Text: Gore Campaign
on Fla. Supreme Court Hearing
Thursday, December 7,
is the transcript of Gore campaign attorneys Dexter Douglass and David Boies
following closing arguments in their Florida Supreme Court appeal.
DOUGLASS: And we're
open for questions.
QUESTION: What happens
if the state Supreme Court denies your appeal? What do you do? What does the
Gore team do?
we'll meet and discuss what direction we take.
that include filing appeals in the U.S....
DOUGLASS: We'd have
to consider that if any were available. We'd have to wait and see. We're not
anticipating they're going to rule against us. We haven't really considered
that at this point.
Obviously, we had considered
it in the lower court, because we became aware toward the end what the result
was going to be, and we were prepared to appeal.
QUESTION: Is there
a sense of how things went today? There was some sense after oral arguments
last time that things had gone well for your side. There seems to be a different
impression this time, because the court asked long questions about the U.S.
I guess those perceptions are in the eye of the beholder, always. I think my
own perception was that when we got to the merits, rather than the issue that
was injected at the beginning of the proceeding, which neither side had briefed,
that when we passed that hurdle, which I think Mr. Boies answered very well,
and I thought that he did a good job there, when we got to the merits, such
as do you count the votes and this sort of thing, I thought the questions indicated
a very knowledgeable, great knowledge of the issue by the court, which we think,
when they do get the knowledge, obviously we think that brings them ultimately
to our position. We hope so.
We want to make it clear,
we do not comment and nor do we speculate on what the court did or will do insofar
as expressions they might make on the bench. You were there, you heard them,
make your own choice.
I'm beginning to sound
like I've done this before, haven't I?
QUESTION: I'm confused
by your answer to the question about what happens if you lose in the Supreme
Court, because I thought if you lost in the Supreme Court it was over.
you thought that, and we might have thought that, but it might not be. And I'm
going to give you an answer that's ambiguous, because until that unlikely event,
we hope, occurs, we won't make a decision as lawyers to make a recommendation
to our client.
Obviously, what goes forward
at any time is in the hands of our client.
QUESTION: Are you
indeed making the recommendations to your client or is your client dictating
to you what he wants?
enough questions like that. Obviously, we're lawyers, we make recommendations,
the client makes final decisions. You'd want it that way, wouldn't you? All
people are entitled to have lawyers that do that.
There is one thing I do
want to point out before I turn this over. We were prepared today on the issue
of what remedy might be available in the event they decide to recount these
votes. The real issue that's facing the court is how can you get them counted
in four or five days. Assuming that you're able to count the ones we've contested,
which are the ballots in Dade and Palm Beach counties, that gives us those undervotes
of about 10,000 in Dade and I think 3,300 that we want to reevaluate in Palm
To do that requires some
logistical planning and support. I call your attention to what the clerk of
the circuit court of Leon County said in the press, which you probably all saw,
that he, anticipating that this might occur, because he was the clerk and it
was pending in the court, had already made plans to do this rapidly.
In fact, my recollection--and
you'll have to check the article. It was in the Tallahassee Democrat and I think
was either in Sunday's and maybe last Wednesday's. He said he'd already arranged
for 25 counting teams, complete with Republican and Democratic observers, and
he had arranged a facility in the Leon County library with public rooms that
could be secured and that the sheriff's department and other law enforcement
would secure the whole place, and they could count around the clock, including
his 188 employees that he could assign to the job.
You must remember, and
I'm sure you do, that in the case in Volusia County, the most recent contest
case, in the sheriff's race, where they counted not the whole large group of
votes like this, but a small group, which they were trying to throw out, the
absentee ballots, the clerk was appointed by the court, the clerk of the court,
to do that.
We would hope and suggest,
and we're going to suggest to the Supreme Court, which we did not get to do
in this argument, that they consider this and perhaps make a direct assignment
to the circuit court to begin counting with these people.
That would answer the question
as to how do you do it in four days. You can ask Mr. Lang because I can't tell
you, but he's familiar with this. I believe he'll tell you that with the set
up that he is proposing, if they get the instructions as to how you count the
votes, which would come from the court, you know, the chads, dimples and those
things, that they can begin, and then have a determination in disputed ballots
made by the court. I think that's important, and that's the one thing I wanted
to add to whatever was said today.
And I bet your question
is going to be for David Boies. He's my favorite lawyer.
DOUGLASS: My reaction
to that is the statement that the lawyers are going to make on that, Mr. Boies
made to the Supreme Court in response to the question.
One of the things I think
you all should recognize as lawyers, we have been very careful, and I think
you will agree with this, not to inflame the rhetoric when we get up and make
statements about our case. We try our best not to make them personal, not to
attack anybody, but to defend our legal position and explain it. We've been
fairly successful with that.
