The Bush-Gore Recount Is an Omen for 2020

Before long, the networks put Florida back into the “Undecided” column. Then, just after 2 a.m., they gave the state, and the presidency, to Bush. Gore called Bush to concede and headed to the War Memorial Auditorium to make a concession speech.

Judy Woodruff (CNN anchor): We were not making the call. It wasn’t Bernie Shaw and Judy Woodruff—it was the CNN political unit, which was in contact with the consortium. We were live on the set and we were getting information they conveyed through our earpieces. We started hearing that there was going to be a rescinding of the call.

Joe Lieberman (Gore’s vice-presidential candidate): The networks pulled back the announcement that we had carried Florida. My wife was exhausted, and she said, “Let’s go back to our room.” We go back to our suite in our hotel, and as you walk in, there’s a foyer table, and she just sweeps a bowl of flowers onto the floor. My wife is maybe more expressive than I am.

Karl Koch (Gore aide): My wife was on the phone in Tallahassee with an open line to the national war room, and she’s laughing and saying, “All I can hear is Michael [Whouley] walking around saying, ‘Oh, fuck.’”

Michael Feldman (Gore traveling chief of staff): It all happened very quickly. I cannot tell you what network it was, but the network called Florida for Bush and then the election for Bush. Somebody went to change the channel, and then changed the channel again, and then changed the channel again. Every network had called the election for Bush.

Betsy Fischer Martin (NBC producer): I remember [Tom] Brokaw saying, “This would be something, if the networks managed to blow it twice in one night.” Later he said, “We don’t just have egg on our face. We have a whole omelet.”

Michael Feldman (Gore aide): There wasn’t a ton being said, but at some point the vice president and [his campaign manager] Bill Daley went next door to an adjacent room. I believe it was then that the vice president called Governor Bush and had that first conversation.

But new information soon became available, and within the hour, Gore called Bush to retract his concession, saying: “Circumstances have changed dramatically since I first called you.” With only a few thousand votes separating the two candidates, Florida was very much in play.

Jeff Greenfield (CNN analyst): While we were waiting for Gore to concede, even a numerically challenged person like myself began to notice that the vote margin in Florida for Bush was shrinking by the minute. Gee, that’s odd. We’ve called the race; he’s the next president. But these new numbers …

Karl Rove (Bush strategist): I had this red phone on my desk—talk about a classic cliché—and only one person had the number, so when it rang, it was either some pizza joint or it was Governor Bush. I picked up the phone, and he says, “What the heck is going on?” And I said, “We don’t know.”

[Laurence H. Tribe, Jennifer Taub, and Joshua A. Geltzer: Trump has launched a three-pronged attack on the election]

Michael Feldman (Gore aide): We were riding to the War Memorial, and at some point, my White House pager went off. It was Michael Whouley. He said, “I’m looking at the secretary of state of Florida’s website. It’s under 6,000 votes. We’re within the automatic recount. Are you with Bill?” We added Bill Daley to the call.

Ron Klain (Gore aide): My cellphone rang, and it was Ron Fournier of the Associated Press. And Ron said, “Why is Al Gore conceding?” I said, “Because we lost the election, Ron.” And he said, “Do you know that the Associated Press, the nation’s oldest news organization, has not yet declared Florida for Bush?” I hung up and called Nick Baldick, who was running Florida for Gore, and I was like, “What the fuck is going on?” He was like, “Hey, no one in Nashville has called me. I hear you guys are conceding. What’s going on up there?”

[From the September 1896 issue: The election of the President]

Chris Lehane (Gore aide): I remember the holding room we were in at the War Memorial, the bowels of the amphitheater—you know, stone and brick, like from the 1920s, water dripping all around. And it’s in that room that, like, the fate of the free world is hanging in the balance.

Michael Feldman (Gore aide): Gore walked in, and he was not happy to be there. Bill [Daley] said to him, “It’s under 1,000 votes.” I’m on the phone, and I just remember him looking at Bill and at me, and it was like, What?

Joe Lieberman (Democratic vice-presidential candidate): Bill Daley called [Bush campaign chair] Don Evans and said the vice president would like to talk to Governor Bush. They put him on, and Al says, “Governor, it’s so close now that I must tell you I feel compelled to withdraw my concession.” And there’s silence, and a little back-and-forth, and then silence, and then Al says, “Well, I don’t care what your little brother says. I’m formally telling you I am no longer conceding, thank you, good night.” Somebody said, “Oh, man, that was incredible. You called Jeb his little brother.” And Al said, “I didn’t call him his little brother. He said to me, ‘My little brother tells me that we’re definitely going to carry Florida.’”

II. The Battle Begins

On the morning of Wednesday, November 8, the Bush and Gore campaigns began sending lawyers and volunteers to Florida. The narrow margin had set in motion an automatic mechanical recount—checking the machines and the tallies—but not a recount by hand. The mechanical recount reduced Bush’s margin to 327 votes. Gore had the right to request a hand recount in each of Floria’s 67 counties—the request had to be made county by county—but he asked for a recount in just four: Broward, Miami-Dade, Palm Beach, and Volusia. All of them were populous and heavily Democratic. They were also counties where problems with voting had been concentrated. Bush’s post-election effort in Florida was led by the former secretary of state James A. Baker. Gore’s effort was led by the former secretary of state Warren Christopher.

