by Ted Cruz
Noel and Tim and I worked side-by-side. Indeed, one of my favorite memories of the entire recount is the three of us, arm-in-arm, at two in the morning reading Shakespeare’s St. Crispin’s Day speech aloud, “we few, we happy few, we band of brothers.…”
In the late hours of the evening, the three of us drafted an insert for our Supreme Court brief, roughly a page long, that suggested the intermediate fallback. And, as it so happens, that fallback is the path the Court ended up taking. By a unanimous 9–0 vote, the Supreme Court vacated the decision of the Florida Supreme Court and, rather than ruling for us on the merits, the Court instead clarified federal law and remanded it to the Florida Supreme Court to reconsider its judgments in light of that clarified federal law. That was precisely the course we had suggested.
On remand, the Florida Supreme Court stuck to its previous position. They stubbornly issued a very similar opinion, amazingly, without even acknowledging the unanimous Supreme Court decision that had just vacated their prior opinion. And shortly thereafter, the recount litigation once again went up to the U.S. Supreme Court.
Over the course of the thirty-six-day legal challenge, the ballots had been counted four times. They were counted on election day, which George W. Bush won, and there was an automatic statewide recount triggered because the margin was close. And after a second counting, George W. Bush once again prevailed. The Democrats challenged the outcomes in several overwhelmingly Democratic counties, seeking to gain more Democratic votes through more recounts.
With each recount, in some instances directed by laughably partisan Democrats leading the county recount processes, Al Gore’s numbers grew—though he continued to trail behind. The Florida Supreme Court ordered yet one more statewide round of recounts.
So, while the second Supreme Court appeal was pending, we found ourselves once again in Florida state trial court. Our lawyers were seeking some minimum standards that should be applied for the latest round of recounts. Some of the “chads” on punch cards were not completely removed. Some were what were called “hanging chads,” where they were hanging by one corner but were not entirely separated from the punch card. Others were dubbed “swinging chads,” where they hung by two corners. Others were called “pregnant chads,” attached at all four corners but indented in the middle in a way that suggests a voter might have pressed the stylus into them.
We asked the state trial court to set some uniform standard for how any recount should occur. The district judge rejected every single one of our arguments, ruling that each county could conduct the recount any way it liked and use whichever standards it wanted—counting “hanging chads” or “pregnant chads” as it so desired, counting over-votes and under-votes as it so desired. Then, all of these outcomes would be tallied to achieve a different statewide vote total.
The result was so egregious that I believed it set the stage for us to win. Two of the senior lawyers in Florida were George Terwilliger, who had been deputy attorney general under Bush 41, and Kenneth Juster, who had served in the Commerce Department under Bush 41 and who is today the U.S. ambassador to India under President Trump. The three of us were sitting next to each other in the courtroom and, when the judge ruled against us across-the-board, I wrote the letters “T F V”on a slip of paper and showed it to Ken and George. The “T” stood for total, and the “V” for victory.
Ken and I went back to the office, and we typed out a supplemental filing to the Supreme Court describing just how egregiously the trial court had refused to set anything resembling uniform standards for the next recount that was about to commence. (Since Ken is a bit of a Luddite, he doesn’t know how to type; I manned the keyboard for us both.) As I mentioned, when we first drafted the Equal Protection Clause claim, it was weak. But as the Florida state courts decreed utter chaos and permitted standardless and arbitrary counting of votes in each of the sixty-seven counties across Florida, and as the results of the presidential election came to hinge on the vicissitudes of the local officials in each of those counties, our constitutional argument became substantially stronger over time.
The Equal Protection claim that we had drafted in the late hours of the night and the early hours of the morning had suddenly come to fruition. Before the Supreme Court, Ted Olson presented oral argument, as he had the first time. I was sitting in the courtroom for both arguments. In the second argument, Ted made a point to emphasize that the Florida Supreme Court had not so much as even cited the unanimous Supreme Court decision vacating their prior ruling. That really enraged the justices, especially Justices Anthony Kennedy and Sandra Day O’Connor, both of whom seemed flabbergasted that the Florida judges would have the audacity to ignore a unanimous Supreme Court ruling and, in effect, to thumb their noses at the Supreme Court. Pissing off Kennedy and O’Connor was always a mistake, and here, especially so. Ultimately I believe that was pivotal in the fight for a winning decision.
