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Special Event

Election 2000: Bush, Gore Campaigns Make Arguments Before U.S. Supreme Court; Calm Descends on Tallahassee Ahead of Saturday Hearing

Aired December 1, 2000 - 2:00 p.m. ET

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

NATALIE ALLEN, CNN ANCHOR: The battle for the presidency before the U.S. Supreme Court. We heard the full arguments on tape soon after they happened, that in itself an unprecedented event. We will reexamine key portions of the proceedings just ahead.

First, a quick glance at this day's extraordinary developments. About three hours ago, attorneys for the Bush and Gore campaigns and the state of Florida made their arguments before the high court. Bush's lawyers challenged the Florida Supreme Court decision that allowed the hand recounts to be included in the state vote tally. More court action is scheduled in a Florida circuit court about one hour from now. Judge Sanders Sauls will hold a hearing ahead of tomorrow's court action that could determine whether more recounts will happen.

And more of the ballots in question are on the road as we speak: 654,000 Miami-Dade County ballots are being driven to a Tallahassee courthouse.

LOU WATERS, CNN ANCHOR: We're going to get back to the arguments before United States Supreme Court in just a moment, but first we're going to flesh out more of what's happening in Florida today, things you may have missed while you were monitoring what was going on in Washington.

Bill Hemmer, our point man in Tallahassee, checks in.

Bill, what's going on down there?

BILL HEMMER, CNN ANCHOR: Lou, hello to you and good afternoon. I would say that it is mostly quiet on the Florida front. I would say, in 24 days, in fact, this is probably the most quiet this town has been since back on the 7th of November.

You mentioned the ballots. We expect the second truckload any moment now. In fact, they are due to arrive about 2:30 p.m. local time. That's about 28 minutes from now.

Now, this second truckload came up from Miami-Dade County. It left Miami, Florida in predawn hours. It's about a 500-mile trek northward to Tallahassee, again, taking about seven, eight, possibly nine hours at the outside. But we do anticipate that arrival shortly here in Tallahassee. In total, 654,000 ballots today. This coincides with yesterday's truckload from Palm Beach with 462,000 ballots on Thursday.

Will they be counted, though? Again, that is still an outstanding question. But when they do arrive, we'll head over to circuit court, which is just across the street here from where our location is.

And that's where we find CNN's Mark Potter standing by with more.

Hey, Mark, hello to you.

MARK POTTER, CNN CORRESPONDENT: Hello, Bill.

Well, we have a lot of activity over here at the circuit court. It was quiet this morning, but it's not this afternoon. We have three hearings going on. Perhaps the most important is the one we're expecting at 3:00 before Judge N. Sanders Sauls. It's an emergency pretrial conference in advance of the hearing tomorrow that deals with Vice President Gore's lawsuit involving his contest of the election and his request to recount the ballots in Miami-Dade and Palm Beach counties.

Now, attorneys for the vice president are asking the judge to try to rein in the lawyers for Gov. Bush, noting that, for that hearing tomorrow, they have only called two witnesses. But they note that the witness list for the Bush team has more than 90 names on it. And the Gore lawyers said -- say that this makes a mockery of the judge's intent to get this issue dealt with quickly. And they are asking the judge to impose time limits on the other side.

The Gore lawyers are also opposing a request by the Bush team to have ballots from three other counties brought up here. The theory behind that is that if the Gore team can recount ballots from Miami- Dade and from Palm Beach counties, then the Bush team should be able to bring up ballots from the counties where they have questions. That's Broward, Pinellas and Volusia counties. So that will also be dealt with.

Now, as if we don't have enough lawsuits in this courthouse, another one was filed today. That involves a matter in Martin County, which is near Orlando. It is asking that 10,000 absentee ballots in that county be thrown out because of alleged irregularities in the handling of absentee ballot applications, very similar to a case that was filed earlier in Seminole County.

So we have three different matters here in one courthouse.

Back to you, Bill.

