Bush v. Gore: Episode 5 – Contingencies

Pushkin. Hey Leon here, Before we get to this episode, I want to let you know that you can binge the entire season of Fiasco Bush v goor right now ad free by becoming a Pushkin Plus subscriber. Sign up for Pushkin Plus on the Fiasco Apple podcast showpage, or visit Pushkin dot fm slash Plus. Now onto the episode previously on Fiasco. Many in this nation are getting anxious.

There are battles going on in county offices all over the state.

Republican demonstrators storm the hallways.

They were pounding on the glass, and I mean people were really fired up.

There would be no more counting of votes in Miami.

Gore made a conscious decision that he would fight in the courts, but not on the streets.

Let's turned out a Palm Beach County where the canvassing board is trying to be the deadline of five pm today.

The Secretary of State has apparently decided to shut us down with approximately two hours left to go.

Hi hereby declare Governor George W.

Bush the winner of Florida's twenty five electoral vez what.

By any reasonable standard, is an incomplete and inaccurate count.

When Secretary of State Catherine Harris certified the results of the Florida election for George W. Bush. The Texas governor, took the opportunity to affirm the inevitability of his presidency.

Secretary Cheney and I are honored and humbled to have won the state of Florida, which gives us the needed electoral votes to win the election.

It was a strategy that Bush and his team have been using since the recount started. Whenever possible, they would try to make it seem like Bush was already president elect. They would leak the names of cabinet members he was recruiting in Texas.

Today, Governor Bush had a conspicuous meeting with General Cole and Powell have.

Him give speeches and settings that evoked the White House.

I understand there are still votes to be counted, but I'm in the process of planning in a responsible way a potential administration.

And they would insist over and over that he had already won Florida, not once, but twice. After the certification ceremony, there was an extra element of posturing to Bush's rhetoric, because even though the election in Florida was now technically over, Bush knew full well that the Gore campaign was not giving up.

The Vice President's lawyers have indicated he will challenge the certified election results. I respectfully ask him to reconsider.

Gore and his lawyers had just one move left. They were going to formally contest the outcome of the election, and they would do so by filing a so called contest lawsuit, naming the Bush campaign and the Florida Secretary of State as defendants.

Obviously, the great sensitivity in the Gore campaign now to make the case to the American people that know this is not over.

The Gore team had fought desperately to avoid the situation they now found themselves in. If only they could have put more points on the board before Florida's vote count was certified, it could have been Bush trying to overturn the outcome of the election. Instead, Gore was now officially a sore loserman trying to claw his way back from the dead, and he was running out of time.

As Florida's ticking clock becomes a second adversary in the desperate search for votes.

They need decisions, they need them yesterday. They need counts, they need the counts right away.

We've gone from protest certification last night, and now contest.

Well, I think it's an uphill battle. Not impossible, but I think it's very difficult Roe to hoe. The Gore team's mission was to convince a judge that the election results did not accurately reflect the will of Florida voters. Step one was to figure out what happened before, during, and after election day that cast doubt on the legitimacy of the outcome.

The big question as we approached the contest phase was what should we be contested.

This is Jeremy Bash in two thousand. He was a twenty nine year old doing policy work for the Gore campaign when the recount started. His law degree earned him a junior spot on the legal team in Tallahassee. I had never practiced law a day in my life. I had served as a law clerk for a federal judge.

But on election night they said, anybody who's a lawyer, if you were working in Nashville, Tennessee, at the Gore campaign headquarters, you were told to go home and pack for three days and come back and end up having to last thirty six days for the full recount.

Bash had been in Florida for about three weeks when Bush's victory was certified and the contest phase of the election began. Basher remembers listening in as the campaign's top lawyer's brief Gores and his political advisors on what could happen next.

The legal team presented to the campaign leadership a variety of options, and in that meeting we laid out all the various ways we had suspected that either Democrats' effort to vote had been denied or Republicans engaged in some quote unquote dirty tricks to prevent Democrats from voting.

