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Election 2000: The Florida Vote

Aired November 27, 2000 - 8:30 p.m. ET



AL GORE, VICE PRESIDENT OF THE UNITED STATES: The law says when votes haven't been counted, you go to court.



DICK CHENEY (R), VICE PRESIDENTIAL CANDIDATE: Never before in American history has a presidential candidate gone to court to try to change the outcome of an already certified presidential election.



DAVID BOIES, GORE CAMPAIGN ATTORNEY: This is an election that's too important to the American people to be decided other than in the impartial forum of the courts.



CHENEY: Our Supreme Court has always been recognized...


ANNOUNCER: The road to the White House detours through the courts. Tonight, what could be the ultimate destination: the U.S. Supreme Court.

This is a CNN special report. Election 2000: The Florida Vote.

From Washington, CNN legal analyst Greta Van Susteren.

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: Good evening. Before we take a look at whether the U.S. Supreme Court could actually bring an end to all of this, here's a look at what happened in court today. Lots of ground to cover on the day's legal challenges.

In Tallahassee, a state circuit court is hearing the main challenge to Florida's certified election result. The Gore campaign is contesting the results in Palm Beach, Miami-Dade and Nassau counties. The judge and lawyers spent this afternoon hashing out a time schedule.

Also, in Tallahassee, the Florida state Supreme Court is considering whether to hear the legal challenges to Palm Beach County's butterfly ballot. Some voters want the court to order a new election in that county.

And moving to Tallahassee, a Seminole County case where Democrats allege Republicans tampered with 4,700 absentee ballots.

In Atlanta, a federal appeals court today postponed oral argument on arguments on Republican challenges to the constitutionality of Florida's now finished manual recounts.

And in Washington on Friday, the U.S. Supreme Court gets into the act: The justices here oral arguments on a Bush campaign appeal claiming the Florida Supreme Court went too far in extending the deadline and allowing hand recounts.

Correspondent David Mattingly looks at this unprecedented development, how we got here, and why this still might not be the final round.


LANNY DAVIS, FORMER CLINTON SPECIAL COUNSEL: I'm sure a sitting Supreme Court justice believes that providing some final closure on all the swirl of legal arguments might be a good thing to do here.

JAMES BAKER, OBSERVER FOR BUSH CAMPAIGN: We have no assurance the other side will stop. Obviously, we cannot dismiss our request to the Supreme Court.

DAVID MATTINGLY, CNN CORRESPONDENT (voice-over): During the rapid change of events the weeks after the November 7th election, the possibility of a U.S. Supreme Court finale seemed distant to some observers.

PROTESTERS: Ho, ho, hey, hey, how many votes did you steal today...

MATTINGLY: After all, how could the tried-and-tested array of state and federal courts fail to remedy the pending morass of ballot and recount controversies?

EDWARD LAZARUS, FORMER SUPREME COURT CLERK: I think it's a considerable surprise. The Supreme Court has decided to really up the stakes in this election. Before I think it's fair to say that what was at stake is which of these two men was going to suffer though gridlock for the next four years. Now the court has put the entire bedrock legitimacy of the judicial branch on the table.

MATTINGLY: Former U.S. Supreme Court clerk and author Ed Lazarus is among observers now concluding that the high court involvement in this presidential election was unavoidable. LAZARUS: It is a largely state law issue, but there's never been in modern history an election this chose where the legal issues are so prominent.

UNIDENTIFIED FEMALE: Let every vote count!

MATTINGLY: The question before the court is clear. The Bush campaign wants to know if the Florida Supreme Court overstepped its bounds by setting a new deadline for ballot certification, and did the court go too fair requiring Florida Secretary of State Katherine Harris to include additional hand-counted ballots?

But the justices also have a question: They wants briefs from both sides explaining consequences of a ruling that overturns the Florida court.

LAZARUS: What if the Supreme Court decides this case five to four, not unanimously? Then we have a real problem, because then it seems as though the court's decision is really just almost might makes right, five beats four, and that's no way for a presidential campaign to be decided.

MATTINGLY: In spite of whatever consequences might exist, what remains truly uncertain is how the high court will rule.

Of the nine justices, seven were nominated by Republican presidents, the remaining two most recently by President Clinton.

LAZARUS: The court has been pushing a very dramatic states' rights agenda over the last decade, and whether that agenda flourishes or is reversed may well depend on whether Bush or Gore is appointing future Supreme Court justices over the next four or eight years.

MATTINGLY: As always, the U.S. Supreme Court's word is final, but only as to the issue before it. So Friday's case before the justices may not be the final need for the court's involvement in this election.

If Vice President Gore's challenge of the Florida vote fails in state court, could he be headed to the U.S. Supreme Court as well? And if so, will the nation's highest court ultimately be called on to cast the deciding vote in this historic presidential impasse?

David Mattingly, CNN.


