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Gore Campaign Attorney David Boies Holds Media Availability After Testifying Before Florida Supreme Court

Aired November 20, 2000 - 4:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

JUDY WOODRUFF, CNN ANCHOR: Greta, outside the court, the state Supreme Court, David Boies, chief lawyer for Vice President Gore. Let's listen.

DAVID BOIES, GORE CAMPAIGN ATTORNEY: We have made our arguments to the court, the Supreme Court of Florida. The Supreme Court of Florida now has this case under submission. It will be up to the Supreme Court to make its decision. We've made our arguments in our brief and orally, and we will not have any comment on it until the Supreme Court rules.

Thank you very much.

WOODRUFF: David Boies, who did most of the talking for the Gore forces, if you would call them that, the vice president's legal team.

CNN's legal analyst Roger Cossack is here in Washington as well.

Roger, it seemed by the questions that we were hearing from the justices that they are looking for a way to let this recount be done and get those recounted ballots included but to get it done before the Florida electoral votes have to be in.

ROGER COSSACK, CNN LEGAL ANALYST: Well, there seemed to be obviously a real concern on behalf of the Florida Supreme Court, as there should be, that Florida's votes count in this national election, so that December 12th is the cut-off day. So the problem they face is, one, how do they make sure Florida's votes count? Two, how do they pay attention to these somewhat conflicting statutes? And three, we have hand counts, which they seem to have no problem with the idea that these hand counts may be necessary if it accurately reflects the voters' intention.

I mean, the notion that hand counts were devious or whatever those suggestions were didn't seem to be met with much acceptance. So we heard even at the end where they were saying to Mr. Boies, well how can we go about doing it, almost asking, I thought, for a suggestion of can we come up with a date? Do we have the power to come up with a date, say, December 2nd or December 3rd, which could then say you must have the recounts done by then and still give enough time if a losing candidate wanted to contest the election.

And these are some of the suggestions they were having. But the problem is, one, they've got to get it done by December 12th, and they clearly want to have those people's votes counts.

WOODRUFF: Barry Richard, an attorney for Governor Bush.

We are attempting to get the audio so we can hear what attorney Barry Richard is saying there. We're keeping an eye on that and trying to get that microphone -- trying to get the sound through so you can hear what he's saying.

We're going to take a break. We'll come back with more analysis of today's arguments before the Florida Supreme Court.

We'll be right back.

(COMMERCIAL BREAK)

WOODRUFF: Never before have the men and women, the seven justices of the Florida state Supreme Court been so front and the center as this afternoon, when the eyes of the country, perhaps the world, are on them, as they are looked to, to make a decision, an election law decision, in the state of Florida that could have a huge bearing on who becomes the next president of the United States.

So we are just minutes after the end of today's arguments before the court. We looking at what was said and the meaning of it all because we don't know what the justices will rule.

At this point, I'd like to bring in David Cardwell, who's a former Florida election official.

David, just for a moment, explain to us what it was -- we kept hearing the arguments back and forth about the apparent contradiction in Florida state law about hand counting and hand recounting and to what extent it should be allowed and not allowed. Can you just quickly shed some light on that?

DAVID CARDWELL, FORMER FLORIDA STATE ELECTIONS DIRECTOR: Well, under Florida law, you can request a recount. It's called a protest, when a candidate or an elector can request that because the returns appeared to be erroneous, you request a recount. Initially it's done on the tabulation equipment. There's also a provision that deals with the manual recount. And historically in Florida the manual recount has been the last recount that has been done and the one that has always been accepted as the one that would be used and relied upon.

One of the apparent inconsistencies they seem to be having is the between the dates that are set for the protesting contest, which is a post-certification contest procedure, and the requirement to get the returns in to the secretary of state within seven days.

That seven-day provision was added so that those offices that were not being protested or contested, those could be certified and you would look to see what other offices were still outstanding at that time, and those returns would be ignored.

WOODRUFF: All right, Ken Gross, election law analyst here in the studio here in Washington. Ken, why is it important that the court figure out these kinds of questions before it makes a ruling?

KEN GROSS, CNN ELECTION LAW ANALYST: Well, the court is concerned about this getting to voters of Florida, their vote counting. And there's two concerns there: that if they go by the seven-day deadline it's going to ignore the returns of all these undercounted ballots. But if they build too much time into the process, then what's going to be happening is that there may not be enough time to contest the election, which could be contested by Governor Bush as well as Vice President Gore before the December 12th deadline.

So they want to leave enough time for a contest and not jeopardize all the votes of Florida, but at the same time not ignore the undercounted votes. They didn't seem particularly hung up on the seven-day deadline.

