X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
It took Leonard K. Samuels about 30 seconds to recall when he first heard the word “chad” used in its new historical context. Sleep-deprived and beginning to slur his words, the Fort Lauderdale, Fla., litigator explained during a Thanksgiving night interview that it was on Thursday, Nov. 9, two days after the election, that a lawyer who had observed the automatic machine recount in Broward County told him of thousands of “undervotes” for the presidency and of hanging and pregnant chads. “Prior to that time, I only knew ‘chad’ to be a male name,” he said, laughing. But Samuels, a staunch Democrat, became one of the scores of attorneys thrust into the klieg lights of history, enmeshed in chad warfare before canvassing boards and circuit court judges. Like most of the lawyers working around the clock, he was not one of the well-known national or Florida lawyers plotting statewide legal strategy. He was one of the foot soldiers, relying on almost 15 years of litigation experience to help lead the Democrats’ effort in Broward County to get first a partial hand recount, then a full hand recount and, finally, to compel the canvassing board to scrutinize ballots closely for evidence of voter intent and to count the dimpled ballots. Samuels acknowledges losing six pounds and sleeping with two phones at his bedside during the two weeks of on-again, off-again recounts. But he’s not complaining. “The greatest lawyers in the history of our country can go an entire lifetime without dealing with issues as significant and important as the issues I am dealing with,” he says. Samuels, 40, a self-avowed political junkie as a kid, worked for Ted Kennedy’s 1980 presidential campaign in college and is active in Democratic circles. (He is a friend of Florida Senator Bob Graham.) But like many, if not most, of the lawyers involved in the election dispute, he had never practiced election law before Nov. 7. He specializes in commercial and employment litigation, representing corporations and management. His sub- specialty, he says, is enforcing noncompete clauses against former employees of his clients. This calls for a lot of fast-paced “injunction work,” he says, which put him in good stead when he found himself arguing multiple hearings in one day over Broward votes. It was his partner at Berger Davis & Singerman, Mitchell Berger — a top Democratic fund-raiser, a personal friend of Vice President Al Gore and one of the lead Democratic lawyers on the case — who asked him to head the litigation effort in Broward. “Lenny is someone who I have tried many cases at the side of, and is an excellent litigator,” says Berger. “The issues required a few nights of study, and then off to court.” Samuels says he read the law and the relevant cases and relied on research, briefs and advice from many attorneys, including Berger and two others who played key roles: Charles Lichtman of Miami’s Genovese Lichtman Joblove & Battista; and Michael Moskowitz of Fort Lauderdale’s Moskowitz, Mandell, Salim & Simowitz. “There was never any lack of resources or attorneys to assist me in my efforts, even though most of what I was doing was on an emergency basis,” Samuels says. On Nov. 10, Samuels argued successfully before the Broward County canvassing board that it should do a manual recount of three precincts to determine whether a full countywide recount was warranted. With the canvassing board flip-flopping on whether to pursue a full recount and Florida Secretary of State Katherine Harris saying that she would enforce the 5 p.m., Nov. 14 deadline for certifying the election results, Samuels won an order from Circuit Judge John Miller that the Broward canvassing board did not have to abide by Harris’ deadline. On Nov. 17, with the Broward recounts under way, Samuels successfully argued before Circuit Judge Leonard Stafford that the Republicans should not be allowed to hold a full evidentiary hearing in an attempt to block the recount of 588,000 Broward votes. Later that day, attention shifted to chads and dimples in another courtroom. Samuels and the Democrats asked Judge Miller to order the canvassing board to use a broader standard and to consider the dimpled ballots. The judge said, “[I]f I find that the board isn’t counting the pregnant chads and all this other stuff that’s supposed to show the totality of the ballot and show the intent of the voter, then I will tell them to do it again.” In the end, the Democrats were so pleased with the standard used by the Broward canvassing board to count dimpled ballots that they did not challenge its vote totals when challenging the certified election results on Nov. 27. Samuels says he was so energized by the work that he didn’t mind being asked to pick up Laurence Tribe and David Boies at the airport. They were working rides, he says, and “I was