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The Florida Vote: Presidential Election Spends Historic Day in High Court

Aired December 1, 2000 - 8:30 p.m. ET



UNIDENTIFIED MALE: God save the United States and this honorable court.


ANNOUNCER: The presidential election's historic day at the highest court in the land.


SANDRA DAY O'CONNOR, ASSOCIATE JUSTICE OF THE UNITED STATES: You probably have to persuade us there is some issue of federal law here. Otherwise, why are we acting?



ANNOUNCER: Tonight the inside and outside stories at the U.S. Supreme Court. And as more ballots arrive in Tallahassee, a judge says, hands off.


JUDGE N. SANDERS SAULS, LEON COUNTY CIRCUIT COURT: ... no access to those ballots pending further order.


ANNOUNCER: Tonight comprehensive analysis of this unprecedented day. This is a CNN election 2000 special report: "The Florida Vote."

From the United States Supreme Court in Washington, CNN legal analyst Greta Van Susteren.

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: In the nearly 225 years since the Declaration of Independence, there has been nothing like what happened today, right behind me in the United States Supreme Court. For the first time in history, the court has taken a direct role in a presidential election, and CNN senior Washington correspondent Charles Bierbauer was in the court chamber for today's historic arguments.


CHARLES BIERBAUER, CNN CORRESPONDENT (voice-over): The justices wanted to be sure they should even deal with the Florida state Supreme Court decision extending vote recounts.

ANTHONY KENNEDY, ASSOCIATE JUSTICE OF THE UNITED STATES: If the state Supreme Court relied on a federal issue or a federal background principle and got it wrong, then you can be here.

BIERBAUER: Bush attorney Ted Olson says Florida violated both the U.S. Constitution and federal election statutes.

OLSON: The Florida Supreme Court radically changed the legislative scheme, because it thought it could do so under the Florida constitution. By doing so, it acted inconsistently with Article II of the Constitution and inconsistently with Section 5 of title 3.

BIERBAUER: The change in counting deadlines is critical.

PAUL HANCOCK, FLORIDA DEPUTY ATTORNEY GENERAL: The laws were in place before the election, and those laws granted to the judiciary the...

O'CONNOR: Well, but certainly the date changed. That is a dramatic change. The date for certification, right?


BIERBAUER: Later, Gore attorney Laurence Tribe.

LAURENCE TRIBE, GORE CAMPAIGN ATTORNEY: We're not dealing here with a decision in which within the gray area, where a court could reasonably go either way, this court simply said, "We don't care about these federal considerations."

BIERBAUER: This court will not lightly reverse the Florida decision. Justice Ginsburg...

RUTH BADER GINSBURG, ASSOCIATE JUSTICE OF THE UNITED STATES: In case after case, we have said we owe the highest respect to what the state says, the state Supreme Court says is the state's law.

OLSON: This is a very unusual situation, Justice Ginsburg, because it is in the context of a presidential election.

BIERBAUER: The justices questioned the to and fro over recounts...

ANTONIN SCALIA, ASSOCIATE JUSTICE OF THE UNITED STATES: Do you know of any -- any other elections in Florida in which recounts were conducted, manual recounts, because of an allegation that some voters did not punch cards the way they should have, through their fault? No problem with the machinery, it's working fine, but you know, there were -- what? -- pregnant chads, hanging chads, so forth?

HANCOCK: No, Justice...

SCALIA: Did it ever happen before?

HANCOCK: I'm not aware of it ever happening before?

BIERBAUER: ... and Secretary of State Katherine Harris' authority to reject late returns.

JOHN PAUL STEVENS, ASSOCIATE JUSTICE OF THE UNITED STATES: Does that mean if there were an act of God that prevented the returns from being filed, that she would have discretion either to accept or reject the returns?

OLSON: Yes, I believe...

STEVENS: She would have the discretion?


STEVENS: Would she be compelled in that event to accept the returns?

OLSON: I don't think so.

BIERBAUER: The U.S. Supreme Court was not compelled to take this case and now has to consider why it did.

