by Glenn Tschimpke
Staff Writer
Two years after the 2000 presidential election, Barry Richard is able to reflect upon the biggest case of his life with the benefit of calm, collected hindsight. Richard spearheaded George W. Bush’s 2000 presidential election litigation in Florida, which eventually launched Bush to the White House over Al Gore. Looking back, though, Richard has formulated different theories about his 36 days in the national spotlight that included 47 cases, 52 judges and 192 lawyers of record.
“Things were not quite what they seemed,” he told a packed room at the Florida Coastal School of Law Friday. “I have counted nine books written about the election, almost all of them focusing on the Bush vs. Gore case, which eventually reached the United States Supreme Court. In my opinion, all of them analyze the case incorrectly.”
Richard explained his “Three Great Myths of Bush vs. Gore.”
“The first myth was that the United States Supreme Court, in that decision, made new law,” he began. “In fact, the decision that U.S. Supreme Court made that stopped the recount is based upon legal principles that all of the primary lawyers involved in the litigation had agreed to at the very earliest stages of the litigation.
“The U.S. Supreme Court decision was in two parts. The first part was the determination that there was an equal protection problem. The second part, which has been probably subjected to more criticism than the first, was the decision to stop the counting.”
Richard pointed to the presidential election of 1876 in which Democratic candidate Samuel Tilden captured the majority of the popular vote but Rutherford B. Hayes won the electoral vote. Congress was split along party lines, Democrats in the House and Republicans in the Senate.
“What Congress did was it appointed a commission to get it out of this impasse,” explained Richard. “The commission was composed of 15 members, five from each of the three branches of government. Seven Democrats, seven Republicans and fortunately for everybody, there was one member of the Supreme Court that was an independent and he became the swing vote. Unfortunately, before the commission began its work . . . that one independent judge was elected to become a member of the United States Senate. There were no other independents on the court, so the appointee who replaced him was a Republican.”
Concessions were made and Hayes won the election on the condition he would pull the remaining federal troops out of southern states.
“In the aftermath of the Tilden-Hayes debacle, Congress had determined not to force upon future Congress the same problem,” he continued. “They adopted Article 3, Section 5 of the United States Code. In essence, what it says is this: if any state at least six days prior to the meeting of the electoral college determines [the outcome of its election], it’s chiseled in stone. Congress cannot change it. That date would have been Dec. 12, 2000 in our case.”
The second myth, Richard explained, is that the United States Supreme Court decision was decisive in Bush vs. Gore.
“In fact, I believe the U.S. Supreme Court decision was totally irrelevant,” he pointed out. “The Supreme Court did not, and could not, have determined who the president of the United States would be by that time. That decision was made on Nov. 22 when the Secretary of State certified to the national archivist the Bush delegation.”
Richard offered two reasons. There was no practical way that Florida was going to meet the Dec. 12 deadline after the Florida Supreme Court ordered the recount on Dec. 8. The problem was to separate the undervotes from the other ballots.
“As an example, in Duval County, of the 5,000 undervotes that had been rejected by the machine in Duval County, they were mixed in somewhere among 265,000 other ballots,” he said. “Hillsborough had 365,000 ballots. Orange County had 280,000 ballots and it was virtually impossible for anyone to figure it out by hand. There was only one set of hardware and software in the state of Florida capable of dividing up the undervotes from all of the votes and that was in Dade County.
“It’s my belief, there was no conceivable way the entire recount was going to be completed by Dec. 12.”
“Myth number three is that the Florida courts were Gore’s best friend,” he concluded. “The Florida Supreme Court made nine rulings that, in fact, at the time they were made were, I believe, critical. All of them were against Vice President Gore.”
Richard examined one such case involving butterfly ballots in Palm Beach County. A new election was sought after it was charged that voters had voted as they had intended because of confusing ballots.
“My argument said that there can be no new election,” he said. “The United States Supreme Court had held that there can be only one election and it’s supposed to be held on the same day everywhere in the country.”
The flurry of litigation surrounding the 2000 presidential election “mesmerized the world,” said Richard. “When it was over, we remained a stable nation at peace.”
Richard is currently an attorney with law offices of Greenberg Traurig, LLP in Tallahassee.