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SAMUEL PROCTOR ORAL HISTORY PROGRAM at
the University of Florida.
"Florida Election 2000:
Insiders at the Intersection of Law, Politics and the Media"
Monday, February 26, 2001
University of Florida Levin College of Law Auditorium (Room 190), Gainesville, Florida
Sponsors: University of Florida's Levin College of Law, College of Journalism and
Communications, College ofLiberal Arts and Sciences, Department of Political Science, Office of
Research and Graduate Programs
8 a.m. Opening
Michael L. Seigel, Associate Dean for Academic Affairs & Professor,
Levin College of Law
Charles E. Young, President, University of Florida
8:15 a.m. "Why Florida? What Brought Us Here?"
Jon Mills, Interim Dean & Professor, Levin College of Law
Founding Director, Center for Governmental Responsibility
8:30 a.m. Panel: "The Courts, The Law and The Media at the Eye of the Storm"
Roger Cossack, Legal Analyst and Co-Host, CNN's Burden of Proof
David Boies, Attorney, Boies, Schiller & Flexner, LLP, New York, Washington,
D.C., Florida & New Hampshire, Represented Vice President Al Gore
Dexter Douglass, Attorney, The Douglass Law Firm, Tallahassee, Florida,
Represented Vice President Al Gore
Joseph P. Klock, Jr., Attorney, Steel, Hector & Davis, Miami, Florida
Represented Secretary of State Katherine Harris
David E. Cardwell, Attorney, Holland & Knight, Orlando, Florida
Former Director, Florida Division of Elections and Former Legal Counsel
to Florida Department of State
David Savage, Los Angeles Times, Supreme Court Reporter, Washington, D.C.
Tom Fiedler, Miami Herald, Editorial Pages Editor, Miami, Florida
Mike Vasilinda, President, Capital News Service, Tallahassee, Florida
Steve Zack, Attorney, Zack & Kosnitzky, Miami
Moderator: Jon Mills
10:30 a.m. Audience Q&A
Mike Seigel I'm Mike Seigel. I'm the Associate Dean here at the law school. It's my job
to keep the trains running on time at the law school, and I guess appropriately to start us off this
morning. Welcome all of you to our conference entitled, Florida Election 2000: Insiders at the
Intersection of Law, Politics, and the Media. Co- sponsors law, journalism, and research. It's my
pleasure and my honor to introduce you this morning, the President of the University of Florida,
Charles E. Young. Prior to coming here to the University of Florida, President Young was chancellor
of the University of California at Los Angeles for twenty-nine years. He became chancellor at UCLA
at the age of 36 and was the youngest leader of any major university in the United States at that time.
During that time, he made the University a partner with the Los Angeles area, emphasizing and
building upon the key position of the University in the community, in the development of the
community, and service to the community. Among his accomplishments, he championed college
student involvement in community and public service affairs, and was instrumental in efforts to
reform the K-to-12 education system in the Los Angeles area. He is a long-time member of the
National Collegiate Athletic Association President's Commission, and he's been a leading reformer
in intercollegiate athletics. He's a former chairman of the prestigious Association of American
Universities and has served on numerous commissions, including those of the American Council on
Education, the National Association of State Universities and Land Grant Colleges, and the Business
Higher Education Forum. After serving in the United States Air Force during the Korean War,
President Young graduated from the University of California at Riverside and completed his
Master's and Doctoral degrees in Political Science from UCLA. With no further adieu, it's my
pleasure to present to you, President Charles Young.
Young- Thank you, Dean Siegel. Thank you very much. Good morning and welcome once
again to "Florida Election 2000: Insiders at the Intersection of the Law, Politics and the Media." I
want to thank all of you for joining us today for this day-long conference, which will be a thorough
examination of one the most interesting events in American politics, indeed, in the history of
American politics. I trust our panelists will find the Florida climate a little more hospitable than it
was the last time many of you were here. As far as we know, this is the first time that individuals
representing law, politics and the media have come together to discuss in depth last year's
presidential election. With all the attention given to the state of Florida, it is appropriate that this
conference take place here at the University of Florida's Levin College of Law. The gathering of
such diverse people and opinions for this forum is another demonstration of how universities can and
should lead the way in ensuring the free discussion of ideas in our democratic society. This is a
wonderful occasion for the University of Florida and its students. Today's program is the brainchild
of Interim Dean Jon Mills, who working with Professor Richard Scher and others in the Colleges
of Law, Journalism and Liberal Arts and Sciences, has pulled together an outstanding group of
panelists from all sides of this election. The University of Florida's Office of Research and Graduate
Education and the Department of Political Science also helped sponsor this event. A little more than
two months after the election concluded, legislators, scholars, lawyers, task force members, and
media representatives have agreed to spend this time concentrating on what happened. They will
share information and exchange perceptions during what promises to be a stimulating day of
discussions. So again, welcome to our panelists, our guests, our faculty, and our students. I can
assure you that the 2000 election will be studied and debated for many years to come, and you'll all
be able to read about what others have said. But today, you have the unique opportunity to
participate in an historic discussion and to hear first-hand from those literally at the center of that
process. It is unlikely the events of last November's election will ever be repeated. It is just as
improbable that there will ever be a more interesting group of individuals discussing that event than
we have assembled in this room today. Welcome, and thank you for coming.
Seigel It is now my pleasure to introduce to you, Interim Dean Jon Mills. He's been
interim dean at the University of Florida Levin College of Law for a couple of years, where's he also
a professor of law and the founding director of the Center for Governmental Responsibility, known
as CGR. As a researcher and teacher, he has been a principal investigator, and directed major studies
on environmental and constitutional issues, including international projects in Brazil, Poland, Haiti,
and Central America. He has co-authored books and authored books, law review articles, and reports
on constitutional and environmental issues. Importantly, he served in the Florida House of
Representatives for 10 years, including two years as Speaker of the Florida House of
Representatives. In 1998, he was a member of the Florida Constitution Revision Commission and
was named the Commission's most valuable member. He has appeared in various federal courts and
the Florida Supreme Court on numerous issues on many occasions, including voting rights and
constitutional law. He acted as a special assistant state attorney, something I learned this morning,
in the Danny Rolling murder trial, and attorney in Versace murder case, representing privacy rights
of victims and victims' families. In 1998, he was the executive producer and host of the public
television series, "Common Ground", for which he received a regional Emmy award for the Best
Public Affairs Show. Ladies and Gentleman, Interim Dean Jon Mills.
Mills -- Thank you very much, Mike, and thank all of you for being here, and particularly
thanks to the sponsoring colleges. What we viewed as, at one point, a legal issue, we came to
understand, of course, is a very complex, multi-disciplinary issue and, of course, the University of
Florida is the right place to put that together, so we thank the College of Journalism, College of
Liberal Arts and Sciences, including particularly Political Science, the Office of Research and
Graduate Programs, and of course the Department of Political Science. This we view not as an end
of the process, but in a way, sort of a beginning. This conversation will go on probably for a hundred
years, but in somewhat less time than that we hope to bring together folks who can analyze this issue
in a way that will be positive for the citizens of the country and allow us to move forward. We have
a great opportunity, I think, to show how this democracy has worked, even if imperfectly, quite well.
Well, it was quite an election. The winner could have won by one electoral vote on election
night. There was an apparent winner. The challenger on election night decided to challenge in a
historic move. The media made mistakes in terms of who won, who lost. There were allegations
of racial irregularities; there were allegations of irregularities in voting. And Florida was the key.
Yes, you're right, that was the election of 1876. So what do we learn after all of that? Well, we
apparently didn't learn some of those details, but how was it different? We had a certain shared
experience in the election of 2000 that you couldn't have in 1876. Have a couple images in my mind
that represent the election of 2000. I see, of course, in my mind [Palm Beach County Court] Judge
[Charles] Burton, squinting through what we would later come to know as a chad, attempting to
define what we would later come to argue over whether it was a legal vote. My other image of this
election was Roger Cossack, on the front steps of the Supreme Court, freezing, attempting to do
instant analysis, which is usually done by academics over weeks, of a 60-page opinion. I came to
know later that he was getting advice in his earpiece from David Cardwell. He said, "Look on page
14," I believe was the advice he was giving.
Cossack What he said was, "You're on your own."
Mills Good luck. It's on page 14. Maybe. But this was a nationally shared experience,
which of course could not have been the case a hundred years ago. The other distinction seems to
be the continual and constant involvement of the courts in the election 2000, as opposed to sporadic
involvement in the 1876 election. So the intersection of media and the courts is an important issue
to try to understand for our future.
One of the issues I also wondered about was, "Why Florida? Why were we so special?"
Well, there are probably about five reasons, and the absence of any of those reasons we might not
be here having all of this fun. Of course, it was statistical dead heat that started the issue.
Florida's population, Florida's size also was decisive. This might not have been an issue in
Montana. There was voting machinery which gave rise to the possibility that that margin was
incorrect, so, therefore, the existing of the machines themselves, the existing possibility, was
required. There were laws that could be called unclear, in terms of standards, in terms of dates, in
terms of deadlines. It was also a presidential election. If it hadn't been a presidential election, the
federal laws dealing with safe harbor, other issues that we'll discuss, wouldn't exist. In the absence
of any of these factors again, we might not be here. But under a microscope, one might think that
other states might have had some of the same problems which we discovered in Florida. So Florida
may not be any worse or any better, but in terms of circumstance, we are certainly here. What
happened? There are four legal cases, which I'll just briefly mention and later this, of course, will
be the core of the discussion. There initially was the butterfly ballot case, which came out of the box
as the most visible controversy. Interestingly, that case died a quiet death towards the end. It was,
of course, a problem in search of a remedy, which was difficult for the courts or the attorneys of
either side to fashion. There were the absentee ballot cases in Martin and Seminole counties, in
which there were charges that absentee ballots were sent out during irregularities and caused
different votes to be submitted which would not otherwise have been submitted. Ultimately, the
Florida courts dismissed that on the "count the vote" spirit, which it seemed to sustain throughout
most of its cases. Then the major two cases which we came to know were the issues of the "protest"
and the "contest" and, of course, the ability to distinguish between the two was challenging not only
to the public, the press, but occasionally the courts. The protest phase initially was both mandatory
in terms of a close election and the protest allowed the challenging party to demand the hand recount.
The hand recounts began, were unable to finish, and this is the area where we may have unclear
statutes. That is, we have statutes which allow recounts and a certification process which apparently
would end before one could complete a recount, which was the issue that went before the Florida
Supreme Court. Then came the contest, which came after certification. That was a question of
whether there was reason to believe that the election could be overturned based on the evidence
before the various courts. Ultimately, the legal issues found their way to United States Supreme
Court, and we have several of the participants in those arguments here today which we will discuss.
I would think, to characterize the arguments by Vice President Gore, it might be, "one should
count the votes to be fair" and, to characterize the arguments for President Bush, "the votes have
been counted, and any recount must be fair". I'll not go into any more detail on this because we have
the folks here who argued those cases. Throughout and even after this decision, these policies have
become a movable feast. What has happened? What has happened since the election and since the
swearing in of a new president? We have actually increased voter participation and registration in
both parties. Interesting. We have a number of potential lawsuits filed in the area of racial fairness,
which we will discuss this afternoon. We have a legislative review of the voting process; we have
a legislative review of the Florida Supreme Court; and we have a commission that has submitted a
study which may be finalized today. So, while the legal cases were important, they were certainly
not the end of this story. What did we learn? While our systems may have been imperfect, the
country was stable; and there were no tanks in the streets, and irrespective of whether people
disagreed with various conclusions, they accepted them. We also learned we can do better with both
our machines, our laws and perhaps our news coverage. The openness in 2000 may have been quite
different in the shared national experience, but perhaps it also allowed citizens to see that there was
a degree of fairness. It may prove Winston Churchill's statement that it has been said that democracy
isn't certainly the worse form of government, except for all those other forms.
So, here we are, participants, academics, students, etc. One might say, what is the role of
academics, and I'll paraphrase another Churchill quote. The role of academics in this is probably
to comment on the battle from the hills, and then come down in the valley and shoot the wounded.
So, let me introduce our panel and begin our discussion. I could, of course, complete the rest
of the two hours with these introductions, so I'll be rather brief. To my right is David Boies, who
is a graduate of Northwestern University and the Yale Law School and is currently a partner in the
law firm of Boies, Schiller and Flexner. He was Chief Counsel and Staff Director of the United
States Senate Antitrust Subcommittee and Chief Counsel and Staff Director of the U.S. Senate
Judiciary Committee. He has been representative in many cases, including United States v.
Microsoft, Westmoreland v. CBS, Herbert v. Lando, CBS v. Reagan, FDIC v. Milken, etc. He is an
author of numerous publications and has taught antitrust-regulated industries courses at New York
University Law School.
To my left is David Cardwell, who is a partner at Holland and Knight. He was formerly the
City Attorney in Lakeland, Florida, and was the Staff Director of the Florida House of
Representatives Elections Committee and he was also the elections director and legal counsel to the
[Florida] Department of State. He has written on ethics and elections, and his book, Ethics and
Elections in the State of Florida, was recently published. He also was the CNN commentator of
choice and advisor to Roger Cossack. Sometimes.
Cossack I never made a move without him.
Mills Roger Cossack is a legal analyst and co-host of CNN's award-winning half-hour legal
show Burden ofProof. He co-hosts the show with legal analyst Greta Van Susteren. The program
airs weekdays at 12:30, as we know. He has been a prosecutor; he has provided legal commentary
for the network for a wide variety of cases, from the O.J. Simpson trial to the impeachment former
President [Bill] Clinton. As I said, he was a prosecutor in a Los Angeles District Attorney's office,
and has tried cases in local and federal courts in more than 20 states. Among all of his
accomplishments, Roger Cossack was an Assistant Dean at a large public law school, which we
know is the toughest job in America and he was also Chuck Young's political science student when
Chuck Young was a political science professor. So he must have learned pretty well.
Cossack Both of us, much younger.
Mills Dexter Douglass is presently in private practice in the Douglass Law Firm in
Tallahassee, Florida. I parenthetically say that Dexter Douglass is the counsel involved in this case
that doesn't have a web page, doesn't have a publicity coordinator, a few other items and Dexter has
been a solo practitioner for years, received his degrees from the University of Florida, was general
counsel to Governor Lawton Chiles and was the chairman of the highly successful Constitution
Tom Fiedler is the editor of the Editorial Pages for The Miami Herald. In 1988, for reporting
on Gary Hart, he received a Pulitzer Prize. In 1991 [he received a Pulitzer] for reporting on the
Yahweh Cult. He has a B.S. in Engineering from U.S. Merchant Marine Academy, which I think is
sort of interesting; an M.S. in Journalism from Boston University; and was a Professional Journalism
Fellow at Duke.
Joe Klock is Chairman and Managing Partner of Steel, Hector, and Davis in Miami. He's
co-chair of the firm's international practice. He's successfully represented major health insurance
providers in a $2-billion-plus federal litigation regarding alleged Medicare overpayments, serves as
general counsel and chief legal officer for Flo-Sun, Inc., a holding company for a major sugar
producer in the United States and the Dominican Republic. Let's see, Joe Klock goes on and on, is
a superb oral advocate who I've had the opportunity to argue with and against. He is a graduate of
the University of Miami College of Law, where he has taught Federal Jurisdiction and Civil
Mike Vasilinda is the Dean of the Florida Press Corps. He has served the capital
continuously longer than anyone in Tallahassee. That's for sure, Mike. His reports are seen on six
NBC stations in Florida and he's the founding partner of Florida's Capital News Channel, a 24-hour
cable news service. He has served under five governors, 28 regular and more than 100 special
sessions of the State Legislature.
Vasilinda You were there, Jon.
Mills Not for all 100 it seems. He produced more than a hundred live network interviews
for national television during this election controversy.
Steve Zack is the past president of the Florida Bar Association, Special Counsel to U.S.
Senator Bob Graham. He specializes in civil litigation, voting rights, class actions in the firm of
Zack & Kosnitzky. He's a graduate of the University of Florida College of Law, past Chairman of
the State Ethics Commission, past member of the Florida Constitution Revision Commission. Also
a superb lawyer and one of our graduates about whom we're very proud. So, thank you all for being
here. We might start this out by saying...
Zack Dean? One more.
Mills You know, I thought I'd done it in alphabetical order, and David Savage is my
favorite reporter. Well, except for you other guys. David Savage has been a Supreme Court
reporter for The Los Angeles Times since 1986. He's based in the Washington bureau and prior to
that, he was an education reporter for the newspaper in Los Angeles. As you see, we have lots of
Los Angeles connections here. He is the author of the book, Turning Right: The Making of the
Rehnquist Supreme Court, and he writes a monthly column on the Supreme Court for the ABA
Journal. During the Florida recount, he did daily legal stories on the issues in Florida and I can
assure you, I know that. Again, thank all of you for being here.
I thought we might start this off with a legal question, and a question to the lawyers and to
the reporters as to how they would report it. This sort of begins at the end. The equal protection
argument. Let me start with David Boies and then ask Joe Klock. How did you react and respond
to the equal protection [Guarantee of Equal Protection found in U.S. CONST. Amend. XIV, 1.]
argument in the United States Supreme Court and then perhaps how did you feel the press explained
Boies I don't know how the press explained it. It was not something that played an
enormous role in the press discussions prior to the [U.S.] Supreme Court argument, but I think that's
in part because it did not play an especially large role in the state court litigation that was coming up
through the Florida state courts and ultimately, through the Florida Supreme Court and the United
States Supreme Court. It had played a much larger role in the federal court actions that the Bush
campaign had brought to try to stop the manual recounts. Those actions didn't really go any place,
and I think most of the press coverage tended to be focused on what was happening in the Florida
Supreme Court and the Florida lower courts. So, I think it was natural that the press was not
particularly focused on those issues. I think also the fact that the first time the case went up to the
United States Supreme Court, the United States Supreme Court granted review with respect to
certain issues but not with respect to others and one of the issues they did not grant review on was
the equal protection argument. So I think it was natural that the press was not focused particularly
on that issue. I think that by the time we got to the United States Supreme Court the second time and
the final time, it was apparent that the equal protection argument was going to be a significant
argument. Both sides addressed it significantly in their briefs and the Supreme Court directed a
number of their questions to that argument. I think that it was an argument that had a certain novelty
to it. I think that in the analysis that was done prior to the federal court appeals, you do not
ordinarily think of equal protection as something that restricts the ability of individual governmental
units to apply a very general standard, even though that you recognize that the application of that
general standard, whether it's the reasonable man standard in terms of law or whether it is the death
penalty standard that is a very general standard, obviously applied very differently from jury to jury.
Or whether it is the intent of the voter standard, which Florida law had applied for 80 to 100 years
and which was applied in an equally general way in a number of other states. You mentioned at the
beginning the pictures of people holding up the ballots and looking at them, trying to discern the
voter intent. The first time that that happened wasn't in Florida, it was in Massachusetts Supreme
Court, which like Florida, has television cameras and one of the things that you saw on television
were pictures of the Massachusetts Supreme Court Justices holding up ballots and trying to discern
the voter intent. That process is something that has been widely used, not only throughout Florida
but throughout the United States. So it was, I think, at the beginning a hurdle to get over to
understand how this was going to become an equal protection issue. I think by the time we got to
the argument before the Supreme Court, it was clear that the Supreme Court had relatively little
patience, or at least a majority of them, for a number of the arguments that had been made and that
all of us had taken very seriously. But what they really wanted to do was hear about equal protection.
I don't know if Joe had the same reaction, but I was somewhat surprised at how quickly how [U.S.
Supreme Court] Justice [Anthony] Kennedy wanted to get off issues that we'd spent a lot of time
arguing about before, and really just get on to equal protection.
Klock To pick up on David's theme, I was kind of surprised when they came down on that
as hard as they did, and my thought was, naturally afterwards, that there was a lack of comfort with
what exactly Title 3, Section 5 [3 U.S. Code, Section 5, which addresses controversies as to
appointment of Presidential electors, and contains the safe harbor provision for appointment of
presidential electors.] meant. They must have had a big debate. Obviously that would be the easier
thing to do. If you look at the first, when they granted cert[iorari] the first time, they sort of focused
their attention on that point on one of the pages of their opinion. The concurring opinion, of course,
focused on that point and the difference in the change of the law, and I think they were just
uncomfortable with deciding exactly what that statute meant. It is kind of a difficult statute to figure
out what it means and went off on that side. I think also that just because we ran out of time, in
terms of the entire process, it maybe was the most attractive one because, David, of the difficulty
between the over votes and under votes and the fact that the Supreme Court of Florida had only
addressed the under votes and there were all these over votes sitting out there. So it was maybe the
largest target that they could hit. But one of the things that I thought, and I don't know if the Dean
is going to get into this as we move forward is: the Appellate Courts, I don't think, are designed to
function on 48-hour time limits and 72-hour time limits. It really puts a terrible stress on the
collegial way that they're supposed to function and a lot of what occurred in here, I think, was
because issues would sort of it was really the issue d'jour, or actually issues by 12-hour periods,
as opposed to an entire day. It would be rare for an issue to dominate for an entire day. I kind of
think that's what they did, and I don't think you could possibly fault the media for failing to be able
to carefully analyze the equal protection argument since they only had about 14 hours when it was
the big item. I thought you were doing it all by yourself, Roger, I'm shocked. You certainly had that
panicked look of someone doing it all by yourself.
Cossack It's because my fingers were frozen and I couldn't...
Savage Let me speak for the media on that one. I've had the pleasure of covering the
Rehnquist Courts since the beginning in the summer of 1986, when [William] Rehnquist became
Chief Justice. One of the things I've learned during that time is that if there's ever an argument
that's a sure loser in the Rehnquist Court, it's equal protection.
Cossack Right on, brother.
Savage In 1987, we had a case where the NAACP Legal Defense Fund brought a challenge
to the death penalty system in Georgia. They compiled an enormous amount of information on every
death penalty case for about 10 years, and they found that murders involving whites were 11 times
more likely to result in a death sentence than murders involving blacks. There also seemed to be a
considerably different standard by county. Some prosecutors went for the death penalty in almost
every murder case. Well, you can guess what happened. A 5-to-4 decision with Rehnquist, [Justice
Antonin] Scalia, and [Justice Sandra Day] O'Connor in the majority, saying no equal protection
violation. That all you have is evidence of a possibly different treatment, but you don't have any
evidence of deliberate, intentional discrimination. That's been their view all along. You need more
than evidence of different treatment. You needed intentional discrimination. So, the fact that the
attorneys were not expecting this to result in an equal protection case is no surprise because until this
case, they never thought that just different treatment was an equal protection violation.
Cossack Well, let me just jump in here a second. I think it's even stronger than that. First
of all, let's get the facts straight here. What we're dealing with here is the Federal United States
Supreme Court telling something that presumptively, historically, and every other way you can think
about it, is a state issue. How a state decides to count its votes is a state issue. So the notion that
equal protection, and you're very nice, David, in describing the Rehnquist Court the way you have.
This is not a court that when they go up to Heaven and they say, "How are you on equal protection?"
and they're going to say, "Well, how about something else we can talk about?" This is not a
Supreme Court that is going to be known for its strong stand on equal protection. So the notion that
most people did not expect that equal protection was going to be the hook that this decision turned
on is not unusual. What the result is, I think, is a great deal of criticism and discussion which I think
is valid in something that should be had is about whether or not this really became more of a political
decision than a legal decision, and I think you can make compelling arguments, particularly when
you saw just the decision, Joe, to take the case, where they were writing majority opinions regarding
whether or not we are going to take the case versus minority opinions whether or not we should take
the case and then, coming up with a decision that says "On equal protection grounds, this is how
we're going to make our decision." Where, as I said before, historically, this is not a court that will
be known for equal protection and then setting up this Catch-22 where they said, to, "See the
Legislature has come forward and said in a rather vague way that we look to the intent of the voter."
That's really too vague, and sets up an equal protection argument, but, in fact, if the courts would
have done something to interpret that legislation, they would have said, "Well, that's impossible. The
court shouldn't have done it." So there's a Catch-22 there, and that opens up, I think, this argument
of whether or not this was a political decision. I think that's something that should be discussed.
Klock When you say whether it was a political decision, the politicians came to the courts
in what was a political issue, to have the courts resolve it. The courts, I think, were thrown into
something that involved politics. The last court that acted presumably was the political court. For
the people that favored Vice President Gore, the Supreme Court of the United States was political.
For the people that favored President Bush, the Supreme Court of Florida was political. I don't
necessarily think that's necessarily a useful analysis. I think that the problem was is that it was a
decision and it was a matter that had a lot to do with politics, it had to do with religion, it had to do
with a lot of things. I think that when you went into any court, it was kind of important to
understand where the political views of the bench might be before you started to talk. That was really
very, very important. But I guess I think the Supreme Court of Florida was very conscious of where
the federal issues might intrude because they went to a lot of trouble not to deal with the issue of the
standards for determining intent. They knew based on the first cert[iorari] petition of the Supreme
Court of the United States that if they established any kind of legal standard that arguably didn't exist
on Election Day, that they were walking a tightrope. From a lawyers point of view, particularly now
in Florida, where there is a big assault going on on the Florida Supreme Court, which is extremely
unfortunate and unfair. The difficultly in just analyzing it in terms of a political decision, I think,
is not a useful way of going about it.
Boies I think there is a sense in which the United States Supreme Court in particular, maybe
all courts, but the United States Supreme Court in particular, is inherently making political decisions
in the sense that it deals with civil rights, it deals with abortion, it deals with death penalty, it deals
with a lot of political decisions about which people feel very strongly. But there was something
different here, and that is this was a partisan political decision. There's a difference between politics
in the broader sense and partisanship. We don't really expect the United States Supreme Court to
be absent from the political arena. Indeed, to some extent, it is there to deal as the ultimate arbiter
of some political decisions. On the other hand, what we do expect it to be is free from partisan
politics, and not to be a determinant of elections. I think the real question is whether this was
something that they could not pass and you see in the opinion of some of the majority justices, an
attempt to say "Look, we really didn't want this. This was thrust upon us and we had to make a
decision." Or whether you see it as the dissent did, as something that they reached out to take, that
they didn't have to take it. I think a large part of how you evaluate what the court did, I think, flows
from your view as to whether this was something that they just absolutely had to take, they couldn't
pass, they had to deal with it, or whether you think they actually reached out, as Justice [John Paul]
Stevens wrote, and took the case.
Zack That goes to the real nub of the issue. I remember, David, in the first press conference
that you gave while we were in Tallahassee. You said..well somebody asked you...One of the media
asked you, "What's the Supreme Court of the United States going to do?" And your comment was,
"Well, they would never take this case."
Boies Oh, great. Shows everyone what a great predictor I am.
Zack We were very sure of that point. The question isn't whether or not this belonged in
the courts, Joe. I think everybody agrees that it belonged in the courts. That's the only place that it
really did belong, once we had this problem. The question was which court was ultimately going to
make the decision. The fact that this was not a 14" Amendment [to the U.S. Constitution. This
provision states, in relevant part, "No State shall make or enforce any law which shall abridge the
freedom or immunities of citizens of the United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to any person the equal protection of the
laws."] issue, most certainly was represented by the fact that we spent very little time, David,
preparing for that particular aspect of it, though it was covered in our briefs because you ask yourself
the question, the standard that you apply there, if you apply the reasonable person standard, and if
a vote, in effect, is a verdict, and you try the same case to 10 different juries, you're going to get
seven results for the plaintiff; three for the defendant. No one ever said that it was a violation of the
14't Amendment, so we felt that there was a definite attempt to reach out for this case. Anybody who
represented the Gore side will ultimately believe that. And I quote Will Rogers when it comes to this
case more than anybody else because I think he was a great commentator about human nature, and
he said, "Where you stand depends on where you sit." In the final analysis, where you stand on the
decision of the United States Supreme Court is going to depend on who you thought should have
won this election in large measure.
Mills Let me ask you this. If you play the scenario out and the United States Supreme
Court doesn't take the case, then what happens? The Florida Legislature, I presume, acts.
Zack Not necessarily. You had a vote that was one day away from being finished. I think
that's a very important issue. The judge and the ....
Mills So, you presume they wouldn't act?
Zack No. I think they would have acted, but I think the ultimate decision would have been
before the United States Congress based on two sets of electors' being seated.
Cossack And even if they would have acted, how much more satisfying would it have been
if the state Legislature of Florida would have made up its own mind about what should happen to
Florida citizens and Florida votes rather than the United States Supreme Court doing it. Then the
Florida legislators faced the electors in the next election and they decide whether they agree or they
Klock But as Justice [Stephen] Breyer said...No, it was Justice [David] Souter, as Justice
Souter said, in his decision, the Supreme Court could have avoided this issue if it had allowed the
political tension to work itself out in Congress. I think that would have been a disaster.
Cossack This just like a poker game. The winners tell you how they did it, and the losers
Klock I think one of the most interesting characters in all of this was [Florida Supreme
Court] Chief Justice [Charles T.] Wells. In the second oral argument, the second case coming up,
he said, "We're are being sandbagged" and the Florida Supreme Court was sandbagged. They were
sandbagged either intentionally or unintentionally because no one ever went to the Florida Supreme
Court and asked them to decide the entire case. They only asked them to decide part of the case.
No one said to the Supreme Court, "Look, this is the situation we're in. You have to both construe
Florida statutes and, oh, by the way, there are these federal standards you have to take a look at in
terms of the presidential election". As a matter of fact, [Florida Supreme Court] Justice [Barbara
J.] Pariente at one point asked whether or not the federal questions were going to be applied. At the
end of the day, I understand the various arguments that were being made, but from the Secretary of
State's point of view, there was only one thing that she was trying to do all along, and that was to
focus attention on what the law, understood by rational human beings, was on election day, and what
was happening to that law on the days after election day. That's all we talked about. We didn't talk
about the great Constitutional issues or anything else. That was just for purposes of creating a
background for the decision to be made. I think that the Chief Justice, when he said, "What's
happening here? These issues are coming back and forth, and now we have issues that are being
presented to us that weren't presented before." He was right. I don't think there was ever any
dispute that the Florida Supreme Court has the right to interpret Florida law. Of course they do.
They have the right to interpret it, they have the right to make it, they have the right to change it and
they have the right to do anything they want to because they are the Supreme Court of Florida. The
only issue that we wanted to focus on is whatever they did different than from what the law was on
Election Day. Period. And I think that the Florida Supreme Court did a great job in terms of
interpreting what they thought Florida law was and what it should be. Wasn't the point. The only
point was, "Was it different?" We thought it was different.
Mills Your point was that certainly the Florida Supreme Court could have set a standard.
They certainly could have done that. However...
Klock They knew they didn't want to do that. There's one thing that they understood that
they should not do.
Mills If they would have done that, they might have violated three sections.
Klock They might have.
Boies That was the Catch-22.
Zack They absolutely would have. But, Joe, there is no might about that. Do you have any
question that they would have? You said they might have. The fact is if they did that, there is no
question they would have fallen right into the trap that was being set for them, and they said, "We're
not going to do that. Because we have a hundred years of cases in Florida that says we don't have
to do that. That the intent standard's a valid intent, is a valid standard that no criteria other than that
is necessary, that reasonable people can apply that, and that if we go ahead change the standard,
we're definitely going to be in trouble with the United States Supreme Court."
Klock Well, Steve...One of the benefits of that...
Zack Is that correct?
Mills You don't get to cross examine...
Klock No. It's not correct. He's going to shake the ballot box after that.
Zack If they change the criteria, there wouldn't have been a problem.
Klock Very good, Steve. If they changed the criteria...Very good, Steve, you got it. It took
a while but we got to it.
