Interview with Mac Stipanovich, June 10, 2002

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Interview with Mac Stipanovich, June 10, 2002
Stipanovich, Mac ( Interviewee )
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Florida Election Project Oral History Collection ( local )


This text has been transcribed from an audio or video oral history. Digitization was funded by a gift from Caleb J. and Michele B. Grimes.

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Samuel Proctor Oral History Program, Department of History, University of Florida
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FEP 22
Mac Stipanovich

Mac Stipanovich begins by listing various political campaigns he worked for prior to the
2000 election (page 1). He describes how he became involved with Katherine Harris
and her campaigns for State Senate and Secretary of State (pages 1-2). Stipanovich
recounts his first contact regarding the recount (pages 2-3). Stipanovich decides to get
involved in the legal contest for the election and helps find a law firm to represent
Katherine Harris (page 3). He describes his job giving legal and political advice (pages
3-5). He speaks about the initial order to recount the votes, and how that order was
interpreted by different counties (pages 5-6).

Stipanovich gives his initial impressions of the recount process (page 6). He offers his
analysis of how each campaign made various decisions regarding the recount process
(page 8). He considers the public perception regarding Katherine Harris' partisanship
(page 9). He argues that the Republicans won the public relations battle and this
influenced Gore's decision-making on various issues (page 10). He offers his
interpretations of the various legal decisions and interpretations of the recount order
(page 11). Stipanovich understands how some may have been confused by the
butterfly ballot, but mentions that most voted correctly in Palm Beach County (page 12).
He believes machine counting to be more accurate than counting by hand (page 13).
Stipanovich mentions Palm Beach County's request for an extension on the recount
deadline (page 14). He interprets Harris' order regarding the recount (pages 14-15).

Stipanovich mentions the decision to send observers from the Secretary of State Office
to the counties that performed recounts (pages 15-16). He speaks about Kerey
Carpenter's activities in Palm Beach County (page 16). He recalls his strategy for
declaring the Palm Beach recount illegal (page 18). Again, he offers an analysis of the
democrat strategy regarding the recount and subsequent court cases (page 19). He
details how the various counties dealt with Harris' order regarding the recount deadline
(pages 20-21). He reacts to the Florida Supreme Court decision on Nov. 17 (pages 22-
23). He answers questions about the counting of absentee military ballots (pages 24-

Stipanovich offers his thoughts on the case filed in federal court by the Bush campaign
(page 27). He offers his reaction and opinion on the Supreme Court decision (page 28).
He assess the impact the decision and waiting process had on the nation (page 30).
He mentions the final Supreme Court decision (page 31). He speaks about the Election
Reform Act and voter turnout(pages 33-34). He mentions the findings of the Civil Rights
Report and considers various reports of discrimination during the voting process (page
35). He offers his first impression of the Flori9da campaign and what impact he thought
it would have on the result (page 36). Stipanovich answers questions about Florida's
services tax and how that issue affected Governor Martinez's administration (page 37).
Finally, he speaks about the resurgence of the Republican Party in Florida (pages 39-

FEP 22
Interviewee: Mac Stipanovich
Interviewer: Julian Pleasants
Date: June 10, 2002

P: This is June 10 and I'm in Tallahassee, Florida. I'm Julian Pleasants and I'm
speaking with Mac Stipanovich. Would you give me just a little bit of your
background in the political party? I know, for example, you worked with Bob
Martinez [Florida governor, 1987-1991; mayor of Tampa, Florida, 1979-1986]
and helped Jeb Bush [Florida governor, 1999-present] in his campaigns for
governor of Florida.

S: I originally started putting out yard signs for Bob Martinez when he was running
for mayor for the first time in 1979 and kind of segued from there to doing
position papers for him, became his travel aide. After he was elected mayor of
Tampa, I kind of assumed his responsibility of doing his outside politics with like
the National League of Cities, the Florida League of Cities and that sort of stuff.
[I] ran his reelection campaign in 1983. He and I switched parties to the
Republican Party in 1984 after meeting with President [Ronald] Reagan [U.S.
President, 1981-1989] and Ed Rollins [Republican political strategist; presidential
advisor to Ronald Reagan; campaign manager for Ronald Reagan, 1984; political
commentator, CBS] and Lee Atwater [political strategist; chairman of the
Republican National Committee, 1988-1990] and Paul Laxalt. I was executive
director for Reagan-[George] Bush [U.S. President, 1989-1993; U.S. Vice-
President, 1981-1989] in Florida in 1984 and immediately following that I was the
director of Martinez's successful campaign for governor. I was his chief of staff
for a year in 1987. We lost to Lawton Chiles [Florida governor 1991-1998 (died
in office); U.S. Senator from Florida, 1971-1989] in 1990. I basically directed the
[Jeb] Bush campaign in 1994, but Chiles beat us again. I was not active in an
operational way in the 1998 campaign. I just gave advice here and there, when

P: Talk a little bit about election day 2000. What was that day like for you?

S: It was a fairly ordinary day for me. It wasn't a big deal, I wasn't doing anything
special at the time. I voted, of course. At the time, probably as much out of
boredom as anything else, I didn't have a boat at the time, I was pursuing a
master's in medieval history at FSU [Florida State University], so I was probably
either in class or thinking about going to class or doing something for class, so
election day 2000 was not a big deal for me.

P: When did you first get involved with the Secretary of State Katherine Harris
[Florida Secretary of State, 1998-present; Florida state senator, 1994-1998]?

FEP 22
Page 2

S: One of my colleagues, Jim Magill, was the director of Senate campaigns for the
Republican Party from 1994 tol996. One of the candidates that he helped, on
behalf of the party, and to whom he introduced me, was Katherine Harris down in
Sarasota. She was running against [Florida State senator] Jim Boczar.

P: This is for the state Senate?

S: State Senate. When she came up here after she was elected, I lobbied her, of
course, on a number of issues and got to know her that way. When she decided
that she wanted to run for Secretary of State because Sandy Mortham [Florida
secretary of state, 1995-1999] was going to be on Jeb's ticket as Lieutenant
Governor, everybody thought at the time, she asked me to help her. I said that I
would, and so did a lot of other people because it was going to be a non-
incumbent race. But when Mortham withdrew from the Bush campaign and said
she was going to seek reelection, most of the people here in Tallahassee
decided that discretion was the better part of valor and they were no longer very
supportive of Katherine. I told her that I would help her and I kept my word and I
did help her. I was with her on election night, our families were together, and I
saw her on and off and helped her, gave her advice when she asked me while
she was Secretary of State.

P: When did you actually come to her office? Was it the day after the election?

S: No, it was on Thursday. I think the election was the 7th, a Tuesday, and I was in
Latin class on Thursday and my phone vibrated. I went outside and it was one of
my partners, Ken Sukhia [attorney for George W. Bush in 2000 election; former
U.S. Attorney], [who] was over in Gadsden County representing the [George W.]
Bush [U.S. President, 2001-present; Texas governor, 1995-2001] campaign on
recount issues. He took exception to and did not like some of the tactical
decisions that the Bush campaign was apparently making about whether to
protest these types of ballots or whatever, and he was, in effect, appealing, so he
wanted me to call somebody. I made a call to somebody and they said they
would look into it, and then they asked me what I intended to do. Was I going to
sit in Latin class parsing verbs or was I going to get into this fight? I said, well, I'll
help. I said, where am I needed? They said, Katherine Harris, as I understand,
probably needs help. So I called over to Katherine's office and I got Ben McKay,
her chief of staff, a young guy I know fairly well. I said, Ben, could you all use
help? And he said yes. So I left school and went over, went into the conference
room where they had it kind of set up as a war room. Adam Goodman [political
media consultant] was there already.

P: He's in charge of public relations?


FEP 22
Page 3

S: He'd done her media on her statewide campaign and I knew him, and he was the
only outsider. Katherine, at the time, didn't even have a press secretary or a
communications person. She had some good solid professional staff in terms of
Clay Roberts [director, Florida Division of Elections], who's the director of the
Division of Elections and Debbie Kearney [General Counsel, Florida Department
of State], who was the general counsel, was confident. Ben McKay was a
hardworking, bright, young guy, but she didn't have anybody on staff who, to use
the old phrase from the Civil War, who'd ever seen in the elephant. So I went
over there to help them. All the media literally from world was outside trying to
tear the door down, and they were unprepared for that.

P: I understand Clay Roberts was really just beginning this job as well?

S: I don't know when Clay got that job, to tell you the truth. I don't know how long
he'd been director.

P: Who decided to hire Joe Klock [attorney representing Katherine Harris during
2000 election]?

S: We had a number of conversations and meetings. A number of large law firms
were conflicted or tainted for several reasons. For example, mine was tainted
because we were already representing the Bush campaign in a number of
counties on recount issues. Holland and Knight was conflicted because I think
they represented some of the big media companies, particularly the broadcasting
industry. We did contact a retired member of the Florida Supreme Court who's at
one of the big firms and he declined to represent the Secretary of State,
primarily, I think, because they didn't want the controversy. He was certainly a
Democrat and probably, for his practice and his social life and stuff like that, just
didn't want the heat and the controversy. Steel Hector was, of course, on the list.
We knew the folks at Steel Hector Davis, both the lawyers and some of the non-
lawyers like Jennifer Gannol and they're a first-class firm. Equally because of
their qualifications and sort of by default, they were the choice.

P: Did you chose them because they were primarily a Democratic firm?

S: That wasn't a principal reason, but it didn't hurt. It gave the appearance of

P: When Joe Klock came on board, did he talk with you and Katherine Harris about
decisions that were made? How did the legal decisions get made?

S: Typically, they would come over and we would meet with them. We would
explore options, they would make recommendations, we would make decisions.

FEP 22
Page 4

There were obviously some tactical decisions that were made, without
consultation, by the lawyers because there were an awful lot of lawsuits in any
number of venues. Only one of them caused a problem. At one point in time,
they filed a motion in the Florida Supreme Court that was a fairly lengthy,
detailed motion, but among the reliefs they prayed for was a consolidation of the
cases here in the first DCA [District Court of Appeals] which was found, and that
any recounts be suspended until the consolidated cases had been heard here.
That made it look like Katherine was trying to use the court system to stop the
recounts, valid recounts, that were underway. We were pretty exercised about
that and had a come-to-Jesus meeting with them about that.

P: I talked to Joe and he said that people weren't real happy with that decision.
Didn't they file it late at night?

S: Yeah, there was a lot of stuff going on. They did a yeoman job and they had a lot
of decisions. They probably didn't give any thought to the public perception and
the political implications of that particular aspect of their motion. They're good
lawyers, that doesn't make them good politicians. I think they just overlooked the
possible impact of that.

