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June 1, 2013
Wells publishes his account of Bush v. Gore

By Jan Pudlow
Senior Editor

Much has been written about the contested 2000 presidential election on the brink of a constitutional crisis, but now we hear from Charley Wells, the chief justice when the eyes of the world focused on the Florida Supreme Court.

Charley Wells In his new book, Inside Bush v. Gore, Wells spends 136 pages reliving those tumultuous 36 days of protested and contested ballots ­— butterfly, hanging-chad, and undervoted — conflicting election statutes, and political posturing in a razor-thin margin of 537 votes for George W. Bush. He had the unique vantage point of a chief justice in uncharted waters in the perfect political and legal storm.

We all know how this story ends.

But Wells, now an attorney at GrayRobinson in Orlando, provides a fresh glimpse of what went on inside the tense conference room among the divided justices — and inside Wells’ own mind as he struggled to make legal sense of the fiasco and keep the judicial process moving.

In front of the courthouse, right below the chief justice’s conference room, Wells could see carnival acts, including a pet skunk doing tricks to entertain the crowd, and a media tent city from 50 news organizations. When court spokesman Craig Waters appeared out the front door with updates, as Wells describes, it was “like the cuckoo coming out of the clock.”

Inside the courthouse, everyone felt tremendous pressure of the real clock ticking toward the deadline of December 12, 2000, when both sides agreed the controversy had to be settled so that Florida’s voters would not lose control over the state’s electoral votes when the Electoral College met to vote for president on December 18.

This deadline could not have been weightier.

“In my view, lengthy uncertainty in this matter would be fraught with dangerous perils not only for Florida, but for the nation and the world,” Wells wrote.

After Wells retired from the court in March 2009, his decision to write this book was “cemented.”

“I had a particular perspective from the role that I was in at the time, so I would try to capture that,” Wells told the News.

Inside Bush v. Gore “I also agree with those commentators who say when you have the privilege of being part of an historical event — and in American history, the 2000 Florida election is an historical event — that you have some obligation to tell it. I was trying to give a feeling of what was happening and who the players were, as I saw it.”

While Wells analyzes conflicting statutes, ancient case law, judicial philosophies, and court procedure, he has heard from “a number of nonlawyers who tell me they appreciated me trying to write it in nontechnical terms. I also hope it will be for law students and lawyers, so they can see how we worked on the case, and how we deliberated on the case, and how we processed it.”

Wells refrained from assessing the discussions and decisions of his fellow justices because it would violate the ethics of his position on the court. But he was frank in assessing the personalities and politics of his colleagues, naming who he got along with and who he didn’t.

“I felt compelled to be honest about my feelings,” Wells told the News. “There are seven members of the court, and every one of us has different personalities, and the inner workings of how we worked as a body had some bearing on what we thought the others were doing, philosophically.”

In his book, Wells noted that five of the justices were “philosophically liberal,” all seven justices had been appointed by Democratic governors, and everyone except Major Harding was a registered Democrat.

“Gore was the more liberal of the two candidates; therefore, it was my conclusion at the time that the leanings of the majority of the justices were in favor of Gore. Yet at this stage of the controversy, and actually through the end of the protest phase, I did not perceive that the decisions made by our court were the result of predisposed leanings in favor of Gore,” Wells wrote.

But the partisan politics of both Secretary of State Katherine Harris and Attorney General Bob Butterworth worked against them, he noted.

“Secretary of State Katherine Harris had been actively involved in Bush’s campaign, and Attorney General Bob Butterworth had been affiliated with the Gore campaign,” Wells wrote. “This made their objectivity suspect, and I did not believe the usual deferential weights should be given to their legal opinions regarding the election statutes . . . . Here the legal opinions of these top officials were in conflict and their opinions favored the candidate that each had backed in the election.”

After oral argument on November 20, Wells wrote, “my impression from the comments by the other justices, both from their questions during the oral arguments and our two hours of post-oral argument discussions, was that they were for continuing the counting. How long we should allow the counting to continue would be the issue that could divide us. . . . I knew, however, that the lack of standards for manual counting of ballots was a crucial problem, and would be a recurring matter of contention.”

While Wells struggled to shape his conclusion within his fundamental philosophy that “the court should adhere as closely as it reasonably could to what the Legislature had written in the statutes,” he could not see a way to do so because the statutes were a mess, so were the punch-card ballots, and there were no clear standards on how to count them.

Several justices had strong views that the court should state that the “intent of the voter” was the Florida standard, but because that would boil down to the subjective opinion of the person doing the manual counting, they decided not to set standards.

