November 6, 2024 • 46 mins
Democrats and Republicans hope for the best and plan for the worst.
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Episode Transcript
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Speaker 1 (00:16):
Pushkin. Hey Leon here, Before we get to this episode,
I want to let you know that you can binge
the entire season of Fiasco Bush v goor right now
ad free by becoming a Pushkin Plus subscriber. Sign up
for Pushkin Plus on the Fiasco Apple podcast showpage, or
(00:37):
visit Pushkin dot fm slash Plus. Now onto the episode
previously on Fiasco. Many in this nation are getting anxious.
Speaker 2 (00:49):
There are battles going on in county offices all over
the state.
Speaker 3 (00:53):
Republican demonstrators storm the hallways.
Speaker 1 (00:55):
They were pounding on the glass, and I mean people
were really fired up.
Speaker 4 (00:59):
There would be no more counting of votes in Miami.
Speaker 5 (01:02):
Gore made a conscious decision that he would fight in
the courts, but not on the streets.
Speaker 6 (01:07):
Let's turned out a Palm Beach County where the canvassing
board is trying to be the deadline of five pm today.
Speaker 7 (01:12):
The Secretary of State has apparently decided to shut us
down with approximately two hours left to go.
Speaker 1 (01:17):
Hi hereby declare Governor George W.
Speaker 8 (01:20):
Bush the winner of Florida's twenty five electoral vez what.
Speaker 9 (01:24):
By any reasonable standard, is an incomplete and inaccurate count.
Speaker 1 (01:33):
When Secretary of State Catherine Harris certified the results of
the Florida election for George W. Bush. The Texas governor,
took the opportunity to affirm the inevitability of his presidency.
Speaker 10 (01:43):
Secretary Cheney and I are honored and humbled to have
won the state of Florida, which gives us the needed
electoral votes to win the election.
Speaker 1 (01:53):
It was a strategy that Bush and his team have
been using since the recount started. Whenever possible, they would
try to make it seem like Bush was already president elect.
They would leak the names of cabinet members he was
recruiting in Texas.
Speaker 11 (02:05):
Today, Governor Bush had a conspicuous meeting with General Cole
and Powell have.
Speaker 1 (02:10):
Him give speeches and settings that evoked the White House.
Speaker 12 (02:12):
I understand there are still votes to be counted, but
I'm in the process of planning in a responsible way
a potential administration.
Speaker 1 (02:21):
And they would insist over and over that he had
already won Florida, not once, but twice. After the certification ceremony,
there was an extra element of posturing to Bush's rhetoric,
because even though the election in Florida was now technically over,
Bush knew full well that the Gore campaign was not
giving up.
Speaker 10 (02:41):
The Vice President's lawyers have indicated he will challenge the
certified election results. I respectfully ask him to reconsider.
Speaker 1 (02:50):
Gore and his lawyers had just one move left. They
were going to formally contest the outcome of the election,
and they would do so by filing a so called
contest lawsuit, naming the Bush campaign and the Florida Secretary
of State as defendants.
Speaker 13 (03:04):
Obviously, the great sensitivity in the Gore campaign now to
make the case to the American people that know this
is not over.
Speaker 1 (03:10):
The Gore team had fought desperately to avoid the situation
they now found themselves in. If only they could have
put more points on the board before Florida's vote count
was certified, it could have been Bush trying to overturn
the outcome of the election. Instead, Gore was now officially
a sore loserman trying to claw his way back from
the dead, and he was running out of time.
Speaker 9 (03:32):
As Florida's ticking clock becomes a second adversary in the
desperate search for votes.
Speaker 14 (03:37):
They need decisions, they need them yesterday. They need counts,
they need the counts right away.
Speaker 2 (03:42):
We've gone from protest certification last night, and now contest.
Speaker 1 (03:46):
Well, I think it's an uphill battle. Not impossible, but
I think it's very difficult Roe to hoe. The Gore
team's mission was to convince a judge that the election
results did not accurately reflect the will of Florida voters.
Step one was to figure out what happened before, during,
and after election day that cast doubt on the legitimacy
of the outcome.
Speaker 15 (04:05):
The big question as we approached the contest phase was
what should we be contested.
Speaker 1 (04:11):
This is Jeremy Bash in two thousand. He was a
twenty nine year old doing policy work for the Gore
campaign when the recount started. His law degree earned him
a junior spot on the legal team in Tallahassee. I
had never practiced law a day in my life. I
had served as a law clerk for a federal judge.
Speaker 15 (04:27):
But on election night they said, anybody who's a lawyer,
if you were working in Nashville, Tennessee, at the Gore
campaign headquarters, you were told to go home and pack
for three days and come back and end up having
to last thirty six days for the full recount.
Speaker 1 (04:42):
Bash had been in Florida for about three weeks when
Bush's victory was certified and the contest phase of the
election began. Basher remembers listening in as the campaign's top
lawyer's brief Gores and his political advisors on what could
happen next.
Speaker 15 (04:56):
The legal team presented to the campaign leadership a variety
of options, and in that meeting we laid out all
the various ways we had suspected that either Democrats' effort
to vote had been denied or Republicans engaged in some
quote unquote dirty tricks to prevent Democrats from voting.
Speaker 1 (05:17):
Some members of the Gore team felt they should include
as many grievances as possible in their complaint. They favored
a two pronged approach, fighting to count likely Gore votes
that had been unfairly thrown out, while also fighting to
throw out likely Bush votes that had been unfairly counted.
In this maximalist version of the contest lawsuit, the Gore
lawyers would object to the counting of military ballots that
(05:39):
lacked proper postmarks and signatures. These were the overseas absente
ballots you heard about in our previous episode. They would
also bring up a controversy involving thousands of absente ballot
applications that had come in without voter ID numbers. Republican
officials had quote unquote fixed the applications by writing in
those ID numbers by hand after they were received, and
the resulting ballots have been counted. Anyway, not everyone on
(06:03):
the Gore team wanted to go into the contest guns blazing.
Here again is Jeremy Bash.
Speaker 15 (06:08):
My view was that if we were going to take
this thing to court, if we were going to file
the first contest of a presidential election in US history,
it should be on the strongest, narrowest, most ironclad grounds
that we could stand on. We didn't want the voters
to think that we were throwing everything against the wall
(06:29):
to see what would stick, that we were really focusing
only in the areas where we thought that a full
recount was necessary.
Speaker 1 (06:37):
Bash had arrived at this conclusion by way of his
daily interactions with journalists who were covering the recount and
who would come to him with questions about the Gore
teams legal strategy.
Speaker 14 (06:46):
There was this.
Speaker 15 (06:46):
Deep skepticism about what we were doing, and in general,
their approach and their attitude was Gore is trying to
undertake these herculean efforts to reverse the election.
Speaker 16 (06:59):
Result, any sign that he's considering a concession speed.
Speaker 3 (07:02):
The time is fast approaching to accept the certified results
in Florida and conceive the.
Speaker 7 (07:07):
Election, and one Congressional Democrat has said publicly that Gore
should throw in the towel.
Speaker 15 (07:13):
It was quite dispiriting, actually, because the whole vibe of
the reporting was that Gore was behind, we were behind,
and that we were trying to do something fairly unprecedented
American history to undermine what had already been decided.
Speaker 17 (07:28):
Apparently, many Americans are ready for this election to be over.
A new ABC News Washington Post poll shows sixty percent
of people say Vice President Al Gore should concede the election,
but thirty.
Speaker 1 (07:40):
In the end, Gore's lawyers decided to limit the scope
of their lawsuit rather than going with the kitchen sink approach,
So instead of trying to get any Bush votes thrown out,
they would focus exclusively on getting more Gore votes counted
first and foremost. That would mean asking for the unfinished
hand recounts in Palm Beach and Miami Day to be completed,
this time using a more lenient standard for determining voter intent.
Speaker 13 (08:03):
The Democrats trying to make the case now that there
are roughly fifteen thousand or so votes that have never
been counted or at least never manually inspected.
Speaker 1 (08:12):
When it came time to pull together the documents for
the contest filing, Jeremy Bash stood by the office printer
with Dexter Douglas, another lawyer working for the Gore campaign.
Together they waited for a copy of the complaint to come.
Speaker 15 (08:23):
Out, and we were waiting and waiting and waiting, and
I said, it feels like Dexter were sitting here waiting for.
Speaker 1 (08:29):
A baby to be delivered. Douglas, who died in twenty thirteen,
had been agitating for a more aggressive approach. He thought
the Gore team was making a mistake and being so
focused and meek.
Speaker 15 (08:41):
And he said, well, is it going to be a
boy or a girl? And we kind of chuckled about that,
and then when the paper rolled off the printer, we
both read it and he said, well, it's a boy.
It's got very small balls, but it's a boy.
Speaker 1 (08:59):
It's hard to say how much of a chance Al
Gore really had at this point, but the Bush campaign
and their allies were not taking anything for granted. While
Gore's lawyers took the extraordinary step of contesting election, Republicans
in the Florida State Legislature were setting the stage for
hail Mary of their own.
Speaker 18 (09:15):
The state legislature here in Tallahassee is moving rapidly to
try to take control of this election away from the courts.
Speaker 1 (09:22):
If the plan worked, the Republicans in the Florida State
Legislature would be able to deliver the state's twenty five
electors to Bush. No matter what. I'm Leon Nafock from
Prolog Projects and Pushkin Industries. This is fiasco Bush v.
Speaker 17 (09:39):
Gore.
Speaker 18 (09:41):
The Republicans here in Tallahassee brought down the hammer tonight's.
Speaker 14 (09:45):
Leu essentially wipe out the entire election.
Speaker 19 (09:47):
If you do not like political chaos, it's about time
to head for the storm.
Speaker 7 (09:51):
Seller.
Speaker 20 (09:52):
When they had offered me the bulletproof vest I think
that scared me more than anything else.
Speaker 3 (09:55):
Dead Those couple of hours today were just positively.
Speaker 1 (09:58):
Explosive Episode five contingencies. As a threat of a constitutional
crisis hangs over Tallahassee, both Democrats and Republicans prepared a
cross line never before crossed in modern politics, the Florida
(10:23):
State Legislature was a lopsided body. In the state Senate,
Republicans outnumbered Democrats twenty five to fifteen. In the State House,
Republicans outnumbered Democrats seventy seven to forty three. It was
a factive life in Florida that if Republicans in the
state Legislature rallied around an idea, they could take it
all the way without any Democratic support.
Speaker 21 (10:43):
Good afternoon, everyone. I hope those of you that aren't
from Florida are enjoying your Florida vacation and our economy
appreciate your help.
Speaker 1 (10:53):
That's John McKay, the Republican president of the Florida State
Senate at the time of the recount. A few hours
after the Gore team filed their contest lawsuit at the
Leon County Courthouse in Tallahassee, McKay held a press conference.
He took the opportunity to lay out his view of
how the state legislature can help rescue Florida from its
ongoing political nightmare.
Speaker 21 (11:13):
The US Constitution and the federal law vest the legislature
with the ultimate authority to designate the manner of appointing
presidential electors.