Some members of the Gore team felt they should include as many grievances as possible in their complaint. They favored a two pronged approach, fighting to count likely Gore votes that had been unfairly thrown out, while also fighting to throw out likely Bush votes that had been unfairly counted. In this maximalist version of the contest lawsuit, the Gore lawyers would object to the counting of military ballots that lacked proper postmarks and signatures. These were the overseas absente

My view was that if we were going to take this thing to court, if we were going to file the first contest of a presidential election in US history, it should be on the strongest, narrowest, most ironclad grounds that we could stand on. We didn't want the voters to think that we were throwing everything against the wall to see what would stick, that we were really focusing only in the areas where we thought that a full recount was necessary.

Bash had arrived at this conclusion by way of his daily interactions with journalists who were covering the recount and who would come to him with questions about the Gore teams legal strategy.

There was this.

Deep skepticism about what we were doing, and in general, their approach and their attitude was Gore is trying to undertake these herculean efforts to reverse the election.

Result, any sign that he's considering a concession speed.

The time is fast approaching to accept the certified results in Florida and conceive the.

Election, and one Congressional Democrat has said publicly that Gore should throw in the towel.

It was quite dispiriting, actually, because the whole vibe of the reporting was that Gore was behind, we were behind, and that we were trying to do something fairly unprecedented American history to undermine what had already been decided.

Apparently, many Americans are ready for this election to be over. A new ABC News Washington Post poll shows sixty percent of people say Vice President Al Gore should concede the election, but thirty.

In the end, Gore's lawyers decided to limit the scope of their lawsuit rather than going with the kitchen sink approach, So instead of trying to get any Bush votes thrown out, they would focus exclusively on getting more Gore votes counted first and foremost. That would mean asking for the unfinished hand recounts in Palm Beach and Miami Day to be completed, this time using a more lenient standard for determining voter intent.

The Democrats trying to make the case now that there are roughly fifteen thousand or so votes that have never been counted or at least never manually inspected.

When it came time to pull together the documents for the contest filing, Jeremy Bash stood by the office printer with Dexter Douglas, another lawyer working for the Gore campaign. Together they waited for a copy of the complaint to come.

Out, and we were waiting and waiting and waiting, and I said, it feels like Dexter were sitting here waiting for.

A baby to be delivered. Douglas, who died in twenty thirteen, had been agitating for a more aggressive approach. He thought the Gore team was making a mistake and being so focused and meek.

And he said, well, is it going to be a boy or a girl? And we kind of chuckled about that, and then when the paper rolled off the printer, we both read it and he said, well, it's a boy. It's got very small balls, but it's a boy.

It's hard to say how much of a chance Al Gore really had at this point, but the Bush campaign and their allies were not taking anything for granted. While Gore's lawyers took the extraordinary step of contesting election, Republicans in the Florida State Legislature were setting the stage for hail Mary of their own.

The state legislature here in Tallahassee is moving rapidly to try to take control of this election away from the courts.

If the plan worked, the Republicans in the Florida State Legislature would be able to deliver the state's twenty five electors to Bush. No matter what. I'm Leon Nafock from Prolog Projects and Pushkin Industries. This is fiasco Bush v.

Gore.

The Republicans here in Tallahassee brought down the hammer tonight's.

Leu essentially wipe out the entire election.

If you do not like political chaos, it's about time to head for the storm.

Seller.

When they had offered me the bulletproof vest I think that scared me more than anything else.

Dead Those couple of hours today were just positively.

Explosive Episode five contingencies. As a threat of a constitutional crisis hangs over Tallahassee, both Democrats and Republicans prepared a cross line never before crossed in modern politics, the Florida State Legislature was a lopsided body. In the state Senate, Republicans outnumbered Democrats twenty five to fifteen. In the State House,

Good afternoon, everyone. I hope those of you that aren't from Florida are enjoying your Florida vacation and our economy appreciate your help.

That's John McKay, the Republican president of the Florida State Senate at the time of the recount. A few hours after the Gore team filed their contest lawsuit at the Leon County Courthouse in Tallahassee, McKay held a press conference. He took the opportunity to lay out his view of how the state legislature can help rescue Florida from its ongoing political nightmare.

The US Constitution and the federal law vest the legislature with the ultimate authority to designate the manner of appointing presidential electors.