P: Was that your main job? Were you more interested in giving them political advice
as opposed to legal advice?

S: I did not give legal advice per se, but because I'm a lawyer, at least I have a
degree and I'm a member of the Bar, I, perhaps more than some other non-
lawyers in our office, was suited to ask hard questions and question their
reasoning and say, why this instead of this? Why that instead of that? I did not
act as a lawyer, but probably more in the role kind of as a surrogate for Katherine
and as a well-informed client.

P: The argument has always been that whatever was decided in her office had been
communicated to her from Jeb Bush. What contact did you have with the
governor's office or Jeb Bush during this time?

S: This will probably not be very helpful for an oral history in Florida, but there are
three things that I've never been explicit about. One is, who I talked on Thursday
the 9th who said, get over to Katherine's office. The second is, if I was in contact
with the governor's office or the Bush campaign and if so, with whom and to what
extent, and I think I will stick to that. I think the universal suspicion is that I was in
Katherine's office to make sure they didn't go astray and that I was in
communication with the campaign or the governor's office or both, but I've never
confirmed that.


FEP 22
Page 5

P: I talked to Lucy Morgan [political reporter for The St. Petersburg Times], and she
thought that there was really not a lot of good feeling between the governor's
office and Katherine Harris.

S: I think that there had been some strains between those two staffs and, to some
degree, on issues. Some of it was cosmetics, [the] presentation between
Katherine's office and the governor's office. I think that's probably a fair

P: She said she looked very hard, at The St. Pete Times, and they had not found
any specific communications coming from the governor's office to the Secretary
of State's office.

S: That is true. Of course, they questioned all the public information available to
them, as did The New York Times and others phone records, e-mails, and
those sorts of things and were unable to uncover specific communications from
them. New York Times also requested my cell-phone records for November and
I wouldn't give it to them. But I think it's true that they were unable to discover
any specific [connection].

P: In Jeff Toobin's book, Too Close to Call: The Thirty-Six Day Battle to Decide the
2000 Election, Ben Ginsburg [attorney, represented George W. Bush in 2000
election] said he did talk to you on two or three occasions.

S: I did speak to Ben on two or three occasions.

P: What was the overall goal when you first got to Katherine Harris' office? What
was your strategy in the beginning?

S: My goal was to bring the election to an end. At the time I arrived, there was a
great deal of confusion. There was a great deal of speculation about how it all
might play out with recounts and all these sorts of things, whether people were
able to recount or not able to recount. Palm Beach had not requested their
written opinion yet and all sorts of things were going on. I guess, in a phrase that
I've used at the time that has been repeated in the media since, my principal
objective and my principle advice to Katherine was to bring the election in for a
landing, get it over with, finish it. Of course, from my perspective, I was not the
Secretary of State, I'm not the state's Chief Election Officer, my goal was to bring
it in for a landing with George Bush at the controls.

P: One of the things that comes up very early, and this is an automatic recount, but
the Secretary of State still has to send out a specific notification that the
automatic recount does take place. She did that, but did not specify in that order,

FEP 22
Page 6

as I understand, precisely what was meant by a recount. As you probably know,
eighteen counties just ran the cards, ran the totals, did not actually go back and
count the ballots again.

S: That's an interesting point. I was not aware of them participating in that, although
it makes sense to me, because there was a question in some people's minds,
[although] there wasn't a question in Clay Roberts's mind and in my mind, that
the manual-recount provision in the law, we believe, and I think it had always
been the position of the department, only came into play in the event that a
sample hand count gave evidence of a system failure, mechanical or software
failure. The court subsequently ruled that wasn't the case. I'm kind of circling
back in on your question. If you think about it for a minute, in a county where
they count ballots by machine and there's a whole separate procedure as to
whether or when you would count them by hand, if you were just going to do a
recount, what other way could you do it than by just running them through the
machine again?

P: Clay Roberts said, on June 22, 2000, that "checking the totals is not enough. In
order to do a recount, you should run every ballot through the machines again.
The Secretary of State's office believes this is the only correct way to conduct an
automatic recount."

S: Is that not what they did?

P: Some did, some didn't. Eighteen counties didn't. I talked to a lot of election
supervisors and they said they did not get any guidance from Katherine Harris as
to what they were supposed to do. As you indicated, a lot of counties
traditionally had just run the totals.

S: No, no. What I meant when I said that was, I didn't mean to just re-add the
totals. My assumption, if I were a supervisor of elections and you sent me a
notice that said [to] recount, would be not to re-add, but to re-feed the ballots into
the machine. That would be my assumption as to what a recount was. To the
extent that a county got a notice from the Secretary of State's office saying,
recount your ballots, and all they did was re-add the totals, I would think it would
be a little disingenuous of them to complain of the lack of specificity in the
instructions, that they probably ought to think themselves pretty dumb.

P: Eighteen out of the sixty-seven didn't do it, in terms of what we use as a recount.

S: My impression is, and I don't have the hard data that maybe you do, is that in the
counties where they did do the manual recounts, there were not significant
variances in the outcomes.

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P: As you know, chads will fall out and that sort of thing, but the numbers were not
very significant.

S: They didn't have to be very significant in this race.

P: Wouldn't take much, would it? The Democrats, of course, are going to ask for
manual recounts and they're going to ask for it in four counties. One of the
arguments is that [Al] Gore [unsuccessful Democratic presidential candidate,
2000; U.S. Vice-President, 1993-2001] is talking about how we want to count all
the votes, then it appears that he's really cherry-picking, he's just wants to count
in certain places, three major Democratic strongholds. What was your reaction
to the initial request for manual recount?

S: A lot of the timing, the sequencing, is already beginning to escape me, which is a
good thing you probably got here now. I think that when I arrived on Thursday,
those four counties had already indicated in some fashion, as early as that
morning, maybe [that] afternoon, that they were going to undertake test counts
that were potentially prefatory to hand counts. I, of course, thought the Gore
campaign was doing exactly what the Gore campaign was doing, which was to
try to count under-votes in counties where they would expect to do well, as
opposed to Sarasota County. I think there was a theory that they wouldn't ask
for a recount in Sarasota County, but they would in Broward County, because
you're going to turn up more Democratic votes in Broward County [than]
Sarasota County. I'm not sure that's true if you were test it empirically, because
my suspicion is that folks who vote incorrectly would have a greater tendency to
be Democrat than Republican in any event, in any county. The margins by which
that might be true might be greater in Broward County than Sarasota County, but
I would still expect there to be a disproportionately large number of Democrats in
any under-vote situation, even in Sarasota County. Obviously they wanted to
count the counties where they thought they would get the most votes. As for the
phrase, count every vote, and how that turns out to be inconsistent with the
request for recount in four counties, one of the things I think we all ought to be
careful of not falling victim to is this broad hindsight that assumes that there was
some strategy in place almost from the get-go that was only tweaked in small
ways as the fact progressed. That's not true, at least from my perspective, which
was up pretty close. There was never a strategy other than, for example on the
part of the Republicans, to keep them from counting and on the part of the
Democrats, to make them count. It was tactics every day. When the Gore
campaign asked for the recount in the four counties, they were going after
enough votes to win. When those votes weren't getting counted to their
satisfaction, they invented the phrase, which was a great media hook. There
was some inconsistency, but I don't think anybody really gave it any thought until

FEP 22
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the Supreme Court later said, well, you're not counting all the votes, you're only
counting some of the votes. But at the time, when the bullets were flying and the
smoke was obscuring the scene, it was all tactics, there was very little strategy.

P: I talked to several of the Democratic lawyers and they're getting together. Bill
Daley [campaign manager for Al Gore in 2000 election] and Warren Christopher
[U.S. Secretary of State, 1993-1997] don't know Florida, don't know Florida
election law, they really were sort of flying by the seat of their pants. The world is
watching and you're trying to decide what the best strategy is.

S: I'm not terribly critical of those guys. Their top leadership was from out of town.
In a sense, our top leadership was from out of town. I'm assuming that they were
relying on local knowledge, just as Jim Baker [U.S. Secretary of State, 1989-
1992; campaign manager for President George Bush, 1988] and Bob Zelnick
[professor of journalism, Boston University; author, Gore: A Political Life; former
television reporter] were relying on local knowledge here, relying on the ramian
right or perhaps relying on me, so I'm not sure that they were terribly
disadvantaged by that. I'm just not sure that Daley's and Christopher's heart
were in it to the same extent that Baker's or Zelnick's were.

P: Christopher leaves early, Daley doesn't stay the whole time, and everybody that
I've talked to has said that Baker was more of a forceful, effective presence.
How would you assess Jim Baker's contribution?

S: I think Baker did an outstanding job. I think he did what you would expect
someone of his stature [or] position to do, because he set the tone and then he
didn't interfere with the field officers. He let us run the fight, he let us scuffle. If
he thought that we were getting off-track or that the tone was wrong, he would, of
course, correct it. I think he did a marvelous job.

P: Did you talk to him frequently?

S: I never spoke to Secretary Baker.

P: Where was the central decision-making process going on? Was it in Texas?

S: No. Obviously, I think that probably Secretary Baker and Bob Zelnick and Bob
Albaugh was down here. I think the decisions about Florida would be made in
Florida, probably with some real bombing from 30,000 feet, in consultation with
Texas. I think the decisions about Florida were being made here in Florida.

P: That is interesting because having talked with the Democratic lawyers, it's
apparent that Gore made almost every decision.

FEP 22
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S: One, [that] is inefficient. Two, he was disadvantaged by the fact that he wasn't
here and didn't know the state. I think the people who could make a decision,
Secretary Baker or some of his primary assistants, listened to Ginsberg. He's
been down here a lot, for reapportionment and stuff like that. The guys who
could make a decision for the Bush campaign were on the ground here and they
were listening to the people who knew this state well. There wasn't a Bush
monolith, as some people might expect. Theoretically, for example, had I been in
communication with the Bush campaign, the Bush campaign might have been
overzealous in something they would want the Secretary of State's office to do
that I might have thought would actually harm the cause by publicly confirming
Democrat or public suspicions that she was not being evenhanded and being
fair. You might suspect that sometimes the Bush campaign conceivably would
have wanted to go to the top at some critical point in time. If you're going to draw
an analogy between the Secretary of State's office and the Bush campaign, it'd
be more like the United States and England rather than some American
command and some subordinate American command.

P: How much of a problem was it that Katherine Harris had been on George Bush's
election committee, had gone to New Hampshire and campaigned for him?

