The view from the litigants.

• Position: The Legacy of Bush v. Gore in Public Opinion and American Law - Discussion

This panel of the symposium was presented on November 12, 2010, at St. Thomas University School of Law in Miami Gardens, Florida.

Professor Murray Greenberg: Good afternoon, everybody. Mike must be enrolled in a class I'm teaching next semester and he's trying to get a good grade.

Joseph P. Klock (Joe): Blind grading, though, Professor.

Professor Greenberg: There's blind grading, Joe. Yes, you're correct. Seriously, the credit for this goes to people other than myself. The idea came from Nate Persily, who I'm going to tell you a little bit about in a couple of minutes. But there were a ton of people--they've all been mentioned already.

I'm not going to go through the names, but Professor Gary Kravitz, who guides the Law Review, Mike, the other Mike, Nick, Dean Dykas, who during a good part of this was the associate dean, the acting dean, the fulltime dean; Dean Ray, who when he came in, embraced this. Dean Garcia had left this for him and he embraced this symposium and we are all very grateful.

Let me introduce Nate Persily to you. I have known Nate Persily for the better part of Nate's life. I could say a ton of stuff that would embarrass him, but I'm going to be good. Let me just tell you about Nate's academic background. He graduated from Palmetto High School. He's a Miami--almost a Miami native; born in New York, but he graduated from Palmetto. He graduated from Yale undergrad; Stanford Law School. He has a Ph.D. from Berkeley. He clerked for Judge Tatel of the D.C. circuit. He was a tenured professor at the University of Pennsylvania Law School teaching constitutional law and election law.

And he has a chair as a professor at Columbia Law School teaching the same courses. He has taught at Harvard Law School and has done a few other things. He has written all sorts of articles. Most importantly, he's given me his notes for my election law class. But Nate has been involved. He's been an advisor to the 11th Circuit Court of Appeals here in the election case whose name I forgot that came up that Judge Marcus authored, I believe, or at least Judge Marcus was on the panel. This was his idea.

From an academic point of view, with all due respect to all the academicians who are here, and I am totally biased--I will concede that fact--there's no one that I think has a better grasp of election law and all the mechanics than Nate. He is quoted more than once in at least the book I use, the Sakharov textbook, and we are lucky to have him bringing this symposium here. So without saying much more other than he's a great guy in addition to being a pretty good law school professor, here's Nate Persily.

(Applause)

Professor Nathaniel Persily: I feel like I need to give my bar mitzvah speech now, Murray. Thank you. Thank you so much for hosting this. It's a real honor and pleasure to be here. Any excuse to come back to Miami is an honor and a pleasure for me since these are my roots. I don't want to go--give as elaborate an introduction for all of the panelists here because I'd like to jump right in, but you have their bios in the pamphlets that were outside.

But let me also thank everyone who's been thanked thus far, the Law Review, Mike, Nick, Murray, all the various deans, past and present and future, who have been instrumental in this. I'm getting way too much credit and responsibility for this idea. In talking to Murray at some point, I said this is the tenth anniversary of Bush v. Gore, something should happen in Miami. He said I'm a professor at St. Thomas Law School, something will happen in Miami. And so that was the genesis of this. And so we're thrilled that so many people have decided to join us for this discussion.

As I said in various emails to the participants, this is not principally an opportunity to reopen old wounds. This type of event really hasn't happened even in--at any time during these ten years since Bush v. Gore where participants came back to talk about it. With ten years of hindsight, I think we can have some kind of cushion and perspective on the event. As Dean Ray said, we have--it's not as if the issues in the law of democracy have gone away.

In some ways, the echo still rings in our ears from ten years ago and it does in every close election. Many of the election law people in the room, we get re-interviewed every two years on, well, is this going to be another Bush v. Gore? Is Alaska the new Florida? Is Ohio the new Florida? Is Pennsylvania? Is New York? Whatever it is, Florida has now become the model against which all other controversies are judged. And so we are still living with these issues, and Bush v. Gore, I should say, has done wonders personally for those of us in the field of election law. I remember I gave my first job talk the day after the 2000 election, and I remember I had to cut out the first five to ten minutes of it because it was trying to explain the importance of the law of democracy. And so that became irrelevant when it was clear the Supreme Court was taking a case out of Florida where Bush and Gore were suing each other. So you know the salience of these issues and their importance, and so we're going to dive right in.

