DAVID BOIES DISCUSSES THE VARIOUS COURT RULINGS IN THE PRESIDENTIAL RACE
SHOW: MEET THE PRESS (10:00 AM ET)
NBC News Transcripts
December 10, 2000, Sunday
MR. RUSSERT: And with us now, Gore's lead attorney David Boies. Mr. Boies, good morning.
MR. DAVID BOIES: Good morning.
MR. RUSSERT: Let me bring you and refer you immediately to Justice Antonin Scalia's opinion yesterday and put it on the screen for you and our viewers: "The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards is not a recipe for producing election results that have the public acceptance democratic stability requires." Justice Scalia. Your response?
MR. BOIES: I understand what Justice Scalia is concerned about. On the other hand, obviously, perhaps, from my particular perspective, I think the dissent had it right when they said that if you don't count the votes, that is what is most likely to cast a pale of illegitimacy over a presidency. I think the American people have a right to know what votes were cast and for whom. And I actually think that, regardless of how the election comes out, the American people are going to be more accepting of the result if they have more facts. I don't think the American people like to be told, "You can't be trusted to know these facts."
On the other hand, I do recognize the issue of politics that inevitably infuses this kind of controversy. So I think that both the dissent and Justice Scalia have a point.
MR. RUSSERT: Let me refer you to an order that Terry Lewis, the lower court judge, issued on Saturday, and I'll put it on the screen: "No partial counts will be done or reported, formally or informally." Now, that's a judicial order. And then roll a tape of yesterday's news conference with Gore attorney Ron Klain and yourself:
(Videotape, December 9, 2000):
MR. RON KLAIN (Gore Attorney): Our latest information shows that 13 counties had completely or partially completed their recounts, and in those counties, Vice President Gore and Senator Lieberman had gained a net of 58 votes.
MR. BOIES: I think the 58 votes indicates that if this count continues to go forward, it looks like, right now, although nobody can be absolutely certain, that Vice President Gore and Senator Lieberman would win the popular vote in Florida.
(End videotape)
MR. RUSSERT: Did you violate a judicial order by releasing partial recount numbers?
MR. BOIES: Of course not. And I assume that you are not aware of the proceeding before Judge Lewis yesterday, because if you had been aware of that, I'm sure you would not have posed that question.
MR. RUSSERT: I'm very much aware that he was not--a motion for contempt was rejected.
MR. BOIES: Well, not only was a motion for contempt rejected--and if you're aware of that order, I'm a little surprised at that question, because as you know, if you've read the order, Judge Lewis said that that order that you just put up on the screen was not meant to apply to the parties. It was meant to apply to the procedures that the court was going to undertake, not what the parties were going to undertake. And he made that quite clear yesterday, Tim.
MR. RUSSERT: Did your vote count of 58-plus for Gore include the 44 votes that George Bush gained in Miami-Dade County?
MR. BOIES: The 48? I...
MR. RUSSERT: George W. Bush gained 44 votes in Miami-Dade County. And...
MR. BOIES: Are you saying that's a net gain?
MR. RUSSERT: In Miami-Dade, correct.
MR. BOIES: A net gain?
MR. RUSSERT: In Miami-Dade.
MR. BOIES: I wasn't aware that there was a net gain of 44 votes for George Bush in Miami-Dade County. The numbers that you heard Ron Klain give were the numbers that were available at that time. I wasn't counting the numbers myself. Frankly, it surprises me--if you're telling me that there was a net gain of 44 votes, obviously, there was gains both ways. But a net gain of 44 votes for George Bush in Miami-Dade County? If you're telling me that, I accept it.
MR. RUSSERT: I'm asking you. You're...
MR. BOIES: I don't know that figure.
MR. RUSSERT: Fine.
MR. BOIES: I had not heard that figure.
MR. RUSSERT: OK. Let me refer you to the dissent of Chief Justice Charles Wells from the Florida Supreme Court and put that on the screen and give you a chance to respond to it: "I have a deep and abiding concern that the prolonging of the judicial process in this counting contest propels this country and this state into an unprecedented and unnecessary constitutional crisis...this...will do substantial damage to our country, our state, and to this Court as an institution."
