Attorney Ted Olson

DATE October 12, 2004 ACCOUNT NUMBER N/A
TIME 12:00 Noon-1:00 PM AUDIENCE N/A
NETWORK NPR
PROGRAM Fresh Air

Interview: Attorney David Boies discusses election and business
legalities
TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

With Kerry and Bush so close in the polls, many people are wondering if this
year's election will be decided in the courts, like the election of 2000. A
little later, we'll hear from Ted Olson who represented the Bush-Cheney ticket
in the Supreme Court.

My first guest, David Boies, represented the Gore-Lieberman ticket in the
Florida courts and the Supreme Court. In his new book, "Courting Justice,"
Boies writes about Bush v. Gore as well as other famous cases he's taken on.
He helped defend IBM in its antitrust fight against the government and
represented the Justice Department in its antitrust case against Microsoft.
He unsuccessfully defended Napster against the Recording Industry of America
which accused Napster of facilitating copyright infringements. Boies' clients
have included Garry Shandling, Calvin Klein and Don Imus. I asked Boies if
he's concerned that there will be major tabulation errors or foul play in next
month's presidential election.

Mr. DAVID BOIES (Attorney): I think there are three kinds of things to be
concerned about. First, the new electronic voting machines that are present
in some counties for the first time that do not have any paper trail at all
and, hence, cannot be checked I think is a very troubling development.

Second, there are attempts to take off the voter rolls people who have
registered because they have not met some technical requirement of checking a
particular box. I mean, for example, there are a lot of new voter registrants
who specifically are asked whether they are a citizen and they affirm that
they are, and then there's another box that may not be checked. And this is
the kind of technical issue that we confronted last time, although the
situation was reversed. There were Republican ballots where the voter had not
filled in a particular voter registration identification number that they were
supposed to, and the Florida courts ruled that those ballots had to be
counted. Now we have a situation in which the Republicans are taking exactly
the opposite view and attempting to exclude a large number of new registrants
from Democratic and minority districts that would prevent them from voting.

A third problem that I think is of concern is what we saw in the last election
which were incidents--and they were not widespread but there were more than
would justify calling them isolated incidents--where people were actually made
more difficult to get to the voting polls, where you had roadblocks, where you
had a diversion of traffic, predominantly in African-American districts, that
raise very troubling issues.

GROSS: Is there a precedent set by the Gore v. Bush decision that you
think--or by any of the court decisions along the way that you think might end
up applying to this election?

Mr. BOIES: I think that certainly the precedent that was established last
year in Florida where the Republican votes were held by the courts to be
counted even though they had failed to meet certain technical requirements
certainly ought to apply to this election as well. You can't change the rules
election by election. You can't have one rule for Republican ballots and
another rule for Democratic ballots. So I would hope that the courts would
quickly affirm that these new registrants will be entitled to have their votes
counted, so I think that precedent is an important one.

Now whether or not the actual Bush v. Gore decision by the United States
Supreme Court will come into play, I think it's hard to tell. I think that if
you read the opinion the way you would read a normal judicial opinion and
applied it, what you would find is that the prospect of having materially
different kinds of voting machines in different counties in Florida such that
your chance of actually having your vote accurately counted varies county by
county depending on the kind of voting machine that is in place, you would
find that to be a violation of equal protection.

Now I don't think that that's what the courts are going to hold because I
think, in general, the courts are going to put Bush v. Gore on the shelf for a
while. But I think that if you did apply that precedent, the fact that you
have in Florida for this election different kinds of voting machines in
different counties and those different kinds of voting machines materially
affect the chances of somebody's vote being accurately counted would be a
problem.

GROSS: What do you mean when you say that the Bush v. Gore decision is likely
to be put on the shelf for a while?

Mr. BOIES: I think the equal protection argument that the five-justice
majority opinion articulated was something--as I discuss in my book, was
contrary to the principles that had previously been announced, particularly by
the justices that were in the majority. And I think it probably applies a
principle that they will not be prepared to apply in the future, which is one
of the reasons that I'm as critical of that opinion as I am.