Speaker 1 (11:25):
To grasp what McKay was proposing. It helps to have
a literal understanding of what the electoral college is and
what it means in practice to be a presidential elector.
Most people don't realize that when they vote for president,
they're not voting directly for their candidate.
Speaker 22 (11:40):
They think they're voting for a presidential candidate, and they're not.
They're voting for electors that have been put up by
each of the parties.
Speaker 1 (11:48):
Basically, each state gets to pick a certain number of
electors to represent them in the electoral College, and when
you vote for president on election day, you're actually voting
for the electors that have been chosen by your candidate's
political party. So, for instance, when Bill Clinton won Florida
in nineteen ninety six, the Democratic Party sent a slate
of twenty five Democratic electors to vote in the electoral College,
(12:10):
Florida's behalf. All of this happens on a strict schedule.
In two thousand, all five hundred and thirty eight electors
around the country were supposed to cast their votes on
December eighteenth.
Speaker 9 (12:21):
By December eighteenth, those electors must send their votes to Washington.
On January sixth, the new Congress certifies the vote. January twentieth,
a new president is inaugurated, so.
Speaker 1 (12:33):
A little over a month before the new president would
be inaugurated. Crucially, federal law also called for each state
to choose its electors six days before the electoral college
vote took place.
Speaker 9 (12:44):
December twelfth is key the day Florida certifies its electors.
Speaker 1 (12:48):
On the day Gore filed the contest lawsuit and Florida
Senate President John McKay gave his press conference that was
a little more than two weeks away.
Speaker 21 (12:56):
If unresolved by the twelfth, then the Legislature has the
authority and may have the responsibility to step in to
determine and communicate to Congress Florida's electors.
Speaker 1 (13:09):
It was McKay's view that all the suing and hand
counting and contesting that al Gore was doing was placing
Florida's electoral votes in jeopardy. McKay and his fellow Republicans
feared that if all the legal wrangling wasn't over by
December twelfth, Florida would be left out of the electoral
college vote altogether, and none of Florida's six million ballots
would count At all. The Republicans found their solution in
(13:31):
Title three, Chapter one, Section two of the US Code,
which said that the state legislature had the power to intervene.
Here again is McKay.
Speaker 22 (13:40):
I did not want Florida's voters votes not to be counted,
and if I remember correctly, about six million people voted
that year. I wanted to make sure those votes were counted,
and I hoped that the court system would resolve it.
But if they didn't, the legislature had to be prepared
(14:00):
to go into session or else everyone's votes in Florida
would not be counted.
Speaker 1 (14:06):
The Democrats in Florida did not buy this rationale, convinced
that the Republicans were scheming to deliver Florida's electors to Bush,
regardless of how Gore's contest lawsuit turned out or who
ultimately prevailed in the state's popular vote.
Speaker 18 (14:20):
Angry Democrats charging today, but that would be little more
than a naked attempt to fix the election for George W.
Speaker 9 (14:26):
Bush.
Speaker 23 (14:27):
We should not serve as an insurance policy for a
Bush presidency.
Speaker 6 (14:31):
To go down this road is to shake the very
foundations of.
Speaker 1 (14:35):
Our democracy as they saw it. McKay and the Republicans
were laying the groundwork for a power grab, an unconscionable
and run around Florida's electorate.
Speaker 14 (14:43):
They were going to change Florida law after the fact
to say that the ballots people would cast an election
date had zero impact on Florida's electors. That instead that
the legislators would meet and they would elect a slate
of electors.
Speaker 1 (14:59):
This is Ron Klain, who served as the top legal
strategist on Gore's recount team in Florida.
Speaker 14 (15:04):
So they would essentially wipe out the entire election.
Speaker 9 (15:08):
You know.
Speaker 14 (15:09):
Their basic argument was, Hey, it's a mass it's confusing.
How about this, how about we let these fine legislators
over here decide whether not Bush or Gore will be president.
Speaker 1 (15:18):
McKay rejects this characterization. He told me that he only
grudgingly endorsed the idea of the so called en run,
and though he was prepared to carry it out if
it looked like Florida's electors wouldn't otherwise be seated in time,
he shuddered to think of the president it would say.
Speaker 22 (15:31):
I was concerned, and I'm still concerned that if you
had similar circumstances and you had a rabbit legislature that
the partisanship would trump comments sense. And I thought that
the legislature acting to select a presidential candidate could, perhaps
(15:55):
one hundred years from now, give precedent where a legislature
might do that. And I didn't want to be part
of giving somebody a blueprint for ill purposes.
Speaker 1 (16:10):
You didn't want to do this right because you didn't
want to set a precedent for someone else down the
line to take over RISI and the Democrats as they
saw you doing, they said, that's what you're doing. You're
trying to take over this election. So what was your
rebuttal to that?
Speaker 22 (16:23):
My rebuttal would have been had anybody ask me that question.
I've postponed this as long as I can possibly postpone
it without jeopardizing the votes of six million Floridians.
Speaker 1 (16:35):
Even as plans for the legislative endron solidified in the Capitol,
Gore's effort to contest the election was just getting started.
Speaker 24 (16:42):
We're expecting in ten minutes for two lawyers for al
Gore to walk into this courthouse, the Leon County Circuit
Court in Tallahassee and officially challenged the results of the
presidential election. In the United States of America in the
year two thousand.
Speaker 14 (16:54):
The two lawyers.
Speaker 1 (16:55):
It was November twenty seventh when Jeremy Bash and Dexter
Douglas took the contest lawsuit out of their office printer
and walked it over to the courthouse. Cameras flashed around
them as journalists tried to capture the historic.
Speaker 16 (17:05):
Moment as the attorneys for al Gore come into that
courthouse and file their contest to the results. As you
can see here walking across with some degree of consciousness
and ceremony, albeit somewhat informal.
Speaker 1 (17:19):
Here again is Jeremy Bash.
Speaker 15 (17:21):
I held the pleadings in my hand, and I slid
the complaint under the glass window. It was the first
contest of a presidential election US history that I filed
with my own hands. And the staff at the Leon
County Courthouse took the pleading. They turned their back on us,
and they went to the back of their workspace and
(17:43):
they spun a wheel.
Speaker 22 (17:44):
What will happen is it will be assigned to a judge.
Speaker 14 (17:47):
A judge will then.
Speaker 1 (17:48):
Set a date for a The wheel, which was actually
just a computer program, would determine which judge the Leon
County Circuit Court would be assigned to preside over the contest.
Going into the Scampbell, Tallahassee Native Dexter Douglas had given
the Gor team permission to be optimistic. In his opinion,
most of the judges in the pool would be receptive
to their arguments.
Speaker 15 (18:09):
And they pulled a name off of the wheel and
they came back and they said, you have been given
Judge sauls that's what the wheel has given you. And
Dexter Douglas he motioned at me like, don't say anything,
but he kind of just shook his head and he said,
can I of motion?
Speaker 1 (18:26):
Come with me?
Speaker 15 (18:27):
And we scurried back down the hallway into the elevator.
We were followed by the press, and once the elevator
doors closed and the press was out of earshot, Dexter
just said to us, he said, that's a bad seed.
Speaker 1 (18:39):
That's a bad draw. Judge Saws is not good for us.
Judge N. Sanders Saws was a lifelong North Florida Conservative.
He also had a contentious history with the Florida Supreme Court,
which many Republicans perceived as being biased towards Gore.
Speaker 7 (19:00):
Judge N. Sanders Salt and his rn ends with the
Florida Supreme Court, his being a very strict constructionist, and
here's a case.
Speaker 1 (19:07):
Almost immediately the Gore team realized they had to get
the contest lawsuit out of Saualz's courtroom one way or another.
They briefly considered asking him to accuse, but they decided
against it. Instead, they set out to lose as quickly
as possible. Here again is Gore recount strategist Ron Klain.
Speaker 14 (19:26):
In the few minutes after it happened, as we were
sitting around discussing trial strategy, and it was very simply this,
we need to lose, and we need to lose fast.
Speaker 1 (19:34):
The faster they could get a ruling out of Saulves.
The Gore team vigured, the faster they could appeal the
case and get it in front of the Florida Supreme Court.
At least there they would have a chance.
Speaker 11 (19:50):
As the battle on the Florida Arena shifted to the
legal arena, the Gore campaign brought in a heavyweight. His
name is David Boys, and he's a legend in his
own time, a New York lawrior with an enviable record
in a quirky personal style.
Speaker 1 (20:04):
David Boys was in a meeting with Calvin Klein when
one of Gore's friends called his law offics and asked
him to join the recount effort Florida. Boys was representing
Klein in a trademark case that was supposed to go
to trial soon, but he wasn't about to say no
to helping the Vice President.
Speaker 5 (20:18):
Even at that stage. We knew it was an important case.
We knew it was a case that was going to
involve historic decisions, and to have an opportunity to have
a front row seat and maybe even be a participant
was something that would have been hard to turn down.
Speaker 1 (20:36):
Boys had won some of the most spectacular lawsuits in
the past fifteen years. He had represented the federal government
in the monopoly case against Microsoft. He had also represented
the New York Yankees in an anti trust suit against
Major League Baseball. Boys was known for speaking in court
without notes and for showing up to arguments wearing sneakers
to fill out the picture of the eccentric genius. He
(20:56):
was frequently seen eating candy or ice cream.
Speaker 9 (20:58):
Last year's Lawyer of the Year, according to the National
Law Journal, profiled in Vanity Fair and People Magazine, the
litigator in cheap.
Speaker 1 (21:06):
Boys was responsible for crafting the lose fast strategy in
front of Judge Salls. Instead of calling dozens of witnesses
in order to prove that manual recounts were needed in
Palm Beach and Miami Dade, Boys just wanted to keep
things moving. The December twelfth deadline for seating electors was
weighing on him, and if the Gore team's end game
was to get the case to the Florida Supreme Court
and then have the ballots counted by hand, they had
(21:28):
to get through the SAAL's trial as efficiently as possible.
To save time, Boys asked Saals to order the ballots
from Miami Dade and Palm Beach transported to Tallahassee. That way,
if the judge did decide to do a manual recount,
at least the ballots would already be there.
Speaker 5 (21:43):
We wanted to get the ballots up in Tallahassee so
that they could be counted quickly. We didn't want to
waste another day after a decision getting the ballots up
there to be counted.
Speaker 1 (21:57):
After Judge Sauls granted Boys's request, the one point one
million ballots cast in Miami Dade in Palm Beach were
placed in boxes and driven up to Tallahassee in trucks.
Speaker 11 (22:06):
More than four hundred and sixty thousand ballots from Palm
Beach County were packed into a rider truck and driven
to the state capitol in Tallahausee today.
Speaker 1 (22:14):
A woman named Ivy Corman, who worked in the Miami
Dade Election Supervisor's office, was assigned to watch over the
ballots as they made the trip.
Speaker 25 (22:22):
When all of the ballots needed to go up for
storage in Tallahassee, it was loaded by warehouse personnel. We
got it all in there, everything was locked up, and
that was it, and we just took.
Speaker 15 (22:34):
Off the six hundred thousand ballots more than two tons worth,
that were loaded up and sent by truck from Miami
to Tallahassee.
