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CNN Special Report: Is the End Game Nearing for Vice President Al Gore?

Aired December 4, 2000 - 8:30 p.m. ET


ANNOUNCER: This is an CNN election 2000 SPECIAL REPORT.


JUDGE N. SANDERS SAULS, LEON COUNTY CIRCUIT COURT: The court finds that the plaintiffs have failed to carry the requisite burden of proof.


ANNOUNCER: Major losses for Al Gore in the courts. But it may not be over yet.


DAVID BOIES, GORE CAMPAIGN ATTY.: We're appealing. This is going to be resolved by the Florida Supreme court promptly.


ANNOUNCER: From Florida's circuit courts to the U.S. Supreme Court: how this dramatic day unfolded.


BEN GINSBERG, BUSH CAMPAIGN ATTY.: Governor Bush and Secretary Cheney have won Florida.


ANNOUNCER: Tonight: Is George W. Bush's road to the White House finally clear? And we'll talk to the man who provided this "Perry Mason" moment in the courtroom.


JOHN AHMANN, VOTING MACHINE INVENTOR: You need either reinspection or manual recount when you have that situation. Yes, you do...


AHMANN: ... if you've got a very close election. (END VIDEO CLIP)

ANNOUNCER: 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: In what may be the climactic moment of election 2000, a judge has ruled there will be no more recounts in Florida. Here are the legal challenges in what's been a very dramatic day: judgment day.

In Tallahassee, Al Gore lost his contest of Florida's presidential election results. The Democrats are appealing. In Washington, the U.S. Supreme Court sent its election case back to Florida's Supreme Court. That's where the action will be tomorrow. Those justices likely will begin considering both cases.

And, in just a moment: attorneys from both the Bush and the Gore sides. But first: a look at how this extraordinary day unfolded.

CNN's David Mattingly picks it up as the flood of developments hit shortly before noon Eastern.


DAVID MATTINGLY, CNN CORRESPONDENT (voice-over): 11:45 a.m.: a morning filled with quiet anticipation erupts.

DARYN KAGAN, CNN ANCHOR: Looks like we have a huge moment right now coming out of the U.S. Supreme Court.

MATTINGLY: A U.S. Supreme Court decision vacated, sending the case of Bush vs. Palm Beach County back Florida for clarification. All nine justices want to know: Where did the legal justification come from when the Florida Supreme Court extended the state deadline for ballot certification?

Citing -- quote -- "considerable uncertainly as to the precise grounds for the decision," the case goes back to Florida high court for answers. But immediately, it raises new questions. What does this ruling mean?

12:10 p.m.: News of the high court ruling rumbles through the Florida courts. A critical ruling in Leon County on disputed ballots goes on hold.

TERRE CASS, COURT ADMIN., LEON COUNTY: We're on hold pending our being able to determine whether the U.S. Supreme Court decision has any effect on our proceedings.

MATTINGLY: Now with the clock ticking, another question: Is this a victory for George W. Bush? And what happens to the Gore election challenge?

1:00: Gore attorneys go public.

BOIES: We all recognize that this case is ultimately going to end up in the Florida Supreme Court. But I think it's very important that that decision get decided so that we can begin the recount if the court decides that that's the appropriate thing to do.

MATTINGLY: Then all eyes turn back to the Leon County Circuit Court.

2:00 p.m., another announcement: Judge Sanders Sauls' ruling put off until late afternoon, a ruling, after a weekend of marathon testimony, that could overturn vote counts in Palm Beach, Miami-Dade and Nassau counties. In minutes, Bush attorneys respond.

BARRY RICHARD, BUSH CAMPAIGN ATTY.: The only prudent thing for Judge Sauls to do would be to read and analyze that opinion and see how it effects what he did. But there's certainly nothing in the United States Supreme Court opinion that would cause him to be less motivated to rule in favor of Governor Bush.

MATTINGLY: Then, 2:45: an announcement from the Florida Supreme Court. Justices will meet soon to sort out the high court's ruling.

Mid-afternoon: George W. Bush talks to reporters.