Zack We agree.
Klock That exactly was the point. That they would have changed the criteria. The Florida
Supreme Court understood even though the issues with respect to the federal questions they would
just sort of lift the veil a little bit and let them sort of take a shot at them. One of the things they
knew from the first decision the cert[iorari] petition that came down from the Supreme Court of
the United States was a change in the law was a problem as far as that first order of the Supreme
Court of the United States was concerned. They understood that if they articulated a standard, they
would have changed the law. So that's one area, Steve, where the United States Supreme Court and
the Florida Supreme Court agreed.
Zack We agree.
Boies I think it's important to emphasize that what the Florida Supreme Court was being
told and I'm not sure that this was right That is, I'm not sure that articulating a more definite
standard would have been a change in the law, but there's good argument that it would have been.
That clearly was the argument that you made very effectively, I thought, to the court. I think that if
the Florida Supreme Court had articulated a more specific standard, there would have been a very
serious risk that it would have conflicted with Title 3 [that portion of 3 U.S. Code which regulates
presidential elections]. Now, that being so, look at the situation that the Florida Supreme Court is
in. They have a general standard that general standard has been applied for 80-100 years. It's the
same general standard that's been applied in Massachusetts and a lot of other states. How does it
go about dealing with the fact that you now have multiple counties? You can't give them a new
standard because that changes the law. On other hand, what the United States Supreme Court is now
saying is if you don't give them standard, it's an equal protection problem. What it does it, in a kind
of ironic way, says that every election violates equal protection or every past election has violated
equal protection. It's an interesting conclusion. I think one of the things that maybe it says is that
it is desirable maybe what the United States Supreme Court is saying I really don't think this is
what they're saying but I think it's the logical implication of it is that you've got to go to a
statutory standard. The problem is, where you want the statutory standard, like Texas, which had
a very specific statutory standard, at the end you had the catch-all, that said, "and incidently, anything
else that shows the intent of the voter."
Klock But, you know, David, I think that the strategy to whatever end it had, was just
basically from the Secretary's point of view, was to put the issue squarely between Scylla and
Charybdis that way where you couldn't win. There's any number of ways that this thing could have
turned out but you simply could not win if you went down that road and I think that the argument
that argues against the clear understanding of the intent was to watch the theater that was going on
in Miami-Dade, Broward and Palm Beach county. From my perspective watching it and one of the
fascinating things about this case was the only time that you always had to have to a TV set on. No
matter what you were doing. You had to be watching what was going on. You had to watch both
CNN and you also had to be watching the networks from time to time. CNN was clearly the critical
choice that had to be watched.
Cossack Very good.
Klock Depends on the panel. [Laughter] The fact was, is that in my view, in Broward
County, if a shadow passed across the ballot, it was a Gore vote. It was a dimple. It was the
possibility of a dimple. It was whatever. In Palm Beach County, which I thought was a relatively fair
standard if you were going to try to divine what these ballots meant. They said, "Well, if there is a
dimple on the ballot and the ballot has dimples all over it, we look at dimples. If there's only
dimples on the presidential race, and they punch through on the rest of them, we find that they
probably had enough muscle flex to be able to vote correctly on the top one." But meanwhile, of
course, that clearly wasn't the Broward County standard and then in Dade County, it was kind of
difficult to figure out exactly what that standard was. Something that was supposed to be so clear
and understandable would have been more clear and more understandable if you didn't have this
theater going on in the background. If those things hadn't been televised and if no one knew what
was going on, then I think the Supreme Court of Florida would have been in a much better shape
because...It was CNN's fault!
Cossack It's always my fault!
Klock That's what Gore says.
Cossack First of all, this is the Sunshine State, where we get to see all these things. God
bless you, on behalf of CNN. Second of all, that's what your Legislature said is the way you do it.
It said, "You divine the intent of the voter", and I have always believed that there's 67 counties here
that could have had 67 different standards. And under the contest statute there was a judge at the end
who would then come back and say, "OK, this is reasonable." You could have 67 different
reasonable ways to the count the vote. They didn't all have to be the same. And short of somebody
holding up a vote and saying, "I have a feeling in my arm that this one's for Gore and I have in my
hand that this one's for Bush." You could have set up with 67 different ways of doing it, and not
even had to fool around with anything other than the intent of the voter.
Klock And to the extent that it was a state election, and everyone wanted to repose the
standards upon the views of 67 different counties and didn't raise a federal issue. No Problem. The
only problem was that this is a federal election; so, therefore, the views of the process in Florida is
nice, it's good for cocktail conversation, but it doesn't determine the issue.
Cossack That gets us right back to that equal protection argument.
Cossack I know you like due process better.
Mills I'm going to ask Dexter and then I'm going to ask David Cardwell after that, why
when he worked for the Legislature, they didn't solve this.
Douglass Basically, one thing that occurs here in equal protection is you just hit on it -
and it took the journalist to bring it up, is that in Florida we have every conceivable form of casting
your ballot. We've got this system down in these counties that we were focusing on. We have them
in certain other counties like Duval County, which had more thrown away votes than any other
county. Then you get counties that have optical. We even have one county that has the old paper
ballot. We may have some of the old machine counties. So when you set a standard for the recount,
for doing it, if you set a standard, you would have to set it for each one of those systems, and I think
that one reason we felt that the law didn't violate equal protection, in so far as the recounts, was this
very thing. That the only way the Legislature and the courts could deal with this was this general
provision. This was not really addressed in the Supreme Court decision at all, and I always felt, and
I think David did to, that if there was equal protection denied here, it was to those people whose
votes didn't get counted because of the failure to go forward with the counting. The state, through
its officials, were trying their best to thwart the counting and they did it, and they did it by ultimately
getting this opinion out of the Supreme Court. And we all felt, and I think David agreed, that when
we got the unexpected order from the United States Supreme Court stopping the counting, which
would have been completed the next day, in fact, 11 counties were already completed, and we picked
up 58 votes, and they were Republican counties. The overall state recount was very favorable to our
point of the case, and then we get this statement from the Supreme Court, and they stated, 5-4, what
Scalia wrote, "Irreparable harm will come to the petitioner if the votes are counted." The irreparable
harm would be if they turned not to be for him and he had already been certified as the winner, that
it would have been some irreparable harm because he would have no longer been the winner. I felt
that when we got the statement of Scalia, which was 5-4, that we were dead and I think we were very
sad. I don't know how you were. David is never sad. He thinks he's going to win and I tell you what,
if you listen to him you'll rule with him.
Zack Dexter, he wasn't sad, but he was amazed. We were having lunch together...
Douglass He was amazed because he was having lunch with you.
Zack We had MSNBC talking about what Joe said we had MSNBC on one screen...
Mills You're not allowed to talk about them.
Cossack I'm shocked.
Klock That's the other panel.
Zack And CNN the other, talking about what Joe said. And one said the 11th Circuit [11th
U.S. Circuit Court of Appeals, Atlanta] just denied the stay. David said, "Of course they did. How
can counting a legal vote in the United States ever be irreparable harm?" And then the other channel
says the Supreme Court of the United States just granted a stay. We got up and finished lunch very
Mills Joe, you want to respond to that?
Douglass I want to respond to Zack a minute.
Klock The goose was cooked when the Supreme Court of Florida ordered a count of under
votes and not over votes. It was cooked. Basically, what happened was these things were being put
together, being slapped together as you moved along. I have never seen a trial lawyer as good as
David Boies in handling any piece of crap that is hurled at him and not letting it phase him. But at
the end, when they asked David, said, "Well, how about the over votes?" David said, "Well, there
were 111,000 of those." The fact of the matter was, what could you do? I really felt all along that
what you had if everybody had about 4 or 5 months to litigate this thing, the result might have been
different. Is there a sad part of this? In a way, yes. The fact is that the butterfly ballot issue, which
was the most attractive, but which was remediless, remediless, absolutely remediless, was brought
about apparently because of the best of intentions, in terms of Palm Beach County. The other issue
is: first-time voters have problems voting. Period. Even though they have all kinds of help there,
they apparently don't use it. In the 11th Circuit, we spent a lot of time talking about a bunch of
different things, but one of them was the big, bad, nasty punch card ballot. If you went through North
Florida, and we suggested this during the oral argument, if rather than using the statistical standard
that Steve offered at trial, which was to lump all the punch cards together and all the optical scan
ballots together, if you went up to North Florida, where they had optical scanning in some counties
and they had a punch card in other counties, you would find counties side by side with both optical
scanning and punch cards where there were demographic similarities that were remarkable. Okay?
You found that they made the same number of mistakes with either side. As a matter of fact, in two
pairings in North Florida, the optical scanning had a higher number of no-votes than did the punch
card. Therefore, if you were to tie the unspeakable standards of analysis to what the problem was,
what would be the counties in Florida where you would expect to have the lowest number of no-
votes? Well, probably Leon County, which is dominated by both government and three colleges.
The next one that you would expect if you were looking for a place that is dominated by university
graduates would be Alachua County. Okay? So if you look at the numbers, what do you find? The
no-vote rate in Leon County is .25. The no vote rate in Alachua County, .75. The difficulty you had
was, and any professional election people will tell you, that first-time voters have a problem. This
time, there were probably more African-American first-time voters for sure, probably because of
some of the things that were done by Governor [Jeb] Bush and the Legislature. Unfortunately, they
were going to have a problem if any first-time voters did in terms of a fallout.
Boies The only thing is I think is in Leon County it's an optical ballot. I don't know
whether it's the precinct level or the central level, but if it's precinct, one of the reasons you're going
to get very few no-votes is that the ballot will get rejected.
Douglass It does that in Leon. I don't know about it in Alachua, but it does too. We're sort
of getting off the subject here just a little bit. You referred to David arguing a case that was a piece
of crap. I find that for somebody that is sort of a layman's view of this, a little bit offensive
inference. The real piece of crap, if there is one here, was the equal protection argument. That this
statute was unconstitutional.
Klock I'd rather offend David than the Supreme Court of the United States, all things being
Douglass I'm old enough I'm not going any more.
Mills Let me move on to David Cardwell, as somebody who both dealt with this in the
executive branch and the legislative branch. Why didn't the Legislature do something? Of course,
I was in the Legislature at the time you were staff director, so it wasn't my fault.
Cardwell This is a post-election time that was full of cliches and I think one cliche that we
used a lot is that "tough cases make bad law" and I think this was one of them. Plus, the time frame.
I think someone alluded to the fact that appellate courts just aren't used to making decisions in 24-48
hours. That was evident in looking at the opinions. They look like they have sort of been slapped
together by committee and not really sometimes been thought through. I thought it was interesting
watching the two Supremes I refer to them as the dueling Supremes as they kind of went back
and forth. The first time the Florida Supreme Court had the case before them, they seemed like they
knew what they wanted to do. I thought the questions were very pointed, very on-message as to what
they wanted to get to. But the first time before the U.S. Supreme Court, it seemed like they were
wandering all over the place in trying to figure out what to do. The second time around, it was just
the reverse. The U.S. Supreme Court very clearly was saying, "We have five votes to end this right
now", which kind of prompted the old saying, "We're not final because we're right. We're right
because we're final." There was no recount of the U.S. Supreme Court when they ruled. It was over.
One of the things that kept coming up was: what was the intent of the Florida Legislature when it
passed the Election Code [Chapters 99-105, Florida Statutes, which govern primaries, elections,
election disputes]? I think the intent of the Florida Legislature when they passed the Election Code
was to take care of legislative races and they never even thought about a presidential election. We
have a recount for process and a protest and contest process that work quite well when you're in a
county commission race or maybe for state Legislature because in the case of a legislator, the
Legislature decides the outcome of the election. When it comes to presidential electors, it was really
kind of muddled at best, but sometimes it just didn't address anything. I'm sure you kept hearing that
we talked about we were in uncharted waters. There were times I thought we fell off the edge of the
earth because it wasn't just a matter of what did precedent say. There was no precedent. The
Legislature, which could have stepped in, never anticipated this, just as election equipment, as we
find out, is at the low end of the priorities at the county commission level, I think in the Legislature,
changing the Election Code is something that they're reticent to do. First off, every one of them is
an expert on the Election Code. They've been a candidate and they know everything about it. Why
change it because they now just understand it? They're very leery of changes unless it's something
that affects their particular race. There really never was a desire on the part of the Legislature to step
in and correct some of these things. Now, there is undoubtedly a lot of desire now to go in and
change the Election Code. In fact, today the task force on election reform that the governor
[Governor Jeb Bush] appointed is voting on their final report, which contains numerous
recommendations to the Florida Legislature. But is anything going to be done? Will any changes
be made? Right now, I think the focus is on the election equipment. That's fine, we need to improve
the election equipment. That's something the supervisors of elections have been saying for years.
But when it comes to the fundamental law, I'd be very surprised if it really gets corrected, and it
worries me because this equal protection argument we've been talking about, I think, could really
come back to haunt us. Even though the U.S. Supreme Court said it only applies to this particular
case, I think lower courts are going to apply it. You're going to hear it raised in every election case
that's ever brought from now on is going to be equal protection and eventually some court is going
to have to address that issue as to what constitutes a true equal protection issue in the election
Cossack What we also haven't talked about is the "safe harbor"[a provision in the law
which gives legal protection for those complying with it. For example, the "safe harbor" in the
presidential election was 3 U.S. Code, Section 5, which stated that Presidential Electors appointed
at least six days prior to the meeting of electors (i.e. December 12) under state law existing prior to
election day are conclusive and not subject to challenge.] part of that decision. I know we have
lawyers here. Pardon me, Dean. What about that safe harbor part, that all of a sudden the decision
comes down to an hour and a half before the deadline and they say, "And by the way, since the state
of Florida has opted into the safe harbor, there's nothing you can do about it. So forget it." What
about that? I was never really quite sure where they were able to come to that conclusion. I think
there was some line in one of the Florida Supreme Courts that gave them the implication that they
did opt into the safe harbor. Assuming they did, and they didn't meet the December 12t deadline?
What would have happened?
Klock Gone to Congress.
Boies I think that would have opened it up to a congressional decision. I think the most
sympathetic view of what the United States Supreme Court was doing was attempting to avoid what
they saw as a looming constitutional crisis if this election was thrown into the Congress. I think that
they were very concerned about what that would do to the fabric of society and to the political
system. I think that they viewed what they were doing as a way of avoiding that kind of conflict.
Klock I agree with you. I think that in 1876 who cared when they picked the President. It
didn't make any difference. Think in terms of national security and everything else if United States
Congress decides the issue of who's going to become President of the United States somewhere
between January 4 and January 20. That is not a good thing. To me, one of the things I would love
to know is who it was in the Supreme Court of the United States who stuck in that sentence in the
first decision, and then why no one ever came back to it in the second decision. The first decision
says that it is clear that the Florida Legislature has exercised a desire to take benefit of the safe
harbor provision. Therefore, any interpretation, any construction of the law must avoid a change in
the law. There it sat and they never came back and dealt with it. Then, you have the majority and
you have the concurring opinion in the final decision and then you also have again the comments
being made in one of the concurring opinions by Justice Breyer or Justice Souter where they talk
about the fact that there's no need to worry about December 12 because you can do it by December
8. Well, that's great. How about your December 4 decision or whatever the first decision was that
says that the Florida Legislature has opted for the safe harbor and all of a sudden December 12 just
disappears and no one talks about it. It's just gone.
Mills Didn't the final U.S. Supreme Court opinion say that the Florida Supreme Court had
adopted the safe harbor?
Mills There was a line in that opinion which said the Florida Supreme Court's, I suppose,
moving of the date recognized the existence of the safe harbor.
Boies I think one of the things they said was that it a little less strong and clear than that.
It was that they evidenced an intent to take advantage of it and it really didn't go so much from
anything that was said in the Florida Supreme Court opinions. It really was more what happened at
the Florida Supreme Court oral argument and the questions that went back and forth. I think one of
the reasons that nobody went back to that line is, I think, that line considerably overstated anything
that was in the record.
Klock And it depended on Section 5 again.
Cossack IfI mightjust step in. President Young, from our old revolutionary days at UCLA,
a constitutional crisis to me sort of sounds good but what that really is is a crisis that the
constitution solves. If the way it goes is that it ends up and December 12 we don't make it, and it
ends up in Congress and Congress decides, well, then that's the way it's supposed to be. I always
would find that to a more pleasing solution to be honest with you than to have the people of Florida
say that they can't count their votes which is what it ended up here.
Klock They can count their votes. They just can't have it apply in a federal election.
Cossack I understand.
Boies They just can't count them in the most important elections.
Douglass The only election they can't count them in is this one.
Cardwell I think I still would have liked to have seen the scenario of had it gone to
Congress, of the president of the Senate, Al Gore, opening the ballots, and announcing that the
Florida votes were in dispute, and seeing Senator [Joseph] Lieberman and Senator [Hillary] Clinton
be voting on which votes on which ballots to accept. That would have been some pretty high power
Cossack That would have been good TV.
Klock It isn't who you miss. What you miss is the choice would have been between
December 12 and January 10.
Boies Ultimately, it would have been in the House of Representatives.
Klock That would just be the President. Wouldn't the Vice President be in the Senate?
Boies Yes. You could have had...
Klock And Bush is President.
Cossack That's how the crisis would have been solved. You may not have liked it, but
that's how a constitutional crisis would have been solved. That wasn't uncharted waters.
Boies I also think that it's unclear whether if the votes had been counted, as Steve has said,
we were very close, the state of Florida was very close to having those votes counted. They would
have had those votes counted before the December 12 safe harbor deadline. At that point, I think
there's a very strong argument that says that that's within the safe harbor and anything the
Legislature does takes it out of the safe harbor. I have some dubiety Nobody can predict exactly
what would have happened, but I'm not sure that if the United States Supreme Court had let Florida
simply proceed, you would have actually had it thrown into Congress. I think that if you had had
it thrown into the Congress, I'm not sure it would have been a terrible crisis. I'm not sure that the
American people would have had any more difficultly accepting a selection of the president in effect
by Congress than in effect by the Supreme Court. I think one of the great things that has come out
of this election, I think, is the tremendous stability that this country has. I've been interviewed by
a lot of journalists from outside the United States, and one thing they always say, "It is very hard to
explain this to the people in my country. It's very hard to explain why people aren't in the streets,
why people aren't rioting." The explanation that I always give them is that there's going to be
another election. We know that there's going to be another election. We know that everybody who
got elected this time is committed to their being another election. So if you lose one time, even if you
think you lost unfairly, you're gonna have another shot at the polls in 2-4 years. And I think it is that
confidence in the stability of the democratic institutions that really mean that we are unlikely to have
a real constitutional crisis, regardless of whether something is decided by the Supreme Court or by
Cardwell There were numerous times I was asked by foreign journalists, to explain how
we could say we had a fair election when you have the son of a former President running for
President and the election being decided in the state where the brother of the candidate is the
Governor. To them, they just could not understand that at all and how it wasn't really creating a
Zack That may be in Europe. In Latin America, where I spend a lot of time practicing, they
didn't understand how the thing lasted 48 hours after the election. My Russian client said they knew
30 days before the election who was president. [Laughter]
Mills Let me ask a couple of the journalists this time frame question and the complexity
issue. It's clear that these issues are pretty complicated and there are even disputes among very good
lawyers about certain interpretations. How did you go about explaining this? Tom?
Fiedler You know the old joke about the un-expert is somebody who learns more and more
about less and less until he knows absolutely everything there is to know about nothing. In a lot of
ways, I think that's where, no offense, where the lawyers were on this is that they...you end up
pursuing a legal point to such an extent that the public and the media reflect it. The media, Roger
is handicapped here by having too much of a legal education. Most of us in the media who are just
regular folks. What we were looking at, what we were following during all this time was not so
much, certainly, we weren't parceling the equal protection argument, but to cover this was a three-
ring circus, at least a three-ring circus. You had the legal cases going on and you had to try to make
some sense of that. We also had, at the same time, the recount was going on. How that was
proceeding and that may have been the simplest thing for the media to follow. And you had kind of
a sideshow, you had the Seminole County case, and what was behind that Seminole and Martin
County. And we had the Florida Legislature doing what it was doing. So, the world that the media
in general, I think, was covering was broader, and in being broader, to try to make sense of it. Maybe
we were looking for more simplistic answers maybe bumper sticker kinds of solutions there. I
think if there is anything that we would take away from this election in a general sense, it would not
be arguing where the next court cases have to go or what the standards are going to be. It was, to us,
to me anyway, my sense is that this was really about voters, and all of this really turned to some
extent on mechanical problems in the system, but for the most part this was about voter screw ups,
and voters who intended to go and do something and for whatever reason weren't able to do it. And,
Joe, I know you made a bit of this in the Supreme Court, but I think to most people out there, trying
to discern what ultimately was behind it, it was that people went in there hoping to do one thing and
because they didn't quite know how the system worked or they had never voted before, the first-time
voters issue, they just flat screwed up the ballot and there isn't really a remedy for that other than
next time around, if you're going to vote and there is language in the Florida Supreme Court,
you've got to treat that process in a much more solemn way than people treated it this time. That's
harsh, and that was something that obviously, the political, the candidates couldn't use. George W.
[Bush] couldn't stand up there and say, "I deserve to win because all these people were too dumb
to vote for Al Gore." That's where, ultimately, we may end up having to solve it.
Klock Then, Tom, the next thing, of course, the big next political issue now before by the
Florida Legislature is how much money do we pay and spend to get what degree of voter inclusion?
Zack There's no question there was a lot of voter screw up, Tom. But there was also
machine malfunction. The only person who ever testified in any courtroom in the country under oath
on behalf the Bush campaign, was Mr. [John] Ahmann [an engineer involved in the development
of the Votomatic voting machine]. Mr. Ahmann said the machines were defective; that's why he
submitted a patent application, that he tried to get a new machine after the machines that he sold to
Dade County and Palm Beach. That we had affidavits from people who tried to punch though the
ballots, they were unable to do so. The machines were designed to do that.
Fiedler I know that, Steve. The point is, if the machines were defective, you would think,
on balance, they are defective for both teams.
Zack Not necessarily because of where the machines were used.
Klock But, Steve...
Zack Wait a second, Joe. The fact of the matter is that the machines, different kinds of
machines, the older machines, the machines with more wear and tear, were in certain areas than in
other areas. I want to go back to the issue of remedy because I think it's one that we need to not
gloss over. I've heard it said that the butterfly ballot, we didn't have a remedy for that. I think one
of the great frustrations in this whole process is the concept that even after the Supreme Court of the
United States ruled that we just ran out of time. I remember our first hearing in front of [Florida
District Court] Judge [N. Sanders] Sauls. The one thing we said that everybody wanted to make sure
is the game wasn't called just because ran out of time. The people would know exactly what
happened. As chairman of the Constitutional Revision Commission, we have Dexter Douglass, we
have the father, Chesterfield Smith, out in the audience. Our most valuable member, we talked a
great deal about Article 1, a provision that is unique to Florida, not even in the United States
Constitution. It says, "In Florida, there will be no wrong without a remedy ." That's in the Florida
Constitution. Well, I'd like to know what the remedy was here, under the circumstances.
Douglass I can tell you what it was, but under these circumstances, it wasn't available. The
only remedy available in that instance is a re-vote and that's it. We've had re-votes in Florida, if
you've lived long enough, but they're in elections that were county elections, where it didn't matter.
One of them was the county judge, and it was decided three years and eight months after the election
and they kicked out the one that was in.
Zack Bill Clinton would have liked that.
Douglass The other point that needs to be made here, it may be a political point. I'm old
enough to remember when we had literacy requirements for voters. We're bordering on talking
about that. You better think about this because I know what the literacy requirements were. When
I went down, they asked me to spell my last name. When the fella that cut pulp wood for us went
down, they asked him to recite the U.S. Constitution, and he didn't get to register. Now somewhere
along the way, we get lost in this argument about people are too dumb to vote. Well, I getting to the
age where I'm already too dumb to vote, and that was said, that was said that old people made these
mistakes. All these arguments were made. We should always, whether you're a lawyer or whether
you are journalist, recognize that when we make these arguments about people being dumb to vote,
we're going right back to where we were before we had the Voting Rights Act [42 U.S. Code,
Section 1971 et seq., the Federal law guaranteeing the right of U.S. citizens to vote without
discrimination based on race or color] and all these other things. I'm not a bleeding heart liberal.
I'm a Blue Dog Democrat, a Red Dog, Yellow Dog, whatever they are. Nevertheless, whatever
political party you're in, this must be addressed and thought about when we make these arguments.
That's all I have to say on that. [Applause]
Klock This sentiment is a very important sentiment. It's a sentiment that could have been
articulated five years ago, ten years ago, when the voting supervisors have been whining for about
20 or 25 years about the need to do something about the voting system. It was never a problem until
somebody lost. Lots of people lost along the way, but it wasn't the high-profile kind of loss that
we're talking about here. The fact is, the issue that Steve is raising with respect to the machines is
an issue that may have affected any number of people. The point that Dexter raised is a very
important one. The entire contest provision in Florida is dependent upon the fundamental principle
that you can solve the problems even after an officer has assumed office. If you look through the
Florida cases, you see it all the time. Doesn't work here. Because the electors' function terminates
in 30 days or 35 days. So Florida had an elaborate election code that had been pieced over a number
of different sessions. We thought that there were reasons why it had been done. It was never
designed to deal with this kind of situation. Never.
Mills It's clear that the machines had a margin of error that had never been a problem, and
we accepted the margin of error.
Boies On the timing thing, the thing to keep in mind, though, is that the timing was not a
problem. The votes were going to be counted within the time available. I think one of the most
magnificent experiences in American democratic history was that Saturday, when you had people
showing up all over the state to count votes. The state of Florida was getting its votes counted, under
its Election Code, under its precedent, and it was going to get done by December 12.
Klock But, David, also in some counties, they were counting over votes, too, even though
they weren't supposed to. All that was going to happen at the end of this would, there would have
been more lawsuits. I mean the Supreme Court said, only count under votes. In, I believe, two
counties around the Tampa area they were busily counting over votes as well, for whatever reason
and then, of course, the process requires that certificates be filed. When the certificates are filed, the
election canvassing commission and the Secretary of State are not permitted to go behind the
certificates, which means you have had an entire new ramp of now federal litigation that would be
filed, that would actually be based on equal protection at this point in time because you would have
had different votes being counted in different counties.
Boies No more so than you would if you threw out the entire election. If you make that
argument, the problem is you've got to throw the entire election no matter what, because you always
have different standards being applied when you're doing that preparations.
Klock David, I 'm talking counting different piles of votes.
Boies What I'm saying is that there's always a problem if you don't go beyond behind the
certificate. You had a Florida court that was going to have all of this in front of it two days before
the [December] 12t and if somebody said, "Look, two counties counted over votes and they weren't
supposed to", there's a remedy for that. That's what you've got judges for. I think there is a serious
issue here in terms of how you overlay manual counts with machine counts and I think there is a
serious issue in terms of whether there is a solution to that because inevitably you're going to have
people coming to a manual count if they're exercising discretion with some point of view. Maybe
one answer is that you abolish manual recounts. Maybe you can only have a machine count. Maybe
you try to get the machine so good that you've got confidence in it. Nobody's ever been prepared
to do that in the history of the United States. Maybe that's one solution, but if you're gonna have
manual counts, the Florida system was working.
Klock But, David, again, look The view of the Secretary of State, which I think was the
correct view, was that manual recounts were not designed to be done other than when there was a
demonstration that there was a mechanical failure in voting. That is what she opined and it was
binding on anyone that she asked the opinion of. Put that aside. When the Florida Supreme Court
decided the issue, that became the law of Florida without any question, which was the reason why
what we focused on was what the law was before and after November 7t. I am not disputing the
Supreme Court of Florida is the body that is charged with the responsibility of deciding what Florida
law is, and they decided that the manual recount could apply in other than the situations that the
Secretary thought it would. That is fine. But the fact remains that that's what again tossed it back
to being a federal issue.
Boies But not really. Because if the United States Supreme Court had said, "We think
Secretary [of State Katherine] Harris articulated Florida law correctly, and we think the Florida
Supreme Court when they articulated a different rule, changed the law, therefore it violates Section
3, and that's really, I think, what Justice Rehnquist wanted to do, but he could only get three votes
for that. But if that's the way they had come out, I think it would be a much better argument from
a legal standpoint. That's not what they held. They didn't hold that the Florida Supreme Court
changed the law. What they held was that the Florida Supreme Court's law that had been applied
for a long time, and was consistent with the law of a lot of other states, violated equal protection.
That's the problem that you have when you try to understand what the United States Supreme Court
did. There was a way that they could have articulated a legal conclusion that wouldn't have been
so anomalous. But they didn't do that.
Mills Let me ask the broadcast journalists. One of the issues in this overall circumstance
was the ability to report by those who were writing overnight and those who couldn't, and we have
two folks who wrote overnight and two folks who broadcasted. Let me first ask you, Mike. You've
been here for a long time. How would you describe Tallahassee as a broadcast journalist during this
period of time?
Vasilinda Well, newspapers were obsolete in Tallahassee because if it was written in a
newspaper, it absolutely was outmoded by the time that you got it the morning. There was absolutely
no way to read it. The [Miami] Herald did a pretty good job of trying to keep their Internet site
moving, and a lot of folks were doing that. I don't believe anyone has ever seen the number of
satellite trucks that were parked outside the Capitol. One count by Capitol police had 42 trucks, and
that may be low because they were scattered from over about a ten-block area, just literally lining
the streets. It was really instant analysis of every move. We were covering a horse race. It was,
David did this, David held a news conference, James Baker came back and held a news conference.
It was literally moving from one arena to another so quickly that it took 10 andl2 crews to cover it.
Cardwell There were times if something didn't happen within an hour, we got bored. We'd
start looking for something.
Klock Then you had Noah's Ark, with one Democrat and one Republican coming
continually, with the Democrats say, "We need got to count every vote," and the Republicans saying,
"we have counted." The only one who blew his lines, I remember, was [Wyoming U.S. Senator]
Alan Simpson, who apparently hadn't been adequately prepared in the Green Room. We used to
watch and we used to keep count and say, is anyone going to blow their lines, but they didn't.
Vasilinda That begs the point. This whole thing was so scripted really from the beginning
and I think that if I had to say, the Republicans did a much betterjob of scripting this thing out and
getting their message out on a statewide basis than the Democrats. The Democrats oftentimes and
no offense, David, it wasn't your part; you were in the legal part of it, but from a political perspective
- they did not seem to have a handle on what message they were going to deliver or how they were
going to deliver that message. Let's go back to the military absentee ballots. A good friend of mine
wrote that memo on covering that, and it was a minuscule number of votes, but the Democrats
floundered for about four days and let that hit a number of news cycles before they were able to say,
"Hey, wait a minute, it's really only about a thousand votes that we're trying to challenge here."
Mills This is, of course, sort of interesting because it goes to Joe's point about news cycle
being a legal issue.
Klock I think the big difference is, I think, if you look at it, if you're looking at it,
objectively you might come to the conclusion that on one side they had a focused plan; on the other
side decisions were being made and perhaps by one person who was backed up in terms of the
decision-making process in time. I think the Democrats look, everybody had their own thing to
do, and to my way of thinking, the most important legal principle of all of them was what number
was appearing on that little banner that was running on the bottom of MSNBC and CNN. That
number. The Democrats were focused on getting that number to have a Gore in front of it instead
of a Bush. That was the most important thing to do. If that had happened, then a lot of the legal
results probably would have gone in a different direction. I think that the focus of the legal team was
to get that number with a Gore in front of it. That was a very, very important thing, and I think one
of the most important things that, hopefully, we will be looking at it at some point in time was how
you litigate a case like this with the press. That is where my esteemed colleague to the immediate
right of the Dean showed enormous talent because we all know that there's a lot of things thatjudges
don't do, but they do read newspapers and they do watch TV. This was something when things
were being moved along, I think, they did a pretty good job actually on the other side. I think the
Republicans had a more difficult thing to do. They appeared to be better scripted, but I think that
the TV, I thought, was being handled better by the Democrats than the Republicans.