Speaker 1 (22:42):
Today, as the truck sped down the highway, flanked by
law enforcement vehicles, TV news helicopters glided above and broadcast
the journey live.
Speaker 3 (22:50):
The election battle as television spectacle. In the company of
police SWAT teams. More than a million ballots from Miami
Dade and Palm Beach Counties driven in the convoy to
the state capitol Tallahassee.
Speaker 1 (23:02):
And then the IVY Corman remembers feeling like she was
part of a huge production.
Speaker 25 (23:06):
They had the SWAT team come and we were going
to have a policeman, a SWAT member, and myself with
the ballots in one truck, then an empty truck in
case this truck broke down, then another policeman. Then we
had cars of Republican officials, Democratic officials, We had newspaper reporters, everybody.
(23:31):
There must have been at least a caravan of thirty
cars and a helicopter.
Speaker 26 (23:38):
The final installment of that million ballot convoy delivered from
Miami today.
Speaker 1 (23:43):
Caravan arrived in Tallahassee in the late afternoon of December. First,
did you help unload the truck?
Speaker 27 (23:48):
I hack?
Speaker 25 (23:48):
No, No, I didn't. We signed over custody to the
Leon County Supervisor of Elections and said goodbye, thank you,
and that was that.
Speaker 1 (24:04):
In the end, despite repeated prodding from the GORGE team,
Sauls declined to count or even look at the ballots
that had come in from Palm Beach and Miami Dade. Instead,
he listened to testimony from a handful of expert witnesses,
including a statistician who had studied voting technology and an
inventor who had helped design the punch card machine.
Speaker 26 (24:22):
Their expert witness points to flaws in the bodomatics design,
years of wear, and voter confusion.
Speaker 9 (24:28):
This cover this machine is fall to the brim with Chad.
Speaker 1 (24:33):
On December fourth, after two days of testimony, Sauls was
ready to rule.
Speaker 28 (24:37):
We were watching Judge Sanders Saul's courtroom. The attorneys have
filed in David Boyce and his legal team. They are
waiting for the judge's decision, which we expect to be
announced within a matter of minutes.
Speaker 9 (24:48):
Here while we wait.
Speaker 1 (24:49):
For that, Saul's read his decision out loud in court.
He was ruling against Gore on every aspect of his complaint.
Speaker 12 (24:56):
In this case, there's no credible statistical evidence and no
other confidence substantial evidence to establish a reasonable probability that
the results of the state wide election in the state
of Florida would be different.
Speaker 13 (25:17):
Judge Saws turned down pretty much every element of the
Gore case presented over this weekend.
Speaker 1 (25:22):
For Jeremy Bash and the other Gore lawyers have been
expecting Sauls to rule against them. In fact, they already
had their appeal notice ready to go.
Speaker 15 (25:31):
I was sitting in the court when Judge Saws issued
his ruling, and I had the appellate notice already written.
Speaker 1 (25:37):
It was in a Manila folder.
Speaker 15 (25:39):
And as soon as Judge Sauls issued his ruling, the
trial team motioned to me go. Within a matter of minutes,
I was down at the Florida Court of Appeals, banging
on the window, banging on the door, hoping anyone would
come forward so I could hand them this document. Finally
we found someone to take the document.
Speaker 1 (25:57):
It was official. The contest lawsuit was being kicked up
to the Florida Supreme Court.
Speaker 29 (26:02):
Yeah.
Speaker 30 (26:02):
Actually, Joey, I've already been on the phone with two
Gore campaign spokesman on this.
Speaker 14 (26:06):
The first, Doug Hadaway.
Speaker 30 (26:07):
I said that quote, everybody expected this to be a
Florida Supreme Court by dinner time today, regardless of what
this judge said.
Speaker 14 (26:14):
So here we go.
Speaker 4 (26:16):
Most of you have reported that both sides said today
that if they lost, they would appeal to the Florida
Supreme Court. We said it, they said it. They won,
we lost, We're appealing. This is going to be resolved
by the Florida Supreme Court.
Speaker 1 (26:33):
The Florida Supreme Court's decision to hear Gore's appeal in
the contest lawsuit was like a bat signal to the
Republicans and the Florida State Legislature. Suddenly it seemed all
the more crucial to have a backup plan in place.
Who could say how long the case would take to
resolve itself, and now that these liberal judges had their
hands on it, who could say whether it would be
resolved in the right way.
Speaker 18 (26:54):
The Republicans here in Tallahassee brought down the hammer Tonight's
essentially telling Vice President Gore they'll award the state's presidential
electors to Governor Bush.
Speaker 1 (27:03):
Not The Florida State Legislature was going into a special
session in order to start the process of seating Florida's
twenty five electors.
Speaker 11 (27:10):
The Republican controlled state legislature is taking no chances. It's
now scheduled a special session to name electors, just in
case their process is stalled or the state Supreme Court
rules against Governor Bush.
Speaker 1 (27:22):
Tallahassee Democrats were furious, and they tried to link the
plan to George Bush's campaign and his.
Speaker 26 (27:27):
Brother Jeb Sadly, I have to say that I believe
this is orchestrated and the only thing missing from the
proclamation today was the postmark from Austin, Texas.
Speaker 18 (27:39):
The Democrats are seething tonight's a senior Gore advisor telling
NBC News quotes, the American people will not accept the
decision by Florida Governor Jeb Bush and his friends in
the Florida legislature to take the decision away from the
people and the independent courts.
Speaker 1 (27:54):
Gore advisor Ron Klain thought it was time for his
team to make a contingency plan of their own.
Speaker 14 (28:01):
There are a lot of ways in which we thought
it was possible that we would have won, and had
a court ruling said we won, and still the Republican
y legislators would have gathered at the Florida State Capitol
at the appointed time and hour and cast their votes
for George Bush. And so we needed a strategy to
deal with that.
Speaker 1 (28:19):
That strategy would come to be known internally as Plan X.
Claim called it the Gore team's most extreme thought.
Speaker 14 (28:26):
You know, the electoral College doesn't really meet all in
one place at one time. When we say the electoral College,
what it is is each state separate electors. They gather
in their state's capital. They cast their ballots there, and
the ballots are then transmitted to the Archivist of the
United States. Now, one of the intriguing things about Florida
is it actually has two state capitals.
Speaker 1 (28:49):
Of course it does, but to be clear, Claan means
Florida had two state capitol buildings. They were both in Tallahassee.
One was fully functional and had been in nineteen seventy eight.
The other dated back to the nineteenth century and had
been converted into a museum of Florida history after the
new one was built. Now, I know this is going
to sound convoluted, but that's because it was. The electoral
(29:12):
College was scheduled to vote for president on December eighteenth.
That was the only day the country's five hundred and
thirty eight electors could legally cast their votes. So if
the contest lawsuit ended up going Gore's way after the eighteenth,
and he picked up enough votes to overtake Bush's lead,
it would still be too late for the Gore campaign
to make it count in the electoral College. To avoid
(29:34):
that situation, ron Clam moved to take advantage of an
ambiguity in Florida law which specified that the state's electors
had to gather in Tallahassee, but didn't specify where exactly
they had to go.
Speaker 14 (29:45):
And we had a plan, a contingency plan to have
our electors come to Tallahassee and meet in the old
State Capitol building and cast their votes for al Gore
and send those votes to the archivist, even as the
Bush vote electors were meeting in the new State Capitol
and casting their votes for George Bush.
Speaker 1 (30:03):
Claim knew that Plan X was a zany idea. In
the same way Senate President John McKay didn't cherish the
prospect of the legislative end run. Claim didn't really want
to go through with it, but he felt that the
Florida Republicans were giving him no choice.
Speaker 14 (30:17):
Now, again, we wouldn't have done that unless we had
a court order saying that we thought our electors were
the right electors. But you know, we really were planning
for every possible contingency here.
Speaker 1 (30:27):
You might be wondering what would have happened if Florida
had sent in two sets of votes, one from a
slate of Bush electors, the other from a slate of
Gore electors. Al Gore actually had the same question. His
friend Walter Dellinger, the former Solicitor General, told him the
dispute would be resolved in the US Congress.
Speaker 31 (30:45):
Here's Dellinger, because the Constitution gives Congress the authority to
count the ballots, and any dispute over you know, who
won a particular electoral vote could be resolved by Congress.
Speaker 1 (30:58):
In this scenario, two envelopes from Florida would be given
to Congress, one saying that the state's twenty five electors
had voted for Gore, and the other one saying that
they had voted for Bush. The official count would be
overseen by the President of the Senate otherwise known as
the sitting Vice President otherwise known as Al Gore.
Speaker 31 (31:17):
When the votes are open in front of both houses assembled.
When the vote is announced, that vote can be overturned
or rejected only by an action of both the House
and the Senate. Vice President. Gore is listening eagerly as
I am explaining what happens, that whatever envelope.
Speaker 1 (31:39):
Is opened will be.
Speaker 31 (31:43):
The vote of Florida. And he says, who decides what
envelope to open? First?
Speaker 1 (31:50):
Good question. That was my next question too.
Speaker 31 (31:54):
And I said, you will still be the presiding officer
of the Senate. You'll be the one to choose which
ballot to open.
Speaker 1 (32:04):
Gore wouldn't get to unilaterally declare himself president, but still
he knew how it would look.
Speaker 31 (32:08):
And he looked at me and said, well, I just
have one question. Did they have to wait for me
to be sworn in before beginning appeacement proceedings or could
they start right then?
Speaker 1 (32:23):
More after the break.
Speaker 3 (32:29):
Live pictures here of the tense city that has grown
outside the Florida State Supreme Court.
Speaker 1 (32:34):
As the Florida Supreme Court prepared to hear Al Gore's
appeal in the contest lawsuit, Tallahassee was getting more hectic
and media saturated by the day. Even the lawyers, especially
David Boys from the Gore side and local Florida attorney
Barry Richard from the Bush side, walked around like celebrities.
Here's boys.
Speaker 5 (32:51):
Everybody recognized Barry Richards and myself. You know, people driving
by would shout out to him, don't let them steal
the election, or our supporters would you know, don't let them,
you know, bury our ballots. So, I mean, somebody was
always yelling out to you, either encouraging you or trying
to discourage you.
Speaker 18 (33:14):
Today, hundreds of pro GOURG demonstrators rally outside the state Capitol.
Speaker 1 (33:19):
News trucks flooded the area. Protesters arrived early each morning,
and with them a crowd of attention seekers who were
less motivated by politics. By the presence of cameras.
Speaker 2 (33:27):
There were people dressed in clown outfits. They were having
a lot more fun out there than I was having
inside the building.
Speaker 1 (33:34):
That's Charles Wells. He was the Chief Justice of the
Florida Supreme Court in two thousand.
Speaker 2 (33:39):
There was a lady that brought her pet skunk, and
it was a great act because you can make that
skunk do backwards sumrsaults.
Speaker 1 (33:51):
It was against this backdrop that in December seventh, the
Florida Supreme Court heard oral arguments in Gore v. Harris.
Speaker 27 (34:06):
Americans maybe just hours away from their clearest few yet
of will be the next president. A live picture right
now from the Florida Supreme Court any moment. Oral arguments
will begin here in this courtroom.
