The last day of the recount, in fact in the
afternoon, when it looked as though we were going to make the deadline but just
barely, the major who was in charge of the sheriff's office security came to me
and said, we have a problem. I said, so what else is new? Because all we'd had
for ten days was one problem after another.
He said, well, this is a serious problem, we have a bomb threat. I said, how is
this communicated? He said, well somebody called in to the county switchboard
and said that there's a bomb planted in the county administration building, and
it's about to go off. I thought for a moment and I said, who else knows about
this? He said, just you and me, and I said, we're going to keep it that way. My
reasoning was the following, that if somebody's going to blow something up,
they're just going to go ahead and do it. If someone has really planted a bomb
and they really want to blow up a building and the people in it, it seems to me the
last thing you want to do is to warn everybody about it so they can evacuate the
building. Statistically, the overwhelming majority of cases where a bomb threat is
communicated, it turns out to be a hoax. I realized that was almost certainly
what was going on here. I realized that the standard procedure was to evacuate
the whole building and to search every square inch, and I said, if we do that
we're not going to make the deadline. So, I made that decision. Of course, if
there had been a bomb and it had been detonated and people had been killed or
injured, it would have been my responsibility. If I had survived any such
explosion, I would have had to live with that the rest of my life, but my intuition
was this was simply a hoax, one last effort to try to keep us from concluding the
recount on time.
I said to the major, I used baseball terminology, I want you to pull the outfield in.
See, we had three concentric circles of security. Inside the room was one layer,
then just outside we had another layer, then we had people in the perimeter,
maybe seventy-five to a hundred feet away. I said, just bring some of the people
in and start very quietly. You must swear them to secrecy, just look for any
package or box or something that doesn't belong here, but you are to select only
a very few people whom you can trust to keep their mouths shut. I said, we're
going to keep on going.
P: Because if it would have gotten out, you would have had to evacuate.
M: Oh, exactly, there would have been panic. Exactly. I said, I want you to pick just
a small handful of people whom you can trust to number one, know what to look
for, and number two, to keep their mouths shut and not say one word to anybody,
including [the] vast majority of the law enforcement officers who were there.
P: Did they ever determine who made the call?
M: No, and it turned out there was nothing to it because the building is still there as
of this day. But I mean, that was a very tough call, but the major didn't come to
the board, the major came to me.
P: Well, that's interesting, if he'd come to the board, they might have voted two to
one to evacuate.
M: Oh, I know exactly what they would have done. They would have said, we need
to evacuate the building and so on and so forth, and then we would have been at
the mercy of Katherine Harris' discretion wouldn't we.
P: [Laughing.] Well, on that note let's end the interview, and I want to thank you very
much for your time.
M: I'm glad to do it.
[End of the interview.]