Cardwell Mike made a comment about The Herald Internet site. One of the things I wanted
to mention is that what was to me way unusual about this election was that while you try
commenting on it, trying to analyze something, you realized that everyone that was watching was
downloading stuff from the Internet. I mean court opinions, while Roger was trying to read it outside
the U.S. Supreme Court, people were downloading it and reading it at home. When we had call-ins,
people asking questions, it was an incredibly knowledgeable crowd that was calling in. They were
quoting from the opinions. With Florida's courts being so open, we weren't trying to explain what
was going on inside. People were watching what was going on inside. From an analysis standpoint,
I felt like I was doing the play-by-play instead of being the color commentator.
Klock There was some man up in Washington, D.C., or somewhere up in the Northeast.
His name was Mark Freedman [CQ], who kept sending e-mails all the time. You'd be sitting there,
and he would have e-mails that would come up as the thing was going on. He, apparently, was a big
Gore partisan. I didn't answer any of them until we got to one almost at the very end, when he said
he was forwarding to me an article that had been written in The New York Times by someone who
was attacking my marvelous presentation of names in the Supreme Court in the second argument.
I sent a note back to him, I said to him, "Thank you very much, but my dad already sent me a copy
of that, but I did want to compliment you because I've noticed from the tone of this particular e-mail
that apparently you've refilled your Valium prescription." He wrote a note back, he said, "You win."
This is a guy who literally was watching what was going on a minute-by-minute basis and was
basically responding to whatever he was seeing. We just had lots and lots of e-mails from him.
Zack One of the lawyers in Seminole told me that he got an emergency call in the
courtroom that his family had a serious problem. He left the courtroom and got on the phone. A
deputy came and took him. And it was some guy he had never heart of in Maine, telling him he had
the case that was going to resolve the whole issue for him. Obviously, it didn't work.
Klock Well, I tell you what. One of the things that struck me in this thing, the one case that
got very little play, which really irritated me more than any of the others, was a case that ended up
being in a federal court before [U.S. District Court] Judge [Maurice] Paul, where they were
attempting to throw out all of the military ballots that had been postmarked properly on the grounds
that the Florida law, and it got absolutely no press coverage. I often wondered if the shoe had been
on the other foot, and if the Seminole and Martin cases and this particular case, had been being
pressed by Mr. Bush, the excoriation, there would have been a sea wall of outrage. This thing just
sat there, and no comment about it. It was by one of the independent Democratic groups. This was
after all of the hoopla about the military ballots what they were trying to throw out were all the ones
that had been postmarked within the proper time.
Cardwell I think one problem that we constantly were confronting was that there were so
many cases out there going at the same time. Repeatedly, we were being asked to try to simplify,
to try to narrow it down to the essential cases. From day to day, sometimes you didn't know which
one was the essential case of the day because things changed so rapidly. There were some cases out
there that were filed early that just sort of disappeared and just didn't get a lot of attention and then
others came to fore. Seminole and Martin County were the stealth cases. No one paid any attention
to them at the beginning. Then all the sudden, they were at the top and then they very quickly went
Boies I think a lot of it was rightly or wrongly and I'm not sure it was wrong I think the
media tended to focus on the things the two official candidates were pushing. I think that they
tended to do that partly because that's what the organized forces were pushing and also partly
because they thought, well, if that's what they are pushing those must be the stronger arguments.
I think that what happened in front of Judge Paul, I don't think anybody gave that any chance of
success in part. I think in Seminole and Martin county, I think that a lot of the reason those were
stealth cases, was that people didn't think they had as much chance of success as what the major
parties were pushing.
Klock Let me ask this question on that, David. My view of the Seminole and Martin cases
was that if those cases had not been in this particular contest, they would have been dismissed.
Klock And the only reason they went through trial was the judges thought they had to do
Boies I think that's right. I think under Florida law it was absolutely clear, under the intent
of the voter statute, that we relied on, that those were intent of the voter cases, the Florida Supreme
Court in a number of cases, going back to Boardman in 1975 [Boardman v. Esteva, 323 So.2d 259
(Fla. 1975), a Florida case rejecting an attempt to invalidate absentee ballots where officials
substantially complied with election laws and plaintiff could not show fraud.], has repeatedly held,
which was one of our favorite cases if we made a mistake, though, one of the things that I think that
we did not do a good enough job of is in putting the Martin/Seminole County cases the issue together
with the issue that we were pushing. Because it always seemed to me that the challenge in
Martin/Seminole should have lost under Florida law. Our challenge should have won under Florida
law. And that the important thing was to put to the courts that we can't lose both of those, that if
you're going to have a situation in which you're going to say, "OK, there's no discretion." You can't
have different people deciding under different standards what votes will count, what votes won't
count. Then you can't have people in Martin and Seminole County saying, "Well, it's okay that you
missed this point, it's okay that you missed that point." The only thing that I think we might have
done a betterjob of is putting both of those issues in front of the courts and saying, "Look, we think
we ought to win on this one, and lose on this one, but I tell you one thing, we can't lose on both of
Savage?? This is strategically, I think, a good point.
Boies From a political standpoint, though, where you had a message that was, "count the
votes", and you really had, I think, a decision that said, "We don't want to, can't, are not prepared
to, even as a tactical matter, adopt the Martin/Seminole county challenge. But from a strategic
standpoint, I think adopting that standard enough to put in front of the courts and say, "Look, we
can't lose both of these," would have had some force.
Douglass Those of us that were involved in the lower courts and all David included -
argued strongly for this position. Ultimately, what he just said was the one that prevailed was
probably correct, and we all accepted it because here we were, really wanting to count the votes. We
would have been saying, but, we have a technicality over here, we have to throw out 30,000 votes
because there were a thousand votes that were illegally cast, put us in a position that would have
made us look inconsistent, but it would have put the other side in the inconsistent position that they
were already in and illuminated it, which was in those cases, you must count them even though they
violated the election laws and in our case you don't really interpret the election laws to get the votes
counted was the argument that was being made so we had that. I think the whole idea of the public
relations concerns overriding in many instances some of the legal positions that the lawyers wanted
to take was a valid one. We didn't particularly agree with it from a legal standpoint but if you stop
and analyze it, which we were, sitting in Tallahassee, we weren't in a position to counter any of the
people that really understood what was going on. I think ultimately we may have lost the case in the
PR arena in a way because the people's urge to get the votes counted kind of slipped away from us,
and the pressure to have them counted kind of slipped away, and we could all feel that. I think that
might have had some effect on the outcome, and I do think, though, the important consideration was
the one that David stated and one that we accepted, even though we were pretty much involved in
thinking the other would be our best legal position.
Cossack I always felt that the Republicans were much more successful in characterizing
Gore as sort of a sore loser, even though it was clear at that time that he was 300,000 votes ahead
in the popular election. This notion in terms of what we did, I thought they were much more
successful in characterizing him as a guy who should have stepped aside and didn't step aside, and
it was these lawyers suddenly who came in and gummed up the works. I thought from a PR
standpoint, the Republican side was much more successful than the Democratic side. I think in some
ways that's why the Supreme Court decision was greeted with a little bit of relief in the sense of,
okay, it's over. What they've done is they've finally ended it. Don't bother us with how they ended
it. They've ended it, and now we're going to have a new President, and everything is going to go on
just the way it's supposed to be. I thought that was the coup, there was the major success.
Douglass Let me just say this now. There was another legal position that was taken that
I think affected this. It was one which, I think this has been publicized, that those of us that were
Florida lawyers that were involved, wanted when [Florida Circuit Court] Judge [Terry P.] Lewis
ruled that she hadn't abused her discretion, which was the one that was ultimately appealed in the
Supreme Court, which got the extension and the protest out. We wanted to go immediately to the
contest, under 168 [Section 102.168, Florida Statutes, which governs contests to a certified election,
filed in local circuit court], and 168 put it in the Leon County Circuit Court, and it would have put
it before Judge Lewis, who was the judge who should have heard this case all the way through. If
it had done that, then we would not have been faced with this spectacle in Miami, where they
brought in the people from Washington and staged these demonstrations and there were no local
people in them. All of the PR things that went on in Palm Beach and Broward county and you had
all these pictures of the guy being thrown out of the Broward County vote counting. It would have
been counted as they were being counted when the Supreme Court stopped, and that was with circuit
judges doing it very calmly and under an excellent, controlled situation where they couldn't have had
these things. The PR of those vote counting things probably hurt our legal case more than any other
single thing. Had we gone under 168, and this is hindsight you know, you're always right when
you were right and it turned out you lost. The truth of the matter is looking back, I think, had we been
in the courts counting these votes under the same conditions they were being counted when we
stopped, two weeks earlier, they would have been counted, and I'll tell you what, we counted all of
them, and I think The Miami Herald's study showed that Gore would have won by 15-20,000 votes.
Cossack I guess that sort of answers a question that I always had and I have you two
gentlemen to ask. If you had it to do all over again, would you have forgotten about that protest? By
going to the protest, it came back to sort of bite you in the end because the Supreme Court was in
a way able to chide you and say, "Well, you know, you wasted all this time in a sense going through
this protest. You should have gone right for the contest and then you would have had more time."
Boies I think that from a timing standpoint, I don't think it made any difference. They had
the ability to get it done. It was going to get done, if the United States Supreme Court had not
stopped the counting. From a timing standpoint, I don't think it made any difference. I think Dexter
makes a very good point, though, and that is, that the contest phase, because it would have been
under court supervision, would have had the ability to enjoin demonstration. Nobody's going to
interfere with a court. You would have an elimination or a possible elimination of the kind of things
that happened in Miami and elsewhere that may have brought the whole process, to some extent,
under criticism. I think that there's a good point that the contest phase, just because it would have
been subject to court supervision, might have eliminated some of the graphics that caused people not
to have as much regard for the process as I think they should have had.
Mills Ultimately, of course, the U.S. Supreme Court decision, if you accept their reasoning,
would be the same.
Boies Yeah. I think if you take it to the Supreme Court, it wouldn't have made any
Cossack It might if it had been done earlier. They might have had a difficult time saying,
"Well, you don't have so much time."
Boies The thing is if you had it done...I think Scalia was right in a sense in his opinion that
he wrote on December 9, when they stopped the vote counting. It is that number across the
Klock Absolutely. That is the reason why you wanted to push the protest. The protest was
the surest way to get that number changed on the bottom. 20/20 hindsight is very, very convenient.
In the heat of the battle, when the only thing that was important was to change the number on the
banner. The fastest way to do it was in the protest because the fear was, I think, that the contest
would bog down.
Boies I think you're exactly right. Remember, in the first week or ten days, you had a wide
variety of the media, from The Wall Street Journal to The New York Times and The Washington
Post, all saying this ought to be over with. Everybody saying the American people are not going to
wait to have all these votes counted. It turns out that people consistently underestimated the patience
of the American people. I think the American people were quite prepared to wait, and they showed
they were quite prepared to wait week after week while this process went on.
Klock It was the best TV around.
Cossack They loved this story. This was like O.J. You can't find one person who watched
O.J. It had the highest ratings in history. "Did you watch O.J.?" "I never watched O.J." "It was the
worst show." I never met anyone who buys the tabloids, meanwhile, they sell about eleven million
copies per week.
Douglass We had our chads. We had our trucks. We had Ryder trucks.
Klock Not only that, on this show you could take either position and be respectable, unlike
the O.J. trial which was considered bad form.
Cossack Plus, look at the cast of characters that we had here. To get back from my media
standpoint, and you hit it right. This was the only story that I've ever been involved in that changed
so quickly that the newspapers could not keep up. We would read The Washington Post in the
morning, and this was truly yesterday's news. Something had happened three hours after I had gone
home in the afternoon and I'd get a phone call about four o'clock, saying "You've got to come back
in" and why? Because something dramatic has just happened. Of course, I must point that you guys
- the participants were wonderful. David, no matter what happened, whether it was the best day
or the worst day, David Boies would show up with that wonderful smile on his face.
Douglass You should have seen him before he left the office.
Cossack With a smile from here to here, he would say, the world is coming to an end in
about twenty minutes but we had a great, successful day.
Douglass And everybody's prepared.
Vasilinda One of my favorite polls during this whole thing, it was actually after it was over,
it was about the middle of December. There was a gallop poll that showed that the American public
was totally surprised that Christmas was about ten days away. They hadn't been going to the mall.
They hadn't been doing anything. They'd been sitting at home watching David.
Klock We developed two rules during this thing. One rule was the 12-hour rule. If you had
a victory, you celebrated it within 12 hours because if you didn't, you lost the opportunity to have
a drink. That was No. 1. The second rule was the two-hour rule. The two-hour rule came from this
- At the very beginning of this thing, the Secretary authorized us to file something in the Supreme
Court, asking the Supreme Court to take everything to Tallahassee, assign one judge, and establish
a standard and move forward. As sort of an afterthought, like at between one or three in the morning
- we filed this thing at 3:30 in the morning we said, "You know, really what we should do is we
should have them stop the counting until they establish the standard." So we stuck that in. Well, the
next morning everybody was unhappy. The Republicans were madder than hell; the Democrats were
mad; and the Secretary was mad. Because, of course, she did not recall that she had made that
decision. That began the two-hour rule. The two-hour rule was if the idea hadn't matured within two
hours before it was filed, it wasn't used. It was out completely. Let me ask this question: Why, other
than the point about stopping the ballots, why were you guys unhappy about the idea of us suggesting
that everything should be brought to Tallahassee and assigned to one judge and the like? We thought
that that made sense to do.
Boies I think there was a lot of sense to that. I think that, in retrospect, that might have
moved the matter along. There was so much going on at that point, and there was so much of a
concern that we didn't have, from a political standpoint, enough time to let the process mature. This
would inevitably have delayed things. This would have slowed things down maybe it would have
only slowed things down a week, and maybe after that week, it would have proceeded more
expeditiously and more orderly. People were not, I think, at that point certain that they had that
week, and I think people were resisting sort of any, even short-term, delay. I think that in retrospect
I think that was a sensible proposal. It made a lot of sense and on balance, it might have worked out
better if everybody endorsed it.
Douglass You must remember though that Vice President Gore made an offer early in this,
which was rejected by Governor [George] Bush. He said if you will agree to recount the votes in
Florida, I will agree to be bound by the recount. We'll recount them all. That was rejected by
Governor Bush, so at one point to say that Vice President Gore wasn't willing to go to the mat on
this was wrong because he literally made that offer. There were people within the camp where we
were involved that didn't want him to do it. We thought it was a good idea. David did and I did.
There was some dispute. He did that, and everybody forgot that. They still say, "Well, he didn't
want to count all the votes"; but he did want to count all the votes under a condition that would have
ended the legal proceedings and they could have proceeded to recount the votes. That would have
been the proper solution in 20/20 hindsight, would have been the best solution.
Mills Let me ask this. This will give a chance to the print media to respond to this
statement. They didn't quite say you were useless. Occasionally, from time to time, in contacts with
the written media, I know that some of you folks felt you actually had the chance to get it right in the
morning as opposed to modifying positions three or four times during the day. Is that correct?
Fiedler David should get it. I felt like Admiral [James] Stockdale [Reform Party vice
presidential candidate in 1992] who ran with [Ross] Perot [Reform Party presidential candidate in
1992 and 1996] and he stood up that first debate and said, "What am I doing here?" This story broke
so fast. We typically, on our editorial board, we'll have our meeting in the morning and decide at that
point what line to take. If you decided in the morning what line to take, it's like the twelve-hour
rule, that you knew 12 hours later was absolutely useless because something had come along...I don't
know how many times we decided that we should call for Gore to actually get out of the race. By
later in the day, everything had turned around and said, "We can't say that. The game is still alive."
The key opinions came down from the Florida Supreme Court and from the U.S. Supreme Court,
as Roger well knows, so at late at night that we ended up writing what everybody is supposed to
think as being, sitting back and stroking your chin and thinking deep thoughts, we ended up writing
these as if you were filing for the AP on dictating your story and having rewrite try to work it into
something smooth. In any event, this story was not made for newspapers. But I just would say that
the time has shifted now and the TV satellite trucks have moved on from Tallahassee and, to some
extent, the historians have moved in, and newspapers being that rough draft of history, we're kind
of back in the game now and obviously we aren't going to change the outcome. I think as history
looks back and wonders what really was in those under counts, what did those ballots really show?
and the over votes, too. Eventually, that's really a newspaper story, and the newspapers are the ones
that are doing that. I think that ultimately when history of this whole thing is written, we won't be
so irrelevant as we were in the first phase.
Vasilinda Indeed, today's Miami Herald has got a great story about Gore only picking up
Douglass ...And picking up 180 in Orange County...
Fiedler In the over votes.
Savage I offer a dissent to that. I thought this was great story for good newspapers,
particularly those with a West Coast deadline. [Laughter] What was great about this story from a
legal writer's point of view is that every day, it seemed like, there is a new legal issue that both sides
were arguing about. What does Section 166B [Section 102.166, Florida Statutes governs the
protest of election returns before the local canvassing board prior to certification by the canvassing
board, which allows hand examination of paper ballots.] say about hand recounts? And so, it was
very easy to get people shouting on television, Republicans and Democrats, saying the law says this,
the law says that. My colleague Henry Weinstein and I were able to sort of write stories everyday
saying, "Suppose you're the smart, interested reader who is following this story, and really wants to
know, well, what does the law say?" Every day we had sort of a new issue to write about. I just
thought it was a great story. I had a different view every two or three days about what the law was.
I must say, I've covered the Supreme Court for a long time and was not impressed by how they
handled this case. I was impressed by how the Florida Supreme Court handled the various legal
issues that I'd been writing about. They were hard issues, but I thought they did a pretty good job.
I'd like some of the Florida law experts to answer the question for me: If the parties had been
reversed, do you think the Florida Supreme Court would have done the same thing?
Savage That was my impression. Their decisions were very much in tune with Florida law
and how they had decided cases in the past.
Boies If you look at Seminole County and Martin county, where it was the Democrats
making the challenges, you had the Florida courts turning them down. The Florida courts have taken
a long-term view that you count the votes and that you look for the intent of voter. There are these
old cases that go back 80 years in which you had paper ballots and people were told, "You've got
to make an X in the box." They would do everything except place an X in the box. They'd point an
arrow. They'd underscore. They'd circle the name. They'd put an X on the other side of the name.
The Florida Supreme Court repeatedly said, "Look, you got to count the vote." I think that the
Florida Supreme Court and the Florida lower courts, generally, were taking exactly the same view
and it was really a nonpolitical, in a sense of nonpartisan, approach.
Klock I think one of the benefits of maybe not being as smart as other people in being more
focused on it. In my way of thinking, there was never any question that the United Supreme Court
was going to take this case. I remember, David, when the [Florida Supreme Court's] Chief Justice
was in your 72 minute rebuttal in the first oral argument, when he was going back and forth with you
about changing the dates. I remember turning to my partner. He wrote a note, he said, "What's going
on?" I said, "Oh, Wells is playing with him." My view was if they changed the date, there were two
problems with changing the date. Number one the think that scared the hell out of us was 168, not
166. 168 had the possibility of mischief. But the other thing was, in my view, if they changed the
date, while it wasn't an overwhelming example of changing the law, it was a change of the law.
They'll never do that. When the first decision came out from the Supreme Court and was coming
over our printer, I remember the mood in the office was not good. When I saw that thing, I was
delighted. "Look at this thing. They changed the date. How can they change the date?" That was
the only nice thing that I saw in that entire opinion. But I thought they were always going to take it.
In my mind, maybe it's just because I compartmentalize it too much, I had no problem with anything
the Supreme Court did, except, of course, ruling against us. But the fact was, I didn't have a problem
with any of their railings as they applied to Florida law. Fine. My only issue was, is it different? I
thought it was different. I thought that if that difference was presented to the Supreme Court of the
United States they would say that's all fine under Florida law. It violates federal law. It's in no
disrespect to the Supreme Court of Florida. Their job isn't to interpret federal law, particularly
when they're not asked to do it. The Secretary's position was more constrained because she was not
going to appear before the Supreme Court of the United States and ask to have ruling of the
Supreme Court of Florida overturned. As far as she was concerned, her focus and attention was very
limited and never asked to have what the Supreme Court of Florida did overturned. That, to me, was
just staying on message. That was what the strategy was, as far as we were concerned. Once we got
to a point where the Election Commission had ruled and the Secretary had stated her position, then
that was the best way to defend it, say, "Hey, our only issue is whether the law is the same."
Boies If you had won on that basis, I would have disagreed with it. I could have understood
the United States Supreme Court giving you the decision on that basis. But, of course, they didn't.
You only got three votes for that position.
Boies It was deciding on equal protection that seemed to me to be so difficult to
understand. Klock I think, if anything, switching to the equal protection ...a first semester
freshman in law school understands the order with which you address issues. You don't get to the
Constitutional one That's the big momma at the end. To go right to that, indicated there was a
great deal of turmoil. I thought that the fix was in with that first order from the Supreme Court with
that sentence that I can't remember exactly the language...I thought that set it up so that there was
a box, and you couldn't get out of the box. I really think that when they went to that...
Boies If that were the box, you didn't need equal protection.
Klock For sure.
Douglass The reason we thought we didn't have to worry about the Supreme Court was
their recent history of going back to states rights, where they've held that the states decide political
questions. They've now held, for example, we don't have disability protection, the state employees
don't, they don't have any other protection.
Cossack The same five by the way that decide...
Douglass So we felt. Let me finish, Joe. Just once. What I had to say was very brilliant.
You made me forget it. He has a way of doing that. Barry Richard [attorney for Governor George
Bush] made a speech where he pointed out our mistakes. That was his whole speech. I enjoyed that
because I was wondering where we made our mistakes. David wasn't there to find out how dumb
we were. We always agree with the proposition if you win, you're brilliant. If you lose, you're not.
Basically, what I was trying to say that we felt very secure that they would follow their practice. This
was a political question; should have been decided by state law. It was decided under state law, and
that they wouldn't exercise the jurisdiction. When they lost in the federal courts getting the rulings
that they were seeking, we felt even probably lulled into a little sense of security. When it came
down, when they finally stopped the vote count, it was like getting hit in the head with a hammer.
Klock I thought the 11t Circuit [11th U.S. Circuit Court of Appeals, Atlanta] case, Dexter,
the arguments before the 11th circuit was a real kick. They were quite agitated, and agitated with
each other among other things although they obviously were quite collegial. They get along. One
of the points in the Touchston [Touchston v. McDermott, 234 F.3d 1133 (11th Cir. 2000) cert. denied,
121 S.Ct. 749 (2001), upholding a district court decision (Touchston v. McDermott, 120 F.Supp.2d
1055 (M.D. Fla. 2000) denying a preliminary injunction against the manual counting of ballots in
four Florida counties as required by the Florida Supreme Court in Palm Beach County Canvassing
Bd. v. Harris, 772 So.2d 1220 (Fla.), vacated by Bush v. Palm Beach County Canvassing Bd., ---
U.S. ----, 121 S.Ct. 471, 148 L.Ed.2d 366 (2000).] opinion when one of the judges said- one of the
judges I think it was [Circuit Judge Gerald Bard] Tjoflat said "This is what you have to do, guys,
put something in the record and then jam it back up here and then the rest of them are going to have
to finally decide the case instead of avoiding it." I really think that [U.S. District Court Judge Donald
M.] Middlebrooks's decision Judge Middlebrooks is a very, very fine judge, very scholarly opinion
- what he basically said was, "Look, the state of the record is what it is, and I'm going to rule the
way I'm going to rule but I think if it was a fuller record there, there might have been a difference."
To get back to the point, David, you raised about whatever issue was defined by the two parties was
the one the media paid attention to, in the same way this same train was sort of snaking through the
woods, and people just followed the train, they just followed the parade....
Mills On the equal protection issue, how would you explain the dissenters that went along
with the equal protection argument?
Boies I think if you talk about the people in dissent, what they were saying is that it ought
to go back or at least there ought to be opportunity for it to go back, so that the Florida Supreme
Court could define the criteria. Now, remember that all of the dissenters, all of them, said this was
not a case the Supreme Court of the United States should have taken. That is, all of the dissenters,
all four of them, said that this was not something that should have been disturbed. I think that the
view from the dissent in the United States Supreme Court was pretty consistent. This is something
that should have been left to the Florida Supreme Court to decide.
Cossack There were four dissenters. Two of them found an equal protection violation, but
said that the safe harbor problem wasn't a problem. Two of them said, "We just shouldn't be here
at all." Was it Breyer who quoted [Former Justice Louis D.] Brandeis, who said, "We will be
remembered not for what we do, but for what we don't do." They said that we just shouldn't be
here, this is not our problem.
Boies Indeed, I think it was Souter who started off in his opinion by saying, "We never
should have taken this case. I said that then, I say it now, we never should have taken this case."
Even the people who saw some issue in terms of equal protection were of the view that the United
States Supreme Court should not have taken that case.
Vasilinda I thought one of the great ironies in this was that when James Baker came to town
and I think it was the Thursday and he held his first news conference after the election. He was very
adamant: "This case is going to be decided on Florida law and principles that are finely laid out in
the statutes." It's Florida law, Florida law, Florida law. I think he had a great deal of concern that
they were ever going to get to the United States Supreme Court on this, and I thought the great irony
of it was that's where they ended up winning.
Savage On the equal protection also, when the case first came to the Supreme Court, I
thought the Republicans had at least the makings of an equal protection claim. It was this selective
recount in heavily Democratic areas. You remember that? That was the, sort of the mantra. The first
time. There is something to be said for that. If you're going to do sort of a microscopic search for
votes in hand recount, and only do it in a few counties that lean Democratic, there's something that's
sort of unfair about that. The Supreme Court denied review. They said, "We don't even want to take
up that question." Then it goes back to the Florida Supreme Court, and the Florida Supreme Court
says, "We're going to do a statewide recount", then they take up the equal protection argument in
Zack The selective review was first discussed in front of Judge Middlebrooks. Nobody
talks about that. That was one of the first arguments that Ted Olson [Theodore B. Olson, attorney
for Governor George Bush] argued in front of Judge Middlebrooks. Judge Middlebrooks at that
hearing asked him, "Well, didn't you have an opportunity to bring out whatever counties you wanted
to have reviewed, and wasn't there a period of time that you had to do it, and didn't that time go by?"
He goes into that extensively in his order. Again that went before the 11t Circuit. Itjust got a rebirth
at the end, but it had been dealt with very early in the proceedings.
Klock But, Steve, if you think that someone is doing something incorrectly, and that there's
no legal basis for it, the way you're supposed to respond is by adding 64 other incorrect counties into
the mix. I don't really think that that is the way that you can test things. I mean Gore filed a contest
in the counties he had won. He contested the election results when he had won. Judge
Middlebrooks' decision, I think, was predicated in large part on the record as he found it and the law
with respect to the record as he found it. I don't know what would have happened if it had gone back
later on. The 11th Circuit, God only knows what they were doing. While all of this was going on,
huge boxes of documents were being shipped up to the 11th Circuit. They apparently were collecting
things or something up there. We must have had 27 requests for documents from the 11t Circuit.
There was obviously some sort of large debate going on up in Atlanta which remained private.
Boies They wanted them at like seven o'clock in the morning. They would tell you, "We
want these documents at seven o'clock this morning." You would think they're gonna come out with
something really important, and then nothing would happen.
Cossack Joe, let me ask you. As a former practicing lawyer, I know the issue of when you
take your own case after a while, you only see your own case. It becomes so clear that you're right,
you can't understand anything else. Did you really think that the Supreme Court was going to take
Cossack Because you are, honest to goodness, the only person I ever knew that thought the
Supreme Court was going to take this case. I sit there with a guy in front of millions of people every
day and say, not a chance the Supreme Court's gonna take the case. So, in terms of egg on my face,
I really had egg on my face. And you saw something...
Klock I never doubted it. I never thought they would take it the first time. The only thing
that truly surprised me in later decisions, and I think everyone at this table will acknowledge it, when
the Supreme Court of Florida came out with their order on Friday afternoon, there was nobody who
said that they thought that the Supreme Court of Florida sua spante [on its own initiative] was
going to do what they did. I think that the fight over Judge Lewis' order there, I don't think anyone
was thinking about taking...that the Florida Supreme Court was going to jump on that and do what
Boies This is which one?
Klock You know, when we went before Terry Lewis on a contempt, when Dexter accused
my poor client of everything short of a crime against humanity.
Douglass I was talking about her lawyers. She happens to be a personal friend of mine.
Klock She speaks very highly of you.
Douglass Her staff worked for me. Her general counsel was my general counsel, so we have
great respect for her.
Klock- I understand the distinction. I was surprised at that, but then once they began writing,
I basically think that the Supreme Court of Florida had two factions on the majority. I think you had
one of them that was really concerned about this sense of the purity of voter intent and then you had
another faction that just basically felt that the Bush side was trying to prevent a just result from
occurring. I think you have the two of them that got together. I think that the 4-3 decision or 5-2 or
whatever it was was present in the first case and they wrote that opinion in such a way as they got
a 7-0. The second decision, I think, was either a 5-2 originally that changed to a 4-3, but again you
found that those two articulated viewpoints that formed the majority.
Vasilinda The Florida Supreme Court didn't respond to the United States Supreme Court
until after they had issued that Friday ruling. I found that one of the great puzzles of this. The U.S.
Supreme Court had sort of slapped the wrist of the Florida Supreme Court. The court then went
ahead and went a step further than they went the first time without explaining to the U.S. Supreme
Court why they were going there. I wonder if the outcome in your minds would have been different
if the court would have responded initially and set their precedents and then gone ahead and ordered
Klock I think the point was missed. I think what happened in the second decision was and
it was sort of like Federal Jurisdiction 101, when it went back to the Supreme Court of Florida, they
thought what they had to do if they wanted to stay where they were, was they had to clean out
anything based on an equitable articulation of the law or something predicated on the Florida
Constitution and return to a construction of the statute, which I thought missed the point. The point
was whether or not if you'll excuse the redundancy the law had change before or after Nov. 7th.
I think the Supreme Court of Florida thought they had, and when we were preparing for the oral
arguments the next day, we met with it's just amazing how smart some of these kids are that have
clerked on the Supreme Court of the United States a couple of them identified a couple of justices
and said, "These two justices are going to be red with rage over the fact that the Supreme Court of
Florida has basically ignored them." I don't think the Supreme Court of Florida thought they had
ignored them. I'm thinking they thought they had responded.
Cossack I'm thinking the Supreme Court of Florida felt that they didn't really have to
answer that question. This was such a traditional notion of being Florida law that this was the
Supreme Court kind of ruminating.
Boies I think it was absolutely clear to the Florida Supreme Court and I think this was
true for all seven justices on that court that they were not changing Florida law. That this was what
Florida law had been. They said that in the first opinion. They said that in the second opinion. They
said that in the third opinion, where the Chief Justice, Chief Justice Wells, dissents, because
basically he's saying, they shouldn't be addressing it there. But still, nobody is saying that there is
a change in the law.
Klock I think the purpose of the third decision, interestingly, was the one thing that worried
me, not in terms of the case because the case was well towards over. I was concerned when an
ongoing basis with respect to Florida law was that if the Supreme Court of Florida did not come back
from part of what they said before, that the Florida Legislature couldn't reform the electoral code.
