Thursday, December 7, 2000
Following 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?
DOUGLASS: Well, we'll meet and discuss what direction we take.
QUESTION: Would 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. Supreme Court.
DOUGLASS: Well, 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.
DOUGLASS: Well, 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?
DOUGLASS: That's 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 Beach.
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.
(CROSSTALK)
QUESTION: (OFF-MIKE)
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.
QUESTION: (OFF-MIKE)
DOUGLASS: Wouldn't 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.
QUESTION: (OFF-MIKE)
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.
QUESTION: Isn't 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.
QUESTION: (OFF-MIKE)
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.
(CROSSTALK)
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 Supreme Court.
DOUGLASS: There are other cases pending.
QUESTION: Will you say here today that December 12 is the drop-dead date?
BOIES: I'm sorry, what?
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.
QUESTION: (OFF-MIKE)
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.
QUESTION: (OFF-MIKE)
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 continue.
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 that step.
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 unfortunate act.
QUESTION: Would 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 court orders.
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 affidavit.
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 Supreme Court.
QUESTION: Could 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 ballots.
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 it is.
QUESTION: The end of the line?
(CROSSTALK)
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 ballot review.
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 questions.
(CROSSTALK)
QUESTION: (OFF-MIKE)
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 Nassau County.
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 Beckstrom case.
(CROSSTALK)
QUESTION: (OFF-MIKE)
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.
(CROSSTALK)
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.