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Barry Richard

Barry Richard is a shareholder in Greenberg Traurig, an international law firm. He represented then-Governor George W. Bush before the Florida Supreme Court in the 2000 election litigation. From 1974 to 1978, he was a member of the Florida Legislature.

Sarah Laskow interviewed Richard on April 9, 2008.

Start out by telling us who you are and what your background is with recounts and election law.

I’m Barry Richard. I am a lawyer with the firm of Greenberg Traurig, which is an international law firm. My practice is devoted very substantially to complex commercial litigations and constitutional law. An aspect of constitutional law is election law, which is what got me involved in the Bush campaign in 2000. I had represented on a nonpartisan basis, because I happen to be a Democrat, but over the years I represented both Democratic and Republican governors, state senates and state legislatures, various other agencies, politicians, and candidates. That’s how I became involved in 2000.

What was your experience there? What was the work that you did in 2000?

I was the lead litigation lawyer in the Florida litigation, which involved 46 or 47 cases throughout the state over the 36 days that it lasted.

So more than one case a day.

Well, the cases were all pending overlapping. Many of them were going on all at the same time. It was an interesting circus act.

Can you walk me through what a day was like during that time for you, just a typical day?

I would have to move forward. It began when I was contacted the morning after the election, about 7 a.m. by somebody on behalf of the Bush-Cheney team wanting to know if I would be willing to represent them in what appeared to be a developing legal issue. I was leaving town so I told them I would be happy to meet with them that evening. When I returned that evening and met with them, the issue at that time, as I recall, was the problem with the ballot in Palm Beach County. Within days, it had mushroomed into a much bigger issue. I think after the first week there were about 15 cases. Then there were 30 cases and then there were, essentially, 40 cases.

So you have to move forward a little bit. It was a hurricane-level storm very quickly. I would say after the first week, a typical day, which was very unusual, we never knew what was going to happen the next day. There were so many courts involved. One of the difficulties was when you have a lot of cases pending at the same time in different jurisdictions involving the same issues. One of the most difficult aspects of it in terms of maintenance is to avoid inconsistencies in arguments. There was no time here to coordinate arguments or train lawyers to make the same arguments. I was trying to argue as many cases as I could myself. That meant that a lot of them were argued by telephone.

I had one day when I was on the phone arguing in Palm Beach County and one of my colleagues was holding the judge on the phone in another office in another county, I think Broward County. When I finished the Palm Beach argument, I went to the other office and made the Broward argument. A lot of them I argued myself in person. I couldn’t be in two places at once. We did have other lawyers arguing cases. On the other hand, it was a typical major trial. There are a lot of long hours every night preparing for the next day, which wasn’t the case here because no one knew what was going to happen the next day.

Why was it that no one knew what was going to happen?

For one thing, we were dealing with areas in which there was no precedent. It had never happened before. The courts had never addressed a lot of these issues before. Of course they’re not interpretive, the provisions we were dealing with. Different issues were being addressed in different courts. One court was addressing the issue of whether or not the secretary of state could put a deadline on the receipt of absentee ballots from the counties.

Two other cases were arguing that absentee ballots should be thrown out because the supervisor of elections in the two counties had allowed representatives of the Bush-Cheney team to come in and fill in the missing blanks on the applications on the absentee ballots. A multitude of other issues were being raised in different courts. There was a briefing team that was briefing things. It was a separate group of lawyers. Usually what happens is briefs are filed and lawyers on both sides read the briefs, they file response to the briefs, and they go in and have an oral argument. In this case, there was no time for any of that. A brief would be filed with the court and handed to the other side when you walked in for the oral argument.

I remember one instance when I was sitting in my office and I received a phone call from one of the trial level judge’s clerks who said the judge wanted me to be in her courtroom at 2:00 that afternoon. I said, “What’s the issue?” The clerk said, “I don’t know; she didn’t tell me.” I walked in the courtroom having, as did all the other lawyers, no idea of what was going on. That was not unusual. We would get a call from the Supreme Court saying, “Be here at 11:00 tomorrow morning.”

And you would just have to go?

Correct. This was not a typical case where you’re working hard every night to prepare for the next day.

One of the issues that we are looking at in general for our project is voter fraud. Did that come up at all in the cases that you were arguing?

Yes, it did come up. It was an issue. It was not an issue that ever received any significant traction. It wasn’t so much voter fraud as errors. It was a two-day trial before Judge Stoll that much of the world watched. The issue was whether or not the voting machines that used the cards with the chads on them. I am sure you will remember the issue was whether or not they were accurately counting. So it wasn’t so much fraud as to whether or not the count was accurate.

Which is a sort of different issue.

There was at least one case that argued that fraud had been committed in some precincts. Elections are messy businesses involving a lot of people and a lot of activities. If the courts threw out every election because of an error or because somebody did something that was inappropriate or fraudulent in some area, it would be very difficult to ever have closure on an election. You have to overcome a higher bar that’s simply showing that somebody did something. You have to show that there is a reasonable chance it’s affected the election.

Another thing that we’re interested in is just how money plays into all of this, all these processes. Obviously, it’s very expensive to field a team of lawyers to argue as many cases as you’re talking about. I was wondering if money played into the process at all, or how does it play into a process like this in general? Do you think it affected the outcome at all?

Do you mean in terms of what lawyers were hired?