GOV. GEORGE W. BUSH (R-TX), PRESIDENTIAL CANDIDATE: Not only was the case heard, but the Supreme Court acted in a way that I think is a positive for our campaign.

MATTINGLY: And minutes later, Leon County Circuit Judge Sanders Sauls delivers a serious blow to the Gore campaign.

SAULS: In conclusion, the court finds that the plaintiffs have failed to carry the requisite burden of proof. And judgment shall be and hereby is entered that plaintiffs shall take nothing by this action. And the defendants shall go hence without delay.

MATTINGLY: The court finds no evidence of illegality in handling of the November 7 election, no convincing evidence to show that Gore could have won the election if uncounted votes were counted, and no evidence to show the county canvassing boards acted improperly. The Gore election contest is rejected.

GINSBERG: The fact is that Governor Bush and Secretary Cheney have won Florida.

MATTINGLY: But within minutes...

BOIES: We would be pleased to answer some questions, if you have any.

MATTINGLY: ... the decision is appealed by Gore attorneys, again to the Florida Supreme Court.

BOIES: Now what the court did was to decide that it was not even going to look at those ballots.

MATTINGLY: A day of dramatic developments, a judicial process that has yet to come to a close, and unanswered questions: Will this be the last stop in the challenge of Vice President Gore? And will the looming electoral deadline of December 12 make any recount impossible?

David Mattingly, CNN, Atlanta.


VAN SUSTEREN: As you can see from David's report, the Gore campaign's options certainly are dwindling. Gore campaign attorney Jeff Robinson joins us from Tallahassee to discuss what's next.

Jeff, thank you for joining me tonight.


VAN SUSTEREN: Jeff, from about 1500 miles away, it looks like the Gore team was clobbered today. Is there any way around this? Do you have any hope in the Florida Supreme Court?

ROBINSON: Yes. We've always known that this case was going to the Florida Supreme Court. Both sides have known that. And now we have a clear legal ruling that the Florida Supreme Court can consider. And we believe that they will be with us.

VAN SUSTEREN: All right. What's your best argument?

ROBINSON: Well, the first argument and the best argument is that the most important evidence -- the ballots themselves -- were admitted into this case, but they were never reviewed or considered in the decision-making. We believe that that to be clear error.

VAN SUSTEREN: Why is that error?

ROBINSON: Because you have evidence. It is as though you had a witness who testified. And the court concluded that it wouldn't even hear the witness, and then reached a decision. The best evidence, the ballots themselves, were never considered. And the court made that clear.

VAN SUSTEREN: Did you ask the judge to look at the ballots?

ROBINSON: Yes, we did. We asked the first -- amongst the first exhibits that we introduced into the case were the ballots. And we said that they were the evidence. They spoke the way the Florida voters spoke. And if you look at them, you would see that we had established our burden. They were never looked at.

VAN SUSTEREN: And I suppose the reason -- and correct me if I'm wrong -- but the reason that they were so important, is one of the elements of your case that you had to prove is that Vice President Al Gore was the real winner, right?

ROBINSON: Right. You had to prove that there was reason to question whether or not Vice President Al Gore was the winner. We believe that that was established even without looking at the ballots. And I think we're all here because there is considerable reason to question it. But the ballots themselves would tell you whether or not that was the case.

VAN SUSTEREN: Is there any other issue besides the court's failure -- at least in your mind -- to look at the ballots? Is there any other issue that would cause the Florida Supreme Court to reverse the decision?

ROBINSON: Yes, we believed that the court applied throughout the wrong legal standard. The court said that it was reviewing things on an abuse of discretion, as though it were reviewing an agency action, where it's clear under Florida Law that what the court is doing is making original determination in a contest action. This is not a review proceeding. It's an original contest proceeding.

VAN SUSTEREN: All right, it is 8:37 p.m. Eastern Time. What are your lawyers doing right now?

ROBINSON: Right now, I'm here with you. But


VAN SUSTEREN: But the rest of the legal team: What's the team doing?

ROBINSON: Right now, we're working on the appeal.

