The view from the bench.

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

This panel of the symposium was presented on November 13, 2010, at the St. Thomas University School of Law in Miami Gardens, Florida.

Michael Vera: All fight, welcome back. Now we move to one of the most exciting parts for me, anyway, getting to hear from those who were in essence writing and letting us know what was going on, the judicial panel. I want you all to preemptively join me in thanking and applauding our two phenomenal guests here, Justice R. Fred Lewis of the Florida Supreme Court--

(Applause)

Michael Vera:--and Judge Nikki Clark from the 1st DCA. These two individuals played a pivotal role at different levels, and that's why we're so lucky to have first the circuit court view at the time and then also the Supreme Court view, which as we've all heard, has been a hot topic of discussion over the last two days. And I also want to thank Justice Lewis. I'm aware you're missing a University of Miami game to be here with us. I didn't do that on purpose, but I will say my Florida State game does not start until 8 p.m. tonight, so I'll be okay. With that, Professor Persily.

(Applause)

Professor Nathaniel Persily: What goes around, comes around, right? It originally was FSU v. University of Florida back in the day, and now you're sacrificing the Canes and the Seminoles today. I thought I would start again by sort of getting a sense of where people were and what their role was. We've heard a little bit--I'll start with Judge Clark--about the military ballot issue and absentee ballots, et cetera. Perhaps more than any judge involved in the whole controversy, even before you picked up the pen or put the--you were attacked. And I want to just get a sense of sort of what it was like to be in the center of it all at that time. And then for those who were too young really to remember what was happening in your court, describe a little bit about the case that you were hearing.

Judge Nikki A. Clark: On Election Day, as many of the speakers have already shared, Tallahassee was totally uneventful. For me life that day was totally uneventful. I voted. I went to my office. I had cases. I'd been on the civil docket, so I had cases. None of us were sitting around twiddling our thumbs wondering, I wonder if there's something we can do. None of us were waiting to put our lives on hold for an election case. And in fact, the first couple of days after the election, like everybody else, we were pretty much--we, being the judges--just observing.

You know, we were watching television like everybody else. We saw that the election results were close. We saw that there was lots of talk on TV about threats of lawsuits. You know, we watched as Dick Cheney had his heart attack. Everybody was just watching and observing. There was nothing happening in Tallahassee just yet. The first lawsuits began to get filed in South Florida, in Palm Beach and in Dade County. Still, the judges in Tallahassee--and I was on circuit level then--were just observing. Between the various hearings we had, we'd go turn on the TV and go, wow, is that fascinating. What in the world are they doing there?

As the days began to move on, we started getting a little lawsuit here, a little lawsuit there, and nobody knew what was actually going to happen. So several judges--there were four judges in the civil division at that point. Not knowing what lawsuits we were going to get--we didn't know if we were going to get five. We didn't know if we were going to get a hundred. We just didn't know.

We only became involved when there was more than one county that had a dispute. So the civil judges got together and thought, you know, do we need to really talk about this. And our conversation revolved around how we were going to expend our meager judicial resources. Were we going to try to assign certain judges to certain kinds of lawsuits? Were we going to ask some other judges from other divisions to come share the civil work with us? And what we decided was that we were not going to do anything differently. We were going to continue to allow the cases to come in and be assigned at random, and this was a deliberate effort to make sure that we were as transparent as possible. We didn't want to be accused of changing anything midstream. And again, nobody knew how hard we were going to work or how many cases we were going to get.

After a few days--and somebody else mentioned how everything just kind of runs together--it began to--lawsuits began to trickle in. As they began to trickle in and were assigned randomly, at first they were, you know--and I'll say no-big-deal cases because most of them were dismissed. We had a lawsuit from a congressman in Jacksonville that had been assigned to me, and to say it was frivolous gives it more credence than it deserves. So some of them we didn't even have hearings on. And then they began to come in, and I felt lucky because I didn't have any of the major suits right away, and I kind of just sat back and watched my colleagues, and again, had the TV on, was watching the proceedings.

Then probably two to three weeks into the controversy, I got my first substantial case, and that was a case--I mean, somebody talked earlier about the Republicans wanting to have recounts in other counties. Well, one of the lawsuits I got was filed by an individual who was seeking to challenge the constitutionality of the statute that allows only political parties to ask for recounts. So I had a full hearing on that. And this person's position was that anybody should be able to ask for recounts, otherwise it denied equal protection.

Outwardly, I carefully considered the argument and asked a few questions. Inwardly, I'm thinking, are you kidding me? You know, are you suggesting that the millions of people in Florida each get to come to court and ask for a recount any time they want? Outwardly--hopefully, I had a nice judicious face on--I considered the arguments and considered what the state had to say, what plaintiff had to say and entered an order finding that that statute was not unconstitutional. So we put an end to that.

It wasn't until--in fact, I looked at the filing date just a few minutes ago--November 27 that I got involved with the case that the media had come to dub as the Sleeper case because it involved 15,000 votes which, of course, could have made the difference. This was a lawsuit filed by a private individual, Mr. Jacobs, in Seminole County. And the allegation--and I have the complaint with me if you guys--if anybody wants to see it. The allegations were more than what was actually proved, but the allegation was that the Supervisor of Elections in Seminole County had acted illegally and had allowed the Republican party access to her office where it had denied that same access to the Democratic party.

What had happened, the Republicans, when they were sending out absentee ballots, had a form that was incorrect. On the form that they sent out for people to request absentee ballots, missing was a spot for the potential voter to put their voter registration number, and that was one of the nine things required by law to request an absentee ballot. When the request came back absent the registration number, the Republicans kind of panicked and thought, oh, my God, these votes are not going to count. They requested of Sandra Goard, who was the Supervisor of Elections, to come in and use her office and requested that they be allowed to input the registration number on those voters. So the allegation was that that activity was illegal, that all 15,000 of the absentee votes should be excluded, and that there had been an equal protection denial because that same right had been--so the allegation goes--denied to the Democratic party. The intensity of those next, I don't know, eight days or so was just incredible. I mean, we worked probably twenty hours a day.

What we had to do was take a lawsuit that would typically take a year and we had to compress that into just a few days. As soon as I got the case, one of the very first things I did was to schedule a case management conference so I could determine which attorneys were involved, how many parties were going to be involved, whether there were going to be any parties intervening and just kind of get a lay of the land. It also was my chance to set a schedule. And of course, we had to expedite discovery matters and motion hearings and things like that. And I suppose we'll get into some detail later in the conversation about some of the matters that were pending. But my recollection of those days is the incredible intensity and the intense anger. And for some reason, they were angry at me.

There had been a request within--probably within a day, maybe two days, of me being assigned the case. There was first a request to consolidate this Jacobs v. Seminole County case with another case that Judge Sauls was doing. Clearly, an effort of judge shopping just to get me off the case. I mean, there was no basis at all for a consolidation. I denied that motion. Within hours, there was a motion to disqualify me. And the motion was particularly mean and it was nasty and it was pretty outlandish. A judge's response to a motion to disqualify can only be one of two things. A judge can simply grant the motion if it's legally sufficient, or deny the motion if it's legally insufficient.

The minute a judge begins to react to allegations, she has to get off the case. The minute a judge denies allegations in a motion to disqualify, she has to get off the case. The minute a judge makes any comment at all, she has to get off the case. When we got the motion in, and it was vitriolic, my judicial assistant called me into the office, and she had been working with me at that point for probably fifteen years, and she said, Judge, do not get mad at me. I'm just giving you the motion.

She cleared everybody else out of chambers so that I would not react. I read the motion, and again, the only thing I could do is to look at...