Ben Ginsberg (Bush aide): When you go into a recount, you need people in four different disciplines: You need lawyers. You need people who can be sure the ballots are secure and not tampered with. You have to have communications people. And you need people who are good in logistics. One of the great things about campaign people is that they know how to get the impossible done in a real hurry. There were planes already on standby.

Jill Alper (Democratic consultant): I remember saying, “Gosh, I wish we had a plane,” and then saying, “Wait. We have the Lieberman plane.” We put the all-call out. People started coming back.

Alan Rose (Gore staffer): I remember thinking, I can’t believe Lieberman has been on this plane for the whole election. It was a broken-down old charter. It was unmarked—no shrink-wrapped logo.

Kristen Silverberg (Bush aide): I left from Austin on the first plane at maybe five or six. I remember asking, “What do we know about Florida recount law?” Everybody kind of stared at each other. Then we all went to sleep for an hour.

Jill Alper (Democratic consultant): I was in the front of the plane. With one of the lawyers, I put together a little recount training guide. I used the microphone that the stewardesses would normally use.

Alan Rose (Gore staffer): We landed in Tallahassee at the same time Jeb Bush did, coming from Austin. On the tarmac, we walked right by him.

Theodore Olson (Bush lawyer): I was flying to meetings in Los Angeles. Somewhere over the middle of the United States—there were telephones on airplanes in those days—I checked messages, and I had two calls from people in connection with the Bush campaign asking if I could get to Tallahassee right away. I told them I was going the wrong direction at 30,000 feet. When I got to Los Angeles, I turned around.

Robert Zoellick (Bush recount aide): I had clothes for just a few days. We had to build all the basics, from learning Florida election law to office space, food, places to stay. We were getting very good lawyers to come down, but where do you put them?

Bret Baier (Fox News reporter): One weekend, the hotels were all booked because of the Florida–Florida State game. I ended up staying in someone’s house, like, in a guest room. I woke up looking at a family picture, thinking, What is this room? And who is that family in the photo?

David Boies (Gore lawyer): When I arrived at the offices in Tallahassee, I was greeted by Ron Klain, who said, “Welcome to Guatemala.”

Ron Klain (Gore aide): If you had to think about the worst possible place to fight this thing out, other than maybe Texas, Florida was the most adverse circumstance you can imagine. The person in charge of running the whole thing is the fucking candidate’s brother, Jeb Bush. If I handed you how Florida worked on a piece of paper, you would say, “This is a Third World banana republic.”

Karl Koch (Gore aide): The Bush argument was easier than our argument—“The votes have been cast; it’s over.” We had to make the argument for why the election wasn’t over, and people don’t want to hear that argument.

Mark Fabiani (Gore aide): Some of us proposed a plan where on Sunday night, after the NFL games, Gore would make an address. He would have done it in Florida, and he would have done it in front of a group of senior citizens—you know, primarily Jewish people who had been disenfranchised by the butterfly ballot and had ended up voting for Pat Buchanan. And he would say to them, “Look, I know this is heartbreaking for you. But here’s what I think is the best thing for this country. I pledge not to bring legal action, and I know that some of you might want me to bring legal action on the butterfly ballot. I pledge not to bring this action to court. However, I pledge to resolve it as speedily as possible with a statewide recount that would be supervised by some, you know, eminent people.” That was what some of us thought we should do. Probably Bush would have rejected it. But it at least would have given us a dramatic moment, and it would have put Gore in a good position. Even if we then had to go to individual county recounts, we could say, “Look, we wanted to do a statewide recount, and the other side wouldn’t do it.” And this was all very much in motion. And then Senator Lieberman attended a meeting on Saturday after the Sabbath ended and argued very strongly against this. So we ended up staking out a position of, you know, limited recounts in limited counties. And that led the other side, of course, to take the position that that’s unfair.

Joseph Geller (chair, Miami-Dade Democratic Party): When the first of the official campaign people started trickling in, somehow they made a decision, I believe without asking us, that they were only interested in manual recounts in Miami-Dade, Broward, Palm Beach, and Volusia. Well, you know, that could be their opinion, but that might have been the moment where the campaign was lost.

Robert Zoellick (Bush recount aide): We wanted to emphasize finality and fairness. And part of finality and fairness was accepting the rules, as opposed to writing the rules to serve the outcome the other side wanted. We always had to be careful about a public dynamic that everybody should just keep counting until the result flips. Our message was that Bush won, various recounts reestablished this, and it’s time to end the push for a different result. Gore’s slogan was “Count all the votes,” but he undermined his own position, because he started by seeking hand recounts in only four very Democratic counties. He didn’t ask for a statewide recount, and his team tried to block some military absentee ballots.

The organizational styles of the Bush and Gore efforts were markedly different. Bush remained aloof, focused on a presumptive transition to the presidency; Florida was tightly overseen by Baker (Bush’s brother Jeb, the governor, had officially recused himself). In contrast, Gore was personally involved; decision making was more inclusive and dispersed.

Robert Zoellick (Bush recount aide): The Gore people were actually way ahead of us. They’ve got a plane with 70 lawyers. They’ve got all this preparation done. I arrived the day after the election, and Baker and [Bush campaign manager] Joe Allbaugh had come from Texas on a private plane. We were the first three down there. We’re really starting from scratch. But by the end, we had specialized teams focusing on the Florida courts, and on the different divisions of the Florida courts, absentee and other ballot issues, and on the federal courts. We had separate people on TV. Then we had recount teams. Baker and a few of us coordinated briefings with Governor Bush. If you look at David Boies—in the last week, he was doing all the courts, TV, and advising Gore by himself. Boies was very good, but he was stretched too thin, and we had talent that could match him in each area. Also, Governor Bush had empowered Baker, so we could make decisions and stick with them.