For instance, if it was now a matter of established Florida constitutional law, the issue with respect
to intent and that kind of thing, then you couldn't establish standards in the election code because
the Florida Supreme Court had already articulated what the standard was or what it couldn't be.
Boies I don't agree with that.
Klock In the third decision, what they basically said was, "Look, the whole issue with
respect to the election code is remanded to the Legislature and we recede from our opinions to the
extent that it is inconsistent with that."
Boies I don't think it was really a recession. I think what they were saying in the first
opinion was that the Florida Legislature had articulated a general standard of intent of the voter. I
think what they were saying...
Klock In the 11th Circuit, one of the things that was...
Boies That's not constitutional, that's statutory. In other words, it's the intent of the voter.
Klock What was the standard?
Boies I think that's what the Supreme Court was consistently saying was the law, which
is: You had to look at it individually, ballot by ballot, and determine the intent of the voter which
is what they have done for 80 years in Florida, what they've done in every other state that has the
similar kind of statute.
Klock Without identifying the judges' names so I don't further exacerbate my
embarrassment, one of the judges in the 11th Circuit when he looked down to the Gore lawyer whose
argument said, "Let me understand this, so in other words, basically if we were to adopt the standard
of the Florida Supreme Court, it would make a criminal trial a lot easier. What we just say to the jury
is, 'If they're guilty, you convict. If they're not guilty, you acquit'." Because they said there is no
standard for the intent. What's the standard?
Boies Obviously, I was not there, arguing that case. What I would have said is that intent
of the voter is not guilty or innocent. It does give you the standard. What you're trying to do is
figure out what the voter's intent was, just like you try to do in criminal law all the time. What was
the intent of the act? What is a reasonable man? You put people to death based on standards that
are no more specific than the intent of the voter standard. So, if you ever get into the situation in
which you have a rule that says equal protection is violated by a very general standard, you are going
to invalidate an awful lot of things that the five-member majority of the Supreme Court has defended
like the death penalty.
Klock If you go back then to Palm Beach County. In Palm Beach County, what they were
doing was they were reviewing the ballots, but they basically were operating on a rule and the rule
was that if you don't find dimples everywhere on the ballot we are not going to accept dimples in
the presidential race where there's clear punches in the next race. The Gore people went back to
court to try to compel them not to use that rule. If the three people...
Boies What the court ruled was that you couldn't compel them to use a different rule. And,
indeed, what Judge Burton in Palm Beach kept saying was that "we're not adopting any specific
rule". I tend to agree with you that what they were doing was adopting a rule.
Klock What Judge Burton was saying was we're not adopting a rule, but this the way we're
going to think about it.
Zack But if you go back to the original question, would it have made any difference if the
Supreme Court would have answered quickly. The answer is, in my opinion, in the final analysis,
no. I remember arguing a case before the Supreme Court. Roger, you may have been present when
a young lawyer was asked a question by a justice and he actually looked at the justice and said,
"Well, we don't think that's, I don't think that's relevant to the issues before us." Justice Rehnquist
looked at him and said, "Young man, when a justice of the United States Supreme Court asks you
a question, I want you to assume it's relevant." When seven justices ask you a question, you ought
to assume that it's relevant. So, the fact they needed to answer in some way was clear. Whether
it would have changed the final result, I doubt it. Matter of fact, I'm certain it wouldn't.
Boies I also think in terms of the factions on the Florida Supreme Court. I don't think you
had that. I didn't read it as that kind of breakdown. I read it as that you had seven justices on the
court that really were committed to what I think of as the standard Florida principle of count the
votes; look at the standard; look at the intent of the voter. What you had in the second opinion is you
had a difference as to whether there was time enough to do that and what the costs were of pursuing
that in this particular instance. I think the cleavage that I saw was not in terms of their commitment
to that standard, but a question of whether in this particular contest situation you had the time to
complete it and what the costs were of trying to do that.
Douglass The best opinion, one of the best opinions at least, was the concurring opinion
of [Florida Supreme Court] Justice [Leander J.] Shaw in the last opinion they wrote after the fact
opinion, in which he said just exactly what David said. I thought in reading that that was probably
one of the best statements of this case, even though he was in the three in the 4-3 dissent in the case
that went up to the Supreme Court. And also the other concurring opinion was likewise very strong
on that point, and I think the Florida Supreme Court made the point that David just made. They were
together, even the Chief Justice, on the basic issue of intent of the voter. The Chief Justice, however,
differed in where it should be. I think that's where they were. I think you need to read their last
opinion before you make any assumptions about how they individually felt.
Klock I believe the Florida Supreme Court, if it was not concerned about the Section 5
issue, would have articulated a standard. I don't think that they would have spent 60 pages each time
talking all around the issue and not have articulated. They knew that you had to have a standard
articulated. They just couldn't do it in that case.
Vasilinda Well, Florida law had a standard. It was 67 different standards set up by the
Klock But there's no standard. The standard was who you picked. One of the things that
concerned us when you looked at this thing when you brought it all to Tallahassee. The standard
was, what three people were identified. Identified three people. Ex Officio.
Vasilinda All three branches of government involved in that, though.
Klock Yeah, but there were also the specific people in each of these counties. The standard
was it was a situation where you had to have players to have the standard.
Mills In the contest provision, though, as I understand, the U.S. Supreme Court opinion
held the statute constitutional.
Klock Which statute? 168?
Mills They also held the standard was acceptable. It was an "as applied" [An "as
applied"argument attacks the constitutionality of a particular statute or regulation as it is applied in
a particular situation to a particular plaintiff. It is distinguished from an attack on the facial
constitutionality of a statute or regulation, which argues that the statute or regulation is
unconstitutional in all cases. See 4 AM. JUR. 2D Appellate Review 65 (1995).] issue.
Klock 166.5, as the Secretary applied it, I think it was constitutional. As it would have
been applied in this thing, I think it would have been offensive to federal constitution because a voter
couldn't ask for that process, only a candidate.
Douglass When they stopped the votes, though, it was thejudicial system that was counting
Klock That was under 168, not 166.5...
Douglass Somewhere along here we missed the argument, that if your argument's correct,
that it's denial of equal protection when you have intent of the voter, for example, a standard. That's
how you're going to decide it. Everyjury trial is decided exactly that way, particularly in criminal
cases which David has already pointed out. If you want to carry your argument to its logical
conclusion, then we cannot have that standard anywhere in the law. I think Jon just pointed out
probably the saving grace in this is it was an "as applied argument" and they can always say, "Well,
we didn't really mean that to apply that to the case before us now" which they really need to say..
Klock I think in a statewide race, even a state, statewide race, if you were to look at the
record that we have here, the standard would be that any three-group of people picked on an ex-
officio basis can use any technique, as long as they don't articulate what it is, in terms of making a
judgement. Look at, Dexter, the standard between Broward County and Palm Beach County. It
wasn't the same standard and we know that because they ended up in court talking about it and Judge
Burton talked about what the rule and standard was in Palm Beach County and we know what the
standard was in Broward County. Keep them coming. Roll them through.
Mills I think we understand the difference in opinion.
Cossack If they're reasonable, I think you can have 67 different standards.
Mills Let me ask a question that I think crosses both lines. Florida, as was mentioned, is
an open meeting state, and our court proceedings were open. How did that affect your roles as
lawyers, how did that affect your roles as members of the media? In the national media, the
distinction when you then approached the United States Supreme Court?
Klock You couldn't use naughty words in e-mails. That was one very important rule.
Vasilinda I thought what was very interesting about the U.S. Supreme Court cases is that
we got a glimpse inside for the first time with the audiotapes. Florida broadcasters had filed a
petition as soon as they agreed to take it saying, "Hey, listen, all of our stuff in Florida is open. This
should be because it pertains to Florida." There was a very nice, handwritten notice that went back
to [Florida Association of Broadcasters President] Pat Roberts that basically said, "Well, that's a
great idea but we just don't want to go that far yet. But we will make the tapes available." I thought
that was a great step forward for the U.S. Supreme Court in this and that perhaps we will see at least
at the federal appellate level someday cameras.
Cardwell This actually became TV news, watching the person run out of the building with
Vasilinda And watch it go in his cassette.
Douglass You know, really one thing that needs to be said by the lawyers, and I think
they'll all agree with me, that while you call this a three-ring circus, you call it whatever you want
to, these people nearly 95% behaved thejournalists and that's the print, all the other media, with
great professionalism. It was a fine group and the television. Everybody tents to think of them being
these overbearing people. They were not. There were instances where they tried to hem us in when
we were trying to get out of courtrooms and so on, but on the whole, they were absolutely
considerate of our time. I thought and I think David would agree that they really went out of their
way to try not to interfere with our handling of the case. All of us had been involved in television
a lot anyway, but when you get in the courtroom, at least it's my experience, you do not do what
people think. You don't play to the TV camera. You do it just like they weren't there. After a little
bit, you're not even aware they're there even though the courtroom was so jammed that when we
went into Judge Sauls's court the first time, we were 10 minutes early and David and I had to stand
up and our whole team. That's because Joe had brought all 18 of his lawyers to take our seats.
Nevertheless, we finally got to sit down. That was because I was old and infirm.
Klock And whining a lot about it.
Douglass There was a very gracious lady that offered me her chair. At that point, one of
the people he'd hired to be "grey-haired man at the table" felt embarrassed and suggested that they
might move and let David sit down too. In any event, the television in the courtroom, while it was
very, very imposing, did not affect the lawyers in my opinion for the most part. Some of the people
that were there as intervenors, that's something that needs to be addressed procedurally. They just
killed tons of time. They were there to speak to the television cameras.
Klock I think the courts, however, the presence of the media in court, for the appellate
courts had a very interesting result. The Supreme Court of the United States was a little bit more
reserved than they would normally be in that environment. The Florida Supreme Court, since it has
lived with TV cameras for so long, was completely natural. When I came in, a lot of people said to
me, they said, "Well, you know, this particular justice, that particular justice was really mean to
you." I said, "What are you talking about?" I said, "I don't think so." I've been there a lot. [Florida
Supreme Court] Justice [Harry Lee] Anstead, for instance, is extremely active in oral argument. He
is always playing the Devil's Advocate, and he's always over both sides. I think that may have hurt
the Supreme Court of Florida a little bit with the public because they're not used to watching it.
They're not used to the kind of give and take that you have, and how the lawyers will sort of fuss
with each other to borrow a "D'Alemberte-ism" [reference to Talbot "Sandy" D'Alemberte,
President of Florida State University and past president of the American Bar Association] on a
different point but it doesn't mean anything. I think that that was a little bit hurtful to the Supreme
Court because I think people interpreted partisanship, when that wasn't what was happening. All that
was happening was issues were being pressed.
Boies I disagree with that. I think that the reactions that I got were uniformly that the court
was prepared, thoughtful, articulate. They did say, "Gee, that judge gave you a really hard time
about some of the questions", but there was never a sense that they were being partisan in doing that,
at least in any of the reactions I got. I thought the cameras in the courtroom, which I've been,
actually, despite a number of conversations with my friend Steve Brill [Founder and CEO, Brill's
Content] over the years I've had a certain ambiguity about, I thought the best argument for cameras
in the courtroom was what happened here. I think it really helped explain to the American people
what was going on. I think it gave them a sense of the process, I think it gave them a sense of the
court, and I think it increased the respect that the court had.
Vasilinda Remember that prior to this...
Cossack Are you ready for my rant? Can I rant on this for a while?
Mills You are recognized to rant.
Cossack First of all, if you are right, how sad that the American people do not get a chance
to see what goes on, that they came to the kind of conclusions that you suggest they came to of
partisanship. And the reason for that is because cameras are not allowed in courtrooms. I understand
the argument against trial courtrooms, and putting trial courtrooms aside for a moment, where
witnesses actually come in and testify and there are jurors, and there are arguments to be made in that
particular setting, but now go to the court of appeals, the Supreme Court, and finally the United
States Supreme Court. Where I have always argued that what the United States Supreme Court does
has more effect on our day-to-day lives than what Congress does. And the notion that we as citizen
taxpayers, who pay their salaries, do not get an opportunity to see what goes on in that United States
courthouse, in any courthouse, in any appellate courthouse, where the traditional arguments against
witnesses no longer apply, is to me outrageous. The fact that they tossed us a bone by letting us hear
the audio fifteen minutes to one-half hour after it was over I find insulting. And when I rule the
world, which hopefully will be soon, the first thing that's going to happen: There will be cameras,
so that we can all emulate this wonderful state at least in terms of being able to see we as citizen
taxpayers to see what goes on to see how our lawyers perform in front of the United States
Supreme Court and other courts of appeals and to be able to see how these judges and to see how
these judges act and react. Clarence Thomas has been on the Supreme Court for a number of years
now, and I don't believe he has asked one question from the bench.
Savage It's seven.
Cossack Seven questions in how many years? Ten years? Eight years?
Savage They were good ones, though.
Cossack It doesn't mean he shouldn't be on the Supreme Court. It means it's something
we should see. Who is active, who is inactive? Who guides, who leads? How do the lawyers
respond, and what is the opinion? It has more to do again I say with our day-to-day lives than
anything Congress or your Legislature does. That's my rant.
Vasilinda Let's go back to those cameras in the Florida Supreme Court, though, remember,
the days leading up to that there was a great deal of publicity in the national media and the state, as
well about the 6-1 split on a Democrat versus an Independent, and that Dexter Douglass had a hand
in appointing about a half a dozen of those judges.
Douglass It was false.
Vasilinda I know, but they were so suggestive.
Douglass I know it. I got a lot of business out of that. [Laughter] The people were dumb
because they listened to John Thrasher and The Wall Street Journal and what they said was totally
Vasilinda But the Republican spin was that this was a partisan court and there's no doubt
about it, and it's going to rule against the Republican side. I thought those judges gave both sides
such a hard time, that they did themselves proud throughout this entire thing at both hearings. They
were tough on both sides.
Mills One of the things I found stunning was coverage of the Florida Supreme Court's oral
arguments. Because, while I've argued there too, and there were commentators suggesting that they
could interpret an outcome from the questions, which strikes me as stunning.
Vasilinda Usually when they're hard on you...
Mills I think anybody who's faced that has...
Douglass ...more fun than answering the questions.
Savage One of the things that the justices always say about cameras, which is not a very
good thing, which is that they like being anonymous going around. You remember the argument in
the first Supreme Court case was on a Friday and they issued that little decision on Monday. My son
works at fast food restaurant in Northern Virginia and he came home from his shift at nine o'clock,
he said, "Dad, you know, the Chief Justice was in tonight, sat in the corner booth, smoked his
cigarette, had his cheeseburger, and nobody noticed him." Chief Justice Rehnquist is one of their
regular customers for his Sunday night cheeseburger. But they actually- it's not a very good reason,
but one of the things they like is being able to go into the grocery store or the video store or the fast
food restaurant and be unnoticed.
Cossack You know, that Sandra Day O'Connor just gets mobbed at the market.
Cardwell Roger, I think you mentioned one time on the air that an argument's been made
that lawyers will ham it up if they're on television.
Cossack No. No. I've never made that argument. In fact, I agree to the contrary. In fact,
studies have indicated that about three minutes after you're in there, you totally forget that the
television camera is in there. Those studies actually cut across into trial courts, too. About a minute
or two after you're in, you're into your argument, you're into what's going on, and you forget the
Klock My behavior certainly is a tribute to that.
Zack There are exceptions to every rule.
Cossack As a lawyer, we agonized with you a lot during that moment.
Klock I never paid any attention to the fact that the cameras were in there. I don't think
anybody ever did. You sort of react...
Cossack Sure, you're in there. You're doing your thing...
Zack The strange thing here is that and if you try a case in Florida generally and there's
cameras, there's a pool camera and they have one press photographer. Here, at the left, there was
50-60-70 cameras going and you're oblivious to it. Really, as you said, Roger, after three minutes,
you forget about it and you have to because you really can't do your job if you're thinking about the
cameras. The way the Supreme Court of Florida is set up, you don't even know they're there.
They're hidden away and it really doesn't affect you whatsoever. There really doesn't seem to be
any logical reason to keep them out of the United States Supreme Court.
Douglass Yeah, but you do when you do have still cameras now. You'd better be aware.
I found out because I'm sitting there. David and I have a picture that he had up on the wall and David
is smiling like this and I'm sitting next to him going [puts his hands over his face] and that's the way
we reacted to bad news. Worse than that, they have it on the front page of The Atlanta Journal,
where I know people and I'm sitting there like this. So they killed me in Atlanta. In any event, you
do have to be aware the still cameras are there, and they do catch you in all sorts of crazy-looking
poses. Some how or other, David never had those. I was the one that always had them, but it does
have that little effect.
Zack There was an eleven o'clock hearing when David and I are both yawning with our
Boies That was the one I was thinking of.
Douglass The best one was when Judge Sauls was reading his opinion. You know, you're
dead on every point I can think of and two that I haven't. I had moved and Steve, he wanted to sit
next to David and I thought this would be a great time. So I moved him in, next to David, and they're
reading the order. They have a picture of them and they both look like they just swallowed a very,
very sour dill pickle. So, I didn't get that...
Zack It was a little different. He knew which way the order was coming down, as we all
did. I was sitting in the back, hiding. He said, come up here.
Cossack I think now is the time I can tell my David Boies story. Is now the time? When
we were doing interviews and the Supreme Court had just decided to take this case, much to the
chagrin of all the smart legal commentators who said, there's not a chance in hell the Supreme Court
is going to take this case. Of course, up pops David in Washington. Somebody grabs him and he's
on one of the malls or the lawn someplace with this perpetual smile. You know, the Supreme Court
taking this case is an awful thing for his side. And they stick a camera in front of him, a microphone
in front of him, and they go, "Joining us is David Boies and joining us is CNN analyst Roger
Cossack." Before I can say anything, David Boies says, "Roger, I'm glad you're there. I've a
question for you." Of course, fear goes through my heart because what we are very good at is asking
questions. I don't know what the hell the answer is. I was sort of backed into a corer. My first
instinct was to say, "Listen, David, I ask the questions." I was sort of on the spot here. And so I said,
"OK, David, what is it?" He said, "Roger, you don't really think that the Supreme Court is going to
reverse the Florida Supreme Court, do you?" And I thought to myself, "Yeah, I do. Not only do I do;
I think the reason they took this case was they didn't take it to congratulate you on what a
wonderful job you had done down in the Florida Supreme Court. They took it to stick it to you."
Klock My bet, that's what David thought too.
Cossack You have these thoughts that go through your mind in about a second and can
rule the world in about a second and a half. I had to pause because I didn't want to say to him, "Are
you kidding me? You're stuck. You've had it." I said, "David, to be honest with you, I think there
is a in typical lawyer-speak a very good chance here that the Supreme Court probably took this
case because finally, I couldn't stop because they didn't want to congratulate you, because they
wanted to get a new opinion", and then David said, "Oh, come on. There's no chance." And he made
such a wonderful argument that I thought, "Maybe he's right, maybe I'm wrong." I was only lucky
you didn't end up with my job.
Mills Let me now give the audience a chance. There's a couple mikes up here. If you'd
like to throw out a couple questions, please proceed.
Questioner My first question is for Mr. Boies. Given that this was a national experience
and we've all seen the procedures for the contest and the protest and the equal protection arguments,
what does that mean for future elections? In the future, after every election, are we going to see more
and more people running to file lawsuits and contests and protests and equal protection challenges?
Boies I think you will see more lawsuits. I think you'll see a lot of attempt to use this by
candidates. I think that it will probably take a decade or so to make clear that this was an opinion
for this election only. I don't think that this in the long-term is going to convert election law into
equal protection law, but I do think there's going to be some litigation over that. I think that the
courts are going to try find as graceful a way as possible to extricate themselves from this opinion
in the future, but I think it's going to take awhile. In the meantime, they'll be a lot of opportunities
for creative lawyering.
Mills Any other responses to that from the panel? Next question?
Questioner-A question for Mr. Klock. My ears sort of perked up when there was discussion
of the election equipment problems and voting problems that had been going on for some time. You
said that the voting supervisors have been whining about this for 20-25 years and, also I can't
remember whether you said, could or should have been changed previous to the election. I wanted
to ask you, when your client, Ms. Harris, testified in front of the U.S. Commission on Civil Rights,
she told them that she had not anticipated that there would be problems with the election, even
though she was aware that there were a lot of first-time voters. I was wondering if you'd be able to
reconcile those two things.
Klock- I think she deserves a lot of credit for having appeared before the United States
Commission on Civil Rights, which I would have declined to do. Since it was clear exactly what
the drill was...
Vasilinda I believe she was subpoenaed, wasn't she? [Laughter and applause]
Klock- I believe that the point that I made was and I'll make it again. It was my
understanding that the election supervisors all over the state had been requesting for a long time that
there be a change to different kinds of voting systems. Each time they would do it, the money was
never in the budget to do it. Debbie Kearney, who is the General Counsel for the Secretary, was
sitting there. My understanding is that a lot of supervisors preferred the optical scanning system.
I think very few over the years have favored this like a Burger King style, where you punch and it
lights up or doesn't light up. It is my understanding. These problems have existed whatever the
problems have existed. I believe without getting into the whole area of I don't think these are
issues of literacy tests or anything else. It would be nice if we could compel people when they first
register to vote to at least sit down and watch a video on the process. Because there's a lot of people
that are simply not willing to step back out and say, "I can't figure out how to do this." I think the
reason why the election supervisors have asked for a change over the years in the punch card is
because it takes so long to get the results. With the optical scanning, a lot of it is done right at the
precinct level and then sent across telephone lines to the central computer. With the punch cards,
they actually have to take these suckers down and put them through a machine as you know, several
times when they are counting them. That was the reason...The punch cards are a bulky system. The
best system I'm told is the lever system, but they don't make those machines anymore. They are
extremely expensive to repair. They favor those overall. They're the easiest to operate.
Vasilinda The great controversy in this legislative session is going to be who's going to be
paying for it. In 1984 in Leon County, one of the reasons we have the lowest error rates on voting
there this time was because in 1984 we had a supervisor of elections who totally screwed up the old
metal machines. They didn't work and they created a State Attorney's investigation, so the county
bucked up with $800,000 because there had been a problem. In every other county in Florida there
had not been problems like this, so there was no incentive to spend any money in Florida because
of the 67 different jurisdictions. It's 67 different supervisors are responsible for coming up with the
money from the county commission. One of the great fights in the legislative session this year is
going to be if we're going to go to a statewide system, how do we treat everyone equally? There are
25 counties that still have punch card systems. They didn't spend the money, other counties did.
Why should we subsidize some counties when some people stepped in and went up to plate?
Klock The over vote problem is not going to be...Even the Cadillac of machines will not
solve the over vote problem because in the over vote problem, what frequently happens is somebody
fills in the oval for a candidate and then writes their name at the bottom. That problem will not be
solved with even the most expensive machine. You'll still have that problem.
Cardwell Let me just mention that I first heard about hanging chads in 1976 when I was
a lawyer for the Division of Elections. It's been around for a while, but punch cards you'll hear
more about on another panel were actually introduced as high technology. I think their day has
passed. There's still some benefits from an administrative standpoint, but you do have the over
vote/under vote problem. As we saw, it's kind of difficult when you pull up the card to read it versus
an optical scan ballot, they are much easier to read if you're doing a manual recount.
Boies I think actually the optical character recognition ballots that are precinct registered
does solve the over vote problem because if you put it in and there's an over vote, it rejects it.
Klock That still doesn't solve the problem of someone writing in a write-in candidate.
How's the machine going to deal with that? If there's a write in?
Boies If you voted twice, the machine kicks it out. That's the whole point That's why in
a place like Leon County you get such a terribly small number of failed ballots.
Klock At the end of the day, the problem is going to be who's going to pay for it?
Boies That's where I think the equal protection argument may actually bear some fruit. I
think if there is an equal protection argument, it's an equal protection argument that says there's a
lack of equal protection where some voters have access to these kind of machines and others don't.
I wouldn't be at all be surprised to see litigation that says there's an equal protection problem if you
don't have the certain-kind machines. That is, the state cannot have because we all know that
counties are not a separate political division. They're a subdivision of the state. What counties do,
the state is itself doing. There's I think an awfully good argument that the state cannot have one kind
of machine in one county, another kind machine in another county when you now know those
machines have very disparate results.
Cossack There actually have been problems going to the U.S. Supreme Court. Do you think
that they would find this an equal protection violation outside of our case in the way they...
Boies Outside of our case? I don't think so.
Zack There actually has been this problem for a long time. Anybody who thinks this has
just happened now is badly mistaken. That's not what the evidence's case is. The problem is it was
never statistically significant because it was usually not that close a vote. But there is a very valid
reason we don't have time to go into today that we brought in trial as to why you could conceivably
punch through on different parts of the ballot and not be able punch through on the left side of the
ballot, just by the rubber bands and the way they're used and the amount of use they get and also the
chad buildup. There are machines that haven't been cleaned out for eight years, You'd open up the
bottom receptacle and they flew all over the place because people couldn't put through.
Klock Probably after about 75 years of chad build up, that might be a problem.
Boies To get back to your question for a second...
Questioner I wish somebody would.
Klock The answer to your question is that the Secretary did not address the point that I
addressed. My point was that the election supervisors had been complaining about the machines, but
the reason they were complaining about the machines, as I understood it, was they wanted
something that could be more efficiently, where the returns could be more efficiently reported as
opposed to the terrible concern about chad buildup.
Boies I think there's another point, though. That is, even if the election supervisors were
aware of some of the vote counting problems, which I think the record shows they were, I think what
Secretary Harris was saying is that first, I don't think until this election that was associated with first-
time voters. I think people knew that there was a problem with punch card machines, but I don't
think they particularly associated that with first-time voters as opposed to other voters. Second, in
the usual case, that's within the margin of error. I think the thing that was so striking in this case is
you had such a close election. The kinds of errors everybody has always known existed really made
a difference, and they made a difference in the most important election that we have in this country.
Mills The disparity issue is interesting. Statistically, Leon County was less than .5% and
Duval was over 9%.
Klock Alachua County was .75%.
Mills I meant the one that was the highest.
Klock The highest no-votes was in North Florida.
Mills In other words, I think, the issue you raised if there's an equal protection issue that
someone might raise, if it's not solved, it would be a machine has 20 times greater possibility of not
counting my vote.
Klock Dean, if you look at North Florida, you'll find in counties side by side with an
optical scan and the punch card ballot that the results are about the same.
Mills Are they that great?
Klock Yes. It's about the same. As you look across the U.S., you'll see the highest
percentage of these punch card ballots are completely contrary to the premise in Florida, which is
that they were used in areas where you had poorer voters. But in Florida, for sure, it's clear the
numbers are clear that they are used in areas that are highly populated areas and have a higher
concentration of voters that aren't as well off economically.
Douglass You need to know that we don't stipulate to those facts.
Mills We'll keep the litigation going. Yessir?
Questioner My question is directed toward Mr. Cossack. This is regarding intent of the
voter and the equal protection argument. Regarding intent of the voter, you seem to suggest and
others seem to suggest that Florida could have maybe 67 different standards and then you also
seemed to suggest earlier that they may not apply if someone held up a ballot and didn't even look
at it and said, "That's A, that's B." Couldn't the argument be made that's exactly what happened
in Broward County, that they were in fact casting votes, not counting votes? Couldn't the argument
be made that the Supreme Court looked at that in deciding the equal protection argument. Couldn't
the argument be made that because of that the Supreme Court of the United States did nothing less
than save the foundation of values and the principles that our county was founded on? Thank you.
Cossack Three-part questions are tough. You understand that because we work in sound
bites, and that's already past my limit and I'll do what I can. I believe the following: that what the
law of Florida and here's someone from Washington, D.C., telling the people in Florida what the law
is but I believe that what the law in Florida meant was that when they talked about the intent of the
voter, that there was a reasonable standard that was set in intent of the voter. What I meant when I
articulated the notion of holding up the cards and looking for the divine interference, that that would
be unreasonable. I think the Palm Beach standard was a reasonable standard. The one they came
to...what I was suggesting is as long as each county had a reasonable standard and the one of looking
for divine help is unreasonable, that as long as each county came to their own reasonable standard,
I felt that it would be alright and I felt that it was up to judge in the state of Florida, which I think
was called for under 168, to eventually look over how these votes were made and for a Floridian to
decide for Floridians whether or not the standards were reasonable and what the votes were. I object
to personally the notion that the United States Supreme Court gets involved in something that Ijust
don't think that the federal government should be involved in. I think this is something that
Floridians should have solved for themselves. That's why I believe that there could have been the
multi-number of intent standards, but as long as they were reasonable and as long as a Florida judge
decided that they were reasonable, I think that would have satisfied it.
Mills That's a multi-part answer. We have time for one more brief question and then we
have another panel to come up.
Questioner I'd like to ask a question about something you've alluded to, and that is the
court of public opinion. How, if at all, did your read on mass public opinion as the events unfolded,
affect the type of things you wrote about or how you proceeded?
Mills Wrote about? Well, that would narrow it down to two.
Vasilinda Let me go back to the previous question with sort of an answer in how the debate
got framed. I believe that the question of equal protection was raised in a lot of people's minds when
Republicans were able to characterize the looking at the ballots to determine intent of the voter in
terms of Karnac, and Johnny Carson, which all of the Supreme Court judges remembered, and as sort
of his slapstick comedy that went with it. From that perspective, the public debate certainly had the
way the Republicans in my mind were able to control the public debate, and what they made the
national media focus on as the issue of the day controlled the outcome of the final result and the
Savage I don't think the public opinion had all that much effect because it would have had
a lot of effect if there had been polls 3-4 days into it that said 80% of the American people want Al
Gore to concede and over with. I take it Gore probably would have conceded, had that been the case.
Since the polls showed most people were following this, they were interested in it, that the process
played out so it played out to the end. In the end, public opinion, I don't think, decided the matter
Cardwell I think from our perspective the overnight ratings said to keep this going for 36
Mills True journalist. You've become a journalist. I want to thank the panel for being here
and express our gratitude. Thank all of you for your sincere effort.
David Boies is a graduate of Northwestern University and the Yale Law School. He is
currently a partner in the firm of Boies, Schiller & Flexner LLP. He was Chief Counsel and Staff
Director of the United States Senate Antitrust Subcommittee and Chief Counsel and Staff Director
of the United States Senate Judiciary Committee. In 1996 he received the Milton S. Gould Award
for Outstanding Oral Advocacy. He has built a national and international practice representing
prominent clients such as CBS, IBM, the Federal Deposit Insurance Corporation, Westinghouse,
Texaco, Mobil, Continental Airlines, Northwest Airlines, the New York Yankees, Chris-Craft
Industries, Georgia-Pacific Corporations, Florida Power & Light, E.I. DuPont, Don Imus, Ross Perot,
Gary Shandling, and Mike Wallace. Representative cases in which he was lead counsel include
United States v. Microsoft (in which he is Special Trial Counsel for the United States Department
of Justice); Westmoreland v. CBS and Herbert v. Lando (in which he successfully defended CBS and
Mike Wallace against libel charges); CBS v. Reagan (in which he obtained a preliminary injunction
barring President Reagan from excluding television cameras from the White House news pool); and
FDIC v. Milken (in which he represented the FDIC in recovering more than $1 billion from Drexel
Burnham, Michael Milken, and related defendants for savings and loan junk bond losses). He is the
author of numerous publications and has taught Antitrust and Regulated Industries courses at New
York University Law School and the Mergers and Acquisitions course at Cardozo Law School.
