Cover Story: Butterflies, Chads and American History
|by Mark A. Aronchick and Stephen A. Sheller
Spring 2001, Vol. 64, No. 1
Every once in a while, our legal system is asked to handle something that seems bigger or stranger than life. That happened in Florida between November 8 and December 12, 2000. The post-election battle between George W. Bush and Albert A. Gore Jr. will become the stuff of historical legend. The lawyers who assembled in Florida were the architects and shapers of that history. We were privileged to be there. Here is a personal account told from Mark Aronchick's perspective, with the help of Stephen Sheller. It is an account of those sometimes exciting, occasionally boring, and generally surreal and zany days in the eye of the hurricane.
By 5:20 a.m., November 8, 2000, my friends and fellow news groupies, Dan Segal, John Morris and I were on autopilot. We and our families had been up all night riding the emotional roller coaster of the election returns. By daylight on November 8, the commentators had thrown up their hands in trying to call this election. We started hearing about reports from Palm Beach County, Florida, about confusing ballots that resulted in votes for Patrick Buchanan instead of Al Gore. I turned to my children, Sara and Jon, and said, "never forget this night, you were there." Little did they know just how much more involved in history their father would become in the next few weeks.
While I mainly litigate complex civil matters, I have had the fun and good fortune of handling some of the region's hottest election disputes over the past twenty years. The reports from Palm Beach County reminded me of another historic night, more than twenty years ago, after the mayoral primary between Democratic candidates William J. Green and Charles W. Bowser, when I was still a young associate at Wolf, Block, Schorr and Solis-Cohen. Even though I was an active volunteer in the Green campaign, I was not invited to anything special on that primary election night in 1979, so I stayed home with my wife, Judi, watching the election returns. News reports that night started circulating about confusing ballots and tally sheets that might put the election results between Green and Bowser in doubt.
As a volunteer, one of my assignments was to monitor the work of the City Commissioners, our local election board, in the weeks before the election. I understood immediately on that night in 1979 that the reports of confusion were unfounded, but also that the entire matter would have to be sorted out in the weeks that followed in challenge and contest actions in court. I rushed out of our apartment to the election night hotel suite of the Green campaign, found Bill Green and his chief aides who were trying to understand what was going on, explained to them what I knew, and wound up for the next four weeks on the legal team representing the Green campaign in one of the most contentious post-election court battles in Philadelphia's mayoral history.
Instinctively, perhaps impulsively, at sunrise on the morning of November 8 as I heard about the Palm Beach County ballot confusion, I called my friends, Ed Rendell, general chairman of the Democratic National Committee, and Alan Kessler, a confidante and major advisor to Al Gore, and volunteered to go to Palm Beach County and help sort out the confusion. The three of us spoke several times during that morning, and I also spoke with the general counsel of the DNC and various other lawyers trying to figure out just what was going on in Palm Beach County.
Meanwhile, I asked three of our associates at Hangley Aronchick Segal & Pudlin-Brent Cossrow, Tom Wallerstein and Matt Hamermesh-to assemble all the Florida election statutes and relevant court decisions. I understood quickly that Florida had a rather uncomplicated set of post-election protest and contest procedures, that there were very few relevant court decisions, and that the ballot design in Palm Beach County-which came to be known as the infamous "butterfly ballot"-was legally suspect under some rather quaint provisions of the Florida Election Code. In short, there was ample basis for a challenge under Florida election law regarding the butterfly ballot.
Democratic Party Strategy
Throughout Wednesday and Thursday, November 8 and 9, I was involved in dozens of telephone calls with Alan Kessler and Ed Rendell and also with Democratic Party lawyers in Washington, D.C., and in different locations in Florida. Several times, I was told to get ready to go to Palm Beach for possible litigation, and thereafter told to hold off because the Gore campaign had not yet decided to go to court. Under Florida election law, a recount is mandatory in close elections, and the Democrats wanted to await the results of that recount before considering any litigation. From a politician's point of view, court actions to contest elections are generally a last resort. Although the election laws of virtually every jurisdiction in the United States provide for orderly legal proceedings to sort out the results of contested elections, candidates are reluctant to invoke those procedures unless absolutely necessary.