Fred Bartlit (Bush lawyer): After the election, Ron Klain and I would go to places and talk about the recount. Ron would recall these huge conference calls with 40 or 50 people. Gore himself would be on the call. And the calls would go on for a long time. Then they’d ask me. I said we had a morning meeting for about 40 minutes with four of us headed by Secretary Baker. George Bush was never there. We believed in SEAL Team Six, not the 3rd Infantry Division.

Kimball Brace (voting-equipment expert witness): I remember an hour-long phone call with Al Gore. He was very inquisitive about what I knew in terms of voting equipment. Either he had been very well briefed or he had a great big file cabinet next to him. He kept asking, “What about these vendors? Who owns this company?” All kinds of things.

Joshua Bolten (Bush policy director): Bush didn’t have a lot to do. He made the smart judgment that he should not attempt to be the field commander. He was at the ranch most of the time.

III. Hanging, Dimpled, Pregnant

Legal actions went forward on many fronts; the chair of the Miami-Dade canvassing board referred to the proliferation of suits as “musical courts.” The Bush camp sought to stop hand recounts, and lost, on constitutional grounds, in federal court. The Gore camp sought, in state court, to prevent certification of the results until hand counts in four counties were complete—and momentarily prevailed, in the Florida Supreme Court. Separately, the Gore camp won a ruling by a Florida judge, Jorge Labarga, that so-called dimpled chads could be considered by officials conducting recounts.

Meanwhile, the laborious process of hand counting got under way in Broward, Palm Beach, Miami-Dade, and Volusia Counties. It was tedious and fractious. Hanging over everything: a running clock. The Electoral College would meet on December 18. If election disputes were not resolved, the matter would pass to the Florida legislature in advance of that deadline.

Jorge Labarga (circuit-court judge): The main thing I was asked to rule on is: What was the intent of the voters? The way voting went was you had this little card and you insert it into this machine, and then you puncture the circle of the people you’re voting for. And then that card full of holes would be inserted into a computer. People don’t always follow directions. Instead of just puncturing the hole for Al Gore, some people would write Al Gore. Or you could see where they tried to push the little chad through—there’s, like, a bulge in it—but it held in place. That would be a “pregnant” chad. The question for me was: Do we have to have a complete removal of the chad? Or what about a person who wrote in the name Al Gore—do we count that? Clearly they indicate intent. I ruled that they should be counted.

Mark Glaze (recount volunteer): They brought out the physical ballots in boxes. And the monitor, a theoretically neutral person, would, one by one, go through the ballots and hold them up. And there would be an observer from the Gore side, and one from the Bush side. The monitor was not supposed to let us touch the ballots.

Jon Winchester (recount volunteer): It was a sweatshop. We got in there and counted ballots for hours and hours. One of the observers would say, “Oh, this is a good one,” and the other would say, “Oh, I object—that one’s questionable.” And we’d have to put it into the canvassing-board pile [for review].

Ann McFall (Volusia County canvassing-board member): They fed the canvassing board and the workers for the canvassing board—they had turkey legs every night brought over from the prison. You had some really important people just holding up these long, long turkey legs. Oh my God, it was something.

Jorge Labarga (circuit-court judge): When the case was done, the election supervisor rented a Ryder truck, and the truck carried all those ballots to Tallahassee. The happiest day of my life was when I saw that yellow truck on the Florida Turnpike heading north, away from me.

Katherine Harris, Florida’s Republican secretary of state—the official responsible for overseeing elections—proved to be a lightning rod. Democrats questioned whether she was impartial, because she had been co-chair of George W. Bush’s Florida campaign. Some Republicans worried about her political skills in a crisis.

The Gore campaign had hoped to achieve as much as possible in the “protest” period, before certification, at the county level. Harris argued that challenges would be better afterward, statewide, in the “contest” period. Pressing for certification, Harris sought speedy completion of recounts, or an end to them. The role played in her office by the Republican operative Mac Stipanovich remains a matter of dispute.

Leon St. John (lawyer for Palm Beach County): Time was on the side of the Republicans, because Bush had a lead and there was a deadline to certify the vote under Florida law.

Katherine Harris (Florida secretary of state): My role was to protect Al Gore’s legal rights, not his political viability, so I was focused on certification and trying to follow the law, although the Florida Supreme Court delayed me several times. The Gore campaign felt that they had to prolong the protest phase, and hopefully gain more votes, but what happened when they did that, they short-circuited the time in the contest phase, and there wasn’t time to do the manual recount statewide as we should have had.

Robert Zoellick (Bush recount aide): All the political whirlwinds were buffeting Florida Secretary of State Katherine Harris. She was trying to be fair under Florida statutes, but the Florida Supreme Court was inventing new law and the press was clobbering her. I don’t know whether it came through Jeb Bush or the Republican Party, but Katherine was given Mac Stipanovich as an adviser to steady her nerves. His nickname was “Mac the Knife.” Mac, a former marine, had run [Jeb] Bush’s first, and losing, campaign for governor. A great personality and mind, one of those colorful people you come across in state politics, with a wealth of knowledge about local personalities, battles, and bodies. At the time, he was studying for a master’s degree in medieval French history.