HEMMER: All right, Mark. Mark Potter, thanks to you.

Now behind me is the state supreme court. It was the decision that came out of this state supreme court just about a week and a half ago, back on the 21st of November, that was argued today in U.S. Supreme Court.

CNN's Susan Candiotti on the steps outside taking track there. And wondering, very curious, I guess, Susan, if any of the justices stopped to listen to the arguments that were just played here on CNN a short time ago?

SUSAN CANDIOTTI, CNN CORRESPONDENT: Bill, that's what I've been trying to find out all morning and early afternoon long. As a matter of fact, I spoke with the court spokesman not long ago and asked him that very question. He said, to tell the truth, it's been business as usual here. These justices have had a number of other cases to deal with, cases that the spokesman described as "boring," in his words, by comparison, all matters unrelated to the election.

In the meantime, the building here remains bathed in the warm sunshine of a late fall day as state marshals stand on the steps to make sure all that come and go here have business here. The supreme court here does, of course, have at least two matters pending before it related to the presidential election. One of them, you will recall, was filed by Mr. Gore's lawyers asking the Florida Supreme Court to order an immediate recount of all those contested ballots that will be here by 5:00 this afternoon, or alternately to order lower court to begin a recount immediately and not wait to have this hearing tomorrow, at which time evidence will be presented and a judge may or may not decide at that time whether to hold a recount.

It is Mr. Gore's lawyers contention that they are in danger of missing the December 12 deadline of when the Florida electors must be chosen. And as they describe it, the will of the Florida voters might be undermined if the recount is not completed by that time.

There is one other matter that the Florida Supreme Court has before it regarding the election, and that involves that butterfly ballot in Palm Beach County, the one with two page format. Well, two groups of Florida voters from Palm Beach County are asking this court, in an appeal, to schedule a revote just in Palm Beach County because these voters have claimed that they were confused by that butterfly ballot, and that it in fact caused them to vote for someone else, they claim.

We don't know when the Florida Supreme Court is going to rule. It could be today, could be tomorrow. They could decide to debate this issue and schedule hearings on it. They could issue a ruling from the bench. Or they could decide to do nothing at all for several more days. We just don't know. But we'll be here waiting to see what happens, Bill?

HEMMER: All right, Susan. Susan Candiotti at the state supreme court here.

And Tallahassee, once again, is a bit calm for now. It was quite interesting when those tapes were being played on our network how hardly anyone even moved around this area where we're located in an age of amazing technology. Quite fascinating how a very simple piece of audiotape can be so riveting. That was the case here, anyway.

Again, calm on the Florida front. That could change at any moment. Again, the ballots expected within the half hour here. Back to Lou now in Atlanta

WATERS: Busy afternoon in Florida. We'll keep up with developments there.

Natalie, what's next?

ALLEN: Well, today's arguments before the U.S. Supreme Court met intense questioning by the justice. Members of the high court quizzed lawyers about why the Florida Supreme Court decision should even be brought to them on appeal.

CNN's Charles Bierbauer joins us from outside the U.S. Supreme Court with more on the hearing -- Charles.

CHARLES BIERBAUER, CNN SENIOR WASHINGTON CORRESPONDENT: Natalie, that was precisely the question asked by Justice Sandra Day O'Connor: Where is the federal issue here? Why should this matter be brought from Florida to the U.S. Supreme Court, which tends not to interfere in states' matters when it doesn't have to? And Justice Ruth Bader Ginsburg, certainly on at least two instances, said that this court here in Washington has to respect the court in Florida.

So concerns were raised, though, about just what has taken place in there: Did the Florida Supreme Court, as the Bush attorneys contend, overstep its bounds in extending the time for counting votes? And does that violate the Constitution, which prescribes when votes should be counted and when electors should be chosen? The attorneys for the Gore camp, on the other hand, said that there really wasn't much that this court has to do here.