To grasp what McKay was proposing. It helps to have a literal understanding of what the electoral college is and what it means in practice to be a presidential elector. Most people don't realize that when they vote for president, they're not voting directly for their candidate.

They think they're voting for a presidential candidate, and they're not. They're voting for electors that have been put up by each of the parties.

Basically, each state gets to pick a certain number of electors to represent them in the electoral College, and when you vote for president on election day, you're actually voting for the electors that have been chosen by your candidate's political party. So, for instance, when Bill Clinton won Florida in nineteen ninety six, the Democratic Party sent a slate of twenty five Democratic electors to vote in the electoral College, Florida's behalf. All of this happens on a strict schedule.

By December eighteenth, those electors must send their votes to Washington. On January sixth, the new Congress certifies the vote. January twentieth, a new president is inaugurated, so.

A little over a month before the new president would be inaugurated. Crucially, federal law also called for each state to choose its electors six days before the electoral college vote took place.

December twelfth is key the day Florida certifies its electors.

On the day Gore filed the contest lawsuit and Florida Senate President John McKay gave his press conference that was a little more than two weeks away.

If unresolved by the twelfth, then the Legislature has the authority and may have the responsibility to step in to determine and communicate to Congress Florida's electors.

It was McKay's view that all the suing and hand counting and contesting that al Gore was doing was placing Florida's electoral votes in jeopardy. McKay and his fellow Republicans feared that if all the legal wrangling wasn't over by December twelfth, Florida would be left out of the electoral college vote altogether, and none of Florida's six million ballots

I did not want Florida's voters votes not to be counted, and if I remember correctly, about six million people voted that year. I wanted to make sure those votes were counted, and I hoped that the court system would resolve it. But if they didn't, the legislature had to be prepared to go into session or else everyone's votes in Florida would not be counted.

The Democrats in Florida did not buy this rationale, convinced that the Republicans were scheming to deliver Florida's electors to Bush, regardless of how Gore's contest lawsuit turned out or who ultimately prevailed in the state's popular vote.

Angry Democrats charging today, but that would be little more than a naked attempt to fix the election for George W.

Bush.

We should not serve as an insurance policy for a Bush presidency.

To go down this road is to shake the very foundations of.

Our democracy as they saw it. McKay and the Republicans were laying the groundwork for a power grab, an unconscionable and run around Florida's electorate.

They were going to change Florida law after the fact to say that the ballots people would cast an election date had zero impact on Florida's electors. That instead that the legislators would meet and they would elect a slate of electors.

This is Ron Klain, who served as the top legal strategist on Gore's recount team in Florida.

So they would essentially wipe out the entire election.

You know.

Their basic argument was, Hey, it's a mass it's confusing. How about this, how about we let these fine legislators over here decide whether not Bush or Gore will be president.

McKay rejects this characterization. He told me that he only grudgingly endorsed the idea of the so called en run, and though he was prepared to carry it out if it looked like Florida's electors wouldn't otherwise be seated in time, he shuddered to think of the president it would say.

I was concerned, and I'm still concerned that if you had similar circumstances and you had a rabbit legislature that the partisanship would trump comments sense. And I thought that the legislature acting to select a presidential candidate could, perhaps one hundred years from now, give precedent where a legislature might do that. And I didn't want to be part of giving somebody a blueprint for ill purposes.

You didn't want to do this right because you didn't want to set a precedent for someone else down the line to take over RISI and the Democrats as they saw you doing, they said, that's what you're doing. You're trying to take over this election. So what was your rebuttal to that?

My rebuttal would have been had anybody ask me that question. I've postponed this as long as I can possibly postpone it without jeopardizing the votes of six million Floridians.

Even as plans for the legislative endron solidified in the Capitol, Gore's effort to contest the election was just getting started.

We're expecting in ten minutes for two lawyers for al Gore to walk into this courthouse, the Leon County Circuit Court in Tallahassee and officially challenged the results of the presidential election. In the United States of America in the year two thousand.

The two lawyers.

It was November twenty seventh when Jeremy Bash and Dexter Douglas took the contest lawsuit out of their office printer and walked it over to the courthouse. Cameras flashed around them as journalists tried to capture the historic.

