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Florida Supreme Court Hears Gore Appeal; Circuit Courts to Rule on Challenges to Absentee Ballots

Aired December 7, 2000 - 8:00 p.m. ET


WOLF BLITZER, CNN ANCHOR: Tonight: Al Gore wants Supreme relief, but George Bush's attorneys argue this case is closed.


BARRY RICHARD, BUSH CAMPAIGN ATTORNEY: This is nothing more than a garden-variety appeal from a final judgment by a lower court.

DAVID BOIES, GORE CAMPAIGN ATTORNEY: What the sense seems to be is that somehow Governor Bush's -- Governor Bush's campaign should be protected from Governor Bush's lawyers.


BLITZER: Down the legal ladder: Two judges consider potentially explosive Democratic requests.


EDWARD STAFMAN, PLAINTIFF'S ATTORNEY: There are 673 absentee ballots. Subtract 673 from Governor Bush's total. Clearly, the Republicans were the wrongdoers here.

RICHARD: There is no evidence in this case that the ballots were ever compromised. And if the ballots were not compromised, the election was not compromised.

STAFMAN: These people voted unlawfully. They obtained ballots that they had no right to obtain.


BLITZER: Florida's judges: how they could end or extend the legal wrangling, and their challenge to stay focused on the law and not the White House.


JUDGE NIKKI CLARK, LEON COUNTY CIRCUIT COURT: My job is not to send a message. My job is to rule on the case that is before me.


BLITZER: All ahead on this special edition of THE WORLD TODAY: "The Florida Vote."

Good evening. I'm Wolf Blitzer, reporting tonight from Washington.

Who would have thought that exactly a month after the presidential election, we'd still not know for sure who won? And who would have thought the legal wrangling could become so extensive? Today, there was legal activity in three Tallahassee courtrooms. And decisions in any one of them could potentially determine the next president of the United States.

We're awaiting two circuit court decisions in the disputed absentee-ballot application cases in Seminole and Martin counties. And we're also awaiting what is almost certainly a much more important decision from Florida's Supreme Court. The seven justices spent just more than an hour today peppering attorneys for Al Gore and George W. Bush with tough questions. At issue: whether to allow more manual- ballot recounts that could turn this race around for Gore.

The discussions covered everything from how much time is left to resolve the dispute to whether the state's high court has the legal right to intervene.

CNN's Kate Snow was in the courtroom.


CLERK: The Supreme Court of...

KATE SNOW, CNN CORRESPONDENT (voice-over): Gore attorney David Boies had barely introduced himself when the first question was launched.


SNOW: Chief Justice Charles Wells wanted to know who has the power to decide on matters involving a state's electors for president: The legislative branch or the judiciary?

Justice Major Harding followed up.

JUSTICE MAJOR HARDING, FLORIDA SUPREME COURT: Where do we get our right to review the appellate review? From the rules and from the Constitution. And doesn't that create a federal question?

BOIES: I don't think so, Your Honor, because...

SNOW: Boies insisted the court can and should review ballots. The legislature, he said, only dictates the manner in which a state's electors are chosen, not the timeframe.

BOIES: This is a situation in which you have a statute that the legislature has passed that provides very specific remedies.

SNOW: There were questions about the standards used to review ballots and about singling out a few counties rather than recounting the whole state.

JUSTICE BARBARA PARIENTE, FLORIDA SUPREME COURT: Why wouldn't it be proper for any court, if they were going to order any relief, to count the undervotes in all of the counties?

BOIES: This and other courts have looked not at the entire type of ballot that may been involved, but only those ballots that were actually contested by a party.

PARIENTE: But we've never had...

SNOW: Justices also pounced on Bush attorney Barry Richard, immediate questions about their right to review the case. Richard agreed they have that right, but not as much latitude as Boies said they did.

RICHARD: This is nothing more than a garden-variety appeal from a final judgment by a lower court.

SNOW: Justice Harry Lee Anstead wanted to know about those 14,000 disputed ballots from Palm Beach and Miami-Dade counties.

JUSTICE HARRY LEE ANSTEAD, FLORIDA SUPREME COURT: Isn't it highly unusual for a trial court to admit into evidence certain documents and yet never examine those documents before making their decision.

