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Special Event

Gore Campaign Appealing to Florida Supreme Court; Democrats Suing to Get Absentee Ballots Rejected in Two Florida Counties

Aired December 5, 2000 - 8:30 p.m. ET

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

ANNOUNCER: This is a CNN Election 2000 special report.

A federal appeal, a return to the Florida Supreme Court.

(BEGIN VIDEO CLIP)

AL GORE, VICE PRESIDENT OF THE UNITED STATES: I don't feel anything other than optimistic, I really -- and the team down in Tallahassee feels that way also.

(END VIDEO CLIP)

ANNOUNCER: Tomorrow's showdown over absentee ballots.

(BEGIN VIDEO CLIP)

CROWD: Count my vote. Count my vote.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

GORE: I think that they're serious allegations.

(END VIDEO CLIP)

ANNOUNCER: And the controversial judge at the center of it all.

Also, a case study on what our court system and "The Godfather" have in common.

(BEGIN VIDEO CLIP, "THE GODFATHER")

UNIDENTIFIED ACTOR: He's just muscle. He's the enforcer. He's nothing.

(END VIDEO CLIP)

ANNOUNCER: This is a CNN Election 2000 special report: The Florida Vote. From Washington, CNN Legal Analyst Greta Van Susteren.

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: So, let's get right to it the lawyers are still busy and important court action is still to come in the presidential election. Today's legal challenges begin in Tallahassee, Florida and that's where the Florida Supreme Court is getting set to hear arguments in the manual recount case the U.S. Supreme Court sent back for clarification.

The Bush and Gore legal teams filed briefs this afternoon. Florida's high court also gave the Bush and Gore campaigns until noon tomorrow to file legal papers in the appeal of Judge N. Sanders Sauls ruling against Al Gore's contest of Florida's election results. Also in Tallahassee today, a circuit court judge heard motions ahead of tomorrow's testimony in the Seminole County absentee ballot case and in Atlanta, the United States Court of Appeals for the 11th Circuit heard arguments in two cases claiming selective hand recounts are unconstitutional.

Now, for a closer look, CNN's Charles Zewe spent the day at that appeals argument and joins us now from the CNN Center in Atlanta.

Charles, good evening.

CHARLES ZEWE, CNN CORRESPONDENT: Good evening from Atlanta, Greta. You know, the judges in the court today openly questioned whether there was need for case being heard at all. They thought, some of the them at least, that it was moot. But Republicans nonetheless pressed ahead with recount votes in three Florida counties

(BEGIN VIDEOTAPE)

PROTESTERS: The fat lady is singing.

ZEWE (voice-over): With a vocal group of Bush backers outside the courtroom, the 12 judges of the 11th U.S. Circuit Court of Appeals heard back-to-back arguments on two cases filed by GOP supporters who want the federal court to throw out results from manual recounts in Florida. Bush attorney Theodore Olson telling the court, hand recounts in selected counties illegally make those votes more important than others cast elsewhere.

THEODORE OLSON, BUSH CAMPAIGN ATTORNEY: The selective manual recount process is inconsistent, unfair, involves changing standards and changing rules and is unconstitutional, because it treats equal -- different citizens in a different way.

ZEWE: One appeals court judge sharply questioned standards used by canvassing boards for recounts in Miami-Dade, Palm Beach, and Brevard counties. Judge Stanley Birch, who was appointed by Governor Bush's father, declared "the essence of justice is that everybody plays by the same rules but we have to know what those rules are."

Democrat attorney Teresa Wynn Roseborough, however, countered the canvassing boards were properly deciding which votes to count.

TERESA WYNN ROSEBOROUGH, GORE CAMPAIGN ATTORNEY: We maintain that every citizen has the right to have their vote counted if they cast a lawful ballot and if a human being can discern their intent from the face of their ballot. ZEWE: In briefs filed with the appeals court, Florida Democrats say there is no need for the appeals court to rule on the matter since recounts are finished and Bush has been declared the winner. But Bush attorney Ted Olson pointed to Gore's continuing court challenge.