Moment as the attorneys for al Gore come into that courthouse and file their contest to the results. As you can see here walking across with some degree of consciousness and ceremony, albeit somewhat informal.

Here again is Jeremy Bash.

I held the pleadings in my hand, and I slid the complaint under the glass window. It was the first contest of a presidential election US history that I filed with my own hands. And the staff at the Leon County Courthouse took the pleading. They turned their back on us, and they went to the back of their workspace and they spun a wheel.

What will happen is it will be assigned to a judge.

A judge will then.

Set a date for a The wheel, which was actually just a computer program, would determine which judge the Leon County Circuit Court would be assigned to preside over the contest. Going into the Scampbell, Tallahassee Native Dexter Douglas had given the Gor team permission to be optimistic. In his opinion, most of the judges in the pool would be receptive to their arguments.

And they pulled a name off of the wheel and they came back and they said, you have been given Judge sauls that's what the wheel has given you. And Dexter Douglas he motioned at me like, don't say anything, but he kind of just shook his head and he said, can I of motion?

Come with me?

And we scurried back down the hallway into the elevator. We were followed by the press, and once the elevator doors closed and the press was out of earshot, Dexter just said to us, he said, that's a bad seed.

That's a bad draw. Judge Saws is not good for us. Judge N. Sanders Saws was a lifelong North Florida Conservative. He also had a contentious history with the Florida Supreme Court, which many Republicans perceived as being biased towards Gore.

Judge N. Sanders Salt and his rn ends with the Florida Supreme Court, his being a very strict constructionist, and here's a case.

Almost immediately the Gore team realized they had to get the contest lawsuit out of Saualz's courtroom one way or another. They briefly considered asking him to accuse, but they decided against it. Instead, they set out to lose as quickly as possible. Here again is Gore recount strategist Ron Klain.

In the few minutes after it happened, as we were sitting around discussing trial strategy, and it was very simply this, we need to lose, and we need to lose fast.

The faster they could get a ruling out of Saulves. The Gore team vigured, the faster they could appeal the case and get it in front of the Florida Supreme Court. At least there they would have a chance.

As the battle on the Florida Arena shifted to the legal arena, the Gore campaign brought in a heavyweight. His name is David Boys, and he's a legend in his own time, a New York lawrior with an enviable record in a quirky personal style.

David Boys was in a meeting with Calvin Klein when one of Gore's friends called his law offics and asked him to join the recount effort Florida. Boys was representing Klein in a trademark case that was supposed to go to trial soon, but he wasn't about to say no to helping the Vice President.

Even at that stage. We knew it was an important case. We knew it was a case that was going to involve historic decisions, and to have an opportunity to have a front row seat and maybe even be a participant was something that would have been hard to turn down.

Boys had won some of the most spectacular lawsuits in the past fifteen years. He had represented the federal government in the monopoly case against Microsoft. He had also represented the New York Yankees in an anti trust suit against Major League Baseball. Boys was known for speaking in court without notes and for showing up to arguments wearing sneakers to fill out the picture of the eccentric genius. He was frequently seen eating candy or ice cream.

Last year's Lawyer of the Year, according to the National Law Journal, profiled in Vanity Fair and People Magazine, the litigator in cheap.

Boys was responsible for crafting the lose fast strategy in front of Judge Salls. Instead of calling dozens of witnesses in order to prove that manual recounts were needed in Palm Beach and Miami Dade, Boys just wanted to keep

We wanted to get the ballots up in Tallahassee so that they could be counted quickly. We didn't want to waste another day after a decision getting the ballots up there to be counted.

After Judge Sauls granted Boys's request, the one point one million ballots cast in Miami Dade in Palm Beach were placed in boxes and driven up to Tallahassee in trucks.

More than four hundred and sixty thousand ballots from Palm Beach County were packed into a rider truck and driven to the state capitol in Tallahausee today.

A woman named Ivy Corman, who worked in the Miami Dade Election Supervisor's office, was assigned to watch over the ballots as they made the trip.

When all of the ballots needed to go up for storage in Tallahassee, it was loaded by warehouse personnel. We got it all in there, everything was locked up, and that was it, and we just took.

Off the six hundred thousand ballots more than two tons worth, that were loaded up and sent by truck from Miami to Tallahassee.

