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David Boies
 
David Boies
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David Boies Interview

Counselor and Human Rights Advocate

September 14, 2014
San Francisco, California

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  David Boies

You've said that if you couldn't have been a lawyer you would have enjoyed teaching American history like your father. But some of your cases have put you in the middle of history in the making. Could you tell us about Bush v. Gore? That was the Supreme Court case that ultimately decided the 2000 presidential election.


David Boies: In Bush v. Gore, you had sort of the highest stakes that you can in a politically related case. That was a case in which the presidency of the United States was on the line. And as someone who, as I said earlier, would have been an American history teacher if I hadn't been a lawyer, just being present at that debate, that litigation, that controversy was exciting. But it was particularly exciting to be part of that legal battle, because it was such a critical battle for the American people, our country, our culture and our law. It was, in some senses, more important than we knew at the time. At the time, I don't think that most of us fully appreciated the difference to this country and to the world that it made as to whether George W. Bush or Al Gore was going to become president. But what we did know is that it was a momentous decision, and it was a decision where, for the first time in American history, the United States Supreme Court decided a presidential election. There had been one election in the past where three members of the court had participated in a government commission. Three senators, three congressmen and three Supreme Court justices had assembled together to decide the results of the 1876 election. But never had the Supreme Court, as a court, weighed in to decide a presidential election, and particularly not on a partisan basis.


Tell us briefly about the circumstances. It concerned the vote count in Florida.


David Boies: Al Gore won the popular vote, which in every other democracy is the vote. But of course in the United States, we have what is called the Electoral College, where each state gets a certain number of electoral votes, and those go -- with two small exceptions -- those go all to one candidate. So if somebody wins California by 50.0001 percent, and somebody loses California by 49.9999 percent, what happens is, all of California's electoral votes go to the winner. So in a winner-take-all situation, you can get a situation where somebody wins by the popular vote but doesn't get a majority of the electoral votes. In the 2000 election, it was clear Gore won the popular vote, but the electoral votes -- he needed four more electoral votes to be elected. Florida had -- and I don't remember the exact number -- but had many times more than what he needed. But if he lost Florida, because he lost all the Florida votes, Bush would be elected president. So the election really came down to Florida. All the other states had been decided. Florida was still undecided. And there were only a few hundred votes that separated the two candidates. And what Florida provided, and had provided for 80 years, is that in those cases you have a manual recount of all the ballots. And the reason for that is that Florida has four different kinds of vote-counting machines. There are four different machines that are used to record votes in different parts of the state. And in order to make it all equal, you've got to have a recount that allows people to have a consistent result, which is what the manual recount is designed to do. And we had litigation in Florida as to whether or not we would get that manual recount, and the Florida Supreme Court ultimately held that, "Yes, there has to be a statewide recount. We're going to recount the entire state to be fair, and we're going to decide the winner based on the actual voter intent of the particular ballots." That was what Florida law had always been. The Bush camp appealed that to the United States Supreme Court, and they had two arguments. One argument was a legal argument that said the Florida courts can't do that, because only the Florida legislature can do that. The Supreme Court rejected that argument six to three. They also, however, argued that the vote count ought to be stopped because it somehow violated the Equal Protection Clause. That decision was five to four against us, and it was a decision that the Supreme Court initially made on a Saturday without ever hearing argument. They heard argument two days later and came out with the same result. But they initially stopped the vote counting before they even had an argument, over the very bitter dissent of four of the justices. But in our legal system, when the United States Supreme Court makes a decision, that's the end of the road. There isn't anything else you can do.


That must have been a tough blow.

David Boies: It was a tough time. It was a frustrating time. It was a disappointing time, and as time has gone on, I think people have moved on from that, and I think that's the right thing to do. But I think we will always wonder how the world would have been different, how our country would have been different, how the economy would have been different, how our international relations would have been different, the lives that might have been saved, the treasure that might have been saved, if the Supreme Court had ruled five-four in favor of Gore as opposed to five-four in favor of Bush.

Did you realize, taking that on, that this was going to be a very, very important case?

David Boies Interview Photo
David Boies: Oh, it was clear it was a very, very important case. Important to who became president, but also important to the integrity of our law and the way we resolve disputes. Now, I think that the case, fortunately, is not going to be a precedent for future elections. I think everybody has sort of learned, in retrospect, the lesson that the Supreme Court ought not to play that kind of role. And indeed, even in the Supreme Court decision itself, it says, in effect, this isn't a precedent for the future. So I think that the long-term damage that the case does to our law is not going to be significant.


The dissents were pretty powerful on that case.

David Boies: They were. Four of the justices wrote very, very strong dissents, very passionate dissents, and obviously dissents that I agreed with. On the other hand, one of the things that I think is critically important is our belief in and our allegiance to the rule of law. And when the Supreme Court makes a decision, I think we accept it and move on.

Could you tell us the circumstances of Perry v. Hollingsworth? This is the Proposition 8 case concerning same-sex marriage in California.


David Boies: In 2008, California passed so-called Proposition 8 that banned marriage between anybody of the same sex. It just declared that marriage was limited to a man and a woman. And that was contrary to what California law had been immediately preceding that, because the California Supreme Court earlier in 2008 had declared that, under the state constitution, any loving couple had a right to get married. Now when that was changed, that deprived gay and lesbian citizens of the right to get married. And Ted Olson and I brought a lawsuit to challenge Proposition 8 under the federal constitution. And ultimately, the judge ruled that the ban on same-sex marriage violated the federal constitution, violated the Equal Protection and Due Process clauses of the federal constitution, and invalidated Proposition 8. And that decision was ultimately sustained by the Court of Appeals and the Supreme Court on the grounds that the people on the other side, the defendants, really didn't have standing to oppose the judgment.


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