Mac Stipanovich (Republican operative): I was sitting in Latin class when my phone vibrated. I looked down and saw who it was and stepped outside, and the ask was: Could I get into Katherine Harris’s office and help her? I had a good relationship with Harris. I had helped in her election, and we’d been personal friends ever since. The strategy was to bring the election in for a landing, to make it end, to get it over with, to just keep squeezing down the options. My primary job was to give strategic advice and to counsel Katherine. I was fairly well known in Tallahassee. I would arrive early in the morning, be driven in from outside into the parking garage, go up to her office, stay there until everything was over at night, and then be driven out of the parking garage to my car off-site. Driving into the capital past reporters who would have recognized me would not have inspired confidence that impartiality was the rule in the secretary of state’s office.

Deborah Kearney (counsel, secretary of state’s office): Mac Stipanovich was friendly with Katherine, and he would come visit and they would talk. I think one time he either tried or he actually sat in on a meeting with us, and we just said, “No, we don’t want his input; we don’t need his input; we don’t like his input.”

Katherine Harris (Florida secretary of state): By the way, there are those who say that they were back-channeling to the Bush campaign, or that I was a puppet and they were pulling my strings, but that’s absolutely not true. Mac is just Mac. It was important for him to be able to say whatever he wanted to say so he could write history, so he could help write a film, so he could be so important in this recount. But he’s not even a footnote to me.

On Wednesday, November 15, Harris announced that no further votes from hand recounts would be accepted and that she intended to certify the results of the election in Florida. According to the Associated Press, at this time Bush held a lead over Gore of 286 votes. It would expand to about 930 when absentee ballots from overseas were counted; Gore’s attempt to exclude absentee ballots arriving after the official deadline proved unsuccessful in the courts. On November 17, the Florida Supreme Court stepped in to prevent certification until it could rule on whether hand recounts should be accepted; in the meantime, hand recounts continued. On Tuesday, November 21, the court decided unanimously that hand recounts should go on, and gave the counties five days to finish them.

Charles T. Wells (chief justice, Florida Supreme Court): We came out with our ruling on Tuesday evening before Thanksgiving and extended the time to receive the recount until the Sunday after Thanksgiving at 5 p.m. if the secretary of state’s office was open that day, or 9 a.m. the following day if it wasn’t open. Well, that was met very adversely by the Bush people, who maintained that we had no leeway in which to extend the time. It was also met with an adverse reaction from the Miami-Dade County canvassing board, which maintained that this was not sufficient time for them to count. So they just disbanded their efforts.

Craig Waters (spokesperson, Florida Supreme Court): A number of businesses realized that they could get their logo on worldwide television if they simply sent someone to stand in front of where I was making announcements and hold up a sign. I looked up one time and there was a septic-tank service that kept driving past the podium.

Joseph Klock Jr. (lawyer for Katherine Harris): We developed a rule, and the rule was that any time we won anything, we’d make it a point of celebrating within two hours, because it basically took about two hours before the Supreme Court would reverse what we were able to accomplish.

Ben Ginsberg (Bush aide): We got the sense that the majority of judges on the Florida Supreme Court didn’t really like us much. We thought we had the better of the arguments, but the loss was not a terrible shock. [Bush lawyer] Ted Olson had all the papers ready, so we were pretty quick to go up to the Supreme Court.

IV. The Brooks Brothers Riot

On Wednesday, November 22, the day after the state supreme court’s ruling, the Bush campaign petitioned the U.S. Supreme Court for certiorari—that is, asked it to review the lower court’s decision. That same day, Bush’s running mate, Dick Cheney, suffered a mild heart attack. Also that day: the so-called Brooks Brothers riot, which unfolded in the office building where the Miami-Dade recount was taking place. Dozens of Bush volunteers from out of state had descended on Miami: “50-year-old white lawyers with cell phones and Hermès ties,” as The Wall Street Journal described them. Many gathered to protest the recount, and the protest spiraled out of control. Caught up in the confrontation was Joe Geller; he was at the scene by chance, hoping to demonstrate how voting machines processed punch cards. In the aftermath, the Miami-Dade recount was halted.

Ron Klain (Gore aide): I really thought we were going to be ahead in the tally after Thanksgiving weekend. We had this delay in the certification ’til Sunday. We just needed to get the count finished in Miami-Dade, and we would have been ahead. Sunday night, Katherine Harris would have faced the certification with Gore ahead. And that plan went awry. One reason was the Brooks Brothers riot.

Duane R. Gibson (Bush volunteer): We could see instances—I could, anyway—where I thought the Democrats were cheating. Challenging things. Delaying things. And it was starting to be a sham, in my view. About a dozen of us, we said, “This is a bunch of baloney. Let’s go up and let’s see what’s going on at the election office,” which was in the Miami-Dade County office building. And what happened was, the head of the Democratic Party in Miami-Dade, he walks in there, like carte blanche. There’s a big glass window, like at a bank. And all the ballots are sitting back there, right? And I see this guy pick up a ballot and put it in his pocket. I was like, “You’ve got to be kidding me.”