S: There, of course, was a lot of hay out of that, to the extent that this was, to a
great extent, a public relations and a perception war. That certainly wasn't
helpful. She did not look non-partisan and above the fray. The Democrats
probably succeeded to some degree in characterizing the appropriate role for
her. Katherine Harris is a partisan elected statewide official. The assumption, or
the supposition, that she should have no feelings or no opinions or no
preferences in a presidential race always struck me as being kind of odd. Bob
Butterworth [Attorney General of Florida, 1986-present] clearly had a preference,
and he was the state's chief law enforcement officer.

P: But he sort of backed off, he became more neutral, particularly over the military

S: Yeah, and I don't know exactly what that decision-making was. I suppose my
impression was formed of Bob's participation on the day that he, on his own
motion, issued a written opinion saying that you did not have to have a system
failure in order to do a manual recount. On that very day, if you went to the
attorney general's [web]site and wanted advice on Florida's election law, they
referred you to the Secretary of State's office because they had no jurisdiction.

P: And they went even further, said it would be a binding opinion.


FEP 22
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S: Exactly. I don't remember, I guess once I decided where he was, I quit paying
attention to any subtle changes in his position as the fight wore on.
P: As the fight did go on, the Democratic lawyers and the Gore people were very
disappointed in him. They didn't think he helped them enough.

S: Is that right?

P: Yeah.

S: Well, that's kind of like the Alex Penelas [Mayor, Miami-Dade County, 1996-
present] down in Dade County, where they're upset with him as well. When you
lose, no one helps you enough. I'm not saying their criticisms of the attorney
general or of Mayor Penelas are not valid, maybe those guys could've helped
them more. The analogy there may be akin to the one I gave you about
Katherine and the Bush campaign. Those guys were Democrats, partisan
Democrats, who cared about the outcome, but they probably want to throw
themselves under the bus to put Al Gore in the White House.

P: That's one issue that comes up. Over and over again, all the books I've read
have said that the Bush people were more loyal, more dedicated, more willing to
fight for his election than the Gore people.

S: I can't speak for the Gore people, but all I can tell you is that, as far as I was
concerned, it was a war to the knife. Loser leave town.

P: Was it a battle for public relations? Everybody, even the Democrats, will admit
that the Republicans won the public relations battle. How important was that?

S: I think it was critically important because in effect I guess I'm bad about military
analogies the public relations battle with Secretary Baker I think was so
effective, the votes have been counted once, twice, three times, and now again.
The public relations battle was, in effect, the air cover for the ground war, which
was the counting or not counting of the votes. Had the Republicans lost public
opinion, some of the things that were done in connection with the lawsuits or in
connection with the positions of the Secretary of State's office might have been

P: Do you think it influenced Gore's thinking or decision-making?

S: I think that it did. An impression I have [is] that at some point, the Gore
campaign, meaning the Vice-President I suppose, decided that if they could just
buy enough time, they would turn up enough votes. What he had to do was not
appear like a sore loser, that he wasn't a good American and he wouldn't take

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defeat gracefully; he had to convince people that it hadn't been a fair fight and he
deserved more time to get a fair fight. I think that kind of overtook them to some
P: His critics argued that he didn't fight hard enough. Bill Clinton [U.S. President,
1993-2001] said he was too easy, too concerned with how the American people
saw what he was doing, and that in fact, he should have taken a tougher stance
on the military votes.

S: Had I been him, and this is why I guess that I'm not an elected official and
certainly not a statesman, I would have done anything within the law to get in the
White House, on the assumption that I would have four years to make it right.

P: He mentioned to several people that he did not want to win a fight that seemed to
be that he had stolen the election because he was afraid he couldn't govern.

S: Well, good for him, I'm glad he felt like that.

P: In terms of a winning strategy, that doesn't seem very effective.

S: No, I think that if he wanted to win that fight he should have fought with all he
had. If he didn't think the presidency was worth his very best effort and he may
be right, he may be a better man than all of us, but I don't know, I'm not making
that judgment. But it certainly hampers your ability to win if you're pulling your

P: On Monday, November 13, Katherine Harris gave a legal opinion, stating that the
deadline for certification was November 14, in other words, she was not going to
change that. She also said that manual recounts would not be allowed and the
only way that manual recounts would be allowed would be due to a malfunction
of the machines and, later on, to some extraneous event like a hurricane, but the
law says only due to vote tabulation. That's up to interpretation. What did you
assume vote tabulation meant?

S: If you're referring to the statute when you say that, and I don't remember them by
heart, my assumption was that the position of the Division of Elections was the
correct decision after I had read the statute, which was that you could only
undertake a full manual recount if a sample manual recount produced credible
evidence that the machines had performed incorrectly, that they had failed to
count correctly. That's what I took tabulation to mean, that they didn't work, they
did not tabulate the votes correctly. Obviously, and of course I had a reason for
wanting to believe this, but I did in fact happen to believe it, I thought system
failure was a precondition to a manual recount.


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P: Of course, the Democrats argue why have manual recounts in the law if it's just
the failure of vote tabulation? If the machines did not read the votes correctly,
then an individual could go back and be more accurate. What would be your
response to that argument?
S: I suppose this is where we get into the subtleties where all the controversy
[arose], if the machines did not read the votes correctly because the machine
was malfunctioning, I would agree with them. If the machines did not read the
votes correctly because you can't read a frigging sign that's as tall as a barn door
telling you to check and make sure all your holes are punched correctly, then
that's a different issue. The machine didn't fail there, the voter failed to perform
his or her duty.

P: Judge Richard Posner [Judge, 7th Circuit, U.S. Court of Appeals; author of
Breaking the Deadlock: The 2000 Election, the Constitution and the Courts]
argued that's where the Democrats were wrong. They looked at the issue as a
legal issue, when the issue was really voter error.

S: That's right, that's my opinion. The under-votes that did not get counted, if you
assume that there were some significant number of Floridians who attempted to
vote in the presidential race and failed to do so, is because of voter error. They
didn't do what they were supposed to. Again, I wasn't in every precinct, but I
believe there are big signs there where you have punch ballots saying, before
you turn your ballot in, make sure they're punched through and the chads are off
the back.

P: Did you see that the butterfly ballot in Palm Beach was a major problem?

S: The butterfly ballot in Palm Beach could have made the difference, because in a
margin this narrow, anything could make the difference. It's kind of interesting, I
looked at the butterfly ballot in Palm Beach, and I have a dad who's eighty and a
mother who's seventy-three and a mother-in-law who lives with me who's
seventy-two and I can see how you can get confused. All I can say is [that]
apparently something like 98.5 or 99 percent of the people in Palm Beach County
understood the ballot.

P: 96 percent voted correctly.

S: Yeah.

P: They had no problem with that ballot.

S: Right, I think that's right. I don't think it was an optimum presentation, don't get
me wrong.

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P: No, it was a confusing ballot.

S: Yeah, it was confusing, but I don't think it was a conspiracy or anything like that.

P: When this comes up, your argument is that if a voter does not vote correctly, that
is an illegal vote. It doesn't count under any circumstances. Although Florida law
says that it's the intent of the voter. Can a canvassing board determine the intent
of the voter?

S: If you take that far enough, a lot of times what happens when courts are writing
decisions, and suddenly some glaring spotlight turns on a particular issue, you
reach in and you grab a phrase out of an opinion that's rendered in a totally
different context, that all that matters is the intent of the voter. If all that matters
is the intent of the voter, then you would count manually every election, because
those damn machines, I think, are designed to assume like a 1 percent error rate.
There's an assumed error rate in the engineering of the machines. If all that
matters is the intent of every single individual voter, you wouldn't use machines,
you would use people. I bet you'd get a bigger error rate than you'd get with a
machine, or at least a greater suspicion of bias. At least I'll speak for myself,
after watching them count votes in Broward County and Palm Beach County on
television, I'd feel much better, regardless of the outcome, that I'd gotten a fair
deal from the machine, which I think is why we went to machines.

P: Do you think machines are more accurate than hand counts?

S: I think the machines are more accurate, but even if they're not more accurate,
they're certainly less biased.

P: What about the over-votes? Over-votes don't really get talked about very much.

S: No, and that's an interesting situation. The [number of] Duval County over-votes
were just huge.

P: 9,000.

S: There was obviously something terrible that went wrong in Duval County. I don't
know this for a fact. The urban myth now is, and maybe you know the facts, that
many voters who were not accustomed to voting, primarily black voters who were
taken to the polls that day, were instructed to vote on every page and that the
presidential ballot was on two pages, so they voted twice in the presidential race.

P: Exactly.

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S: Again, how would you ever define intent, even taking the Supreme Court's
standard, on an over-vote?

P: Let's say you wrote in Bush and circled Bush, but you didn't fill in the little bubble.
If you looked at that vote, I think it'd be pretty clear that the person wanted to
vote for Bush. However, they didn't legally make the proper mark for that to
count. Should that vote count or is it an illegal vote?

S: That's an interesting question that I don't know that I've really given a lot of
thought to. [If the sample count revealed a system failure and there was a
manual recount, then that vote should count; but it should not be evidence of
machine failure in deciding whether to do a manual recount.] A classic case is
out here in Gadsden County where uneducated voters would vote for Gore and
then when it came to the bottom, it said, write-in candidate, they took that to be a
command and wrote in Gore and the machine kicked it out. Well, they counted
those in Gadsden County, and I guess, without being totally logically consistent,
if the preconditions for a manual recount had been met and you and I were on
the canvassing board and we came to a place where they circled Bush, wrote
Bush, but hadn't punched out the hole, I'd give it to Bush.

P: When Judge Terry Lewis [Leon County Circuit Court Judge, 1988-present]
makes his first ruling, Lewis 1, he says] that Harris must exercise discretion in
deciding to accept these late ballots. What did that mean to you and the
Secretary of State's office?

S: We have those two conflicting statutes that said "shall" and "may", and "may" was
the later statute. Basically what Judge Lewis said was, you have some
discretion, you have to exercise it, which means you have to think about it a little
bit and you need to have some reasons for thinking about it. The standard of
judicial review there, which the Supreme Court subsequently totally ignored, is
that she's entitled to a huge presumption that anything she does is correct, as
long as it's not arbitrary and unreasonable. What we did then was kind of an
interesting thing, it was one of Katherine's great contributions. We're sitting here
in a meeting that's actually in Ben McKay's office and we're saying, now we have
to decide whether Broward County and Dade County or whoever is wanting to
recount has good reasons for missing the deadline. Well, what are the good
reasons? Joe Klock and I said, we'll go out and we'll review the case law and
come back for your consideration with a set of criteria that might be applied. I
said, well, once we have the criteria, how will we know what their reasons are?
We're all sitting there just agonizing, our faces are all screwed up, Katherine
says, well, why don't we ask them? I said, I beg your pardon? [She said], why
don't we write them a letter and ask them what their reasons are? We said,

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geez, that's brilliant, we'll do that. We faxed them down a letter asking them, why
can't you finish your recount on time?