Speaker 1 (34:18):
The question before the court was whether Judge Sauls had
aired in denying the Gore team's contest petition. The legal
standard at play was not exactly objective. According to Florida law,
the losing candidate had to show that there had been
counting errors that placed the result of the election in doubt.
But what that meant was up for interpretation.
Speaker 32 (34:36):
Good morning, and welcome once again to the Florida Supreme Court,
where we'll have oral argument this morning in the case
of Gore versus Harris.
Speaker 1 (34:49):
In one corner stood David Boys and the other Barry Richard. I.
Though they looked like sworn enemies in the courtroom, the
truth was they liked each other, and when they weren't working,
they'd been hanging out together at a sports bar in
your Boys's hotel.
Speaker 5 (35:02):
We were so deep into the weeds of this that
in some senses, we were each the only person the
other could talk to that cared enough about some of
these details to really be interested in talking about it,
even your children and your wife. It's my eyes begin
(35:22):
to glaze over sometimes when you are really deeply involved
in one of these complicated cases.
Speaker 1 (35:29):
Boys and Richard took pleasure in competing with each other.
Speaker 29 (35:32):
One of the things made it so much fun for
me is that David and I were sparring with each
other for the fun of it.
Speaker 1 (35:40):
This is Barry Richard.
Speaker 29 (35:42):
I've never been much of an athlete, but I suspect
that professional athletes enjoy what they do most when they
are opposing to somebody else who they feel is at
the top of his game, and.
Speaker 1 (35:52):
David Boys at the toughest game.
Speaker 29 (35:54):
So it was a great challenge, and it was fun,
it was intellectually stimulated, and I got famous.
Speaker 1 (36:04):
So that was the dynamic at play between David Boys
and Barry Richard, who they sparred with each other at
the Florida Supreme Court in.
Speaker 4 (36:10):
Which we have identified specific votes, many of which were
agreed by the district Court, were votes in which you
could clearly discern the voter's intent, and fifteen.
Speaker 1 (36:23):
The positions they took will sound familiar to you. Richard
argued that the recount process had already played itself out
fair and square, while Boys made the case that getting
an accurate vote count should take precedence over any other consideration.
Speaker 5 (36:36):
The simple argument that I made to the Florida Supreme
Court was that Florida law for one hundred years had
held that what was important was to discern the intent
of the voter, and that in order to discern the
intent of the voter. In a close election, you would
have a manual recount.
Speaker 1 (36:56):
It was clear from the questions that they were asking
that some of the Florida justices were sympathetic to Boys's argument,
while others were not. Among the sympathetic ones was Justice
Barbara Perrienti, who was frustrated with Judge Sauls for refusing
to look at the ballots from Palm Beach and Miami Dade.
Speaker 8 (37:10):
He never looked at a single ballot. They had been
brought up there, he had ordered them up. He never
looked at them.
Speaker 1 (37:17):
Perry Andy thought it was obvious that looking at the
ballots was the best way to figure out who won
the election. At one point during the hearing, she and
one of her colleagues started asking why Gore was only
seeking manual recounts in two counties rather than the whole state.
Speaker 4 (37:32):
When you have a very close election, you have to
have a manual review of those ballots in order to
have an ac retality.
Speaker 8 (37:40):
So why wouldn't that apply to all the other counties,
at least the punch card counties where there are under
votes and those votes also haven't been counted, and.
Speaker 23 (37:51):
You've demonstrated that there's legal votes that have not been counted.
Why would that not exist in other counties? And why
would this not require, if any judicial relief that be
applied in a statewide undervote.
Speaker 4 (38:05):
I think there are two.
Speaker 1 (38:06):
Prior to oral arguments, a statewide manual recount wasn't even
really on the table. Gore had proposed the idea once
in a televised a dress back in mid November, but
Bush had promptly rejected it. Now, with just days left
until the December twelfth Electoral College deadline, it seemed as
though some members of the Florida Supreme Court thought a
statewide manual recount was a pretty good idea. Here again
(38:29):
is Perriente.
Speaker 8 (38:31):
How do you favor three counties with counting under votes
when you don't do it equally for all counties?
Speaker 1 (38:42):
A statewide manual recount had the potential to be transformative,
though it was hard to predict how exactly the vote
total would change. The fact that thousands of discarded ballots
might now be back in the mix meant that Gore
would have that many more chances to cut into Bush's lead,
But not everyone was enthused. Chief Justice Wells had been
preoccupied with the upcoming deadline for seating Florida's electors, and
(39:04):
it struck him as lunacy to try to undertake such
a gargantuan task with so little time left on the clock.
Speaker 2 (39:10):
I think it became pretty obvious the questions that were
being asked that the December twelfth deadline was not bothering
some of my colleagues like it was bothering me.
Speaker 1 (39:28):
After oral arguments, as the justices began to conference, peri
Anti took the position that recounts were clearly needed in
Palm Beach and Miami Dade, but the only way to
be fair to every voter in the state, Parentti thought
was to hand count all the undervotes that had been
cast across Florida. Some of Perianti's colleagues, including Chief Justice Wells,
just didn't think that was possible.
Speaker 8 (39:48):
I think there was a belief that there was no
way that this court could end up ensuring that every
vote would be counted, that there would always be questions,
and so it was better at that time to keep
our hands off and let the controversy because we were
(40:11):
approaching a time where it was a feeling that Florida's
vote needed to be counted in the Electoral College, and
if it lasted much longer, it wouldn't have been.
Speaker 1 (40:21):
Justice Wells had a more fundamental objection as well, in
erase this impossibly tight there was simply no way to
arrive at an objectively accurate vote count.
Speaker 2 (40:31):
It become evident to me that we were not going
to ever get to a point in which the margin
of victory exceeded the margin of error here to an
extent that we could refine it by continuing to a
(40:51):
recount that was so uncertain as to how it was
going to be done, and so that we had to
conclude it.
Speaker 27 (41:08):
Well.
Speaker 1 (41:08):
Tensions are high, Questions are being asked, what is the verdict?
Speaker 18 (41:11):
We should find out shortly, we believe.
Speaker 1 (41:13):
On the afternoon of December eighth, the justices of the
Florida Supreme Court released their decision for.
Speaker 32 (41:18):
A couple of minutes away from hearing from the Florida.
Speaker 19 (41:21):
State Supreme Court.
Speaker 7 (41:22):
The scene there and the steps of the Florida Supreme
Court in Tallahassee, Florida, we understand.
Speaker 1 (41:26):
The job of relaying into the public fell to the
court spokesman, Craig Waters. Waters had been summarizing the decisions
of the court and communicating with the press since early
in the recount. Whenever reporters saw his podium getting set
up on the steps of the Supreme Court building, they
knew he would soon be coming out to deliver some news.
The crowd of reporters covering the recount had been growing
so much that with each announcement, Waters was forced to
(41:48):
move his podium up the steps to make room for
more spectators. By December eighth, he was perched near the top.
Speaker 7 (41:54):
We could see the state troopers and the court security
officers in playing clothes. We understand that the court spokesman,
Craig Waters will be out very very shortly.
Speaker 1 (42:03):
Tensions have been rising throughout Tallahassee for nearly a month
by this point, and Waters knew that he was about
to reveal the most paradise i'm shifting news development the
court had delivered to date.
Speaker 20 (42:12):
It was a frightening thing in a lot of ways.
When they had offered me the bulletproof vest, I think
that scared me more than anything else. Did this idea
I have to wear a bulletproof vest. My god, what's
going on here? That's not the Tallahassee I know. Hello,
I'm Craig Waters.
Speaker 6 (42:29):
Spokesman for the Florida Supreme Court. The Court today has
issued its opinion in the case of Albert Gored Junior
versus Catherine Harris, George W.
Speaker 22 (42:38):
Bush, and others.
Speaker 6 (42:40):
Paper copies of that opinion.
Speaker 20 (42:41):
I got out onto the to the podium and I
began reading. I had these lights shining in my face,
so I couldn't see the crowds very well because I
was blinded. But there was a large piece of metallic
equipment nearby that fell over. And the thought that went
through my head at that particular point in time, is
my God, there's the bullet.
Speaker 6 (43:00):
By a vote of four to three, the majority of
the Court has reversed the decision of the Trial Court
in part. It has further ordered that the Circuit Court
to the Second Judicial Circuit here in Tallahassee so immediately
began a manual recount of the approximant of the.
Speaker 1 (43:17):
Approximate Chief Justice Wells had been outvoted. After all the
confusion and delays in Palm Beach and Miami Dade, every
county in the state that hadn't already done so was
now going to recount their undervotes by hand.
Speaker 17 (43:30):
This was an even more to stunning decision than the
Florida Supreme Court's first in favor of al Gore, and
it sets into motion a potentially chaotic series of events.
Speaker 19 (43:39):
If you do not like political chaos, it's about time
to head for the storm seller, because up until about
a few moments ago, I think most people were expecting
the Florida Supreme Court to kind of go along with
Judge Sauls and bring this to an end, and people
were draft in al Gore's concession speech.
Speaker 3 (43:54):
Those couple of hours today were just positively explosive. There's
been an enormous shift in the political ground.
Speaker 1 (44:00):
For the Gore team. It was like getting an extra life.
Here again is Jeremy Bash.
Speaker 15 (44:06):
We were overjoyed, and we had popped the court work
on some wine and cracked open some beers and we
had a little celebration there in the law offices that
we were working out of. This was far beyond what
we had requested, and it was a massive opportunity for
us to take a lead in the tallies, which we
(44:27):
thought would be critical to regaining some of the political
momentum that we had clearly lost.
Speaker 1 (44:33):
The problem once again was time. The Electoral College deadline
was now just a few days away, and if it
started to look like Florida wouldn't be done counting votes
by then, the Republicans in the state legislature were ready
and willing to use their power to bring the election
to an end. As it turned out, they weren't the
only ones. On the next and final episode of Fiasco,
(45:06):
the Florida recount heads to the Supreme Court.
Speaker 10 (45:09):
Justice O'Connor s this is a mess.
Speaker 14 (45:10):
We got to stop it now because if we don't
stop it now, it's going to go on and on,
and it's going to get worse, and Bush is gonna
win in the end. Anyways.
Speaker 1 (45:20):
Fiasco is a production of Prolog Projects and it's distributed
by Pushkin Industries. The show is produced by Andrew Parsons,
Madeline kaplan Ula Culpa, and me Leon Nafock. Our script
editor was Daniel Riley. Our editorial consultant was Camilla Hammer,
and we received additional editorial support from Lisa Chase. Our
(45:41):
music and score are by Nick Silvester of god Mode,
with additional music from Alexis Quadrado. Our theme song is
by Spatial Relations. Our artwork is by Teddy Blanks at
Chips and y audio mixed by Rob Buyers, Michael Rayphiel
and Johnny Vince Evans of Final Final V two Special
Thanks to Luminary for a list of books, articles, and
(46:03):
documentaries that we relied on in our research. Click the
link in the show notes. Thanks to c Span and
NBC News Archive, CNN and Channel twenty, and Palm Beach
with the archival material you heard in today's show. Thanks
for listening.