The attorneys involved in this are two prominent folks who've argued before the Supreme Court many times, and so they were comfortable grounds in albeit an unusual situation. Arguing for George W. Bush, Ted Olson.

(BEGIN VIDEO CLIP)

JUSTICE DAVID H. SOUTER, U.S. SUPREME COURT: If Congress wanted this court to get into the issue at this stage, it seems passing strange to me that, despite all the elaborateness of Section 15, there wouldn't have been some mention of federal litigation preceding the Section 15 proceeding.

THEODORE OLSON, BUSH ATTORNEY: I think it's a very important point, and let me make it, that Congress did say, if you do these things, certain consequence will flow from it. Florida did these things; and we submit that there is -- the courts are here to protect the benefit of the bargain that Florida made when it responded to that invitation.

LAURENCE TRIBE, GORE ATTORNEY: If it were the case that the Florida legislature could not simply decide, well we're tired of all this counting, we're moving in and that this court cannot decide whether the conditions of 3USC section 5 are met, it would then remain only for Congress to make a determination. (END VIDEO CLIP)

BIERBAUER: And Ted Olson then, after arguments in the court -- this unusually long hour and a half, came out and spoke to us outside as well: his assessment of how things went.

(BEGIN VIDEO CLIP)

OLSON: We're very gratified that the justices of the Supreme Court, as they always are, were extremely well prepared, they had read the briefs, they are very interested in the case, they asked very difficult and penetrating questions of the lawyers on both sides; and now we'll see what happens.

(END VIDEO CLIP)

BIERBAUER: And what happens is that the justices retire and make a first assessment of where they stand on this particular case, and then at some point, one of the justices will be assigned to come up with a majority opinion. It's questionable whether there will be a unanimity of the court, but it certainly will not take all that long.

Also speaking outside: Laurence Tribe.

(BEGIN VIDEO CLIP)

TRIBE: The fundamental issue was whether anything in the United States Constitution prevents the state, through its highest court, when a very major election ends in a photo finish, from taking a closer look at the films of that photo finish by counting and recounting, if necessary, in order to get it right.

(END VIDEO CLIP)

BIERBAUER: And Natalie, all I can tell you at this point were the final words we heard in court were the marshall saying, court is adjourned until Monday next; but that doesn't necessarily mean we'll have an opinion Monday, that just means that the justices will be sitting on other already scheduled cases on Monday.

We'll let you know when we hear from the justices as to when this opinion comes down -- Natalie.

ALLEN: And, Charles, if the justices side with the Bush team here, is it known what effect this will have back in Florida in the midst of all of these legal wranglings that are going on?

BIERBAUER: If they find for the Bush argument, it would have, or could have, the effect of dropping the count back to where it was as of November 14, which would have been the 900-odd vote margin that Mr. Bush had after the first automatic recount and before the manual recounts in several of the counties, and that's what Bush is arguing for.

That does not preclude a number of the contests that are now ongoing from going forward. It does not preclude any of the activity, at this point, that the Florida state legislature is contemplating; indeed, there is ultimately the possibility these matters could come back before this court, but we're not at that point yet -- Natalie.

ALLEN: All right; well, we'll take it from there and take it one step at a time. Thanks so much, Charles Bierbauer, outside the United States Supreme Court.

For more about today's arguments, here's Lou.

WATERS: And Natalie's question: If the court rules in favor of Bush or against, what will that mean for both candidates in this presidential election? We'll be asking that question ahead here.

We have some expert legal minds to help us sort through some possible scenarios: Viet Dinh of Georgetown University Law Center joins us from Washington; Heather Gerken, who teaches law at Harvard joins us from Boston.

Mr. Dinh, we'll start with you because you were in the courtroom, had a little extra time to digest all of this. We can't predict an outcome, of course, but we can consider these questions that were asked by court, the very first of which was, why are you here; is this a federal case?