P: This would be by the 14th?

S: Right. And their answer was, because it's hard; we're a big county and it's hard.
That didn't meet any of Klock's criteria that Katherine adopted, so we said no.
P: Palm Beach County had something like 620,000 votes.

S: Let me give you an example. This is not as big a county, but when Volusia
County decided they were going to recount, they sat down, they started counting,
they didn't call anybody, they didn't ask anybody, they didn't need any advice,
they counted until they were done, and they were done way ahead of time. Palm
Beach County thrashed around like a fish out of water, complained, and moaned,
and took Thanksgiving off and never finished.

P: Plus they started, then they stopped, and then they started.

S: That's right. And then they ask us for a binding opinion. They knew what the
answer was going to be. We stopped them before they asked for the opinion
because we had already told them all what the opinion would be and they asked
us for it anyway and stopped themselves.

P: Let me go back a little bit to this "shall" and "may" issue. Again, Katherine Harris
says "shall" takes precedence, then Butterworth comes in and says "may" takes
precedence. I was talking with Judge Charles Burton [judge, County Court, Palm
Beach County; chairman, Palm Beach County Canvassing Board] and he gets
these two conflicting opinions and the question is, for him, who takes
precedence? Is it the Attorney General or is it the Secretary of State? Obviously
your answer would be, in this category, as indicated on his website, the
Secretary of State.

S: The Secretary of State, that's right.

P: But you can understand Judge Burton's confusion.

S: Well, but see, from Judge Burton's perspective, one was "shall," which Katherine
says is [November] 14th, no matter what. The other was "may," which means
Katherine can decide whether it's the 14th or not and she said it was the 14th. Our
position was under either "shall" or "may," you lose. What Judge Lewis said was
okay, but tell us why you made the "may" decision. We went back, developed
criteria [as to] what would be reasonable to make that decision, asked them what


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their reasons were. They didn't match the criteria, so we said, we meant no when
we said no before. It's the 14th

P: Was part of the criteria a hurricane or a power outage or something?

S: One of the problems we had was some institutional knowledge. The way that
second statute that said "may" arose was after Hurricane Andrew. We knew it
was intended to be a force-majeure provision, an act of God, that would prevent
people from going to the polls. If you were prevented from counting the votes
because the election was held and then the warehouse blew down, well, then the
Secretary of State's going to give you a bye. If the Democrats didn't have
enough votes in your county, we weren't interested in that.

P: Kerey Carpenter [assistant general counsel for the Florida Department of State]
was sent down to Palm Beach.

S: I think we actually sent "observers" to all four counting counties to provide them
with technical assistance if they needed it, and advice. That did several things.
One, it showed from her perspective that Katherine was on the case, paying
attention and dealing with this situation, not just sitting there like a deer in the
headlights. Two, it gave us eyes on the ground, at the location, that weren't
Democrat eyes, that weren't Bush eyes. We were able to get real-time reports
from the scene as to what was actually happening. Then three, because they
were the representatives of the chief elections officer, if questions came up, we
were able to influence the decisions.

P: Who determined who would go? Some of the books report that they were sent
down by Jeb Bush.

S: No. The governor's office was not aware of that decision, the governor's office
was not consulted by the personnel and all the decisions were made in the
Secretary of State's office.

P: As you can imagine, I talked with Carol Roberts [vice-chair, Palm Beach County
Commission; member, Palm Beach County canvassing board] and she saw
Kerey Carpenter as someone who was specifically told to stop the recount, that
was her function. Carol claims that Kerey was giving advice to Judge Burton and
Burton was unaware that she was representing the Secretary of State, and that
she was telling him that the issue would be resolved legally if he asked for an
opinion from the Secretary of State.

S: Well, who did Judge Burton think that Kerey was there representing? I'm
serious. She's the lawyer from the Secretary of State's office. Assuming that

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Kerey did not misrepresent who she was, it's inconceivable to me that Judge
Burton didn't know who she was or didn't ask to this lady leaning in and
whispering in his ear, who the hell are you?

P: Also, Judge Burton says that he didn't know that the request from the head of the
canvassing board to the Secretary of State would result in a binding opinion.

S: There may be some conflict on that. He may not have known it was going to be
binding, that may be true. [In that] case, I don't know what to say to him about
that, he's a judge, it's in the election law. He knew what the opinion was going to
be, because he'd been told orally what the opinion would be. If he didn't know
that it would be binding, then I would fault him for that.

P: He had just taken over that job. He'd never been head of a canvassing board
before and this was a little tough for his first run, so it made it a little difficult for
him. One of the other issues that we need to talk about is the process of
counting these votes. Is there a specific decision on the part of the Republicans
to challenge every vote?

S: I think the Bush campaign's intention was, unlike the Gore campaign who was
more worried about perception, was to fight tooth-and-nail, hammer-and-tong
over every ballot, and to try to get a standard that would produce the outcome
they wanted in the famous Sunshine State. [End of Tape A: Side 1]

P: Palm Beach made a request to extend the time and allow them more time to
finish their counting.

S: You're talking about Sunday the 26th?

P: No, no. This is earlier. This is before the Florida Supreme Court moves. Even
Judge Burton said that those requests were not particularly well-written, and the
evaluation of those, as you've already indicated, was that they were not very
persuasive to the Secretary of State in giving them extra time.

S: All they basically said was, we would like to keep counting because we haven't

P: What about this issue when Burton calls in and says, we'll be finished in two

S: That was on the 26th

P: He asked, can you give us two more hours?

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S: No. We were probably being a little disingenuous. The Supreme Court said, in
its opinion in which they were so rude to Katherine, that if the office is not open
on Sunday the 26th, they will have until 9:00 am on Monday to submit their
ballots. If the Secretary of State's office is open on Sunday to receive the
manual recounts, then they shall be submitted by 5:00 p.m. Since the Supreme
Court was so big on the difference between "shall" and "may," who would we be
to correct their grammar?

P: The issue again is that she could have exercised her discretion, and chosen to
open up Monday and not opened up on Sunday.
S: Oh, but we did open up on Sunday and told them we'd be open. Notified them in
advance that we'd be there and in fact [we] received some returns that day.

P: But she could have. The point is, by not waiting until Monday, it made it appear to
be a partisan decision.

S: Probably. It did make it appear that way.

P: Did it make any difference in the long run?

S: I don't know that it made any difference in what the outcome would be. I haven't
studied all of these various newspaper recounts, but my recollection is that Palm
Beach pressed on after the 5:00 deadline and after that mish-mashed
submission they made to us and did finish a recount, I don't believe that it altered
the outcome on the rest.

P: There weren't enough votes. In fact, there were actually two different totals.
One was about 214, one was 176, and, as far as I can tell, no one knows for sure
today which one is the correct total. Also, I understand that Theresa LePore
[supervisor of elections, Palm Beach County] submitted partial recounts.

S: That was a big fight that I lost with Klock and Clay Roberts. One of the statutes
says that when a county canvassing board submits the certified returns, that
unless it's irregular on its face, the state canvassing board, the State Board of
Elections or whatever the hell it's called, won't look behind the numbers. I said,
look, are we all agreed that if you undertake a manual recount, that the statute
says that all the votes in the county will be manually recounted? Everybody said,
well, that's what the statute says. If somebody submitted a recount that had 100
precincts that had been manually recounted and two that were the machine
count because they hadn't gotten to them, that would not conform to the statutory
requirements, it would be an illegal manual recount, we agree with that? Then I
said, when we get that from Palm Beach County, and we know that's the case,

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then we're going to reject those returns, right? Klock and Clay Roberts argued
that you couldn't do that unless it was irregular on the face. In other words, even
though we were sitting there watching them talk about it on television and knew
they were sending us an illegal recount, if it didn't appear to be irregular and
fraudulent on the face, then we'd have to take them even if we knew for a fact
they were illegal, and that was the decision they made.

P: Illegal for using different standards?

S: No. Illegal because the state law says that if you make the decision to recount
them by hand, you must recount all the ballots. You would not have conformed
to the manual-recount statute if you gave me a certification that was a partial
recount, partially hand-[counted] and partially machine-counted, which is what
Palm Beach was preparing to do. We had this big raging argument on Sunday
afternoon about whether we would take the Palm Beach returns if we knew in
fact that they were illegal, but on the face of it there was no way to ascertain that
on the piece of paper. The decision, contrary to my position, was that we would
have to. Then it became irrelevant, because Palm Beach sent us a certificate
that was obviously flawed on its face. They specified, some are hand-count, they
specified some are such-and-such, and then they gave us the numbers from the
machine rerun from two weeks ago that we'd already certified. That decision that
went against me never came into play. The classic example of that would have
been, what if Dade County had gone on and just counted the under-votes, the
10,000 under-votes? I believe that Katherine Harris would have thrown Dade
County's votes out because they didn't count all the votes. You can't just count
the under-votes.

P: Was it a great strategy flaw for the Democrats that they didn't go to the contest
right away?

S: Now this is easy to say, in retrospect, in retrospect they frittered away all of their
time and this whole time question, of course, is very interesting. [David] Boies
[attorney for Al Gore in 2000 election], before the Supreme Court, uses the
December 12 date, when there was really no ultimate magic about the December
12 date. But immediately everyone in the world, including us, who wanted this
thing to come to some sort of resolution grasped on this December 12 [date].

P: The safe harbor day.

S: Yeah, the safe harbor day. In retrospect, they frittered away the time they had,
fighting on ground that was not favorable to them, when their time might have
been better spent in a contest.


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P: Plus in a contest, there would be no challenges. The judges would do the
counting and therefore it would be less problematic.

S: He has all of these equitable powers where he's not bound by binding opinions of
the Secretary of State, he can do whatever he thinks justice requires.

P: As a matter of fact, in Lewis 2, it's very clear in that decision that he's a little
perturbed with the Democrats. He says, I don't know why you're arguing over
this, you have an option, you can go directly to the contest.

S: Again, it's so easy to look back and say that, even if it was 100 feet off the
ground, you should've jumped from the Hindenburg [airship that crashed on May
6, 1937] before it exploded and burned. But I think it would have been very
tough for them when they were always just a couple of hundred votes away from
victory, to pull the plug on an effort they were heavily invested in, organizationally
and otherwise, to begin a whole new effort, and bet everything on the turn of that

P: They had gained some votes.