VAN SUSTEREN: Was the brief -- the brief must have been written, though, before the decision came down today. I mean, you must have figured that you might lose.

ROBINSON: Well one -- while one can think about -- and we've written issues -- we've written on this many times before Judge Sauls -- you don't know what you might be appealing until you see what the judge says. We didn't know that he wouldn't look at the ballots. We didn't know that he would apply the wrong legal standard. And once you know that, then you have to craft a brief that addresses the specific issues.

VAN SUSTEREN: Have you asked the judge to maintain custody of those ballots while this matter goes to the Supreme Court?

ROBINSON: The judge announced during his ruling that he would maintain custody of those ballots in Tallahassee pending review. As we said, everyone has known that this was going to the Florida Supreme Court.

VAN SUSTEREN: All right, I'd like to thank Gore campaign attorney Jeff Robinson from joining us from Tallahassee.

And now the prospective from the other side: Also in Tallahassee is George Terwilliger, an attorney for the Bush campaign.

George, what do you make of Jeff's argument that the judge should have examined the ballots?

GEORGE TERWILLIGER, BUSH CAMPAIGN ATTORNEY: Well, you know, Greta, we say asked and answered. I guess we could say made and rejected.

That was the argument that was made to Judge Sauls. It was rejected. It's a long-shot argument to begin with, because there's no support for it in Florida juris prudence. And that's the essentially the argument we'll make in the Supreme Court.

VAN SUSTEREN: Well, you know, it's sort of curious, George, under the Florida law, in order for Vice President Al Gore -- or anyone who contests a proceeding, for that matter -- must show that he or she is the likely winner. But without examining the ballots, how do you show you're the likely winner?

TERWILLIGER: Well, that's not how the Florida election contest statute actually works, Greta. The first thing you have to show is that the person who has been certified by the winner -- certified as the winner excuse me -- is for some reason not entitled to the presumption of regularity that attaches to that certification.

And what the judge ruled today, as a procedural matter, is that, in fact, the Gore team didn't make that showing. So there's no reason to look at the ballots until you show some error in the certifications that were used by the county canvassing boards to determine the vote totals.

VAN SUSTEREN: George, I know you guys are good lawyers, just like the lawyers on the other side are good lawyers. Did you have a brief ready in case you guys lost?

TERWILLIGER: Not a brief ready. But we are very comfortable with the law and what the legal arguments are here now. And we felt pretty comfortable that, if called upon to write a brief, we would. But we were also very comfortable with how our case was -- went in, how it was presented. We, after all, as you know, Greta, didn't have to prove anything.

We did put on facts, because we thought it would be helpful to inform decision-making by the judge. And you know, we'll see what the Supreme Court thinks.

VAN SUSTEREN: I'm curious: Did Governor Bush call his legal team after you scored that big victory for him?

TERWILLIGER: No. We didn't have any direct contact with Governor Bush. In fact, we returned to the office and went back to the work. We have some additional filings to make in the Supreme Court case on the remand case coming back from the U.S. Supreme Court this morning.

VAN SUSTEREN: Do you have a timetable for the Florida Supreme Court case, the one that was won by your side today? Is there anytime timetable on that so far?

TERWILLIGER: I'm not aware if we got anything from the courts, since I left the office a little while ago. I'm not aware of it, Greta. But I expect that it will be put on a fairly expeditious briefing schedule. VAN SUSTEREN: All right. It's always more fun to win, isn't it, George?

Anyway, we have to take a break. Thanks again to Bush campaign attorney, George Terwilliger, for joining us from Tallahassee. Next: how today's avalanche from the courts affects the political end game. Please stay with us.


VAN SUSTEREN: One of the many e-mails we've gotten from viewers.

Now, the courts have spoken. The lawyers have more to say. And the politicians are listening. So is CNN senior political analyst Bill Schneider, who's here in Washington.

Bill, I know legally where we stand. Where do we stand politically?