In the end the Court agreed by a vote of 7–2 that the standardless, arbitrary chaos playing out in Florida violated the Equal Protection Clause. Today, the press rarely remembers that that vote was seven to two—the five “conservatives” plus Souter and Breyer.
The remedy, however, divided along more familiar lines, 5–4. There were four justices who wanted to remand the case yet again, to allow the Florida state courts yet another bite at the apple to try again to set uniform standards (the absence of which we had highlighted in our supplemental brief) and to continue the craziness that had—for over a month—consumed a nation and a world eager for electoral finality.
The final decision came down about 10:00 at night. I got a call on my cell phone from the clerk’s office of the Supreme Court telling me, “We have a decision.” They offered to fax the decision to me. I pulled the opinion off the fax machine and walked into Jim Baker’s office late that evening.
The opinion was dense, about twenty-five pages long, and Baker quietly asked me, “What does it say?” I proceeded to read the opinion rapidly in a small room, with Jim Baker standing across from me and looking over my shoulder. I read as quickly as I could, trying not to be rattled, and then looked up and said, “It means it’s over, we’ve won.”
Baker nodded, picked up the phone, and called George W. Bush, who was at his ranch in Crawford, Texas. Bush answered the phone, and Baker’s first words were, “Well, Mr. President, how does it feel?” Chills went down my spine.
It’s worth remembering that, at that very same instant, reporters were standing on the steps of the Supreme Court holding the opinion and frantically trying to figure out what on earth it meant. It didn’t contain one simple clear sentence, “George W. Bush wins—the election is over.” Instead, it was more complicated than that.
Afterwards, Heidi couldn’t help but rib me when I told her that story: “Well, it’s a good thing you were right!” she replied, snorting. I laughed, relieved at the same time. I was very glad there hadn’t been some footnote buried in the opinion that I had missed—one that somehow gave a window for the Gore legal team to continue the battle. As it so happened, however, the case was truly over—even though we were yet again only one vote away.
Although Bush had won the initial count by 1784 votes and he led every subsequent tally, the vote differential had varied throughout the recounts, dropping to a low of 300 on November 14, then rising to 930 on November 18 (when overseas absentee ballots were counted), and finally being certified at 537 votes on December 8 (the margin by which Bush ultimately won the presidency).
* * *
In my life, a bit of personal drama loomed in the background of the entire recount. I’d met Heidi Suzanne Nelson on January 3, 2000. At the time, she was in her second year at Harvard Business School, and she came to volunteer for a month on the Bush campaign. I was doing domestic policy, and she was there to do economic policy.
Blonde, beautiful, brilliant, she runs marathons and is in ridiculous shape. Her parents were missionaries in Africa, and she is deeply committed to her faith. She’s more driven tha
n any person I’ve ever met, before or since. For a wife, I wanted a life partner, someone who wouldn’t fight against this political journey I hoped to travel, but instead who would be a soulmate and an enthusiastic force multiplier in life. If anything, I underestimated what I was getting into.
I was smitten from the moment I first cast my eyes upon her, and the two of us began dating two days later, on January 5. It was a whirlwind romance, and things got serious almost as soon as they started. When she returned to Harvard for her final semester at the end of January, I drove her to the airport. I asked her, “What now?” She said, without hesitating, “Call me every single night.” She knew that I was getting home each night at 2:00 or 3:00 in the morning… so I’d call her—every single night—at 3:00 or 4:00 in the morning East Coast time. We’d talk a good hour or so, typically until one or the other of us fell asleep while still on the phone.
A week before the election, it so happened that Heidi’s parents were coming to Texas. They’re Californians from San Luis Obispo, along California’s central coast, but through a weird coincidence they came to Texas because a cousin of hers was getting married in Fort Worth. After the wedding party, we all went to Billy Bob’s, the famed country-Western bar in Fort Worth. Willie Nelson was playing in concert that evening.