In a really remarkable article that is in October's Vanity Fair, David
Margolick, who's gone and interviewed Supreme Court law clerks and done a
lot of other reporting, talks about the extent to which even some of the
justices that joined in that majority opinion, particularly Justice Scalia,
disparages in very strong terms, probably too strong for the FCC to allow me
to use on radio, the majority opinion, the majority opinion that he himself
joined in. So I think that there is a general recognition that that opinion
has a lot of problems with it, and probably would not be applied at least in
the near term.

One of the good things about Supreme Court opinions--or bad thing about
Supreme Court opinions is that they can sort of sit there for a long time and
then be resurrected. And some of us who believe that the equal protection
clause should be more broadly applied, I think, hope that future courts will
take that precedent and apply it for good purposes.

GROSS: Let me ask you to, you know, explain the equal protection argument
that the Supreme Court used.

Mr. BOIES: What the Supreme Court majority opinion--the five-four majority
opinion in Bush v. Gore--said was that because local canvassing boards in
Florida are set up on a county-by-county basis and they were looking at the
ballots--separate county canvassing boards were looking at the ballots for
their respective counties--and they could interpret a ballot's intent
differently that that meant that voters in one county had a greater chance of
having their vote counted than voters in another county.

For example, the canvassing board in one county might decide that they were
not going to count a ballot unless the punch card was punched cleanly and
completely all the way through. The canvassing board in another county might
look at a ballot that hadn't been punched all the way through, but because of
the pattern of indentations, they would believe that they could determine that
that was the voter's intent. And under Florida law for more than 80 years,
the Florida courts and the Florida Legislature had established a principle
that said it doesn't make any difference whether the voter actually complies
with the technical requirements of voting as long as you can determine the
voter's intent. That's never been viewed as an equal protection problem by
the majority of the Supreme Court, but what they did here is say because
voters in one county may have a vote counted that would not have been counted
in another county, that's a violation of equal protection.

GROSS: What was your interpretation of equal protection when different
counties are using different types of ballots in the first place?

Mr. BOIES: Well, I think that is a very good question because one of the
things that we said to the Supreme Court was that the chances of having your
vote counted because your county is using a different voting machine is far
more likely to be affected than your chance of voting being affected by the
county canvassing board's standard. There was undeniable statistical evidence
that demonstrated that where you had OCR, or Optical Character Recognition
machines, your chances of having your vote counted were materially better than
counties that used the old punch card machine. So if there was an equal
protection argument of the type that the majority opinion in the Supreme Court
adopted, that would have invalidated the entire Florida election. And, of
course, if you invalidated the entire Florida election, Al Gore would have had
a majority of both the electoral and the popular vote.

GROSS: My guest is David Boies. His new memoir is called "Courting Justice."
We'll talk more after a break.

This is FRESH AIR.

(Soundbite of music)

GROSS: If you're just joining us, my guest is David Boies. And he has a new
book called "Courting Justice: From New York Yankees v. Major League Baseball
to Bush v. Gore." And he is a very famous lawyer who, among other things,
represented Gore in the Bush v. Gore recount case.

Do you think that both Democrats and Republicans are preparing now for a
recount or, you know, for a contest to the election since the race is again so
tight?

Mr. BOIES: I think they are. And I know that both Republican lawyers and
Democratic lawyers are preparing to challenge various aspects of the voting.
I think that's inevitable in a case where you're going to have an election
that looks like it's going to be as close this time as it was last time.

GROSS: Are you involved?

Mr. BOIES: My firm is and I've done some work on it. And if it gets to the
same type of controversy, I will be again.

GROSS: What do you think the odds are that it will get to that level of
controversy?