WILLIAM SCHNEIDER, CNN SR. POLITICAL ANALYST: Well, the question is: How strongly will the Democrats stand behind Al Gore in this final week before the December 12 deadline? I mean, I think Democrats are getting a little nervous. When we spoke to congressional Democrats today, they said: We'll stick with Gore. He's our man. And we would want him in the White House. But, they said, the clock is ticking. And we don't have much longer for this thing to run out.

So there's little bit of shakiness there.

VAN SUSTEREN: What does it matter to Democrats who are sort of behind the scenes whether Vice President Al Gore fights on gives up? Well, I guess giving up is pretty obvious. But what if he fights on? How does it hurt them?

SCHNEIDER: Well, clearly, if he's seen as sore loser, if people get angry at Gore because he just won't get up -- give up -- then I think there could be some repercussions on the Democratic Party. It will be little embarrassing. And they will have the image of a party that is dominated by sore losers, that they want to cling to power.

The Democrats in Congress have other interests at stake. They don't want to turn public opinion against them. They're very close to a majority. They are going to have a majority in the Senate about 17 days in January. And they would just love to get their committee chairmanships back in 2002. You know what? It will be easier for them to do that if George Bush is president than if Al Gore is president.

I'm not saying they want Bush to be president -- don't get me wrong -- but they certainly know that if Bush is president, they stand a much better chance of regaining their majority in both the House and the Senate.

VAN SUSTEREN: Well, while Vice President Al Gore's lawyers have vowed to fight on to go to the Florida Supreme Court, but let's look at hypotheticals. Is there a graceful exit so that one can be in good position in 2004 to run for president? How do you do that gracefully?

SCHNEIDER: Well, I think the best possibility is if the courts clearly shut down any possibility of hand counting those remaining ballots that Gore wants counted in Palm Beach County and in Miami- Dade. If the courts simply give him no opening to start counting those ballots, then I don't think he can't possibly survive. I mean, he has nothing left to go on.

He has said along -- and Democrats are standing with him on this -- he believes he won Florida, that if you actually count the ballots -- which is to say, in legal terms: Look at the evidence -- it will show that he won. But he can't get a court to say: We're going to look at the ballots. And the court today said they wouldn't do it. If the Supreme Court of Florida says: We're not going to let you look at the ballots. We're not going to count them. We're not going to turn them over to some counting mechanism of independent and special master, the ballots are going to stay locked up -- he has no alternative.

Then I think he says: Look, I think I won Florida, but for the good of country, I have to get out of this race.

VAN SUSTEREN: But then how do you factor in the case in Seminole County, which is a little different bit different -- brought by taxpayers? It has a hearing tomorrow afternoon and a trial beginning on Wednesday. In that case, there's a question of whether 15,000 absentee ballots are thrown out. And most people believe that if the 15,000 absentee ballots are thrown out, that it will be Vice President Al Gore who's the winner in Florida. Is that good politically for him or not?

SCHNEIDER: Well, it's a problem for him politically. And that's why that's why he's not participating in that case, because what the courts would be saying is: We're going to toss out 15,000 ballots. And Gore has been saying all along: We have to count all the ballots. The core of his argument is: If you count everybody who voted, I won Florida. And here's he's going to say: Well, we really have to throw out 15,000 absentee ballots.

No one is saying the voters in those cases perpetrated a fraud. The fraud was -- they would argue -- the Democrats would argue -- was done by the Republican party operatives, who were allowed to go in and tamper with the absentee ballots application. But what you're doing is essentially disenfranchising a lot of voters. So he would probably take it if the court threw those ballots out. That's the judgment of the court. But he doesn't want to participate in that activity.

VAN SUSTEREN: And then, of course, he would run into the Florida legislature. But that's all the time we have. My thanks to CNN political analyst Bill Schneider.

Next: a little bit of "Perry Mason" comes to Tallahassee.


VAN SUSTEREN: Your witness is supposed to help your side, not the other guy's. But sometimes, things don't work out the way you planned. Tonight: a case study in courtroom twists. During the contest trial Sunday, the Bush campaign put a voting-machine inventor on the witness stand. But listen to this exchange, in which one of Al Gore's attorneys gets him to agree that sometimes, you got to do manual recounts.