Joe Geller (chair, Miami-Dade Democratic Party): I arrived in the middle of a protest rally. They were chanting, “Let us in! Let us in!” They were banging on the doors and on the glass partitions. The staff all knew me. So I went to the window and said, “Can you please give me a sample ballot?” The protest all around us is getting louder and louder and rowdier and rowdier, and it seemed like we waited forever. Finally the elections woman came back and passed me a sample ballot. It was labeled official democratic party training ballot in capital letters, clearly visible. And a Republican operative says, “What do you have there?” And I hold it up, so she can see what’s written on it. And she looked at me, and she looked around at the screaming individuals, and she yells, “He’s got a ballot! He stole a ballot!” She could not possibly have been confused.

Duane R. Gibson (Bush volunteer): We started yelling, “Hey, he took a ballot! He took a ballot!” We were like, “This is such a sham.” We don’t know what’s going on with those ballots back there. I mean, who knows if they’re taking votes out or putting new votes in. Ballots are getting handed to the head of the Democratic committee in Miami. So we started shouting. “Stop the count! Stop the fraud!” And it got louder and more energized. And the cameras came.

[From the July/August 2020 issue: The dark soul of the sunshine state]

Joe Geller (chair, Miami-Dade Democratic Party): They’re saying, “This guy stole a ballot.” A mob descended on me, yelling and screaming at me and jabbing me with their elbows. I make it to the elevator and take the elevator downstairs, and in the elevator, it’s dead silent. When the elevator doors open, and there are cameras again, they start yelling. There’s one guy in particular dogging me, who had followed me from upstairs. He keeps saying things like “You’re in trouble.” As I head to the exit of the building, he launches himself into me, full body. I turn around and head back to the escalator, and just as I get to the foot of the steps, a cop comes up to me and says, “They say you stole a ballot.” I say, “Absolutely not. I have a training ballot of the Democratic Party. I’m permitted to have that.” His sergeant comes up, and I explain again. He says, “Well, I want to see it.” And I say, “That’s fine, but we’re not going to do it right here with CNN live. At the distance the cameras are, you’re not going to be able to read it. If you’ll step around the corner with me, I’ll be happy to show it to you.” I step around the corner and show it to the guy. He says, “Let’s go back to the elections office, and they’ll verify what you say, I’m sure.” And of course the woman says, “Yes, that’s Mr. Geller. I gave him a Democratic Party sample ballot.” So the cops say, “Okay, sorry, Mr. Geller,” and walk me through the elections office to a back elevator. I pass what used to be called the counting room, and see, through the glass walls, all three members of the canvassing board and some of their staff. They’re all looking worried. I drive home and immediately put on the TV. One of the members of the canvassing board says, “Well, we were trying to finish this recount, but under the current circumstances, I don’t think it’s possible.” They were frightened.

Jamie Holland (Democratic poll watcher): I remember seeing some of the protest and wondering, Why isn’t our passion as strong as theirs? The other side is catching the media, and we’re just grinding it out without that sense of being equally outraged.

Mac Stipanovich (Republican operative): Somebody said at the time—this is probably unfair—that while the Democrats were bent over their calculators, we were breaking bar stools over their heads.

Mark Fabiani (Gore aide): I was in D.C. at the Ritz-Carlton, around Thanksgiving. [Gore aide Chris] Lehane comes over, and we’re sitting in the lobby. There’s a harpist playing in one corner. And as we’re sitting there talking, this huge rat just saunters across the entire lobby of the Ritz-Carlton, as if it didn’t have a care in the world. We thought it was a metaphor for the entire situation. We started calling the hotel the “Rats-Carlton.”

V. The Supreme Court

On Friday, November 24, the U.S. Supreme Court agreed to review the Florida Supreme Court’s ruling in favor of Gore. Two days later, on Sunday night, Katherine Harris certified the vote tally in Florida, and Bush’s lead stood at 537 votes. Some recount results were excluded—the results from Palm Beach County had arrived two hours late. Miami-Dade had stopped its recount.

Laurence Tribe (Gore lawyer): Ron Klain called, and he said, “We really need help. It looks like there is an issue about federal-court intervention with the electoral recount, and we need you to fly down to Florida immediately.” The question of whether, as a matter of federalism, this is an appropriate intervention was very much up in the air. The next morning, I appeared in federal court, and I remember arguing that it was inappropriate for a federal court to intervene at this point. If there were any constitutional issues about the recount, they could be properly handled at the state level and in the state court.

[Read: Does Brett Kavanaugh agree with Bush v. Gore?]

Charles Fried (Bush lawyer): The feeling many of us had was that the Florida Supreme Court had one commitment above all: that George W. Bush not be elected. They hated him—not every one of them—because of tort reform. The Florida Supreme Court at the time was very plaintiffs-oriented, and many of them had come up through the most aggressive parts of the plaintiffs bar. The thought that this man should become president was unbearable, because in Texas he had really two signature issues—educational reform and tort reform.

Barbara Pariente (justice, Florida Supreme Court): Our court was criticized as being political, but there were at least two other cases that we ruled on—including the Palm Beach County butterfly-ballot case and the absentee-ballot case from Martin County and Volusia County—where we ruled for then-Governor Bush. A different decision in any one of those cases would have “given” the election to Vice President Gore.

Oral arguments before the U.S. Supreme Court were held on Friday, December 1. Laurence Tribe argued for the Gore campaign. Theodore Olson argued for the Bush campaign. On Monday, December 4, the Court chose, in effect, to kick the ball down the road, when all nine justices agreed to vacate the Florida decision and ask the state supreme court to clarify its arguments.