Heidi’s father is an intimidating man. A dentist by profession, he and Suzanne served as missionaries in Africa, where Heidi lived several months as a young girl. An avid outdoorsman, Peter climbed Mount Everest in 1990. He nearly died just a few hours from the summit, getting pulmonary edema on the mountain, and to this day he is an extremely talented athlete and a very driven man. To put it mildly, he was more than a little daunting as the father of the love of my life.
Peter and I didn’t know each other well, but I wanted to marry his daughter, and I wanted to ask Peter for her hand. Sitting at Billy Bob’s with his family all around, it was difficult to get him alone, to pull him away from the herd. I spied some pool tables not too far away, and I asked Peter, “So, do you play much pool?” “No,” he answered monosyllabically, looking away and adding nothing more.
I sat there in silence for a couple of minutes and then tried it again. “Would you care to play me in a game of pool?” Eyebrow raised, Peter reluctantly agreed. While we were playing pool, I told him I was madly in love with his daughter, and I asked his permission to ask her to marry me. Peter was surprised. Even for him, he seemed a bit shaken. He was quiet for a moment, and then he said, “Well, I’ll have to think about it. Let me talk to Suzanne, and I’ll tell you tomorrow.”
The next day, Sunday, Heidi and I had arranged a brunch with her family and my family, many of whom lived in Dallas. At that brunch, Peter pulled me aside and said ominously, “Suzanne and I talked about it, and we decided we’re not ready to give up our daughter.”
Four long seconds of silence ensued, at which point he added, “… but we are ready to gain a son.”
In the movies, when you’re falling off a cliff, your life flashes before your eyes. I have to admit, those four seconds seemed like an eternity for me, as I stood there thinking, “this isn’t really happening.” I recall thinking, “I’m conservative, but I’m not that conservative. You don’t actually have a veto on this marriage. I am asking you out of respect, but I guess Heidi and I are getting married by Elvis in Vegas instead!”
After relieving my crashing fears, Peter then asked me, “Have you talked to Heidi yet?” I said, “No.” He asked, “When do you intend to?” I replied, “Well, the election is the day after tomorrow, Tuesday, and so I intend to ask her on Friday of this week after the election.” Peter said, “You better hurry because Heidi and Suzanne talk every single day, and I don’t know that she’s going to be able to keep it a secret.” I answered, “Well, she’s going to have to.”
Tuesday occurred, and, as we’ve already discussed, it ended in a way none of us had anticipated. By Thursday, I was headed to Tallahassee. I called Heidi on the way to the airport and told her, “Sweetheart, tell your father I had to go to Tallahassee.” Heidi, I’m sure, was puzzled by the urgency with which I wanted her father to know this. I think she probably believed I was trying to brag to him about my being involved in the recount. She said something like, “Yes, yes, I’m sure he’ll be impressed,” but for me, there was a much greater urgency: I had told him I was going to ask Heidi on Friday, but I wasn’t going to be with her on Friday.
When I flew to Tallahassee, I assumed the recount would last just a couple of days and that I would return to Austin and then ask Heidi when I got back. Nobody anticipated it would drag on for over a month. A few days later, Heidi flew to Tallahassee to join the team. She’s not a lawyer, but she worked tenaciously assisting the quantitative analysis of the vote totals county by county. As time went on, I figured I’d just ask her to marry me there, but I realized I had left the engagement ring in my closet in Austin. (I knew—and still know—nothing about diamonds, but I knew that Heidi liked Tiffany’s, so I had gone to the store, handed them my credit card, and told them to get me the biggest diamond they had that would fit under my credit limit; it took many months for me to pay it off, but the ring, hopefully, was for a lifetime.)
I called my roommate from the campaign to see if he could maybe FedEx the ring to me in Florida, but my roommate, unbeknownst to me, had also arrived in Florida a couple of days earlier. So I was stymied trying to get the ring to Florida.
Heidi’s parents are not terribly political. I don’t know that they cared deeply about who prevailed in that presidential election, but for the entire thirty-six days of the recount, her entire family knew that I was going to ask her to marry me. My entire family knew that I was going to ask her to marry me. And, as a result, her mother desperately wanted Al Gore to hurry up and concede the damn race, so that her daughter could get engaged.
