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Special Event

Election 2000: All Eyes on Washington, D.C. as Supreme Court Hears Arguments on Florida Recount Appeal; More Ballots Headed for Tallahassee

Aired December 1, 2000 - 9:00 a.m. ET

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

DARYN KAGAN, CNN ANCHOR: All eyes are on Washington, D.C. today as the Supreme Court gets ready to hear arguments in a historic case. It seems like everyone wants to be heard in this lingering presidential election and the myriad of court challenges that it has spawned.

Good morning. This is Friday, December 1, and this is a special edition of CNN MORNING NEWS. I'm Daryn Kagan in Atlanta. I'd like to welcome our international viewers who are joining us from around the world here on CNN.

Just one hour from now, the highest court in the land, the U.S. Supreme Court, will begin to hear oral arguments in a case that could help decide, finally, who will be the next president of the United States.

We have full team covering this historic day's events. Washington bureau chief Frank Sesno joins us from the nation's capital and my partner, Bill Hemmer, continues to watch activities from Florida state capital of Tallahassee. Bill will update us in just a bit. First we go to Washington and to Frank Sesno.

Good morning to both of you.

FRANK SESNO, CNN WASHINGTON BUREAU CHIEF: And good morning to both of you.

Well, add to this unprecedented election of 2000 the real drama and history of what's going to happen today at the United States Supreme Court. We have a team of veteran correspondents following every angle of this critically important story, one that will shape the future of the country.

CNN senior Washington correspondent Charles Bierbauer will be inside the courtroom this morning with a true front row to history as this extraordinary session takes place. National correspondent Bob Franken and CNN's Carl Rochelle are covering developments outside the high court. We'll hear from them in just a few minutes from now. You can already hear some of what's happening behind them.

Our legal experts will be with us throughout the day to help sort through the issues and the procedures which will shape the day and the arguments to come. Legal analysts Greta Van Susteren and Roger Cossack are already headed inside the courtroom to hear the arguments themselves firsthand. And we we'll hear from them once the session concludes. You'll hear the session itself on audiotape; that, too, unprecedented.

First, let's look at how the things are expected to proceed today. Lawyers for Texas Gov. George W. Bush will be asking the Supreme Court to throw out the hand recounts in the Florida election battle. Oral arguments begin at the top of the hour at 10:00 a.m. Eastern time. They are scheduled to last 90 minutes, until 11:30 Eastern time. Lawyers for the Bush team will go first. No cameras are allowed in the courtroom, in keeping with long-held and fiercely defended tradition. But the court has agreed to release an audio recording shortly after the hearing. That, as I mentioned before, is a first. And we'll bring that to you as soon as it's available. You'll hear it right here on CNN.

Now, the toughest ticket in town this morning is for a seat inside the Supreme Court itself during today's historic arguments. Our senior Washington correspondent Charles Bierbauer will be, as we said, among those in the courtroom.

Charles, quite a day.

CHARLES BIERBAUER, CNN SENIOR WASHINGTON CORRESPONDENT: Yes, it is, Frank, unlike anything I've ever seen here at the Supreme Court. It's getting kind of loud and blustery politically outside. It looks a bit like a political campaign. But inside, it will be with all the decorum that the Supreme Court always has.

As you say, I've got a second row seat to history and we'll be watching up close. Typically, we take a pad and pencil in there. This time we'll have the luxury, later, of being able to listen to the tape. And what I'll be looking for in what is always a rapid-fire dialogue between the justices and the lawyers, and in some ways actually a dialogue among the justices themselves, is how they attack the two positions: that position of George Bush that the Florida Supreme Court acted out of line, the position of Al Gore and his lawyers that the Florida Supreme Court was simply interpreting law as was well within its rights to do so.

As you say, each side gets 45 minutes; 45 minutes first for the attorneys for George W. Bush, as well as the Florida secretary of state; and then 45 minutes for the attorneys for Al Gore, as well as the Florida attorney general.

After that, I'll be back out here as fast as I can get out of the crowded courtroom, and then we'll all have the luxury of listening to that tape, a piece of history for the U.S. Supreme Court. On the outside the court while I'm inside, my colleague Bob Franken.

BOB FRANKEN, CNN NATIONAL CORRESPONDENT: And Charles, what you'll be hearing inside is an argument over two fundamental constitutional issues: the issues of states' rights and separation of powers. It is the Gore campaign that wants states' rights to prevail to allow the state supreme court decision that was made in Florida to go unimpeded by the U.S. Supreme Court justices, translated to that the recount goes on. If the justices would say that, in fact, it was improper what was done in Florida, the recount could stop and that could fundamentally mean that the battle was over and that George W. Bush could very easily, then, have prevailed.