VAN SUSTEREN: Some provocative questions raised by David Mattingly. And when we return, two guests with differing viewpoints on the role the Supreme Court should play in this presidential election. And in about 20 minutes we'll have live coverage as Vice President Al Gore speaks to the nation from his residence. And we'll be right back.

(COMMERCIAL BREAK) VAN SUSTEREN: Joining me now to discuss the U.S. Supreme Court's role in election 2000, from Atlanta, Teresa Wynn Roseborough. She's working on the legal brief the Gore campaign is preparing to file with the Supreme Court. And in our Los Angeles bureau is Pepperdine University law professor Douglas Kmiec, an adviser to the Bush legal team.

Welcome to you both.


VAN SUSTEREN: Teresa, first to you, the job of the Supreme Court or any court is to interpret the law, not write the law. Why is it when the Florida Supreme Court changed the certification deadline from November 14th to November 26th, why isn't that writing the law and why isn't that a violation of its duties?

ROSEBOROUGH: In Florida, as in most states -- and indeed in the United States -- it is the courts that are charged with resolving controversies between legislative enactments. As you know, legislatures do not always enact legislation in a consistent way. Sometimes as circumstances evolve you find that various provisions of legislative enactments are in conflict with each other, and that's exactly what happened here.

As we entered an election which was narrower than any that Florida had seen before and on a nation and statewide scale, provisions of the Florida statutes became applicable in a way that threatened to contradict each other, and that because it was a new circumstances -- circumstance, the state agencies charged with responsibility for applying and enforcing these laws quite rightly turned to the court for guidance as to how to apply these statutes in consistent way.

VAN SUSTEREN: But when you talk about guidance, actually setting a new deadline, is that guidance, that advising, or is that something more?

ROSEBOROUGH: That's simply the process that courts go through when they have to harmonize conflicting provisions of statutes.

Here, the Florida Supreme Court was confronted with a circumstance where the legislature obviously intended to give candidates the opportunity to have a manual recount of ballots where it could possibly affect the outcome of the election. Just as clearly, they gave the secretary of state some discretion to determine how long after the seven-day deadline she would accept certifications from counties.

What was threatened was a circumstance where the state secretary could impair the right of the candidates to get a manual recount.

VAN SUSTEREN: Let me give Doug a chance to respond to you. Doug, is it harmonizing statutes? I mean, what's wrong with that? If the Supreme Court is faced with a problem of two conflicting statutes, what's it to do?

DOUGLAS KMIEC, ADVISER TO BUSH LEGAL TEAM: Harmonizing statutes is fine, but rewritings is not. And I think fundamentally what we have here is revision.

In point of fact, the secretary of state of Florida harmonized the statutes by her own interpretation. A trial court had said she had exercised reasoned judgment. And the difficulty is, is that Vice President Gore wanted votes that were not fully cast, not properly cast basically reinvented or reconditioned and then counted.

VAN SUSTEREN: What was the Supreme Court to do, though, Doug? The problem it has is that you have a statute which says you can have a manual recount and you've got this statute that says there's a November 14th deadline, and then it gets dropped in the Florida Supreme Court. What's it to do?

KMIEC: Well, the Florida Supreme Court I think could have looked at the text of the statute and seen that the manual recount provision was not automatic, that in fact it largely related to machine error or substantial noncompliance with the election code, and it did not relate to the circumstance that the vice president and Senator Lieberman has pushed it to.

So they created their own conflict, and what happened here is that the Florida Supreme Court changed the date, disregarded the executive responsibilities given to the officer of the state, and that they cannot do under the American Constitution. The American Constitution very clearly says that it is the state legislature and not the state courts that determine the manner of appointing presidential electors.

And this is vital, Greta, because if the Supreme Court decides, as I think they will, in accordance with the text of the Constitution, that means that all of what we've been seeing today, this embarrassing spectacle of continuing more and more recounts after the recounts will largely, I think, dissipate because we will return to the November 14th date and the secretary's discretion. And that will mean these contests are largely out of time.

VAN SUSTEREN: Let me ask you, Teresa, the Supreme Court's going to hear arguments on Friday. Can the Supreme Court truly end the disputes that we seem to be having over these votes in Florida?

ROSEBOROUGH: Not in the context of the questions that are now presented before it. The issue before the court now is simply whether the Florida Supreme Court acted appropriately in resolving the conflict between the two state statutes that were intentioned with respect to the manual recounts. I think that the Supreme Court will clearly say that that court did what it would have done, which is to seek a harmonizing construction of the two statutes...

VAN SUSTEREN: And I -- and I can tell you...


ROSEBOROUGH: ... facts and circumstances.

VAN SUSTEREN: And I can tell you, if we didn't have to go to break, Doug would disagree with you. But we're going to take a break. More of our discussion when we return, and stay with us for live coverage of Vice President Al Gore's addresses to the nation. It's at five minutes before the top of the hour. We'll be right back.