Joseph Klock Jr. (lawyer for Katherine Harris): They had 750 people in the courtroom that day. The tables where the counsel sit is usually a respectful distance from the bench, but they had pushed the tables all the way up so that they were almost touching it. From where I was sitting, I could look straight up and see Justice Ginsburg, four and a half feet away.

Nina Totenberg (NPR Supreme Court reporter): The court first sent the case back to the lower court to revisit its decision, and I thought that when they did that, the handwriting was on the wall. Either the Florida Supreme Court was going to do what the Supreme Court wanted it to do, or the Supreme Court was not going to uphold what the state court did.

Charles T. Wells (chief justice, Florida Supreme Court): They asked us to explain in more detail what the basis of our decision was. I considered that what they did was actually punt—they recognized that there really wasn’t a case in controversy at that point on the Bush side, and they sent it back to us.

Theodore Olson (Bush lawyer): We were thrilled. The Court vacated the decision and asked the Florida Supreme Court to explain what it was doing and what kind of legal standards it was applying and whether it was aware of certain federal statutes and constitutional issues. And the Florida Supreme Court basically ignored that. We felt that we had a very strong case that the way the statewide recount was being undertaken was capricious and arbitrary and very inconsistent.

Laurence Tribe (Gore lawyer): I viewed that as victory because I thought the Supreme Court of Florida would respond quickly and persuasively. Little did I know that the Florida court would essentially take this request from the U.S. Supreme Court for an explanation and put it in some desk drawer, and that this would provoke anger among the Supreme Court justices.

Though it did not respond to the U.S. Supreme Court immediately, on Friday, December 8, the Florida Supreme Court did overturn a lower-court ruling and order a statewide hand recount of some 60,000 ballots that voting machines had, for one reason or another, rejected. The vote this time was not unanimous—it was 4–3, with the chief justice in the minority—and it was all but certain to invite immediate high-court scrutiny. On Saturday, December 9, the U.S. Supreme Court issued a stay and halted the recount.

Barbara Pariente (justice, Florida Supreme Court): When we had our court conference, it was not as collegial as the conference after the first opinion, where we had all autographed our names on the opinion. By the time of this opinion, it was hard to feel that we were going to be able to resolve this controversy in a way that was not going to have significant political repercussions.

Charles Fried (Bush lawyer): The Supreme Court of Florida proceeded to order a recount, which they’d been told to stop doing. And this was so blatant that three of the Florida justices, including the chief justice, dissented from the decision. So my perspective was simply this: that what was going on was an obvious violation of both due process and equal protection.

Barbara Pariente (justice, Florida Supreme Court): It was certainly not a pleasant atmosphere, writing that opinion. I pulled an all-nighter. But it became more unpleasant for me the next morning. I was on my way to Barnes & Noble to pick up a copy of The Federalist—to reread what it says about the role of the judiciary—and I hear on NPR that the U.S. Supreme Court has accepted jurisdiction, and not only that, but they’ve stopped the statewide recount.

Laurence Tribe (Gore lawyer): The stay by the U.S. Supreme Court, issued ultimately 5 to 4, was the decisive signal that something dramatic was happening. And I thought, Oh my God, I’m going to have to convince the Supreme Court that the Supreme Court of Florida understands what it’s talking about.

David Boies (Gore lawyer): I was in a sports bar across the street from the Governors Inn, in Tallahassee. I had been in the office and had spoken to Vice President Gore. We were all very happy. The votes were being counted. He was steadily gaining on Governor Bush. My work was essentially done, and I was going home. They had all these television screens, and a crawler came across that said the Supreme Court had issued an order stopping the vote count. My initial reaction was that this had to be a mistake. There had not been an opportunity to brief or argue the case. There were substantial issues as to whether there was really a federal question involved. The Supreme Court had never intervened in a presidential election to affect the counting of the votes in a state.

Tamarra Matthews Johnson (clerk for Justice Sandra Day O’Connor): We knew that the stay was going to issue. A television was set up in a conference room, and it showed the ballot counting in Florida. One guy was using a device, like a magnifying glass, to study ballots. And then you see the banner at the bottom of the screen saying the Supreme Court has issued a stay. I still marvel at the fact that this order comes down from a thousand miles away, the Court has said stop, and everyone just stops.

Laurence Tribe (Gore lawyer): I remember being squirreled away in a large suite at the Watergate Hotel, trying to prepare for the oral argument, and I get a call from Ron [Klain] saying, “Are you available to talk to Warren?” So Warren Christopher comes up to my suite at the Watergate. He was quite a regal fellow. He wanted to know if he could put his topcoat down. So he puts his coat down, and he says, “Can we sit down and talk?” His mood was so grave. He obviously didn’t have great news. He said, “I have spoken with the vice president, and we’ve decided that David [Boies] should handle the second argument.” I said, “Well, it’s certainly up to the vice president and you, Mr. Christopher, but what’s the theory?” And he said, “Al thinks that the Court’s main interest will be in the details of how things are going down in Florida, what the nature of the recount is.” And I said, “With all respect, I think that’s ridiculous. I don’t think the Court gives a shit about what’s happening in Florida as such. It simply wants to decide for the country what has happened in this very chaotic situation where it looks like the Florida recount is sort of an exercise in chaos rather than in democracy. And I think it’s important for the Court to understand, as a matter of federal law, why the appropriate thing is to let the recount go on, even under some corrected formula.” He said, “That’s all very well, but the vice president has decided that David should handle it. Will you help him get ready for the argument?” I said, “Of course.”

