Breaking and associated brands will be offline for scheduled maintenance Friday Feb. 26 9 PM US EST to Saturday Feb. 27 6 AM EST. We apologize for the inconvenience.


Thank you for sharing!

Your article was successfully shared with the contacts you provided.
A legal war zone — what other way is there to describe Florida last week? Federal suits. State suits. Conflicting legal opinions by high-ranking state officials. Judges forced into cases at the last minute. Arguments conducted by telephone. It seemed as if every hour there was a new case, a new interpretation, or a new ruling that needed to be fought, explained, or celebrated. The legal battle over the contested presidential race between George W. Bush and Al Gore seems almost too difficult to comprehend, much less manage smoothly. It has had some episodes that will probably live on. After all, when was the last time the likes of Harvard Professors Laurence Tribe and Alan Dershowitz and Washington lawyer Theodore Olson all assembled to argue in a federal district court over an injunction? But it also showed the legal system working under some of the worst conditions, with judges forced to preside over matters of momentous significance with only a moment’s notice. It was, in short, a very long week filled with confusion, chaos, and ultimately, extraordinary scenes. The week kicked off with a big one: the Nov. 13 hearing in the U.S. District Court for the Southern District of Florida, which took place in historic Central Courtroom, where former Panamanian President Manuel Noriega was tried for conspiring to smuggle drugs into the United States. It was a lineup of legal talent that would impress anyone. “These are as fine arguments as I’m likely to hear,” said Judge Donald Middlebrooks before making his ruling. One of the stars appearing in the case was Laurence Tribe, who played true to his professorial role during the Monday hearing, which took up the Republicans’ effort to block all hand counts in Florida. The renowned Harvard Law School professor, who was representing Gore and the Democrats, decided to lecture his opponent, Theodore Olson, who was there on behalf of GOP presidential nominee Bush. First, Tribe argued that several of the cases Olson relied on didn’t really support the outcome that Olson was arguing they did. He then said the plaintiffs’ side had failed to meet even the most basic test for a federal injunction. “It is truly mystifying to me how the plaintiffs think they can meet the federal injunction standard of irreparable harm to the public interest,” Tribe said. After that, he tried to rebuke Olson, saying the Gibson, Dunn & Crutcher partner should know, as did “any student in a basic constitutional law class,” that “the fact the people are treated differently, despite the fact that they are similarly situated” does not necessarily violate the Constitution. And although Olson equated the right to vote to constitutionally protected expression under the First Amendment, Tribe did not agree. “There is no citation for that statement,” Tribe said toward the end of his argument. “The Supreme Court has repeatedly denied that voting is a First Amendment right.” Olson — former head of the Justice Department’s Office of Legal Counsel and, like Tribe, one of the country’s leading federal practitioners — got a chance to fire back in his rebuttal. “The Supreme Court said dilution or debasement of a vote is the same as a debasement of the franchise,” Olson said. The day had other engaging verbal tangles. Middlebrooks proved himself an interested and probing judge. Although the two sides couldn’t object to each other’s arguments, Middlebrooks used his role as the judge to push the lawyers to defend their rhetoric. Bruce Rogow — a Fort Lauderdale constitutional lawyer, local law professor, and attorney for Palm Beach Supervisor of Elections Theresa LePore — had a few questions when he argued about the simplicity and ease of hand counting. “This is not a complicated process,” Rogow said. “That is pure hyperbole.” Middlebrooks challenged. “At least on television, it didn’t seem a very clean process,” the judge said. Rogow laid out the process in more detail, explaining how observers could watch and how the counts occurred in full public view. “It’s not a complicated process,” he said again. Middlebrooks came back. “If it’s so simple,” he said of the process to examine the votes, “why didn’t the machine count it?” Although Holland & Knight abstained from representing the GOP in the battle proper, the Florida-based law firm still found a way to get a piece of the action. Members of the firm weighed in last Monday before U.S. District Judge Donald Middlebrooks in the GOP’s effort to stop the hand recount. But their client wasn’t a politician. It was the media. Holland & Knight Tallahassee partner George Gabel asked Middlebrooks to let cameras into the courthouse on behalf of several media clients, including CNN, the television networks, and Court TV. (Federal courts are generally off-limits to media cameras.) The judge wasn’t persuaded. “I hate to put you in the position of losing when you are not opposed,” Middlebrooks told Gabel. “But at this point, I am obliged to follow the law of this circuit.” After Monday morning’s hearing, the action moved up Florida’s east coast to Palm Beach, where the voters’ suits were filed over the alleged illegality of the ballots. In an emergency hearing that very afternoon, Palm Beach Circuit Judge Stephen Rapp recused himself from the court after lawyers in one suit claimed they had witnesses who heard the judge make inappropriate comments. “I am doing my part to see that the Democrats