Pushkin. Hey Leon here, Before we get to this episode,
I want to let you know that you can binge
the entire season of Fiasco Bush v goor right now
ad free by becoming a Pushkin Plus subscriber. Sign up
for Pushkin Plus on the Fiasco Apple podcast showpage, or
(00:37):
visit Pushkin dot fm slash Plus. Now onto the episode
previously on Fiasco. Many in this nation are getting anxious.
Speaker 2 (00:49):
There are battles going on in county offices all over
the state.
Speaker 3 (00:53):
Republican demonstrators storm the hallways.
Speaker 1 (00:55):
They were pounding on the glass, and I mean people
were really fired up.
Speaker 4 (00:59):
There would be no more counting of votes in Miami.
Speaker 5 (01:02):
Gore made a conscious decision that he would fight in
the courts, but not on the streets.
Speaker 6 (01:07):
Let's turned out a Palm Beach County where the canvassing
board is trying to be the deadline of five pm today.
Speaker 7 (01:12):
The Secretary of State has apparently decided to shut us
down with approximately two hours left to go.
Speaker 1 (01:17):
Hi hereby declare Governor George W.
Speaker 8 (01:20):
Bush the winner of Florida's twenty five electoral vez what.
Speaker 9 (01:24):
By any reasonable standard, is an incomplete and inaccurate count.
Speaker 1 (01:33):
When Secretary of State Catherine Harris certified the results of
the Florida election for George W. Bush. The Texas governor,
took the opportunity to affirm the inevitability of his presidency.
Speaker 10 (01:43):
Secretary Cheney and I are honored and humbled to have
won the state of Florida, which gives us the needed
electoral votes to win the election.
Speaker 1 (01:53):
It was a strategy that Bush and his team have
been using since the recount started. Whenever possible, they would
try to make it seem like Bush was already president elect.
They would leak the names of cabinet members he was
recruiting in Texas.
Speaker 11 (02:05):
Today, Governor Bush had a conspicuous meeting with General Cole
and Powell have.
Speaker 1 (02:10):
Him give speeches and settings that evoked the White House.
Speaker 12 (02:12):
I understand there are still votes to be counted, but
I'm in the process of planning in a responsible way
a potential administration.
Speaker 1 (02:21):
And they would insist over and over that he had
already won Florida, not once, but twice. After the certification ceremony,
there was an extra element of posturing to Bush's rhetoric,
because even though the election in Florida was now technically over,
Bush knew full well that the Gore campaign was not
giving up.
Speaker 10 (02:41):
The Vice President's lawyers have indicated he will challenge the
certified election results. I respectfully ask him to reconsider.
Speaker 1 (02:50):
Gore and his lawyers had just one move left. They
were going to formally contest the outcome of the election,
and they would do so by filing a so called
contest lawsuit, naming the Bush campaign and the Florida Secretary
of State as defendants.
Speaker 13 (03:04):
Obviously, the great sensitivity in the Gore campaign now to
make the case to the American people that know this
is not over.
Speaker 1 (03:10):
The Gore team had fought desperately to avoid the situation
they now found themselves in. If only they could have
put more points on the board before Florida's vote count
was certified, it could have been Bush trying to overturn
the outcome of the election. Instead, Gore was now officially
a sore loserman trying to claw his way back from
the dead, and he was running out of time.
Speaker 9 (03:32):
As Florida's ticking clock becomes a second adversary in the
desperate search for votes.
Speaker 14 (03:37):
They need decisions, they need them yesterday. They need counts,
they need the counts right away.
Speaker 2 (03:42):
We've gone from protest certification last night, and now contest.
Speaker 1 (03:46):
Well, I think it's an uphill battle. Not impossible, but
I think it's very difficult Roe to hoe. The Gore
team's mission was to convince a judge that the election
results did not accurately reflect the will of Florida voters.
Step one was to figure out what happened before, during,
and after election day that cast doubt on the legitimacy
of the outcome.
Speaker 15 (04:05):
The big question as we approached the contest phase was
what should we be contested.
Speaker 1 (04:11):
This is Jeremy Bash in two thousand. He was a
twenty nine year old doing policy work for the Gore
campaign when the recount started. His law degree earned him
a junior spot on the legal team in Tallahassee. I
had never practiced law a day in my life. I
had served as a law clerk for a federal judge.
Speaker 15 (04:27):
But on election night they said, anybody who's a lawyer,
if you were working in Nashville, Tennessee, at the Gore
campaign headquarters, you were told to go home and pack
for three days and come back and end up having
to last thirty six days for the full recount.
Speaker 1 (04:42):
Bash had been in Florida for about three weeks when
Bush's victory was certified and the contest phase of the
election began. Basher remembers listening in as the campaign's top
lawyer's brief Gores and his political advisors on what could
happen next.
Speaker 15 (04:56):
The legal team presented to the campaign leadership a variety
of options, and in that meeting we laid out all
the various ways we had suspected that either Democrats' effort
to vote had been denied or Republicans engaged in some
quote unquote dirty tricks to prevent Democrats from voting.
Speaker 1 (05:17):
Some members of the Gore team felt they should include
as many grievances as possible in their complaint. They favored
a two pronged approach, fighting to count likely Gore votes
that had been unfairly thrown out, while also fighting to
throw out likely Bush votes that had been unfairly counted.
In this maximalist version of the contest lawsuit, the Gore
lawyers would object to the counting of military ballots that
(05:39):
lacked proper postmarks and signatures. These were the overseas absente
ballots you heard about in our previous episode. They would
also bring up a controversy involving thousands of absente ballot
applications that had come in without voter ID numbers. Republican
officials had quote unquote fixed the applications by writing in
those ID numbers by hand after they were received, and
the resulting ballots have been counted. Anyway, not everyone on
(06:03):
the Gore team wanted to go into the contest guns blazing.
Here again is Jeremy Bash.
Speaker 15 (06:08):
My view was that if we were going to take
this thing to court, if we were going to file
the first contest of a presidential election in US history,
it should be on the strongest, narrowest, most ironclad grounds
that we could stand on. We didn't want the voters
to think that we were throwing everything against the wall
(06:29):
to see what would stick, that we were really focusing
only in the areas where we thought that a full
recount was necessary.
Speaker 1 (06:37):
Bash had arrived at this conclusion by way of his
daily interactions with journalists who were covering the recount and
who would come to him with questions about the Gore
teams legal strategy.
Speaker 14 (06:46):
There was this.
Speaker 15 (06:46):
Deep skepticism about what we were doing, and in general,
their approach and their attitude was Gore is trying to
undertake these herculean efforts to reverse the election.
Speaker 16 (06:59):
Result, any sign that he's considering a concession speed.
Speaker 3 (07:02):
The time is fast approaching to accept the certified results
in Florida and conceive the.
Speaker 7 (07:07):
Election, and one Congressional Democrat has said publicly that Gore
should throw in the towel.
Speaker 15 (07:13):
It was quite dispiriting, actually, because the whole vibe of
the reporting was that Gore was behind, we were behind,
and that we were trying to do something fairly unprecedented
American history to undermine what had already been decided.
Speaker 17 (07:28):
Apparently, many Americans are ready for this election to be over.
A new ABC News Washington Post poll shows sixty percent
of people say Vice President Al Gore should concede the election,
but thirty.
Speaker 1 (07:40):
In the end, Gore's lawyers decided to limit the scope
of their lawsuit rather than going with the kitchen sink approach,
So instead of trying to get any Bush votes thrown out,
they would focus exclusively on getting more Gore votes counted
first and foremost. That would mean asking for the unfinished
hand recounts in Palm Beach and Miami Day to be completed,
this time using a more lenient standard for determining voter intent.
Speaker 13 (08:03):
The Democrats trying to make the case now that there
are roughly fifteen thousand or so votes that have never
been counted or at least never manually inspected.
Speaker 1 (08:12):
When it came time to pull together the documents for
the contest filing, Jeremy Bash stood by the office printer
with Dexter Douglas, another lawyer working for the Gore campaign.
Together they waited for a copy of the complaint to come.
Speaker 15 (08:23):
Out, and we were waiting and waiting and waiting, and
I said, it feels like Dexter were sitting here waiting for.
Speaker 1 (08:29):
A baby to be delivered. Douglas, who died in twenty thirteen,
had been agitating for a more aggressive approach. He thought
the Gore team was making a mistake and being so
focused and meek.
Speaker 15 (08:41):
And he said, well, is it going to be a
boy or a girl? And we kind of chuckled about that,
and then when the paper rolled off the printer, we
both read it and he said, well, it's a boy.
It's got very small balls, but it's a boy.
Speaker 1 (08:59):
It's hard to say how much of a chance Al
Gore really had at this point, but the Bush campaign
and their allies were not taking anything for granted. While
Gore's lawyers took the extraordinary step of contesting election, Republicans
in the Florida State Legislature were setting the stage for
hail Mary of their own.
Speaker 18 (09:15):
The state legislature here in Tallahassee is moving rapidly to
try to take control of this election away from the courts.
Speaker 1 (09:22):
If the plan worked, the Republicans in the Florida State
Legislature would be able to deliver the state's twenty five
electors to Bush. No matter what. I'm Leon Nafock from
Prolog Projects and Pushkin Industries. This is fiasco Bush v.
Speaker 17 (09:39):
Gore.
Speaker 18 (09:41):
The Republicans here in Tallahassee brought down the hammer tonight's.
Speaker 14 (09:45):
Leu essentially wipe out the entire election.
Speaker 19 (09:47):
If you do not like political chaos, it's about time
to head for the storm.
Speaker 7 (09:51):
Seller.
Speaker 20 (09:52):
When they had offered me the bulletproof vest I think
that scared me more than anything else.
Speaker 3 (09:55):
Dead Those couple of hours today were just positively.
Speaker 1 (09:58):
Explosive Episode five contingencies. As a threat of a constitutional
crisis hangs over Tallahassee, both Democrats and Republicans prepared a
cross line never before crossed in modern politics, the Florida
(10:23):
State Legislature was a lopsided body. In the state Senate,
Republicans outnumbered Democrats twenty five to fifteen. In the State House,
Republicans outnumbered Democrats seventy seven to forty three. It was
a factive life in Florida that if Republicans in the
state Legislature rallied around an idea, they could take it
all the way without any Democratic support.
Speaker 21 (10:43):
Good afternoon, everyone. I hope those of you that aren't
from Florida are enjoying your Florida vacation and our economy
appreciate your help.
Speaker 1 (10:53):
That's John McKay, the Republican president of the Florida State
Senate at the time of the recount. A few hours
after the Gore team filed their contest lawsuit at the
Leon County Courthouse in Tallahassee, McKay held a press conference.
He took the opportunity to lay out his view of
how the state legislature can help rescue Florida from its
ongoing political nightmare.
Speaker 21 (11:13):
The US Constitution and the federal law vest the legislature
with the ultimate authority to designate the manner of appointing
presidential electors.
Speaker 1 (11:25):
To grasp what McKay was proposing. It helps to have
a literal understanding of what the electoral college is and
what it means in practice to be a presidential elector.