Ron Klain (Gore aide): I didn’t really know David Boies before our time in Florida. I came to have great respect for him as a lawyer, a brilliant legal mind. But arguing in the Supreme Court is this very specialized thing, and Larry Tribe is probably the best person living today to argue in the Supreme Court. I obviously have a longtime personal relationship with Larry. He’s been my professor in law school, my mentor. People didn’t love his argument the first time around when we went to the Supreme Court, but there was no question in my mind that Larry was the right choice. It never dawned on me we were going to do anything else until the vice president called me and said, “Look, I want to rethink this.”

[From the March 2020 issue: The Supreme Court’s enduring bias]

Laurence Tribe (Gore lawyer): David appears in the suite and says, “I only have a couple of hours.” I don’t know what else he had on his schedule. But he said, “Can you help me understand the equal-protection claim?” So we spent really, at most, two or three hours talking about the way the Fourteenth Amendment limited the formula or the approach a state supreme court could use to recount the ballots. And I said I thought there was a solid argument, though not a convincing one, for the proposition that the chaotic and non-uniform way the votes are being recounted violates equal protection, but the key will be the remedy. What happens if the Supreme Court ultimately decides that there is a real Fourteenth Amendment argument? And he said, “That’s a stupid argument; we’re going to win that.” And I said, “I wouldn’t count on it.”

Oral arguments before the U.S. Supreme Court took place on Monday, December 11. The hastily written opinions, which added up to a 5–4 reversal of the Florida court, were made public at 10 p.m. on Tuesday, December 12. Even supporters of the outcome acknowledged that the decision did not reflect the Court at its best. In a dissent, Justice John Paul Stevens famously wrote: “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.” On Wednesday, December 13, Al Gore conceded defeat.

David Boies (Gore lawyer): The atmosphere was electric. You’d never had the United States Supreme Court as an institution intervene like this in a presidential election, and you had never had a case where the United States Supreme Court told a state how to count or not count ballots in a presidential election. From an analytical standpoint, from a historical standpoint, from the standpoint of principle, both [Anthony] Kennedy and O’Connor were justices who I thought I should be able to get, and I only really needed one of those. On the other hand, on the prior Saturday, the Court had by a 5–4 majority stopped the vote count, and I thought that it would be extremely difficult for any justice who had taken the extraordinary step of stopping the vote count to now reverse themselves and uphold what the Florida Supreme Court did.

Theodore Olson (Bush lawyer): Article II of the Constitution says the legislature of a state must prescribe the method by which electors are selected in a presidential election. We argued that that provision of the Constitution had been violated because the judiciary was changing the rules by which the votes would be counted and the electors would be selected. We also argued that the recounts violated both the equal-protection and due-process clauses of the Fourteenth Amendment because the rules were being changed on the fly after the election—from county to county and from hour to hour, in an effort by the Democrats to produce votes that would change the outcome. Individual voters in different areas of the state were being treated differently with respect to the weight given to their votes.

Joseph Klock Jr. (lawyer for Katherine Harris): I remember at one point the chief justice was looking down at David, and the chief justice said to him, “Well, Mr. Boies, how long should the counting go on?” At which point [Justice Antonin] Scalia said, “Oh, until they win.”

Karl Rove (Bush strategist): I stayed that night at the Hilton in McLean, Virginia. I’d gotten room service and was in my pajamas. I’ve got the television on, and at 10 p.m. the Supreme Court comes back. I have NBC on, and Pete Williams and Dan Abrams are outside the Supreme Court trying to describe the opinion. As I recall, Williams had somebody feed him the opinion from the back to the front. So he is reading the conclusion, and it is that the Court finds that the Florida Supreme Court violates the equal-protection clause and Article II, and the election is over.

Ben Ginsberg (Bush aide): The decision started coming in one page at a time on an old fax machine. We divided up the opinion among all the former Supreme Court clerks, figuring they would have the most instant insight. And it was actually [future Senator] Ted Cruz, reading Justice Stevens’s dissent, who said, “Holy cow, we must have won.”

Ron Klain (Gore aide): Among the many bad things about Bush v. Gore, one of the worst is it takes, like, ’til page seven until you find out the outcome of the case. It’s a horribly written opinion. So I’m reading along, reading along, reading along. I have Gore on the phone, people are bringing me pages one page at a time. Finally we hit the seventh page.

Karl Rove (Bush strategist): I call Bush at the governor’s mansion. He’s in bed reading with the television off. So he turns on the television, and when he turns it on, it is set to CNN. Charles Bierbauer is reading the decision from the front, and he has no clear idea of the conclusion. I say, “Congratulations, Mr. President,” and Bush is like, “What are you talking about?” I tell him what Pete Williams is saying on NBC. And he tells me that the guy on CNN is saying something else. After we go back and forth a couple of times, he says to me, “I’m calling Baker,” and hangs up.

Nina Totenberg (NPR Supreme Court reporter): The decision is the decision—it’s a ticket for one trip only. It’s never been cited in any other case, and nobody expects it ever will be. The odd thing about this was that the five justices in the majority were the court’s moderate conservative and very conservative justices, but all of them agreed on one thing in their general philosophy, and that is they were supporters of a more aggressive protection of states’ rights. And in this case they went for a federal decision that essentially rejected states’ rights. Conversely, the four liberals were people who more often than not were not big supporters of states’ rights, and in this case they were big supporters of states’ rights.