David E. Cardwell is experienced in local government and administrative law. His primary
area of practice is public law with an emphasis on local government and infrastructure. He is
recognized by The Florida Bar as a Board Certified City, County, and Local Government Law
Lawyer. He is recognized in the area of redevelopment and tax increment financing in Florida and
has been involved in many real estate redevelopment projects, including planning, development
agreements and financing. He also has been actively involved in the development of public facilities
and sports facilities. Prior to joining Holland & Knight, he served as City Attorney for Lakeland,
Florida, where he was responsible for drafting land development codes and ordinances. Previously,
he was a staff director in the Florida House of Representatives and served as state elections director
and legal counsel to the Department of State, where he participated in the initial administration of
several new laws including the Administrative Procedure Act, the Election Code, and the General
Corporation Act. He has written on the subjects of ethics and elections law, redevelopment and
sports facilities development and lease negotiations. His book, Ethics and Elections: The Law in
Florida was published by The Harrison Company. He earned his B.A. and J.D. from the University
of Florida. He is a former president of the University of Florida National Alumni Association. He
also did graduate work in business at Florida State University.
Roger Cossack is legal analyst and co-host of CNN's daily award-winning half-hour legal
show, Burden of Proof. He hosts with CNN legal analyst Greta Van Susteren. The program airs
weekdays at 12:30 p.m. (ET). Burden of Proof is also available live on the Internet at
http://www.CNN.com/Burden, where featured guests take users' questions each Wednesday at 1
p.m. in the chatroom. Each day the program examines a different newsworthy legal issue, including
interviews with many of the nation's top lawyers, judges and members of Congress. He has provided
commentary for the network on a wide variety of cases from the O.J. Simpson trial to the
impeachment and trial of former President Bill Clinton. He is regularly called upon by CNN to
explain the major legal matters of the day, most recently the 2000 presidential election recount in
Florida. He is a contributing editor for the online Law Center, located at
http://www.CNN.com/LAW. providing Web-exclusive biweekly columns and online news
interviews, which can be found at http://www.CNN.com/LAW/roger. During his career as an
attorney, he was a prosecutor with the Los Angeles District Attorney's office, as well as a defense
counsel, trying cases in local and federal courts in more than 20 states. In 1984, he briefed and
argued U.S. v. Leon before the U.S. Supreme Court, a case that cleared the way for the use of
evidence obtained in good faith when search warrants are later declared defective. He has written
for the John Marshall Law Review and The New York State Bar Criminal Journal. He is a
contributing writer for California Lawyer Magazine. He earned a law degree from UCLA, where he
later served on the faculty as an assistant dean.
W. Dexter Douglass is presently in private law practice at The Douglass Law Firm, P.A. in
Tallahassee, Florida. He served as General Counsel to Florida Governor Lawton Chiles from 1995
to 1997. He chaired the Florida Constitution Revision Commission (1997-98) and was a
Commissioner of the Florida Constitution Revision Commission (1977-78). He is a graduate of the
University of Florida with a B.S., and LLB, replaced by the J.D. degree. Douglass began the practice
of law in January, 1955, as the only associate in the firm of Caldwell, Parker, Foster and Wigginton,
Tallahassee. This firm was headed by former Congressman and Governor Millard Caldwell, and
included two past presidents of the Florida Bar, Julius Parker and John Wigginton. Caldwell later
sat on the Florida Supreme Court and Wigginton, the Florida First District Court of Appeal. In 1962
Douglass started as a solo practitioner and, in addition to trial and appellate practice, developed a
significant corporate practice dealing with securities for public companies, as well as acquisitions
and mergers, related commercial litigation, and business planning and finance. In recent years his
practice has focused on governmental matters and constitutional issues, as well as business matters
and personal injury. He recently represented the Florida FTP/NEA in a lawsuit challenging Florida's
school voucher law. He has served as Special Counsel to numerous committees of the Florida Senate
and Florida House of Representatives. Douglass was lead Florida Counsel for the Gore-Lieberman
Recount Committee in November and December, 2000, participating in litigation in multiple venues
in an effort to obtain a recount of votes in certain Florida counties relating to the 2000 presidential
Tom Fiedler is Editor of the Editorial Pages for The Miami Herald, where he previously held
positions of Political Editor and columnist, Urban Affairs/Political Editor, and Washington
Correspondent, serving as The Herald's correspondent in the Washington Bureau of Knight Ridder
newspapers. His reporting involved every presidential campaign since 1972; and he was lead White
House reporter for Knight Ridder newspapers and The Herald from Saudi Arabia and Kuwait during
the Persian Gulf War in 1991. He has twenty-seven years of experience reporting on public affairs
and politics from city halls and state capitals to presidential campaigns and the White House. He has
received numerous professional awards, including Society of Professional Journalists' Gold Medal
for National Correspondence, 1988 for reporting on Gary Hart; Pulitzer Prize (with others) in 1991
for reporting on the Yahweh cult; IRE award for reporting on local political corruption, 1991;
National Association of Black Journalists' first prize (with others) for coverage of black economic
boycott of Miami, 1994. He received a B.S. in engineering from the U.S. Merchant Marine
Academy; M.S. in journalism from Boston University; and was a Professional Journalism Fellow
at Duke University.
Joseph P. Klock, Jr. is Chairman and Managing Partner of Steel Hector & Davis LLP in
Miami, Florida. He is co-chair of the firm's international practice. He successfully represented major
health insurance providers in $2+ billion federal litigation regarding alleged Medicare overpayments;
serves as General Counsel and Chief Legal Officer for Flo-Sun Incorporated, a holding company for
a major sugar producer in the United States and in the Dominican Republic; and serves as Director
to National Beverage Corporation, an AMEX-traded, vertically-integrated producer of beverage
products. He argued before the Florida Supreme Court in the first case to address the Independent
Tort Doctrine and Economic Loss Rule Lewis v. Gutharz (428 So.2d 222) and a case interpreting
the scope of an initiative-approved amendment to the Florida Constitution In re Advisory Opinion
to the Governor, 1996 Amendment 5 (Everglades) 706 So.2d 278 (Fla. 1997). He handles
arguments before the Florida Supreme Court, Florida District Court of Appeals and federal appellate
courts, as well as matters before federal district courts. He is a graduate of the University of Miami
School of Law, where he has taught Federal Jurisdiction and Civil Procedure.
Jon Mills is interim dean of the University of Florida Levin College of Law, where he also
is a Professor of Law and Founding Director of the Center for Government Responsibility. As a
researcher and teacher, he has been a principal investigator and directed major studies on
environmental and constitutional issues including international projects in Brazil, Poland, Haiti, and
Central America. He has authored books, law review articles and reports on constitutional and
environmental issues. He served in the Florida House of Representatives for ten years, including two
years as Speaker of the House. In 1998, he was a member of the Florida Constitution Revision
Commission and was named the Commission's most valuable member. He has appeared in various
federal courts and the Florida Supreme Court on issues including voting rights and constitutional
issues. He acted as a Special Assistant State Attorney in the Danny Rolling Murder trial, and an
attorney in the Versace Murder Case, representing privacy rights of victims and victims' families.
In 1998, he was the executive producer and host of the public television series, "Common Ground,"
for which he received a regional Emmy Award for best public affairs show.
David G. Savage has been the Supreme Court reporter for the Los Angeles Times since 1986,
based in the Washington Bureau. Prior to that, he was an education reporter for the newspaper in Los
Angeles. He is author of Turning Right: the Making of the Rehnquist Supreme Court, a book
describing the ideological battles within the high court after William Rehnquist became Chief Justice
in 1986. He also writes a monthly column on the Supreme Court for the ABA Journal in Chicago.
During the Florida recount, he did daily legal stories on the issues of Florida election law and the
cases that reached the state Supreme Court and the U.S. Supreme Court.
Michael Seigel is Associate Dean for Academic Affairs and Professor of Law at the Levin
College of Law, University of Florida. He jointed the Florida faculty in July 1990. From May 1995
through October 1999, Dean Seigel took a leave from the university to serve as First Assistant
United States Attorney for the Middle District of Florida. He graduated from Princeton University,
and the Harvard Law School, where he was an editor of the Harvard Law Review. Following law
school, he served as a law clerk to the Honorable Edward R. Becker, United States Court of Appeals
for the Third Circuit, Philadelphia, Pennsylvania. Upon completion of his clerkship, he worked for
five years as a federal prosecutor, serving first as a Special Attorney for the United States
Department of Justice, Organized Crime and Racketeering Section, Philadelphia Strike Force, and
later as an Assistant United States Attorney. At the University of Florida, he teaches Evidence,
Criminal Law, White Collar Crime, and Professional Responsibility.
Mike Vasilinda is the Dean of the Florida Capitol Press Corps. He has covered the capitol
continuously longer than anyone in Tallahassee. His reports are seen on six NBC stations in Florida
and he is a founding partner of Florida's News Channel, a 24-hour a day cable news channel
currently serving 1.5 million homes in Florida. He has covered the administrations of five governors,
28 regular and more than 100 special sessions of the state legislature. He has reported regularly on
the death penalty in Florida since before the state resumed executions in 1979. His coverage of the
state prison system has won numerous awards. He has accompanied and reported on gubernatorial
trips to Japan, Panama, Ecuador, Honduras, and Bolivia. During the 2000 election contest, his office
produced more than 100 live network interviews for national television networks including NBC,
MSNBC, CBS, ABC, FOX, and CNN among others. He is a graduate of Florida State University.
Charles E. Young is President of the University of Florida. Prior to coming to UF, he was
Chancellor at UCLA, a position he held for 29 years. He became the Chancellor at UCLA at the age
of 36, and was the youngest leader of any major U.S. university. During that time, he made the
university a partner with the Los Angeles area, emphasizing and building upon the key position of
the university in community development and service. Among his accomplishments, he championed
college student involvement in community and public service and was instrumental in efforts to
reform K-12 education in Los Angeles. He is a longtime member of the National Collegiate Athletic
Association Presidents Commission and has been a leader in reforming intercollegiate athletics,
raising academic eligibility standards for student athletes and curbing recruiting abuse. He is a
former chairman of the prestigious Association of American Universities and has served on
numerous commissions including those of the American Council on Education, the National
Association of State Universities and Land-Grant Colleges, and the Business-Higher Education
Forum. After serving in the U.S. Air Force during the Korean War, he graduated from the University
of California at Riverside and completed his master's and doctoral degrees in political science from
Steven N. Zack is past President of the Florida Bar and special counsel to U.S. Senator Bob
Graham. He specializes in civil litigation, voting rights, and class actions in the firm of Zack &
Kosnitzky, P.A., in Miami. A graduate of the University of Florida College of Law, he is past
Chairman of the State of Florida Ethics Commission, past member of the Florida Constitution
Revision Commission, past President of the National Conference of Bar Presidents, Florida Bar State
Delegate to the American Bar Association, past member of the Federal Judicial Nominating
Commission for the Southern District of Florida, past member of the 11t Circuit Judicial
Nominating Committee, past member of the Board of Governors of the Academy of Florida Trial
Lawyers, past Vice Chairman of the General Practice Section's Litigation Committee of the
American Bar Association, and Lifetime Fellow of the American Bar Association. He served on the
American Bar Association Board of Governors, representing the State of Florida and Texas and as
liaison to the Litigation Section of the American Bar Association. He is admitted to practice before
the United States Supreme Court,.Fifth and Eleventh Circuits of the United States Court of Appeals,
The Florida Bar, United States District Court in and for the State of Florida, Southern and Northern
Districts, State Bar of New York and the United States Court of Military Appeals and the District
of Columbia State Bar.
"Florida Election 2000:
Insiders at the Intersection of Law, Politics and the Media"
Monday, February 26, 2001
University of Florida Levin College of Law Auditorium (Room 190), Gainesville, Florida
Sponsors: University of Florida's Levin College of Law, College of Journalism and
Communications, College of Liberal Arts and Sciences, Department of Political Science, Office of
Research and Graduate Programs
11 a.m. Panel: "History and Future of the Process of Elections and Voting"
Deborah K. Kearney, General Counsel to Florida Secretary of State Katherine Harris
Thorn Rumberger, Attorney & Senior Partner, Rumberger Kirk & Caldwell, P.A.,
Tallahassee; Member, Governor Jeb Bush's 2001 Select Task Force on
Election Procedures, Standards, & Technology; & Chairman, Collins Center
for Public Policy
Rod Smith, State Senator (D-Gainesville), Vice Chair, Senate Committee on
Ethics & Selections, and Vice Chair, 2000 Joint Committee on Electoral
Mark Tushnet, Carmack Waterhouse Professor of Constitutional Law, Georgetown
University Law Center, Washington, D.C.
Pam Iorio, Hillsborough (Florida) County Supervisor of Elections, and
President, Florida State Association of Supervisors of Elections
Moderator: David Colburn, Provost and Vice President for Academic Affairs,
University of Florida; member, Governor Jeb Bush's 2001 Select Task
Force on Election Procedures, Standards, & Technology
Colbur I thought this was the star-billing panel, but as I look around the audience I'm not
so sure. Well, it's good to have those who have stayed on. We have a panel here that will provide
some significant interest to you. We're going to talk a little about the history of where we've been
in this process and the future. I remember a few nights before the presidential contest, Tim Russert
from NBC stating that Florida would determine the presidential contest, and then early on election
night, he said, "The answer to who wins the presidency is Florida, Florida, Florida." Tim has
probably taken his political wisdom to the negotiating table with the NBC lawyers and done quite
well by it. Hello, I'm David Colburn, Provost of the University and a historian who's written a fair
amount about national politics and issues of race and ethnicity. But I was one of many who was
quite surprised about the critical role Florida played in this election. After all, Jeb Bush had carried
Florida by more than 400,000 votes over his democratic opponent in the gubernatorial contest of
1998. Like many, I assumed that he could carry Florida for his brother by a like margin. Moreover,
Republicans dominated local races for the state Legislature. Surely, I thought, and I guess many
Floridians did, that George Bush would ride the wave of Republican support to an easy victory in
Florida. I guess I should have known better for two reasons. First, the number of registered voters
in Florida. There are nearly 400,000 more registered Democrats in the state of Florida than
Republicans as of the year 2000. Second, while Jeb Bush defeated [former Governor] Buddy
MacKay by 400,000 votes in the 1998 gubernatorial contest, his actual vote total was virtually
identical to the total he received in1994, when he lost the gubernatorial contest to [former Governor]
Lawton Chiles. What happened in 1998 was that Buddy MacKay was not able to get the Democratic
constituency to the polls, and he received 400,000 votes fewer than Lawton Chiles had in 1994.
Thus, if Al Gore could mobilize the Democratic constituency in Florida in 2000, he had a real chance
to carry the state. Now you see why I'm a historian and not a political advisor. Well, we have other
people on the panel today who have much more to offer us in understanding the history and the
future of the elections process in the state of Florida than myself. Let me quickly point them out to
you. You have some biographical sketches on each of them, I won't say much about them. On my
far right, Deborah Kearney, General Counsel to our Secretary of State Katherine Harris. Also, on
my left Thom Rumberger, member of the State Elections Task Force and a distinguished lawyer and
distinguished Floridian. On my left, Rod Smith, State Senator and Vice Chairman of the Joint
Legislative Committee on the Electoral Process and Vice Chair of the Senate Committee on Ethics
and Selections. My far left, Pam Iorio, President of the Florida State Association of Supervisors of
Elections and Supervisor of Elections for Hillsborough County. Pam's a very bright and thoughtful
person whose has been a great source of information for the State Elections Commission. On my
immediate left, Mark Tushnet, Carmack Waterhouse Professor of Constitutional Law at Georgetown
University, and one of the outstanding constitutional minds in this country. What I'd like to do in
this session is let each of them talk for a brief period of time about their perspective on what
occurred and where we're going, and then to open it up to you the audience, for a chance to have a
conversation for at least half an hour. To begin, let's start with Mark Tushnet. Mark can give us a
perspective as a constitutional historian, I think that would be valuable.
Tushnet Thank you. I'm actually going to come at this from a combination of historical and
forward-looking perspectives about what the meaning of the Supreme Court decision in Bush against
Gore might be for the future of electoral law reform. That's obviously going to operate on the
constitutional level, and not, as many of the other people on this panel will present, on the policy
level. I don't have anything particularly insightful to say about policy questions. I may not have
much insightful to say about the constitutional question. When I talk about Bush against Gore, I
have to preface it with a fairly strong caveat, which in some ways came up in a late comment by
David Boies earlier this morning. The way I think about this is will lawyers and judges be able to
cite Bush against Gore without snickering. That is now, internally. If you're a lawyer, you'll cite it
for whatever you can use it for, but will you be able to take it seriously? It's not clear to me that the
equal protection decision in Bush and Gore ought to be treated as rule of law at all, or that Bush
against Gore is a legal case. One version of this that I've thought of is came back to me in this
morning's conversation where there was a lot of discussion about strategic choices and could things
have come out differently if one or another person had made a different decision. I think about the
oral argument in Bush against Gore, and David Boies could have channeled John Marshall and
Oliver Wendell Holmes and he was going to lose. Ted Olsen could have recited "Mary Had a Little
Lamb" and he was going to win. The lawyering part of this case, I think, was relatively unimportant.
Having said that, and it's a case on the books, what can we say about it? Well, let me try to put Bush
against Gore into a somewhat analytic framework. I don't want to push this too strongly but I
wanted to distinguish first between levels of issues with respect to voting and then types of problems
associated with each level. The levels are the level of enfranchisement, the level of apportionment,
the level of vote casting and the level of vote counting. The distinctions are between systematic
problems at each of those levels, and a random or arbitrariness problems at each of those levels. So,
for example, with respect to enfranchisement, there are systematic problems when there are race-
based or gender-based exclusions. At the apportionment level, there are systematic problems that
are addressed by the "one person, one vote" standard or by concern to the law dealing with race-
based districting. We skip the casting level for a moment. At the counting level there are systematic
problems with political corruption in the counting process. That is, when Democratic county vote
counters simply disregard votes cast for Republicans or the late returns from out state, designed to
get whoever is in charge of the counting process enough votes to win. Those are systematic
problems. Bush against Gore, on its face at least, doesn't deal with a systematic problem at the
counting level. It says that given the standard that was going to be applied by the Florida counting
process there was too high a risk of arbitrariness. There seems to me two questions that we could
ask about the implications of that rule for the future. The first is: Well, it's a rule about arbitrariness.
Can we identify arbitrariness at any of the other three levels: enfranchisement, apportionment, and
casting levels? Arbitrariness in the sense of randomness. We don't know who's going to benefit or
who's going to lose by these outcomes, by these choices, but there's something unfair in them being
made in a process without standards. I'm not sure that there are problems of randomness at the
enfranchisement, apportionment or casting level. My hunch is that the more stringently you combine
a strong "one person, one vote" rule and a rule against consideration of race in the districting process.
When you combine those two things, you may end up with a fair amount of residual arbitrariness in
the drawing of district lines at some level. When you hear the oral arguments in these race-based
districting cases, everybody wants to say, "Well, there's an inevitably a certain amount of
arbitrariness in this process." Bush against Gore may have some implications for that. It may be that
you have to get rid of the residual arbitrariness. But I'm not sure that there are significant other areas
where that arbitrariness issue might arise. A more interesting issue is whether the concern about
whether the new focus of attention on problems at the counting level will have legal implications for
systematic problems at the other levels. The important area here is the casting level. What people
have focused on are concerns about voting technology at the counting level. If it's a problem to have
a single decision-maker authorizing the use of varied standards at the counting level, as the Supreme
Court said it was in Bush against Gore, why isn't it an equal, equal protection problem to have a
single decision maker (in this instance, the state Legislature) authorizing the use of varied methods
of casting votes at that level. The Supreme Court in Bush and Gore was very careful to reserve that
question. It said at the level of casting votes, when the single decision maker is the state Legislature,
they may reasonably take into account concerns about local autonomy. We're not sure what we're
going to say if a casting level issue comes to us. It seems to me that you could have said exactly the
same thing at the counting level. That is, the single state decision maker, Judge Lewis, might have
said if he'd been given the chance to echo something that Roger Cossack said well, there are in
these 67 recounts, five or six fundamental standards used, one of them was unreasonable and I'm
going to review what they did and the rest are permissible methods, permissible concessions to local
control of the counting process. Now the court didn't exactly say that was impermissible. It didn't
give Judge Lewis the chance to say that, so it's not entirely clear what the implications of the court's
rule are. But, in any event, the problem if there are implications of Bush against Gore, I think the first
level of concern will be with identifying any equal protection limits on state methods of choosing
systems of casting votes.
Colburn- Thanks, Mark. Deborah?
Kearney Thank you. I'm really glad the previous speaker talked about history because if
I had to deal with the history of elections in Florida I'd be charged with election fraud probably, I'm
more new to it. What I would like to focus on are the things that became evident to me as to what
we need to do in the future through the rule I played in our litigation. I have not been as involved
as some of our other speakers on the Governor's task force and the kinds of issues they're looking
at. So I thought that I would go through those things that maybe aren't quite as evident and may not
have been a matter before these commissions. The first I wanted to talk about is the need for a
deadline for certification. As it stands now, the Florida Supreme Court seems to have made that a
shifting deadline. Or not really be a deadline, and when they set a deadline, they said, "Well, we
didn't really mean you couldn't take more vote counts after the deadline." I think it's really
important, and the reason for that is...first, let me go just really briefly into the different kinds of
procedures that the law provides for. One is a protest which can be brought by a candidate, a political
party, or any elector or voter in Florida. That basically is a method where the supervisor will go back
and check the machines to make sure things were operating. Another part of the protest statute
actually is the ability to ask for a manual recount. With the manual recount, only a candidate or a
political party is entitled to do that. When I talked about manual recount, this is a sample manual
recount to determine if there's a problem. What it does is it excludes voters, electors from being able
to pursue that remedy. Then you have after certification only, the ability to bring a contest, and again
electors, as well as candidates and political parties can bring a contest. So what happens if
certification is delayed is that you're cutting out individuals, voters in the state, from being able to
pursue their claims. This is what happened in this case, which caused a real problem because people
clearly did want their claims litigated and therefore they found ways to do that by bringing other
kinds of cases denominated as different things. What it allowed for is often parties that should have
been proper parties in the cases were often not named and sometimes it resulted in cases being filed
all over the state of Florida in federal courts when they couldn't get what they wanted heard in state
courts. I think, by delaying that certification, we weren't able to truly litigate the case in the way it
should have been litigated. What to do about that? Either I would hope the Legislature would set a
firm date and not have a discretionary date, or if there is some way to make that clear that whoever
is going to set that final date, be it the Secretary of State, be it the Elections Canvassing
Commissions, that they have a very high level of discretion involved in making that determination.
I talked a little bit about venue because my first two subjects kind of intertwined. I think it's really
important, and I'm talking about statewide races here, statewide elections, that they be brought in
a single venue in Leon County where state officials are litigated. It's impossible that the Secretary
of State was named in I heard both 42 and 45 cases filed all over Florida; actually we had some
filed in other states as well. I'm not even counting those in the total. For that office to be able to have
even some semblance of ability to defend these actions, they've just got to be more limited than that.
The statewide election needs to be viewed in terms of the election as a whole, and the interests of
all electors, notjust electors in a particular county. If we clearly enough can resolve the certification
issue, the venue issue may take care of itself. If not, I might suggest something like all challenges
be they technically contests to an election certification or not, would have their proper venue in Leon
County. Obviously, from what the United States Supreme Court has told us, Florida must adopt
standards to ascertain the intent of the voters. We talked about that so much in the last panel, I kind
of hesitate to bring up all of those issues. It is clear from the cases that Florida must have uniform
rules in order to make these determinations. Again, I think how those are developed are going to be
very much entwined with whether or not the Legislature goes forward to adopt one type of voting
system or how that issue is resolved. However it is, then the next issue would have to be to develop
rules as far as how we're going to ascertain the voter's intent. I think another issue that the
Legislature is going to need to deal with is to distinguish the procedures for manual recount between
statewide elections and countywide elections, or probably more accurately stated, that would be
those certified by the state canvassing board or the elections canvassing commission, and those
certified by a county board. If you're talking about a statewide election, it should be the statewide
board that would make the determination whether to grant a request for a manual recount or not. If
that were done, I think there would need to be changes to the makeup of the Elections Canvassing
Commission. Right now, it's made up of the Secretary of State, the Governor, the Division Director
of the Division of Elections, and if the board which is now really a ministerial body had a role of
actually making those kinds of policy decisions or legal determinations, I think it would be
inappropriate for both the Secretary and her Division Director, who she supervises, to be the majority
vote of that commission. So that would need to be taken care of. I think if there's a silver lining in
all this, and I have struggled to find one because I sure lived through the blood, sweat, and tears of
it all, I would say that the state of Florida could never have purchased the degree of voter education
and the degree of voter awareness that this whole election has brought to bear. What I truly hope
is that our consciousness is raised for a long enough period that we can address the problems and
make the changes we really need to make.
Colburn Thank you, Deborah. Thom Rumberger....
Rumberger Having heard the audience's response to Dexter Douglass's comments about
blue dog, yellow dog, red dog Democrat and the re-institution of literacy tests, I won't suggest that.
However, I would suggest that a voter does bear some responsibility, and that became evident in
the course of the Governor's task force on elections and reform. You can only dumb down the
election process so far. It seems to me that while it was not "dumbed down" enough, it is necessary
to make the voting simple, convenient and friendly, but at same time, reflecting that honest and
responsible and at least semi-intelligent folks have got to perform their obligation and their
responsibility in the exercise of the vote. Voting methods for statewide and national elections should
meet uniform statewide standards for fairness and reliability and equal protection of voting
opportunity. We learned a whole lot from the election of 2000, and we, meaning myself and
Professor Colburn here, learned a heck of a lot in the course of serving on the Governor's task force.
We spent unnumerable hours in Tallahassee and in Dania, where we thought that we would probably
get clubbed. We then went off to Jacksonville and other venues, and surprisingly enough, the most,
most folks who appeared, appeared in Jacksonville, some 40 people. There was very little hostility
- and as a matter of interest there was no reports of actual fraud. There were a number of people
who suggested they had heard from somebody else down the street concerning the fraud, but nobody
came and testified about the fraud, which I thought was quite enlightening in view of the newspaper
articles and the television, which seemingly charged or indicated that there had been a great deal of
that. One of the major, major situations that we developed, or uncovered or found was that the
margin of error in the machines and I think each of you should carry this away the margin of error
in the machines simply exceeded the margin of victory, and that's the bottom line. There are lot of
other things that went into it, and there are lots of other things that will be needed to correct the
process, but the margin of error exceeded the margin of victory. We have got to make some changes,
and one of the changes we must make is in the equipment. The punch card system is simply not
adequate. There has been some suggestion by some that we must wait until the year 2004 and deal
with this in the most technological, advanced way. I would suggest that that this is really not the way
to handle this. I don't think our group, meaning the citizens of Florida, want to go through another
election that has any taint similar to that that was developed in the year 2000. It's going to be the
recommendation of the task force the final recommendations are going to be agreed on this
afternoon and promulgated probably on March 5. We have a telephone conference between 1:30 and
3:30 today but we will probably agree in a recommendation to the Legislature that there's leasing
of machines called optical scanners and precinct based, which have the least number of errors, and
were proven so in our last election. I mean, generally speaking, across the board, less than 1% of
error rate. We believe that that can be leased for something in the neighborhood of $20-25 million,
perhaps even less if lease them for the years 2002 and 2004. Though there are machines called
DREs, which are the touch-screen machines, which are very sexy and which approximate something
like your automatic teller machines, not one of those machines has been certified, not one of those
machines has been given to us in terms of a cost analysis or any kind of predictor of reliability. And,
though some newspapers, I think The St. Petersburg Times, was advocating the use of them, what
they are advocating is use of something we know nothing about at this point. Lastly, in terms of
those machines, there's an availability problem, which is to say, if we said we'll use those, nobody
makes them, and would they be available? Probably not. So that makes it kind of simple to go with
a machine that does work. However, I would say this, MIT completed a study on our next to the last
meeting and that study showed conclusively that the paper ballots are the most accurate and we
thought that was quite amazing. Punch cards were the least and optical scanners based in not
precinct based were one of the least and punch cards were...It just got simplistically and really quite
ugly. Basically, the optical scanners in the precincts were the best. I can say that from my heart
because I have a son-in-law who's a lobbyist is pushing for some silly-ass DRE machine and I've
told him to go fly a kite. I have no interest in that deal at all. Anyway, I hope you'll pay close
attention to the recommendations. I heard David Cardwell say there wouldn't be any reforms, and
I would suggest that's wrong. I think there will be. I think there may be a hope for some provisional
ballots which myself, Senator, and Daryl Jones are very interested in. I think maybe some felon
franchise developed or at least make it easier for felons to vote, having served their terms. Though
I have to tell you, as a very basic Republican and former judge, that's a little tough to take. I know
there must be a lot of voter education. If we don't do voter education, we won't have anything. If
a Legislature, Senator, does not come forward with the money, they're really shortchanging all the
citizens and I'll tell you simply why. That is the base of our democracy. Voting is the base.
Everything else is flowers and roses and candy, and that is the base. They've got to come through.
Thank you very much.
Colburn- Thank you, Thom. It's always difficult to figure out exactly what Thom means!
[Laughter] Rod Smith is our next speaker.
Smith Thank you. Let me very briefly tell you how I got into this. I got elected on a
Tuesday, and when I sobered up late Wednesday, I had a case that started on Thursday. On Friday
I got notified at the courthouse door, they tapped and said, could I step out, that I had been selected
I think it was that Friday to go to Tallahassee and be on a select committee to decide the presidency.
I had really thought road paving was the kind of thing I was working toward. It was more than I
thought. I assumed right from the beginning that there must be a lot of senators named Smith.
Clearly, there had been an error. I know my first action on the committee, I made some motion, and
[Florida State] Senator [Lisa] Carlton very dutifully and graciously informed me that I was out of
order. I informed her that given the fact I had only been elected the week before and frankly had
trouble getting in the driver's garage that morning and had actually seen sitting there for almost two
hours and embarrassed to ask where the closest bathroom was, that she needed to overlook my
newness to the process. I can tell you that it was an incredible educational experience. What I found
was that there's really nothing new that surfaced this year. Everybody knew intellectually what was
likely to happen. It's just that nobody ever thought it really would happen. There's nothing new
about close presidential elections. We've actually had presidential elections just this close twice in
the last century. In 1824, it was alleged and probably was that the presidency was actually stolen
from Jackson the first time through. The election of Benjamin Harrison was as close. Florida was
as central and they came up with an even worse system to resolve it then. Americans are used to
close elections. It wasn't anything that was really stunning to us. Some of you may remember a few
years ago that we even had a local election in Gilchrist County where they tied and they recounted
and they tied again. John Thomas, the commissioner over there, won the flip of the coin that we
resolved was the way to go that night. I had suggested that, all lawyer fees notwithstanding, I thought
that was something that we hold it as an option. I saw it as a chance for Florida to make a lot of
money at the Super Bowl. We could have a toss, and it would have been probably not a great deal
less controversial. There was nothing new also about the idea that the machines were a problem.