And I want to go on with Justice Wells' dissent because it raises some interesting points that Mr. Baker's raised and you've countered and put this on the screen: "Continuation of this system of county-by-county decisions regarding how a dimpled chad is counted is fraught with equal protection concerns which will eventually cause the election results in Florida to be stricken by the federal courts or Congress."
What Justice Wells is suggesting, and echoed by Mr. Baker, is that by counting ballots in a different way from county to county, and by everyone's admission the standards used in Broward, Palm Beach and Miami-Dade were all different, and by simply counting undervotes, which were about 60,000 in the state of Florida, and ignoring the 110,000 overvotes, where candidates of two or more were perhaps voted on a ballot, but you won't know unless you look at it manually, that the Florida Supreme Court has invited the U.S. Supreme Court just to throw this out saying: You violate the due process of George W. Bush.
MR. BOIES: Obviously, I've got a lot of respect for Chief Justice Wells, although, as you know, out of the seven justices of the Florida Supreme Court, he was the only one to express those concerns. Even the two other justices who dissented from the majority opinion did not share Justice Wells' views on that issue. And I think probably one of the reasons that they didn't is that the majority sets forth the standard by which these ballots are to be counted, and it's a standard that the Florida Legislature has set forth in the statutes. And that is that you look at all of the circumstances to discern the clear intent of the voter. Now, that's a standard that has been applied for decades in Florida. That's a standard that's in the Florida statutes.
Now, can you have different people interpreting the clear intent of the voter differently on the margin? Of course, you can. That happens in every election. It happens all across the country. This is not a situation in which Florida has some law that's different than the rest of the country. The Florida law is the same as the law in Massachusetts and Illinois and a variety of other places. So this is a situation in which you have voting officials looking at ballots, just like they have in election after election after election in the past, and making those kind of decisions.
MR. RUSSERT: Well, as you well know, Palm Beach County, since 1990, on a directive issued by their elections supervisor, said that indentations should not count as votes, and it was changed during the recount of this election. And if each county has a different standard as to dimpled chads, swinging chads, indentation, how can you get a fair count...
MR. BOIES: Well...
MR. RUSSERT: ...and how can you get a fair count if you're only counting a select, discreet 60,000 undervotes and ignoring the 110,000 overvotes?
MR. BOIES: Well, two questions, OK? Let's take them one at a time. First, in terms of the so-called overvotes, nobody has ever asked that those overvotes be counted--no candidate, including Governor Bush. This is a situation in which somebody, after the fact, says, "You've got a count going to try to figure out what ballots that were cast have not been counted." And people say, "Well, let's throw in some other votes. Let's look at some other votes around the state." The Florida statutes are absolutely clear: Any candidate has the right to contest any group of votes that candidate wants to. We contested particular votes. Governor Bush's campaign was free to contest the overvotes, if they wanted to, but, of course, they didn't want to, because if somebody's already--if you've already got more than one vote recorded, you know that you don't have an undervote situation. This is not something, I think, that has any relevance to the issue of whether or not you ought to count votes that have been cast but have not been counted.
MR. RUSSERT: But how can you tell the overvote ballot, which the machine suggested had two punches on it, is, in fact, exactly that way without looking at it manually...
MR. BOIES: Well--but, no...
MR. RUSSERT: ...just as you can't tell--just as you suggest you can't tell an undervote can be properly recorded unless looked at manually?
MR. BOIES: No, no. If the machine has already recorded two votes, you know that there are at least two votes there.
MR. RUSSERT: No, it's been rejected.
MR. BOIES: If there's a third vote there...
MR. RUSSERT: It's...
MR. BOIES: ...OK, that isn't going to make the ballot count any more. The problem with the machine is that the machine misses some votes. The problem with the machine is not that it makes up votes that aren't there. Nobody has ever contended that. There's not a line in a transcript that suggests that the machine makes up votes that aren't there. The problem, as Judge Sauls' opinion indicates, is that we know from experience that punch-card machines missed some votes, and it's when those votes are missed that we're trying to get at. That's the problem. And that's--every side had a right to challenge any votes they wanted to challenge.
MR. RUSSERT: But the fact is there were 175,000 ballots rejected in the state of Florida and the Supreme Court of Florida is saying, "Recount just 60,000 of those."
MR. BOIES: But those are because those are the votes that didn't record a vote for president.
MR. RUSSERT: And--no, no...