Most people don't realize that when they vote for president,
they're not voting directly for their candidate.
Speaker 22 (11:40):
They think they're voting for a presidential candidate, and they're not.
They're voting for electors that have been put up by
each of the parties.
Speaker 1 (11:48):
Basically, each state gets to pick a certain number of
electors to represent them in the electoral College, and when
you vote for president on election day, you're actually voting
for the electors that have been chosen by your candidate's
political party. So, for instance, when Bill Clinton won Florida
in nineteen ninety six, the Democratic Party sent a slate
of twenty five Democratic electors to vote in the electoral College,
(12:10):
Florida's behalf. All of this happens on a strict schedule.
In two thousand, all five hundred and thirty eight electors
around the country were supposed to cast their votes on
December eighteenth.
Speaker 9 (12:21):
By December eighteenth, those electors must send their votes to Washington.
On January sixth, the new Congress certifies the vote. January twentieth,
a new president is inaugurated, so.
Speaker 1 (12:33):
A little over a month before the new president would
be inaugurated. Crucially, federal law also called for each state
to choose its electors six days before the electoral college
vote took place.
Speaker 9 (12:44):
December twelfth is key the day Florida certifies its electors.
Speaker 1 (12:48):
On the day Gore filed the contest lawsuit and Florida
Senate President John McKay gave his press conference that was
a little more than two weeks away.
Speaker 21 (12:56):
If unresolved by the twelfth, then the Legislature has the
authority and may have the responsibility to step in to
determine and communicate to Congress Florida's electors.
Speaker 1 (13:09):
It was McKay's view that all the suing and hand
counting and contesting that al Gore was doing was placing
Florida's electoral votes in jeopardy. McKay and his fellow Republicans
feared that if all the legal wrangling wasn't over by
December twelfth, Florida would be left out of the electoral
college vote altogether, and none of Florida's six million ballots
would count At all. The Republicans found their solution in
(13:31):
Title three, Chapter one, Section two of the US Code,
which said that the state legislature had the power to intervene.
Here again is McKay.
Speaker 22 (13:40):
I did not want Florida's voters votes not to be counted,
and if I remember correctly, about six million people voted
that year. I wanted to make sure those votes were counted,
and I hoped that the court system would resolve it.
But if they didn't, the legislature had to be prepared
(14:00):
to go into session or else everyone's votes in Florida
would not be counted.
Speaker 1 (14:06):
The Democrats in Florida did not buy this rationale, convinced
that the Republicans were scheming to deliver Florida's electors to Bush,
regardless of how Gore's contest lawsuit turned out or who
ultimately prevailed in the state's popular vote.
Speaker 18 (14:20):
Angry Democrats charging today, but that would be little more
than a naked attempt to fix the election for George W.
Speaker 9 (14:26):
Bush.
Speaker 23 (14:27):
We should not serve as an insurance policy for a
Bush presidency.
Speaker 6 (14:31):
To go down this road is to shake the very
foundations of.
Speaker 1 (14:35):
Our democracy as they saw it. McKay and the Republicans
were laying the groundwork for a power grab, an unconscionable
and run around Florida's electorate.
Speaker 14 (14:43):
They were going to change Florida law after the fact
to say that the ballots people would cast an election
date had zero impact on Florida's electors. That instead that
the legislators would meet and they would elect a slate
of electors.
Speaker 1 (14:59):
This is Ron Klain, who served as the top legal
strategist on Gore's recount team in Florida.
Speaker 14 (15:04):
So they would essentially wipe out the entire election.
Speaker 9 (15:08):
You know.
Speaker 14 (15:09):
Their basic argument was, Hey, it's a mass it's confusing.
How about this, how about we let these fine legislators
over here decide whether not Bush or Gore will be president.
Speaker 1 (15:18):
McKay rejects this characterization. He told me that he only
grudgingly endorsed the idea of the so called en run,
and though he was prepared to carry it out if
it looked like Florida's electors wouldn't otherwise be seated in time,
he shuddered to think of the president it would say.
Speaker 22 (15:31):
I was concerned, and I'm still concerned that if you
had similar circumstances and you had a rabbit legislature that
the partisanship would trump comments sense. And I thought that
the legislature acting to select a presidential candidate could, perhaps
(15:55):
one hundred years from now, give precedent where a legislature
might do that. And I didn't want to be part
of giving somebody a blueprint for ill purposes.
Speaker 1 (16:10):
You didn't want to do this right because you didn't
want to set a precedent for someone else down the
line to take over RISI and the Democrats as they
saw you doing, they said, that's what you're doing. You're
trying to take over this election. So what was your
rebuttal to that?
Speaker 22 (16:23):
My rebuttal would have been had anybody ask me that question.
I've postponed this as long as I can possibly postpone
it without jeopardizing the votes of six million Floridians.
Speaker 1 (16:35):
Even as plans for the legislative endron solidified in the Capitol,
Gore's effort to contest the election was just getting started.
Speaker 24 (16:42):
We're expecting in ten minutes for two lawyers for al
Gore to walk into this courthouse, the Leon County Circuit
Court in Tallahassee and officially challenged the results of the
presidential election. In the United States of America in the
year two thousand.
Speaker 14 (16:54):
The two lawyers.
Speaker 1 (16:55):
It was November twenty seventh when Jeremy Bash and Dexter
Douglas took the contest lawsuit out of their office printer
and walked it over to the courthouse. Cameras flashed around
them as journalists tried to capture the historic.
Speaker 16 (17:05):
Moment as the attorneys for al Gore come into that
courthouse and file their contest to the results. As you
can see here walking across with some degree of consciousness
and ceremony, albeit somewhat informal.
Speaker 1 (17:19):
Here again is Jeremy Bash.
Speaker 15 (17:21):
I held the pleadings in my hand, and I slid
the complaint under the glass window. It was the first
contest of a presidential election US history that I filed
with my own hands. And the staff at the Leon
County Courthouse took the pleading. They turned their back on us,
and they went to the back of their workspace and
(17:43):
they spun a wheel.
Speaker 22 (17:44):
What will happen is it will be assigned to a judge.
Speaker 14 (17:47):
A judge will then.
Speaker 1 (17:48):
Set a date for a The wheel, which was actually
just a computer program, would determine which judge the Leon
County Circuit Court would be assigned to preside over the contest.
Going into the Scampbell, Tallahassee Native Dexter Douglas had given
the Gor team permission to be optimistic. In his opinion,
most of the judges in the pool would be receptive
to their arguments.
Speaker 15 (18:09):
And they pulled a name off of the wheel and
they came back and they said, you have been given
Judge sauls that's what the wheel has given you. And
Dexter Douglas he motioned at me like, don't say anything,
but he kind of just shook his head and he said,
can I of motion?
Speaker 1 (18:26):
Come with me?
Speaker 15 (18:27):
And we scurried back down the hallway into the elevator.
We were followed by the press, and once the elevator
doors closed and the press was out of earshot, Dexter
just said to us, he said, that's a bad seed.
Speaker 1 (18:39):
That's a bad draw. Judge Saws is not good for us.
Judge N. Sanders Saws was a lifelong North Florida Conservative.
He also had a contentious history with the Florida Supreme Court,
which many Republicans perceived as being biased towards Gore.
Speaker 7 (19:00):
Judge N. Sanders Salt and his rn ends with the
Florida Supreme Court, his being a very strict constructionist, and
here's a case.
Speaker 1 (19:07):
Almost immediately the Gore team realized they had to get
the contest lawsuit out of Saualz's courtroom one way or another.
They briefly considered asking him to accuse, but they decided
against it. Instead, they set out to lose as quickly
as possible. Here again is Gore recount strategist Ron Klain.
Speaker 14 (19:26):
In the few minutes after it happened, as we were
sitting around discussing trial strategy, and it was very simply this,
we need to lose, and we need to lose fast.
Speaker 1 (19:34):
The faster they could get a ruling out of Saulves.
The Gore team vigured, the faster they could appeal the
case and get it in front of the Florida Supreme Court.
At least there they would have a chance.
Speaker 11 (19:50):
As the battle on the Florida Arena shifted to the
legal arena, the Gore campaign brought in a heavyweight. His
name is David Boys, and he's a legend in his
own time, a New York lawrior with an enviable record
in a quirky personal style.
Speaker 1 (20:04):
David Boys was in a meeting with Calvin Klein when
one of Gore's friends called his law offics and asked
him to join the recount effort Florida. Boys was representing
Klein in a trademark case that was supposed to go
to trial soon, but he wasn't about to say no
to helping the Vice President.
Speaker 5 (20:18):
Even at that stage. We knew it was an important case.
We knew it was a case that was going to
involve historic decisions, and to have an opportunity to have
a front row seat and maybe even be a participant
was something that would have been hard to turn down.
Speaker 1 (20:36):
Boys had won some of the most spectacular lawsuits in
the past fifteen years. He had represented the federal government
in the monopoly case against Microsoft. He had also represented
the New York Yankees in an anti trust suit against
Major League Baseball. Boys was known for speaking in court
without notes and for showing up to arguments wearing sneakers
to fill out the picture of the eccentric genius. He
(20:56):
was frequently seen eating candy or ice cream.
Speaker 9 (20:58):
Last year's Lawyer of the Year, according to the National
Law Journal, profiled in Vanity Fair and People Magazine, the
litigator in cheap.
Speaker 1 (21:06):
Boys was responsible for crafting the lose fast strategy in
front of Judge Salls. Instead of calling dozens of witnesses
in order to prove that manual recounts were needed in
Palm Beach and Miami Dade, Boys just wanted to keep
things moving. The December twelfth deadline for seating electors was
weighing on him, and if the Gore team's end game
was to get the case to the Florida Supreme Court
and then have the ballots counted by hand, they had
(21:28):
to get through the SAAL's trial as efficiently as possible.
To save time, Boys asked Saals to order the ballots
from Miami Dade and Palm Beach transported to Tallahassee. That way,
if the judge did decide to do a manual recount,
at least the ballots would already be there.
Speaker 5 (21:43):
We wanted to get the ballots up in Tallahassee so
that they could be counted quickly. We didn't want to
waste another day after a decision getting the ballots up
there to be counted.
Speaker 1 (21:57):
After Judge Sauls granted Boys's request, the one point one
million ballots cast in Miami Dade in Palm Beach were
placed in boxes and driven up to Tallahassee in trucks.
Speaker 11 (22:06):
More than four hundred and sixty thousand ballots from Palm
Beach County were packed into a rider truck and driven
to the state capitol in Tallahausee today.
Speaker 1 (22:14):
A woman named Ivy Corman, who worked in the Miami
Dade Election Supervisor's office, was assigned to watch over the
ballots as they made the trip.
Speaker 25 (22:22):
When all of the ballots needed to go up for
storage in Tallahassee, it was loaded by warehouse personnel. We
got it all in there, everything was locked up, and
that was it, and we just took.
Speaker 15 (22:34):
Off the six hundred thousand ballots more than two tons worth,
that were loaded up and sent by truck from Miami
to Tallahassee.