Chris Lehane (Gore aide): I got an email—I don’t even know what it was called in those days. It was somewhere between a pager and a phone. You wore it on your hip. The message was from Gore, and it said, “Please do not trash the Supreme Court. Al.” And I didn’t. I was incredibly impressed and struck by the vice president trying to put the values of the country first. But I don’t think a day goes by when I don’t think about how different the world would be today in so many respects.

Joshua Bolten (Bush aide): I remember Bush warned the staff against triumphalism. He said this has been a really difficult period, and if he was going to be able to govern properly, a lot of people who did not think he was the legitimately elected president were going to have to accept him as president.

Nina Totenberg (NPR Supreme Court reporter): I know in hindsight that Justice O’Connor had second thoughts. She could dig her feet in, but she was a person who was capable of reflection and thinking that she’d been wrong. That doesn’t necessarily mean that she would have done something different. It means she had real second thoughts in hindsight about whether the decision had been right.

Joshua Bolten (Bush aide): I just remember thinking, Man, this isn’t the way this should be decided. I believed that Bush won the election, but there would be no way ever of having pure truth on it.

Ron Klain (Gore aide): I am not over it. I don’t think I’ll ever be over it.

VI. The Aftermath

A comprehensive review of the uncounted Florida ballots was conducted by two groups—first by The Miami Herald and USA Today, in conjunction with the accounting firm BDO Seidman; and later by a multi-outlet consortium of news organizations, including The New York Times and The Washington Post, in conjunction with NORC at the University of Chicago. The Herald investigation concluded that Bush would still have won, and would likely have widened his lead slightly, even if the Supreme Court had permitted the recount that Gore had sought. The review also determined that, had a full statewide recount of all disputed Florida ballots taken place, with each ballot reviewed from scratch and ballot counters using an inclusive standard, Gore might possibly have won by a few hundred votes. Gore had never requested such a statewide recount. The consortium came to similar conclusions.

Marty Baron (Miami Herald editor): We were left with the big question as to whether the vote was really accurate. Mark Seibel, who was our managing editor for news at the time and now works here at the [Washington] Post, said, “You know, the ballots are public records.” He felt that we could get access to those ballots and that maybe we should do our own recount.

Kirk Wolter (director, Florida Ballots Project, NORC): The goal was simply, what would have happened had SCOTUS not stopped the recount? There were various voting standards on the table at that point in time. It’s been so long, I can’t recount them for you, but the Bush team advanced proposals, the Gore team advanced proposals, the Florida Supreme Court advanced proposals, Katherine Harris had her way of doing things, and so forth. And the question was, under each of those various proposals, what might have happened had the recounts continued?

Marty Baron (Miami Herald editor): In certain counties, we encountered resistance from the supervisors of elections. They argued that it was not, in fact, a public record, and we had to litigate against them. We prevailed in each one of those cases. Now we had to decide what was the standard that was going to be used. First of all, each county had its own system, so in many of the counties, if not most of the counties, it was a punch-card system. We decided that we would look at it under multiple standards. In places like Duval County, as I recall, you actually marked the ballot. You would fill it in. And there were a lot of people who were first-time voters, and they would mark something and cross it out and then mark something else. And obviously we couldn’t count those ballots. And then there was the debate in Palm Beach County, where they had the so-called butterfly ballots, where people were very confused—they thought they were voting for Al Gore and instead they voted for Patrick Buchanan. There were a lot of those people. That said, you could only count the way they actually voted. You couldn’t go back and make a determination as to what they intended to do. You could only look at what they actually did. So we went to every one of the 67 counties. We looked at the results under different standards. We did a calculation. We looked at BDO Seidman’s. We were in very close agreement with BDO Seidman’s calculation. We came to the same conclusion. And the conclusion was that George W. Bush had won Florida and, therefore, won the presidency.

Kirk Wolter (director, Florida Ballots Project, NORC): We were not allowed to actually touch the ballots. Only a county worker was authorized to touch a ballot. So the county worker would hold up the ballot for our workers to review, and if the ballot was clear, that was fine, but if the ballot wasn’t clear, we were allowed to touch the hand of the county worker and move the hand and rotate the ballot and change the position of the ballot in various ways in order to get the best possible view.

Marty Baron (Miami Herald editor): When we launched this inquiry, the Bush campaign and Republicans in general were outraged. They felt that it was an effort to delegitimize a Bush presidency. That wasn’t our intention at all. Our intention was to find out what the real vote was—to do the recount that the U.S. Supreme Court would not allow to proceed. And as it turned out, it showed that George W. Bush had won the election by pretty much any standard. I can tell you two things. Number one, there are still many Democrats who don’t accept that as the result, and ignore this study. And number two, the Republicans have never apologized for having falsely accused us of trying to delegitimize the Bush presidency.

Mac Stipanovich (Republican operative): I believe to this day that George Bush won the election by having a plurality of the votes that were legally cast that day. If you ask me, do I believe that a plurality of the people who went to the polls that day, and tried to vote, tried to vote for George Bush? I don’t think so. But we were counting legal votes.

The nearly 6 million punch-card ballots cast in Florida in the 2000 election remain intact, preserved in boxes and wrapped in plastic at the Florida State Archives, in Tallahassee.