And the other point that I was listening for is the chads. The chads are in play here, too. Let's not forget about that. And one of the justices asked, is it up to us to rule on the chads, too? And they said, absolutely. That issue is before the court. And they said, what about other states? Do you count the dimpled chads? And the lawyers for Gore said, yes, you do in other states. And the lawyers for Bush deferred, said, well, we're not arguing other state law here.

WOODRUFF: So are the justices are being asked to, Ken Gross, are they being asked to rule on which kinds of ballots should be counted legitimately for a candidate or not? We know that that was part of what the Gore team was asking, but are the justices going to feel that they have to rule on that one way or another?

GROSS: I think that the justices do feel some duty to straight that out, that the...

WOODRUFF: Because it didn't come -- it didn't seem to me to have come up a great deal, as you just said, in the arguments.

GROSS: It really didn't. I was listening for it, and it came up a little bit, not very much. And one of the questions they has, is that one of our questions. It's hard to say. They may defer on that. If they do defer, I think that they would have to say something like, it's up to the board's discretion to decide it. We're not going to set a standard. But they have to say something about it.

WOODRUFF: All right, CNN's Mike Boettcher has been down in Tallahassee watching this story as it's unfolded. He's been in the courtroom there in Tallahassee this afternoon as the Florida state Supreme Court heard these arguments.

Mike, you're our eyes and ears for what was going on in that courtroom. We had, I guess, a few cameras we were privy to, but that was about it.

What did you see? What was the bigger picture there in the courtroom?

MIKE BOETTCHER, CNN CORRESPONDENT: Well, it was a very attentive office -- courtroom, pardon me. I think that people looked at each other a lot during the exchanges between Justice Pariente and Michael Carvin, the attorney for George W. Bush. That was kind of seen there as the most pointed questioning during the period, the two-hour period that these arguments occurred.

Seated in the back, behind their teams of lawyers, were the respective leaders of the groups for Al Gore, Warren Christopher and James Baker there for George W. Bush. Who was conspicuous by her absence, however, was Katherine Harris. She was not in the courtroom, although two of the election commission members were there, Bob Crawford, who is the state agricultural commissioner and Clay Roberts who runs the division of elections here for the secretary of state.

But, it was a generally subdued crowd and I think that you got the sense very early on in there that they'd already seen all of the arguments and they were going to go right ahead and ask pointed questions and make their points.

So, it was very fascinating to be in there see this.

WOODRUFF: Mike, subdued inside the courtroom, but there is nothing subdued about what is going on behind you. If you could turn around and look and tell us, just describe for us the scene. Is this all one side or another? Is it all pro-Bush, pro-Gore? Is it evenly divided? Or, what is going on in there?

BOETTCHER: I was kind of caught in the middle of this trying to get out of the courtroom. On one side there are Gore supporters, on the other side there are Bush supporters. And they are separated by the middle sidewalk running out of the Supreme Court building, chanting at each other and trying to make as much noise as they can and made it very difficult for some of the principles in this case to get out of the courthouse.

And it's a scene up there, Judy, a big scene right now.

WOODRUFF: All right. Mike Boettcher, thanks very much. We are glad you made it out and through the crowds safely.

We are going to take a break. More analysis of today's arguments before the Florida Supreme Court. When we come back, among other things, we will talk with representatives. We'll find out what the candidates and the campaigns had to say about what took place today. We'll be right back.

(COMMERCIAL BREAK)

WOODRUFF: A little more than 20 minute ago in this building, which houses the Florida state Supreme Court, arguments concluded from both the Bush and Gore camps on why or why not those manual recounts under way in three Florida counties should be included in the vote total in Florida. A critically important question, because it could determine who's the winner in Florida, and therefore, who gets those crucial 25 Florida electoral votes.

Let's get some reaction now from the campaigns. CNN's Jeanne Meserve is in Austin, Texas. She's been talking to and covering the Bush -- the Bush campaign in Austin.

Jeanne, I assume they were watching this very closely down there.

JEANNE MESERVE, CNN CORRESPONDENT: Watching it, but we have no reaction as yet from either the governor or any members of his staff. The governor trying very hard today, I think, to project an image of normalcy.

He started the day out over at the Statehouse, and when he was asked how was doing, he said doing great, thank you. And that's the only thing of any substance he's said to the press all day long. He did some state business at the statehouse before he went to a gym and worked out, came back to the governor's mansion.