OLSON: The battles over how votes will be counted in Florida are far from over and therefore how these votes are counted could make a difference conceivably in the outcome of the election.

ZEWE: Attorney James Bopp Jr., who brought one of the lawsuits on behalf of Bush supporters in Brevard County, however, noted that no matter who ultimately wins, the manual recounts had placed what he called "everlasting doubt" on who is the winner of the election.

(END VIDEOTAPE)

ZEWE: The 11th Circuit Chief Judge Robert Anderson gave no indication of when the appeals would rule. He did say, however, that they were very cognizant of the urgent nature of all this -- Greta.

VAN SUSTEREN: Charles, you know what's intriguing about your report is the fact that this case may in some ways have no importance at all because there's no hand count going, and the Bush people are trying to seek to say the hand count's unconstitutional. How much attention did the court pay to that particular issue?

ZEWE: Well, a good bit. I mean some of the judges said look, this matter is moot. The Democrats have even said in effect Bush is the winner. He's been declared the winner. So what are we argue about here? There is no issue before this court, but Ted Olson nonetheless said there are still challenging goes on in the Florida Courts.

This is seen as an insurance policy, a fire wall, so to speak for Governor Bush. If Vice President Gore succeeds before the Florida Supreme Court in getting hand recounts in Palm Beach and Miami-Dade Counties, that puts him in good position to gather the votes he needs to win the election.

Otherwise, then this case gets brought into play. It gets to be a crucial decision perhaps in blocking those recount votes ultimately in the federal courts and supporting George Bush's election as president.

VAN SUSTEREN: Charles, how did the Gore people answer the allegation coming from Bush side, through the court, of course, about the varying standards of looking at these ballots? Were they grilled heavily about it?

ZEWE: They were grilled heavily about it, Greta, and they bobbed and weaved in court. Teresa Wynn Roseborough very tactfully told the judges, look,the canvassing boards in each of these counties set the standards. They're doing it fairly. They are going about the process of looking at each one of these votes and deciding the intent of the voters. She and the other lawyers involved, however, had to concede, more or less, that there no set standards in Florida and that's the main issue before the court. One of the judges, as we said in our report, said you know, everybody wants to play fair, but we have to know what the rules of the game are to play fair.

VAN SUSTEREN: Charles, take me outside the courtroom. Did this case get as much attention as -- were there a lot of demonstrators like in Florida and the United States Supreme Court?

ZEWE: No, there were just a small handful of demonstrators, most of them Republicans. There were a stalwart few Democrats marching in front of the courthouse but nothing on scale of the U.S. Supreme Court or the Florida courthouse. This case is a real sleeper. It's one that could be a major determinant if Al Gore wins in Florida and George Bush has to fall back on the federal system as way of ensuring that he gets to be seated as president in the White House.

VAN SUSTEREN: Charles, we lawyers are terrified of sleepers. They're the ones that come back that bite us. But we'll be watching that case closely. Thanks to CNN's Charles Zewe in Atlanta.

Next, we head to Florida and that absentee ballot case which started in Seminole County. It was moved to Tallahassee where CNN's Gary Tuchman joins us live.

Gary, what happened in court today.

GARY TUCHMAN, CNN CORRESPONDENT: Well, Greta, lawyers for George W. Bush, the Florida Republican Party and Seminole County tried to get the case dismissed tonight. They failed. It will begin tomorrow, the trial, at 8:30 a.m. Eastern time. They also tried for the third time to limit the influence of this judge, Judge Nikki Ann Clark. They asked Judge Clark for a jury trial tomorrow. Judge Clark said I'll make that decision tomorrow. But last week they asked for her to be disqualified from the case.

In legal papers they alleged she might be unfair because she was turned down for an appellate seat by Governor Jeb Bush, the brother of the presidential candidate. She refused to step down and appellate court agreed with her. And before that, the tried to have the case consolidated in Judge Sauls' courtroom -- Judge Sauls who made the decision yesterday. And appellate court also ruled against that.