VAN SUSTEREN: Welcome back to our special report. I'm speaking with Gore campaign attorney Teresa Wynn Roseborough and Pepperdine University law professor Douglas Kmiec, as adviser to the Bush legal team.

Doug, as a practical matter, if Governor Bush wins in the Supreme Court, what does he get?

KMIEC: Well, I think he gets a remand to the Florida Supreme Court that basically says, Florida Supreme Court, you have to follow the law as written. The law as written said that the election should have been certified on November 14th. That's certification that will count. That means the contest period...

VAN SUSTEREN: But stop right there. Stop right there. He won on November 14th and he won on November 26th. So what does he get by that?

KMIEC: Well, one argument is that he gets to basically eliminate these spurious contests that are really repackaging of old arguments that have occurred today, because if the court was wrong to extend the deadline, to give him a free overtime period, then they couldn't also extend the contest period, and that contest period may well have expired already, and these contests are illegitimate.

VAN SUSTEREN: And Teresa, let me go to you: Under the Florida law, it says five days after the certification. If go back to November 14th, if Doug is right that the Supreme Court of the United States reverses and says Florida must go back five days it would probably put it on midnight on Sunday. Is it too late, do you think, to contest in Florida?

ROSEBOROUGH: Oh, absolutely not. The statute says 10 days after the last certification filed by one of the local canvassing bodies, and I think there's an irony here. If Governor Bush wins before the United States Supreme Court, he will win a ruling that the Florida Supreme Court changed the law and that that was intentioned with the requirements of 3 USC section 5.

If that happens, he will cast doubt on the -- the slate of electors now approved by the Florida secretary of state and possibly open the door to Congress determining that that slate was not selected in accordance with 3 USC section 5, but was, in fact, selected according to a change in the law, as they contend, by the Florida Supreme Court that would give Congress the opportunity to decide that they were not the properly seated set of electors. KMIEC: Well, in point of fact, of course, Teresa, as you know, Secretary Harris would have certified Bush on the 14th. She certified him yesterday. That is the certified slate of electors that comes from the state executive. And under the United States code, if there is some controversy, its deference to the slate certified by the executive of the state.

So I think ultimately the Congress of the United States would be in a position to accept the slate of electors from the state executive as they are instructed to do under...

ROSEBOROUGH: As you know, Doug, that only comes into play if the two houses of Congress cannot agree on what Florida law provided. Here I think it will be clear, if the Supreme Court says, as Governor Bush has invited them to, that the Florida Supreme Court changed the law by which Governor Bush's slate of electors was chosen, if that's really what they do, if they accept Governor Bush's invitation to say that, then he will have opened the door for Congress to disregard its own rule of decision under 3 USC section 5 and say that it has to make its own examination about whether this slate of electors was selected in accordance to state law.

I don't think that's a concern here. I think the U.S. Supreme Court is going to agree with Vice President Gore that the Florida Supreme Court acted appropriately and under the laws of the state of Florida and its Constitution. After all...

VAN SUSTEREN: Very quick. Let me just interrupt for one second. Doug, very quickly, because we're running out of time, do you think there's any chance that Governor Bush will file a motion to withdraw the matter in the Supreme Court? Of course, the Supreme Court would have to agree to dismiss or drop it. Any chance Governor Bush would do that?

KMIEC: Greta, there's no way for him to withdraw this so long as the vice president continues to embarrass himself and the nation with these persistent recounts and the contesting of the election. That makes it a live case of controversy, and the two issues between the U.S. Supreme Court and Florida are interrelated. The U.S. Supreme Court has a duty to act, and I think they will.

VAN SUSTEREN: And you get the last word.


ROSEBOROUGH: ... in this election...

VAN SUSTEREN: All right, Teresa...

ROSEBOROUGH: ... the reinforcement of the right of all citizens to vote and to have their votes counted, that would be a victory for all of us, regardless of which candidate...

VAN SUSTEREN: All right, Teresa Wynn Roseborough, you get the last word. Thank you both. And Doug Kmiec, also for joining me. Hope you'll come back again The Supreme Court justices today turned down efforts by the media to allow cameras in the courtroom for Friday's oral arguments, but early this evening the court did grant CNN's petition to reconsider. What goes on behind the court's closed doors has always been a mystery to most Americans, but with a little help from court watchers, here's what we can expect in tonight's case study.

The hearing will begin at 10:00 a.m. Eastern, and you can bet the chamber will be packed. Once Chief Justice Rehnquist gavels the session to order, each side makes oral arguments, and as the petitioner, Governor Bush's attorney will speak first.

The justices have allotted an hour-and-a-half to hear the case. They usually only allow one hour. Once oral arguments end and the justices vote during a private conference -- once they vote, the majority and possibly minority opinions will then be written. The justices then present their decision, one sure to go down in the history books.

After all we've heard tonight, let me know if you think the U.S. Supreme Court is the appropriate place to settle this election. My address is



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