S: Right. They had been gaining ground. They whacked it and whacked it by like
two-thirds and they had every reason and were justified in believing that if they
could get done what they wanted done in Dade and Broward Counties, and
ultimately in Dade County, they would prevail.

P: They told me at one point they thought, from what their perspective would be,
they had narrowed it to about 115 or 120 votes, and that was so close that they
saw the opportunity to get ahead. The argument is, if they could ever take the
lead in this, that changes everything. Would you agree to that?

S: I think that's right. I think it would have changed the psychology of it. Going
back to something we were talking about earlier, there's also something that
should be made explicit about the [November] 14th deadline. When that deadline
came and passed, it wasn't as if all those counties were counting away and just
got cut off. Dade County had decided not recount when the 14th came and
passed. Dade County didn't decide to manually count until after the 14th. Palm
Beach County had decided to manually count, but wasn't counting at the
moment. Broward County had decided to manually recount, but hadn't counted a
vote yet. It was just waiting for something, I forget what the context was. One of
the things to be avoided is this idea that four counties were just counting away
like mad and the clock ran out on them and the Secretary of State's office did
them wrong. That's not right. One county was counting away like mad and
finished. The other county, Dade, had decided not to count when the deadline

FEP 22
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came and passed. Another one, Broward, had decided to count, but hadn't
counted a vote; it was making no effort to count. Palm Beach had decided to
count, had counted some votes, and stopped. Nobody was counting when the
deadline came and passed.

P: One of the arguments was that if she has discretion, she has flexibility. That she
could have waited until the 17th when the overseas ballots were due.

S: She should've. That would have been the only hook where she could've stopped
see, one of the problems with saying, keep counting, is that once you let the
deadline slip, you have to pick a time when you say, okay, now you have to be
through. If it wasn't going to be the date that the legislature said, which was the
14th, another date that it might have plausibly have been was the 17th, as you
pointed out, when the military ballots were due. She could've done that and that
would have been a plausible reason for stopping. But if she had reached out and
just said 5:00 on the 21st, when 5:00 on the 21st came and Dade County had not
finished being recounted and wanted to continue, what could Katherine say to cut
him off? There was no place to stop, it was like a slide. There was no place to
stop once you went past the 17th. I think that there's probably some
manifestation of partisanship in not allowing a slip from the 14th to the 17th
Midnight [on] the 17th would have been a reasonable fallback date. I would point
out to you that Dade County could not have finished by the 17th. Dade County
hadn't even decided to count until the 15th. They'd have never finished by the
night of the 17th

P: The Democrats argued that the whole decision by David Leahy [supervisor of
elections, Miami-Dade County; member, Miami-Dade County canvassing board]
and the canvassing board was caused due to intimidation from others.

S: That's bull. Leahy is a first-rate supervisor of elections officer. Whether he's
right or he's wrong on the law, Leahy believed, and I think eventually other
members of his canvassing board [did], that their sample recount had not given
any evidence of system failure.

P: That's correct.

S: I think he believed system failure was required and he didn't see any. He told
them, forget it. Then, when they started recounting, they were just counting the
under-votes, which is what you and I were talking about a while ago. It was
Thanksgiving weekend or close to it, when Dade County decided to stop, when
they had the little mini-riot down there or whatever. I'd spoken to Katherine about
that. You can't just go count the under-votes. The law says you have to count all
the votes. I think Leahy knew that. I don't believe that Leahy and a county

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commissioner and a judge from Dade County refused to count Dade County
votes because they were afraid, physically or politically, especially in that county,
not politically. I don't think they were afraid physically, the American ire
notwithstanding. I think Leahy knew that he couldn't count the under-votes and
submit under-votes with machine counts on the other precincts.

P: We talked to him and he said he didn't think he could finish the entire count.

S: Which is another way of saying what I'm saying. He could've finished the ten
grand conceivably.

P: They could've counted the under-votes.

S: Yeah, they could've counted the under-votes, but we weren't going to accept the
under-votes and I think he knew that.
P: As a matter of fact, when the Florida Supreme Court ruled that these under-votes
would be counted, Judge Lewis did manage to count the under-votes, but at the
time it would've been difficult because everything was being challenged.

S: In a contest context, you probably can count the under-votes because you're
looking for voter intent and blah-blah-blah, but in the phase we were in then, the
law was clear, count them all if you're going to count any. And David [Leahy]
knew he couldn't finish them.

P: The Florida Supreme Court is going to jump in and it's going to decide that
Broward and Palm Beach Counties can continue to count and left it up to Judge
Lewis to determine if Katherine Harris should allow those votes. I thought that
was a little strange that the Supreme Court would sort of pass that decision on to
somebody else.

S: I can't specifically remember that, Julian. I'm sure you're right, but I don't
specifically remember that.

P: I'll read it to you: "The Florida Supreme Court leaves it to a state judge" (and that
happens to be Lewis) "to decide whether Ms. Harris must include those votes in
the final tally." Once again, this is back to her discretion.

S: I'll tell you something too, this goes back to the public relations aspect of it.

P: Let me step in. Of course, Judge Lewis, in Lewis 2, he says she is okay in not
counting those votes. That she has used her discretion and it's reasonable.


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S: I think in that context the Supreme Court probably was right, because normally
the standard for review of an agency, particularly that of a constitutional officer, is
that there has to be clear and convincing [evidence]. The court has to be
persuaded that you acted unreasonably and arbitrarily in order to overrule the
decision of an agency head or Katherine, in this case acting as the state's chief
election officer. That's a really high standard. That's why we were so outraged
and infuriated with the Supreme Court, because they did not apply, in our
opinion, the appropriate standard of review that they would have applied in any
other situation involving an agency decision.

P: Let's talk about that November 21 7-0 Florida Supreme Court decision. In that
particular decision, they prevented Harris from certifying the election. That was
stopped. They went on to say that Palm Beach and Broward can continue and
the new deadline is Sunday, November 26. That seems to me, in retrospect, to
be the crucial point of that decision. Why November 26?

S: It was my birthday. No, I don't know why.
P: Other than that?

S: I don't know why they chose that date. Probably, if I were just guessing and
speculating, I know that probably none of them would tell you, they too thought
there ought to be some closure. So they picked some time in the future that they
thought was a reasonable time to allow those counties to finish counting, and
they were wrong. The counties didn't finish counting, at least Palm Beach
County didn't finish counting. Then they did say in their subsequent decision
when Katherine cut it off between them, she had the discretion to back our side
even though we said "shall" and she should've let them go on. That's what I said
her problem was about the 14th and the 17th, which is when you pick one and
they don't get there, you have no reason not to just give them another new date.

P: If the Florida Supreme Court decides on November 26, you should adhere to that

S: Right. Which is what we said, 5:00 they said, shut down.

P: Did you at this point perceive that their decision was making law rather than
interpreting law?

S: I thought they had gone flat off the reservation. I thought that, and still believe,
they took the entire state election law and just [threw] it on the scrap-heap and
were making it up as they went. Don't misunderstand me, their system may have
been better than the legislative system. The legislative system may have been a


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bad, unfair system. But that wasn't the issue. This is a separation of powers
issue and I think that they usurped the legislature's authority.

P: That's violates 3 U.S. 5 and the Second Amendment, both of which argue that
the legislature is responsible for setting the standards.

S: The U.S. Supreme Court ultimately said they went too far.

P: Did you see this as a partisan political decision, part of the old idea that most of
the members of the Florida Supreme Court had been "picked" by Dexter

S: I did. I thought it was very much a liberal Democratic partisan decision, and
again I'm not a big-deal practicing lawyer like Boies and all those guys like that,
but I've been on the wrong end of agency reviews enough [to know that] where
the Supreme Court either wouldn't take jurisdiction at all or would say, unless you
bring me three eyewitnesses of fraudulent collusion, the decision of the secretary
is going to stand. In other context, I thought they were totally off-base in the
standard of review they applied. I thought Terry Lewis did the best job, from a
legal perspective, of anybody in this field.

P: On the other hand, the Florida Supreme Court ruled against Gore about four
different times on the butterfly ballot, on his request to continue the vote in Dade
County to count the votes, so in some decisions they ruled against Gore.

S: I think that's right. The butterfly ballot and some of those things, to me, those
were throwaways. You're not going to re-vote in Palm Beach County after the
election is over. Talking about the [Seminole County] thing or whatever, you're
not throwing out 4,500 military ballots either, or however many absentees there
were that were correct but got mixed in with the other ones. Some of those
about which the national pundits on television waxed eloquent for days and days
as they breathlessly awaited the court's decision were no-brainers. They were
not in Seminole County or wherever it was, I can't remember the number of votes
involved, but it was thousands of valid absentee ballots that would have been
thrown out on the assumption that some tainted ones had been mixed in, which
is never going to happen.

P: Let me talk about the military ballots. There obviously was some confusion about
the law, because the original law had been modified by an administrative
regulation which said ballots either should be postmarked or signed and dated no
later than the date of the federal election. The legislature passed another law
and apparently these election supervisors were very confused about exactly what
the law was and whether federal law took precedence over state law.

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S: The New York Times, I think, in this article made some big deal about some
missing word or addition of a word and some letter placed in out which they
interpreted to be some signal to the supervisor of elections to run amok and
count all these ballots and blah-blah-blah. Clay Roberts told me from the get-go,
when I first asked him, and I never asked him again, I never thought about it
again, that the law was exactly what you just said, that you had until midnight to
get the ballots in on the 17th, but they had to be either postmarked or signed and
dated and notarized on or before the day of the election. You can't have people
voting after the election's over. If you're going to accept ballots after the
election's over, there has to be some evidence that they cast a vote before the
election results were known. As a matter of fact, I don't know this, some of my
lawyers worked on and tried the cases out in Pensacola and stuff like that, but
didn't we end up counting some ballots that didn't have those dates and stuff on
them? I think that's wrong.

P: Yeah. Let me give you this New York Times article you referred to, 344 ballots
without postmark, several postmarked after the election, ninety-six without
witness, 103 ballots mailed within the United States, of course that doesn't count
since you're not overseas, nineteen people who voted twice, [and] five ballots
were received after November 17, leave alone the 7th. The issue for the election
supervisors in Osceola, Escambia, large military areas, was that they felt
pressured to go back and recount those votes, and in fact they did go back.

S: As a recall, the Republicans would pound on the drums like crazy. It was kind of
like Al Gore's, let every vote count, which kind of got him in trouble on the military
ballots as we all remember. It was a whole lot of chest-thumping, bloody shirt
waving, our boys and girls overseas defending ramparts of freedom, blah-blah-
blah, and I say [it was] voter error just like in Broward County. If you can't vote
right, we're not counting.