Speaker 1 (22:42):
Today, as the truck sped down the highway, flanked by
law enforcement vehicles, TV news helicopters glided above and broadcast
the journey live.
Speaker 3 (22:50):
The election battle as television spectacle. In the company of
police SWAT teams. More than a million ballots from Miami
Dade and Palm Beach Counties driven in the convoy to
the state capitol Tallahassee.
Speaker 1 (23:02):
And then the IVY Corman remembers feeling like she was
part of a huge production.
Speaker 25 (23:06):
They had the SWAT team come and we were going
to have a policeman, a SWAT member, and myself with
the ballots in one truck, then an empty truck in
case this truck broke down, then another policeman. Then we
had cars of Republican officials, Democratic officials, We had newspaper reporters, everybody.
(23:31):
There must have been at least a caravan of thirty
cars and a helicopter.
Speaker 26 (23:38):
The final installment of that million ballot convoy delivered from
Miami today.
Speaker 1 (23:43):
Caravan arrived in Tallahassee in the late afternoon of December. First,
did you help unload the truck?
Speaker 27 (23:48):
I hack?
Speaker 25 (23:48):
No, No, I didn't. We signed over custody to the
Leon County Supervisor of Elections and said goodbye, thank you,
and that was that.
Speaker 1 (24:04):
In the end, despite repeated prodding from the GORGE team,
Sauls declined to count or even look at the ballots
that had come in from Palm Beach and Miami Dade. Instead,
he listened to testimony from a handful of expert witnesses,
including a statistician who had studied voting technology and an
inventor who had helped design the punch card machine.
Speaker 26 (24:22):
Their expert witness points to flaws in the bodomatics design,
years of wear, and voter confusion.
Speaker 9 (24:28):
This cover this machine is fall to the brim with Chad.
Speaker 1 (24:33):
On December fourth, after two days of testimony, Sauls was
ready to rule.
Speaker 28 (24:37):
We were watching Judge Sanders Saul's courtroom. The attorneys have
filed in David Boyce and his legal team. They are
waiting for the judge's decision, which we expect to be
announced within a matter of minutes.
Speaker 9 (24:48):
Here while we wait.
Speaker 1 (24:49):
For that, Saul's read his decision out loud in court.
He was ruling against Gore on every aspect of his complaint.
Speaker 12 (24:56):
In this case, there's no credible statistical evidence and no
other confidence substantial evidence to establish a reasonable probability that
the results of the state wide election in the state
of Florida would be different.
Speaker 13 (25:17):
Judge Saws turned down pretty much every element of the
Gore case presented over this weekend.
Speaker 1 (25:22):
For Jeremy Bash and the other Gore lawyers have been
expecting Sauls to rule against them. In fact, they already
had their appeal notice ready to go.
Speaker 15 (25:31):
I was sitting in the court when Judge Saws issued
his ruling, and I had the appellate notice already written.
Speaker 1 (25:37):
It was in a Manila folder.
Speaker 15 (25:39):
And as soon as Judge Sauls issued his ruling, the
trial team motioned to me go. Within a matter of minutes,
I was down at the Florida Court of Appeals, banging
on the window, banging on the door, hoping anyone would
come forward so I could hand them this document. Finally
we found someone to take the document.
Speaker 1 (25:57):
It was official. The contest lawsuit was being kicked up
to the Florida Supreme Court.
Speaker 29 (26:02):
Yeah.
Speaker 30 (26:02):
Actually, Joey, I've already been on the phone with two
Gore campaign spokesman on this.
Speaker 14 (26:06):
The first, Doug Hadaway.
Speaker 30 (26:07):
I said that quote, everybody expected this to be a
Florida Supreme Court by dinner time today, regardless of what
this judge said.
Speaker 14 (26:14):
So here we go.
Speaker 4 (26:16):
Most of you have reported that both sides said today
that if they lost, they would appeal to the Florida
Supreme Court. We said it, they said it. They won,
we lost, We're appealing. This is going to be resolved
by the Florida Supreme Court.
Speaker 1 (26:33):
The Florida Supreme Court's decision to hear Gore's appeal in
the contest lawsuit was like a bat signal to the
Republicans and the Florida State Legislature. Suddenly it seemed all
the more crucial to have a backup plan in place.
Who could say how long the case would take to
resolve itself, and now that these liberal judges had their
hands on it, who could say whether it would be
resolved in the right way.
Speaker 18 (26:54):
The Republicans here in Tallahassee brought down the hammer Tonight's
essentially telling Vice President Gore they'll award the state's presidential
electors to Governor Bush.
Speaker 1 (27:03):
Not The Florida State Legislature was going into a special
session in order to start the process of seating Florida's
twenty five electors.
Speaker 11 (27:10):
The Republican controlled state legislature is taking no chances. It's
now scheduled a special session to name electors, just in
case their process is stalled or the state Supreme Court
rules against Governor Bush.
Speaker 1 (27:22):
Tallahassee Democrats were furious, and they tried to link the
plan to George Bush's campaign and his.
Speaker 26 (27:27):
Brother Jeb Sadly, I have to say that I believe
this is orchestrated and the only thing missing from the
proclamation today was the postmark from Austin, Texas.
Speaker 18 (27:39):
The Democrats are seething tonight's a senior Gore advisor telling
NBC News quotes, the American people will not accept the
decision by Florida Governor Jeb Bush and his friends in
the Florida legislature to take the decision away from the
people and the independent courts.
Speaker 1 (27:54):
Gore advisor Ron Klain thought it was time for his
team to make a contingency plan of their own.
Speaker 14 (28:01):
There are a lot of ways in which we thought
it was possible that we would have won, and had
a court ruling said we won, and still the Republican
y legislators would have gathered at the Florida State Capitol
at the appointed time and hour and cast their votes
for George Bush. And so we needed a strategy to
deal with that.
Speaker 1 (28:19):
That strategy would come to be known internally as Plan X.
Claim called it the Gore team's most extreme thought.
Speaker 14 (28:26):
You know, the electoral College doesn't really meet all in
one place at one time. When we say the electoral College,
what it is is each state separate electors. They gather
in their state's capital. They cast their ballots there, and
the ballots are then transmitted to the Archivist of the
United States. Now, one of the intriguing things about Florida
is it actually has two state capitals.
Speaker 1 (28:49):
Of course it does, but to be clear, Claan means
Florida had two state capitol buildings. They were both in Tallahassee.
One was fully functional and had been in nineteen seventy eight.
The other dated back to the nineteenth century and had
been converted into a museum of Florida history after the
new one was built. Now, I know this is going
to sound convoluted, but that's because it was. The electoral
(29:12):
College was scheduled to vote for president on December eighteenth.
That was the only day the country's five hundred and
thirty eight electors could legally cast their votes. So if
the contest lawsuit ended up going Gore's way after the eighteenth,
and he picked up enough votes to overtake Bush's lead,
it would still be too late for the Gore campaign
to make it count in the electoral College. To avoid
(29:34):
that situation, ron Clam moved to take advantage of an
ambiguity in Florida law which specified that the state's electors
had to gather in Tallahassee, but didn't specify where exactly
they had to go.
Speaker 14 (29:45):
And we had a plan, a contingency plan to have
our electors come to Tallahassee and meet in the old
State Capitol building and cast their votes for al Gore
and send those votes to the archivist, even as the
Bush vote electors were meeting in the new State Capitol
and casting their votes for George Bush.
Speaker 1 (30:03):
Claim knew that Plan X was a zany idea. In
the same way Senate President John McKay didn't cherish the
prospect of the legislative end run. Claim didn't really want
to go through with it, but he felt that the
Florida Republicans were giving him no choice.
Speaker 14 (30:17):
Now, again, we wouldn't have done that unless we had
a court order saying that we thought our electors were
the right electors. But you know, we really were planning
for every possible contingency here.
Speaker 1 (30:27):
You might be wondering what would have happened if Florida
had sent in two sets of votes, one from a
slate of Bush electors, the other from a slate of
Gore electors. Al Gore actually had the same question. His
friend Walter Dellinger, the former Solicitor General, told him the
dispute would be resolved in the US Congress.
Speaker 31 (30:45):
Here's Dellinger, because the Constitution gives Congress the authority to
count the ballots, and any dispute over you know, who
won a particular electoral vote could be resolved by Congress.
Speaker 1 (30:58):
In this scenario, two envelopes from Florida would be given
to Congress, one saying that the state's twenty five electors
had voted for Gore, and the other one saying that
they had voted for Bush. The official count would be
overseen by the President of the Senate otherwise known as
the sitting Vice President otherwise known as Al Gore.
Speaker 31 (31:17):
When the votes are open in front of both houses assembled.
When the vote is announced, that vote can be overturned
or rejected only by an action of both the House
and the Senate. Vice President. Gore is listening eagerly as
I am explaining what happens, that whatever envelope.
Speaker 1 (31:39):
Is opened will be.
Speaker 31 (31:43):
The vote of Florida. And he says, who decides what
envelope to open? First?
Speaker 1 (31:50):
Good question. That was my next question too.
Speaker 31 (31:54):
And I said, you will still be the presiding officer
of the Senate. You'll be the one to choose which
ballot to open.
Speaker 1 (32:04):
Gore wouldn't get to unilaterally declare himself president, but still
he knew how it would look.
Speaker 31 (32:08):
And he looked at me and said, well, I just
have one question. Did they have to wait for me
to be sworn in before beginning appeacement proceedings or could
they start right then?
Speaker 1 (32:23):
More after the break.
Speaker 3 (32:29):
Live pictures here of the tense city that has grown
outside the Florida State Supreme Court.
Speaker 1 (32:34):
As the Florida Supreme Court prepared to hear Al Gore's
appeal in the contest lawsuit, Tallahassee was getting more hectic
and media saturated by the day. Even the lawyers, especially
David Boys from the Gore side and local Florida attorney
Barry Richard from the Bush side, walked around like celebrities.
Here's boys.
Speaker 5 (32:51):
Everybody recognized Barry Richards and myself. You know, people driving
by would shout out to him, don't let them steal
the election, or our supporters would you know, don't let them,
you know, bury our ballots. So, I mean, somebody was
always yelling out to you, either encouraging you or trying
to discourage you.
Speaker 18 (33:14):
Today, hundreds of pro GOURG demonstrators rally outside the state Capitol.
Speaker 1 (33:19):
News trucks flooded the area. Protesters arrived early each morning,
and with them a crowd of attention seekers who were
less motivated by politics. By the presence of cameras.
Speaker 2 (33:27):
There were people dressed in clown outfits. They were having
a lot more fun out there than I was having
inside the building.
Speaker 1 (33:34):
That's Charles Wells. He was the Chief Justice of the
Florida Supreme Court in two thousand.
Speaker 2 (33:39):
There was a lady that brought her pet skunk, and
it was a great act because you can make that
skunk do backwards sumrsaults.
Speaker 1 (33:51):
It was against this backdrop that in December seventh, the
Florida Supreme Court heard oral arguments in Gore v. Harris.
Speaker 27 (34:06):
Americans maybe just hours away from their clearest few yet
of will be the next president. A live picture right
now from the Florida Supreme Court any moment. Oral arguments
will begin here in this courtroom.