Mr. BOIES: I would hope it won't. I would hope that we've learned a lesson
from last time. I think the electoral process was diminished; I think the
United States Supreme Court's aura was diminished; I think the liability and
stability of our democracy was diminished by what happened last time. I think
that one of the critical hallmarks of our society has always been that we
wanted people to vote, we wanted people to be able to vote, and we wanted to
have all the votes counted. And I think when you depart from that for a
particular partisan purpose in a particular election, you undermine something
far more important that the results of any particular election. You undermine
the real stability and respect that we have and the world has for our
democratic institutions.

GROSS: What are the parts of the recount process and the legal campaigns on
both sides that you thought were most partisan?

Mr. BOIES: I think the things that were most partisan in terms of the last
election were, first, the attempt to prevent Florida counties from doing what
they have done in every prior election, which is to look at ballots and make a
determination of the voter's intent. The Florida Supreme Court repeatedly
ruled in the 2000 election and had repeatedly ruled in other elections for
over 80 years that in a close election, the right way to proceed is for the
local canvassing board to look at the ballots themselves and make a
determination of the voter's intent. And that's what was being done when the
United States Supreme Court on Saturday, December 9th, ruled that that was not
going to go forward and ordered Florida to stop counting the votes.

And I think that that was an unfortunate injection of partisanship into
something that has generally, in Florida and elsewhere, been relatively free
from partisanship. There have always been problems with voting, isolated
problems with voting. There were famous problems in Texas in Cooke County and
Louisiana that a lot of people are familiar with, but those were always things
that were done surreptitiously. They were wrong, they were unfortunate, they
sometimes affected elections, but they were the kind of incidents that
everybody on both sides agreed shouldn't happen.

What was different about the last election was that you didn't have people
skulking around in the dead of night stuffing a ballot box. You had official
parts of our government--indeed, the part of our government that I think we
all expect to be most neutral--intervening and ordering the state of Florida
not to continue to count ballots that they were in the middle of counting.

GROSS: What was your favorite part of the dissenting opinions from the
Supreme Court?

Mr. BOIES: There were a lot of them, a lot of favorite parts. I thought
that Justice Stevens' dissent was one of the most elegant opinions, majority
or dissent, that I've read. I think that what Justice Ginsburg wrote as well
as Justices Souter and Breyer were also very persuasive.

I think that, for example, one of the points that Justice Ginsburg makes very
powerfully is that the majority justices are justices that have repeatedly
made deference to state courts an article of faith. They have justified all
sorts of revisions of the law, all sorts of retractions of the exercise of
federal power, on the grounds that the Supreme Court must defer to state
courts, even when the state courts are wrong. And yet here were these same
majority justices in an extraordinary intervention into an interpretation of
state law using the equal protection clause to invalidate what the Florida
Supreme Court had done not only in this election but in elections involving
both Republican and Democratic winners over 80 years.

I think that the point that Justice Stevens makes in his dissent in which he
points out how this opinion undercuts the respect that the public has for the
court system, the credit that I think people give the courts as being--and
particularly a supreme court--as being above partisan politics. It doesn't
mean that they don't have strong views and they don't intervene in what are
essentially sometimes political interests and political issues, but it has
meant that they don't do so in a partisan way. They don't try to put a
judicial thumb on the electoral scale.

And I think that what Justice Stevens was saying is that when the court did
that in this instance, the court undercut some of the moral authority that is
the basis of its power. It is not an elected institution. Remarkably, in our
most democratic society, we give the most final complete power to our least
democratic institution. We do so with the faith they will not use that power
for partisan purposes. And when you have a decision like Bush v. Gore, I
think you being to undercut that faith and, hence, undercut the court's power.

GROSS: I'm sure a lot of people have been thinking, as they listen to us
talk about the Florida recount, you know, `Doesn't he ever give up? You know,
that was over, that was settled, you know, four years ago.' So let me ask you
about that. What do you think is--do you think it's important to reconsider
that case and reconsider the opinion? Or do you think it's important to put
that behind us and just move on?

Mr. BOIES: I think it is certainly important to put the results of that
election behind us and move on, and that's one of the points that I make in
the book, which is that we must have--if we're going to have a society that
operates under the rule of law, we have to have a way of reaching these
decisions and we have to have a respect for that decision-making mechanism
that is sufficient, that allows us to accept it and to move on.

