On remand, the Florida Supreme Court stuck to its previous position. They stubbornly issued a very similar opinion, amazingly, without even acknowledging the unanimous Supreme Court decision that had just vacated their prior opinion. And shortly thereafter, the recount litigation once again went up to the U.S. Supreme Court.
Over the course of the thirty-six-day legal challenge, the ballots had been counted four times. They were counted on election day, which George W. Bush won, and there was an automatic statewide recount triggered because the margin was close. And after a second counting, George W. Bush once again prevailed. The Democrats challenged the outcomes in several overwhelmingly Democratic counties, seeking to gain more Democratic votes through more recounts.
With each recount, in some instances directed by laughably partisan Democrats leading the county recount processes, Al Gore’s numbers grew—though he continued to trail behind. The Florida Supreme Court ordered yet one more statewide round of recounts.
So, while the second Supreme Court appeal was pending, we found ourselves once again in Florida state trial court. Our lawyers were seeking some minimum standards that should be applied for the latest round of recounts. Some of the “chads” on punch cards were not completely removed. Some were what were called “hanging chads,” where they were hanging by one corner but were not entirely separated from the punch card. Others were dubbed “swinging chads,” where they hung by two corners. Others were called “pregnant chads,” attached at all four corners but indented in the middle in a way that suggests a voter might have pressed the stylus into them.
We asked the state trial court to set some uniform standard for how any recount should occur. The district judge rejected every single one of our arguments, ruling that each county could conduct the recount any way it liked and use whichever standards it wanted—counting “hanging chads” or “pregnant chads” as it so desired, counting over-votes and under-votes as it so desired. Then, all of these outcomes would be tallied to achieve a different statewide vote total.
The result was so egregious that I believed it set the stage for us to win. Two of the senior lawyers in Florida were George Terwilliger, who had been deputy attorney general under Bush 41, and Kenneth Juster, who had served in the Commerce Department under Bush 41 and who is today the U.S. ambassador to India under President Trump. The three of us were sitting next to each other in the courtroom and, when the judge ruled against us across-the-board, I wrote the letters “T F V”on a slip of paper and showed it to Ken and George. The “T” stood for total, and the “V” for victory.
Ken and I went back to the office, and we typed out a supplemental filing to the Supreme Court describing just how egregiously the trial court had refused to set anything resembling uniform standards for the next recount that was about to commence. (Since Ken is a bit of a Luddite, he doesn’t know how to type; I manned the keyboard for us both.) As I mentioned, when we first drafted the Equal Protection Clause claim, it was weak. But as the Florida state courts decreed utter chaos and permitted standardless and arbitrary counting of votes in each of the sixty-seven counties across Florida, and as the results of the presidential election came to hinge on the vicissitudes of the local officials in each of those counties, our constitutional argument became substantially stronger over time.
The Equal Protection claim that we had drafted in the late hours of the night and the early hours of the morning had suddenly come to fruition. Before the Supreme Court, Ted Olson presented oral argument, as he had the first time. I was sitting in the courtroom for both arguments. In the second argument, Ted made a point to emphasize that the Florida Supreme Court had not so much as even cited the unanimous Supreme Court decision vacating their prior ruling. That really enraged the justices, especially Justices Anthony Kennedy and Sandra Day O’Connor, both of whom seemed flabbergasted that the Florida judges would have the audacity to ignore a unanimous Supreme Court ruling and, in effect, to thumb their noses at the Supreme Court. Pissing off Kennedy and O’Connor was always a mistake, and here, especially so. Ultimately I believe that was pivotal in the fight for a winning decision.
In the end the Court agreed by a vote of 7–2 that the standardless, arbitrary chaos playing out in Florida violated the Equal Protection Clause. Today, the press rarely remembers that that vote was seven to two—the five “conservatives” plus Souter and Breyer.
The remedy, however, divided along more familiar lines, 5–4. There were four justices who wanted to remand the case yet again, to allow the Florida state courts yet another bite at the apple to try again to set uniform standards (the absence of which we had highlighted in our supplemental brief) and to continue the craziness that had—for over a month—consumed a nation and a world eager for electoral finality.
The final decision came down about 10:00 at night. I got a call on my cell phone from the clerk’s office of the Supreme Court telling me, “We have a decision.” They offered to fax the decision to me. I pulled the opinion off the fax machine and walked into Jim Baker’s office late that evening.
The opinion was dense, about twenty-five pages long, and Baker quietly asked me, “What does it say?” I proceeded to read the opinion rapidly in a small room, with Jim Baker standing across from me and looking over my shoulder. I read as quickly as I could, trying not to be rattled, and then looked up and said, “It means it’s over, we’ve won.”
Baker nodded, picked up the phone, and called George W. Bush, who was at his ranch in