VIET DINH, GEORGETOWN UNIVERSITY LAW CENTER: Exactly -- why is this a federal case? And I think the questions of the justices sort of suggest the answer. That is: There is a federal, constitutional provision here that commits this to the Florida legislature and a federal law passed pursuant to that provision and the 12th Amendment, also; and so the court, very quickly, goes into whether the Florida Supreme Court, in making its opinion in this case, had gone beyond the realm of law interpretation into law revision or law making, and thereby intrude into the constitutional province of the Florida legislature to appoint electors.

WATERS: Miss Gerken?

HEATHER GERKEN, HARVARD UNIVERSITY: Well, actually, the interesting question is, I think, not so much the statutory interpretation that was offered by state Supreme Court, but the question of whether they looked into Florida constitutional law in deciding what should happen here. If you look at the argument, it's all about the justices talking to each other. A lot of those questions were not directed at counsel, they were directed at each other. And it's clear from those questions that what they really worried about is the question of whether the Florida state supreme court used the Florida Constitution to decide what should happen here, and whether that is allowed under article 2 of the Constitution.

WATERS: There seems to be two questions here -- well, actually, three: one, should this election process be left to states and should this 1887 federal law that appears to ban retroactive changes in legislation that sets rules for choosing electors be brought into play. The third question, and one asked by the court prior to this hearing, was what happens if we rule one way or the other in this case. Was that question, Mr. Dinh, satisfactorily answered by either side?

DINH: Well, that was one of the questions the justices clearly were grappling with, and they had the advantage of a very good brief by professor Arles Freed on behalf of the Florida legislature to suggest some avenues here with respect to the province of the legislature.

I think it was answered somewhat; that there is a sense that it would revert back to the courts, but whether or -- the courts in Florida -- but whether or not that would be final in determining this outcome is very unclear.

WATERS: Professor Gerken, do you have any idea about the implications of ruling one way or the other in this case?

GERKEN: well, I think that the parties dodged that question for a reason, which is they don't really want to get into those issues. A lot of the issues that is talking about are not yet in front of the Supreme Court of the United States. And so they're very reluctant to talk about them in front of the court for fear that they're going to get a nudge either way from the court's opinion.

But I agree, this doesn't resolve the case at all. At most, we're going to knock out 500 votes for Gore or we're going to keep 500 votes for Gore. But the real game remains in Florida.

WATERS: Can we read anything into the questions that were asked in the court today, because we certainly can't predict how this is going to be settled.

DINH: I think that we can rely, not only from the questions, but from the court's traditional modus operandi, that if they find for Bush, it will be on a narrow statutory basis -- that is on the basis of the federal law 3USC section 5, rather than on a broader constitutional question. And so, in that sense, I think the court will take a very limited view of the case, as Heather noted.

WATERS: This limited view of the case, professor Gerken, will it have implications as to how the Florida state courts will operate or will be able to operate, in the days and weeks ahead?

GERKEN: It seems unlike to me that it's going to have direct implications in terms of legally binding authority, but the Supreme Court of the United States is going to send a clear message one way or another to the Florida state courts, and those judges are sure to be paying attention to the message that's being sent about what they're doing and whether they should keep doing what they're doing.

WATERS: Will there also be a message to the legislature?

DINH: I think there may very well be a message to the legislature, at least in -- not a direct message, but an implicit one. If the court finds that the bush argument prevails here, then it would be recognizing the role of the legislature in appointing electors, either after December 12, when the executive fails to certify, or in revising the opinion of the Florida Supreme Court.

WATERS: What are the risks for the United States Supreme Court in this situation? How mindful are these justices of preserving their reputation in making this final decision?

DINH: I think that...

GERKEN: They're extraordinarily...

DINH: Go ahead, Heather.