In any event, while I was willing to help organize an election court battle in Florida, I was not at all certain that anyone in the Gore campaign or DNC would give me the green light to go there.
Steve Sheller is a significant Phila-delphia lawyer in his own right. While unfamiliar with election contests, Steve frequently has pushed the envelope, filing creative lawsuits, acting quickly where others hesitate, and courageously fighting battles on behalf of his clients. The day after the election, Steve was outraged by the reports of ballot confusion in Palm Beach County, particularly because of the apparent disenfranchisement of many elderly Jewish and recent immigrant voters. Steve told me, "My father's parents emigrated from France in the late 1800s, and in 1905 my mother's parents escaped pogroms in Russia to arrive on the shores of the Eastern United States hoping for the opportunities our democracy held out to them."
Steve contacted two Florida lawyers with whom he had worked on other matters, Gary Farmer and Dave Krathen, and by Thursday, November 9, the three of them had drafted a complaint on behalf of voters in Palm Beach County challenging the butterfly ballot and seeking to enjoin the Palm Beach County Election Canvassing Commission from certifying as final the results of the election for President and Vice President of the United States as held in Palm Beach County, Florida. After a lengthy review, Steve's motion for a temporary restraining order was granted by Judge Kroll on the evening of November 9, 2000. A hearing was scheduled for November 14 at 1 p.m. before Judge Lucy Chernow Brown.
On November 9, Steve also contacted Ed Rendell and Alan Kessler and asked for help. He told them he was filing a complaint but he could use the help and assistance of a lawyer familiar with post-election litigation. That evening, while I was in a power yoga class at Main Line Health and Fitness in Bryn Mawr, my secretary, Barbara Walley, paged me for an emergency telephone call from Steve Sheller. He told me about the injunction and the November 14 hearing, and he asked if I would be willing to join his legal team, particularly since neither the Gore campaign nor the Democratic Party seemed willing to file their own challenges concerning the butterfly ballot. I agreed immediately and made flight reservations to Palm Beach for Sunday morning.
Throughout the weekend, both by the miracle of instantaneous fax, e-mail and cell phone communication, and in person in Palm Beach, Steve Sheller, Dave Krathen, Gary Farmer and I put together a court challenge on what became the case of Rogers and Kaplan v. Palm Beach Canvassing Commission, et al. in the Circuit Court of Palm Beach County, Florida. The immediate task was somehow to get our voter litigation to the front of the line of eleven different voters' suits challenging the butterfly ballot. Steve's mass tort litigation experience proved useful. He went to work organizing the various lawyers representing different plaintiffs, most of whom were more than willing to let others do the work while they tagged along for the ride. He forged compromises with those few lawyers who also wanted to be at the lead counsel table and share the front line. Because of the emergency restraining order, preventing any vote certification from Palm Beach County until a hearing on Tuesday, November 14, and his coordination efforts, the Rogers and Kaplan case immediately became one of the two lead voters' cases. For a time, all eyes were on our case and the butterfly ballot.
The weekend of November 11 and 12 was hectic. We put together bench memos on all of the obvious legal issues, particularly why the butterfly ballot did not meet the requirements of the Florida Election Code. We also recognized that we would need experts, especially statisticians experienced in analyzing election data, who could present the effects of the ballot confusion in real, quantifiable terms. We had to show that the confusion had an actual impact on the election, even though by then Pat Buchanan was saying so himself on national television. We struck gold! Five academicians from Berkeley, Northwestern, Cornell and Harvard had put together a report, based on available data, showing how the ballot layout in Palm Beach County resulted in a disproportionate vote for Pat Buchanan and how at least 2,000 of those votes were actually intended for Al Gore. They had put that report on the Internet.