Now, this case concerns something both sides agree on that Republican workers filled out missing voter ID numbers on nearly 1,900 Republican ballot applications. The Democratic plaintiff says this was unfair to Democrats who weren't given the same opportunity by Election Supervisor Sandra Gourd.

(BEGIN VIDEO CLIP)

GERALD RICHMAN, PLAINTIFF'S ATTORNEY: She allows the Republican -- actually two, three Republican paid operatives come down to Seminole County. She gives them an office and then she uses her neutral staff to go ahead and take the absentee ballot request forms, segregate them, and then deliver them, hand feed them to the Republican operative who's been given a room, not just a chair, but a whole room and all to work in for -- and our complaint's wrong, by the way, your honor.

It said nine to 10 days. Discovery has shown that it's between 15 days and three weeks it has come out tat the Republican operative was able to stay there.

(END VIDEO CLIP)

TUCHMAN: Because it's not possible to know which ballots go with which ballot applications, the suit seeks to throw out all the absentee ballots in Seminole County. Now, George W. Bush won Seminole County by about 10,000 to 5,000. He would lose 4,700 votes if that remedy was agreed upon, which is more than enough to lose the election, obviously. Now Governor Bush's attorneys say this is a dramatic and unfair punishment.

(BEGIN VIDEO CLIP)

BARRY RICHARD, BUSH CAMPAIGN ATTORNEY: We are dealing here with a voter registration number that has no relationship whatsoever to the integrity of the ballot. There is no allegation in that complaint that every one of those ballots was not filed by a fully registered, fully qualified elector. There is no allegation that it was not the elector that signed ballot. There is no allegation the ballot was not properly attested. There is no allegation that a single ballot was submitted in Seminole County that was not from the elector it was supposed to be from who was fully qualified.

(END VIDEO CLIP)

TUCHMAN: Now, it's going to be quite a day in this courthouse tomorrow because there is another case in the courtroom right next door, a very similar case that concerns Martin County, Florida. Martin County is the county just north of Palm Beach County. Very similar allegations that Republican workers filled out application ballots, ID numbers on those particular ballots. What's interesting is because the defendants are the same people, they can't go on at the same time. So the Martin County trial will begin tomorrow morning at 7 Eastern Time in the morning. It will stop when it's time for the Seminole case to start at 8:30. And when the Seminole case comes to a conclusion tomorrow, the Martin case will pick up.

A frantic day, Greta, at the courthouse here in Tallahassee.

VAN SUSTEREN: Gary, I'm struck by the fact that they've gone -- they've asked to have Judge Clark disqualify herself, not Judge Lewis in the Martin case. Why are they so interested in Judge -- in Judge Lewis staying on the case, Judge Martin getting the boot? Who are these judges?

TUCHMAN: Well, these judges are very interesting people. Judge Nikki Ann Clark is 48 years old. She was appointed to the Circuit Court here in Tallahassee in 1993 by Democratic Governor Lawton Chiles. She is a registered Democrat. She is the first woman and the first African-American ever to serve in this circuit, but here's something really interesting. Her younger sister, Kristin Clark Taylor (ph), was President George Bush's director of media relations. She served with George W. Bush's father.

Now regarding Terry Lewis, he was also appointed by the late Governor Lawton Chiles back in 1998. He's 51-years-old. He's also a Democrat, and for 12 years he practiced civil and criminal law in this area before he was appointed to the bench -- Greta.

VAN SUSTEREN: You know, Gary, though, I mean, it's unusual, though. They are -- they are seeking to have the one judge removed or disqualify herself and not the other. What's the real story behind why they're so aggressive toward getting Judge Clark to disqualify herself?

TUCHMAN: This is a sleeper case. They were -- everyone was all primed up for the major contest case against Judge Sauls, but it wasn't clear what would happen. There were many things the Democrats wanted. One of things the Democrats could have gotten was a situation in Nassau County where they would have maybe just gotten 52 votes. It wasn't definite they would get enough votes to overtake George W. Bush.

But in this case, if the plaintiff gets what they want, George W. Bush will lose 4,700 votes. So they are just being good attorneys for their client. They're doing all they can.