“The drafting of the opinion was unique in my experience, with the justices all sitting around the conference table preparing it,” Wells wrote. “For more than six hours, we collectively worked through the opinion word by word.”

Wells describes that he was “generally pleased with the decision and the opinion . . . . We implemented a long-accepted principle in Florida election law that the rights of voters were to take precedence and be safeguarded, and we determined a date [5 p.m., November 26] that was fair to those voters whose votes had not been counted, while protecting the statutory right to further contest the election within a time period that would preserve Florida’s electoral votes.”

“Frankly, I was somewhat taken aback by the vehemence with which the Bush supporters were attacking our court and the opinion. But that was the way it was,” Wells wrote.

During the Thanksgiving holiday, Wells said he was “shocked” when he got word that the United States Supreme Court had granted Bush’s petition to review the Florida Supreme Court’s November 21 decision, and had set oral argument for December 1.

Why would the high court get involved at this point, he wondered, when there was a strong likelihood Bush would be certified the winner on Sunday at 5 p.m. and the matter would be moot?

“Moreover, there was the entire contest phase to go before any resolution of the controversy would be final,” Wells wrote. “I added the Supreme Court to the list of those about whom I wondered whether there was an understanding of Florida’s election laws.”

Wells noted in an interview with the News that former Supreme Court Justice Sandra Day O’Connor recently told the Chicago Tribune editorial board that she had doubts it was a good idea for the high court to step in.

“Maybe the court should have said, ‘We’re not going to take it. Goodbye,’” O’Connor is quoted as saying.

In his book, Wells describes the frustrations of being a dissenter, in the aftermath of the court’s second December 8 decision. He was notified that a majority of Florida Supreme Court justices — Harry Lee Anstead, Barbara Pariente, Fred Lewis, and Peggy Quince —had agreed to reverse Second Circuit Judge Sanders Sauls’ decision not to count the contested ballots, and to hold that the Circuit Court of Leon County had authority to order all counties that had not conducted a manual recount of undervotes (ballots that did not record a vote for president) to do so.

“I concluded that after all the counting was done, the margin of error was always going to be greater than the margin of victory,” Wells wrote.

“I felt in all my being that what the majority was about to do was wrong. I wanted badly to find some way to find a fourth vote to obtain a different majority, affirm Judge Sauls, and end the case. Yet I knew that I was powerless to do this.

“For the first time, in the days since the election, I was depressed, shaken, and actually fearful about what was to happen, and how the controversy would move forward. I wanted to go out to the steps of the Supreme Court building where Craig Waters reported the court’s actions and shout my fears, frustrations, and concerns. But, of course, I knew I could not do that.

“My only course was to explain my deep-seated feelings as plainly as I could in a dissenting opinion. My hope had to be that I could explain the situation with sufficient clarity and alarm that the United States Supreme Court would again come into the case. I was no by means certain that would happen.”

On December 12, Wells and his wife, Linda, went to a traveling Broadway show in Tallahassee, but left at intermission.

“All of my thoughts were consumed by when the Supreme Court would rule,” Wells wrote.

Shortly after arriving home, Wells heard a television report that the Supreme Court had reached a decision.

When the network reporter first got the decision wrong and announced the case would be remanded to Florida, Wells wrote, “My heart pounded. Linda shouted: ‘Why would they do that?’

“Like Linda, I had no idea what we could do upon remand. Blessedly, a few minutes later, the reporter corrected the remand report, and said that, by a vote of 5-4, the U.S. Supreme Court had reversed our court’s majority opinion.”

The next day, shortly after 11 a.m., Gore announced he was going to concede.

“There was basically silence in the hallways of our court,” Wells wrote. “I think that this evidenced the divisions that were apparent in the court’s December 8 opinion, and also evidence of relief that the controversy was over in our court.”

As Wells has often remarked, he was proud that “the blocks of trucks parked for those 36 days across from our court had television transmitters on their roofs, not machine guns.”

While strong feelings remain about what happened or should have happened, Wells concludes: “The ultimate role of courts is to resolve disputes. That is what the courts did accomplish in Bush v. Gore. . . .

“I wrote in my dissent — and continue to believe as I write this book — that had the majority’s decision not been overturned by the United States Supreme Court, a constitutional crisis not previously seen in our nation’s history would have resulted.”

(Inside Bush v. Gore may be purchased wherever books are sold or directly from University Press of Florida at www.upf.com.)

[Revised: 11-07-2014]