are run out of the White House,” Rapp supposedly said, among other things. Rapp denied he had said any of the comments attributed to him, but he stepped aside nevertheless. So began the punting of the Palm Beach voters’ cases. For the early part of Tuesday, Nov. 14, confusion reigned in the Palm Beach County Courthouse, where no one seemed quite sure of what was going on. On the schedule was a hearing on the voters’ case — not directly linked to Democratic Party litigation — that triggered an injunction against the certification of the county votes. But every few minutes, a new recusal request was dropped off at the clerk’s office, as judges took themselves off the case. The reasons ranged from the involvement of a family member in the issue to intimate political and legal connections with attorneys in the case. The assembled media and other rubberneckers wanted to know: Was the hearing going to happen? The clerk’s office wasn’t sure. The Democratic Party lawyers who had come by the office to drop off another filing in their own case weren’t sure. While the Democrats weren’t representing the Palm Beach voters, they wanted to be in that courtroom if there was a hearing on the case. Then the word went out — the hearing was going to take place in the courtroom of Chief Judge Walter Colbath Jr. The clerk’s office emptied, and lawyers and reporters ran up the escalators to reach the judge’s courtroom one floor up. The scene outside was like so many others last week: Reporters, camera operators, and attorneys — all in their good clothes — crushed against each other trying to get in the door. Some lawyers involved in the case, running late, had trouble clearing a path into the room. The confusion didn’t clear up when the hearing started. Judge Colbath started by saying it was an error that he was hearing the case — he wasn’t even supposed to be in rotation for the assignment. And so it was that Judge Jorge Labarga got caught in a game of musical chairs. The case went through six judges before it reached Labarga, who just happened to be out of the building when the case fell to him. When he returned to the Palm Beach courthouse, Colbath had stationed bailiffs around the courthouse to swiftly escort Labarga into the chief judge’s courtroom. “I have people stationed at his door,” Colbath said. “He will not pass go. He will not collect $200. He will come straight to these chambers.” When Labarga entered the room, he faced several attorneys — and one via phone line — who were unsure about what they would get to do: argue case law, present evidence, or go home. In the end, Labarga dealt only with the preliminary motions for a change of venue and a continuance in Rogers v. The Elections Canvassing Commission of the State of Florida, the case that had earlier prompted an injunction against certification of the Palm Beach votes. Barry Richard, a partner at Greenberg Traurig representing Bush, had to argue in favor of the change of venue from his phone in the state capital of Tallahassee. And he couldn’t even stick around to rebut the other side. Because he was required to attend another hearing in Miami via phone, Richard moved another attorney on to the phone after his argument. The arguments were technical — the change-of-venue argument turned on various interpretations of who is an “indispensable party” — and when Labarga asked Richard’s substitute to respond to the counterarguments made by the plaintiffs, the new lawyer was caught off-guard. The judge seemed sympathetic, to a point. “I don’t know if you are prepared to answer, but now you know how I feel,” Labarga said. At that point, the Republicans lost their attempt to move the case up to Tallahassee, while the voters lost their quest to extend the time to certify results in Palm Beach county, effectively ensuring that Palm Beach, at that time, had to send in vote tallies by 5 p.m. on Tuesday, Nov. 14. Labarga agreed with a Tallahassee judge’s ruling from earlier that day that a county could send in results on Tuesday — and supplement them later in the week, hoping that Secretary of State Katherine Harris would accept them. But it was not exactly the ringing endorsement of Palm Beach County’s right to count that the plaintiffs had hoped for. “It’s up to Harris to decide if she will receive them,” Labarga said of any additional recount numbers from Palm Beach. “If she decides she doesn’t, you have to talk to her about it.” For the second time that day, Florida judges avoided directly tangling with Harris. But the voters’ cases were kept alive for another day. The combination of court hearings to attend, recounts to oversee, and strategy to devise seemed to slowly wear on attorneys. In the early part of the week, Benedict Kuehne, a partner at the Miami’s Sale & Kuehne representing the Florida Democratic Party, described the hectic pace as exciting. He spent Monday, Nov. 13, jumping between hearings and shuttling between three counties — Miami-Dade in the morning, Palm Beach in the afternoon, and Broward after that. “All of the attorneys have a nice-sized file cabinet in their trunks,” Kuehne said Tuesday afternoon, as he was waiting in the Palm Beach County Courthouse. The key to following the continually shifting legal battle across the highways of Florida, Kuehne said, is having support back at the office. Staff members and associates are relied upon to keep track of the hearing schedules, filing deadlines, and new suits, which this past week seemed to change every few minutes. “The management of multiple cases is a chore,” Kuehne said. “If an attorney spent all his time keeping track of all the cases, he would not be doing much