One of the things that I said in 2000 and 2001 was that we needed to accept
the Supreme Court's decision. Before they rendered their decision, I said if
they intervened and made a decision, that would be final. After they rendered
their decision, I said we have to accept that decision as resolving this
electoral controversy.

I distinguish between accepting that decision and moving on and having the
country move on from looking at the process by which that decision was made
and the merits of that decision because I think it's important to focus on
that in terms of making sure that, if it was a wrong decision, that error is
not repeated.

If you go to the United States Supreme Court building in Washington, one of
the things you see--and this is a display put on by the United States Supreme
Court itself. You see a discussion of some of the key opinions that the
Supreme Court has issued. And very, very prominently displayed are some of
the worst decisions that the Supreme Court has ever made: the Dred Scott
decision, where the United States Supreme Court upheld slavery and, in fact,
ruled that even the free states could not prevent somebody from bringing a
slave, another human being, into their borders and continuing to have a
property interest in that human being; Plessy against Ferguson in which the
Supreme Court upheld segregation, upheld apartheid in this country. Those
were, I think, generally recognized as among the worst decisions of the United
States Supreme Court and, yet, here is the Supreme Court picking those
decisions as some of the most important ones to display in the lobby of the
Supreme Court. And I think the court does that for the reason of trying to
make sure that those kinds of decisions don't reappear and are not repeated.

And I think that if you have a case like Bush v. Gore that, in a number of
respects, I think is wrong, I think it is important that we in the bar, the
courts themselves, the public, everyone who has an interest in the justice
system look at those decisions on the merits in a reflective and hopefully
respectful way. And I think that's good for our democracy, and I think it's
ultimately good for the court itself.

GROSS: David Boies. His new memoir is called "Courting Justice." He'll be
back in the second half of the show.

I'm Terry Gross, and this is FRESH AIR.

(Announcements)

GROSS: Coming up, David Boies on how he handled the gotcha moment in the
antitrust suit against Microsoft. Then we'll hear from Boies' adversary and
friend Ted Olson. Olson represented the Bush-Cheney ticket in the Supreme
Court four years ago.

(Soundbite of music)

GROSS: This is FRESH AIR. I'm Terry Gross back with David Boies. In his new
memoir, "Courting Justice," Boies writes about some of the famous cases he's
taken on. Four years ago during the Florida recount, he represented the
Gore-Lieberman ticket in the Florida courts and the US Supreme Court. He's
represented CBS against General Westmoreland's charges of libel, defended
Napster against the recording industry, and represented the Justice Department
in its antitrust case against Microsoft.

Lately, you've been representing some corporations where executives have been
accused of messing with the books or taking advantage, you know, of the
company. I'm thinking of Tyco and Adelphia.

Mr. BOIES: Yes.

GROSS: What are some of the differences between doing corporate work like
that and doing a political case like Bush v. Gore? You know, and a lot of
people are so angry at these corporations now.

Mr. BOIES: Yes. And well they should be, because the corporate misconduct
that has existed in Tyco and Adelphia and WorldCom and MCI and Enron and other
companies like that has, I think, undermined people's confidence in our
corporate system and, to some extent, in our free market system much like, I
think, Bush v. Gore risked undermining some of the respect that we have for
the justice system. In both Tyco and Adelphia, I and my firm were retained by
the board of directors when they became suspicious of conduct that was going
on, and we went through a process of investigating it, and ultimately
recommending and participating in the replacement and firing of the top
executives in each of those companies. And we have then gone on to sue the
former executives for the misconduct and for the looting that they did of the
corporations that they were running.