P: If the people in Duval County were "too dumb to vote" and the military's "too
dumb to vote," neither one counts.

S: That's exactly right. If you're too dumb to vote in the military, you shouldn't be
treated any different because you're wearing a uniform then being too dumb to
vote in West Palm Beach.

P: I look at this as critical. With a 537-vote difference, there were at least, from The
New York Times count, 680 disputed military ballots. No one knows how they
broke down, but that could be the difference between winning and losing.

S: They would probably have to be at least 65 percent Republicans.

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P: That's what one would guess. So that's a pretty significant percentage.

S: Yes. In that case, if you threw them out, 65 percent of [the] 700 [disputed ballots],
you don't change the outcome. You don't get there, but it gets a lot closer. There
was not a lot of discussion about military ballots in the Secretary of State's office
in my presence, and I was there continuously from the 9th through the 26th. I
know that The New York Times spent six months and twenty reporters and they
had to write a story, but there was no big discussion or conspiracy about the
military ballots in the Secretary of State's office.

P: In fact, I have her statement after that article came out and they said The Times
failed to accurately completely report the facts. Did you help her with that news

S: I did not help her with that news release after The Times story, no.

P: There is another issue that comes up that is intriguing. I talked to election
supervisors, one in Osceola County and one in Alachua County, and a military
ballot that was counted in Osceola would not have been counted in Alachua.
Those are different standards. Isn't that a violation of the 14th Amendment?

S: Probably.

P: But that never got any real attention.

S: No, all that was obscured, if not covered, by the bloody shirt. Our boys and girls
overseas blah-blah-blah.

P: And General Norman Schwartzkopf [leader of Allied Forces in Gulf War] comes

S: Oh yeah, I know.

P: Both Joe Lieberman [U.S. Senator from Connecticut, 1989-present; unsuccessful
Democratic vice-presidential candidate, 2000] and Bob Butterworth backed off of
that issue.

S: That's a perfect example of losing your nerve. Maybe these men felt strongly
that you ought to be able to vote if you're an idiot in the Marine Corps, but you
shouldn't be able to vote if you're an idiot in Palm Beach County. Maybe they felt
strongly that somehow putting on a uniform excused ignorance. If they didn't, if
they were just afraid of the adverse publicity and the political blow-back from

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bouncing military ballots, then I would say that's the classic example of them
failing to fight hard enough for victory.

P: Mark Herron [Florida attorney, sent memo to Democratic election canvassers
instructing them on what disqualified overseas ballots] wrote his five-page memo.

S: Yeah, and they ran him up the flagpole on it. Mark was right.

P: You may not have been involved in this, but while Mark Herron had a five-page
memo, apparently the Republican Party had a fifty-two page memo which really
spelled out, in very precise details, about how to challenge the military ballots. I
think Fred Bartlit [attorney for George W. Bush in 2000 election] picked fourteen
or sixteen counties.

S: Again, it's the same old thing. In Broward County, you expect the military ballots
to be somewhat more Republican, [but] to be principally Democratic, so you
would fight harder there. I think the Republicans mounted obviously an extensive
and pretty effective campaign on the military ballots on the legal front. One of my
lawyers here, Ken Sukhia, I don't know how long they were over there in
Pensacola, in that area, working on and trying those cases.
P: Give me your analysis of the activities with Sandra Goard, the supervisor of
elections in Seminole County, and Peggy Robbins, the supervisor of elections in
Martin County. As you know, they enable the Republican Party to come in and
put voter identification numbers on the requests for absentee ballots.

S: I remember that, and I remember having an opinion on it. What happens is you
get a request for an absentee ballot... they printed them wrong, didn't they?

P: They printed them wrong. The printing company for the Republican Party did not
put the ID numbers on them, so the Republican Party came up and said, we
know these are not valid requests because there isn't any voter ID. Can we put
them on? She said sure. And they sat down and put them on.

S: Is the argument that there's something wrong with that? Did she deny the
Democrats the ability to do the same thing?

P: The argument is she denied the Democrats the chance to do the same thing.

S: Did they ask?

P: Unclear. Sandra Goard says that she notified them that they have equal access
and, had they come forward, she would have allowed it. Peggy Robbins actually
allowed these documents out of the office, allowed them to take them out of the

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office. Now they're not ballots, they're just requests, but some people perceive
that as both a violation of public records and a violation of election law, because
once the documents were in her possession, they were public documents and
should not have been taken out of the office. As you recall in the two decisions
by Nikki Clark [judge, Leon County Circuit Court] and Judge Lewis, they claimed
that while that was bad judgment, there was no harm done.

S: No harm, no foul.

P: You couldn't determine which of the ballots had been tainted.

S: That's what I was talking about. They weren't going to throw out all of those
ballots because there might have been some that were tainted. Not tainted, as
you pointed out, by some defect on the ballot that had been remedied, but rather
a technical defect on the request for the ballot, with no indication that the ballot
itself that was cast as a result of the request was invalid at all.

P: The Bush campaign filed suit in federal court, which gets up to the 11th Circuit
Court of Appeals. They vote against the request to stop the recounts and all
during this time, we hear nothing about the 14th Amendment. Why do you think
the 11th Circuit Court was so different from the U.S. Supreme Court?
S: I don't know the answer to that. I'm not a good enough constitutional lawyer and
a good enough student of the court to tell you that. I'll tell you this though, when I
listened to on the radio or the sound on the television, whatever it was, to the
United States Supreme Court grilling those lawyers theirs, not ours I was
really impressed, because I like smart people, and at how smart all those people
were, no matter what their approach and their ideology apparently was. I would
submit to you that it's quite possible that the United States Supreme Court just
saw more clearly and analytically than the farm club down in Atlanta. Just like
the [New York] Yankees hit better than the Monroe, Louisiana Yankees.

P: Also, there are two other options. One is that they figured it was going to go to
the U.S. Supreme Court anyway at that point. Second, the issue for them was
that they had to show irreparable injury, and they argue that Bush is still in the
lead, there's no injury.

S: That's an example of me not being enough of a lawyer. They were asking for a
[temporary restraining order], and they couldn't show irreparable harm.

P: Exactly. But when Antonin Scalia [U.S. Supreme Court Justice, 1986-present]
gets that, he says, well, not now, but perhaps. In other words, he's in the lead
now, but if the votes change because of different standards, then that would be
irreparable harm.

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S: Once it's done, it would be extremely difficult to undo. The Supreme Court had a
difficult job, and I know the Democrats feel the same way about the United States
Supreme Court decision as we feel about the Florida Supreme Court decision,
that they were partisan. But if you give them maximum benefit of the doubt, I
think the United States Supreme Court may have thought that this thing had
great potential for doing serious harm to the nation and to the political structure.
While we all resolve our differences without violence and lasting, or at least
debilitating, rancor, I think they probably wanted to bring this election in for a
landing and found the best way they could to do it.

P: The Democrats finally go to the contest, and of course, this is a different process,
and the contest is filed in Judge Sanders Sauls [Leon County Circuit Court] court.
Were you involved in that at all? Did you observe any of that?

S: I watched it. That was kind of an interesting thing to. I couldn't really read it that
well until he rendered his decision, and then he just clubbed them like baby
seals. I don't remember the details of his decision, you can remind me of it, and
again, I have this terrible partisan bias, but I basically thought he was right and
thought it was kind of interesting that he had the courage to say so unabashedly.

P: He said you had to prove a probability that the votes would change the outcome,
not a possibility. You had to demonstrate that the canvassing board, as you
indicated earlier, had not acted within their discretion. He said, there's no proof of
either. The Democrats, David Boies says, how does he know? He didn't count
the votes. They brought them here, but he never counted them.

S: I'm not sure I would agree with Boies on that, if I understand his argument,
because if you count the votes, there's no need to determine probability or
possibility. You'll know. If there's some question about what the eventual
outcome would be and whether to count them depends on how you resolve that
question, then that's the threshold question. I would submit to you the argument
about systems failure. You have to adduce some evidence that something has
gone badly awry and is going to produce the wrong outcome, not just that if we
fooled around with these things long enough, we might get a different outcome.
This is my characterization what is the standard for a search warrant?
Probable cause? If there's probable cause to believe there's been a miscarriage
of justice? I think Sanders Sauls says, I don't see any probable cause to believe

P: The Florida Supreme Court, of course, on December 8, is going to reverse Judge
Sauls by a 4-3 vote. Were you surprised by that decision?


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S: I wasn't surprised by the majority decision, I was surprised by the three
dissenters and I was surprised by the tenor of Justice [Charlie] Wells [chief
justice, Florida Supreme Court, 1994-present] dissent, which pleased me
enormously, of course.

P: It was a very vigorous dissent.

S: Now, that doesn't totally rehabilitate Charlie with me, but it went a long way.

P: It was a little surprising, I think, that Major Harding [Florida Supreme Court
justice, 1991-present] voted no and Leander Shaw [Florida Supreme Court
justice, 1983-present; Chief Justice, 1990-1992] voted no. I think some people
argued this demonstrated that the Florida Supreme Court wasn't as partisan as
people had argued.

S: My view on all this is totally distorted by partisanship, and some scholar standing
back and looking at this might well say that the Supreme Court did a good job.
We hoped that those three would be no's on the first straw. I was shocked and
still don't know why. Just on judicial restraint issues.

P: They order the Palm Beach votes and the Broward votes and all these counties.
Amazingly, the fifty-one votes in Nassau County, you remember Nassau County
hand counted and went back to the machine count, and the Florida Supreme
Court, for some reason, didn't include those fifty-one votes in this total. Then
they said just the under-votes. Why do you think they said just the under-votes
when they were in the contest phase?

S: I think that's exactly the difference, that under the protest scenario, the law
requires that all the votes be counted. That law is not applicable in a contest
situation and the Supreme Court was focusing on the fact that the only thing
really at issue was voter intent on the under-votes. I think that's why they framed
their ruling that way.

P: Do think time is now a factor?

S: I think time is a factor. I think everybody was very conscious of the clock
running. The Democrats, particularly. We were just holding our breath trying to
get to some finish line.

P: I wanted to read you a portion of Justice Wells dissent: "I have to conclude that
there is a real and present likelihood that this constitutional crisis will do


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substantial damage to our country, our state, and this court as an institution."
Was that overstated?

S: No. I think he was right. It was resolved and other more cataclysmic events
have overtaken us and bend our memories now, but I think, for a few days, if not
a few weeks, we were in a very perilous situation in this country.