Today, as the truck sped down the highway, flanked by law enforcement vehicles, TV news helicopters glided above and broadcast the journey live.

The election battle as television spectacle. In the company of police SWAT teams. More than a million ballots from Miami Dade and Palm Beach Counties driven in the convoy to the state capitol Tallahassee.

And then the IVY Corman remembers feeling like she was part of a huge production.

They had the SWAT team come and we were going to have a policeman, a SWAT member, and myself with the ballots in one truck, then an empty truck in case this truck broke down, then another policeman. Then we had cars of Republican officials, Democratic officials, We had newspaper reporters, everybody. There must have been at least a caravan of thirty cars and a helicopter.

The final installment of that million ballot convoy delivered from Miami today.

Caravan arrived in Tallahassee in the late afternoon of December. First, did you help unload the truck?

I hack?

No, No, I didn't. We signed over custody to the Leon County Supervisor of Elections and said goodbye, thank you, and that was that.

In the end, despite repeated prodding from the GORGE team, Sauls declined to count or even look at the ballots that had come in from Palm Beach and Miami Dade. Instead, he listened to testimony from a handful of expert witnesses, including a statistician who had studied voting technology and an inventor who had helped design the punch card machine.

Their expert witness points to flaws in the bodomatics design, years of wear, and voter confusion.

This cover this machine is fall to the brim with Chad.

On December fourth, after two days of testimony, Sauls was ready to rule.

We were watching Judge Sanders Saul's courtroom. The attorneys have filed in David Boyce and his legal team. They are waiting for the judge's decision, which we expect to be announced within a matter of minutes.

Here while we wait.

For that, Saul's read his decision out loud in court. He was ruling against Gore on every aspect of his complaint.

In this case, there's no credible statistical evidence and no other confidence substantial evidence to establish a reasonable probability that the results of the state wide election in the state of Florida would be different.

Judge Saws turned down pretty much every element of the Gore case presented over this weekend.

For Jeremy Bash and the other Gore lawyers have been expecting Sauls to rule against them. In fact, they already had their appeal notice ready to go.

I was sitting in the court when Judge Saws issued his ruling, and I had the appellate notice already written.

It was in a Manila folder.

And as soon as Judge Sauls issued his ruling, the trial team motioned to me go. Within a matter of minutes, I was down at the Florida Court of Appeals, banging on the window, banging on the door, hoping anyone would come forward so I could hand them this document. Finally we found someone to take the document.

It was official. The contest lawsuit was being kicked up to the Florida Supreme Court.

Yeah.

Actually, Joey, I've already been on the phone with two Gore campaign spokesman on this.

The first, Doug Hadaway.

I said that quote, everybody expected this to be a Florida Supreme Court by dinner time today, regardless of what this judge said.

So here we go.

Most of you have reported that both sides said today that if they lost, they would appeal to the Florida Supreme Court. We said it, they said it. They won, we lost, We're appealing. This is going to be resolved by the Florida Supreme Court.

The Florida Supreme Court's decision to hear Gore's appeal in the contest lawsuit was like a bat signal to the Republicans and the Florida State Legislature. Suddenly it seemed all the more crucial to have a backup plan in place. Who could say how long the case would take to resolve itself, and now that these liberal judges had their hands on it, who could say whether it would be resolved in the right way.

The Republicans here in Tallahassee brought down the hammer Tonight's essentially telling Vice President Gore they'll award the state's presidential electors to Governor Bush.

Not The Florida State Legislature was going into a special session in order to start the process of seating Florida's twenty five electors.

The Republican controlled state legislature is taking no chances. It's now scheduled a special session to name electors, just in case their process is stalled or the state Supreme Court rules against Governor Bush.

Tallahassee Democrats were furious, and they tried to link the plan to George Bush's campaign and his.

Brother Jeb Sadly, I have to say that I believe this is orchestrated and the only thing missing from the proclamation today was the postmark from Austin, Texas.

The Democrats are seething tonight's a senior Gore advisor telling NBC News quotes, the American people will not accept the decision by Florida Governor Jeb Bush and his friends in the Florida legislature to take the decision away from the people and the independent courts.