One of the things that I have been very proud of is the fact that in the case
of both Tyco and Adelphia, the board was prepared to stand up and bring in
people not beholden to the top executives and to face up to their
responsibilities of, when it became necessary, actually removing the people
that they had hired. The companies have gone after wrongdoers and, for
example, in the case of Tyco, by restoring investor confidence in the company,
the company avoided bankruptcy and the stock very substantially recovered
under new management. So it shows that it's possible to take a situation that
is very troubling because you've had breaches of fiduciary duty and people
acting in a wrong, irresponsible way, and still protect the shareholders who,
after all, are the people who are supposed to be protected by management and
by the board.

GROSS: You have been doing antitrust work for many years--I mean, from the
start...

Mr. BOIES: Yes.

GROSS: ...of your career on, and one of your more celebrated cases was
representing the US against Microsoft in the antitrust suit, and there was one
particularly dramatic moment in that in which you brought up that videotape
that Microsoft had entered as evidence was not a real-time demonstration, but
it was actually a series of spliced together moments.

Mr. BOIES: Yes.

GROSS: And would you describe the significance of this videotape and how
your team figured out that it wasn't a real-time demonstration?

Mr. BOIES: Yes. It was a videotape that Microsoft had introduced at trial,
and it was a great videotape. It was a very persuasive videotape. It
purported to show exactly what Microsoft had been arguing, which is that if
you had the kind of remedy that the government was arguing for, it would
diminish the performance of computers. And that went right to the heart of
Microsoft's argument, its defense, which is that its products worked well
because they bundled them altogether, and if you unbundle them, the
performance would be degraded. And we had a hard time--in fact, we had an
impossible time replicating that result on the computers that we had.

On the other hand, it was very difficult to prove, contrary to what they said
in court, that this was a single computer operating under a single set of
programs, because when somebody gets on the stand and they've got a videotape
and it purports to show something and they say it shows exactly what they say
it's showing, there's not a lot that you can often do. What we had here,
however, were a very impressive group of people helping, from Princeton and
elsewhere. And what they did was they printed out screen shots, sort of every
second, and then compared them, and you can pick up that way things that the
naked eye may not see. And one of the things that we discovered was that you
could tell by the appearance, disappearance and reappearance of program icons,
that it could not be the same computer. And so we were able to demonstrate
that on cross-examination. One of the things that...

GROSS: So when you...

Mr. BOIES: Go ahead.

GROSS: ...knew that you were going to challenge this videotape on
cross-examination, this is a real `gotcha' moment. This is like a real
dramatic moment. How did you figure out how you wanted to play it?

Mr. BOIES: Well, what we did was we played the videotape all the way through.
It was only four and a half minutes, this particular segment, and got the
witness to reaffirm that this was a single computer operating under a single
computer program, that they'd not spliced anything together. And then we
played about 90 seconds and froze it, and we had an enormous screen in the
courtroom so everybody in the courtroom could see broadcast onto this screen
what the computer screen looked like.

And in the left-hand column, there was a list of the programs that were
running, the program icons. And I got the witness to identify those, and then
I played it another minute or so, froze it. And one of those icons had
disappeared. And that was a very dramatic moment, because as the witness had
to admit, that could not have happened. Program just don't appear or
disappear. And he could not begin to explain what had happened, or how that
could have happened. I then played it for another minute or so and then froze
it again. And this time, every eye in the courtroom glanced up at that
screen, and every eye in the courtroom saw that the icon had reappeared. And
the courtroom was completely silent. And you could hear Microsoft lawyer
whisper to his table, `Oh,'--expletive deleted. And when that happened,
everyone in the court felt Microsoft's credibility, as well as the witness's
credibility, draining away.

GROSS: What did you want your voice to convey in the way that you were asking
questions or making you demonstratory statements to convey?

Mr. BOIES: Well, in the beginning, what you want to convey is how clear the
videotape is of what it purports to show because you want to set that up so
that when you demolish it, it's clear what you've demolished. And then, when
you show the first disappearance of the program, you want your voice and your
manners to express your incredulity, the impossibility of this, your
wonderment, almost, as what possibly could be happening. And you want to be
saying to the witness, `Well, can you give me any explanation for this? Do
you have any possible explanation for how this could have happened?' And then
when you have proven, when it's reappeared, that it's been spliced, not once,
but repeatedly, you want to convey your concern, your outrage, the problems
with that kind of conduct.