We contacted the experts and asked if they would be interested in joining our litigation. To our surprise, not only did all five (some were Republicans and some were Democrats) say they would join but they all said they would immediately come to Palm Beach at their own expense and stay as long as necessary to testify as expert witnesses in the Rogers and Kaplan case. Separately, the media, which had come in droves to Palm Beach County, were helping us out considerably by reporting about the erroneous pre-election instruction booklet mailed to Palm Beach voters, about scores and scores of citizens who were willing to come to court to testify about how they were misled on election day, and about a variety of other helpful matters.
But most helpful of all, the media had focused on the source of the problem, the person who approved the design of the butterfly ballot, Theresa LePore, and her reactions to her handiwork. Theresa LePore is the election supervisor of Palm Beach County. Before she clammed up and refused any public comments, she gave interviews to the local media expressing her consternation over the ballot design. LePore explained that she had designed the ballot with good intentions. The presidential election for the year 2000 had an uncommonly long list of candidates. Because the balloting in Palm Beach is by punch card, and because so many voters are elderly, LePore thought it would be more helpful to have all candidates on one single punch card in alternating columns with a larger font in what she believed would be a more readable format. The ballot she designed was dubbed the butterfly ballot and some of the media named her Madame Butterfly. Those interviews, along with Pat Buchanan's national comments, made Palm Beach County and our butterfly ballot case ground zero in the first two weeks of the post-election litigation in Florida.
Lawyers and Helicopters
By Monday morning, November 13, all hell was breaking loose around us. Both the Democratic and Republican campaigns realized they would have to drop their pretenses and fight out their differences in court. Each campaign had called for lawyer volunteers, and hundreds of lawyers from all over the country were assembling for each campaign at different locations in Palm Beach County. I was briefed on the Democratic Party's strategy of seeking manual recounts in certain counties as a result of the tightening of the election after the mandatory statewide recount.
On that morning, Steve, Dave Krathen and I assembled in Gary Farmer's office in Fort Lauderdale. The fax machine was running nonstop because the Bush campaign had hired the Greenberg Traurig law firm (whose managing partner, ironically, is a relative of Steve Sheller's), and they were filing about a half-dozen motions to try to derail the butterfly ballot litigation and our hearing, scheduled for the next day in Palm Beach County Courthouse.
We realized we had to do three things and do them immediately. First, we had to respond to the flurry of motions on venue transfer, indispensable parties, and other procedural objections. Second, because the Democrats had asked for a manual recount in Palm Beach County, we wanted to coordinate our litigation with that effort. Third, we had a story to tell about the butterfly ballot, and it was important to tell it to the world, both to support the battle for the recount and to battle against the Bush campaign spin that they already had won the election. We decided to call a press conference presenting the five academic experts who had flown to Florida and the results of their study concerning the outcome of the Palm Beach election.
I have long known that in these post-election battles, it is crucial that lawyers running the show maintain a sense of balance and perspective. You hear loads of rumors and gossip, much of which is not particularly useful but all of which can be diverting. The media tends to shape, if not direct, the course of events including those in court. All of that happened, magnified a hundredfold, in Palm Beach County on the Monday and Tuesday after the election.
Katherine Harris, the secretary of the Commonwealth of Florida, announced on Monday that manual recounts in Palm Beach, Broward, Miami-Dade and Volusia counties were prohibited and ordered them halted. The Reverend Jesse Jackson called for a huge protest in front of the Palm Beach County Courthouse, protesting the butterfly ballot and the halting of the manual recount. The Bush campaign, through the Greenberg Traurig firm, requested and obtained an emergency hearing at 4 p.m. on Monday to try to dismiss our Palm Beach County litigation or have it transferred to Tallahassee, in Leon County. Steve Sheller and I barreled up Interstate 95 to get to the 4 p.m. hearing in time. When we arrived, we stood on the plaza in front of the modern, impressive, Palm Beach County Courthouse and looked at a scene that was both astonishing and surreal. The Jackson protest was occurring in the street along one side of the courthouse: lots of people, scores of signs and lots of yelling. At least as many local and state police were deployed in the blocks around the courthouse. We counted thirteen media and police helicopters circling in the air above our heads.