thinking it was a privilege to work with such distinguished attorneys.” FROM PI LITIGATOR TO (BALLOT) BUTTERFLY Before Nov. 7, F. Gregory Barnhart also had never practiced election law. But his success as a South Florida personal injury lawyer landed him a key role in the election litigation as a Democratic Party foot soldier. “Greg is a talented trial lawyer. He also has a political awareness such that he understands that law and politics intersect more than most people realize,” says Benedict Kuehne, one of Gore’s lead lawyers in Florida. He teamed with Barnhart to co-lead the Palm Beach County litigation effort. Barnhart, 48, a partner at West Palm Beach’s Searcy Denney Scarola Barnhart & Shipley, is a past president of the Academy of Florida Trial Lawyers. During his 24-year career, he has done approximately 150 jury trials and won (along with other attorneys from his firm) more than 30 verdicts exceeding $1 million, including a $50 million punitive award against CSX Transportation. He is lead counsel in three cases against Firestone. In the first few chaotic days after the election, angry voters, claiming that an illegal and confusing “butterfly” ballot caused them to miscast their vote, began filing lawsuits in Palm Beach County asking for a revote. Barnhart was part of a web of Gore and Democratic Party lawyers who began drafting their own complaint, e-mailing and faxing copies back and forth to each other. “I’ve had lawyers call me up asking for documents, and I don’t know who they are,” Barnhart said at the time of the disorganized state of events. He said that orders seemed to be coming from Tallahassee, with caution about appearing too litigious the watchword. “The legal strategy and the voter strategy and sense of obligation to the country — nobody wants to make a false step,” he said. As evidenced by the contest proceeding in Tallahassee, no Florida county illustrated the roller coaster ride over recounts and dimpled ballots more than Palm Beach. When the county’s canvassing board began its manual recount on Nov. 12, it used a standard under which it would only count ballots with at least two corners of the chad detached. At a Nov. 15 hearing, Barnhart and Kuehne, a partner at Fort Lauderdale’s Sale & Kuehne who had election law experience, sought a declaratory judgment that the wrong standard was being used and that dimpled ballots should be counted. Circuit Judge Jorge Labarga, giving the first of several key rulings in the case, found that the Palm Beach County canvassing board’s policy was too restrictive and ruled that the board “has the discretion to utilize whatever methodology it deems proper to determine the true intention of the voter [but] the present policy of a per se exclusion of any ballot that does not have a partially punched or hanging chad, is not in compliance with the law.” The Democrats were pleased with the ruling, believing it would force the Palm Beach board to count thousands of questionable ballots and possibly swing Florida to Gore. But then, Barnhart recalls, he got several calls, including one from his partner, Lance Block, who had been monitoring the recounts. “He said they weren’t counting the ballots” with dimples, Barnhart says. The Florida Supreme Court ruling on Nov. 21 didn’t help because it failed to lay down specific standards for a canvassing board to follow. So the Democrats went back to court the next day, filing a motion for clarification. Barnhart told Judge Labarga that he needed to clarify the standards for the board: “[I]f we fail now … I submit respectfully that history shall judge us harshly.” Labarga ruled, “The canvassing board cannot have in place a policy which provides per se exclusion of any ballot,” but added, “Conversely, the canvassing board must reject any vote in which it cannot discern the intent of the voter.” Although both the Gore and Bush camps claimed victory, the canvassing board continued, following a policy that led the Democrats to claim, when contesting the election on Nov. 27, that “approximately 4,000 ballots in Palm Beach County that were marked by the voter with an indentation” were not counted. “They changed the standard, and it was far too restrictive,” says Barnhart, of the Broward board. “I question the advice they were getting, legal or otherwise.” Unlike Samuels, Barnhart says he did not lose weight during his two-week ordeal, and found time to continue his four-mile-a-day runs. But like Samuels, he says that he was moved by the experience. “I was glad to be part of history, whichever way it turns out,” he says. “I felt every step of the way history is being made. I still feel that way.” His job may not be over. Kuehne says he may be called to Tallahassee for the contest proceeding. If so, he may leave his yellow tie at home. He was told that it looks bad on TV.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.