Gore advisor Ron Klain thought it was time for his team to make a contingency plan of their own.

There are a lot of ways in which we thought it was possible that we would have won, and had a court ruling said we won, and still the Republican y legislators would have gathered at the Florida State Capitol at the appointed time and hour and cast their votes for George Bush. And so we needed a strategy to deal with that.

That strategy would come to be known internally as Plan X. Claim called it the Gore team's most extreme thought.

You know, the electoral College doesn't really meet all in one place at one time. When we say the electoral College, what it is is each state separate electors. They gather in their state's capital. They cast their ballots there, and the ballots are then transmitted to the Archivist of the United States. Now, one of the intriguing things about Florida is it actually has two state capitals.

Of course it does, but to be clear, Claan means Florida had two state capitol buildings. They were both in Tallahassee. One was fully functional and had been in nineteen seventy eight. The other dated back to the nineteenth century and had been converted into a museum of Florida history after the new one was built. Now, I know this is going to sound convoluted, but that's because it was. The electoral College was scheduled to vote for president on December eighteenth.

And we had a plan, a contingency plan to have our electors come to Tallahassee and meet in the old State Capitol building and cast their votes for al Gore and send those votes to the archivist, even as the Bush vote electors were meeting in the new State Capitol and casting their votes for George Bush.

Claim knew that Plan X was a zany idea. In the same way Senate President John McKay didn't cherish the prospect of the legislative end run. Claim didn't really want to go through with it, but he felt that the Florida Republicans were giving him no choice.

Now, again, we wouldn't have done that unless we had a court order saying that we thought our electors were the right electors. But you know, we really were planning for every possible contingency here.

You might be wondering what would have happened if Florida had sent in two sets of votes, one from a slate of Bush electors, the other from a slate of Gore electors. Al Gore actually had the same question. His friend Walter Dellinger, the former Solicitor General, told him the dispute would be resolved in the US Congress.

Here's Dellinger, because the Constitution gives Congress the authority to count the ballots, and any dispute over you know, who won a particular electoral vote could be resolved by Congress.

In this scenario, two envelopes from Florida would be given to Congress, one saying that the state's twenty five electors had voted for Gore, and the other one saying that they had voted for Bush. The official count would be overseen by the President of the Senate otherwise known as the sitting Vice President otherwise known as Al Gore.

When the votes are open in front of both houses assembled. When the vote is announced, that vote can be overturned or rejected only by an action of both the House and the Senate. Vice President. Gore is listening eagerly as I am explaining what happens, that whatever envelope.

Is opened will be.

The vote of Florida. And he says, who decides what envelope to open? First?

Good question. That was my next question too.

And I said, you will still be the presiding officer of the Senate. You'll be the one to choose which ballot to open.

Gore wouldn't get to unilaterally declare himself president, but still he knew how it would look.

And he looked at me and said, well, I just have one question. Did they have to wait for me to be sworn in before beginning appeacement proceedings or could they start right then?

More after the break.

Live pictures here of the tense city that has grown outside the Florida State Supreme Court.

As the Florida Supreme Court prepared to hear Al Gore's appeal in the contest lawsuit, Tallahassee was getting more hectic and media saturated by the day. Even the lawyers, especially David Boys from the Gore side and local Florida attorney Barry Richard from the Bush side, walked around like celebrities. Here's boys.

Everybody recognized Barry Richards and myself. You know, people driving by would shout out to him, don't let them steal the election, or our supporters would you know, don't let them, you know, bury our ballots. So, I mean, somebody was always yelling out to you, either encouraging you or trying to discourage you.

Today, hundreds of pro GOURG demonstrators rally outside the state Capitol.

News trucks flooded the area. Protesters arrived early each morning, and with them a crowd of attention seekers who were less motivated by politics. By the presence of cameras.

There were people dressed in clown outfits. They were having a lot more fun out there than I was having inside the building.

That's Charles Wells. He was the Chief Justice of the Florida Supreme Court in two thousand.

There was a lady that brought her pet skunk, and it was a great act because you can make that skunk do backwards sumrsaults.

It was against this backdrop that in December seventh, the Florida Supreme Court heard oral arguments in Gore v. Harris.