They perceive the possibility that she might have some anger toward Jeb Bush, and they want to do all they can for their client. That's what they're doing.

VAN SUSTEREN: All right, CNN's Gary Tuchman reporting live from Tallahassee. Thank you, Gary.

Could the Seminole County case really change Florida's election results and put Al Gore in the White House?

Let's bring in CNN election law analyst David Cardwell, who is also in Tallahassee.

David, addressing the issue of the Seminole case, must the plaintiffs, who are Democratic voters, must they show fraud in connection with these ballot applications or is it simply that someone helped them prepare these applications?

DAVID CARDWELL, CNN ELECTION LAW ANALYST: Well, in order to prevail initially, they've got to show that there was just a violation of the statute. Florida law is very strict on who can handle election materials, and it says that in the case of absentee ballots and absentee ballot requests, it's the supervisor of elections and her or his employees.

Now, in the case of a request, someone can handle a request for obviously themselves, from a member of their immediate family, for someone they're a guardian of, and then for two other people. The issue here is that we had two or more people that were filling in information on request forms so they were handling the materials and they were not under the direct supervision or doing it as an employee of the supervisor.

So there is a violation of the statute. You don't have go to fraud to show that just the statute was violated.

VAN SUSTEREN: David, in terms of the seriousness of this case, rank it compared to some of the other cases we've seen go through the Florida court. Is this an important one? Is this likely to prevail?

CARDWELL: Well, it's one of those cases where I think we need to look more not so much at the allegation of the violation but the remedy. It seems that the parties are pretty much in agreement, though there may be some disputes on the margins, as to the facts. But what the real fight is going to be about in both of these cases is what is the remedy, and that's where the real problem arises for the Bush campaign, because if the judge feels that this was something that was really egregious, that this was not just a technicality, that it really went to the integrity of the absentee vote in Seminole County and Martin County, then under case law in Florida the judge can throw out all of the absentee ballots and rely strictly on the votes that were cast on election day.

So to that extent, it can be a very important case, or...

VAN SUSTEREN: Let me interrupt you for one -- let me interrupt you for one second, the short time we have. What about them trying to disqualify Judge Clark? What do you make of that?

CARDWELL: All I can make of that is that they sense through some of the pretrial and through some of the, you know, kind of the administrative hearings that they were detecting a feeling that she may have been leaning toward the side of the plaintiffs. You know, it's risky to move to disqualify a judge, but they must have picked up on something in addition to just the fact that she got passed over by Jeb Bush for an appellate seat.

I think there had to be something else there they were picking up in those pretrial hearings that they thought, we need to see if we can get another judge, because as we noted, when there was an effort to kind of go over the head of Judge Sauls to the Supreme Court, if you're going to try to either disqualify a circuit judge or go around them, you better be successful, because that may come back to haunt you.

VAN SUSTEREN: All right, CNN election law analyst David Cardwell. Thank you for joining us from Tallahassee.

Next some people who want to count the Miami-Dade ballots if they can just get their hands on them. Our election special continues in a minute.

(COMMERCIAL BREAK)

VAN SUSTEREN: Vice President Al Gore took questions from reporters in Washington today. Despite his setbacks in the courts, he's still sounding upbeat about his chances.

(BEGIN VIDEO CLIP)

AL GORE, VICE PRESIDENT OF THE UNITED STATES: I don't feel anything other than optimistic. I really -- and the team down in Tallahassee feels that way also. So...

QUESTION: Mr. Vice President, you said last week that you thoughts your chances were 50/50...

GORE: Yes, I'll stay with that. I'll stay with that.

(END VIDEO CLIP)

VAN SUSTEREN: 50/50 is still a tough road. The vice president could get a boost if thousands of contested ballots from Miami-Dade County could be counted. And "The Miami Herald" newspaper wants to try.

Mark Seibel, the paper's assistant managing editor, joins us from our Miami bureau.

Mark, what have you and "The Miami Herald" done? What do you intend to get? And what are you going to do with it?