OLSON: They were obviously interested in the question of why the Florida Supreme Court did what it did, and explored that question very carefully, both with respect to the provisions of Florida statutes and the provisions of the Florida constitution.

TRIBE: I certainly didn't think there were any curveballs. There was nothing that disturbed the court that we were unaware of. And in that sense, it's always a relief to know that the case doesn't have any time bombs in it.

BIERBAUER (on camera): Time is ticking, though. The justices are aware of the deadlines on the electoral calendar and are expected to act quickly, but there's no word exactly when.

Charles Bierbauer, CNN, the Supreme Court.


VAN SUSTEREN: A seat inside the Supreme Court was the hottest ticket in town today, and I'm joined by two guests who got in. It helps to be a member of Congress. And in a few minutes, I'll be talking with Tennessee Democratic Representative Harold Ford.

But first, I'm joined by Republican Senator John Ashcroft of Missouri, who is no stranger to close and controversial elections. Last month, he decided not to challenge the results of the Missouri race in which he lost to the late Mel Carnahan, who was killed just weeks before the election.

Senator, thank you for joining me tonight.

SEN. JOHN ASHCROFT (R), MISSOURI: Delighted to be with you.

VAN SUSTEREN: Senator, you were inside today. Anything surprise you?

ASHCROFT: Well, no. It was a vigorous argument. The judges were very much engaged, took part in the argument. They didn't just listen, they interrogated. They were aggressive against both sides.

I think they really wanted to take a hard look at the extent to which the Florida Supreme Court had changed the rules after the election and whether that either contravened the Constitution of the United States Article II or whether it somehow is related to that 1870s enactment.

VAN SUSTEREN: Big picture, though: Does this make -- when you look at politics, does it really make a difference in terms of taking the steam out of either candidate, whoever wins or loses?

ASHCROFT: Well, I think it has a disparate effect. If Vice President Gore were to lose this, I think it would be far more injurious.

George Bush remains the certified winner of Florida regardless of the outcome of what happens across the street here today. So the Supreme Court argument I think has more downside risk for the vice president. That may well be because he's already -- he's suffered an initial loss in Florida today with the Florida Supreme Court.

VAN SUSTEREN: You know, I'm sort of curious, there was so much criticism about both candidates going to court, about the lawyers getting involved in it. Is it possible, or is this fanciful of my thinking, that we can have statesmen or stateswomen sit down and try to figure out a way to resolve it, because they both think they won?

ASHCROFT: Well, I don't think it's fair to say that George Bush took this to court. George W. Bush has decided to defend himself in court, but that's...

VAN SUSTEREN: But he thinks he won and Gore thinks he won. I mean, and there are people across the country, 50-50 -- I mean, more than 50 percent went for Gore. I mean, they both think they're entitled to it. So...

ASHCROFT: Well, you know, I think the difference is that the election has been certified for George W. Bush. There's been counts and recounts and additional counts. Now even the Florida Supreme Court has said, no, the allegations about the ballot are simply not sufficient to be sustained.

And it looks to me like they dismissed on the merits the -- the challenge to the ballot, the butterfly ballot. So I think it's fair to say that George W. Bush not only thinks he's won, but he's had an official certified declaration, which is being sustained.

VAN SUSTEREN: All right. Thank you very much, Senator Ashcroft, for joining us tonight.

Now, a Democratic viewpoint on today's Supreme Court hearing, Tennessee Congressman Harold Ford joins me from our Washington bureau.

Good evening, congressman.

REP. HAROLD FORD (D), TENNESSEE: Good evening, Ms. Van Susteren. How are you?

VAN SUSTEREN: Good, thanks. Congressman, let me ask you, what happens if Vice President Al Gore loses in the Supreme Court? Does it make a difference, big picture?

FORD: Well, legally, I think you've stated the case pretty clearly: It has very little bearing on what's happening legally in Florida right now. It just determines the margin between the two candidates.

I don't want to speculate as to what the court may do. I was there today. I heard interesting questions from all the justices. They all seem to be very interested and engaged. Justice Thomas was the only question that didn't ask a question, but his facial expression and body language signaled that he was engaged.

