We set up the Bartlit Beck team in a different building. We told them that, at some point relatively soon, there’s going to be a trial, so don’t get drawn into the media circus, don’t get drawn into the appellate battle, but get ready for trial. And they did.
Early in the proceedings, there were a total of seven different cases pending in different courts, all challenging the outcome of the election. The first time the votes were counted, George W. Bush won. He had the most votes, but Democrats wanted a recount—and it quickly became clear that they wanted to keep counting over and over and over again until Al Gore was finally declared the winner. That’s not surprising in any election. Whoever has the fewest votes has all the incentive to want endless recounts because otherwise, they lose.
In the first few days in Florida, Secretary Baker asked me to serve on all seven of the different legal teams to ensure consistency between what we were saying in different courtrooms. And my first six days down there, I slept a total of seven hours. It was chaos. We had charts on the wall, mapping out each of the different cases, any one of which, if it went wrong, could cost the presidency of the United States.
Our trial team was led by Bartlit Beck and Houston-based Baker Botts (where I had spent two summers working in law school). They spent two weeks separated from everyone else getting ready for trial.
Of course, the Democrats had their own array of trial lawyers. But their entire team was led by, and much of the work was done by, one person, David Boies. David Boies is an amazingly talented litigator. He’s brilliant, and he has a photographic memory. He seemed equally adept at questions of law and questions of fact and was as quick on his feet responding to unexpected changes as any lawyer I have seen in a courtroom.
But Boies was simply doing too much. He led the State Supreme Court effort, which for us had been led by Mike Carvin. He led the U.S. Supreme Court effort, which for us was led by Ted Olson. He led the state trial team, which for us was led by Fred Bartlit and Phil Beck. He became the chief press spokesperson for Vice President Gore, which for us was led by Jim Baker and former deputy AG George Terwilliger. In any one of these endeavors, Boies was excellent. At all of them, simultaneously, there simply were not enough hours in the day for one man.
For elections, many counties in Florida used a punch-card system of voting where the voter pushes a stylus through a punch card and pushes out what’s called a “chad”—the little rectangle that the stylus pokes out. One of the arguments presented by the Democrats was that the voting machine used in Florida’s punch card systems had a problem that led to systematic undercounts of the votes. The theory went that the first column of a punch card was always used in every election, whereas the second and third columns were used less frequently. Therefore, they claimed, the first column would get more chads built up under it, and, as they piled up, it would become more difficult to push the stylus through and vote for the candidate you wanted—which they presumed to be Al Gore.
This was a curious theory, on many fronts. And we knew we had significant evidence to counter it. One of the younger lawyers working on the team was preparing to take the deposition of the Democrats’ trial expert, and he was eager to rip the expert apart. Fred and Phil jumped in and stopped him and said, “You will do no such thing. We are going to use this at trial. And we have zero interest in telegraphing our trial strategy at pre-trial deposition.” Instead, the deposition focused primarily on questioning the expert’s academic qualifications, which presumably led the Gore team to believe that, at trial, we were going to dispute whether this expert were sufficiently qualified.
The expert at issue was a Yale statistician who had prepared a report that examined prior Florida elections. He argued that in Florida, the 1998 race for U.S. Senate had been in column one, the race for governor in column two, and there were significantly more undervotes in the Senate race than in the governor’s race. Specifically, 1.6 percent more votes were cast statewide in the governor’s race than were cast in the Senate race. That, the Democrats argued, supported their theory that the chads would build up under the first column, and the rubber in the voting machine would get stiffer under column one, and as a result it would make it harder to push the stylus through and vote.
I remember the night before trial commenced. All of us on the trial team were in a large conference room seated around the table. Phil Beck had a baseball cap on and was wearing it backwards. He had a yellow pad in front of him. In a corner of the room, the television set was on, and David Boies was being interviewed by Larry King. Phil looked up and said, “What in the hell is he doing on Larry King?” He said, “We’re going to trial tomorrow, and I’m going to destroy his lead witness, and he doesn’t know it because he’s on #@#$! Larry King!”
The next day, things played out just as Phil had predicted. The Yale statistician laid out his theory that prior elections showed it was harder to vote