MR. BOIES: If you're trying to miss--if you're trying to find some votes that haven't been counted, you look at the ballots that have not been counted. I don't think that's obscure.
MR. RUSSERT: No, but 175,000 were non-votes for president.
MR. BOIES: No, no, no. The hundred--the rest of those, after the 60, were not non-votes for president, they were double or triple votes for president. The 60,000 votes--the 60,000 ballots, not votes--the 60,000 ballots are ballots that have not been counted for any candidate. The so-called overvotes that you're now talking about are ballots in which there was more than one candidate counted. For example, the butterfly ballot, as you're familiar with, in Palm Beach, lots of people mistakenly voted for both Gore and Buchanan. That was a mistake. Those ballots were overvotes. Those ballots have been thrown out. But you don't have to go back and count them manually to know that you've got two or more votes.
MR. RUSSERT: The difficulty that some analysts will point out is that you can create this kind of situation in practically any state that you want. For example--and I'll put it on the board--in New Mexico, there were 5,917 non-votes, Gore won by 366. In Oregon, 29,458 non-votes, Gore won by 6,765. In New Hampshire, 10,772 non-votes, Bush won by 7,211. And as Secretary Baker--his numbers suggest, 1.5 million non-votes all across America--a very common occurrence in every state and every election.
MR. BOIES: And it's also very common, as you know, to ask for a manual recount in Massachusetts, in Illinois, in New Mexico. I think even in Oregon, although I'm not sure about that. People asked for recounts, and you can ask for a manual recount. And Florida statutes provide that you can ask for a manual recount. In other words, this isn't something that was somehow made up. This is something that had--that dozens and dozens of states across the country provide for, and that Florida has provided for, not by a judicial opinion, but in their statutes. The thing that has somehow gotten lost sight of here is that this is an ordinary exercise. It happens time after again in Florida. It happens time and again in other states. The only reason that we're looking at it here is because it's affecting the presidential race. But that doesn't make it a new law. You ought to have these principles applied to the most important races, and not only the unimportant races.
MR. RUSSERT: Republicans will say, "Where in Florida law is there a provision that calls for a recount of simply undervotes? Where in Florida law is there a provision which would extend the deadline for certification not once but twice?"
MR. BOIES: OK, two different questions. Let me deal with the certification first. The issue of certification is not involved in this appeal. This is an appeal that is dealing with the contest of the election. Whether the votes were certified or not is irrelevant to the issue of the contest. And Governor Bush's lawyers have said that repeatedly to the Florida Supreme Court. The Florida Supreme Court has ruled that. And there's nothing in the Florida Supreme Court's opinion that's being appealed that deals with certification. And even Governor Bush's lawyers have not put that in their questions presented.
Now, with respect to where in Florida law do you talk about reviewing just the undervotes, what Florida law does in 102.168, which is the contest statute, is it provides that any candidate can contest any group of votes. You don't have to contest all the votes, and never has that been true. Two years ago in the Beckstrom case, the Florida Supreme Court considered a contest that related to about 8,000 votes. Not all the votes, but only 8,000 that were contested. Those were the ones that were reviewed. A lot of those were votes in which the voter had made a mistake. This happened to be an optical ballot, not a punch card ballot, but they'd filled in the ballot wrong. They hadn't used a number-two pencil. They used a pen or something else. The Supreme Court of Florida says, "We got to look at those votes to determine the true intent of the voter." That's what was done then. That's what's been done repeatedly.
MR. RUSSERT: If, in fact, the U.S. Supreme Court overturns the Florida Supreme Court decision, and says that George W. Bush has, in fact, won the election, will Al Gore accept that verdict and concede?
MR. BOIES: From the beginning, we've said that we're going to respect the rule of law. If the Florida Supreme Court's opinion is reversed, and the United States Supreme Court says, "No more votes are going to be counted," then that's the end of it.
MR. RUSSERT: And you will not wait for the Florida Supreme Court to hear the appeals of the Seminole and Martin county cases involving absentee ballots?
MR. BOIES: I'm not going to say what's going to happen in terms of pending Florida Supreme Court appeals. But what I am saying is that, with respect to the contest that we have brought, we have repeatedly said that we wanted to have a rule of law that tested whether or not we had a right to have those votes counted. The United States Supreme Court is the top court in the land. Their voice is final. They have the power to decide this.