I was struck by Justice Breyer's question, though, when he frankly put what is it that we're doing here, what is it that we're deciding. All we're deciding is what the margin between the two candidates will be.

If that's any indication or any reason to feel good, (UNINTELLIGIBLE) feel good about it. But we don't want to speculate or second-guess the U.S. Supreme Court.

I trust they'll render an impartial and fair judgment, and we'll be able to live with the consequences.

VAN SUSTEREN: Let me ask you the same question I asked the senator. Big picture, I mean, there have been a lot of complaints about the courts being involved and the lawyers. What about statesmen from both sides sitting down and trying to find a way to resolve this, a process? Obviously, they can't pick who's going to win, but to try to get this sort of on a straight track instead of all these multiple courts.

FORD: You know, we wanted to do that from the very beginning. All we've asked for is a simple thing. I don't think it's unreasonable: count the votes. In a democracy, that's what you're expected to do.

If you were to read the front page of all the newspapers speaking and describing what's happening in this election and you omitted from it the name of the country involved, you would think it was some African nation or some other nation struggling to build a democracy. Only until you put America's name on it does it become that much more disgraceful.

All we have to do in this matter is count the votes. Al Gore can live with the outcome, Democrats can live with the outcome, and America can live with it. It seems that there's only person and perhaps a group of people who can't live with counting all those votes, and that might be Governor Bush and his campaign.

If you count the votes, we can live with the outcome.

VAN SUSTEREN: Congressman, Vice President Al Gore has had a rough day in the courts recently. He lost today in the Florida Supreme Court to accelerate the matter. Is the steam being taken out of his campaign? Is it almost all gone?

FORD: You know, I don't believe so. I think today's decision by the Florida Supreme Court was not that big of a surprise. Naturally, we want to expedite this. We understand that the Bush legal team has asked for all the ballots from Miami-Dade and Palm Beach to be shipped to Tallahassee. We now that there are 10,700 votes that have not been counted and so does the Bush team.

If we could agree to count those ballots, I imagine you could probably get some agreement from this side to call an end to all this. But remember, it was Governor Bush who exercised his legal right to bring this before federal court. He had every right to do it. I don't complain about it, nor am I ridiculing him for it, but I will acknowledge that he was the one who brought this before federal court.

VAN SUSTEREN: All right, well my guests back here who are big proponents of the First Amendment and the right to protest and we have to take a break.

My thanks to Tennessee Representative Harold Ford.

Next, winnowing out some of Florida's court cases and a preview of Saturday's main event.

Please stay with us.


VAN SUSTEREN: The eyes of the nation and maybe the world are on the U.S. Supreme Court. But other courts are also very busy sorting out the aftermath of election 2000.

Our legal challenges begin down in Florida.

In Tallahassee, a significant development, as a unanimous Florida Supreme Court ruled Palm Beach County's butterfly ballots are constitutional. That means no new election in Palm Beach County.

Also today, the Florida Supreme Court dismissed a Gore campaign request for an immediate count of 14,000 disputed ballots from Palm Beach and Miami-Dade counties.

At an emergency hearing in Tallahassee's circuit court, Judge N. Sanders Sauls reached the same conclusion, and for the third time this week he turned down the vice president's request for a quick recount.

Tomorrow, Judge Sauls holds the trial of the Gore campaign's contest of the Florida election. See it live on CNN starting at 9:00 a.m. Eastern.

Trucks carrying Miami-Dade County's 654,000 ballots arrived in Tallahassee today. They join some 462,000 ballots Palm Beach County has shipped to Tallahassee.

Finally, in Atlanta, the U.S. Court of Appeals for the 11th Circuit has taken up two Bush campaign appeals that argue the Florida hand recounts are unconstitutional. Oral arguments will be Tuesday.

I'm joined now by attorneys for both presidential candidates' campaigns. Bush campaign attorney Ben Ginsberg is down in Tallahassee -- I should say still down in Tallahassee. And Gore campaign attorney Teresa Wynn Roseborough is here in Washington, where she attended the Supreme Court hearing earlier today.

Welcome to both of you.


VAN SUSTEREN: Ben first to you. In very simple terms, no legalese, what was the toughest question Larry Tribe on behalf of Gore got?