Americans maybe just hours away from their clearest few yet of will be the next president. A live picture right now from the Florida Supreme Court any moment. Oral arguments will begin here in this courtroom.

The question before the court was whether Judge Sauls had aired in denying the Gore team's contest petition. The legal standard at play was not exactly objective. According to Florida law, the losing candidate had to show that there had been counting errors that placed the result of the election in doubt. But what that meant was up for interpretation.

Good morning, and welcome once again to the Florida Supreme Court, where we'll have oral argument this morning in the case of Gore versus Harris.

In one corner stood David Boys and the other Barry Richard. I. Though they looked like sworn enemies in the courtroom, the truth was they liked each other, and when they weren't working, they'd been hanging out together at a sports bar in your Boys's hotel.

We were so deep into the weeds of this that in some senses, we were each the only person the other could talk to that cared enough about some of these details to really be interested in talking about it, even your children and your wife. It's my eyes begin to glaze over sometimes when you are really deeply involved in one of these complicated cases.

Boys and Richard took pleasure in competing with each other.

One of the things made it so much fun for me is that David and I were sparring with each other for the fun of it.

This is Barry Richard.

I've never been much of an athlete, but I suspect that professional athletes enjoy what they do most when they are opposing to somebody else who they feel is at the top of his game, and.

David Boys at the toughest game.

So it was a great challenge, and it was fun, it was intellectually stimulated, and I got famous.

So that was the dynamic at play between David Boys and Barry Richard, who they sparred with each other at the Florida Supreme Court in.

Which we have identified specific votes, many of which were agreed by the district Court, were votes in which you could clearly discern the voter's intent, and fifteen.

The positions they took will sound familiar to you. Richard argued that the recount process had already played itself out fair and square, while Boys made the case that getting an accurate vote count should take precedence over any other consideration.

The simple argument that I made to the Florida Supreme Court was that Florida law for one hundred years had held that what was important was to discern the intent of the voter, and that in order to discern the intent of the voter. In a close election, you would have a manual recount.

It was clear from the questions that they were asking that some of the Florida justices were sympathetic to Boys's argument, while others were not. Among the sympathetic ones was Justice Barbara Perrienti, who was frustrated with Judge Sauls for refusing to look at the ballots from Palm Beach and Miami Dade.

He never looked at a single ballot. They had been brought up there, he had ordered them up. He never looked at them.

Perry Andy thought it was obvious that looking at the ballots was the best way to figure out who won the election. At one point during the hearing, she and one of her colleagues started asking why Gore was only seeking manual recounts in two counties rather than the whole state.

When you have a very close election, you have to have a manual review of those ballots in order to have an ac retality.

So why wouldn't that apply to all the other counties, at least the punch card counties where there are under votes and those votes also haven't been counted, and.

You've demonstrated that there's legal votes that have not been counted. Why would that not exist in other counties? And why would this not require, if any judicial relief that be applied in a statewide undervote.

I think there are two.

Prior to oral arguments, a statewide manual recount wasn't even really on the table. Gore had proposed the idea once in a televised a dress back in mid November, but Bush had promptly rejected it. Now, with just days left until the December twelfth Electoral College deadline, it seemed as though some members of the Florida Supreme Court thought a statewide manual recount was a pretty good idea. Here again is Perriente.

How do you favor three counties with counting under votes when you don't do it equally for all counties?

A statewide manual recount had the potential to be transformative, though it was hard to predict how exactly the vote total would change. The fact that thousands of discarded ballots might now be back in the mix meant that Gore would have that many more chances to cut into Bush's lead,

I think it became pretty obvious the questions that were being asked that the December twelfth deadline was not bothering some of my colleagues like it was bothering me.

After oral arguments, as the justices began to conference, peri Anti took the position that recounts were clearly needed in Palm Beach and Miami Dade, but the only way to be fair to every voter in the state, Parentti thought was to hand count all the undervotes that had been cast across Florida. Some of Perianti's colleagues, including Chief Justice Wells, just didn't think that was possible.

I think there was a belief that there was no way that this court could end up ensuring that every vote would be counted, that there would always be questions, and so it was better at that time to keep our hands off and let the controversy because we were approaching a time where it was a feeling that Florida's vote needed to be counted in the Electoral College, and if it lasted much longer, it wouldn't have been.