GROSS: Do you think the person on the stand knew what was happening? Do you
think that they knew that the tape was not a continuous sequence?

Mr. BOIES: I have a hard time believing that he did just because he seems
like such a decent guy. How it happened--I really don't have an explanation
to this day. Somebody obviously had to know because somebody spliced it. And
to some extent, even if he didn't know, the witness bears a certain
culpability because he got on the witness stand to sponsor it, and he
purported to have assured himself that it was a single computer. But how it
happened, who was responsible, who did it is something that I don't know and
probably will never know.

GROSS: Now another thing that has been written about you a lot and that you
write about in your book, "Courting Justice," is that you're dyslexic. And
back...

Mr. BOIES: Yeah.

GROSS: ...your student days, you had a lot of trouble. You know, reading is
difficult, so you read selectively. You try to read the most important stuff.
So what are some of the ways you've gotten around that over the years?

Mr. BOIES: Well, I think the ways that you indicate are basically the ways.
You read selectively.

GROSS: That's hard to do, 'cause you don't really know what's going to be
important sometimes.

Mr. BOIES: That's true. That's true. But what you have to do is you have to
figure out what you think is going to be important. And one of the things
that you do is you develop a certain amount of judgment when you have to be
making those selections all the time as to what's important. You also develop
techniques. Like I will skim pretty fast until I come to something that looks
like it may be important, and then I'll slow down and laboriously read it.
And part of it is learning how to absorb information in ways other than
reading.

GROSS: Like what?

Mr. BOIES: By talking to people, by listening. I'm a very good listener.
That helps a great deal in trials because I really remember what people say,
and I remember not only the substance of what they're saying, I remember the
words. And that's part of what you develop, part of one of the techniques you
develop in trying to deal with difficulty in reading.

GROSS: So...

Mr. BOIES: I learned, for example...

GROSS: Yeah.

Mr. BOIES: ...in school mostly by listening to lecturers or participating in
class as opposed to reading the books.

GROSS: So when you're working on a case, do you have your associates read a
lot of stuff and tell you in summary what they've read? Is it easier for you
to absorb it that way?

Mr. BOIES: Yes, I do do that. I also read myself a lot of stuff. It just
takes me a long time.

GROSS: So you have a good memory.

Mr. BOIES: I have a good memory. I have a good memory. I do not have as
good a memory as people sometimes say, but I do have a pretty good memory.

GROSS: David Boies, thank you so much for talking with us.

Mr. BOIES: Thank you.

GROSS: David Boies' new memoir is called "Courting Justice." Coming up,
Boies' friend and legal adversary Ted Olson. Olson represented the
Bush-Cheney ticket in the Supreme Court Florida recount case.

This is FRESH AIR.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Interview: Ted Olson discusses the 2000 Bush vs. Gore US Supreme
Court case
TERRY GROSS, host:

We just heard from David Boies, who represented the Gore-Lieberman ticket in
the Florida courts and the Supreme Court during the Florida recount. Ted
Olson represented the Bush-Cheney ticket in the Supreme Court. After Bush
became president, Olson was appointed solicitor general. In July, he stepped
down and returned to private practice. I spoke with Ted Olson earlier today.

Do you think that this presidential election will likely be contested in the
way that the 2000 election was? Do you think it will be so close that it will
be contested?

Mr. TED OLSON: Well, I don't know how close it's going to be, but all the
polls say it's going to be close, and the experts are all saying that, so I
suppose I have to defer to that. And to the extent that it does turn out to
be as close or nearly as close as the 2000 election, it would not surprise me
at all to see some sort of litigation in the states where the outcome is very
close.

GROSS: Would you be involved again?

Mr. OLSON: Well, that would depend upon whether my clients from the year 2000
wanted me to do it again. I'm standing by, and I'm ready to go.

