With neither candidate able to claim a clear victory at the polls, it was up to Florida’s courts and, ultimately, the U. S. Supreme Court to determine the outcome of the 2000 presidential election. As the chief justice of the Florida Supreme Court at the time, Charley Wells, who joined GrayRobinson as a partner in March 2009, played a prime role as the controversial case unfolded.
In Inside Bush v. Gore, published Tuesday by University Press of Florida, Wells revisits the twists and turns of the 36-day legal standoff between George W. Bush and Al Gore and their respective phalanxes of attorneys. Appointed to the state’s top court in 1994 by then-Governor Lawton Chiles, Wells served as chief justice from 2000 to 2002 and, despite being one of six Democrats on the seven-member court, was among its more reliable conservatives—a reputation he cemented by voting in the minority in the 4-3 decision directing that the Florida recount continue.
Wells recently spoke to Daily Report affiliate The Am Law Daily about his book and his memories of the tense stretch during which the eyes of the world were on him and his colleagues.
In your book, you compare the time pressure you and your fellow judges faced to the last-minute appeals typical in death penalty cases. Were you suggesting that some people were treating the presidential election like a life-or-death matter?
(Laughs) No, it wasn’t that type of comparison. It was really just about the compressed timeline. The way the death penalty procedure works in Florida is once a case has been through the process the governor will sign a death warrant. Once that happens, the execution will occur a short time after the warrant is signed, usually less than a month. There are always a lot of last-minute appeals that come through the court in a very compressed period, and we have to rule quickly.
For Bush v. Gore, we were working on a similarly compressed timeline, and that put a lot of pressure on the lawyers involved and ourselves. We devoted ourselves to this case on a full-time basis, seven days a week.
As a Democrat, did you feel pressure to side with Gore? Or, as one of the court’s more conservative judges, did you feel you had to act as a balance to the liberal majority?
Neither. As I say in the book, once you get appointed to a court of last resort, you’re a free agent. Obviously, I was aware that others were talking, and I saw all the editorial cartoons and the various commentaries about how we’d all been appointed by Democrats. But otherwise it was not really a factor. The decisions I made were focused on the cases, and the problems I saw in the process.
You talk at length about the ambiguity and conflicts in the state statutes that govern how votes are certified and election results are contested. Do the problems that existed in 2000 still exist today? Was a replay of 2000 possible in 2012?
They’ve amended the laws since 2000. They haven’t been tested by actually having a controversy in front of them, so we’ll see what happens down the road. The problems with Florida’s voting process weren’t limited to the statutes; there were problems with the ballots, too. They’ve dealt with those problems, so we shouldn’t have any more hanging chads.
The U. S. Supreme Court actually intervened twice, the first time to vacate your court’s decision to extend the deadline for amended returns. You write that you were disappointed the Supreme Court intervened and that it didn’t really appreciate the ambiguity and conflict within the Florida statutes. But you were relieved when the court intervened later to stop the recount. Is it fair to say that it was more important to you that they end the contest?
Yes, at that point in time, ending the contest was more important. I did not see how we were going to reach a more satisfactory result through litigation.
When the Supreme Court first got involved I was shocked because Bush’s petition was moot. He had been certified the winner. I thought the justices would simply abate their action, and I was surprised they did not.
Once that was done, though, I became more concerned with making sure we resolved this before Dec. 12, 2000, when the Electoral College was scheduled to vote.
What do you remember about the main lawyers in the case, David Boies for Gore, and Greenberg Traurig’s Barry Richard and Jones Day’s Michael Carvin for Bush?
Boies certainly lived up to his reputation. He was well prepared. His presentation was easy to understand. Personally, I thought he did a great job in front of us. As I say in the book, all of the lawyers performed well under the time pressures we had put on.
I was a little surprised that the arguments made on behalf of Governor Bush to the U.S. Supreme Court [that Florida's Supreme Court did not have the authority to order a recount] were not made in our court. I found that the Bush lawyers before us were more focused on supporting the actions of the secretary of state in not allowing the recounts to continue.
I remember there was some considerable questioning of Carvin by some of my colleagues as to things that were bothering them about what [Florida Secretary of State Katherine] Harris had done.
Does it bother you that we may never know who really won Florida?
I wish there could have been more certainty, but my thoughts at the time, as well as today, are that the election was basically a tie and the margin of victory was never going to exceed the margin of error. A decision had to be made in the best interests of the country.
For that reason, on the second decision before our court, I felt like the Supreme Court needed to get involved. To continue the counting was never going to get us any closer to a resolution.
What is your most vivid memory of those 36 days?
The constant crowds in front of the Florida Supreme Court building. Also, the tent city that the press set up across the street from the courthouse. There was a line of satellite trucks parked seven days a week outside the courthouse that extended for three blocks. That’s what I remember the most.