(12/04) Boies on U.S. Supreme Court Decision

Monday, December 4, 2000

Following is the transcript of a news conference with Gore attorneys David Boies and Ron Klain, reacting to the U.S. Supreme Court's decision to send the recount case back to the Florida Supreme Court.

QUESTION: Will you respond to the Supreme Court ruling today and how this affects Judge Sauls' opinion?

BOIES: Obviously, I think you've all heard that Judge Sauls has postponed the delivery of his opinion pending his review of the Supreme Court decision. What we hope is that, after reviewing it, he will then issue his opinion.

I think the Supreme Court of the United States' opinion does not in any way affect the contest that is going on in front of Judge Sauls, and we would hope that that decision would be issued promptly.

QUESTION: To follow up, you relied heavily on the Supreme Court's decision in your closing argument, so do you think that would cause him pause now to ask for new evidence or a new argument?

BOIES: Remember, the thing that we relied on heavily in the contest section was the statutory interpretation portion of the Florida Supreme Court decision, and that is exactly the portion that the United States Supreme Court says raises no problem at all.

The only issue that's raised for clarification in the United States Supreme Court decision is to what extent was the Florida Supreme Court, in reaching its certification deadline decision, relying on Florida statutes and Florida statutory interpretation, and to what extent was it relying on an interpretation of the Florida Constitution?

Now, as you know, in my closing argument yesterday, what I was talking about was entirely the statutory interpretation, because that was what was relevant to the contest proceeding. That part of the opinion is not, in any way, affected by what the United States Supreme Court did.

QUESTION: Do you believe that it changes the vote total from 537 back to 930 votes?

BOIES: It doesn't now. There are a variety of steps by which you can conceive that happening.

For example, if the Florida Supreme Court were to rule that its decision was necessarily based on a constitutional interpretation, and if that went back to the United States Supreme Court and the United States Supreme Court were then to rule that the Florida Supreme Court could not do that--none of those holdings have been made yet--then you would have to go back and start with the 930 as opposed to the 537.

Now, of course, all that means is that Broward County is in the same position as Palm Beach and Dade, because Palm Beach and Dade were not included in the certification anyway.

QUESTION: What do you want the Florida Supreme Court to do now?

BOIES: Well, it's always been the case, everybody's always known, that this case was going to end up in the Florida Supreme Court from Judge Sauls' decision. At that time, the Florida Supreme Court now may have to deal with a clarification of its original decision.

So it may be one more issue for the Florida Supreme Court to deal with.

What we want is what we've wanted from the beginning, which is an expeditious resolution of this issue.

QUESTION: But isn't that the problem you have now? You keep talking about having expeditious resolution, and now we have one more issue that is, at the very least, going to delay the process to a certain degree. Meaning, Judge Sauls has already said he wants to reread the opinion. The Florida Supreme Court may have to re-rule, in essence. As a result, you may have to amend the pleadings here. Isn't this a practical problem for your case?

BOIES: I don't think--and I don't mean to minimize a two-or three-hour delay in Judge Sauls issuing his opinion because, obviously, everything is tight. But I don't think the court taking a couple of hours to read the United States Supreme Court opinion is either unreasonable or unnecessarily delays things. I think we'll still have an opportunity to bring that up to the Florida Supreme Court.

And when the Florida Supreme Court gets this issue, the fact that it has to clarify its opinion I don't think is something that ought to cause any delay. Remember, the Florida Supreme Court has already laid out its statutory interpretation, so it doesn't have to revisit that. All, in our view, it has to say is that this was a sufficient grounds for its opinion.

QUESTION: Mr. Boies, a large part of your arguments, opening and closing, used the Florida Supreme Court decision as a part of your arguments. One, as a practical matter, does that somehow affect the record? And, two, does it change the weight of some of those arguments that you presented before Judge Sauls?

BOIES: I don't think that it affects the Florida Supreme Court decision the way we used it with Judge Sauls. As you know, the Florida Supreme Court decision talked about statutory interpretation, and that was the primary part of the opinion. And it also talked about the Florida Constitution.

What we were urging to Judge Sauls is that the statutory interpretation provisions of that opinion were important for him to consider in this contest action. Those statutory interpretation provisions the United States Supreme Court upholds. It says the Florida Supreme Court has a perfect right to do that. Part of the opinion stands untouched.

What the United States Supreme Court said is that we want to know whether that statutory interpretation portion of the opinion, which the Florida Supreme Court had a perfect right to do, was sufficient for the deadline decision, or whether it was necessary to the Supreme Court's decision on deadline to construe the Florida Constitution.