The other argument is a separation of powers argument, one of those issues that was discussed during high school civics class. The issue: Should, in fact, the Florida state Supreme Court justices have taken over the duties of the state legislature? The Bush campaign lawyers are saying that should not have occurred, that the Florida state Supreme Court justices overstepped their authority. The Gore campaign says that all the justices were doing was interpreting, as the courts are supposed to do, the actions of the legislature.

The state legislature, of course, has been making its own signals that it could come up with a slate of electors. That is an issue that we could expect to be discussed before the justices today. The Bush campaign lawyers have continuously brought it up. The Gore campaign lawyers have said it doesn't belong in this hearing.

Outside the hearing has been an illustration of another constitutional amendment: the 1st Amendment, the right of expression, free expression. And covering those free expressions is Carl Rochelle.

CARL ROCHELLE, CNN CORRESPONDENT: Bob, there are a number of people out here. They have been here for hours. We've been watching it build up, a couple of hundred now. It seems that the Bush forces outweigh the Gore forces.

I have with me Ron Hilton (ph), who's a security officer.

Ron, do you outweigh them?

UNIDENTIFIED MALE: I think so. I think we've got a lot of people out here and its -- you know, I just came on my own out of my own -- I was sitting at home watching the show, whatever, and watching the CNN and I decided to come out here and voice my opinion.

ROCHELLE: Who are you trying to get your message to?

UNIDENTIFIED MALE: I'm just trying to instill upon everyone by being here my trying to, you know, show what I believe in. And the thing about the "GOP Thug" that's -- Republicans are out here en masse. There's a lot of Republicans out here. And what Democrats are not used to seeing is a bunch of Republicans out here fighting for what they believe in. You know what? There's a lot of people out here on the Republican side and the Democrats. Hey, Bush won. He won and that's all there is to it.

ROCHELLE: OK, Ron, thank you very much.

Now, on the other side, I have Mike Bledsoe (ph), who's a pastor who's from Arlington, Virginia.

Mike, you don't agree with that. UNIDENTIFIED MALE: No, and I'm out here to stand with those who believe that democracy is a very simple idea, that the votes count and that's how you register the voice of the people: you count the ballots. And I think it's positively Orwellian to have the law and order candidate not have us count the votes. So I'm standing out here next to a fellow with a GOP -- I'm a "GOP Thug" sign -- to say that count the votes. That's what matters.

ROCHELLE: Now, how do you feel about being overwhelmed in numbers out here? Why doesn't the Gore team have more people?

UNIDENTIFIED MALE: Yes, I've been out here since 6:30 and the Bush folks have been quite vocal and there's been a good number of them, but I think the numbers are starting to even up now.

ROCHELLE: OK, thank you very much, Mike.

You see both sides here -- both sides are talking to each other. It is a friendly protest, but it is a protest, make no doubt about that. And if you look over the crowd, what you will see from time to time, it looks like confetti going up over the crowd. It's not. They say it's chads, chads they're tossing up in the air, part of this demonstration here.

Frank, back to you.

SESNO: OK, Carl Rochelle.

Of course, as we watch the court throughout the day, both campaigns watching very closely as well, both campaigns saying that what happens at the Supreme Court obviously, and quite apart from the legal field on which they're all playing, will shape their destinies because of the political impact.

Michael Gerhardt who joins us now, constitutional expert, law professor.

Michael, what is happening at the Supreme Court today in terms of these campaigns?

MICHAEL GERHARDT, WILLIAM AND MARY COLLEGE: Well, several things obviously are happening. The first is a political battle. And we see that being waged outside of the court. That's a battle for public opinion. That's a battle about whether or not the manual recounts are legal and whether they should count. But there's also a legal battle that's taking place within the Supreme Court. And that battle is actually a relatively complex one. It has to do with whether or not the Florida Supreme Court, when it tried to resolve the issue presented to it by the Gore campaign, was it merely issuing a judicial opinion, or was it doing something much more different, that is acting like a legislature, changing the law, literally changing the law of Florida in such a way that it actually creates a problem under federal law?

SESNO: Both sides will cite statute and law and Constitutions to argue the point as to whether the Florida Supreme Court was changing the law or interpreting the law when they extended the deadline for certification and allowed those recounts.

GERHARDT: That's right. They are going to be citing all the things that lawyers, of course, rely on, which is statutes and opinions, but there are not a lot of relevant materials here. This is an area that actually is pretty new for the court. The court rarely, if ever, steps into a situation where it's going to second guess, really, what went on in a state in terms of the state's interpretation of its own laws.

SESNO: Clear outcomes our muddled outcomes as possibles?

GERHARDT: Well, I think, of course, either is possible. I think the real problem here is that the court doesn't issue a unanimous opinion. But I think the court's decision will be much more vulnerable to political attack and it will look much more partisan. And even if the court comes up with a unanimous opinion, I don't think it's likely to bring closure to this. I think the problem is one side will lose, that side will attack the court's opinion as inconsistent with the rule of law.

