“In your sworn affidavit, sir,… you said ‘a closer inspection of the Palm Beach ballot reveals that the senatorial race was recorded in the first column and the gubernatorial race in the second,’ right?”
“Right.”
“Now, professor, you’ve never inspected the ballot that was used in 1998 in Palm Beach County, closely or otherwise, have you?”
[six full seconds of silence, with the professor looking deeply anxious]
“I have not seen the ballot.”
“Well, I got one this morning. [showing the witness the ballot]… Now you understand, sir, that this thing I’m pointing to on the left, that’s page one of the ballot.… We got page one of the ballot… and then page two of the ballot.… Now do you understand, sir, that the way these ballots work, on page one, everything that’s on page one you vote for in the first column.…”
“Yes, I understand, sir.”
“Now you read please for the court… what is the race here at the top of column one?”
“… It’s the… United States senator.”
“And what’s right underneath the United States Senate, in column one?”
“State governor, lieutenant governor.”
“So, so what you said in your sworn affidavit, was in column two was actually in column one, right?”
“… it should have been in column one. My mistake; it was the second race, and that’s what I put.…”
“Well, in your affidavit, you didn’t say that the fact that it was the second race was what’s important, you said that the fact that the Senate was in column one and the governor was in column two, why that ‘seemed to suggest’ that the voting machine wasn’t recording all the votes in column one.…”
“I said that this was possible, yes.”
“And you can see here that that sworn affidavit… that just wasn’t true, was it, sir?
“It contained a mistake.”
“… and when you signed that sworn statement, you were relying on the Gore legal team to give you the straight facts, weren’t you?”
“I relied on the facts that I received. Yes.”
“That’s all I have, Judge.”
It was the most stunning cross-examination I’d ever seen. Television dramas notwithstanding, “Perry Mason” moments are rare in court, and yet because our team was fully prepared—we had examined the actual ballots, we had physically tested the voting machines used in Florida elections—we utterly destroyed the Gore team’s expert witness. Afterwards, that Yale statistician was seen weeping, cradling his head in his hands in the courtroom hallway.
During one of the early days of the litigation, as we walked into one of the many trial court proceedings, Warren Christopher, who had been Bill Clinton’s secretary of state and was helping lead Al Gore’s team, turned to Jim Baker and said, “Boy, it’s something else trying to manage the egos of all these lawyers.” Baker responded, “Really? We haven’t had that problem.” Now, that was unquestionably the right political answer to give. It projected strength and calm, but as it so happens, it was also truthful.
The legal team that the George W. Bush campaign brought together in Bush v. Gore is the finest legal team I’m aware of that has ever been assembled in any case. It was a dream team of the top Republican lawyers across the country. Ordinarily, you could never assemble a team like that on any case and have it work. The egos would inevitably clash. Too many 800-pound gorillas on the same litigation team is not a recipe for success. Bush v. Gore was different, however. The Republican lawyers across the country watched what was happening, and they were horrified by it.
For example, as I mentioned, John Roberts was widely considered one of the finest, if not the finest, Supreme Court advocate alive. Prior to John’s being retained, the Bush campaign had already tasked Ted Olson with leading the Supreme Court argument. Remarkably, John was content merely to help with the briefs, to draft and edit portions of them, and to help prepare Ted for oral argument at multiple moots.
One day, however, in the midst of the recount, I saw John carrying a suitcase walking out of the Tallahassee headquarters. I stopped him and said, “John, where are you going?” He said, “Back to D.C.” I responded, “John, you can’t leave. We’re in the middle of a battle for the whole country.” He somewhat sheepishly replied, “Well, I’ve got a U.S. Supreme Court argument tomorrow morning.” John went, got on a plane, flew to D.C., and argued a complicated intellectual property case the next morning, which he ended up winning 9–0. Then he immediately returned to working to help us litigate the case. John was a truly gifted lawyer.
Our team was united by the shared conviction that the facts were clear: Bush had won. The voters had voted. The election was done. Yet in election recounts, Democrats tend to win recounts far more frequently than do Republicans. Republicans, in recounts, are often too ready to throw in the towel. Democratic activists and lawyers, in contrast, are often heavily driven by the ends justifying the means.
I recall our team discussing what to do when the Democrats initially asked for limited recounts, in just four heavily Democratic counties in Florida. We had a debate: Should we counter by asking for reciprocal recounts in four overwhelmingly Republican counties? I still remember Mike Carvin energetically arguing “no” because, he said, that in the Democratic recounts, “their guys will cheat, and they will steal. Their guys are going to be poking the chads out with their fingernails as they’re counting.” And every time they count, they will have more Democratic votes. “Our guys won’t cheat,” Mike continued “They’ll actually just count it, and so it doesn’t advantage us to count again in a Republican county because if our guys aren’t stealing votes, counting again doesn’t help us.”
Now, some observers would surely dispute whether Mike’s characterization was accurate or not, but I can tell you the Bush trial team believed