GROSS: I know that--I believe that the Republicans are already preparing for
the possibility of such a contested election. Are you in on the planning for
that?

Mr. OLSON: I am standing by. I'm not involved in any planning. From what I
have read and what I have heard, both sides are making sure that there are
lawyers available to them throughout the country just in case.

GROSS: If there is a contested election again, what do you think are the
precedents from 2000 that could be applied to 2004?

Mr. OLSON: Well, the one that everybody thinks about are the two Bush vs.
Gore Supreme Court decisions. And those two decisions taken together stand
for the proposition that there are federal, constitutional and statutory
requirements that deal with presidential elections. And the provisions in the
Constitution and in the federal statute must be complied with and that, if
necessary, federal courts will ensure that there is compliance with federal
law. That is both with respect to how members of the Electoral College from a
particular state are selected and with respect to the manner in which the
ballots are counted so that people in different places won't be treated in a
substantially arbitrarily dissimilar fashion.

GROSS: The US Supreme Court stopped the Florida recount in process, and then
the case went to the Supreme Court. Do you think it's likely that if there
are individual states in which the election is contested that the Supreme
Court would intervene?

Mr. OLSON: If the recount is being conducted in an unconstitutional fashion,
then the Supreme Court might. It's important to remember that in the Florida
situation in the year 2000, the first time that the United States Supreme
Court intervened, the court unanimously, 9-to-0, vacated a Florida Supreme
Court decision that set out a recount process that did not seem to comply with
the federal statute. And the second time around, seven of the nine justices
felt that the equal protection clause requirements of equal treatment were
being violated. By then, it was December 12, which in the calendar year 2000
was the last date for compliance with certain federal requirements as to the
counting of ballots. So while the Supreme Court stopped the recounting at
that point, it did so because it perceived the process as being done in an
unconstitutional fashion and that the deadline was up to comply with the
Constitution to count the votes.

GROSS: Now my understanding of the equal protection argument that the Supreme
Court used and that you argued in court was that, for instance, with the
hanging chads and stuff, that individual counties, in fact, individual people
might interpret each of those votes differently, and that therefore, each
voter wouldn't have equal protection, because somebody in one county might
interpret a ballot has having enough light shining through the chad to be
counted as a vote, and somebody in another county or in the next seat might
not count it the same way. On the other hand, the different counties had
different voting systems. Some of them had, you know, the system that led to
the hanging chads. Some of them had electronic votes. The absentee vote was
completely different. Then there was the butterfly ballot. So, you know,
some people have made the argument that if you're going to use the equal
protection argument, then all of Florida violates equal protection since there
were so many different voting systems that voters weren't treated equally.

Mr. OLSON: Well, the Supreme Court dealt with that, actually, in its opinion
in the 2000 case of Bush vs. Gore. It said that simply because there are
different types of ballots or different methods of counting the ballots in
different areas of, in this case, Florida, does not violate the equal
protection clause. What the court found objectionable was an arbitrary and
capricious manner of counting the votes differently in different counties.
Remember, the rules were being changed sort of hourly in various different
areas of the Florida system, and so that there was this massive unfairness, at
least as the Supreme Court saw it, with respect to the changing of the rules
and arbitrary and capricious different standards that were being applied to
the recount process. It was not simply that there are different types of
ballots in different areas, which there always have been and probably always
will be.

GROSS: My guest is Ted Olson. He represented the Bush-Cheney ticket four
years ago in the Supreme Court. We'll talk more after a break.

This is FRESH AIR.

(Soundbite of music)

GROSS: My guest is Ted Olson. He represented the Bush-Cheney ticket when the
Florida recount case was heard in the Supreme Court four years ago.

The Republicans are often opposed to federal intervention into state issues.
Do you think that the issue of the Florida recount should have actually gone
to the Supreme Court?