lawyering.” As the week wore on, the enthusiasm seemed to wear off, replaced by exhaustion and frazzled nerves. On the morning of Wednesday, Nov. 15, during yet another hearing on the Palm Beach voters’ cases, Barry Richard, the attorney representing candidate Bush, exploded with frustration. Richard again had to conduct his arguments from Tallahassee, getting through to the Palm Beach courtroom via phone hookup. He had obviously felt the frustration the day before, when he had to leave the phone for another hearing, missing the rebuttal arguments against his own change-of-venue motion. By Wednesday morning, his mood had grown worse. The Florida Democratic Party was up first in the hearing on their move to force the Palm Beach County Canvassing Board to count dimpled or pregnant chads as a vote. Richard said he hadn’t seen the most recent motions and thus didn’t know what cases they were going to cite. As the attorneys representing the Palm Beach voters made their arguments, Judge Labarga read Richard the citations for each case mentioned. It was clear that Richard was pulling the cases as they went along when he stopped the judge at one moment to say he must have taken down the wrong citation because he couldn’t find the case. The judge eventually ruled that the Palm Beach policy of not counting dimples was “not in compliance with the law” but left it up to the canvassing board’s discretion to consider those ballots. After that matter was disposed of, Labarga held a hearing on the Palm Beach voters’ suits that sought to throw out all the county’s ballots and conduct a revote in the presidential election. That’s when Richard snapped. When the attorneys for the Palm Beach voters started pushing for an evidentiary hearing right then, Richard objected. “I had no notice to prepare for an evidentiary hearing,” Richard said. “I have to be up here. I have to be in hearings down there. I have to be everywhere, in fact … . There is no reason for the Rules of Civil Procedure to be thrown out and for me to be railroaded into something I cannot prepare for.” The judge was swayed, and decided to move a portion of the trial to Friday morning, when he said he would hear arguments specifically on whether it was legally possible to hold a revote in Palm Beach County for the presidency. The first few cases filed by citizens in Palm Beach were decried by the Republicans as nothing more than stalking-horses for the Gore campaign. And although Fort Lauderdale attorneys David Krathen and Gary Farmer have repeatedly denied being tools or accomplices of the Gore campaign, there is no doubt the attorneys’ cases have so far moved in concert with the Democratic presidential hopeful. On Wednesday, Nov. 15, Farmer said that if a recount showed Gore as the winner in Palm Beach County, there would no longer be a need for the suit claiming the Palm Beach ballot was illegal. In other words, Farmer would not object to the butterfly ballot if it produced a Gore win. But as the week rolled on, other attorneys and private citizens filed suits — some of which were not expected to work to the advantage of the Gore campaign. Take Lawrence Gottfried’s case. From his Boynton Beach apartment filled with pictures of himself with Presidents Ronald Reagan and George Bush, Gottfried has filed a pro se case that he hopes may help the Texas governor. His suit, filed on Monday, asked the court to end manual recounts in Palm Beach immediately. Gottfried, a former practicing attorney, sees himself as carrying on a solo campaign to protect the Republican Party in Palm Beach County. “There is nobody here who is outspoken for Gov. Bush,” said Gottfried. “I wish there was a better person than I.” All the cases filed in Palm Beach seeking a recount are “not about justice,” Gottfried says, adding, “This is about Al Gore’s people being angry and whining about losing.” Or look at Broward County attorney Robert Pasin’s case. Pasin showed up on Tuesday afternoon in the Palm Beach courthouse and led his client through the media room during a break in the hearings. He explained he was reluctant at first to get involved when his clients contacted him about ballot problems. “My initial reaction was that I didn’t think there was anything I could do,” said Pasin, who ultimately agreed to represent three Democratic voters who were angry about what they deemed a confusing and illegal Palm Beach ballot. Pasin seemed to have problems in Wednesday’s hearing. As the Florida Democratic Party’s suit over the dimpled ballots was being heard, Pasin kept getting up and trying to interject his own argument. Pasin didn’t win any fans that day. Judge Labarga told him several times to sit down and at one point asked him whether he was a member of the Florida Bar. And when Pasin stood up, both the Democrats and the Republicans objected to him. After the hearing, Pasin himself admitted he had worried that the judge would hold him in contempt, but he felt his points were so important and so needed saying that he was willing to risk it. Although Pasin says he is watching Vice President Gore closely during this, he emphasizes that he represents his clients, and not Gore. “My lawsuit is on behalf of the voters of Palm Beach County, and those are valid regardless of the action or wishes of Al Gore,” Pasin said. “They have their own personal interest in the lawsuit. This is a personal action, not a political one.” As the week wore on, Tallahassee became the focus of much media attention because of a stream of legal opinions and decisions by state officials, local circuit courts, and the Florida Supreme Court over hand recounts. But off camera, in a courtroom at the Palm