KAGAN: Professor Gerhardt, Daryn Kagan down here in Atlanta. The question for you today about logistics: 90 minutes for arguments today, a 50 percent increase in what the court usually allows for their arguments. How did they come to that decision? And is it because it is such a historic, important case?

GERHARDT: Well, obviously they -- the court has the control over how much time it will allow people in terms of whether or not it will increase the usual amount of time. But I don't think it's that unusual for the court to increase the amount of time. It does happen with some regularity. But I do think it is one signal, probably one relatively credible signal, that the court recognizes that this is not just the run-of-the-mill case. The implications of this case, the issues raised in it, are novel and they are serious.

KAGAN: And 50 percent increase seems like a lot relatively. And yet 90 minutes to decide something that is so important, when you look at other legal cases, it seems relatively short.

GERHARDT: Well, that's true. And, in fact, in the great scheme of things, 90 minutes, although it should be good enough for a lawyer to put his case together concisely, is not that much time in terms of the history of the court. In fact, it used to be that lawyers would argue for days over a matter. In Buckley vs. Valleo, for instance, a great case about election law, that took more than a day.

So the court, in fact, in the past has given a lot of time to litigants' lawyers who argued great issues. But today, 90 minutes is, relatively speaking for today's time, a good bit of time.

SESNO: Michael, let me jump back in here. For those at home who may be taking out their scorecards and preparing to follow this thing, they may be hearing a fair bit about Title 3, Section 5. Now, this regards laws enacted prior to the election in terms of determining who the electors will be. Both side are gravitating to Title 3, Section 5. Why? GERHARDT: Well, that's the relevant federal statute here. It's a 19th century statute that was passed in the aftermath of the very controversial 1876 election. The whole idea behind Section 5 is to try and set up a process for insulating a state's choice of its electors from scrutiny later in Congress. It's trying to protect the state's choice of electors from being second-guessed or overturned in Congress. The way in which to do that, the statute says, is that the law that governors the selection of the electors must be the same after Election Day as it was before Election Day.

SESNO: On a scale of one to 10 on the "holy cow" meter, what's today?

GERHARDT: I actually don't think it's as huge as a lot of people think. I would say probably it's a three or four.

SESNO: Oh my goodness. We'll have to argue that one in the future.

Daryn, there you go. Take it away.

KAGAN: The professor has certainly seen some incredible things if he only calls this a three or four. To us here at CNN, we find it probably a 10 for us.

And we encourage you to stay with us. Tune into CNN for special coverage of these oral arguments. The actual proceedings are set to begin, as we said, at the top of the next hour. After that, we will bring you audio of the arguments as soon as the court releases the tape. You can also watch or check out the historic proceedings by punching up CNN.com on the Web; CNN.com, a very simple address to find out.

Also we're going to find out what it's like to argue a history- making case before the Supreme Court just ahead: a visit with attorney who -- get this -- one who argued Roe vs. Wade, and the Nixon papers, another attorney there. Also more before the high court. All that still ahead on MORNING NEWS.

Meanwhile, as so much is happening in Washington, D.C., still a lot happening in Florida. And we're going to go down to the state capital, Tallahassee, to check in with my partner, Bill Hemmer.

Bill, good morning.

BILL HEMMER, CNN ANCHOR: Daryn, good morning to you from Tallahassee.

You know, there's going to be a rather interesting juxtaposition here when these oral arguments begin in about 45 minutes time. The justices will be inside with the attorneys hearing the arguments inside.

Meanwhile, though, it's quite likely you'll get a split screen on television here as the second truckload of ballots makes its way toward Tallahassee. We had one yesterday from Palm Beach County, we're getting one more later this afternoon from Miami-Dade County. In fact, they started in Miami before the sun came up loading up another truck and heading north here.

CNN's Brian Cabell along for the ride. He's with us by telephone now.

Brian, we talked last hour. How is progress since then?

BRIAN CABELL, CNN CORRESPONDENT: Yes, Bill, we continue to snake our way north on the Florida Turnpike. It's remarkable how many people are abiding by the speed limit today because, of course, we've got two police cars with us. There is quite a logjam behind these two...

(AUDIO DIFFICULTIES)

... 6:00 in the morning. Yesterday, of course, they finished (UNINTELLIGIBLE) brought them downstairs from the 19th floor, loaded them up into one of these two trucks. And the whole process too no more than about 45, 50 minutes. And then we took off, as you indicated, in pre-dawn hours, 654,000 ballots....

(AUDIO DIFFICULTIES)

HEMMER: Hey, Brian?

CABELL: Yes?