Everybody had known that we were going to have problems with these machines. Everybody knew
that Florida had a system ranged from paper ballots in Union County all the way to fairly advanced
use of optical scan in some of our counties. Everybody knew that if we had a really close election,
the fact of the matter was that if someone challenged it on the technology, there was going to be a
problem. If you think back to the [Buddy] MacKay/[Connie] Mack senatorial election in retrospect,
that margin was so close it may well have been one that could have been challenged. It never
happened before, because as David Colbum has told you, nobody had said Florida was going to
decide the presidency before. That's how it all came out, and that's why the emphasis was here. I
suggest that you're right. Florida did get an education in many ways, and what we know are the
following things. First of all, I think you're going to see the punch card done away with. I don't
think anybody is going to defend. I think you're going to see it done away with now. It's not going
to wait until 2004. I don't want to come home and tell folks I was sent up to do a very few things
correctly, and one of the things everybody expected us to do was to fix the elections, and I said we
would fix them, but, oh, by the way, we'll fix them after Florida elects its next governor. I don't
think that will be accepted and I think we'll have to fix it and fix it now. I think it will go to optical
scan as the method to do that. I think that there will be standards adopted for recount. It was
interesting, by the way, that Texas the state that was obviously very involved in this election had
adopted in the recent passed legislation that said specifically how we would deal with that guy chad,
that we hung throughout the state. It was clear there were discernable methods that could have been
employed, and had those been employed it might have affected the election. It may not have, but
the fact is public confidence would have been greater and I think you're gonna see a method for
discernibly resolving election disputes. I agree that the certification issue and the method by a
challenge and the moving back or forward of those time frames is going to be looked at. The irony
too in this situation, for me, having sat on the other end, it appeared to me that much of the confusion
that was leading to the Legislature, about to make what would have been the most preposterously
worst move the Legislature could have ever made, which was to try to name that slate of delegates.
Which fortunately on the Senate side, I think, we were able to avoid doing because I felt like the
process would work its way through and it did, but I felt it was important that we have a method by
which everybody exactly understands how the challenge is to be made. I agree with those who
suggest that one of the things if we're going to have a canvassing board that has elected officials,
how bad did it look to have an Attorney General giving the advice to the state on its legal position,
who was serving as Chairperson of one candidate and advising a Secretary of State, who was making
decisions about the certification and the reasonableness of the certification, who was serving as the
Chairperson of the other candidate. That is preposterous and gave the appearance of conflict, which
of course, fed the fodder that something was askew when it may not have been. But you can never
give that appearance and that will have to be dealt with. The military vote problem we've been
having this problem for a long time. She can tell you more than I can, but I can tell you that the
military vote problem was one that was a significant problem for us and has got to be dealt with as
we move the dates. Nothing can be more absurd than challenges to our military personnel. People
who are on the line for our nation and there's a question whether they got their votes signed on time.
I think that made us all look bad, and frankly as a Democrat we were in really odd position because
there was the mantra of "let every vote count but, by the way, let's not count these because they
weren't postmarked on the right time". That kind of undermines the sincerity of our position. I think
that, with all due respect to my colleague who will speak soon, we're not going to get rid of the
second primary. Florida likes the second primary and they'll stay there. There's too many people
who feel like the history of this of state and the second primary are important. I think it can be fixed
another way, which is moving some dates back so that we have a little bit more time. I don' t think
anybody who's ever run for public office is screaming that they wish time for the campaign was
longer. My last observation, though, really comes on the history of this thing unrelated to my role
as senator, but related to my role as an attorney, and I think the big loser and I shared this with a
dear friend of mine who is a federal judge I think the big loser in this process is the federal
judiciary. I believe that not since Dred Scott [Dred Scott v. Sandford, 60 U.S. [19 How.] 393 (1856),
under which the Supreme Court declared that free blacks were not citizens of the United States. This
decision was overruled by the Fourteenth Amendment to the U.S. Constitution.] has their been a
more blatantly political decision accepted by the United States Supreme Court. Whether you agree
with the outcome of the decision or not, I thought I was in a time warp. The first time that I thought
I was in a time warp when I woke up to watch CNN the year that [U.S. Senator] Strom Thurmond
was introducing Clarence Thomas. Here was the 1948 Dixiecrat candidate for the presidency,
introducing a black man as a Republican for the Supreme Court. I thought there was a Rip Van
Winkle effect to that that I couldn't avoid, but that was actually shrunk beside the absurdity of
Rehnquist and others writing a decision that overrode the state Supreme Court in a matter of state
law on the name of essentially this was five people that stood for, I believe, devolution of rights back
to the states. This decision was so dramatically inconsistent with positions they had taken before.
By the way, to do it on the grounds of equal protection, for those five, the pen must have actually
shook in their hand. So I think that that decision undermined the judiciary. Someone said, "Well,
there's always been an agenda of the judiciary." My answer to that is that it is probably true from
[former U.S. Supreme Court Chief Justices] Earl Warren through Warren Burger all the way back
but no time, no time has the decision been as blatantly politicized. Even when Oliver Holmes was
warning about Spencer's statics [Reference to Justice Oliver Wendell Holmes's famous dissent in
the landmark case, Lochner v. New York, 198 U.S. 45 (1905), where he defended his view of judicial
restraint and attacked the majority's substitution of its own economic theory for that of the
Legislature by stating, "The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics."
Id. At 75 (Holmes, J., dissenting). Herbert Spencer was a famous and influential social and economic
theorist.], you did not see the involvement of the federal judiciary so blatantly into a matter of state
election law. For me, I have to tell you, it was mixed blessing. I was not looking forward to voting
on this. I will tell you that I was in the unique position on this panel in one way, I was the only
newly elected Democratic senator from a contested seat, I was the only true freshman. I decided to
vote for Al Gore two nights before when my wife talked me into it. I didn't like either one of the
candidates that much, so it was hardly that I had anything on the table about this heartfelt that the
Republic will fall if one of these two people will not win. What I did feel was that if the Legislature
stepped in, it would create great jeopardy for the legislative process for years, and I feel like that the
United States Supreme Court's decision was one that has weakened the federal judiciary and one
that, I think, will be looked back on 50-100 years with all due respect to my Georgetown
[colleague] by the way, having listened to him, I remember why I got out of law school. I got lost.
I could never follow the fineness of the decision except to say to you in conclusion, 100 years from
now people will look back on this decision it will be an anecdotal decision that people will say,
well, that was that one decision, had to do with that real close election and it really doesn't count and
that's a poor way for the Supreme Court to leave a legacy. Thanks.
Colburn Thank you, Rod. Pam Iorio.
Iorio Thank you. I agree with Thom, first of all, that is an election where the margin of
victory was less than the margin of error. We're talking about 537 votes out of 7 million cast, which
is a margin of victory of .0001. I think that the real story of this election will rest on two points.
One, the technology that was used in the election in the state of Florida, and two, ballot design
issues. Out of a race that was won by 537 votes, there were roughly 105,000 votes for president that
did not count on November 7 because the voter over voted. The voter voted for more than one
person for president, and that is the voter error that we speak of. When you really begin to peel back
the layers of the voter error, you begin to see how important the various technologies were to the
voters across the state, and the issue of ballot design and how ballot design affected the voters. I
always think it's ironic that Dexter Douglass, who did such a fantastic job of chairing the
Constitution Revision Commission and putting those 13 constitutional amendments on the ballot,
was partially responsible for Amendment 11, which leveled the playing field for minor party
candidates and candidates with no party affiliation so that, for the first time, those candidates could
have equal ballot access, the same ballot access, as the Democrats and the Republicans. One of the
unintended consequences of the passage of that amendment was the longest presidential ballot in
Florida history, and many of you who have family and friends in other states know that people in
other states did not have ten candidates on the ballot for President. They did not have Monica
Moorehead of the Workers' World Party and some of these other folks who took up a lot of ballot
space. Thus, you had, first of all, a problem with the punch card counties. The punch card counties
should have recognized back in 1998, that when ballot access became a wide-open situation and the
playing field was leveled, that the punch cards had to go at that time. Because the punch cards only
have a limited of space on each page in order to fit all the names on the ballot. And so you had
instances where punch card counties had different ballot designs, the most famous being the
"butterfly ballot" in Palm Beach. The other one that's talked about a little bit less that I think had
the most significant impact on the race was the two-page ballot design in Duval County, which led
to 22,000 over votes. How many of you would like to be running for the county commission, and
have ten people in your race, and have the first five on one page and then you flip a page and the
other five candidates are on the other. I think you would find as a candidate for the county
commission that would be unacceptable to you and you would raise a protest about that. Let's put
these over votes in some context because you might think, well, all punch card counties have over
votes. Our county, Hillsborough County, which has 500,000 registered voters is the fifth largest, we
did have some over votes, we had a 1% over vote rate. Thirty-six hundred ballots where someone
voted twice for president. Now, you contrast that we're comparable size in the same range as
Duval and Palm Beach. Palm Beach had 19,000 over votes and Duval had 22,000 over votes. I
think you have to reasonably conclude that the design of the ballot led to voter error. I don't think,
though, that you can just stop with the punch card, and much has been said about optical scan. A-
precinct-based optical scan, where the ballot comes back to the voter when you have over voted and
gives the voter an opportunity to correct, is the way to go because it does give the voter an
opportunity to correct at the precinct. Those counties that had precinct-based optical scan and there
are 26 of them had minuscule over vote rates. Not so with the central count optical scan counties,
which tend to be the smaller, rural Panhandle counties. Not only did they have central count optical
scan, which did not allow the voter to correct the problem at the polls, but once again ballot design
was a critical player here. The ten candidates for President in those central count optical scan
counties were laid out in two columns. In most cases, eight presidential candidates on one column
and two presidential candidates on the next column with a place for write-in. By the way, why we
have write-in candidates for President in the state of Florida, I don't know. All you're doing is
encouraging voter error when you have write-in. When you think about the people running for
President, those people must produce a slate of electors. A write-in candidate doesn't have a slate
of electors and is not really qualified to run for President and so one of the things the Legislature
needs to do is get rid of the write-in for President because all it does is encourage voters to make an
error. So you have to say that the ballot design issues across the state played a real role. It's true that
we have four different types of voting systems in the state of Florida. We have 24 counties that are
on punch card, we have 41 counties that are optical scan (although as I mentioned, there is a huge
difference in optical scan between the precinct-base and the central count), and we have one county
that is still on the paper ballot (Union County) and one county (Martin County) that is on the lever
machine. This election has really shown how important it is for us to modernize our voting
technology. It's not an insurmountable task for us to do so. In fact, it's very doable. I'm afraid that
a lot of big numbers are being thrown out there which tend to make people back away from change.
But moving those counties that are currently not on precinct-based optical scan to a precinct-based
optical scan for 2002 is not only doable but highly affordable and particularly if the state were to
partially participate in the funding for many of the counties, particularly those small counties. The
counties that can really least afford to make the change are those small, rural counties that are on a
central count optical scan. They have a tough time coming up with the money for new technology.
It would be a great service if the state would recognize their leadership role and make those changes.
When you really look at the story of this election, those 105,000 over votes, that is the story of this
election. I think there has been an undertone throughout of people who aren't capable of casting
their ballot correctly, and that perhaps if they can't get it right, that's their own fault. I disagree with
that. I think as election officials, it is our responsibility to have a voting system and a ballot design
that is as easy as possible for the voter to cast their vote and also that makes that as difficult as
possible for the voter to make an error. If they make an error, to allow that error to be caught at the
polls so that they have an opportunity to correct that error. What we found with the election of 2000
was that we did not have that kind of system in place in the state of Florida. We had complicated
and confusing ballots for many voters, we had a long list of candidates, and we had voting
technology that did not allow voters to correct their errors at the polls. We need to learn from that
and correct that, and we can correct that by 2002.
Colburn I'd like to give my panelists a chance to respond to any of the comments that were
made before we open it up to questions from the audience.
Tushnet Can I say one thing? Part of the policy discussion and connected to Bush against
Gore worth noting is it can be placed in a more general historical context of the expansion of the
franchise. That is, all of these kinds of concerns that are being articulated are concerns that people
whose votes ought to count weren't having their votes counted. Now obviously, the particulars in
Florida particularly as whose votes are not being counted are a matter of great controversy. But
seeing the controversy in Florida as part of a general historical trend in favor of expansion of
franchise may put Bush against Gore in a somewhat more favorable light.
Colburn I'd like to sort of disagree just a bit with Pam. It seemed to me this election is in
part about voting technology, but also it seems to me it's about sort of race ethnicity and to some
degree, age. It is revealing to me that African-American voters over voted in larger numbers and
larger percentages than other groups. The Jewish voters in Palm Beach County experienced a great
deal of difficulty in voting in large measure because of the confusion of the ballot. Also, because
of in part because, being senior citizens, they had a difficulty in coming to terms with that ballot that
was before them. I find myself wondering, are we talking about persistent issues that have existed
in Florida for a long period of time in this century, namely issues of race and ethnicity, particularly,
but also more recently of age. If you look at the demographics of the state of Florida and we look
out into the 21st century, we're looking at a state that's gonna be much more diverse, much more
senior in its population, and indeed, the African-American population is going to expand as a
percentage. So don't we have a responsibility here not only to address ballots but also to address the
way in which we approach the voting citizenry of the state of Florida?
Smith If I could respond to that, I think that while those concerns are correct, I think that
really what was suggested by the supervisor is that what we observed in Tallahassee during the
hearings. The ballot design problem, which was a major problem, worked to the direct disadvantage
of some of the groups that you've addressed. When we heard from Palm Beach, time and time again,
the voter that was confused we had an awful lot of elder voters come up and say, "We were
confused by this vote". If you saw it, actually you could figure it out. What I want you to think
about if you didn't see well, if you felt rushed, and the lines were long, there were people who
plainly had problems with the ballot design in Palm Beach. In Duval, I've always believed and I hope
that someday this will be borne out. I thought the ballot design and the long list of presidential
candidates did have a problem because one of the candidates who received the largest amount of
votes that they received in any county was a guy named Brown, who was running for one of the
other eight parties, a person so obscure that received virtually no votes anywhere else received a
significant number of votes proportionally. Well, we know that [U.S. Representative] Corrine Brown
was the congressional candidate from that town. I believe then and I believe now that ballot design
- the kinds of things the supervisor talked about did play a role, and did work to the disadvantage
of some of the groups you speak of, but I still believe that it certainly was not intentional in that
sense. It was a sense of which, as the program was flawed, those at the far edges of the program of
voting, those who were most affected were those from the disadvantaged groups already and I still
think that if we cure the machines and if we cure the design, we'll go a long ways towards curing the
very concerns you express.
Rumberger Just one quick observation. I think there has to be a recognition of the
responsibility on the part of the Legislature and the supervisors of election, and inferentially the
Board of County Commissioners, that they engage in a very significant voter education process. If
they don't, then it just kind of wanders off, and we on the task force are suggesting several million
dollars be designated for that purpose. Again, we're back into the grass roots of the democracy and
people simply have to learn, as best they're able, how to vote.
Colburn Deborah, I wanted to ask you one question. There was in the course of the
unfolding controversy after the election, the issue of who should recuse him or herself and who
should not. Was this issue ever discussed in the Secretary of State's office about her recusing
Kearney I'm her lawyer! And I...I'm not accustomed to sitting around an audience.
Rumberger I'd defer to Joe Klock.
Kearney- It was mentioned. I will tell you from my perspective. How's that? We didn't see
any reason to recuse the Secretary of State in her role as a member of the Elections Canvassing
Commission. It's truly a ministerial role. They're required, as was discussed earlier, to certify the
results they receive from county canvassing commission boards. Now in her role as the Secretary of
State, she did make some decisions, for example, when she was going to certify and that kind of
thing. You know, that was her role as the elected Secretary of State and really had nothing to do with
her role on the Elections Canvassing Commission. Her role, I know from glancing at TVs when I
had the opportunity to do so. I didn't get to watch them quite as much as Joe Klock did apparently.
It seemed to be the sense that the Secretary of State played an active role in the presidential
campaign, which was not so. I think she might have gone to one reception. I mean she just...That role
was kind...was a titular role, an honorary thing that was bestowed on her as well as eight other people
who were also co-chairs of the campaign. She was a co-chair. It's my understanding on the other side
of the fence, that the Attorney General was actually chair and very active in the Gore campaign. I
can't say I know that, but I can tell you the Secretary of State was not active in the Bush campaign.
Smith Can I respond to that quickly? I think the appearance is horrible. When I was the
State Attorney, I wouldn't sign up on a petition for the simple reason that if a conflict arose, I knew
that it was going to find its way to my office and the last thing wanted the newspaper to write down
is, "Rod Smith, who served on County Commissioner's So And So's Campaign..." and my answer
being, "Yes, I know I did and I know I threw a party for him, but other than that I really wasn't very
involved." [Applause] The appearance I say I'm a great fan of the Attorney General's. I admire
him tremendously, I will tell him the same thing when the occasion comes. I believe that if you are
going be in a position which may have decision-making about the outcome of election, and she
plainly was and it was plainly foreseeable that she would be in that position, that to allow herself to
the titular head for the average guy out there, the titular head is what they are. They have a title as
being on the campaign and I hope that Florida leaves this process knowing that people in those
positions absolutely should not accept those honorary titles because to do so it undermines public
confidence in the decisions they make. [Applause]
Colburn I'm going let Thom respond, but as we're doing so, if those of you have some
questions want to come to the mikes, we will turn to the audience. So, Thom, go ahead.
Rumberger Just one brief one...A very serious recommendation, Senator, of the task force
is that there be nobody participating in a campaign who is in turn involved in the election of another
person and that Supervisors of Election become nonpartisan, not that it makes a whole hell of a lot
of difference, but the approach or the appearance certainly does make a difference. We want to
Smith I agree.
Colburn All right. Let's turn to our audience. I think, ma'am, you were first?
Questioner I think we're not paying enough attention to literacy and the problems that this
has caused in the election. I have a report from the National Adult Literacy Survey, which is part
of the U.S. Department of Education in Washington. According to that report, 25% of the people
in Florida are functionally illiterate. Something like 50% of the people in this country cannot read
a simple paragraph and understand it well enough to follow directions. Now people like that are
going to have trouble with voting, with ballots. I think, yes, we should have voter education, and
it should be very specific. Perhaps there could be somebody at the poll, at the precinct, to help
people, to make sure that they understood what was on the ballot.
Iorio I think you've raised a very good point because I do believe that functional literacy
is another issue of this, the legacy of this, election. At the polls, it's probably one of the most
difficult problems to deal with because you are as unlikely that a voter is going to go to a poll worker
and admit to not being able to read and needing help in that regard. So it is a very difficult problem
at the poll for the poll worker, as well as for the voter. I think we've also found, though, through this
process that we as supervisors, election officials, are guilty of using terminology that is not easy for
everyone to understand, even something as simple and I believe this literacy council came forward
with some recommendations that we say to a voter, "If you spoil your ballot and you're allowed
up to three ballots", instead of just being a little more straightforward and saying, "If you make a
mistake, make a mistake." We need to re-look at how we talk to people because we tend to get
wrapped up in election terminology, which is often not clear to everyone. And so this is an
opportunity for us to reassess how we communicate to the voters.
Kearney Could I make a quick comment too? I wanted to mention actually, oddly enough,
the Secretary of State is also involved in the State Library System, and has for the last couple of years
been able to get grant money for literacy programs above what we already have and we're really glad
you brought that up. The other thing I wanted to mention, too, is how much we would like to also
be involved with further education, but it's hard, especially in terms of voter education, of how to
vote and how to fill out your ballot and do it correctly. With the different voting machines
throughout the state, to do that on a statewide effort, or even in a, say, area where a television station
airs, you run the risk of really confusing people that are voting on different kinds of machines so if
we in fact are successful in getting a uniform voting system, I think that will really be able to help
us in terms of helping educate people how to use those machines.
Colbur All right. Let's go to the audience. David?
Questioner A quick comment and a quick question. Comment I hope you're not thinking
about electronic voting, that that's too far down the line. I think there's something very good about
standing in line and waiting to vote as a citizen. I think all of us saw the pictures of the vote in South
Africa against the yellow earth of the enormous lines of people waiting to vote. I think there's
something involved with the individual who does this, that you don't get, when you're sitting at
home and looking at your computer. Now the question is a technical question about ballot design and
that is: Has the commission given any thought to recommending a nonpartisan, professional
commission to give advice on ballot design? To look at ballots. This has been a...What about the
MacKay/Mack race? Buddy MacKay might have been a United States Senator if the Senate race had
not been hidden away on the back of the ballot, was that not in Pinellas? It might be profitable if
there was a group who professionally looked at the design of ballots and made suggestions to the
supervisors about problems that might occur from them.
Iorio-May I address the ballot design issue? You know, ballot design, and you're right about
the Buddy MacKay/Connie Mack race in 1988, in fact ballot design caused a huge drop-off in some
counties. In Hillsborough County, this was prior to me being supervisor, the ballot design in that
particular race caused a 25% drop-off in that particular Senate race, so ballot design is an important
issue. The first thing is: If we can all get on one voting system, that's helpful. But even there with
optical scan, you will find different ballot designs amongst the different counties because it really
depends on how many races they have on the ballot. Okaloosa County, in this particular election,
had only two local races in addition to their mandated, federal statewide races. In Hillsborough
County, we used all 228 punch positions. We had the largest ballot in Hillsborough County's history
with just a whole lot of local races, so, that's going to affect how a supervisor lays out her ballot.
But I think that what we can do with ballot design is have some very simple standards in place. For
example, when you're dealing with optical scan, you don't lay a race out on two columns. As soon
as you move to two columns, there are going to be a lot of voters who are going to think that that
next column is a new race. And so you can't do that. And, of course, I think that with the punch card,
hopefully punch cards will be obsolete, so we don't have to worry about ballot design with punch
cards. Ballot design with punch card is very, very difficult And the larger the ballot, the more
difficult it is and it's a very cumbersome ballot for voters. So, hopefully, we do away with punch
cards, we concentrate on optical scan. I don't know whether we need a statewide commission to
look at ballots. I think the supervisors can look at their ballots as long as there are some very clear
standards in place as to what they cannot do with races.
Questioner I would like to direct a question mainly to Senator Smith's comments, but I
would like feedback from everyone on it. One of the things in the elections process following the
election that I noticed, that I'm hearing again today that really bothered me was the rush to
disqualify the Legislature and our Secretary of State from having any decision-making power at all
in this. I heard Senator Smith say that for this to go to the Florida Legislature would have been the
worst possible outcome, and that Secretary of State Katherine Harris's involvement should not have
been. She should not have been involved at all. My problem with this is these are people that are
popularly elected by the people of Florida. Why are we in such a rush to take the power away from
our elected officials and give it to the judges in this process? And, to follow that up, is that where
we're going with election reform in Florida following this election? Will we see the Secretary of
State having less power and the Florida Legislature, their ability to be involved in the outcome, will
that be taken away?
Smith First of all, my remark should not be taken that I was trying to remove Secretary
Harris. I think I made it very clear that my remarks went to the Attorney General the same way. I
believe the issue is not whether they should be removed. I believe the issue is whether they should
have made a selection to allow their offices to get involved in national campaigns. The answer to that
is I firmly believe they should not have and that it was foreseeable that shouldn't have, but I
certainly was not suggesting that the Secretary was not the one to make that decision. I do believe
that in 200 years no Legislature has made the decision to intervene in the way in which Florida was
trying to do so after the fact. The Constitution provides that there is a method to be selected by the
Legislature for resolving elections. This state had made one over 80 years ago. To now change the
rules after an election, when there was a pending dispute, was the wrong time for the Legislature to
intervene. You're right that we have a popularly elected Legislature, and that popularly elected
Legislature has been in place for year after year after year and had never seen fit to intervene in this
situation until what? Until there was the pendency of the dispute. That was not the right time for us
to abandon a process that was in place. We did the right thing, we followed the process that was in
place. The outcome was one that while no matter what we would have done, would have been a
problem, I absolutely believe that we had a process in place that we should have followed and we
did follow. I think we did the right thing.
Rumberger We're not going to recommend a diminishment of elected officials in any
respect. At least, this task force, as I understand it, is not going to do that. We're suggesting only
that there be some relinquishment of partisan activities on the part of some of the elected officials
and we think that that's more for show than for real dough. I'm not sure how you can keep anyone
from actively participating, but if they're at least designated nonpartisan perhaps that will be helpful
at least. Helpful as far as people's perception may be.
Questioner I became a Floridian on October 1, 1990, and I was more or less appalled at
the elections in Florida. I had come Illinois. I retired from...
Rumberger Illinois? And you're appalled at a Florida election? [Laughter]
Questioner Now, wait, let me finish. That was 1972, Chicago. I didn't come from
Rumberger And they sent down Mr. Daley to look at our election?
Questioner Thanks for your comment. Anyway, I retired from the Illinois State Board of
Elections. The formation of that was the result of our problems in Illinois. I was here to try...I was
appalled at the number of elections you have for one thing, and the non-uniformity throughout
different counties. And so I am for consolidation of the elections and uniformity in elections and that
includes ballots, that includes apportionment, that includes campaign disclosure and all the other
things that go with an election. This morning, the previous panel up there, I learned a lot. I was
educated, and I appreciate that education. It all came free of charge to me. Now, your comments
about the ballots. Yes, the ballots should be alike all over the state and that would be one thing, that
if you formed a state board of elections, that they could take care of for you. When I started working
for them, we were sent out as the election coordinators. We contacted every election authority in the
state in our assigned territory and we had our books made up. I helped formulate those books; what
each county, their officers, their elected officers. They had over 6,000 election authorities in the
state. That's a lot. I was in Madison County, for one, and Madison County alone had close to a
hundred of them that I had to contact. Anyway, another thing I wanted to mention was this hand
recount. I thought that was...My personal opinion was that was a disaster. Because I'll tell you why,
ballots should not be touched by anybody except specified authorities. And that's how we were
educated by Dr. [Richard] Smolka out of Washington, D.C. They should not be touched by anybody
except that. Well, here were these people holding up the ballots and talking to the man next to them
or the woman next to them and saying, You know, asking them questions, "Well, what do you see?
What do I see?" and that is not...I was sent out on a number of recounts in the state of Illinois after
I became a staff member, and our parting words going out the door was: "Don't touch the ballots."
On Election Day, we were sent to polls at 7 in the morning. We had to be there when the polls
opened. We had to stay there until they closed in the counties we were assigned to. All of this can
be seen and foreseen here, and a lot of corrections can be helped by just one formation of a state
board of elections. I am really, really for that. I was called in by NORC are you familiar with
NORC, any of you? The National Opinion Research Center out of the University of Chicago, and
they were doing some surveys and research on the ballots. In the first week in February, I was
invited to help them out. It was a pay job. I'm retired. I like the extra pay. Those ballots that we
looked at were held by a member of the staff of the clerk, or the election supervisor or whoever had
assigned them, whoever worked in the offices. We did not touch them. We looked, and then we had
to tabulate. What the results were I have no idea and I don't really care to know.
Colburn Ma'am, I'm going to have to...there are some people standing behind you who
want to ask some questions.
Questioner Okay, one more thing...Have ever any of you looked at that loose chad on the
back of a ballot? Can you tell when it's one hanging corer, two hanging covers, or three hanging
covers? You have to look closely to find it. As far as I'll stop in just a minute as helping people
at the polls, we were able to have either a relative or one of the judges of elections go in with the
person to help them vote their ballot. There is much more but this is an opening. Thank you for
letting me talk.
Colburn Thank you. Anybody want to comment?
Questioner I just had a question regarding Senator Smith's comments on partisan politics
possibly getting their hands into the election process. My question is: When I was watching
everything unfold on CNN, one of the things I saw, I believe it was in Broward County, was a
canvassing board member I believe was a Democrat. I'm not sure what her name was saying that
she was willing to go to jail in order for something to happen in the canvassing board. That really
concerned me that here I thought that the election process was governed by law instead of by people,
and in particular not by a partisan individual. Basically, what is the board's recommendation
regarding election supervisors and canvassing boards and the role that they play, especially in close
elections like this?
Smith I know that Thomas addressed this, but I know the report we get a preliminary look
at the report next week and they're going to ask the supervisors to go to nonpartisan elections. One
of the reasons why and I think this is important as lawyers, those of you who are training here,
sometimes there is impropriety, but sometimes what drives our decisions the appearance of
impropriety. That's what we're addressing here. Is that when you give the appearance of the intrusion
of partisanship into the decision making after the votes are counted, you undermine the public
confidence in the outcome. So, I don't know there probably is a report on this, I have not seen it,
on how we're going to treat canvassing boards, but I do know that there is an overt effort to de-
politicize the decision makers. It's not that it will make a huge difference, but it's a matter of public
confidence in how those decisions are made.
Colburn Pam, you want to comment?
Iorio Yes. The canvassing boards are made up of a county court judge, the chairman of the
county commission, and the supervisor of elections. If the supervisor of elections has a contested
race on the ballot, then she recuses herself and there's another county commissioner. The person
you're referring to in Palm Beach County, you know, is the sort of canvassing board members that
gives every supervisor a stomachache. Because you don't want a canvassing board member who is
partisan, but you don't know what you're going to get with your county commissioners. Now the
county court judges tend to be pretty nonpartisan; they run on a nonpartisan basis. They don't
engage in partisan activity, but your commissioners are you know, you get a mixed bag there and
you get many of them that are very involved and you don't want that. The language in Florida
statutes needs to be stricter. Right now, it's very vague language, that deals with what a canvassing
board member should do and it needs to be very strong language that no canvassing board member
should be involved, engaged, raising money, bumper stickers, should not have any activity with any
race that is on the ballot that they are canvassing and that would be an important piece of reform.
Rumberger I was just going to observe that the person there was named Roberts in Palm
Beach County and she's a loose cannon.
Smith That's a technical legal term. [Laughter]
Questioner I was wondering, Ms. Iorio, how many people were falsely purged from the
voter roles in your county, if you know off-hand, how many were falsely purged in the state, and if
anybody has any general comments about the purging?
Iorio Are you referring to the felon list issue?
Iorio I think that the issue of the felon list is a very serious issue and one that I think is at
the core of a lot of the discontent that African-Americans feel about this election. For the first time,
and I know that we're running out of time, so just a thumbnail sketch here, a central voter file was
created in 1997, first went into effect in 1998. It gave supervisors the opportunity for the first time
to look at data across the state and take people off who were duplicate registrations in other counties.
And [former Florida Secretary of State] Sandra Mortham actually first tried to give the supervisors
a list in 1998 of felons and we soundly rejected that list and sent it back to her because she had not
complied with the law and had not first checked to see if these people had received clemency or not.
So, this would have gone into affect in 1998, but for the fact that the Secretary of State's office
didn't handle it properly. Then Katherine Harris came onboard and she hired a private firm to go out
and to identify people who were on the Florida rolls as ex-felons who had not had their civil rights
restored. In the summer of 2000, those lists were given to individual counties, and supervisors under
state law were told to contact these people and unless these folks could prove otherwise, we were
to take them off the rolls. In Hillsborough County, the list was 54% African-American. We ended
up... The list that began as 3,200 names and we took 2,700 names off the rolls prior to the November
7h election. Now there were some problems with all of this. First of all, the list was not entirely
accurate. The company that had been contracted by the Secretary of State's office didn't do a very
good job. Number 2: They had identified some people who had felony convictions in other states
where peoples' rights were automatically restored and then put them back in the line up here in the
state of Florida to say, "Now, you have to have your rights restored in the state of Florida", which
is contrary to any, any, it's just plain wrong. Right. What we discovered, of course, and of course
our county, as all counties did, mailed to these individuals but this is perhaps a population that may
move a lot, or even if it isn't a specific population that moves a lot. People in Florida move a lot.
20% of our voter rolls move every year. And so, there were people who then showed up on Election
Day and discovered that they were no longer on the voter rolls, even though they had been on the
voter rolls for many, many years and found out that they were in this felony status or ex-felon status.