MARK SEIBEL, "MIAMI HERALD": Well, what we did -- you know, Florida has an open records law that's quite broad. Almost everything that happens in government here that goes onto a piece of paper and an e-mail, audio recording, is a public record. So when the Dade County Canvassing Board decided the Wednesday before Thanksgiving that they were going to count these 10,750 disputed ballots, we immediately requested permission to review the ballots as we are allowed to do under the Open Records Act.

We were initially denied that permission and then we filed a lawsuit to get them, and we believe we will. And then we intent to look at them, and I don't know what we'll learn from looking at them. And then we'll write whatever it is we feel comfortable writing.

VAN SUSTEREN: Well, according to the pleadings that have been filed, it suggests that you might have a December 14th hearing on your lawsuit. Is that right?

SEIBEL: That's correct. The initial hearing was set for December 14th. We thought that was a little bit delayed. The Florida law requires an immediate hearing in such a case, but because the ballots are tied up in the hearing in Tallahassee, we thought December 14th is probably as close as we're likely to get.

VAN SUSTEREN: Do you think you're going to get the ballots on December 14th, and if so, what are you going to do, especially with the 18th, four days later, when the electors vote for president?

SEIBEL: Well, our job is not to pick the president of the United States. Our job is try to inform our readers about the selection process. Obviously, in Florida, regardless of who ultimately becomes the president of the United States, we will be making a lot of public policy decisions in terms of, did the vote system work, were the -- was the -- did the system select the right person, those kinds of things.

And so, reviewing the ballot actually is part of understanding how our system worked or didn't work. So the goal is not actually to influence whatever the vote is on December 18; it's more to actually review for knowledge and, as I told somebody else earlier, historical footnote if nothing else, what's in those ballots, because those 9,000 ballots have never actually been reviewed by human eyes.

VAN SUSTEREN: Do you have a team ready to look at it, or a plan in place should you get the ballots on December 14?

SEIBEL: Well, let's just say we have had a lot of discussion about that. We don't know how long it takes to review those ballots, we haven't really set up the ground rules with the election supervisor, the -- there are other people who are interested in reviewing the ballots.

If this case works the way most cases do in Florida, it will be a public hearing, and in fact, the Florida Open Records Act has a specific provision for the review of ballots. The political parties and representatives of the candidates have to be informed as to the time and place, so I think it will be a quite public reviewing process. And it's just really an opportunity for the public through us and through probably others that will be there to get a sense of what those ballots look like and what they tell us about how the system worked.

VAN SUSTEREN: All right, Mark, sorry, but we are running out of time. My thanks to the "Miami Herald's" Mark Seibel.

Still ahead, Al Pacino and the ongoing election saga -- this one you have to see.

(COMMERCIAL BREAK)

VAN SUSTEREN: Polls show the public is getting tired of the presidential election being tossed around in the courts like it was a hot potato. But actually, it's an offer we shouldn't refuse.

Tonight's case study, what "The Godfather" saga teaches us about election 2000. Every time we get one court decision, it's appealed. The lawyers file papers again, argue again, the judges decide again. And maybe, the case is appealed again, and on, and on, and on. Will it end? This brings us to mind a classic moment from "The Godfather: Part III," where Michael Corleone thinks he's escaped a life of crime, only to find himself back where he started.

(BEGIN VIDEO CLIP, "THE GODFATHER: PART III")

AL PACINO, ACTOR: Just when I thought I was out, they pull me back in.

(END VIDEO CLIP) VAN SUSTEREN: That's right. Just when we thought the courts were finished with Florida's election results, the lawyers pull us back in. My take? The right to appeal is part of our system of checks and balances, a system that makes sure every American gets a full and fair hearing of his case, even if it takes longer than we'd like. It doesn't work that way in lots of other countries. As another "Godfather" character once said: "We should be honored and grateful."

Let us know what you're thinking. Send an e-mail to askgreta, that's one word, @cnn.com, that's one word, askgreta.

From Washington, I'm Greta Van Susteren.

Next on "LARRY KING LIVE": the election endgame as seen by the party chairmen, lawyers for both candidates, and congressional leaders.

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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