It was kind of interesting to us, we saw him leave the governor's mansion about half an hour into the court proceedings this afternoon. So if he was following them -- and we presume he was -- apparently, he was not following events word by word. Then we're told he went back to the statehouse and monitored developments from there, did a little bit more state business.

The headquarters for the Bush campaign was described this morning as being eerie, as being quiet, and almost a state of suspended animation as they waited for these critical court proceedings to begin, but no reaction yet from them this afternoon about what's transpired.

Let me tell you, Judy, there was a development today that's good news for the Bush people. The attorney general for the state of Florida issued a statement this afternoon saying that those overseas military ballots should be looked at once again. If a ballot is postmarked no later than the date of the election or if the ballot is signed and dated no later than the date of the election, they should be reconsidered. This is a victory for the Bush people. They have been hammering on the Gore campaign since Saturday for, they felt, systematically rejecting these ballots. They think that between 900 and 1,100 of these ballots were rejected, and that the majority of those military votes would go for George Bush.

Judy, back to you.

WOODRUFF: All right, Jeanne Meserve in Austin, and let's go quickly now to Washington, to CNN's Chris Black, who's been covering the Gore campaign.

Chris, if Governor Bush was watching or listening only intermittently, if at all, how about Vice President Gore?

CHRIS BLACK, CNN CORRESPONDENT: Vice President Al Gore, Judy, went back to his official residence up on Mass Ave. at the Naval Observatory, and he watched every second, from what we've been told. He's been intensely involved in this. He's been watching it very closely, been very close to his political and legal team throughout the entire -- this entire matter. And in fact, he canceled a planned trip to Tennessee, a long-planned trip to Tennessee to stay here so that he could focus completely on the legal proceedings.

WOODRUFF: Chris, the state attorney general in Florida, as Jeanne Meserve just reported, has announced that he -- a reversal of position apparently that those overseas ballots, even if they lack a postmark, if they are from military personnel, should be included. What is the Gore camp saying about all of this?

MESERVE: Well, the Gore camp is looking at that directive, but it's important to note that Bob Butterworth is a leader of Gore's campaign in Florida. He's a very, very strong supporter of Vice President Al Gore. But what they say is that, pending this -- a fuller look at what -- of exactly what the directive says, is that they really support whatever the local dictates.

The Gore campaign believes they will get their share of those military ballots overseas and they deny that there was any systematic attempt to throw them out. A lot of enlisted personnel, for example, are members of minority groups. They believe they would get their fair share of those votes.

And in terms of today's hearing, while there's no official reaction from the Gore campaign -- in fact, David Boies said they would have no comment -- privately, what they're saying is they're very encouraged by the nature of the questions what the justices were asking. They got the impression that this court is prepared to set a uniform standard for judging ballots, which is one of the most important things to them.

In fact, at one point, Justice Harding flat out said that he believed the standard for judging ballots was voter intent, which is exactly what the Gore campaign wants -- Judy.

WOODRUFF: That's right. We heard that as well. Chris Black here in Washington, thanks very much.

Also joining us here in the studio in Washington, CNN's Frank Sesno, who's been talking to folks in both political parties about what they think it means, whether Governor Bush's side loses coming out of the state Supreme Court and if those ballots are counted, and conversely, Vice President Gore is seen as victorious and the ballots are counted.

FRANK SESNO, CNN CORRESPONDENT: Well, Judy, it would be a keen observation of the obvious to say that's what's happening in Florida state Supreme Court is really -- is really what, you know, all sides are watching. That's the big game in town right now, and a very interesting divide.

Allies of George W. Bush -- prominent Republicans around Washington, actually, most of them are scattered out in their districts, I am talking about elected representatives, senators, strategists, that sort of thing -- say that if George W. Bush does not prevail, if has viewpoint does not prevail, he needs to press on. He needs to basically continue to say that this is a process that is riddled with mischief or problems and go to the next legal level. Or even if he is pushed to it, say there should be a statewide recount.

The Democrats, on the other hand...

Judy: The next legal level being what? the United States Supreme Court?

SESNO: Go back to federal court in Atlanta or wherever they need to go to take their next recourse. And there is, obviously, some question and debate about precisely where they do go. To not even rule out action with the Florida state legislature or in the U.S. House of Representatives, if it comes to that. But that is premature.

On the Gore side, another very interesting observation and that is the opposite, that if this goes against Al Gore, according to many very senior Democrats, this is really the end of the line for him, that more legal challenges would be difficult to bear out, more legal challenges would be difficult to explain. In the words of one senior Democrat, Judy, if he loses in the Florida state Supreme Court, he should say, I have been robbed but I'm going to play the role of the injured prince and I am going to step out.