BEN GINSBERG, BUSH CAMPAIGN ATTORNEY: Oh, I think the notion of precisely how the Gore campaign didn't violate the statutory prohibition on changing the rules of the game after the election to reach the result they wanted.

VAN SUSTEREN: Teresa, same question in reverse. What was the toughest question that Ted Olson for Governor Bush got?

ROSEBOROUGH: It was clearly the first question he got, the one proposed by Justice O'Connor: Why are we here? Where is the federal question? Where's our jurisdiction here? You've conceded that the statute you've brought us here to look at doesn't, in fact, impose any mandate on the state. In light of that concession, why do we have jurisdiction to meddle with the decision of the Florida Supreme Court?


ROSEBOROUGH: And that's the question he wasn't able to answer.

VAN SUSTEREN: Ben, answer that for us. Why are we here?

GINSBERG: There's a constitutional prohibition as well as a federal statutory provision that says that you can't change the rules of the game after the election. That's precisely what the Florida Supreme Court did at the behest of the Gore campaign. That's why we're there.

VAN SUSTEREN: Teresa, what do you make of the questioning by the justices today: business as usual or was it different? ROSEBOROUGH: It was different in its intensity. I think that the -- both attorneys did a fabulous job. They both got peppered with questions from a very active bench that was very well prepared. And each justice seemed to have their own ideas about what questions were most critical in this case, and each of them presented those questions to the attorneys.

VAN SUSTEREN: Ben, I was so impressed with how prepared this bench is, but of course it always is. What did you think about today's hearing?

GINSBERG: Oh, I agree. I mean, it was fascinating legal argument, very good jobs on both sides, the justices clearly saw this for the extraordinary case that it was, and indeed the extraordinary situation that's transpiring here in Florida, the uncertainty that the statute that was created after the Hayes-Tilden race 120 years ago was designed to stop.

VAN SUSTEREN: All right, let me ask you the most ridiculous, whimsical, fanciful question a lawyer should never answer, but I want an answer from both of you.

Ben, first to you. What's your money on? When do we get a decision?

GINSBERG: No guesses from this corner, Greta, no guess at all.

VAN SUSTEREN: Oh, come on. Come on, Ben, give me a guess.



ROSEBOROUGH: I'll take it on. I think we'll hear from the court early next week. I think that they took this case because they thought it was of national importance and significance. They appreciated the public significance of their role in this case, and they will want to answer the questions that the public has about the propriety about what the Florida Supreme Court did...

VAN SUSTEREN: All right, Ben...

ROSEBOROUGH: ... and I think we'll hear their voices early.

VAN SUSTEREN: All right, Ben, having heard Teresa, and in light of the fact that it is ridiculous to try to guess when it is, let me give it back to you again. Come on, give me a guess.

GINSBERG: All right. Clearly justices thought this was a very important case. The situation in Florida is one of confusion and chaos. There is no certainty, which means sooner rather than later, so I'll go for sometime early next week, too, Monday.

VAN SUSTEREN: OK, good, I got it out of you.

Teresa, now to you. Justice O'Connor seemed very disturbed by the fact that she thought the Florida Supreme Court was going over the line when it changed the date for certification from November 14th to the 26th. What's the answer to Justice O'Connor?

ROSEBOROUGH: I think Justice O'Connor's question focused on whether or not the Florida Supreme Court had employed only ordinary methods of statutory construction and whether they had turned to the Florida Constitution in order to make a major decision and whether that was something they were authorized to do.

I think, as professor Tribe told the court, of course they were entitled to look at the Florida Constitution, both because in this case the Florida Constitution was in fact promulgated by the Florida legislature...

VAN SUSTEREN: All right...

ROSEBOROUGH: ... so that Constitution does reflect its voice.

VAN SUSTEREN: All right, let me ask Ben, then, a tough question. I must apologize if I interrupt, Teresa. It's a little hard to hear with my new friends out here.

ROSEBOROUGH: Oh, I understand.

