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October 23, 2008 4:51 PM

ELECTION 2008: Recount Veteran Muses on Florida Legal Battles

Posted by Brian Baxter

Markherronlg

With only 12 days to go until the presidential election, campaign lawyers for senators John McCain and Barack Obama are once again warily eyeing Florida as a key battleground state that must be won for any prospective president-elect.

The Am Law Daily caught up with Mark Herron--dismissed from Miami's Akerman Senterfitt for representing Al Gore in the 2000 recount--to get the lowdown on the Sunshine State's election scene.

Now an ethics and elections expert with Tallahassee's Messer Caparello & Self, Herron worries about conflicts no more.

I take it you've been retained by the Democrats this election season as well?
I'm general counsel for the Florida Democratic Party. So I'm right in the middle of it.

What are some of the big issues this year?
It's a lot of the same stuff we've always worried about ever since 2000 when lawyers descend upon the election process like locusts. In Florida this year we're changing from the touch-screen machines to paper [ballots], so the issue here is whether all the people who are entitled to vote actually do so and what problems might pop up at the polls on Election Day. We have some early voting going on right now and we had a dry run back in the primary, so we're trying to devise ways to work through those problems.

What problems, specifically?
Long lines at polling places, machines breaking down, misplacing some paper, and maybe not enough stations and personnel in place to let people vote quickly and efficiently.

Will you be roving--no pun intended--around or based in Tallahassee on Election Day?
I'll be in Tallahassee. Under Florida law any post-election litigation that might arise is Tallahassee-based.

Are you anticipating the worst, legally-speaking?
I'm anticipating the best even though there's a million ways for the train to go off the track because election law has become more complicated since 2000. But I'm hoping that there's not going to be a nuclear meltdown.

I'm sure you've told this story a million times, but for those who haven't heard it, what were the circumstances surrounding your departure from Akerman?
I was with Akerman until Election Day 2000 when I received an e-mail [from the firm] saying they didn't want people working on the [recount]. And I said, 'Well, I've been working on this thing for two days, so I'm leaving.' And that's what happened.

What did you do after that?
I had been on the board of Akerman for 10 years and as a result of that experience, I didn't feel like getting married again to a firm. The guys I'm with now--who I've known for a long time--lease me space. And so I stayed out on my own for a couple years because I mostly do ethics and elections stuff, I don't really practice other kinds of law. But there's more than enough ethics and elections stuff in Florida to keep me busy and paid. So I did that for a couple of years until these guys kept bugging me to get involved in firm management. ... But we've reached an understanding that I'm going to do my thing politically and if they ever come to not like it, they can throw me out whenever they want.

Sounds like a good deal. I take it you don't have to worry about conflicts?
On election matters, people understand I mostly represent Democrats. I've also represented Republicans, usually when there's no Democrat in the race. On ethics stuff, I represent Democrats, Republicans, or any other public official that gets in trouble.

How are you handicapping things right now?
You're not the first person on whom I'm going to try to duck this question. But I really don't. For the most part I'm looking at leaves on trees as opposed to trees themselves or even the forest! I just try to keep my head down and stay focused on what the issue is at the moment.

Any recent examples?
Well, we had a supervisor in Sarasota County leave an entire state senate race off the ballot. But thankfully it was only in one precinct.

What did you think of Recount, the HBO movie?
(Laughing.) In terms of the substance, it ripped off about seven years of scar tissue and exposed everything again. And that wasn't a fun thing. But from our side, I thought it was a relatively accurate portrayal of what occurred in terms of taking 36 days and one strand of the story and trying to do it in two hours.

Looking forward to a Recount II, maybe?
No, no, absolutely not. People around here joke about it and how they'll get somebody else to play me, but we don't want to go through that again. We really, really don't want to do it.

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