Mr. OLSON: Well, it wasn't a state issue. It was a matter of the
presidential election, which is a federal issue. The Supreme Court had said
several times before, as recently as 1983, that in the context of a
presidential election, federal constitutional and statutory standards must be
complied with in individual states, because the votes in individual states
affect the election throughout the United States for the president, the
officer of the United States elected by all of the people.

GROSS: Many Republicans are against what they describe as activist judges.
And I'm wondering if you think this was an activist judicial decision to
actually intervene like this and decide the election.

Mr. OLSON: I think that what the court was doing was not an activist or--I
hate that label, because people use the word `activist' to describe whatever
they don't like. Remember, the Supreme Court unanimously, nine to zero,
reversed the first Florida Supreme Court decision, and then seven of the nine
justices felt that the second Florida Supreme Court decision imposed an
unconstitutional process. So I think that what was concerning to Republicans
and to the candidates that I represented was that the Florida Supreme Court
had twice violated the Constitution in forcing a recount that didn't comply
with federal constitutional and statutory standards, that if there was any
activism at all, it was that that level. And what the United States Supreme
Court did was to correct the erroneous process that had been put in play by the
Florida Supreme Court.

GROSS: Do you think that the US Supreme Court's decision was a partisan
decision?

Mr. OLSON: No. I think it was a fair, honest interpretation of the
Constitution of the United States, and I say so in part because I believe it,
but also because nine justices rejected the Florida effort the first time, and
seven of the nine found that there were constitutional problems the second
time around.

GROSS: Now our listeners may be surprised to hear that you and David Boies
are friends. You know, he says that in his book, and I think you agree with
that.

Mr. OLSON: I do. I have a great respect and affection for David Boies. I
think he's an absolutely brilliant lawyer. I hardly can wait to read his
book, you know. And he's just such a remarkable person, he's capable of doing
so much. He is someone that's interesting to talk to on every different
level. He has done so many different interesting things, and he's such an
amiable person. He's a hard-charging, competitive person. There's no doubt
about that. But he does it with poise and with class, and I admire him a
great deal.

GROSS: Does the US Supreme Court decision from 2000 look any different to you
now four years later as we face a new presidential election?

Mr. OLSON: No, it does not, for the reason that what was happening down in
Florida in our opinion, in my opinion, was a process of taking away the
statutory requirements for counting votes that had been enacted by the
Legislature and modifying those systems after the election. And when you do
that after the election in a close contest, and when you count the votes in a
way that can be manipulated by the persons counting them, that is not a fair
process, and the Supreme Court was right to prevent that from happening.

GROSS: If there is another contested election, and if you do participate in
it, are there lessons from 2000 that you would be drawing on this time around?

Mr. OLSON: Well, yes, of course, I always try to learn something whenever we
handle litigation. That was quite a difficult and fast-moving experience.
I've reminded people, when they think about that, that was five weeks. There
were something like three Florida Supreme Court decisions and two United
States Supreme Court decisions. Being able to assemble the legal work
necessary to move that rapidly, especially at a time when because all of the
other litigation was going on, kept everybody from getting any sleep. I
suppose we could be more efficient.

I suppose that we could anticipate some of the issues, but these things are
usually not exactly the same. And whatever you learn from the previous
experience, you sort of have to learn a lot of different things all over
again. I hope, for the sake of the winner and the non-winner in this
election and for the American people and all of us, that there isn't a large
involvement of lawyers, that the election will be decisive and that the
procedures will be not only fair but be perceived to be fair, because I don't
think it's, in the long run, good for the people to see lawyers and judges
involved in counting votes and tabulating elections. I think it's much better
for the system if that does not happen.

GROSS: Ted Olson, thank you so much for talking with us.

Mr. OLSON: Well, thank you very much.

GROSS: Ted Olson represented the Bush-Cheney ticket in the Supreme Court four
years ago. Earlier in the show, we heard from David Boies, who represented
the Gore-Lieberman ticket.

(Credits)

GROSS: I'm Terry Gross.
Transcripts are created on a rush deadline, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of Fresh Air interviews and reviews are the audio recordings of each segment.