VAN SUSTEREN: Ben, let me ask you, Justice Ginsberg, the other woman on the court seemed to be worried that the court might be stepping on the toes of the Florida Supreme Court, that this is a state court interpreting state law. What's the answer to that?

GINSBERG: Well, I think the answer to that is to go back to what the statute and what the Constitution say. This is not tripping on the toes if in fact the Florida Supreme Court took over the legislative and executive prerogative set forth in Florida law.

And what's particularly interesting about this case that made it to the Supreme Court, one that we argued was an overreach, is what the Florida Supreme Court did today. They refused to hear the Gore campaigns attempt to hold a new election in Palm Beach. They said that was an overreach. They threw out the Gore attempt to absolutely truncate the time proceedings in Florida. They said that was an overreach.

The Gore campaign is continuing to try and disenfranchise voters in Seminole and Martin for their electoral advantage. We think those cases are also overreaches and these patterns of an improper overreach, changing the rules of the game after the election to get a preordained result favorable to the Gore forces is what this case was about and what's continuing to happen here in Florida.

VAN SUSTEREN: All right. Let me tell you what I thought was thrilling to watch. These were great lawyers arguing on both sides -- Ted Olson and Larry Tribe and both sides ducked the question about what's the practical effect, which is what the court asked in its written order when it said it would hear this case. Teresa, in the 30 seconds we have left, what is the practical effect of any decision? ROSEBOROUGH: The practical effect is that the attention of the courts will be returned to Florida and to the Florida procedures for resolving cases of controversy involving the electors which is what the Florida legislature ordained and where the Constitution points us, and the attention will go back to that court.

VAN SUSTEREN: All right, well, you get the last word. Thanks to both of you. We need to take another break. Thanks to attorneys Ben Ginsberg of the Bush campaign and Teresa Wynn Roseborough of the Gore campaign.

GINSBERG: Thanks, Greta.

VAN SUSTEREN: See you both later. We'll be right back. Coming up, your chance to play Supreme Court attorney for a day. You won't want to miss this game.


VAN SUSTEREN: The Supreme Court is steeped in tradition. Today, it broke with that tradition when it released a same day, not contemporaneous, audio tape in Bush versus Palm Beach County Canvassing Board. This unusual development allows you to be lawyer for the day. You get to do what we lawyers do every day. We think we can read minds simply by hearing a justice's question. We know what will or so we say. So tonight, you get to play.

Our case study: reading the tea leaves. We'll start with an easy one. Read Justice Kennedy's mind.


KENNEDY: And my point is that puts hydraulic pressure on your non-justiciability argument and makes it a very, very important argument and a critical argument in this case.


VAN SUSTEREN: Whoa, what was he thinking? Now, get inside Justice Breyer's head.


STEVEN BREYER, ASSOCIATE JUSTICE OF THE UNITED STATES: Then isn't possible that when the court says she must accept under certain circumstances, what they mean is outside those circumstances, given the circumstances here, it would be unreasonable to refuse?


VAN SUSTEREN: Is it clear now? If not, I'm sure the next question will remove all doubt. Here is Justice Scalia.


SCALIA: Mr. Olson, did Section 15 exist when MacPherson (ph) was decided?


VAN SUSTEREN: Had enough? Game over. By the way, since Justice Thomas chose not to play by exercising his right to silence, his thoughts remain unknown. Finally, many of you may think we lawyers are a humorless bunch. Not true. We are actually very funny. Here's a sample of our courtroom wit.


WILLIAM REHNQUIST, CHIEF JUSTICE OF THE UNITED STATES: I'm going to extend your time two minutes, Mr. Hancock, because you haven't had a chance to say a lot yet.


VAN SUSTEREN: OK, maybe that wasn't funny. But smart lawyers know when the Chief Justice makes a joke, you'd better laugh.

We're out of time. But we'd like to hear from you. My e-mail address is askgreta -- that's one word -- That's one word: askgreta. I'll be back in the studio for special reports all next week at 8:30 p.m. Eastern, 5:30 Pacific. From the United States Supreme Court, I'm Greta Van Susteren.

Next on "LARRY KING LIVE," the attorneys who argued today's case: Laurence Tribe and Ted Olson.

Don't go away.



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