By Kyle Teal, The Florida Bar
The St. Thomas University School of Law invited the legal community to revisit one of the United States Supreme Court’s most controversial decisions in a hotly debated November symposium: “ Bush v. Gore: A Decade Later.”
The symposium, held November 12-13, was well-attended by an audience of lawyers, students, and law faculty. Proceedings will be published by the St. Thomas Law Review, which hosted the symposium and featured election law experts and attorneys from all sides of the controversy involving the contested 2000 presidential election and the court’s decision that sent George W. Bush to the White House.
Panelists included Florida Supreme Court Justice Fred Lewis; James Bopp, general counsel of the James Madison Center; and Ohio State University Law Professor Edward Foley. The discussion included former Florida Assistant Attorney General Kim Tucker and Florida former Deputy Attorney General Paul Hancock. Columbia Professor Nathaniel Persily, a leading election law scholar who served as moderator, brought the idea for the symposium to St. Thomas in conjunction with Adjunct Professor Murray Greenberg, the former Miami-Dade county attorney.
Persily clarified that the goal of the event was to understand the conundrum that put the country on pause.
“Florida has become the model by which all other controversies are judged,” he said.
Some speakers fought for the recount and some against it, but nearly all the experts played integral roles in attempting to resolve the dispute that forever etched the phrase “hanging chad” into Floridians’ memories.
Dean Douglas E. Ray provided a precise summary of the panelists’ recollections given throughout the event. “We’ve learned the story behind the story,” Ray said.
Former Dean Bob Butterworth — Florida’s attorney general at the time of the election — said that he and then-Gov. Jeb Bush “knew that no matter what the outcome, our state’s image was on the line.”
Former counsel for Vice President Gore, Kendall Coffey, spoke of the historically unorthodox nature of the legal battle.
“The idea of litigating the presidency was mind-boggling,” he said during the discussion. “And that’s what we were doing.”
Joseph Klock, who represented former Florida Secretary of State Katherine Harris, exchanged friendly political jabs with Ben Kuehne, who also represented Gore.
First District Court of Appeal Judge Nikki Ann Clark, who sat on the Second Circuit bench at the time of the dispute, said the symposium “would not have happened this well 10 years ago. There were just too many feelings.”
Despite their divergent views, all the participants seemed to agree on at least one fact: There was not enough time. The lack of time caused both parties to race against the clock — that is, the constitutionally mandated deadline for federal election results (safe harbor).
Kuehne vividly told the story of learning of the election confusion while celebrating what he thought was Gore’s success at a victory party at the Fontainebleau Hotel in Miami Beach. He described the haste with which both sides had to work.
“The two sides built virtual law firms overnight,” said Kuehne.
During the judges’ panel, Justice Lewis told the audience that he stands by his decision ordering a recount of certain ballots. “Each morning, I get up, I look in the mirror, and I would’ve done the same thing,” he said.
Judge Clark said she received stacks of hate mail after making tough judicial decisions regarding the election, and spoke of her travels to Liberia to use her post-election judicial experience to assist that country in preparing for its inevitable election disputes. The Liberian government peacefully resolved its subsequent election dispute.
“The session with Judge Clark and Justice Lewis was exceptional, and I enjoyed listening to them speak, because they offered a view of the Bush versus Gore controversy that sensationalist news did not give,” said Ayesa Phillips, a second-year law student at St. Thomas.
“People said that they thought they knew what had happened in 2000, but this symposium brought to light a new story line they didn’t know existed,” said Michael Vera, St. Thomas Law Review editor-in-chief, who, with Law Review Editor Nick Reed, coordinated the event.
Greenberg said America’s civility and ability to work through the legal problems without violence or rioting in the streets was an accomplishment worthy of praise, regardless of the outcome, and something that sets America apart in the world.
But experts agreed that complications in elections will surely continue, as evidenced by the recent midterm election controversy in Alaska over U.S. Senate write-in candidate Lisa Murkowski, and the 2008 contested U.S. Senate race in Minnesota.
“There has never been a perfect election, and there never will be,” Greenberg said.