We get accused of not doing
it, but I can assure you that we've done it. And for the most part, certainly
Barry Richard has done that.
And we're going to continue
to try to act like lawyers and not like public relations people. We're going
to give you the straight answers that we can, and Mr. Boies has just done a
wonderful job of that.
And besides, I went to
get a hair cut with him yesterday, and he had more photographers following him
than I've had around me in 20 years.
change mine. I'll let Mr. Boies answer that.
BOIES: I don't think
that changes our legal position, and I don't think it changes what is in front
of the Florida Supreme Court, either.
BOIES: I don't think
that they were critical of that. I think that they were asking whether or not
individual ballots had been examined. And I think we pointed out that the ballots
that we were contesting had been put in evidence and that we asked the judge
to examine them, and that indeed we didn't have really access to individual
ballots, because of the need to preserve the integrity of those ballots, and--although
we didn't say, we might have--that every time anybody had come any place near
those ballots, the defendants had suggested that somehow the ballots were contaminated.
I think they would understand that the way that you approach evidence, in this
particular case, is by giving the court the ballots as evidence.
They were admitted as evidence.
And then having them reviewed. That's what was done in the Beckstrom case; that's
what's traditionally been done.
it your burden though?
BOIES: The burden
is carried when you introduce the evidence. In other words, when you introduce
evidence in a trial, you can wave it around in court, you can show it to people,
or you can simply introduce it and let the judge decide. In this case, the evidence
was introduced, but unfortunately the judge never looked at the evidence.
BOIES: Well, I think
what the judge should have done is either directly or through a judicial officer--you'll
remember in the Beckstrom case it was assigned to the clerk of the court--visually
examine the ballots. That's what has traditionally been done in Florida. That's
what was ordered to be done in the Pullen case from Illinois that now everybody
is familiar with.
So I think that the issue
is to visually review the ballots and try to determine the intent of the voter.
You'll recall that there
are 9,000 ballots from Miami-Dade that have never been visually reviewed by
anyone. So that those are ballots as to which there has been no discretion exercised.
QUESTION: ... legal
team has said that no one has contemplated an appeal above the Florida Supreme
Court. I'm sorry to ask this again. Has that changed?
BOIES: No. I think
that what we've said from the beginning is our expectation is that this is a
matter of Florida law, it's Florida election law, and the Florida Supreme Court
is the final arbiter of that. That's the position that we've taken repeatedly
in the Florida Supreme Court. It was the position we took in the United States
are other cases pending.
QUESTION: Will you
say here today that December 12 is the drop-dead date?
BOIES: I'm sorry,
QUESTION: Will you
say here today that December 12 is the drop-dead date?
BOIES: The Florida
Supreme Court sets the drop-dead date. They don't make arguments for me, and
I don't make decisions for them.
But I think that what they
have consistently said is that they expect this to be over by December 12. We
believe it can be over by December 12.
And if they come out with
an order that says, ``We're not going to count any ballots,'' that's going to
resolve it by December 12. If they come out with an order that says, ``We are
going to count the ballots. We're going to start now,'' we believe that can
be resolved by December 12.
BOIES: You should
be hearing it. You should be hearing that this is the Florida Supreme Court's
decision. The Florida Supreme Court is going to make that decision. And I think
that that's going to be the end of it.
Nobody can predict exactly
what the Florida Supreme Court is going to say. For example, one of the things
that is possible is the Florida Supreme Court could send it back for the ballots
to be counted by the Leon County clerk or something like that.
When we've said the Florida
Supreme Court is going to settle it, what we've meant, and I think everybody
has understood, is that this is not going to be taken up to the United States
Supreme Court. We're not meaning that the Florida Supreme Court did not have
the option of utilizing the facilities of the circuit court to count ballots.
QUESTION: So you're
saying the Florida Supreme Court comes back and upholds Judge Saul's decision
that you will not appeal this case to the U.S. Supreme Court?
BOIES: That certainly
is my recommendation. That is certainly what I've said before. I don't know
of a basis for appealing that decision to the United States Supreme Court.
If the Florida Supreme
Court were to say something like, "We'd like to do this, we think we ought to
do this, but the United States Supreme Court in their opinion indicated we shouldn't
do that," that might be a different situation.
But as long as they decide
this based on Florida election law, we've said from the beginning, the Florida
Supreme Court is the final arbiter of that, and we're going to accept that decision
regardless of what that decision is.
BOIES: I think that's
an issue that lawyers try not to be concerned with. What we hope and expect
is that the courts are going to insulate themselves from the political pressures
that swirl around them, no matter how difficult that may be.