Scurrying all around were scores of lawyers with briefcases, although very few of them had anything to do with the central action that would soon occur in our case on the sixth floor of the Palm Beach County Courthouse. Media from all over the world waited at a designated press area for something to happen. The zeal, emotion and occasional indignation of the volunteers and protesters on both sides made me think that, for many of the twenty- and thirty-somethings, this was their "Freedom Summer" or "March on Washington."
Since we had about half an hour until the court case, I huddled with Steve, Dave and Gary, and we decided to call a press conference because nobody else was explaining anything about the upcoming litigation to the media. We presented our experts, discussed the problems with the butterfly ballot and gave the media concrete numbers about how many votes we believed Al Gore lost to Buchanan because of the confusing ballot. Along with the Jackson protest, we dominated the national news that evening. Indeed, my father, Sidney Aronchick, who is a resident of West Palm Beach and 87 years old, was startled to see me on the local 6 p.m. news describing how we believed that Al Gore actually had won the election.
As Steve and I turned to go up to the courtroom for the 4 p.m. hearing, I looked back and asked him if he thought the chaos around us was reminiscent of Woodstock. "With all of the lawyers parachuting into Palm Beach and the sky full of choppers, it looks more like Vietnam to me," he said.
Morphing the Butterfly
Nothing much happened at the 4 p.m. "emergency" hearing because one judge after another was recusing her or himself from hearing any of the Palm Beach County litigation. We were told to reconvene the next day at the already-scheduled 1 p.m. hearing when we would learn which judge would preside.
That night, Gary Farmer and I had a brainstorm. By now, we realized, based on early returns from recounts in Palm Beach and other counties before Katherine Harris stopped them, that the results of the recount might moot the need for litigating the butterfly ballot. In other words, our clients would be successful if the recount showed that Gore won. In that event, there would be no need to try to seek the difficult remedy of a new vote in Palm Beach County because of the butterfly ballot confusion. We talked about adding to our litigation some requests for orders that would enable the recount in Palm Beach to resume, notwithstanding Katherine Harris' direction that the recount should stop. Several of us spent most of that night trying to figure out how to accomplish all of that.
On Tuesday morning, after about two hours of sleep, I drove down to Gary Farmer's office in Fort Lauderdale. We had arranged to meet Steve Sheller at the Palm Beach Courthouse before the 1 p.m. hearing. Steve was going directly to the courthouse that Tuesday morning to find out what was happening with the various judicial assignments and recusals for our hearing. Gary and I decided to meet and draft the petitions and orders seeking court support for the resumption of the manual recount in Palm Beach County. By noon, we had finished all of the new paperwork and raced to the car to drive the twenty or so miles up Interstate 95 to the Palm Beach County Courthouse. During that ride, one of the zaniest moments of my entire time in Florida occurred. Gary and I were trying to reach Steve Sheller by cell phone to let him know about the final shape of the papers so that he could brief the media. We also wanted to hear from him about the latest news concerning recusals, coordination of the lawyers in the other voter suits and possible surprises. Unfortunately, both Gary's and my cell phones were dead. Neither of us had charged the batteries. We resigned ourselves to a fast drive up Interstate 95, hoping to catch up with Steve Sheller before the 1 p.m. hearing.
Gary turned on the South Florida version of Howard Stern, a radio personality named Neil Rogers. At about 12:30 p.m., Neil Rogers announced with irreverent language not worth repeating here, that it was time to find out what was happening with all of this butterfly ballot litigation. Rogers has a shtick of putting the television on during his radio program and talking to it. At 12:30 p.m., he decided to put on Greta Van Susteren for her CNN program and mock her report. It turned out that Greta Van Susteren was interviewing Steve Sheller on her 12:30 p.m. program. For the next fifteen minutes, Gary Farmer and I were laughing, in tears, as Steve Sheller was explaining to Greta what would be happening in court at 1 p.m. while Neil Rogers was dumping on Greta and Steve.
The benefit of this morphed media was that, notwithstanding dead cell phones, Gary and I learned what was happening at Palm Beach County Courthouse, in real time, as Steve was telling it to Greta Van Susteren, and we learned what was happening with the other litigation and our efforts to be sure we had a judge.