GERKEN: I think they're extraordinarily mindful, and I'm sure Viet is actually going to agree with me. The key to this case is whether or not the Supreme Court can find a way to be unanimous on this. Every time they've had a really controversial case like this -- Brown v. Board of Education, the Nixon Watergate tapes, and even the Paula Jones case, they've worked very, very hard to find a ground on which they can all agree, because they realize, sort of, given the partisan warfare that's going on, that what this country doesn't need is a very close divide within the Supreme Court. So they'll do everything that they can to try to find a way to rule unanimously.

waters: Do you agree, Mr. Dinh?

DINH: I think there is a preference for unanimity here, and I agree with Heather to that extent. But I would also caution that we should not be fearful of a split court here, either a six-three or a five-four court, because the split will be based upon a difference in judicial philosophy.

The questions were very clear. The justices take a different view as to how to interpret statutes and what can come into that process as to what is the role of judge. And so, in that sense, even a divided opinion will not say anything about the partisan split or the political split of the court but, rather, simply a difference in judicial philosophy; and that difference should reaffirm the court's legitimacy, rather than detract from its institutional role.

WATERS: Mr. Dinh...

GERKEN: Well, I agree...

WATERS: Go ahead.

GERKEN: I agree with Viet on that issue, although I have to say that the court is also aware that, while people who really know what's going on, lawyers who think about this will recognize this as just a judicial split in philosophy -- the fear is that, in this sort of partisan battle that we've been seeing, that one side or the other is going to attack them the way the state supreme court has been attacked here, the way Katherine Harris has been attacked here.

And there's a tremendous danger that public opinion will be tainted by these types of accusations. So even if the Supreme Court knows that, on its own, there's no problem in ruling in a divided way, they're also aware that public opinion may not process that division the same way.

WATERS: Mr. Dinh, you were a former Supreme Court clerk to Justice Day O'Connor. Take a minute and take us inside that court building now and give us a sense of what happens: The justices have heard the arguments; what do they do now?

DINH: Well, first they have lunch. And then they...

(LAUGHTER)

DINH: ... and then they will meet in conference in order to take a preliminary vote. It is not a -- they meet, they call it a conference, but it is a much more structured process whereby justices, in order of seniority, would give their votes. No other persons are present, the most junior justice, Justice Breyer, takes the notes. After that conference there will be a preliminary vote and the senior member of the majority side will assign one of the members on his side to write an opinion, and the other side would assign a person to write a dissent if there is one.

And then the court will circulate that, and there is a phrase that we are all are familiar with: that is, "let's see whether this case will write." That is, maybe the court will, after writing the -- seeing it in print -- will say, well, wait a minute, this case may turn on a different issue or we may think differently about this case; in which case, then, maybe switch votes or the court may decide to change its disposition altogether.

WATERS: And professor Gerken, how important is this assignment of writing the majority and the minority opinions?

GERKEN: The assignment power is tremendously important because you can end up giving the decision to a justice who's right in middle, in which case you're likely to get a more unanimous decision. You can give it to a justice on either end, in which case it may be harder to have a unified court.

But the one thing about the chief justice is that he's going to deal with this as fairly as he can, he's going to try to ensure that the general will of the court is brought to fruition here when they write the opinion, so I think he'll be very careful about who he assigns it to.

WATERS: well everybody now wants to know when we're going to get this decision. I don't suppose the United States Supreme Court is moved by the deadline, or are they?

DINH: We've never had a Supreme Court decision handed down over the weekend. Indeed, the quickest time the court has ever turned around a decision has been four days. And so, since Marshall Bosley (ph) says that the court will not be in session until Monday, we should not be losing sleep this weekend, doing a stakeout at the Supreme Court.

WATERS: OK, we'll tell our crew -- we'll alert our crews.

Thank you both, Viet Dinh, Heather Gerken, we appreciate it very much.

Natalie, what's next?

ALLEN: We will hear more key portions of the historic arguments before the U.S. Supreme Court a little bit later this hour. You can also hear the entire exchange between the lawyers and justices any time you wish on CNN's web site. A transcript is also available, just direct your mouse to cnn.com.

And we'll be back with much more.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com

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