HEMMER: Hey, Brian, sorry, a bit of bad cell service, I guess we could say. You're breaking up just a little bit, though. But if you could just tell us in a nutshell, where are you, again, just to make that clear. Osceola County. We're probably about one-third of the way to Tallahassee.

HEMMER: OK, much clearer, great. Brian Cabell, thanks, alongside that caravan.

As Brian was talking about, we know yesterday up the Florida Turnpike to a place called Wildwood, takes you to I-75 North and then West on I-10 into Tallahassee.

Brian, thanks. We'll talk a bit later this morning as your progress moves again forward here.

Now, back to the legal maneuvering and the very latest legal maneuvering that we picked up on last night. The Bush campaign has filed motions in circuit court here trying to get a numbers of things accomplished here. They're quite proactive in their legal charge right now. One of the issues they're trying to do is to actually bring more ballots to Tallahassee in addition to the two counties we just talked about.

Let's go over to circuit court with CNN's Mark Potter to find out what's happening over there this morning.

Mark, good morning to you. MARK POTTER, CNN CORRESPONDENT: Good morning again, Bill.

Yesterday afternoon just before 5:00 when the clerk's office was about to close, attorneys for George W. Bush came to court to file their response to the lawsuit filed by Vice President Gore in which he contests the election asks for a recount of at least the contested ballots in Miami-Dade and Palm Beach counties. There's a hearing on that tomorrow, presumably an all-day hearing, before Judge N. Sanders Sauls.

Now, in their filing, first and foremost, the attorneys for Gov. Bush are asking that all of this be thrown out of court. In what is known as a motion to dismiss, they argue that Vice President Gore and Sen. Lieberman do not have legal standing to file the sort of lawsuit that they filed here. They also say that a request for a manual recount is, in the words of their motion to dismiss, quote, "unwarranted, inappropriate and without basis in Florida law."

That motion to dismiss, we are told, will be discussed at the beginning of tomorrow's hearing before Judge Sauls. It will not be discussed today. There has been some confusion about that. We want to stress that that hearing is tomorrow morning. The judge's office has been getting some calls on that.

The Bush campaign is also asking that ballots from three other counties be brought here to the courthouse in Leon County. The theory there is that if Vice President Gore can try to recount ballots from Palm Beach and Miami-Dade counties, then Gov. Bush can have ballots brought here from counties where he has questions. As you can see here, those counties are Broward, with 588,000 votes, Pinellas with 407,000 votes, and Volusia with 184,000 ballots. If you're doing that math in your head quickly, that's about 1.2 million ballots to be brought here in addition to the 1.1 million that are here or are already en route.

Speaking of those ballots, the ones from Palm Beach County arrived yesterday afternoon to some considerable fanfare. There was heavy security. They were brought here in a rental truck, unloaded and then put in an evidence vault on the lower floor of this courthouse. Ballots from Miami-Dade will be arriving here later this afternoon. They will also be unloaded. That may take a little longer. There are more of those ballots. They'll be taken to a third floor evidence locker in the supervisor of elections office, the vault that they have there on the third floor.

So we're awaiting that. We're watching the clerk's office to see if there are anymore filings. We have our eyes turned toward the Supreme Court here too to see if it has anything to say about the request made by the Gore campaign that the court order that that ballot recount begin now. The Gore campaign is arguing that the time to fairly and accurately do that recount is running out. They want that done now. They don't want to wait until the end of that hearing scheduled tomorrow before Judge Sauls.

Bill, back to you.

HEMMER: All right, Mark. Mark Potter outside circuit court here.

One other note on the state supreme court, though, located behind me here. Craig Waters, who's the public information officer -- we talked about 30 minutes ago -- he indicated no movement on any of those cases before the court, but he did say that, yesterday, the justices did review the Gore appeal to expedite the case, or to even take it away from circuit court to move things along quickly. Again, they talked about it yesterday. They did go over that brief. But as to whether or not there's any movement is still an open question.

You know, if you talk with different legal scholars, many suggest that it would be highly improbable that the state supreme court would act on the same day that the U.S. Supreme Court is hearing oral arguments. But, again, an open question right now as to whether or not there will be movement from the state's highest court here in Florida.

We will watch it all. Again, ballots expected sometime around 3:00 Eastern time, which is about six hours away. We'll have it for you when it gets here.

In the meantime, back to Atlanta and Daryn. More from Tallahassee shortly here -- Daryn.

KAGAN: And, Bill, I know you're busy down there, but you're going to want to stay tuned for this interview segment coming up. A bit of trivia, it's something that you like: a souvenir that each attorney is given when he or she appears before and argues before the U.S. Supreme Court. We will tell you what that is and talk about larger matters; in fact, what it is actually like to argue before the highest court in the land. All that ahead as MORNING NEWS and a special edition of CNN continues.

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