Gary and I drove into the parking lot near the courthouse, jumped out of the car and ran up the street, passing Steve Sheller sitting in a chair next to Greta Van Susteren, being interviewed on CNN. We waved to Steve as we went by, and then proceeded to tell all of the other media assembled near the courthouse what we had just learned from Steve's interview with Greta. It was like "Saturday Night Live" and MAD magazine rolled into one!
When I walked into the courthouse for the 1 p.m. hearing, I realized again just how small the world really is. Listening to my co-counsel on Neil Rogers' radio program was one thing; finding out who was representing the Bush campaign in our case was quite another. Our team was at the lead plaintiffs' table. I sat down, opened my briefcase and turned to my right and practically fell off my chair. While Barry Richard was nominally the lead lawyer for the Bush team throughout Florida, he appeared only by telephone in the Palm Beach County litigation. Instead, he had his partner, Mark Bideau, take the lead in the courtroom. Mark Bideau had been a colleague of mine fifteen years earlier at Wolf, Block, Schorr and Solis-Cohen in Philadelphia!
Mark and I looked at each other in astonishment. We both left Wolf Block in the mid-1980s, but our paths led us to adjoining seats in court in Palm Beach in one of the most important litigations in the history of the United States. Mark said to me that he always thought the world was small, but this was ridiculous.
All of the lawyers representing the various interests in the litigation worked together remarkably well. I was immensely proud of our profession since, under very trying circumstances, there was unfailing courtesy and cooperation among the lawyers, both those from the Florida Bar and those who came in from out of town. A great deal of the cooperation, I came to believe, was a result of the excellent and highly professional judges on the Florida bench.
While we sat through a parade of judges recusing themselves, we got to know at least half of the Palm Beach County bench. The judge who finally took the assignment, Judge Jorge LeBarga, not only was impressive, but a pleasure to appear before. While Judge LeBarga ultimately ruled against us on the butterfly case, on that Tuesday, November 14, he accepted our arguments about the importance of permitting the manual recount to go forward, pending the outcome of the battles between the Secretary of the Commonwealth, Katherine Harris, and the Attorney General, Robert Butterworth, each of whom rendered conflicting opinions on the legality of continuing the manual recount.
Our team presented our new request to support the recount. Those requests were carefully drafted to provide that the Palm Beach County Canvassing Board had permission to conduct a recount if they so chose. Judge LeBarga's order permitting the recount was the first judicial order in Florida doing so. Needless to say, that order became national, if not international, news on that Tuesday night. My father got to watch me again on the local television stations explaining the day's events. This time, he flipped among the three Palm Beach stations and caught me talking all three times. When we left the courthouse that day, we really felt we had accomplished something important.
Notwithstanding twenty years of election litigation, I had never heard of chads until I got to Palm Beach. On Wednesday, November 15, we had a judicial crash course on chads. Judge LeBarga held a hearing, the first of several that other courts throughout Florida would hold in the succeeding weeks, on the standard for evaluating a voter's intention when the chad is not punched all the way through on the punch card. For three hours, a variety of lawyers debated the importance of hanging, swinging and dimpled chads. On the morning of November 15, relatively few people fully understood the significance of the debate. Several weeks later, the whole world seemed to be talking about whether or not to count dimpled chads. Judge LeBarga took a Solomonic position and directed the canvassing board to consider any marks on the punch card that clearly showed a voter's intent. He would not make any specific rulings about how to handle the variation of chad perforations.
Judge LeBarga, however, made a second ruling at that hearing that effectively ended our butterfly ballot litigation. He said even if he assumed that the butterfly ballot layout was not legal under Florida election law he was not certain he could remedy that problem. He wanted briefing in twenty-four hours and a hearing on Friday morning, November 17, exploring the question of whether he could order a new vote in Palm Beach County for just the presidential election.
The hearing on November 17 was profound, majestic and frustrating. We were in Gary Farmer's office in Fort Lauderdale late into Thursday night, and we all assembled again very early the next morning. We were joined by Professor Erwin Chemerinsky, a constitutional law professor at the University of Southern California (and a well-known television commentator during the O.J. Simpson trials), and two lawyers from People for the American Way from Washington, D.C. Steve also had asked his talented partners, Bruce Ludwig and George Badey to join us.