Beach County Courthouse, Judge Jorge Labarga continued to wrestle with a legal issue that has the potential to establish incredible new precedent — and add a whole new level of volatility to the already frenzied atmosphere in the state. Although the teams for Gore and the Democrats have led the push to force Secretary of State Katherine Harris to include hand counts in disputed counties in the final vote tally, the Palm Beach voters are taking a much more radical tack. They are asking to have either the entire county of Palm Beach, or just those who cast ballots on Nov. 7, to revote. It fell to Judge Labarga, a Cuban-American appointed to the bench by Democratic Gov. Lawton Chiles in 1996, to determine whether that was permissible. Labarga spent Friday morning wrestling with the issue in a hearing with the plaintiffs’ lawyers representing the Palm Beach voters; attorneys representing Palm Beach County Election Supervisor Theresa LePore; and lawyers from the Republican and Democrat teams. Earlier in the week, Labarga had given the attorneys an assignment: produce case law and statutes, not emotional arguments, to support the contention that a judge can order a revote in a presidential election. The lawyers didn’t disappoint in at least one respect. “Since I got here this morning, I got hit with eight tons of paper,” he said. “You lawyers need to put a lid on it. Enough with this. “From what I have gotten so far, it seems like you guys did my homework assignment quite well,” Labarga added. Page counts aside, Labarga then homed in on substance. And that’s when the fun started. Gary Farmer, one of the Fort Lauderdale attorneys representing two Palm Beach voters, cited Florida case law and statutes to support his argument that revoting was not an unusual solution to a problematic election. One of the key cases he relied on was a 1998 Florida Supreme Court ruling in which improprieties in tabulating absentee ballots had surfaced in a Volusia County Sheriff’s race. Although there was not a revote in that election, the court ruled that a court had the right to order a revote. But that didn’t seem to fully satisfy Labarga, who then asked Farmer if he had found a case in which a revote was authorized in a presidential election. No, Farmer said. “Did you find a case where it was not allowed?” Labarga followed up. No, answered Farmer again. “Well, we did,” Labarga said, looking through his papers. He started reading from the case of Donahue v. Board of Elections, a New York federal case that dealt with allegations of federal civil rights violation in a vote in the 1976 presidential race between Jimmy Carter and Gerald Ford. “It has some very strong language,” Labarga said. “A party contesting a presidential election carries a heavy burden.” That set the tone for much of the hearing. Labarga seemed very concerned about the constitutional and federal provisions setting the presidential election for the first Tuesday in November, and kept asking the attorneys if they saw any way to hold a new vote after that date. He drew out a scenario about a hurricane on Election Day, questioning what he could do then. The Palm Beach voters’ attorneys kept arguing that Labarga had broad authority, leaving him the ability to order a revote. “If you could not order a new election for the hurricane or the earthquake, you would be nullifying the right to vote in an entire state,” said Erwin Chemerinsky, a law professor at the University of Southern California who also represented the plaintiff voters. The Bush team, led once again by Barry Richard on the phone, tried to play on the judge’s obvious concerns about his authority over presidential elections. “There is no provision in federal law, no provision in Florida law for any court to do anything when the state has failed to choose its electors,” Richard said. “The bottom line is the law is crystal-clear. It tells us exactly what day we are to have the election.” But Labarga left everyone hanging. He refused, contrary to what he had done in the hearings earlier that week, to rule from the bench, saying that decision of this import needed some careful consideration. He said he would work through the weekend on his decision and that he expects to rule on Nov. 20. The judge set a tentative hearing date for the Monday after Thanksgiving, in case he rules that he can order a revote. He asked the numerous sides and attorneys to cooperate with each other, keep the number of lawyers involved to a minimum, and avoid having “everyone who wants to be on CNN from coming in and deposing these people.” And it seems that while his sympathies lie with the Palm Beach voters, he found their legal argument hard to justify. “The right to vote, to me, is as precious as life itself,” Labarga said. “If I rule against your clients, it will probably be the most difficult decision I will ever make.” But the importance of the Palm Beach voters’ cases is still questionable. It’s obvious the Gore team would prefer to win through a recount of votes, rather than by having a revote in Palm Beach County. And the manual recount scenario was boosted when the Florida Supreme Court issued a decision late Friday afternoon, preventing Secretary of State Harris from certifying the election before the court had a chance to decide whether the hand counts should be included in the final vote tally. The Florida Supreme Court set a hearing on the matter for Monday, Nov. 20 — the day that Labarga set for handing down a decision on the revote.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

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 © 2021 ALM Media Properties, LLC. All Rights Reserved.