Instead of a typical symposium where we have long, plodding speeches from in seriatim from our guests, I'm going to try and use these panels as a way to moderate a discussion from people who were involved in the controversy ten years ago. And so we have a distinguished panel here, Joe Klock, Jim Bopp, Ben Kuehne, and Kendall Coffey, all of whom were involved in one way or another.

And what I'd like to do, I'm going to start with Joe Klock, who was one of the lawyers who went all the way to the Supreme Court in arguing the case. And I want to just put ourselves back ten years ago, the day of the election, and just for each of you to give me a sense of where you were and then how you got involved in this. And then we'll get sort of reflections ten years later, but can you sort of just take us back a little bit because so much of what we think of the 2000 election controversy is through the lens of that final decision at the Supreme Court. But can you sort of tell us sort of how your role started, Joe, in the--with the 2000 controversy?

Joseph Klock: We got a call from the general counsel for Katherine Harris asking whether or not we'd be available to work with her in terms of representing her office. I don't know how many of you know the peculiarities of the Florida governmental system, but at the time--in the year 2000, we still had an independently-elected secretary of state who did not get along very well with the independently-elected governor of the state or actually any of the other independently-elected cabinet officers.

However, we had represented--we had had dealings before with the Secretary because of our firm's involvement in international trade in South America, and Secretary Harris was very interested in that, and so we worked very closely with her during that entire period of time. So it's interesting--I remember where I was when Kennedy was assassinated. I don't remember where I was on Election Day, but I do remember we got this call like--I think about a day into the--after the election.

Professor Persily: Jim--I'll just go down--where were--when did your sort of involvement in the litigation begin in 2000?

James Bopp, Jr. (Jim): Well, at the time, I was practicing law in Terre Haute as I am now, and we have a political practice. We do campaign finance, election law, recounts, and we've been involved in over 100 federal lawsuits in the--dealing with those issues, including arguing six cases in the U.S. Supreme Court. I was called about 6 p.m. on Thursday, November 9. Gore had filed for a recount, and the Bush lawyers, at the recommendation of Charles Canady, who was then legal counsel for Governor Jeb Bush, a former Congressman who I'd gotten to know in that connection, called me. They were thinking that they needed to explore federal options, federal claims, and they really had no idea what they might be. They thought maybe voting rights act, maybe due process. So they were asking for our advice.

I pulled four or five of my lawyers together that evening and very quickly settled on the view that the best legal argument would be an equal protection argument. At the time the problem was recounts in only selected counties rather than statewide. And we reported that to the Bush lawyers that evening, and they asked us to draft the initial complaint that might be filed by Bush in federal court, which we did at 2:30 a.m. the next morning, which contained both equal protection and due process claims. We were told, however, after they reviewed it that "under no circumstances" were they going to make an equal protection claim.

That bothered me obviously a little bit, as I was convinced that it was an important claim. The next day there was a press conference by Jim Baker, and he expressed the view in that press conference that manual recounts were always a less accurate alternative, and as we found out when they filed suit on Saturday, that was a preview of the principal argument that they were going to make in the federal court. That bothered me, too, having participated in many recounts. I thought that argument had no merit. They filed suit on Saturday and made, as was predicted, the argument that manual recounts were always a less accurate alternative, and they also made several other arguments, and they did make a voter delusion argument but it was very inadequate in my view. As a result, on Monday, we filed suit on behalf of Florida voters in Broward County and litigated that case up to the United States Supreme Court. So that's how I got involved.

Professor Persily: And Ben.

Benedict P. Kuehne: I know the concept of Ground Zero has taken on an unfortunate meaning after 9/11 a year later, but--and I won't necessarily speak for Kendall, but I will. Kendall and I were ground zero in this election, having worked during the...