WOODRUFF: Is that because the Florida Supreme Court, Frank, is seen as a, perhaps, a sympathetic body to some of the arguments the Gore team are make making.

SESNO: The way that it was explained to me...

WOODRUFF: And if they lose there, then the hurdle becomes much, much higher.

SESNO: The way it was explained to me last week is that there needed to be three legs to the stool that was supporting Al Gore in the continued demand for the recount. One was the recount itself. It needed to proceed. People need to see election officials holding up those ballots or whatever, actually counting votes. Two, they needed to hear that there were going to be additional votes, that they were actually finding votes that hadn't been counted for the vice president. And three, that the Florida state Supreme Court, with it's jurisdiction and it's stature, would somehow bless this operation.

They needed all three of those things. Lose one, according to these strategists and observers and participants, and you pull the stool out from under Al Gore.

WOODRUFF: All right, Frank Sesno, I should tell our audience that I've just been told in the last few seconds the Florida state Supreme Court has announced that there will be no decision today, no decision today. Not -- that is not a particular surprise. I think most of us expected that it would be tomorrow or Wednesday or, perhaps, even later. But I think most, most of the thinking has been that it would be Tuesday or Wednesday of this week, given the Thanksgiving holiday and given the given the urgency of the matters before the court.

We'll be back in a moment with more coverage of today's arguments before the Florida court. We'll be back.

(COMMERCIAL BREAK)

WOODRUFF: An update from Tallahassee: the Florida state Supreme Court has told us within the last few minutes that there will be no decision today on the argument before it.

The case before it, asking on the part of the Gore for president campaign, namely, that those manually-recounted ballots -- ballots being recounted in three Florida counties -- be included in the final, certified total of votes in the state of Florida. The Bush campaign, of course, as we know very well by now, arguing that those ballots being recounted by hand should not be included. They should stick by the total that they have, include the absentee ballots and that should be it.

Well, as the state Supreme Court considers the argument and prepares to write an opinion, which we are told could be tomorrow, could be Wednesday, we're not really sure.

Let's go down to the site, the scene of some of that hand recounting underway. And first to Palm Beach County, where CNN's John Zarrella has been keeping an eye on that critical counting that's been going on for how many days now is it, John?

JOHN ZARRELLA, CNN CORRESPONDENT: I think at a week now, Judy. It looks as if -- I think it is going to go several more days now. They've come out with a proposal that says they want to stop at 5:00 Wednesday, take Thursday, Friday, Saturday off and if they have enough counters to start again Sunday, they will start on Sunday and go through Monday. And only the canvassing board will meet over the weekend to go over the questionable ballots.

I think that is one of the things Supreme Court wanted to know was how long can these recounts take? Well, we can see here with the holiday thrown in and the desire to give people some time off, Judy, that this could well stretch into next week and it would have been about a two-week process.

They're at about 41 percent of the precincts now, still a long way to go -- Judy.

WOODRUFF: All right, that's the picture in Palm Beach County.

Let's quickly go south to Broward County where CNN's Susan Candiotti has been watching the process -- Susan.

SUSAN CANDIOTTI, CNN CORRESPONDENT: Hello, Judy.

Well, all along, as you know, the canvassing board here has predicted that it would meet its deadline by 5:00. It doesn't appear to have been met. At last count, within the last half hour, 85 percent of the 609 precincts had been reviewed with net gain of 119 votes for Vice President Gore.

But even after the board completes those 609 precincts, it has said all along that it must review those so-called dimpled ballots and they've been segregating those ballots. There are hundreds of them to be gone over.

Now, we have a late development for you. There is always something new, it seems, happening here. The sole Republican on this three member canvassing board, the Broward supervisor of elections, Jane Carroll, who is 70 years old, has just announced to her colleagues that she is leaving tomorrow on a family vacation in California. She said that even if I wasn't thinking of my family, I have to think of my health.

And with that, the canvassing board is now trying to figure out who will be a replacement. They're trying to find someone from the county commission and they said that the person would qualify as long as they weren't actively involved in any campaign and they weren't running for reelection.

Judy, that's it from here. Back to you.

WOODRUFF: You're right, it's never dull until Broward County. Susan Candiotti. Thank you very much.

We're, that's -- that is this part of our coverage of today's arguments before the Florida Supreme Court. We're going to take a break.

When we come back, "INSIDE POLITICS" with a much more extended look, more analysis. We'll have interviews and the rest of it. I am Judy Woodruff in Washington. We'll be back in just a moment.

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