MR. RUSSERT: There's been a lot of discussion about a reference to an Illinois case that you raised in a prior brief to the Florida Supreme Court, and a conservative group has filed a measure or complaint of misconduct against you, Mr. Boies.
MR. BOIES: Right.
MR. RUSSERT: I want to give you a chance to respond to it.
MR. BOIES: Sure.
MR. RUSSERT: This is an article from the south Florida Sun-Sentinel: "The Florida bar is investigating a complaint of professional misconduct filed last week against attorneys David Boies and Mitchell Berger by a conservative legal ethics watchdog group. ...The accusations center on an affidavit by Michael Lavelle, a former Illinois election official. ...Lavelle first swore out an affidavit saying the court"--that's the Illinois court--"admitted dimpled ballots, those that were dented but not punched through. But the next day, he issued a corrected affidavit saying only those ballots that were punched enough to let light shine through were admitted. The center's"--that's the person who filed the complaint--"complaint alleges Boies and Berger did not take 'remedial measures' to bring the amended version to the court's attention after their arguments."
It's being suggested that you never filed the second affidavit, which you had an obligation to as an attorney, an officer of the court, and, therefore, you may be subject to a charge of misconduct.
MR. BOIES: I think one of the unfortunate things about this election is the extent to which some of Governor Bush's supporters have resorted the kind of ad hominem and reckless and irresponsible attacks like the one you just raised. I don't know whether you've read the deposition of Mr. Lavelle or not. But Mr. Lavelle's deposition was taken under oath by both sides. And what Mr. Lavelle swore was that his first affidavit--he believed was absolutely accurate, and that's what he told everybody on the Gore team. And that was submitted with him believing and everybody believing that it was absolutely accurate.
Then what happened is, and this is all in the deposition, a reporter called him and read him just selected pages of a transcript of something that had happened many years ago. And what Mr. Lavelle says is he thought that that was all there was. And so he said, "I think I may have made a mistake." He contacted Mr. Berger. Mr. Berger immediately prepared another affidavit. It was filed with the Palm Beach board the next business day. And then after that, Mr. Lavelle found the whole transcript of what had been said. And he went back and looked at it and said, "Well, I'm not so sure now that what I said in the second affidavit was really necessary."
Now, I think that to try to take that kind of situation and make those kind of ad hominem attacks says more about the speaker than it does about the events in question. I would also point out to you that that affidavit was never submitted to the Florida Supreme Court. To suggest that somehow we submitted that to the Florida Supreme Court simply has no basis in fact and is, again, exactly the kind of reckless and irresponsible ad hominem attack that has, unfortunately, characterized so much of the opposition that we've seen.
Even if we had submitted an affidavit to the Florida Supreme Court, which we didn't, the Florida Supreme Court would have made its decision based on what the Illinois Supreme Court said. The important part of the Pullen case is what the Illinois Supreme Court said. All of the affidavit dealt with what happened at the trial court level and whether particular ballots were or were not counted. As a matter of law, what matters is what the Florida Supreme Court rules in its interpretation of the Illinois Supreme Court decision. The affidavit was used not with the Florida Supreme Court but with the Broward County canvassing board and the Palm Beach County canvassing boards in order to help them understand what procedures had been used at lower court levels.
MR. RUSSERT: So you're confident the Florida bar will take no action?
MR. BOIES: I am very confident of that.
MR. RUSSERT: Based on some of the comments you've just made about the opposition, based on the closeness of the election, based on the 4-3 decision in the Florida Supreme Court and the 5-4 decision in the U.S. Supreme Court, do you believe if either George W. Bush or Al Gore emerges the victor, the country can heal quickly from this campaign?
MR. BOIES: I don't know about quickly, but I do agree with Jim Baker that this country is strong enough and united enough and committed enough so that the country is going to come and ought to come together behind whoever is sworn in as president. When that person is sworn in, whoever it is, whether it's Governor Bush or Vice President Gore, he then becomes the president of all the American people. And I think all the American people are going to try very hard to put aside the conflicts that have existed in this election and to get on with the business of the country. I think that will be helped if the American people have a sense that the votes were counted. But I think even if the votes aren't counted, I think the American people are going to make a real effort to try to unite behind whoever is elected president, whoever is sworn in.
MR. RUSSERT: David Boies, we thank you very much for joining us.
MR. BOIES: Thank you. |