The Supreme Court’s decision came down on December 12. The next day, Heidi and I flew back to Austin and, on December 14, a chilly winter’s day, I took her to an Austin watering hole called “The Oasis” high on the cliffs overlooking Lake Travis. At sunset, about 5:00 p.m., with the sun’s rays cascading off the clear blue water hundreds of feet below us, I dropped to one knee and proposed.
Heidi’s initial reaction was to laugh. She began laughing uncontrollably. I was down on one knee feeling a little uncertain, and stammered, “Usually there’s an answer at this point.” At which point, still laughing she said, “Yes. Yes. Yes. Now, get up off your knee. Yes.”
* * *
Although I was one of the most junior members of the Bush campaign’s Florida-recount legal team, I was blessed to work alongside some of the most extraordinary litigators on the face of the planet, to learn from them, to see their skills and expertise in action. My tasks varied widely. I wrote portions of briefs. I edited portions of briefs. I tried to ensure that what we said in one court was consistent with what we said in each of the other courts. Often that played out in a chaotic manner. Indeed, I remember tearing pages out of briefs hours before they had to be filed because what was written there contradicted what we had said in a different proceeding while listening to the lawyer who had written that particular pleading invariably yelling at me.
At other times, my roles were more mundane. One day, shortly before Thanksgiving, most of the lawyers had gone home for the holiday, and I was tasked with filing a pleading in court. Bob Zoellick, who would later become a cabinet member and then president of the World Bank, was essentially functioning as Jim Baker’s chief of staff. Zoellick grabbed me by the front of the shirt, pulling my face within inches of his protruding red mustache and unruly red eyebrows, and growled, “Ted, don’t f—- this up.” I tried to respond calmly, “Bob, it entails walking across the street and handing a stack of papers to the clerk. I believe I can adequately perform that task.”
Another job I was given was helping prepare some of our senior surrogates to make the case for Governor Bush to the press. One such surrogate was then-Senator Arlen Specter from Penn
sylvania. Josh Bolten asked me to fly up to Pennsylvania, pick him up, fly back, and brief him on what was happening in the case so that he could talk to the media. That evening, I flew up to Pennsylvania in a beautiful, private jet. It was the second time in my life I’d been on a private jet—the first being the flight from Austin to Tallahassee. The next morning, I flew back with Senator Specter at 6:00 a.m. to brief him on the latest in the litigation.
Heading up to Philadelphia, I was joined on the flight by Barbara Olson. Barbara was Ted Olson’s wife. She was a friend and a fiery, beautiful, tenacious conservative. She was a veteran of Capitol Hill, a Houston native, and someone who never shied away from a fight. When I was clerking for Judge Luttig, he had performed Ted and Barbara’s wedding, and (unbeknownst to her) he had asked me to help him with his remarks for the ceremony.
Barbara had seen Heidi and me together in Tallahassee quite a bit. She thought we were quite the pair, and she was catching a ride on the plane to get back to their home in D.C. Barbara, for much of the trip, was chiding me aggressively, saying, “Ted, you have got to ask Heidi to marry you.” As was her wont, she did not do so timidly. There was no middle ground. She asked me, didn’t I have the courage to man up and ask her to marry me? What was I afraid of? Did I want to be a bachelor forever?
What Barbara didn’t know, which I told her subsequently, is that I had already asked Heidi’s father, that I had already purchased the ring, and that I was just waiting for the recount to end so that I could pop the question. But I kept all of that to myself, not wanting to blow the surprise to Heidi.
Barbara, tragically, was killed on September 11, 2001. She was on the plane that flew into the Pentagon. Her husband, Ted, was then serving as the U.S. solicitor general. As the plane was in the air, she called him from her cellphone and, remarkably, connected with him twice for two one-minute calls. Barbara had been supposed to fly out the day before, but she delayed her departure by a day so she could remain with Ted for his birthday dinner the previous evening. Ted’s birthday was that day, September 11.