ZACK: Isn't it true that when you have hanging chad, and particularly in a case where there's lots of them, because the machines aren't tearing them off correctly, that every time they run through the vote counter, the vote changes because the chads close up. And therefore, to the machine, it looks like there hasn't been a vote, where in fact there has been, and that's why you need manual recount. Isn't that correct, sir? Yes or no, sir -- one of the reasons at least?

AHMANN: You need either reinspection or manual recount where you have that situation. Yes, you do...

ZACK: Thank you.

AHMANN: ... if you got a very close election.


VAN SUSTEREN: Was John Ahmann really as unhappy answering that question as he may looked? Let's ask him. He's in our San Francisco bureau.

John, what about it? Was it an unhappy moment answering that question? You were called by the Bush campaign and you gave a little help to the Gore campaign?

AHMANN: Well, you need to tell the truth. And...

VAN SUSTEREN: All right. Go ahead.

AHMANN: And when you have a very close election, and there's only one or two votes separating the candidates, and you have a possibility that, with lots of ballots, that the chad can be folded over, you need to either reinspect or hand recount the ballots.

VAN SUSTEREN: OK. Case is over: Let me talk to you personally. Do you think, in this case, since it was so close, because of these machines, it should have been hand counted?

AHMANN: No, I don't.


AHMANN: If you have done sufficient inspection of the ballots -- and a good inspection -- you don't really have many hanging chad. And so the...

VAN SUSTEREN: Do you know if these machines were inspected? AHMANN: The devices, you mean?


AHMANN: Or the ballots?

VAN SUSTEREN: The devices.

AHMANN: I know that all the devices were checked before they went out on the pre-election check-out before they went out to the precincts, yes. I have talked to the warehouse people. And they said they had checked the ballots -- not the ballots, but the voting devices.

VAN SUSTEREN: I'm curious: You helped the design this machine a number of years ago. But subsequently, you applied for a patent. And in that patent for another machine, you had lots of criticism about this machine: that it had problems. Why did you write that in a patent application?

AHMANN: Why did I write it in a patent application?

VAN SUSTEREN: You were critical of the machine that was used here.

AHMANN: Well, what you say is partially true. First of all, a lot of the Votomatics out in the field are of a different configuration than what we have in Florida. We have different models like the Model 1, which is a heavy base plate, which fits right up underneath the punch frame. And there's no room for the chad to go.

Then there's the Model 3 variation, which is what most of the counties have in Florida. It has almost an unlimited area in which the chad -- that's the punch-outs from the card -- can dissipate and travel throughout the base. And I think you probably picked up that I calculated roughly that probably about a million to million-and-a-half chad could easily be stored in the cavity around the punch frame on the Model 3s.

And, indeed, we found out at the trial that, in fact, one the counties hasn't cleaned out the chad in eight years. And calculating in a couple thousand chad per election, that would only amount to, I think, it was 40,000 or 50,000 or 60,000 chad possible that there. That doesn't take up much space, almost two cubic inches. And there's almost 90 to 100 cubic inches possibly underneath the vote recorder.

VAN SUSTEREN: In the 20 seconds we have left: Did you ever think you would be part of the most exciting case probably in our history?

AHMANN: No, I sure didn't.

VAN SUSTEREN: And was it interesting?

AHMANN: It was very interesting. And I'm glad I stood up and was counted. Someone had to. And since I was the engineer that helped debug the device from 1966 on forward, I felt there was no one else that would come up and say anything. I actually was watching this for two weeks on the television.

VAN SUSTEREN: You know, I hate to cut you off, but that's all the time we have. Many thanks to voting machine inventor, John Ahmann, who joined us from San Francisco.

AHMANN: You're welcome. Thank you.

VAN SUSTEREN: I want to hear your questions. So e-mail us. And tomorrow, new courts get into the action. We'll have the latest on the Seminole County absentee-ballot case, and an appeal being heard by a federal court in Atlanta.

Next: "LARRY KING" has the presidential candidate's lead attorneys: David Boies and Barry Richard. Stay with us.



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