This is a court that, both
in this litigation and in other litigation, has shown itself to be tremendously
dedicated to the rule of law. And we hope and expect that that dedication will
Nobody underestimates the
extent of the political turmoil; it is there. However, I think the courts, particularly
Supreme Courts of the states and the Supreme Court of the United States, recognizes
that its job is to make decisions based on the law, on the rule of law, that's
what everybody looks to the courts for.
BOIES: And I would
hope that everyone, once we get that decision, would respect that decision and
respect it as the rule of law.
QUESTION: Mr. Boies,
if one of the rulings should go in your favor, whether or not it's this case
or the ones that you're not officially party to in Martin or Seminole counties,
and the Florida state legislature decides to certify a slate of electors for
George W. Bush, what are your legal options?
BOIES: In terms
of legal options, obviously you have the legal option of challenging that in
some form. What we've said from the beginning is that we really hope that the
Florida legislature is not going to take what would be really unprecedented
action to try to take the election of the presidency of the United States away
from the people and solve that in a partisan legislative chamber.
On the other hand, we've
also said that we're not going to speculate on what we might do if they took
QUESTION: What is
available to you? I'm not sure I understand. Obviously, you could challenge
it. Tell us exactly what's possible.
BOIES: Well, I really
don't want to get into the legal options. I think you can get that from sort
of lots of lawyers, election law lawyers and constitutional lawyers. And one
of the problems with my speculating just as an abstract matter as to what legal
options may be is that somebody is going to misunderstand that in terms of what
our position might be. And what we've said from the beginning is that we're
not going to assume that they're going to take what we think would be a very
the secretary of state have discretion not to certify votes that may be counted
by this court?
BOIES: I don't think
so. In this country, and in this state, people do not have the option of disobeying
QUESTION: Mr. Boies,
there's a complaint that's been filed against you with the Florida bar, accusing
you of unprofessional conduct concerning the use of what they term as an old
I'm wondering, are you going
to stick with the original affidavit? And what is your response with that filing
to the Florida bar?
BOIES: I think the
Florida bar will resolve that issue. I don't think there is any merit to that
issue. And I think everybody associated with that has indicated that there is
no merit to the issue.
If it's the affidavit that
I'm thinking about, it is an affidavit the affiant of which has been deposed.
And the affiant has said that his affidavit was true and correct, that he told
us it was true and correct.
The affiant also said that
he was thereafter called by a reporter who read him selected, but not all of
the pages of a transcript that caused him to question one portion of the affidavit.
He then put in another affidavit, which he also believed at that time was correct,
and that we presented that.
Now, that affidavit of
course was never submitted either initially or in a revised state to the Florida
you talk about the Florida Supreme Court justices asking questions regarding
statewide versus the select?
BOIES: Sure. One
of the arguments the defendants have made is that if you're going to have a
recount in these three counties, you need to have a statewide recount. I think
there are three basic answers to that.
First, there's nothing
in either the statute or in Florida precedent that would support that. Indeed,
every case in which there has been a recount, the recount in the contest stage,
that is, where you're counting contested ballots, has been of a subset of the
That is, no one has ever
before suggested that you have to count all the ballots, and, indeed, the contrary
has been what people have done.
The second point is that
everybody has offered Governor Bush's team the opportunity to have a statewide
recount. Vice President Gore made that proposal two or three weeks ago. The
Florida Supreme Court made that proposal more than 10 days ago, maybe even two
weeks ago, now. In each case they've turned it down.
The third point is that
the statute in the election contest context provides that the court reviews
the allegations of the complaint. The allegations of the complaint relate to
these three counties. That's what the court is obligated to do.
The basic argument, and
I referred to this in the Supreme Court, is that now Governor Bush's lawyers
are arguing that Governor Bush has got to be protected from the mistakes that
his lawyers made. His lawyers had a perfect opportunity to ask for a recount
of any state they wanted, any county they wanted;they didn't do that. There's
nothing in Florida law that says that a candidate represented--particularly
a candidate represented by as many lawyers as Governor Bush is--needs to be
protected from those lawyers' advice.
QUESTION: It has
been said and granted perhaps by pundits, but it's been said that the arguments
that you just finished making before the seven justices are the last best hope
for Vice President Al Gore if he's going to keep alive his hopes for the presidency.
Would you agree with that assessment?
BOIES: I don't know
if I'd want to characterize it that way. Although we have said that this is
our election contest--we haven't filed any other--we have also said that the
Florida Supreme Court is going to be the final arbiter of these election contests.
So I think that if the basic question is, is the decision that we're going to
get from the Florida Supreme Court sometime soon a very important event, I think
QUESTION: The end
of the line?