We put together, under the circumstances, an excellent and lengthy brief on whether, under the United States Constitution and federal statutes, the founding fathers, and the post-Tilden-Hayes Congress had intended that any votes for the Office of the President of the United States occur on a single day throughout the United States and whether a partial revote because of ballot irregularities would be permissible or timely. Without getting into the fine points, the world eventually saw the questions arising from the intricate interplay between the Constitution, the post-Tilden-Hayes federal statutes, and state implementing legislation, all argued before the Florida Supreme Court and twice before the United States Supreme Court.
We had to address those issues before anyone else in Judge LeBarga's courtroom on the morning of November 17, with two days to research and brief the issues. All parties rose to the occasion, considering the time pressure and the circumstances, and the resulting debate in court was of the highest nature.
Our problem, however, was that, as the argument went on, it became clear which way Judge LeBarga was leaning. At one point, one of the lawyers reminded Judge LeBarga of the many Haitian immigrants and elderly Jewish voters who were going to be disenfranchised permanently if the butterfly ballot was improper but no court could fashion a remedy. Judge LeBarga looked out at the courtroom emotionally and said that if he had to rule that a new vote could not occur in Palm Beach County, it would be the most difficult decision of his professional life. He spoke about how he, as a young boy, had been brought to the United States from Cuba so he could participate in democracy, vote freely for candidates of his choice and have that vote matter. He reminded everyone that he did not ask for this assignment, but that he would be duty bound to put his personal feelings aside and apply the law neutrally and impartially. Even though Judge LeBarga ruled against us at the beginning of the next week, I left his courtroom with pride in our judicial system and a deep and abiding respect for him.
Several weeks later, the Florida Supreme Court affirmed Judge LeBarga's ruling. We also got involved in other unsuccessful voter litigation that could be the subject of another article.
While we ultimately were not successful in our efforts during those post-election weeks in Florida, neither were any of the other lawyers in other pending cases on behalf of the Gore campaign or the Democratic Party. While our Palm Beach litigation was ground zero for a time just after the election, the election battles spread in counties throughout the state, ultimately focusing on the contest litigation before Judge N. Sanders Sauls in Tallahassee in early December.
Our days in Palm Beach County, nevertheless, were important. The challenge to the butterfly ballot was absolutely the right thing to do, given the consequences of that poorly designed ballot layout. The litigation itself focused the media's attention on the post-election procedures and ultimately served as support for the efforts to conduct the manual recounts in Palm Beach and other counties.
In a deeper sense, however, our litigation was in the highest traditions of our democracy. However incomplete the Florida Election Code turned out to be, it provided the principles that organized the debate about the fairness of the election, and the courts provided a respectable and responsible place to examine one of the closest elections we will ever see. Other, less mature governmental systems could not and would not handle such a close election in quite the same manner. We have seen that, unfortunately, in one historical tragedy after another around the world.
I left Florida proud of our legal team, proud of the efforts of so many lawyers and so many judges, but with a bittersweet aftertaste. I was appalled at the efforts of some to malign the courts, particularly the Florida Supreme Court, when they issued opinions that went against the maligners. We must learn from that emotional attack on the court system and fight against it in order to preserve the independence of the judiciary for controversies just like the one we went through in Florida.
We also had a somewhat empty feeling because, having been on the front line and watching the manual recounts, talking to the experts on the scene, seeing the consequences of the butterfly ballot in disenfranchising so many voters, those on our team believed deeply that Gore almost certainly won the vote in Florida. But a full, final and completely accurate count simply was not possible given the time frame and the ambiguities of the Florida Election Code.
Notwithstanding that aftertaste, however, I know that Steve Sheller and I will never forget the remarkable way our country accepted the final rulings of the United States Supreme Court, coalesced behind our new President and put the emotion, debates and intensity of those amazing weeks in Florida behind. That public response, more than anything, demonstrates just how great a system we really have.