Justice Wells had a more fundamental objection as well, in erase this impossibly tight there was simply no way to arrive at an objectively accurate vote count.

It become evident to me that we were not going to ever get to a point in which the margin of victory exceeded the margin of error here to an extent that we could refine it by continuing to a recount that was so uncertain as to how it was going to be done, and so that we had to conclude it.

Well.

Tensions are high, Questions are being asked, what is the verdict?

We should find out shortly, we believe.

On the afternoon of December eighth, the justices of the Florida Supreme Court released their decision for.

A couple of minutes away from hearing from the Florida.

State Supreme Court.

The scene there and the steps of the Florida Supreme Court in Tallahassee, Florida, we understand.

The job of relaying into the public fell to the court spokesman, Craig Waters. Waters had been summarizing the decisions of the court and communicating with the press since early in the recount. Whenever reporters saw his podium getting set up on the steps of the Supreme Court building, they knew he would soon be coming out to deliver some news.

We could see the state troopers and the court security officers in playing clothes. We understand that the court spokesman, Craig Waters will be out very very shortly.

Tensions have been rising throughout Tallahassee for nearly a month by this point, and Waters knew that he was about to reveal the most paradise i'm shifting news development the court had delivered to date.

It was a frightening thing in a lot of ways. When they had offered me the bulletproof vest, I think that scared me more than anything else. Did this idea I have to wear a bulletproof vest. My god, what's going on here? That's not the Tallahassee I know. Hello, I'm Craig Waters.

Spokesman for the Florida Supreme Court. The Court today has issued its opinion in the case of Albert Gored Junior versus Catherine Harris, George W.

Bush, and others.

Paper copies of that opinion.

I got out onto the to the podium and I began reading. I had these lights shining in my face, so I couldn't see the crowds very well because I was blinded. But there was a large piece of metallic equipment nearby that fell over. And the thought that went through my head at that particular point in time, is my God, there's the bullet.

By a vote of four to three, the majority of the Court has reversed the decision of the Trial Court in part. It has further ordered that the Circuit Court to the Second Judicial Circuit here in Tallahassee so immediately began a manual recount of the approximant of the.

Approximate Chief Justice Wells had been outvoted. After all the confusion and delays in Palm Beach and Miami Dade, every county in the state that hadn't already done so was now going to recount their undervotes by hand.

This was an even more to stunning decision than the Florida Supreme Court's first in favor of al Gore, and it sets into motion a potentially chaotic series of events.

If you do not like political chaos, it's about time to head for the storm seller, because up until about a few moments ago, I think most people were expecting the Florida Supreme Court to kind of go along with Judge Sauls and bring this to an end, and people were draft in al Gore's concession speech.

Those couple of hours today were just positively explosive. There's been an enormous shift in the political ground.

For the Gore team. It was like getting an extra life. Here again is Jeremy Bash.

We were overjoyed, and we had popped the court work on some wine and cracked open some beers and we had a little celebration there in the law offices that we were working out of. This was far beyond what we had requested, and it was a massive opportunity for us to take a lead in the tallies, which we thought would be critical to regaining some of the political momentum that we had clearly lost.

The problem once again was time. The Electoral College deadline was now just a few days away, and if it started to look like Florida wouldn't be done counting votes by then, the Republicans in the state legislature were ready and willing to use their power to bring the election to an end. As it turned out, they weren't the only ones. On the next and final episode of Fiasco, the Florida recount heads to the Supreme Court.

Justice O'Connor s this is a mess.

We got to stop it now because if we don't stop it now, it's going to go on and on, and it's going to get worse, and Bush is gonna win in the end. Anyways.

Fiasco is a production of Prolog Projects and it's distributed by Pushkin Industries. The show is produced by Andrew Parsons, Madeline kaplan Ula Culpa, and me Leon Nafock. Our script editor was Daniel Riley. Our editorial consultant was Camilla Hammer, and we received additional editorial support from Lisa Chase. Our music and score are by Nick Silvester of god Mode, with additional music from Alexis Quadrado. Our theme song is