Speaker 1 (34:18):
The question before the court was whether Judge Sauls had
aired in denying the Gore team's contest petition. The legal
standard at play was not exactly objective. According to Florida law,
the losing candidate had to show that there had been
counting errors that placed the result of the election in doubt.
But what that meant was up for interpretation.
Speaker 32 (34:36):
Good morning, and welcome once again to the Florida Supreme Court,
where we'll have oral argument this morning in the case
of Gore versus Harris.
Speaker 1 (34:49):
In one corner stood David Boys and the other Barry Richard. I.
Though they looked like sworn enemies in the courtroom, the
truth was they liked each other, and when they weren't working,
they'd been hanging out together at a sports bar in
your Boys's hotel.
Speaker 5 (35:02):
We were so deep into the weeds of this that
in some senses, we were each the only person the
other could talk to that cared enough about some of
these details to really be interested in talking about it,
even your children and your wife. It's my eyes begin
(35:22):
to glaze over sometimes when you are really deeply involved
in one of these complicated cases.
Speaker 1 (35:29):
Boys and Richard took pleasure in competing with each other.
Speaker 29 (35:32):
One of the things made it so much fun for
me is that David and I were sparring with each
other for the fun of it.
Speaker 1 (35:40):
This is Barry Richard.
Speaker 29 (35:42):
I've never been much of an athlete, but I suspect
that professional athletes enjoy what they do most when they
are opposing to somebody else who they feel is at
the top of his game, and.
Speaker 1 (35:52):
David Boys at the toughest game.
Speaker 29 (35:54):
So it was a great challenge, and it was fun,
it was intellectually stimulated, and I got famous.
Speaker 1 (36:04):
So that was the dynamic at play between David Boys
and Barry Richard, who they sparred with each other at
the Florida Supreme Court in.
Speaker 4 (36:10):
Which we have identified specific votes, many of which were
agreed by the district Court, were votes in which you
could clearly discern the voter's intent, and fifteen.
Speaker 1 (36:23):
The positions they took will sound familiar to you. Richard
argued that the recount process had already played itself out
fair and square, while Boys made the case that getting
an accurate vote count should take precedence over any other consideration.
Speaker 5 (36:36):
The simple argument that I made to the Florida Supreme
Court was that Florida law for one hundred years had
held that what was important was to discern the intent
of the voter, and that in order to discern the
intent of the voter. In a close election, you would
have a manual recount.
Speaker 1 (36:56):
It was clear from the questions that they were asking
that some of the Florida justices were sympathetic to Boys's argument,
while others were not. Among the sympathetic ones was Justice
Barbara Perrienti, who was frustrated with Judge Sauls for refusing
to look at the ballots from Palm Beach and Miami Dade.
Speaker 8 (37:10):
He never looked at a single ballot. They had been
brought up there, he had ordered them up. He never
looked at them.
Speaker 1 (37:17):
Perry Andy thought it was obvious that looking at the
ballots was the best way to figure out who won
the election. At one point during the hearing, she and
one of her colleagues started asking why Gore was only
seeking manual recounts in two counties rather than the whole state.
Speaker 4 (37:32):
When you have a very close election, you have to
have a manual review of those ballots in order to
have an ac retality.
Speaker 8 (37:40):
So why wouldn't that apply to all the other counties,
at least the punch card counties where there are under
votes and those votes also haven't been counted, and.
Speaker 23 (37:51):
You've demonstrated that there's legal votes that have not been counted.
Why would that not exist in other counties? And why
would this not require, if any judicial relief that be
applied in a statewide undervote.
Speaker 4 (38:05):
I think there are two.
Speaker 1 (38:06):
Prior to oral arguments, a statewide manual recount wasn't even
really on the table. Gore had proposed the idea once
in a televised a dress back in mid November, but
Bush had promptly rejected it. Now, with just days left
until the December twelfth Electoral College deadline, it seemed as
though some members of the Florida Supreme Court thought a
statewide manual recount was a pretty good idea. Here again
(38:29):
is Perriente.
Speaker 8 (38:31):
How do you favor three counties with counting under votes
when you don't do it equally for all counties?
Speaker 1 (38:42):
A statewide manual recount had the potential to be transformative,
though it was hard to predict how exactly the vote
total would change. The fact that thousands of discarded ballots
might now be back in the mix meant that Gore
would have that many more chances to cut into Bush's lead,
But not everyone was enthused. Chief Justice Wells had been
preoccupied with the upcoming deadline for seating Florida's electors, and
(39:04):
it struck him as lunacy to try to undertake such
a gargantuan task with so little time left on the clock.
Speaker 2 (39:10):
I think it became pretty obvious the questions that were
being asked that the December twelfth deadline was not bothering
some of my colleagues like it was bothering me.
Speaker 1 (39:28):
After oral arguments, as the justices began to conference, peri
Anti took the position that recounts were clearly needed in
Palm Beach and Miami Dade, but the only way to
be fair to every voter in the state, Parentti thought
was to hand count all the undervotes that had been
cast across Florida. Some of Perianti's colleagues, including Chief Justice Wells,
just didn't think that was possible.
Speaker 8 (39:48):
I think there was a belief that there was no
way that this court could end up ensuring that every
vote would be counted, that there would always be questions,
and so it was better at that time to keep
our hands off and let the controversy because we were
(40:11):
approaching a time where it was a feeling that Florida's
vote needed to be counted in the Electoral College, and
if it lasted much longer, it wouldn't have been.
Speaker 1 (40:21):
Justice Wells had a more fundamental objection as well, in
erase this impossibly tight there was simply no way to
arrive at an objectively accurate vote count.
Speaker 2 (40:31):
It become evident to me that we were not going
to ever get to a point in which the margin
of victory exceeded the margin of error here to an
extent that we could refine it by continuing to a
(40:51):
recount that was so uncertain as to how it was
going to be done, and so that we had to
conclude it.
Speaker 27 (41:08):
Well.
Speaker 1 (41:08):
Tensions are high, Questions are being asked, what is the verdict?
Speaker 18 (41:11):
We should find out shortly, we believe.
Speaker 1 (41:13):
On the afternoon of December eighth, the justices of the
Florida Supreme Court released their decision for.
Speaker 32 (41:18):
A couple of minutes away from hearing from the Florida.
Speaker 19 (41:21):
State Supreme Court.
Speaker 7 (41:22):
The scene there and the steps of the Florida Supreme
Court in Tallahassee, Florida, we understand.
Speaker 1 (41:26):
The job of relaying into the public fell to the
court spokesman, Craig Waters. Waters had been summarizing the decisions
of the court and communicating with the press since early
in the recount. Whenever reporters saw his podium getting set
up on the steps of the Supreme Court building, they
knew he would soon be coming out to deliver some news.
The crowd of reporters covering the recount had been growing
so much that with each announcement, Waters was forced to
(41:48):
move his podium up the steps to make room for
more spectators. By December eighth, he was perched near the top.
Speaker 7 (41:54):
We could see the state troopers and the court security
officers in playing clothes. We understand that the court spokesman,
Craig Waters will be out very very shortly.
Speaker 1 (42:03):
Tensions have been rising throughout Tallahassee for nearly a month
by this point, and Waters knew that he was about
to reveal the most paradise i'm shifting news development the
court had delivered to date.
Speaker 20 (42:12):
It was a frightening thing in a lot of ways.
When they had offered me the bulletproof vest, I think
that scared me more than anything else. Did this idea
I have to wear a bulletproof vest. My god, what's
going on here? That's not the Tallahassee I know. Hello,
I'm Craig Waters.
Speaker 6 (42:29):
Spokesman for the Florida Supreme Court. The Court today has
issued its opinion in the case of Albert Gored Junior
versus Catherine Harris, George W.
Speaker 22 (42:38):
Bush, and others.
Speaker 6 (42:40):
Paper copies of that opinion.
Speaker 20 (42:41):
I got out onto the to the podium and I
began reading. I had these lights shining in my face,
so I couldn't see the crowds very well because I
was blinded. But there was a large piece of metallic
equipment nearby that fell over. And the thought that went
through my head at that particular point in time, is
my God, there's the bullet.
Speaker 6 (43:00):
By a vote of four to three, the majority of
the Court has reversed the decision of the Trial Court
in part. It has further ordered that the Circuit Court
to the Second Judicial Circuit here in Tallahassee so immediately
began a manual recount of the approximant of the.
Speaker 1 (43:17):
Approximate Chief Justice Wells had been outvoted. After all the
confusion and delays in Palm Beach and Miami Dade, every
county in the state that hadn't already done so was
now going to recount their undervotes by hand.
Speaker 17 (43:30):
This was an even more to stunning decision than the
Florida Supreme Court's first in favor of al Gore, and
it sets into motion a potentially chaotic series of events.
Speaker 19 (43:39):
If you do not like political chaos, it's about time
to head for the storm seller, because up until about
a few moments ago, I think most people were expecting
the Florida Supreme Court to kind of go along with
Judge Sauls and bring this to an end, and people
were draft in al Gore's concession speech.
Speaker 3 (43:54):
Those couple of hours today were just positively explosive. There's
been an enormous shift in the political ground.
Speaker 1 (44:00):
For the Gore team. It was like getting an extra life.
Here again is Jeremy Bash.
Speaker 15 (44:06):
We were overjoyed, and we had popped the court work
on some wine and cracked open some beers and we
had a little celebration there in the law offices that
we were working out of. This was far beyond what
we had requested, and it was a massive opportunity for
us to take a lead in the tallies, which we
(44:27):
thought would be critical to regaining some of the political
momentum that we had clearly lost.
Speaker 1 (44:33):
The problem once again was time. The Electoral College deadline
was now just a few days away, and if it
started to look like Florida wouldn't be done counting votes
by then, the Republicans in the state legislature were ready
and willing to use their power to bring the election
to an end. As it turned out, they weren't the
only ones. On the next and final episode of Fiasco,
(45:06):
the Florida recount heads to the Supreme Court.
Speaker 10 (45:09):
Justice O'Connor s this is a mess.
Speaker 14 (45:10):
We got to stop it now because if we don't
stop it now, it's going to go on and on,
and it's going to get worse, and Bush is gonna
win in the end. Anyways.
Speaker 1 (45:20):
Fiasco is a production of Prolog Projects and it's distributed
by Pushkin Industries. The show is produced by Andrew Parsons,
Madeline kaplan Ula Culpa, and me Leon Nafock. Our script
editor was Daniel Riley. Our editorial consultant was Camilla Hammer,
and we received additional editorial support from Lisa Chase. Our
(45:41):
music and score are by Nick Silvester of god Mode,
with additional music from Alexis Quadrado. Our theme song is
by Spatial Relations. Our artwork is by Teddy Blanks at
Chips and y audio mixed by Rob Buyers, Michael Rayphiel
and Johnny Vince Evans of Final Final V two Special
Thanks to Luminary for a list of books, articles, and
(46:03):
documentaries that we relied on in our research. Click the
link in the show notes. Thanks to c Span and
NBC News Archive, CNN and Channel twenty, and Palm Beach
with the archival material you heard in today's show. Thanks
for listening.
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