BOIES: I don't know
the answer to that. I would assume so, but I don't know the answer to that.
QUESTION: Is it
the end of the line?
BOIES: I wouldn't
want to say that it's the end of the line because there are things that the
court could do, like, for example, directing that the count take place in another
forum like the circuit court clerk. The court might very well conduct the count
itself. The Massachusetts Supreme Court in the Delahunt case did the count itself.
The Supreme Court in the Pullen case, the Supreme Court of Illinois in the Pullen
case reviewed the count itself.
Now, there are only 956
ballots at issue for the Massachusetts Supreme Court to review in Delahunt,
and there are obviously more to be reviewed here, but one option is for the
Florida Supreme Court, if it decides that a review of ballots is required, would
be to do it under its own auspices. Another option would be to send it to the
clerk of the circuit court, which is what was done in the Beckstrom case two
years ago. In that case the circuit court clerk did the ballot review, the visual
QUESTION: Mr. Boies,
as long as this case remains pending, perhaps even after it's decided, where
does it leave the remand case? It's still before the Florida Supreme Court.
BOIES: I think it
is still before them. That was separately briefed, and the court indicated it
was not going to take oral argument on that case.
QUESTION: What is
the significance of that once this case is decided?
BOIES: In a sense,
there isn't any significance because the certification phase, which is what
that case was about, has now been superseded by the contest phase.
And, for example, take
Palm Beach. Palm Beach has certain ballots that we say have been identified
as legal votes for Vice President Gore and Senator Lieberman. Those ballots
have to be counted in the contest phase whether or not there was ever a manual
recount in the certification or protest phase. So there is a sense in which,
I think, that what's important is the issue that's now in front of the court,
because the contest issue is going to resolve things.
Having said that, it may
very well be that the Florida Supreme Court, given the fact the United States
Supreme Court has asked for clarification, will at some point provide that clarification.
STAFF: Two more
BOIES: Well, I think
there are two reasons. First, because we've now had a trial, most of the issues
that were relevant before have now been resolved.
For example, there is now
an undisputed record that the 215 net ballots that were counted in Palm Beach
County should be included, that they're legal votes, and that the 168 net ballots
for Vice President Gore and Senator Lieberman that were counted in Miami-Dade
County should be included. And we've made the legal arguments with respect to
So that all that remains
is the issue of the counting of the 3,300 ballots in Palm Beach and the 9,000
ballots in Miami Dade.
Since the issues as to
the logistics of that have been addressed in the brief, and there were a couple
of questions about how much time it would take, and we talked about 300 ballots
an hour, in terms of the canvassing board's progress, and since we think that
it's clear that those ballots could be counted in a variety of different ways
within the time available, I wouldn't read anything into that.
You have to keep in mind
that out of the millions of votes that were involved in this election, we're
now down to only about 13,000--or 12,300 votes--that are contested. There are
a variety of ways that those could be counted. They could be counted under the
auspices of the Supreme Court itself, as has happened in the Delahunt case,
in the Pullen case and other cases. They could be counted under the auspices
of the clerk of the Leon County Circuit Court, which is what happened in the
BOIES: No, I don't
think that's right. I think he did ask a question about that. I think he asked
a question about that today. I think he was interested in it before.
I think both he and other
justices made those inquiries today.
QUESTION: ... that
number of 13,000 because those manual recounts were conducted in Palm Beach
County, so on and so forth. If the U.S. Supreme Court somehow continues to vacate
or permanently vacate the Supreme Court--the state Supreme Court's decision
to extend that manual recount, doesn't that in fact then wipe out the Gore lead...
BOIES: No. Because
even if they weren't certified, they've still been identified as legal ballots.
In other words, once you identify something as a legal ballot for the contest
phase, that has to be counted. You cannot reject legal ballots, regardless of
whether they were identified in the certification phase or not.
Just as an example, suppose
that Miami-Dade, there'd never been an extension of the certification date.
And Miami-Dade started its manual recount, didn't certify any results, finished
its manual recount. It's now got a stack of ballots that it has identified as
votes for Vice President Gore and Senator Lieberman.
Under those circumstances,
those ballots must be counted under Florida law in the contest phase, whether
or not they were certified, whether or not they could have been certified, even
whether or not they should have been certified.
QUESTION: The justices
seemed extremely mindful of the U.S. Supreme Court's admonitions about changing
rules of engagements in the part of the Florida electors. Can you tell us how
they could possibly fashion the remedy to go along with the terms of counting
ballots under a standard that has never been applied up until now in this election?
BOIES: Well, first
of all, the premise of the question that it has never been applied up until
now in this election, I think is not right.