P: But there is a constitutional process to ultimately take care of these issues.

S: That's true. I'm not suggesting that the Republic was going to collapse or
anything like that, but I'm suggesting, for example, that the Florida legislature
was probably prepared to send their own slate to Washington. I'm suggesting
that, but for the outcome that did transpire, we could have had a first-class
constitutional crisis that ultimately would have been resolved, I think, without
violence, but I think it would have severely damaged the comity on which
representative democracy in this country [is based]. People were angry enough
as it was, but if it had gone to Congress on a partisan vote on three different
slates up there, it could have just been really awful.

P: One Democratic lawyer said he though there might have been a little bit of an
attempt on Wells's part to try to ameliorate the negative view of the House of
Representatives toward the Florida Supreme Court. By taking a strong dissent, it
might prevent the House from further undermining the power of the court.
S: I wouldn't think that Charlie would have done what he did with that in mind, in a
degree. If he did, it just goes to show that he didn't have a sufficient
understanding of the antipathy of his opponents for that court. I don't think that
would have placated [Tom] Feeney [Florida state representative, 1990-1994,
1996-present; speaker of Florida House of Representatives, 2001-present].

P: It wouldn't have made any difference.

S: No, hell no.

P: Well, what about the idea that Feeney decided to have this vote, I think it was 68-
41 on party lines, that if the issues are not resolved by December 12, the
legislature will present the Bush slate. In your view, was that constitutional and
would it not set a dangerous precedent?

S: I don't know whether it was constitutional or not. It was certainly dangerous and
that goes back to what I saying a while ago. Had this not been resolved as it
was, I am convinced that the House, without trepidation, and the Senate, with
much trepidation, ultimately would have, given the stakes, sent a slate to the


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Congress and it would have been a tong war from then on out. We would still be
recovering from it.

P: Let me ask you about the final U.S. Supreme Court 5-4 decision. Do you see
that as a 5-4 decision or, as some legal experts say, it was 7-2 because seven
justices were upset about the differing standards?

S: It's more fun to talk about 5-4, because it makes it seem more controversial and
more partisan, but I think it was probably more [like] 7-2. I think that seven
justices did have serious reservations about the equal-protection aspects of the
way we were counting votes down here.

P: The Democrats now argue that the William Rehnquist [U.S. Supreme Court
Justice, 1972-present, Chief Justice of the U.S. Supreme Court, 1986-present]
court, which had never entertained the 14th Amendment very often, is now an
activist court.

S: They may be right when our ox is in the ditch.

P: Some people, and I don't want to get into all the names, argue that this was, from
the beginning, a partisan political decision. David Boies said it was a catch-22, if
the Florida Supreme Court had set a standard they would be making law, if they
didn't set a standard, they violated the 14th Amendment.

S: I think Boies is probably right about the catch-22. I really can't speak to the
motivations of the Supreme Court, but implicit in Boies's point is the danger that I
think that Katherine and the folks that worked with her saw all along, if you didn't
stick to the scheme that the legislature had put into law, however flawed it might
be, there was no place to plant your feet after that. It was all downhill from there.
I think that was the mistake. When the Supreme Court of Florida decided they
didn't like the harshness with which poor old ignorant Josephine-voter was going
to be treated, everything just spun out of control from then on out.

P: I talked to Joe Klock about this, that decision was very harsh towards the
Secretary of State.

S: It was very personal toward Katherine, they basically bitch-slapped Katherine.
We all said that [Barbara] Pariente [justice, Florida Supreme Court, 1997-
present] had written it. I don't know whether she did or not, Pariente is very
smart, very liberal.

P: This is Barbara Pariente.


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S: Yeah, but it was offensive, and went out of her way. That's part of, I think, what
gave rise to some of the feeling that it was partisan. You can make a purely legal
argument that they'd exceeded their jurisdiction or they'd applied the wrong
standard of review, but if they had used the normal, dry language of logic and
legal interpretation, it wouldn't have had the same effect as what was basically
an inflammatory attack on Katherine.

P: I talked with Justice Gerald Kogan [Florida Supreme Court justice, 1987-1998,
chief justice, 1996-1998] and he said the number of incredibly important
decisions that these courts had to make in such a short period of time obviously
affected the quality of their opinions. One of the things that Justice Sandra Day
O'Connor [U.S. Supreme Court Justice, 1981-present] complained about is that
the Florida Supreme Court never really explained the reason for choosing the
November 26 date. On the remand, eventually they did, but at that point it was
probably too late and it may have just slipped through the cracks.

S: I keep coming to back to it, that was a problem that I think we were aware from
the beginning. You just can't reach out of the air and pull something down and
say, this is it. It's kind of like the Apostle's Creed or something like that, you
know, you got to hang somewhere.

P: Justice Stephen Breyer [justice, U.S. Supreme Court, 1994-present], in his
dissent, said that he thought there was still time, because he did not adhere to
the December 12 date. They could remand the case back to the Florida Supreme
Court and the Florida Supreme Court could set a standard and the votes could
be counted. Was that a possibility?

S: I think that it was a physical possibility in terms of sheer time before the electoral
college met. It was probably a political and psychological impossibility. I just
don't think anybody could stand it anymore. We just wanted to be through.

P: As Dexter Douglass [attorney for Al Gore in 2000 election] said, once they got
the U.S. Supreme Court 5-4 decision, he talked to Gore and he said, it's over.
Gore was looking for another option. In fact, they wrote another brief that they
were going to file with the Florida Supreme Court.

S: Oh, really?

P: Yes.

S: At that point, they probably would have been crossing that invisible line of sore
losers and all that sort of stuff like that.

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P: That's what Dexter said. He said, at this point, you're not going to fight the United
States Supreme Court.

S: Probably Charlie Wells could have come up with another vote at that point in the
process and it just would have petered out on him and he wouldn't have looked
as magnanimous as he did.

P: Judge Richard Posner said the decision was a pragmatic one, not a legal one,
but it did save the nation from a looming political and constitutional crisis.

S: That's exactly what I was saying awhile ago, that the United Supreme Court did
the nation a great service, if not the Democratic slate in that particular election,
by finding the means to bring this election into a landing. [End of Tape A: Side 2]

P: I also want to ask you about the Election Reform Act of 2001.

S: About which I know very little, by the way.

P: Let me give you some of the details of it. Obviously they're going to get rid of all
of the punch-card machines. They're going to put in a statewide database and
they're going to provide a provisional ballot. Do you think that's going to do a lot
toward resolving any of the problems with voting?

S: I think we ought to go back full-circle like we did. We have the technology now.
You know how kids who can't count, all they have to do is punch the Big Mac
[button] and it'll ring up the right charge? What we ought to do is go back full-
circle and we'll put your picture on a touchscreen with a donkey by you, and we'll
put my picture on a touch screen with an elephant by me and that way idiots can

P: Do we really need better voter education?

S: I'll tell you who I think is responsible for it. I think people who want to vote should
have every opportunity to vote, and I think voters have an obligation to both
inform themselves of who the candidates are, why they want to vote for them,
and how to vote. If they don't know, I think they ought to ask questions and I
think the people in the polling places will help them. My mother-in-law works
there, my daughters volunteer. If you've got a problem voting, they'll help you.

P: Some of the problem was that people were in the wrong precincts and said, well,
where's my name, it's not here?


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S: Now, I've done that before. They move the precincts and they sent me a letter
and I threw it away. Then, when they told me, you're not here in [precinct] 91,
you used to be in 91, now you're in [precinct] 74, now I have to decide whether I
want to vote bad enough to drive over to 74, not sit down on the floor and call my

P: There has to be a certain responsibility on the part of the voter, because the
election supervisors can't do it for them.

S: This is not very democratic of me, but there was kind of an assumption that I've
always [had]. I've been to a million meetings where people talk about low voter
turnout and increasing voter turnout and voter apathy and stuff like that.
Everyone should have the opportunity to vote, an equal opportunity to vote, but
I'm not too sure that it would be good for us if everybody, in fact, voted. Just
think about everybody you've met and talked to today, the sales clerk you dealt
with, the guy you met in the filling station, the guy you saw in the parking lot and
talked to, I mean, do you really want that rascal voting? It's not up to me to
decide who should and who shouldn't [vote]. Everybody should have the same
opportunity, but if you don't want to vote, I don't care.

P: The other element that's disputed that has come to be an issue now, is the act
did away with a second primary and, of course, the Democrats say that this was
a partisan political move on part of the Republicans.

S: I think they're probably right. I think we probably hosed them on that one. We'll
probably restore after this election.

P: It's just a two-year trial right?

S: Yeah, two-year trial. It will probably not be reenacted in two years, I'm guessing.

P: Once Janet Reno [U.S. Attorney General, 1993-2001] is nominated, that will be
the end of it?

S: Right. We need Reno to be nominated and that'll be a good thing.

P: What about the Civil Rights Report? There was all this talk about discrimination
at the polling places, in Leon County, for example, there was a highway patrol
car stopping people near a precinct. Do you think there's any validity to any of

S: No, I don't. If there was a highway patrolman stopping people near a polling
place, my suspicion would be that was poor judgment on his part, without

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thinking [of] the political aspect. Really, what he's thinking about, from the
standpoint of his performance, is a ticket quota. My God, I've got a ready-made
stream of automobiles coming through here and what an easy way to make my
day. I don't believe for a moment that there was any sort of conspiracy to
deprive anyone of the opportunity to vote for any reason, whether it was race or
otherwise. I think what happens a lot of times, particularly when you're on the
losing side of a hard-fought contentious contest, is that you're easily offended. If
you go into a polling place and let's say you're a black voter who's never voted
before and my mother-in-law's working there. You don't know what to do and
you're a little embarrassed about it and it's late in the day and she's a little tired
and irritated. You ask her a question and she's a little sharp and you don't quite
understand the answer, and you ask her again and she's a little sharper. Well,
she may not be a nice lady, but that doesn't make her a conspirator. But I think a
lot of people seek conspiracy whenever they aren't pleased with the way things
work out.

P: I asked Lucy Morgan about that and she said the highway patrol probably didn't
even know there was an election.

S: I think Lucy's exactly right.

P: I looked it up, and they had stopped something like twenty-four cars, sixteen
were white, eight were black, and it really wasn't all that close to the actual
polling place. From the African-American point of view, and I've talked to Ed
Jennings [Florida state representative, 2000-present] and people like that, they
want to say it's intimidation. Even if it's close by, they see "the man" trying to
prevent votes. I don't know how they would know whether the highway
patrolman was a Democrat or a Republican.
S: Well, that's right, particularly in this county. He might be a Democrat and how did
he know it was going to be a close election and those eight people that's just
so bogus. Race is an area where you're not allowed to say the obvious because
it sounds insensitive and stuff like that, but that's just a bunch of whining and
crying and there's just nothing to that.