If the latter is the case, then the United States Supreme Court says, we need to reach a federal issue as to whether or not construing a constitutional provision that will affect the presidential election is or is not consistent with Article II. As you know, we believe it would be because, particularly in Florida, the Florida Constitution is promulgated by the legislature, so it is the legislature acting through the constitution just as the legislature acting through statute.

Article II doesn't say that the legislature can only act through statute. However, that's a decision that the United States Supreme Court did not reach, because it held it did not want to reach the federal question until it had clarification.

QUESTION: As a practical matter, you have a circuit judge here having a unanimous decision coming down from the U.S. Supreme Court, vacating the decision that was relied on, in part, in your case. There must be some reaction that he must have and that you must have that...

BOIES: I think that the reaction, particularly when the United States Supreme Court says that the Florida Supreme Court had the perfect right to do its statutory interpretation, and since the statutory interpretation is all that is relevant to the contest action, I think that, to the extent that the court needs to take that into account, it is further evidence that the Florida Supreme Court, as far as statutory interpretation was concerned, had the final authority.

So I think that reinforces that portion of the court's opinion that we relied on.


QUESTION: ... circuit court judge whether it's a full day that the state Supreme Court considers this. Aren't you really running out of time, though, to have these votes counted and win this thing?

BOIES: Obviously, we'd like to have the votes counted as soon as possible. On the other hand, I think a two-hour delay in the decision--and we don't even really know that there's going to be a two-hour delay. The court said that it was going to announce the decision between noon and 2 o'clock.

That's now been put on hold. The court has said it's going to announce what it's going to do at 2 o'clock. We'll find out then whether there will be any significant delay at all. So I don't think that you can read a great deal of delay into this issue.

If matters are delayed, there is no doubt that is to our disadvantage, because we want to get this done quickly. But there's no reason that this needs to delay things. We've always said, both sides, that this was ultimately going to go to the Florida Supreme Court. Now when we go back to the Florida Supreme Court, there's going to be this additional issue.

We think that issue is going to be relatively easily dealt with by the Florida Supreme Court, but as you know, I'm not going to predict.

QUESTION: Ron, two questions. Number one, you're not merely one of the vice president's lawyers, you're one of his political advisers. So, politically, if you don't get a favorable court ruling either from this court or the Seminole case, can you survive? Can you keep fighting more than two or three days if you don't have some court rule in your favor? Then I've got a follow-up...

KLAIN: Well, I think that we've made it clear, as David just said, that this case is going to wind up in the Florida Supreme Court. Obviously, we'd prefer to win in Judge Sauls' courtroom and be defending that on appeal.

But one way or another, this case is going to be resolved by the Florida Supreme Court. I think the American people understand that. And that's certainly where we're headed.

As for what the U.S. Supreme Court did today, I think that it made it very clear that it was neither agreeing or disagreeing with the Florida Supreme Court, but merely sending it back for more clarification.

And as a result, I don't think it's a win for either camp. I think it's a no-decision, and leaves this questions for another day. And that day is not some day off far in the future, but a day that's coming very soon, when this entire matter is brought to the Florida Supreme Court for its resolution.

QUESTION: In retrospect, do you wish that you had not challenged the original filing date? Would you have just let the certification take place and then you would have had a lot more time to take this contest procedure?

KLAIN: No. I think in retrospect, I continue to wish that Secretary of State Harris had not have acted in a way to cut off the tabulation of ballots in these three counties.

Let's remember why we're here. We're not here because we wanted to be in court. We're here because our efforts to get lawful votes tabulated were cut off by partisan efforts by the secretary of state to end those counts. And if, in fact, those counts had been done without her interference, they'd be over, they'd be in the tally, we'd all know who had won, and we could all go home.

We're here now only because there have been a series of efforts, many of which have been struck down by the Florida courts, to block the tabulation of these votes, and we need to continue to fight to get all the votes counted.

QUESTION: It's my understanding that you're saying that you don't think that the Florida Supreme Court will act on the recount until Judge Sauls rules and someone appeals that ruling?

KLAIN: Well, I think the Florida Supreme Court will do what it's going to do. Given the tightness of the timetable, I think it's very likely that all these things would wind up completed before the Florida Supreme Court. But there could be separate proceedings, but we're talking about a very tight timetable that my guess would be done in one proceeding before that court.

QUESTION: In the end, this U.S. Supreme Court decision has to be a disappointment. I mean, your reaction has to be something of disappointment that we're not moving forward.

KLAIN: Well, I don't consider it a disappointment or a positive development; I consider it a neutral development.

This court could have done one of three things: It could have ruled for us, it could have ruled against us or it could have done what it did today, which is to say there isn't enough here for us to decide, go back to the Florida Supreme Court, get a clear ruling from the Florida Supreme Court, and then we'll look at it then.