This issue really needs attention from the Legislature. Florida has some of the most restrictive laws
in this area. In many states across the country, once you have served your time, your rights are
automatically restored, but not so in the state of Florida. We are one of only nine states across the
country that have such restrictive language in the law. We have ex-felons go through a paperwork
process which is very lengthy which very few avail themselves of. Consequently, you end up with
a lot of ex-felons across the state of Florida who do not have their civil rights restored and are not
eligible to vote. They find themselves back into this criminal justice system because they get a voter
registration form and fill it out, unaware that they have to have their civil rights restored, and find
themselves having just broken the law by filling out that voter registration form. It is a big issue with
this 2000 election. It affected tens of thousands of voters across the state. I'm certain that some of
those voters should have been eligible to vote on November 7t, that they had had their civil rights
restored, or they had been automatically restored in another state but they were inaccurately
identified by this private company.
Questioner I'm fortunate enough to fall in the senior citizens category, but Rod can tell you
that I do know how to vote. I'm real concerned about one particular issue and that, of course, is
education as Thom brought up in the polls. I think we've missed a point, and one key word:
embarrassment. People, place yourself in a line, or going into the polls to vote. You've got three or
four of your friends in that row, line, you may have people from your condo that were brought in by
bus, it's your neighbor and so forth. You're too embarrassed when you walk in here to say, "Hey,
I need help" or that "I don't know what's going on. Please help me". I would ask you if it takes
psychologists or whoever or what, please to look at that word: embarrassment. Thank you.
Questioner I have a question. I'm a former prosecutor and it's public record everybody
who's convicted of a felony. I can't understand why is it so hard for us to come up with these lists?
Isn't there a...
Smith It's just what she said. I can tell you that we've had a problem in the State
Attorney's office. We had the same kind of problem. People would do actions in Florida, we would
find out they were former felons, and but what we would find out is that in their states, and I've
actually had these things come up as defenses, in their states, there's an automatic restoration. A
person comes down here I'll use one I know of you come from Hawaii, you serve your time, you
get a letter, you're reinstated. You come to Florida and you go down to do some things that you
can't do in this state, and all of the sudden, they say, wait a minute, you've got a felony. So that's
a problem. There is some additional problems in this, and I think what's got to be one of the things
and I don't know if you all made a recommendation on this or not and that's about the protest
ballot. There's also this issue about if a person gets there, they've come to the polls, they're ready
to vote, and there's a question about whether they can vote or not. That's not the time to make the
decision. Let them vote a protest ballot or a provisional ballot, whatever term they're going to
come up with and that ballot will then later be resolved and some of these issues would be dealt
with that way. So I think that's another way to deal with it. But, yeah, it is a problem. It is not a
simple, "you are or you aren't". You are in Florida, but you may not have known you were when
you came here from another state. You got some real full-faith and credit issues that arise there.
Questioner-Don't they keep a list of judgement and sentences compiled somewhere? When
you need to go get one...
Smith Oh, yeah, I mean if you go...I hardly think we're going to let the supervisors go to
the NCIC's and that sort of thing. Nor do I think there would be any way for them to do it at that
point in time.
Questioner- But the clerk's office keeps those, right? Thejudgements and sentences are kept
somewhere. When you need them, you go get them. Do they not keep a list of the people on that list?
Smith Yeah, there's no way we'd do that.
Rumberger Those lists are not current.
Smith They're not current and they're not reliable.
Kearney Another difficulty is that in voter registration we can't ask for social security
numbers, so it's very hard to match. People have identical names, it's very difficult.
Colburn Thank you very much to our audience, to our panelists. We're taking a break for
lunch and will be back at 1:30.
David R. Colburn is provost and vice president for academic affairs at the University of
Florida. He has been a faculty member since 1972. Dr. Colburn received his A.B. and M.A. from
Providence College before entering the U.S. Army. He served one year in Vietnam before returning
to the States and attending the University of North Carolina at Chapel Hill, where he received his
Ph.D. His teaching and research have focused on politics, race and ethnicity in 20h Century America.
He was twice named teacher-of-the-year and has published nine books and more than twenty-five
articles and chapters in books. His two most recent books include The African American Heritage
ofFlorida (1994) with Jane Landers, which won the Rembert W. Patrick Book Prize as the best book
in Florida History and a special commendation from the Association of State and Local History in
1996, and Government in the Sunshine State: Florida Since Statehood (1999) with Lance deHaven-
Smith. He recently completed his tenth book, African American Mayors in the United States Since
1968 with Jeffrey Adler. The book manuscript is currently being prepared for publication by the
University of Illinois Press. Dr. Colburn served two terms as chairperson of the Department of
History at the University of Florida. He also served as Associate Dean of the College of Liberal Arts
and Sciences. He was one of the authors of the Rosewood Report in 1993, which was part of the
inquiry of the State of Florida into the destruction of the town of Rosewood in 1923. Dr. Colburn
currently directs the Reubin O'D. Askew Institute on Politics and Society at UF.
Pam Iorio is serving her third term as Hillsborough County (Florida) Supervisor of Elections
and is President of the Florida State Association of Supervisors of Elections. Before her service as
Supervisor, she served two terms on the Hillsborough County Commission. She graduated from The
American University in Washington, D.C. with a bachelor's degree in Political Science. She
currently volunteers her time in the community on the Advisory Council of the Tampa Bay History
Center and on the American Victory Ship Board of Directors. She previously served on the Board
of Directors of the Head Start Community Foundation, Inc., the United Way, and the Tampa Bay
History Center Board of Trustees. She is the host of a monthly talk show on Hillsborough Television
called "Election Talk."
Deborah K. Kearney serves as General Counsel to Florida Secretary of State Katherine
Harris. She previously served as General Counsel to the Florida Constitution Revision Commission
(1997-99), Deputy General Counsel to Governors Lawton Chiles and Bob Martinez, and Staff
Attorney to the Florida House of Representatives Committee on Judiciary. She is a graduate of the
Florida State University College of Law and a member of the Florida Bar Appellate Rules
Committee and serves on the Executive Council of the Administrative Law Section of the Bar.
E. Thom Rumberger is Senior Partner and founding member of the law firm of Rumberger,
Kirk & Caldwell, P.A. Begun in 1978, the firm has more than sixty attorneys with offices in Orlando,
Miami, Tampa, Tallahassee, and Birmingham, Alabama. Before receiving his B.A., with honors, and
J.D. from the University of Florida, he served in the U.S. Marine Corps. He was appointed Circuit
Judge for the Florida Eighteenth Judicial Circuit, then served as Assistant to the Governor of Florida
and a member of the Florida Land Sales Board. Representing the Republican Party of Florida, in
1992, he was instrumental in redrawing the historic district lines during the Florida redistricting
hearings. He has served as a member of Florida's Federal Judicial Advisory Commission and the
Board of Supervisors of Spaceport Florida Authority. He was Chairman of the Florida Lawyers for
President Bush in the1988 and 1992 Presidential Campaigns, Florida General Counsel for the
George Bush Presidential Campaigns of 1988 and 1992, and Florida General Counsel for the Bob
Dole Presidential Campaign. He serves as Chairman of the Collins Center for Public Policy, Vice
Chairman of the Teddy Roosevelt Society, a member of the Board of Visitors of Florida State
College of Law, a member of the Board of Trustees for the Law Center Association of the University
of Florida, on the Board of Directors for the Phoenix Houses of Florida, Adjunct Professor for
Florida State University College of Law, and a member of the Governor's 2001 Select Task Force
on Election Procedures, Standards & Technology. He represents such organizations as Save the
Manatees, The Everglades Foundations, Inc., The Everglades Trust, Inc., and Save Our Everglades.
He is Chairman of the Board and General Counsel of The Everglades Trust and an active board
member of The Everglades Foundation.
Rod Smith was elected to the Florida State Senate in 2000, following eight years as State
Attorney for the Eighth Judicial Circuit of Florida. As State Attorney, he balanced aggressively
tracking and pursuing the criminal perpetrator with the creation of special units dedicated exclusively
to domestic violence, sex crimes and narcotics, while greatly expanding the Crime Victim Services
program. He was recognized on numerous occasions for his work done both in and out of the
courtroom, including his receiving the Association of Governmental Attorneys and Capital Litigators
Trial Award for his handling of the Gainesville Student Murders Case. Following his election to the
state Senate, he was appointed Vice-Chairman of the Joint Committee on the Electoral Process,
created in response to Florida's presidential election stalemate. Both his experience as a State
Attorney and as an adjunct law professor at the University of Florida since 1994 established him as
a resource in discerning the intricate legal issues which came before the committee. He currently
serves in the Senate as Vice Chairman of the Ethics and Elections Committee. He received a B.A.
in political science from the University of Tulsa and a J.D. from the University of Florida College
Mark Tushnet is Carmack Waterhouse Professor of Constitutional law at the Georgetown
University Law Center. He received his undergraduate degree magna cum laude from Harvard
College and J.D. and M.A. in history from Yale University. He clerked for Judge George Edwards
and Justice Thurgood Marshall before beginning to teach at the University of Wisconsin Law School.
In addition to teaching at Georgetown University Law Center, he has been a visiting professor at the
University of Texas, University of Southern California, University of Chicago, and Columbia
University law schools. He is the co-author of four casebooks, including the most widely used
casebook on constitutional law, Constitutional Law (with Stone, Seidman, and Sunstein). He has
written nine books, including a two-volume work on the life of Justice Thurgood Marshall, and
edited three others. He has received fellowships from the Rockefeller Humanities Program, the
Woodrow Wilson International Center for Scholars, and the John Simon Guggenheim Memorial
Foundation, and has written numerous articles on constitutional law and legal history.
"Florida Election 2000:
Insiders at the Intersection of Law, Politics and the Media"
Monday, February 26, 2001
University of Florida Levin College of Law Auditorium (Room 190), Gainesville, Florida
Sponsors: University of Florida's Levin College of Law, College of Journalism and
Communications, College of Liberal Arts and Sciences, Department of Political Science, Office of
Research and Graduate Programs
1:30 p.m. Panel: "Fairness in Voting"
Jacqueline A. Berrien, Attorney, NAACP Legal Defense Fund, New York
Kendrick Meek, State Senator (D-Miami), Vice Chair, Senate Committee
on Agriculture and Consumer Services
Anthony "Tony" Hill, Former State Representative, & Secretary-Treasurer,
Florida AFL-CIO, Tallahassee
Gail Baker, Vice President for Public Relations, University of Florida
Joseph W. Little, Alumni Research Scholar, UF Levin College of Law
Terri Fine, Professor, Department of Political Science, University of Central Florida
Alan Agresti, Professor, UF Department of Statistics
Steve Zack, Attorney, Zack & Kosnitzky, Miami
Moderator: Richard Scher, Robin & Jean Gibson Professor, University of Florida
Department of Political Science
Scher My name is Richard Scher and I'm a professor of political science here at the
University of Florida. I've worked with Dean Jon Mills on any number of projects over the years.
We've been together, gosh, it seems like forever and we hit on this idea of putting this little program
on a couple of months ago and from my standpoint, it's been absolutely spectacular and I hope you
all have enjoyed it as much as I have. This is the political fairness panel. It is kind of interesting I
think. There's been a sort of progression of almost a logic of the panels. I think it was unintentional
but it's worked very well. The first one, of course, was highly legalistic and, to some extent, media-
oriented as well. The second one was obviously historical but I think even more importantly was
very policy-centered. I think this one is likely to be the most political and also the most emotional
because the issues involved in fairness in this last campaign really have grated on any number of
people in any number of different ways. When I say fairness, I'm talking about fairness to voters,
fairness to the process, fairness to the candidates. There have been many, many questions raised
about just how fair was it, and that's what I think we're going to do this afternoon for the next hour
and a half. As I said, I 'm sure it will be very, very lively. Jon was kind enough this morning to
mention the sponsors of our little conference and I want to second that. We've had some marvelous
support, both on-campus and off. There are a couple of other people, though, who need to be
mentioned because I think they've done really a wonderful job in putting this together From the
President's office, the Office of Public Relations, Maureen Tartaglione. From News and Public
Affairs, John Lester. Here in the law school, JoAnn Klein, Linda Baldwin and Stan Huguenin I
think, have been just wonderful in their work. Jon and I would like thank them, because if they
hadn't done their work, we wouldn't be here. Before I introduce this very distinguished panel, and
I do mean that, I am thinking about fairness and how it was manifest or the lack thereof during the
election and its aftermath, a number of questions and issues really presented themselves and I
thought what I would do, by way of framework, I would list them briefly without much comment
from me because really you're here to hear the other folks. They're pretty profound; they're pretty
fundamental. First of all, there's 10 of them. I'll go through them very quickly. There are others but
these I'll must mention now. Who was able to vote? We know that, in some instances, people who
allegedly were felons were allowed to vote, but we also know that many people who were not felons
were denied the right to vote. We have evidence that African-Americans in particular were denied
the right to vote, at least in some counties. In the Miami-Dade area, we have evidence that Haitians
were sometimes denied access to the polls who ought otherwise have been included. So, the
question of who got to vote and who didn't get to vote is fundamentally one of fairness. Secondly,
was it fair that Florida basically has a totally decentralized, almost anarchic voting system? In fact,
there are 67 different ways, as we heard this morning, of designing ballots and casting votes through
different machinery. Some people have alleged this isn't fair. Thirdly, was it fair that the votes were
not all tabulated in the same way, by using the same technology. And kind of related to that as a
fourth point, was it fair that recounts were not done in all of the counties in the same way, using the
same criteria? In other words, does every vote count? Does every vote count in the same way? In this
connection, I might add, it's worth recalling the phrase of that very famous Democrat, Marshall
Joseph Stalin, or, though, maybe he was a Republican, I'm not sure. But he said, "It's not voters who
count; it's the people who count the votes who count." That's a very important consideration on
issues of fairness in this election. This next point might raise some hackles. We've heard from some
very distinguished lawyers this morning some of whom are my friends but I think it's important
to put it out on the table. Was it fair that the media and the lawyers intervened and the courts as
far as that goes- to such a degrees to hinder, delay, and ultimately stop the recount process? Never
really permitted Florida's recount procedures to run their natural course to produce a winner but
instead had one declared. Sixth, was it fair that the Secretary of State shut the doors on the recount
process, literally just hours before moving ahead with the certification process, even though those
recounts were virtually done? Seventh, was it fair that assistance to voters needing help varied
widely both across counties, and indeed sometimes within counties and across precincts? Some got
all the help they needed, some didn't get any help at all. Is that fair? Is it fair to have voters vote, but
then not count their vote, even when the intent of their vote could be discerned? We have evidence
and I particularly want to commend The Orlando Sentinel and The Miami Herald for some excellent
work done on that many valid votes votes that are otherwise where the intent can clearly be figured
out. But these were thrown away or at least, in some manner, voided. Ninth, many critics of the
process allege we heard some of this this morning the problem wasn't so much the election
machinery itself, but the voters. That they didn't do it right. They made mistakes. Somehow, they
were confused. In other words, they just simply screwed up. They delayed the process and this isn't
fair. The problem with this argument is that it's only half an argument. It really ignores the fact that
fairness actually implies a mutual obligation and responsibility. Yes, I agree with Thom Rumberger
completely. Yes, voters do have a responsibility to try and do it right. They're supposed to follow
directions. They're supposed to do their best to be informed and so forth. But again, we need to be
careful here because we don't require a literacy test and no one wants to impose one. But beyond
that, fairness requires that the state also has an obligation to help the voters do that. In particular,
I think it's fair to say that the state has an obligation in terms of this doctrine of fairness to do three
things: (1) to provide a mechanism so that the voter can clearly and non-ambiguously record his or
her vote or vote intention anyway; that the vote be accurately and completely counted and that the
standards for counting and recounting votes be consistent. That, in my judgment, doesn't mean they
have to be the same all across the state, but they do have to be consistent certainly within individual
counties. And finally, in the end, what may be most important is that participants in and observers
of the voting process feel that it was fair. Clearly, in the presidential election of 2000, here in Florida,
and its recount, virtually nobody felt it was fair, regardless of which side of the political fence they
were on. Well, these are some of the questions I think are at the forefront of my mind and certainly
at the forefront of any issues associated with considerations of fairness. And to discuss these and
other questions and other issues, as I say, is our very distinguished panel and I'm going to sort of
introduce folks quickly and turn it over to them. First, Dr. Gail Baker is our Vice President for
Public Relations and Associate Professor in the University of Florida College of Journalism. Dr.
Baker holds a doctorate in journalism from the University of Missouri at Columbia. She was a
reporter and managing editor for the Chicago Daily Defender newspaper. She's the author of two
books and also a number of chapters on cross-cultural communications, ethnic publications,
advertising and marketing. One of our folks, Jacqueline Berrien, is not able to join us, although it's
not her fault. I should have told you that from the start. It's not even the fault of the Gainesville
airport. ASA, apparently, all of their computers crashed and she's stuck in Atlanta, unable to get to
Gainesville and there's some question whether she can get back to Washington. So, unfortunately,
she will not be able to join us. Mr. Tony Hill is Secretary-Treasurer of the Florida AFL-CIO. He
was a former state legislator from Jacksonville, from Duval County, from 1992-2000. I guess you
got term-limited out, Tony. He's been in the Army, attended Lincoln University, he's affiliated with
the Duval County Democratic Executive Committee, International Longshoremen's Association,
Coalition of Black Trade Unionists executive council, and a number of other important labor union
and African-American groups. Welcome to you, Tony. Professor Joe Little, who has taught law here
at the University of Florida as a professor of law since 1967. He teaches Florida Constitutional Law
and Local Government Law. He's been very active in state and local politics. Professor Little was
on the Gainesville City Commission. He served as mayor. I had the pleasure of working with him
on any number of occasions, especially with the media as some of this Florida flap went forward.
To my immediate left is State Senator Kendrick Meek, who I hadn't met before this morning,
although I know his mother quite well, Congresswoman [Carrie] Meek. He was a member of the
Florida House of Representatives. He is in the Florida Senate. He serves as Vice-Chair of the Senate
Committee on Agriculture and Consumer Services and is on the Subcommittee on Public Safety and
the Judiciary. He's received numerous recognition and awards for leadership in Florida, including
selection as one of Ebony Magazine's "50 leaders of tomorrow". Next we have Professor Alan
Agresti, professor in the Department of Statistics at the University of Florida since 1972. He's
author of four books, including the Standard Text on the Analysis of Categorical Data which the
methodologists in the room will recognize that elections are a part of that. He has served as a
statistical consultant in some of the recount activities in this past fall. Way over at the end is Dr.
Terri Fine, who is a professor of Political Science at the University of Central Florida in Orlando.
Professor Fine teaches American Politics and Government. We were kind of snickering together
about the comments at the lunch about the Electoral College because a lot of these questions have
been answered actually that came up then. She teaches Research Methods, Women and Politics,
Politics and Civil Rights, and Political Parities and Public Opinion. Professor Fine is currently
president of the Florida Political Science Association. Steve Zack is past President of the Florida
Bar, Special Counsel to U.S. Senator Bob Graham, and specializes in Civil Litigation. He has been
involved in any number of voting rights issues, including the DeGrandy case [Johnson v. DeGrandy,
512 U.S. 997 (1994)] back in the early 1990s. That's where I first met Steve. Actually, if you look
at the little blurb that came in your program, you'll see that he's past chairman of this, past member
of that, past this and past that. I guess, Steve, you have quite a past, but we're happy to have you here
and to join us on a....
Zack Spontaneous basis?
Scher Right, very quickly, we appreciate that. So, with this wonderful panel, I'll just kind
of ride herd on things from here on out. I'm going to ask each person in turn to make a brief
presentation about his or her thoughts on different issues associated with fairness or the lack thereof
in this campaign. Then, we'll either discuss things among ourselves for awhile if that so moves us
or we'd certainly like to hear from you all and answer your questions. That's always a very
interesting and fun thing to do. I'd like to ask Dr. Baker if she would be kind enough to go first.
Dr. Baker Thank you, Richard. I promise to be completely objective and non-emotional,
much like the media coverage that we saw during this campaign as an objective statement. I bring
some, I think for me, unique perspectives to this discussion as a scholar. I like to look at why
different target audiences hear sometimes and see and view issues differently, and that's what I like
to study. I'm also an African-American, clearly. I come from the North, notjust the North, but from
Chicago. Not just Chicago, but the Third Ward, which in Chicago land is Daley country. I'm not
unfamiliar with interesting voting processes. Thirdly, for years, I was a practicing journalist and I
still consider myself a journalism educator, though some people think once you go to public
relations, you've gone to the Dark Side. That's not true. But, Richard, in a non-emotional response
to your ten questions, I'll say that the answer is NO. They were not fair. From that perspective, I've
been watching this story as has everybody else for a month and the questions that have come to mind
and I have not been able to answer: Was the electoral process fair? Was it more fair to some than it
was to others? And another question which Richard alluded to: Was the coverage of the process fair?
Obviously, we have seen that minority communities do not perceive the process as having been fair.
If you look around and you think about it, even though I have no statistical support for these
statements. When you look around the process itself it's pretty clear to see why people might not
think it was fair. The vast majority of the people at the center of this process are non-minorities.
Of course, there are the candidates and their running mates. There were the legal representatives,
many of whom we saw here this morning. These were non-minorities for the most part. The news
media the major news media who reported on this story were non-minorities and many of the
expert commentators who we saw throughout this story were also non-minorities. It is very easy to
perceive and we are talking about perceptions here that perhaps there are people who were left out
of the process, and it's very interesting that it would happen this time when minority votership in this
country, and particularly in Florida, African-American voters came out in such record numbers.
They registered in record numbers, and then voted in record numbers, only to find out that in the case
of many of them, their votes didn't count, weren't counted, didn't count correctly, were counted
twice, that there was some kind of problem. This has to be very disenfranchising to anybody who
has fought so hard to be a part of the process. I would say that the perception is that no, it was not
fair, it was not a fair race; there's also a perception that the heretofore called "liberal press" was not
here for this particular issue. We heard stories this morning about race and how race may have
played a factor in the voting. We hear about felons who were not allowed to vote, we heard about
particular counties having machinery that was older than other counties. These have been stories, of
course, that have been swirling around this election since November 7t, yet we don't get a lot of
media coverage on these particular stories. I also heard Dr. Colburn say that this story goes beyond
technology and beyond ballot design. I agree with him that there is another story here that has not
been thoroughly examined and has not been covered. It is a story of fairness beyond technology and
beyond voter error. There's a story regarding how particular people in this state, and perhaps
throughout this country, were treated in terms of the way they voted, their access to the polls. We've
not seen that story covered with the same enthusiasm and vigor as we have seen other political
-stories covered. So I'd just like to say, I'm going to say, to start this off, I don't think that the
process was perceived as being fair and also I don't think that people who look to others for
information perceived they received information fairly. Somebody brought up I think it was Roger
Cossack this morning brought nobody watched the O.J. trial but everybody knew all about it. The
O.J. trial was framed and I would never bring up the O.J. trial in this context, except he brought it
up first. The O.J. trial was framed as an issue of race. I had never seen so many black people
questioned about a topic in my life. I used to sit by the phone, wait for somebody to call me, so I
could give them my opinion on this particular case. It seemed like everybody had an opinion. It
seems as though we saw a lot more reporters out talking about this is the black opinion as opposed
to the white opinion. I didn't like that. Don't get me wrong. I don't think that was the appropriate
way to handle that. But it did point to the fact that when the media wants to find somebody of color
to discuss a case, they can do it. And in this election, I think that was conspicuously absent.
Scher Thank you, Gail, very much. Next I'd like to ask Mr. Tony Hill to give us his
thoughts. I might say that when Mr. Hill was in the legislature, he and Senator Meek were the ones
who went in and sat down on Governor [Jeb] Bush's couch and decided they didn't want to leave.
We're very happy to have you both here and I want to recognize you for that act of courage. Tony,
would you give us your thoughts on this issue of fairness?
Hill Thank you, Dr. Scher. First of all, I want to open up with a thought of what's going
on in our state and what's presently going on as we speak. It reminded me of two guys out camping
one night, and around about three o'clock in the morning one guy nudged the other guy and said,
"Wake up. What do you see?" He said, "Well, I see the stars." "What do else do you see?" "The
moon." "What else you see?" "I see the Sagittarius." "What else you see?" By that time, the guy said,
"You hit one more time. I told you what I see." He said, "What do you want me to see?" He said,
"They done stole our tent." Some of y'all will get it in the morning. It will hit you. This whole
election, and the whole process of what's going on in Florida, as it relates to leadership and as it
relates to minorities and women, somebody done stole our tent and we got the stars in our eyes. Dr.
Baker, Senator Meek and I made it a point to try to get those stars out of their eyes when it came
around to this election. I'm still waiting for the phone call from some of these lawyers who made
all that money to say thank you because had not it been for African-American community turning
out in record numbers, we never would have heard about chads, dimples or anything else, as far as
they're concerned. More importantly, I wanted to come today not to talk because I'm a firm believer
and I'm a Baptist by faith, and that surely goodness and mercy shall follow me. So I'm not going to
look behind. I'm going to look forward. Just briefly, I want to say that I think that as we move
forward in this process that I think that, one we should:
1) Ensure that nondiscriminatory and equal access to election system for all voters, including
elderly, disabled, minorities, military and overseas citizens.
2) To encourage the adoption and enforcement of Election Day rules and procedures to
ensure the equal treatment to all voters.
3) Modernizing the voting process is necessary. As Dr. Scher mentioned, we have 47
different types of election machinery here in Florida. Voting technology system implement will
define consistent standards for what counts as a vote throughout the election process, ensure
adequate votes and minimum voting error.
4) Conduct an aggressive voter education and broad based outreach program. I would say
that one of the flaws is as we and some of the other colleagues in the NAACP, People for the
American Way, we were able to turn the vote out, but we did not arm the people when they went to
the polls. What I mean by that is the Supervisor of Elections, the Secretary of State...nowhere, when
you walk in a polling place that you will read that if you make a mistake on a ballot, you have three
chances to vote again. That was absent. That was our fault in terms of Operation Big Vote, all our
nonpartisan groups. We never empowered the people once they got to the polls because we knew
there was a lot of people voting, Dr. Scher, for the first time.
5)Expanding poll workers recruitment and training programs by adopting innovative
practices of other states and localities. With the ultimate goals of providing a satisfactory Election
Day experience for all voters.
6) To establish a Voter's Bill of Rights that will be posted at polling places. We'll find topics
that will be consistent in the other fifty states.
7) Maintain adequate voter registration rolls with a system of inter-government and
cooperation and communication throughout our different 67 counties.
8) Enhance the integrity and timelines of the absentee ballot procedure.
Those are some of the things I think we can move forward on and hopefully in 2002 that we
will never have to go through the nightmare of trying to put the onus of all that happened in this
election on the voters but put it in the hands of the people who run this system on a day-to-day basis
and that are paid for very well by taxpayers. Thank you.
Scher Thank you, Tony, very much. I think, after your remarks, it would make sense if I
ask Terri Fine to go next.
Fine Thank you very much. It's great to be here. I wanted to talk about some specific issues
in terms of fairness in voting regarding those who, by design, had never voted before the year 2000
and that is our younger voters. I have many concerns I wanted to share with you about why it was,
I feel, that we should pay attention to this group as well as other groups that were disenfranchised
or felt that they were disenfranchised. One is that it's true that the constitutionality and the
legitimacy of any election is never questioned because of low voter turnout. We don't have any kind
of requirement that many of us in this room, because we serve on faculties of departments or because
we serve on other committees and in other community organizations that we are not allowed to
participate in decision making unless a quorum is present on the notion that the decision that is made
is not legitimate unless there's a quorum present to make that decision. That is not true in the U.S.
electoral system. Every election that happens, provided that the laws are followed, is legitimate even
if a small percentage of persons show up or a small percentage of persons from specific groups show
up or do not. As a result, there are certain factors in terms of voting behavior that tend to bring
people to the polls, that tend to make it so that there are some groups who tend to vote more often
than other groups. Many studies have shown that these groups tend to be different in terms of their
political views, in terms of their policy positions and in terms of their partisanship than groups that
don't vote. And so, as a result, those who vote in this country are not necessarily representative of
all those who are served and governed in this country. One of the factors that contributes to higher
voter turnout is a sense of political efficacy, that sense of empowerment that says that I feel that the
system is listening to me and I should participate in the decision making process of the system. As
it happens, young people not only have the lowest voter turnout of any age group in this country, they
also have a lower than national average levels of this sense of personal and political and economic
empowerment. Florida also has among the strictest national standards in the country regarding
registration and participation. For example, even though there are some states that have
opportunities for registration on the same day or sooner before the election, the federal standard (that
was established, I believe, during the [President Jimmy] Carter Administration) was that the no-
registration date could exceed 30 days. Florida is at that 30-day mark. We also have the strictest
number of hours that a person is eligible to go to the polls. We have a 12-hour window from 7 to
7. There are some states that have the polls open for 15 hours in a day. And so these kinds of
restrictions make it harder for people who otherwise have not participated in the system and have
other kinds of issues to be concerned with, might make it harder for them to participate. My concern
here especially is that those individuals whose parents are politically active tend to also be more
politically active than those who have parents who are not politically active. Well, the same
generation today that has the lowest voter turnout is the parents of the next generation of voters and
so, when you take into consideration that no election is deemed not legitimate because of low voter
turnout, it makes me concerned about not only today but also 25 years from today when that next
generation is voting. There are many explanations that have been offered. One is that younger
people tend to have very high levels of mobility, what that means is that then they are subject to
voting by absentee. The first year that I voted, which was 1980, I lived in Albany, N.Y., and at the
time the requirement was that unless you could be declared as financially independent so that your
parents wouldn't declare you on their tax return, then you had to vote absentee. Now there is a lot
of changes in the last 20 years, of course, in terms of allowing students in their college communities
to vote in their college communities, and it's much easier to vote that way than absentee. We also
find that in many respects younger people have a lower sense of other forms of efficacy, such as a
large percentage of them earn minimum wage. In general terms, what we find is that individuals
who have lower incomes tend to have lower voter turnout. Individuals with higher incomes have
high voter turnout and, in fact, this morning I appreciated the discussion about in those better
educated communities there was a much lower percentage of voter error. And so, there's a notion
about getting voters educated not only about the value of the process, but also how to negotiate the
process as well. We also find that there's this sense of connection. We have, particularly since the
Voting Rights Act of 1965 [42 U.S. Code, Section 1971 et seq., the Federal law guaranteeing the
right of U.S. citizens to vote without discrimination based on race or color], I believe, we have this
notion that a person is in many respects best represented by one of their own. For example, since
the Voting Rights Act of 1965 was enacted we have found that there has been a significant increase
not only in the number of African-Americans voting, but in the number of African-Americans
running and the number of African-Americans winning political office. What that suggests to us is
that individuals tend to feel that they might be better represented by someone who better understands
their concerns. We see this has a racial dimension, particularly since the legal system has protected
the right to vote. We also found in the 1992 election, we often call that the "Year of the Woman",
there was a significant percentage of women who ran for office, ran for Congress, ran for U.S.
Senate, and won. So, how does this relate to younger people? The Constitution says you can't be
a member of Congress until you're 25 years old, and the youngest voter turnout group ends at 24.
That notion of representation might also be a factor here, although there's very little evidence to
suggest it. I also have found in my own research that there's also this sense about a connection that,
in many respects, comes from the candidates and the political parties. What the surveys have shown
is that individuals tend to vote more often if they believe, true or not, but if they believe that they
have been contacted by a candidate or a political party a lot, they have much higher tendency to vote
than those individuals who believe that they have not been contacted by the parties or candidates.