When I am doing research and interviews on this topic, it’s something I’m trying to see if the angle really fits in, like does money affect the recount process or a recount process where there’s a legal question?

I don’t think it affected this case. There were superb lawyers, lots of them on both sides in this case. Nobody was talking about money. We charged our standard fees but nobody was looking to see who was paying. You will never have a problem getting fine lawyers on a case that has historic proportions. I think every lawyer involved in this case, if somebody had said to them, “Would you be in this case for free?” they would have done it. I think a lot of the lawyers did work for free. It was not a case in which money would have meant because you didn’t have money you couldn’t get the lawyers.

I think the bigger problem from a money standpoint is that, with very few exceptions, if you have a hotly contested election, both sides spend all of the money by Election Day. Candidates end up with money in their pockets when either they don’t have an opponent or they have a weak opponent. When you have a truly, strongly contested race, there’s no money. So when the litigation started, both sides had no money left in their treasury. They had to go out and raise money to fund the litigation.

That is what happened. I think that things have been changed dramatically in the past eight years. At that time, the Republicans traditionally found it much easier to raise money because the money came from individual large contribution donors. We are seeing a change. The fact is that this year the Internet has really created public financing. I think it has rendered the Federal Public Financing Law meaningless. Who would have expected that suddenly the Democrats are outspending the Republicans by substantial margins? Barack Obama is outspending the Clintons by substantial margins. That is because of the Internet. I think that whatever money meant before, it doesn’t mean it anymore.

Do you know who in 2000 was responsible for raising the money that, I guess, eventually paid you guys?

No, I don’t remember. Somebody in the Bush-Cheney team or the Republican Party created a committee to raise money to fund the litigation. Somebody headed it. They went to their contributors and they asked for money. I don’t remember.

Something that one of our writers found was a report from Newsweek in 2001 that said your firm never got paid for its services. Is that true or did you eventually get paid?

No, we got paid. We might not have been paid at the time the article was written. Part of the problem that the Republican Party — or I don’t know if it was the party or Bush-Cheney campaign — encountered was that after it was over, a lot of the people involved in the money-raising ended up in the administration so there was nobody to raise money anymore. Yes, we ended up getting paid.

When I was reading back about this case, your argument, from what I understand, focused on the need to follow the law that was written. You urged the courts not to overstep their constitutional mandates. Then some people I’ve been talking to want to talk about how money and influence affect Florida’s laws on the front end when they are written. I was wondering if you think money and influence and that sort of tinkering with the law on the front end affects what happens on your end when you are arguing what should happen in a case like this.

First of all, a large element of my argument was separation of powers. That question involves such a broad, nebulous area. I would say that I don’t think money, no matter which end you are talking about, had a great deal to do with what happened in the litigation in 2000. You can say that money affects things because if Gore had had more money, maybe he would have had more votes in Florida and it never would have gone to litigation. Once it went to litigation, I don’t see how money had much of an impact on it.

Of course, if money results in one candidate not having a close race, then it’s going to affect people who do what I do in the courtroom. If you’re talking about a small race or where a candidate doesn’t have a lot of money and a lot of ability to raise money and there is a judicial issue involved, maybe it would affect it, but not at this level.

Did you have anything else that you think is important about your involvement in this issue that we should talk about?

I was disappointed in the aftermath that there were a lot of commentators and lawyers accusing both the Florida Supreme Court and the United States Supreme Court of corruption, actually using the word “corruption,” and of making decisions that were strictly political. I was disappointed that there were not more lawyers, particularly lawyers involved in the process, who didn’t come to the defense of those courts. I don’t think that was true at all.

Obviously, judges are motivated by the ideological background that they come to the court with; that’s how they get appointed. That ideological philosophy is going to affect what they do. I don’t think that the judges on either court were making decisions based upon who they wanted to be the president. I wrote some articles and gave some speeches afterward in which I pointed out that the decisions of both courts were legally defensible and consistent with their prior decision. I think that the judges acquitted themselves commendably.

I think it was an excellent reflection of the American democratic process at its best. With all of the commentary about constitutional crisis, there was never a crisis. Everything ran smoothly. It was incredible to me that the drafters of the U.S. Constitution were able to create a document in the system that hundreds of years later in a society they could not have conceived of, was able to work as smoothly as it worked and produce a result and everybody went back to work. I think that’s the most important thing, for me, that came out of this.

That the system, in the end, allowed us to all go forward with our lives and to not get stuck.

Some of us don’t like the way we ended up getting stuck with the policies of the administration afterward, but yes. I had reporters a number of times say to me, “Do you think after this is all over anybody will be able to govern?” I said, “I think when this is over, everybody is going to go back to work and be satisfied that we have a government and everything will be fine.” That’s exactly what happened.

Some people were happier than others.

That’s always what happens, but nobody was in the streets. There were no demonstrations. Nobody was shooting each other. I think that the American public has a very strong level of comfort that our system is stable and is going to be fine. We may not be happy with the result, but the typical American says, “There’ll be another election in two years or four years.”

“And then I’ll have my chance to try again.”

Exactly. That’s how it’s supposed to work. I don’t mean to talk you to death, but how many times in the history of the world and in how many societies has a country been able to weather that type of a challenge, which in most societies, in most times, would truly have been a crisis, and is today, over and over again. For us, it was a big party.