P: In the report, which I read, Abigail Thernstrom [commissioner, U.S. Civil Rights
Commission] had a vigorous dissent from that. She said that all this is anecdotal.
One of the complaints was that they tried to call the supervisor's office and
couldn't get through.

S: Hell, I couldn't get through.

P: How is that discriminatory? The line was busy for everyone. Does the telephone
line somehow know how to discriminate?

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S: Exactly. I'm in the Secretary of State's office calling from her office on this direct
line to the Seminole Country supervisor and can't get through. That's just all
bogus. It probably won't surprise you, but I kind of resent all that sort of stuff. It
creates ill will, it contributes to that sense of grievance and injustice that I just
think is not warranted.

P: Let me go back and talk to you a little bit about the campaign itself. When the
campaign started, were you cognizant of the fact that Florida was going to be the
linchpin and it was going to be that close?

S: No. As a matter of fact, I was not intimately involved in the campaign and I
probably assumed, like everybody else assumed, that given the weakness of
what I perceived be the Gore candidacy, from a Southerner's perspective, [and]
given Jeb's popularity in the state and George being a Texan, I thought that
George W. was probably the [odds on favorite] in Florida.

P: Some people argue that the Republican Party was overconfident.

S: I think they probably were. It probably shouldn't have been close and it probably
damn sure shouldn't have been that close.

P: How important was the candidacy of Ralph Nader [Green Party presidential
candidate, 2000; activist; author]?

S: I haven't done a statistical analysis, but if you assume, which I think is safe to
assume, that half the people that voted for Nader wouldn't have voted because
they were just disenchanted but for Nader, fine, throw them out. If you wanted to
assume that 70 percent of the remaining half would have voted for Gore, Gore
would've won. When Bob Martinez lost to Lawton Chiles by thirteen points in
1990, I fell asleep and slept like a rock, because when you lose by thirteen
points, nothing you do could have made a difference. When Jeb Bush lost to
Lawton Chiles in 1994 by less than 1 percent, then you worry the rest of your life,
because almost anything could've changed the outcome. By the way,
parenthetically and ironically, the last time prior to the 2000 election where the
under-votes exceeded the margin of victory was when Lawton Chiles beat Jeb
Bush. So yes, the Nader candidacy, I think but for that, Gore could've won. But
for two or three other things, Gore could've have won. But for the mistake in
Jacksonville, Gore could've won. Almost any change could've produced a
different outcome.

P: Jeff Toobin argues that from his perspective, it was clear that most voters in
Florida intended to vote for Al Gore.

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S: As a card-carrying Republican, I'd have to be careful about going on record for
history about saying that, but an argument could certainly be made that a
majority of the people who went to the polls that day intending to vote in the
presidential election wanted to vote for Al Gore. That argument could certainly
plausibly be defended.

P: Is there anything that we haven't discussed that you would like to bring up? Any
issues or any anecdotes?

S: No, I don't think so, not really. We touched on the probability that the Dade
County under-[vote] count would've been thrown out, the problems with the Palm
Beach [date] extension, the fact that Volusia doesn't figure in this at all, they're
not famous, they don't get to be on television because they just did what they
were supposed to. I can't think of anything else.

P: The Democrats said they shouldn't really have challenged in Volusia anyway,
didn't need to, and that was one of those mistakes they made when they were
trying to decide which counties to protest and they did not pick Duval County,
which they probably should have.

S: Or Pinellas [County].

P: Yeah, even that.

S: But you know, Volusia didn't do it right either. They did not hold a trial count to
see if blah-blah-blah like the statute says. They just started counting.

P: Well, they'd had a problem, the machine had deleted a certain number of votes I
think, at some point.
S: They were kind of a little afraid to [not count again].

P: Let me ask you about something that has nothing to do with the 2000 election
and if you don't want to talk about it, please tell me. I did an interview with Bob
Martinez and talked to him about the services tax. He, of course, thinks that's
what did him in. His analysis was that it was already a tax presented by the
legislature. Could you give me the background?

S: What he's saying, which I think is literally correct but probably a little bit
disingenuous, is that as a result of a tax commission report, the 1986 legislature
had sun-setted all exemptions. So had Governor Martinez and the 1987
legislature done nothing, then every transaction, sales or use transaction in
Florida, would've been taxed. The famous service tax was not actually the

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imposition of a tax by the 1987 legislature that was signed by Governor Martinez,
it was the enactment of exemptions. Rather than being a billion-dollar tax
increase, it was a sixteen billion-dollar tax reduction on an impending tax. That's
technically correct, but it's disingenuous.

P: Is the fact that he changed his mind what really hurt him politically?

S: No, I think it was the tax that hurt him politically. Had he not changed his mind, I
think it would've been worse. In March of that year, Governor Martinez had an
approval rating that was somewhere around sixty [percent], kind of a honeymoon
thing. In July or August of that year, his approval rating was eighteen, it was
lower than [Edward] DiPrete, the governor of Rhode Island [1985-1991], and he
was under indictment for a felony.

P: Was your advice to him on the services tax?

S: My advice to him on the services tax was to hang tough originally. Then when it
got so damn bad that it was going to be the end of the world, it was to punt, turn
it loose, get rid of it, we couldn't hold it. With the realtors out there, we were
basically the same coalition that beat John McKay [Florida state senator, 1990-

P: Newspapers?

S: Newspapers, television stations, realtors as the ground force, with an office on
every block in this state, with brochures in the lobby, it was just untenable.

P: What about the option now? John McKay was talking about reducing or
eliminating some of the exemptions. Is it a possibility that helped the state get a
little more revenue?

S: This is one of those fault-lines between Democrats and Republicans [and] is the
fundamental question of whether we need more revenue and how much, as to
whether we need to spend it better or whatever. You have to ask yourself
questions, which we tried to raise during this last tax fight. There are two
problems. One is [that] the state doesn't have enough money. If that's the issue,
you're not going to have Republican support and you're probably not going to
have much public support. Generally speaking, the public thinks you don't spend
enough money on education. I used to do polling and we'd say, do you think the
state needs a better education system, would you support spending more
money? Oh, yeah. Education? Oh, yeah. Prisons? Oh, yeah? Would you pay
higher taxes? No, no, because you're wasting eighty cents out of every dollar.
How much do you think the state government wastes out of every dollar? One

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[cent], ten cents? They pick some hugely high number, just because they don't
like state government. So the first question is, do you need more revenue? The
second question, which McKay raised, and is how this originally came up, is
volatility. Our tax base is so volatile that you can't run a government that way.
There's a really good argument, if not the best argument to be made, that the
answer to volatility is not higher revenue. By having higher revenue, you just
make the hole bigger, a la California, North Carolina, in a bad year. The answer
to volatility is reserves. There were [a] number of overlapping questions there
[and] the argument got all mixed up and there wasn't a lot of clarity. Do we need
more money year-in and year-out? Republicans are going to say no.

P: We're done spending.

S: Just reduce the rate of growth of spending. That's kind of a Reagan tax-cut
situation. We've never, to my knowledge, adopted a budget in one year that was
less than the budget in the previous year. It's just that when we say we're cutting
back, it just means that we're not spending as much money as we would like to.
Our average rate of increase this year in spending on something is not as much
as the average of the last ten years. I'm not even making the knee-jerk
Republican argument that state wastes money and we don't spend enough, that
we spend enough on everything we should, but the tax issue is obviously fairly
complicated and you need to ask the right questions. You need to separate
adequacy of revenue from volatility to begin with and then deal with them

P: Let me ask you one final question. What has been the key to the resurgence of
the Republican Party in Florida? For the first time now, not only is the legislature
controlled by the Republican Party, you have a Republican governor and the
margins are huge.

S: I used to say when Ronald Reagan was president, when I did Florida for Reagan
in 1984, and we ran up some huge margin, 72 percent or something like that,
that Florida in many ways is much more of a Western state than it is a Southern
state. It has a sense of [a] frontier town. If you're smart and you're good
enough, with a little bit of luck and a lot of hard work, everybody can be rich. Just
like California in the Gold Rush, everybody came from somewhere else. We
open up and look on to Central and South America, we're cosmopolitan, we're
doing and being, and that more rigid, stratified, unionized, hierarchical company-
versus-union, boss-versus-labor kind of thing that you'd find in Pennsylvania or
New York, because they're older and more stratified, you don't find here. I think
that we are more Darwinian than some states, particular Northern and Eastern
states, more like the West, go and get off my back, no speed limit in Montana
kind of thing. It's just more amenable to the Republican sales pitch, which is that

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government's job is to provide you the opportunity to do well, not to get in your
way. A problem politically is that when you boil it down to its worst presentation,
its the 1994 Contract With America [Republican congressional re-election political
platform], which was basically, let the big dogs eat. Working women and older
people don't like that message. They don't like the Darwinian message, because
they're pretty sure they're going to lose, and those are the constituencies that are
most sensitive for us. The difference between the 1994 election with Jeb and the
1998 election with Jeb is that he made working women independent and old
people not afraid. They feared him in 1994, they didn't fear him in 1998

P: Plus, he was much stronger on the environment in 1998.

S: I think that helped a lot too, but to me, and I can't quantify this, it's almost like
instinct. Sensitivity to the environment, for example, with women Republicans on
the West coast, ties into concerns about the elderly. Do you care, are you
compassionate, are you willing to forego your advantage for something that
doesn't produce a profit for you? If you're willing to do that, I might trust you
because I'm going to need your compassion. I'm going to need your assistance.
That compassionate conservatism phrase from George W. Bush is brilliant
because the problem with the Republicans is that [they are] not compassionate.

P: It really bridges the gap.

S: [It somewhat nullifies the idea that the real Republican philosophy is let the big
dogs eat.].

P: Also, the argument is that the Democrats' stance on the race and labor unions
did not sit well with a lot of Floridians and people moved from the Democratic

S: Generally speaking, with the exception probably of Broward County, you can't go
wrong when either party's running against a labor union around here. I think that
there's probably still plenty of latent racism in this state, at least in the sense that
people think that enough's enough and nothing's fair and everybody has equal
opportunity, we're not here to guarantee equal outcomes. I think the Democrats
continue, to some degree, to think in terms of equal outcomes, not equal
opportunity. I think you're right, I don't think that sits well with a lot of Floridians.

P: Anything else?

S: No, sir.


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P: That's great. Thank you very much.

S: All right, Julian. No problem.

[End of the interview.]