And so, when candidates are walking door-to-door, sending brochures to their potential constituents
if they win the election and so on, what we find is that those individuals who believe that they heard
a lot from the system and said please participate, tended to participate. As someone who's worked
on just a couple of campaigns many years ago and many of you who worked on many campaigns
over the years what you know is, that particularly when you only have, particularly if you have to
win a primary after the primary, you have the reality that if you're going door-to-door, if you're
going to spend money on a campaign, and funds are limited, you're gonna have to target experienced
voters. It's a cost benefit analysis and targeting experienced voters, and that means either deciding
whose doors to knock on when the sun is going to set at 7:30 or deciding who to send a brochure to,
is often linked to not only the person's party registration but also linked to whether or not they have
experience in the electoral system. As a consequence of this, I myself am concerned about the
combination of effects of this election because this may have been the first election where not only
were young people not contacted as often, where young people have the least amount of experience
in terms of voting, but what we also found is that this may contribute to that lower level of political
efficacy based on the concept that because of the attention paid to this election, there may be a
greater sense that even though I did vote in this election, my vote may not have counted and so my
taking that hat off in terms of suggesting different kinds of reforms, I do believe that voter education
efforts do need to reach out to those have not participated. Make fun of him or not, I thought that
Bill Clinton's decision to go on MTV was a brilliant one for that very reason. Regardless of what
he said or did, it was his active approach to reach out to those who had never voted before. As a
result, I believe that this is a group that not only has the potential to help certain groups in terms of
today's electoral process, but in terms of acknowledging that they are also the parents of the next
generation of voters. Thank you.
Scher Thank you, Terri, very much. Next, I'd like to ask Professor Joe Little for his
comments on fairness issues.
Little Thank you, Mr. Moderator. First, I'd like to say that on the subject I've been asked
to comment about, I deem myself to have exactly the same amount of authority as anybody else here.
That is, virtually none to speak with any great basis of knowledge. Whatever your opinion is, I think
it's as good as mine on this matter and also I really, before I got here, I didn't have a great deal of
information about what I was supposed to talk about. That, even further, puts us in the same
position, I think, in this regard. I did think about, however, that we were speaking of the election of
the fall of 2000, and that the real crux of the issue was who was elected the President. The real
question in my mind that I deemed to be important in this particular proceeding, is the system as it
works, did it systematically, invidiously, somehow push the election one way or the other. Let me
give you my conclusion on that. My conclusion on that, with one exception that I'll mention in a
moment, the answer is no. The fact is: We had a very, very close election, and one of the things I will
be interested in hearing Professor Agresti address is this, is it possible that we could ever really
know what the outcome of the election is? I will propose the answer is no because if we recounted,
then we recounted again, it's entirely possibly that the second recount will come out differently from
the first recount. When you begin to count six millions of anything, to get the same count twice
would be miraculous, probably leading you to conclude that both are wrong. But Mr. Agresti will
talk about that. Let's talk about fairness. So far as I'm concerned, fairness at least in the legal sense
is a useless word. Fairness is something you get when the sun is shining on you. Fairness is
something that you don't have when it's raining on you. The view of whether a thing is fair or not
ultimately is going to depend upon whether you're standing in the rain or whether you're standing
in the sunshine. That certainly is true in this case. If you remember all the announcements after the
elections, of course, the Bush-ites thought everything was swell and fair. They were standing in the
sunshine. The Gore-ites, of course, thought everything was not so swell because they were standing
in the rain. I don't think I find that a useful term at all, and as a lawyer and I wonder what I'm
doing on this panel as a lawyer, but I see Steve Zack on the other end I always try to find another
way to approach the outcomes of things. Now, there are a lot of things that have come out of this
election that we ought to fix up or at least proposals have been made that we ought to fix up. I think
the thinking is here, at least I hope it is, that these things ought to be fixed up even though we don't
have any reason to believe that we're going ever to have a situation such as we had in the Fall of
2000 in Florida ever again, whether we fix it up or not. If we don't do a thing, probably we'll go
through all of eternity and we'll never face that issue again. We don't really need, in my view, we
don't really need to fix it up because of what happened in the fall, but there may be other reasons.
In that regard, I listened to the points that Tony Hill made and I think I would agree with the
proposals he's made, with all of them, and, Senator Meek, you're here, let me suggest this. If the
Senate decides that we ought to have Scantron voting through our state, don't get hung up on the
question of the money, appropriate the money, make the stuff available. Alachua County has got
Scantron voting, so give us another sum of money for Alachua County to do something else with.
I hope that the Legislature doesn't get hung up on things like that in terms of whether or not to make
these needed reforms, if they are in fact needed. Now, was there "unfairness" in the publicity of the
election? That's where Richard Scher and I had so much fun. My answer is yes. Who was unfairly
treated? In the sense of receiving invidiously, slanted or derogatory comment that was not justified
on the basis of performance this is going to surprise you Secretary of State Harris, in my view,
was terribly treated by the press, unfairly. The Florida Supreme Court was terribly treated in the
latter days by the press in this case. Many of the functionaries at the local level in my view were
terribly treated by the press and my underlying notion here, at least so far as I could tell from what
I was observing, all of these people were doing their dead level best to do the best job they could to
employ the law as they understood in that particular situation. All the allegations that were being
made about them in the worldwide press, I suppose from time to time, I thought was simply skewing
and besmirching the process unnecessarily. I think the statutes of Florida have been unduly treated
with undue unfairness. In that regard, I do think that the statutes, the state officials, and the courts
- especially the Supreme Court of Florida got misled by a lot of lawyers in terms of the law and
the application of the law. Steve Zack was part of that, Dexter Douglass was a part of that. Certainly
Barry Richard was part of that and got things all confused and unnecessarily in my opinion. That was
not a justification to besmirch it seems to me the system. In terms of our system in Florida, I'm
really proud of the way it worked. I thought it worked swell. That then leads me to the question or
to the conclusion, to this question: was there an invidious actor, that is, was there an actor in the
whole process that was operating from the position of a self-serving position to achieve an outcome,
and the answer is yes. And that was the United States Supreme Court. Mr. Tushnet told us at lunch
and I agree with him completely. The decision of the United States Supreme Court was to elect
Governor [George] Bush as the President of the United States and that was the effect of it. So, if
there was any invidious unfairness in the process in my view, it was from the United States Supreme
Court. May I say this, though, although I'm a registered Democrat, I'm not a yellow dog Democrat
as Dexter is and I guess my friend Chesterfield Smith is. I'll cross the line from time to time. I didn't
like either one of the candidates very much, to be frank with you. I don't come to that conclusion,
I don't think, based on the outcome, Ijust base it on the basis of what happened. That's what I have
to say, Mr. Chairman.
Scher Thank you very much, Professor Little. Joe, if it wasn't obvious to you why I
wanted you on this panel, I'm sure it's obvious to everyone in the room. Thank you very much. Next,
I'm going to call on Senator Meek for his remarks and comments on the issue of fairness in this
Meek Thank you so very much. I'm glad to be here. I want to thank my good friend and
state Representative [Ed] Jennings back there who kind of poked me and got me here and, Dean
Mills, I'm glad to be here and glad to be serving on this panel with you and so many of our
distinguished panelists here. I first want to say I've haven't wrote a book since everybody up here
has pretty much written something but I can tell you definitely watching the last 24 months and
since Nov. 7t of 2000, there'll be a lot of book writing going on. Meanwhile, some of us that are
"still in the struggle" will be busy making sure that people know how to vote and when to vote come
Nov. 3r of 2002 and the primary elections before it. I guess I would start by saying that one of the
panelists I couldn't wait until lunch was over and the earlier panel the panel, I believe with the
supervisor of elections on it there was a commend made that the people that appeared before the
governor's task force, there were very few reports of disenfranchised voters. Well, the call of that
task force wasn't for people who felt disenfranchised to come before them, it was those individuals
who wanted to give ideas for voter technology. The proper task force or commission to go before
is the U.S. Commission on Civil Rights [ and it] has been very active in this state, I must add, in the
last 24 months. One, with the rollback of affirmative action in some areas. Two, with this election.
I'm looking forward not only to see the voter technology task force, but I'm looking forward to
seeing the U.S. Commission on Civil Rights task force. I think that when we look at the fairness
issue, hear the word African-American quite a bit. I wonder why. I was just joking with Mr. Zack
down at the end of the table at lunch and I kind of shook my hands like this I don't know if he
picked up on it, but it reminded me of the voting machines that were in the African-American
community in Miami-Dade County. They were oldest machines the Supervisor of Elections had.
We wonder why we look at this kind of disparity or this kind of ghost thing and we talk about
discrimination and we talk about the next thing that comes after that, "Well, where's your proof?"
And we know that one of the hard things to do, especially when it comes down to discrimination in
any venue, is proof. We look at the issue that took place just up the road in Perry. Over this past
weekend, I was in Washington D.C., picked up The Washington Post and read a lawsuit about ten
African-American employees of the Christian Coalition filing suit because they have to walk in
through the back door of the office in Washington, D.C., in segregated break areas. One may say,
well, that's... how that could be? Well, how could so many individuals of Haitian descent and so
many individuals in Palm Beach County that are elderly and so many other individuals throughout
Palm Beach County, Mexicans and what have you felt disenfranchised by the vote. Why are one out
of ten ballots thrown out in Miami-Dade County that by coincidence happen to be from African-
American precincts? I say all of that to say that I think it's important, I think we have a great
opportunity here on a state level. I think we have a great opportunity on a local level. When I hear
state leaders saying, "Well, the election process is a local process; it's not necessarily a state
process." Well, [as] one that has studied 1964-1965 Voting Rights Act, the 1964 Civil Rights Act
[Civil Rights Act of 1964, 42 U.S. Code, Section 2000 et seq., prohibiting denial of rights or
opportunities based on race, color or sex in provision of public accommodations, education or
employment], when you look at those kinds, of the devolution of how would you say protection
and oversight, you look at disenfranchisement and you start thinking about that. Local control sounds
good. We use it a lot. But, nine times out of ten it's not for the betterment of the application of equal
opportunity and resources on a local level as it relates to the have nots. I'm going to end my
comments on the state has a great opportunity. You've heard the task force chairman say that the
precinct-based optical scan is very, very important for many reasons. One, it will make sure that
every Floridian knows that their vote is actually tabulated correctly before they leave the precinct
versus after the fact, reading the news account that so many ballots were thrown out. They can
honestly say, "Well, mine wasn't. It was correctly filled out." It brings a political question into play
because Tony Hill and I, we constantly say, I don't know who said it, but we kind of picked up on
it. So that we don't have a fifth floor conversation while a majority of the people are standing in the
lobby "Let's put the cookie on the bottom shelf." I may say, by saying that some of the political
in the back are saying, "Well, if we put these precinct-based optical scan machines in the precincts
throughout the state of Florida and we're very fair about it, then that 105,000 or whatever the number
may be, their votes actually may be counted." What does that speak towards partisan politics? The
same thing happens with the overseas ballot. The same debate is going on. Well, let's move to an
Internet voting as it relates to the overseas ballot. Well, then the question of equal protection, since
that's kind of been thrown out there, where are we going to sit there? So, I think the opportunity is
making sure that we do something what is very uncommon. But we can do, I believe, in government,
is we can do common things uncommonly well is making sure that we have a level playing field to
make sure the votes are counted. I believe that if we let partisan politics play the role that I think
many would like to play in this process of fairness in voting, we're going to set ourselves back and
continue to be the laughing stock of the country as it relates to the spin that comes afterwards. I
would say that the optical scan machines will be very helpful. I would say that the integrity of the
overseas ballot and making sure that we can deliver those ballots earlier and faster to those men and
women in uniform, so that we can get them back with the kind of security that they deserve. And also
as it relates to putting aside the politics, making sure that we pass immediately the optical scan
money or appropriate those dollars as soon as possible within a piece of legislation that will release
those dollars immediately, along with voter education dollars upon signing of the Governor, instead
of waiting until June or waiting until the next fiscal year of the Legislature. That's what we're going
to be pushing for, and it's important whatever format or whatever procedural changes statutorily that
we make this session, that we do it as soon as possible. In this sessions, what you say an '01 issue,
then an '02 issue, because we're going to have to go out teach young, old, rich and poor how to vote
again. So, I'm hoping that we can move through this process, not worry too much about where the
proof is in the pudding. I believe in what Tony says and what other folks have said here on this
panel. What's done is done. You can forgive, but you'll never forget, and just move on from this
point on but making sure that folks are above board, and making sure that they do what the obvious
thing that they should do is make sure everyone has an equal opportunity of casting their ballot.
We'll get many recommendations and I appreciate this opportunity to be here due to the fact that this
will even crystallize even more how simple it is to do what we have to do here in Florida.
Scher Thank you, Senator. Thank you very much. Next, I'd like Professor Alan Agresti to
talk about some of the statistical work that he's done on some of these issues.
[Dr. Agresti's handout is attached]
Agresti Thank you, Richard, and Jon for inviting me. I'm pleased to be here. As the token
statistician today among all these lawyers and politicians. I guess, in my own terminology, I'm bit
of an outlier here but I hope not to send you in droves for the exits by confronting you with formulas
and lots of jargon. I had actually hoped to show a couple of charts to show you patterns of some
interesting things that happened in the election. We weren't able to project that here on this stage,
so I did prepare this short report that I hope most of you got. There's extra copies here if anyone
would like that. It's mostly just explaining a few of the pictures I'll talk about here today. A day
or two after the election I was watching CNN. I saw what all of you did this discussion about the
butterfly ballot and about in particular whether the [Reform Party Presidential Candidate Pat]
Buchanan vote was abnormally high, based on what would normally be expected in Palm Beach
County. As a statistician, this got me involved in this process of looking at the election. Although
I have to admit I had another motive. My mother-in-law lives in Palm Beach County and she hopes
very much she didn't vote for Buchanan. Anyway, I downloaded some of the data off the Internet
as many other statisticians did a couple of days after the election, and look for patterns that could
suggest about whether the Buchanan vote was an abnormality. For instance, if you have this handout
and look at Figure 1 on the third page, this is the type of thing many statisticians did to consider the
Buchanan vote. We looked at various other votes that could project how well Buchanan would do.
On this plot, I took the pro-vote of the Reform Party four years ago and plotted the pro-vote by
county against the Buchanan vote this year. Each dot on this graph is a county and on the horizontal
axis, you see the vote that Perot received in 1996. On the vertical axis, the number of votes in that
county that Buchanan received. I've sketched a line that goes through 66 of the 67 counties that
show to a pretty to close approximation Buchanan got 3% of the votes that Perot got. You'll see one
dot way above all the rest and, in fact, that's Palm Beach County. In Palm Beach, Buchanan received
3,407 votes, the indication by this line would be somewhere around 600 or 700 as opposed to 3,400.
Of course, Buchanan was right next to Gore on the butterfly ballot. All the claims were that Gore
is the person who really suffered from this, if in fact even half of those votes were intended for Gore
that cost him the election. Anyway, similar plots like this for other candidates all show the same
trend. One that wasn't discussed, by the way, was that for the Socialist Party candidate. If you look
at the butterfly ballots that went Bush and Buchanan, then Gore. The next on the other side was the
Socialist Party candidate, and similar things happened with the vote for that candidate. It was an
extreme outlier; about 300 higher than the 50 or so that might be projected by these sorts of
statistical methods. So, Gore may well have lost a few hundred votes, not only to Buchanan, but to
the Socialist Party candidate because of that butterfly ballot. Incidently, we all know that in Palm
Beach County there is also a lot of discussion about the over vote because of the confusion of the
ballot. As a layman, to me what was shocking was to see what an extreme problem this was in many
counties, much more so, for instance, in other counties than Palm Beach. In Duval County
something like 7.5 percent perhaps caused by the two-page ballot in Duval County in some of the
heavily African-American precincts, apparently about a third of the vote was thrown out according
to an article in The New York Times. In Gadsden County, a small county up in the Panhandle of
Florida, which used optical scanning, over 10% of the votes were thrown out and that's by the far
the most heavily African-American county in Florida. So, over voting certainly was one of the key
stories of this election. When I think back of watching the newscasts of CNN, one of the items I
remember the most is James Baker standing up many times and saying, "Well, the votes have been
counted and recounted and recounted. Why are we going through this process?" And in the case
before Judge Sauls in Tallahassee, the Gore legal team tried to show that really the votes weren't all
counted and the next graphic pertains to that. Look at the 2nd figure which was shown by the Gore
legal team. Nicholas Hengartner, a statistician from Yale, prepared this and a couple of us here at
University of Florida did some analyses together with him to check his work and to see if these
discrepancies still stood when you adjust for a socio-demographic factors and they did. This shows
the rates of ballots that were under votes, the votes that, for instance, James Baker claimed people
just really had no preference for president and didn't vote. If that's the case, then in the punch card
ballot counties you can see there's five times as many non-votes as in the optical ballot counties.
Well, you've all heard the discussion earlier today about the problems with punch card ballots and
they appear to be on the way out, but there certainly was strong evidence that about five times as
many votes were not counted in the counties that used punch card ballots, Palm Beach was over 2%.
If you take a look at the counties that used the punch card ballot, those were Bush as well as Gore
counties. That's the third figure. The third picture here takes a look at only those counties that use
the punch card ballot and on the horizontal axis, it shows the percent vote for Gore and on the
vertical axis, the actual number of such under votes. As you can see, by far the three largest counties
using the punch card ballot were the three that happened to be the most favorable to Al Gore. So,
naturally, it was in his interests to have those recounted. So, the punch card ballot obviously cost
him a lot, looking at that. On the other hand, if you look at this picture, there are a lot of small
counties that used the punch card that had a majority for Bush. If there truly were a recount of all of
these ballots that did not go through the first time, it's hard to tell what would have happened.
Looking atjust these county totals can be a bit misleading because factors that were associated with
the under vote and over vote mean that even in counties that went for Bush overall, there could have
been, of course, more votes for Gore and Bush in such a recount. Apparently that has happened in
Orange County for instance. Professor Little asked about who won the election and I'm sure we all
have opinions about that. We statisticians, I think for the most part, think it was a statistical tie. As
was discussed this morning, the margin of error between the two candidates was so small compared
to the amount of possible error in counting the ballots and error because of the under vote, votes
never recorded and so forth. At this stage, it's hard to tell. There is, of course, this process
undergoing now that by the NROC of inspecting all the ballots that will tell us under various
circumstances which ballots would have gone in which direction and we may know more then. I'm
sure a lot of you saw The Miami Herald story about what would have in a flawless election that took
votes by precinct that were under votes or over votes and allocated them in the same percentage that
the candidates received. According to that, if you allocated all of them, I think Gore ended up ahead
something like 30,000 or 40,000. Obviously, there are the biases there. The people who are not
counted aren't a random sample in statistical terms of all voters. There are biases of systematic
form. It may be in Palm Beach County an overwhelming majority of votes that weren't counted
should have gone to Gore. Not the same percent that he received in the general election. It's tough
to tell. If it ends up when we take a close look at all of these ballots that there is the order of
difference that The Miami Herald story projected, then I think a lot of people will feel that Gore
really did win. If it stays around the magnitude that it is now, it is really a statistical tie. I think it's
too tough to tell. Thank you.
Scher Thank you, Alan, very much. Mr. Steve Zack has been kind enough to do double
duty today and maybe you'd give us a few observations on your take as you were such an insider in
Zack Thank you, Richard. Professor, where were would you when we needed you? We
could have used that testimony, and mater of fact, it probably shows in some measure why this case
was as difficult as it was when you had just days to prepare. It was touched on briefly in the first
panel that there was one day that I was in the trial court, the third DCA [District Court of Appeals,
Third District, State of Florida, Miami], and the Florida Supreme Court within 24 hours. There was
a day where the third DCA accepted our briefs at five o'clock. The other side was given two hours
while we waited in the lawyer's lounge to see their briefs. We had additional exhibits delivered by
car. We saw their briefs. We were given one hour to prepare our response and another hour later the
opinion was issued. I know that's a common experience for all of us. In fact, it won in the district
court of appeals. So, it was an unusual time. Tony, if you're waiting to get a call from the lawyers
that made all that money, I'll give your phone number to the Republican lawyers who handled this
case. It was important that this type of discussion occur because there were a lot of things that were
not fair. I'll try and not get emotional, but I believe that we all suffer from our own emotions about
it and we should. This was the most important position in the world. If you're not going to get
emotional about that, what are you going to get emotional about? I would say that probably the most
unfair thing that has occurred has yet to be talked about today, and that is the attack on the
independence of the judiciary. There's probably nothing in the long term that has a greater import
on our country and what occurs in the future than that attack. I will say to his great credit, whether
you like Al Gore or not, that the Vice President, nor anyone on his legal team, ever attacked any
judicial opinion. Period. Why? Because there was more to what was going on than just the
presidency. We had grounds which has been discussed in other forums to potentially recuse at least
one judge. We didn't do that, and the Vice President was adamant about that because of his strong
view of the importance of the independence of the judiciary. Thejudiciary in Florida, make no doubt
about it, is under a severe attack and that is a program in and of itself, and we don't have time for
that today, except to say that no program should conclude without that being discussed and I see
Justice Kogan is going to be speaking later on and I'm sure he'll have more remarks on that. Let me
continue on as far as the issue of fairness. What could be more unfair than the Dade County
canvassing board being shut down by a mob? The "rent-a-mob" which is how we always refer to
because it was people from out of town. These were not good Dade County people who just woke
up in the morning and decided something was wrong. These were folks that were bussed in and came
from all different parts of the country, came for one purpose, and that was to shut down a legal
process of counting lawful votes in the United States of America. That's not what we do in this
country. It was totally unfair. A witness was put on during the trial by the Bush side, and I'm sure
they didn't know about this when they put them on as an independent expert. We just happened to
have a picture of him in the sit-in, chanting and yelling to close down the vote. Actually, we don't
know what he was saying. He was sitting there and says he was just sitting, just by accident, I guess.
But the fact is that this was no accident by any means and I argued the case before the canvassing
board. The canvassing board was going forward and when this mob came up. I was told by members
of the canvassing board they couldn't get from one floor to the other to count votes. That's unfair.
Professor, you and I for 30 years have disagreed on may things since I was your student, you know,
we respectfully disagree, but there's one thing we can disagree about and there's one thing we don't
disagree about. And the one thing that we will not ever disagree about is that cannot be fair. I believe
that the quote...
Little Well, I don't know, Steve, about fair. Did you call in the sheriffs to remove them?
If in fact, the government refused to perform its duty in permitting the canvassing board to do its job,
then you've got the failure of the government to act as it should in accordance with the law. But
fairness, what do you mean? The people who were protesting were attempting to reach a political
Zack I assure you that everybody who could be contacted was contacted on more than one
occasion. But when we talk about fairness, you know, let's look at those kind of issues. There's the
question of: Was there a fair coverage of the disenfranchisement of black voters? The answer is: No.
Anybody who looked at the news reports and we looked at them every day, every minute of the day,
we had no choice, there were TV sets all around us. That was not discussed. Now I will tell you,
many of you know I'm a Cuban American. With a name like Zack you'd wonder about that. But my
father's an American and I came to Miami in '61. Give the Hispanic media credit. You know, the
Hispanic media and their listeners in Florida, not nationally, but in Florida, are 80% Republican.
They did seek out a spokesperson. I did speak to each of the networks and they ask questions and
they wanted to know the Democratic side. So there was some fairness in coverage. That is not an
excuse for the lack of fairness in coverage in other areas and those people who are upset about it are
rightfully upset about it and I don't think the last chapter has been told on that story. There was no
question that each voting machine is numbered. Make no doubt about it, that they know where those
machines go and the worst machines were in the poorest areas. Now if you are in Dade County, you
have, in some instances, 100 people and five referendums to vote for in five minutes. I mean, it's
incredible. Anybody, particularly a first-time voter, a person who is not particularly fluent in
English, a person who is challenged for any number of reasons that would be given protection under
the ADA or other laws in the United States go into the booth, and they rightfully get panicked.
There is nothing that says that...by the way, there is big red letters that says you have five minutes
to vote. There's nothing that says you know if you don't vote correctly, go and get another ballot.
One of the real advantages of these optical scanners, by the way, it gives you three times to make
mistakes and it kicks it out. There's a constant process by which you can be advised of your
mistakes. So, hopefully, that will go into effect. I would say to you, that overall, no, I think that
there was a lot of unfairness in the election. I have yet to hear one person who voted for the Vice
President who felt the result was fair. I want to find that person. I want to find that person. Okay?
Just once and I haven't found anybody who voted for the Governor, now President, Bush who didn't
think that the Supreme Court opinion was a brilliant piece of legal craftsmanship. You know, I said
earlier, where you stand depends on where you sit, and you've heard in a lot of different ways. But
at the end of day, I think history will judge this process without the heat of the moment in a
dispassionate way as patently unfair.
Scher Thank you, Steve, very much. What I'd look to do before I ask Senator Meek
wanted to make another statement We're starting to run out of time, so I'm going to ask those of
you who might have a question or two or to go ahead and go up to the microphones and frankly, I'd
really just like people to come who haven't had a chance earlier, but Senator Meek said he had a
comment to make.
Meek Real quick, I just want to mention when I talked earlier about the politics that play
a role in here. Professor, one of the reasons why the police didn't step in because it happens to be
the Chief of Staff of [U.S. Representative] Tom DeLay, happened to have been two members of
Congress, happened to have been two members, newly elected, to the Florida Senate, and members
of the Legislature also a part of that. So you get a little bit more latitude and when a police officer
sees these kind of individuals, they don't necessarily run and do like you may see on COPS,
arresting these individuals and thinking there are no repercussions or career decisions that are made.
That's why I go back to, we can pull the politics back and do the right thing you follow me, like
you said, pay for the voting machines, put all of that stuff up front. The politics speak against that
happening in a perfect world because someone may be very well making a political career decision
if the numbers don't add up, then it doesn't happen the way it should happen. So, I just wanted to
come in on there because if the students were out there by themselves with no congressional ID in
their wallet or you didn't have elected officials, the police probably would have moved in and
removed those individuals from there. Not to be argumentative but to just point as a piece of
Scher Thank you very much, Senator. I'd like you to address your question to a particular
person and if I may just ask you to be brief with your question. Thank you.
Questioner Thank you, Mr. Chair. I just wanted to say I really enjoyed the program this
afternoon. I'm sorry I wasn't here this morning, so I don't know if these were issues that were
covered by any of the panelists this morning. I'm going to ask the question and whoever thinks it's
probably most appropriately addressed to them could probably respond to it. I think that there has
been a number of panelists who have dealt with this issue of fairness as if we are talking about
something that has occurred once or perhaps rarely that will probably never reoccur. I just wanted
to point out that there has been a history of similar efforts that have taken place in other elections
around the country that had the same character as some of these voters suppression efforts that have
taken place in the state of Florida in this past election. For example, in 1981 there was an off-year
election that took place in New Jersey where there were posters that were posted around polling
places telling potential voters that there would be a problem if they voted and they weren't registered
and you will be charged, you can be arrested, that drove several people away from the polls. There
were armed vigilantes that were posted particularly in minority neighborhoods in that election.
There was an effort to get people who were supposedly felons off of the voting rolls in that election.
And, as I should say, these efforts were directed by a group that was called the National Ballot
Security Task Force. The phone for the National Ballot Security Task Force rang in the Republican
National Conference. It rang in their office in Washington, D.C. As a result of that, the Democratic
Party sued the Republican Party and alleged them with tampering with the voting efforts in the New
Jersey gubernatorial election. There was a consent decree as a result of that lawsuit, a consent decree
that was invoked by the Democratic National Party in both the elections in Texas and in Louisiana
in subsequent years....In the election in which Christine Todd Whitman...
Scher Sir, I'm sorry. Can Ijust ask you to focus on a particular question? Otherwise, we've
got a couple of people behind you.
Questioner The question that I have is: I would like to hear a response to these continued
efforts to keep African-American and Hispanic and other voters who are deemed as being pro-
Democratic from voting and let's deal with this as if it is a consistent problem. Thank you very
Scher Mr. Hill, do you have perhaps a response to that? Anyone else?
Hill I don't.
Meek I don't want to be Mr. Chatterbox here. I see the Senate President Toni Jennings
there. They gave me a shirt in the Senate, said, "You're talking and you can't shut up." But, that's
America. They gave it to a couple of senators. I shared that honor last year. But let me just say this.
Professor [Ken] Nunn, this is very interesting because this is something that I see as a pattern of
people cloaking disenfranchisement in party affiliation, and they're not necessarily what I may say
that are just outright what one may call "racist", but those individuals that cloak themselves and say,
"Hey, that's not our position, that's not our caucus position, we don't want to correct that. Because
if we do, the present situation that we enjoy may be disrupted, even though it's the right thing to do,
we shouldn't do it" and so, that's the reason why you have members of the minority community
feeling so disenfranchised. You have individuals, "Well, I'm, I'm..." "Some of my best friends are
black", and you hear these kinds of things and you know in their heart that they feel that way but in
a subconscious way they're still disenfranchising these individuals based on party. That's something
that we're going to have to deal with, and I think that's a bigger part of the problem than racism or
sexism or any of the "isms" that are out there that we must address that and shed light on that in the
media and the people in academia are going to have to do the same. Thank you.
Questioner- My question is if anybody on the panel is unbiased, thinks the Secretary of State
and the Supreme Court of the United States would have acted with the wonderful speed they did to
make this election official if Mr. Gore was ahead by 450 votes? That we would have gone through
all of this? Do you think they would have had any...?
Little I think the Secretary of State would have done the same thing she did, I think the
Supreme Court of the United States would have never taken jurisdiction of the case. That's what I
Questioner I'd like to just address that I think the biggest thing to come out of this is we
have a new definition of how elections can be made corrupt. We used to always have the image of
ballot box stuffing, that you add in more votes for your guy to make the outcome come out different.
Now we've seen there's just almost a built-in process maybe by circumstance, maybe by intent,
maybe just the way it is, that segments of the community are counted less and that the actual
outcome of depriving other people's votes from being counted or keeping them from voting from
one way or the other is the same thing as box stuffing in the opposite direction, seeing the results in
West Palm, they tried to explain away that so many votes were tossed out as being acceptable
because, well, we tossed out that many last time, too. This is the thing that showed the system to be
broken in many ways. Professor Little, when you say you think the system works well, was that
because that's acceptable to you? I don't understand that. I was mystified.
Little I didn't say I thought it worked well. I said I thought it, we performed well under the
stress that we were under. Let me ask you this, how many people here today have on dirty
underwear? How many of you don't have matching socks? How many of you remember when Steve
Zack took that voting machine and he shook chads all over Judge Sauls? How many of you
remember Challenger blowing up? How many of you have been in a submarine that surfaced under
the bottom of a ship? For crying out loud. All of these are circumstances in which you had people
who were devoted to doing one task under very specialized circumstances and they blew it. Here
we had a system of thousands of people, trying to work together collectively to do a task, and, by
George, I don't think there's any evidence to impugn the system. Can it be made better? Yes.
Zack For the record, we tried to get those chads all over Judge Sauls.
Hill I wanted to say this to you, though. As Senator Meek and I traveled around the state
and afterwards, there were a lot of situations where African-Americans that were running -
especially in small counties running for supervisor of election, running for sheriff, or what we call
constitutional officers at the local level that could not get a recount of the votes unless they paid
1,400 dollars, unless they paid 3,000 dollars. We in Florida spend somewhere in the neighborhood
of $50-70 million teaching people how to play the lottery but we only spend $7,000 teaching people
how to vote. Just think about that for a moment. $70 million to promote the lottery. But we're
supposed to be a Christian state. Now, where's the Christian Coalition outcry on that? But what you
are saying is that and the reason why African-Americans will never accept Bush as the President
because he was selected; he wasn't elected, is those reasons that in the Haitian community and we