And from our perspective, that's neither good news or bad news, it's just no news. And so, we'll proceed with what is the heart of this matter, which is the counting of those 14,000 ballots that are yet to be counted. We're before Judge Sauls on that. We'll see what he does. We'll take the next step in that process.

But the U.S. Supreme Court's decision today I think is just a no decision.

QUESTION: But, David, you keep saying, you know, this is just a two-hour delay, it's no big deal. But this might be not a two-hour delay, you know, Judge Sauls could come two days from now, three days from now, you don't know how long he's going to wait.

BOIES: I think there is no doubt that, if there was to be a delay of several days here, that would be a disadvantage. We're going to ask Judge Sauls to act promptly, as he has said he would, and has he has acted promptly. I really don't think that Judge Sauls is going to delay this decision a long period of time. I think he recognizes the importance of making a decision, one way or another, and getting this finally resolved.

QUESTION: Did you get a chance to make your points to the judge, though, about your interpretation of the Supreme Court's decision? I mean, will you get a chance to tell a judge that in any kind of filing or will that come later if he doesn't rule right away?

BOIES: If he doesn't rule right away, and if he wants to hear from us on that issue, we will obviously express our views. But I think that what he's indicated is he's going to read that decision. And I think once he reads the decision, I think he will not need to hear from us.


QUESTION: ... if the original certification deadline stands, then you would have filed your contest too late I guess, after the 10-day period after the certification, that you might lose your chance for that?

BOIES: No, I don't think there's any chance of that. I don't think there's any chance that we will be ruled to be out of time, since there was an actual certification and since, at the time that we filed our contest, we were following a Florida Supreme Court decision that we think will ultimately be upheld.

QUESTION: But, Mr. Boies, as a technical matter, if now as it stands, the votes are 930. Would you agree?

BOIES: No. No, not at all. Not at all.

The Florida Supreme Court's decision has not been reversed. The Florida Supreme Court's decision has been sent back to the Florida Supreme Court for the Florida Supreme Court to give its interpretation of what it was doing.

The United States Supreme Court is expressly saying that is it not reversing the Florida Supreme Court.

In fact, the United States Supreme Court is saying they don't even know whether there's a federal issue there or not. If there's not a federal issue, the United States Supreme Court has no authority at all. And what the United States Supreme Court is saying is that, in order to determine whether or not there's a federal issue--and remember, that's the predicate of any action from the United States Supreme Court at all--in order to determine whether or not there is a federal question, we need clarification from the Florida Supreme Court.

So if the Florida Supreme Court gives clarification that says there's not a federal issue, this is just statutory interpretation, that's the end of it, and the United States Supreme Court has said that's the end of it.

QUESTION: But do you think they could come to the same conclusion without relying on the Florida Constitution, which they are not allowed to do under the Supreme Court ruling?

BOIES: Well, first of all, the United States Supreme Court did not say that they were not allowed to rely on the Florida Constitution. What the Supreme Court said is that if they relied on the Florida Constitution, that would raise a question for decision. OK?

So the United States Supreme Court has not at all said that the Florida Supreme Court could not rely on the Florida Constitution, and indeed we believe they could rely on the Florida Constitution in at least two senses: one, that is a way that the Florida legislature does act under Florida procedures; and second, the Florida Constitution is part of the general fabric of interpretation of election laws that the Florida legislature can be presumed to take into account when it is passing election laws.

However, independent of the Florida Constitution, we think the prior decision of the Florida Supreme Court makes absolutely clear that this is normal, garden-variety statutory interpretation and that they don't need the Florida Constitution.

Remember, the Florida Supreme Court based its decision on cases like Chappell against state in 1988, and the Beckstrom case in 1998, both nonconstitutional decisions, both decisions interpreting Florida election statutes. And both of those decisions we believe compel exactly what the Florida Supreme Court did.

For example, in the Chappell case, the Florida Supreme Court held that you couldn't have an arbitrary deadline. That's exactly what they held in this case. In the Beckstrom case, and in the Boardman case that goes all the way back to 1975, the Florida Supreme Court said, you can't throw out the votes of voters just because county election officials didn't do their job right; that is, didn't get the manual recounts done in time. That's exactly what they held here.

So purely based on precedent, the Florida Supreme Court decision, we think, was soundly based, regardless of the Florida Constitution.

In addition, the Florida Supreme Court says all we're doing is reconciling statutes, and that's what courts do all the time. So we think there is entirely a sound basis independent of the Constitution.


QUESTION: Mr. Boies, is it possible then that the justices of the Florida Supreme Court know why they ruled, and that they could just issue a clarifying decision this afternoon about any further action from attorneys? Or is that not...

BOIES: They could. They could. And in a case of this nature, and these kind of time constraints, they might. That would be unusual. I think they might take additional briefings, although, as you say, they know why they ruled and they can tell us any time.