SNOW: "No," said Richard. "The judge didn't have to review the ballots unless he found evidence to support the Gore team's argument for a recount."

PARIENTE: Are you really saying that the votes, the 9,000 votes in Dade County, which were the exact same votes that were looked at in Palm Beach County and Broward County, should not be looked at in a contest action?

RICHARD: Not at this point.

SNOW (on camera): The key question may have come toward the end of that hearing. Chief Justice Charles Wells asked: Could they possibly find a solution if they wanted to before December 12, the deadline for choosing the states' electors? Attorney Boies said: Indeed they could count the ballots before Tuesday.

Kate Snow, CNN, Tallahassee.


BLITZER: Let's bring in CNN election law analyst David Cardwell to talk about today's state Supreme Court action.

David, it seems that those seven justices -- at least several of them, according to their questions -- were very sensitive to what the U.S. Supreme Court had said to them earlier this week in saying: Come up with some authority to change the legislative schedule.

How sensitive do you sense that those seven justice were?

DAVID CARDWELL, CNN ELECTION LAW ANALYST: Wolf, that was something that struck me right from the beginning. And, of course, before David Boies had almost gotten out of his mouth, "Good Morning," Chief Justice Wells was all over him about this federal question and what -- did they have jurisdiction and could this Supreme Court even do anything with this case.

I think they're very sensitive to that remand from the U.S. Supreme Court. And they want to be very careful that, whatever they decide to do in this case, they're not going to give an opportunity for this case to go back up to the U.S. Supreme Court again and then have it sent back.

BLITZER: Well, did they get any help from David Boies, the Gore attorney, on what the authority is to do with precisely that?

CARDWELL: Well, yes and no. He did tell them that he thought they had jurisdiction, that they could do things. And this is where there's some agreement and some disagreement between the two sides. Barry Richard, when he was up, he said he thought the court had jurisdiction. They could consider the appeal.

But that's where then they start going off in very different directions, because David Boies wants the court to find that they can order certain relief. And he says they're doing under the statutes and under existing case law. So, therefore, it's not new law. Barry Richard, on the other hand, representing the Bush campaign, is saying: If you make a change now, if you order a manual recount, that's enacting a new law. It raises the federal question again.

BLITZER: The other issue that seemed very much on the minds of at least several of the state Supreme Court justices involved those 14,000 disputed ballots in Miami-Dade and Palm Beach counties. They wanted to know: Why didn't Judge Sanders Sauls look at those ballots, if, in fact, they were introduced as evidence? Did the justices of the Supreme Court get a good answer on that?

CARDWELL: Well, as we've learned to expect in this proceeding, they got two answers. And, of course, David Boies is saying the judge had to look at it. He allowed those ballots to be introduced into evidence, but never took them out of the vault, opened them up and looked at them. And they're -- the Gore campaign is arguing that he should have looked at those ballots.

Of course, from their standpoint, that's the beginning of a recount to them. The Bush side, on the other hand, through Barry Richard, was saying no, that those ballots, while introduced in mass as evidence, did not have to be looked at because the threshold to getting to the point of recounting or relooking at those ballots was not reached in the case that was put on by the Gore attorneys.

So that's going to be a very fundamental issue to be resolved by the court.

BLITZER: All right, David, stick around. I want to get back to you.

But in the meantime, I want to go on to two other cases that were in Tallahassee today. Both, of course, dealt with thousands of absentee ballot the Democrats want thrown out. They say Republicans were improperly allowed to amend ballot applications from people who mostly voted for Bush.

CNN national correspondent Gary Tuchman has our report.


UNIDENTIFIED MALE: Raise your right hand. Do you solemnly swear...

GARY TUCHMAN, CNN CORRESPONDENT (voice-over): The election supervisor of Martin County, Florida, accused of letting Republican workers take absentee-ballot applications out of her office to fill out missing Republican voter I.D.s. And she did not dispute the fact.

PEGGY ROBBINS, MARTIN COUNTY ELECTIONS SUPERVISOR: So it only seemed logical for them to correct it, because we didn't want to deny the voter their right to get their absentee ballot.

TUCHMAN: This was the final day for this Martin County trial and this Seminole County trial.

GERALD RICHMAN, PLAINTIFF'S ATTORNEY: We believe, under the law, that the only remedy in this case is that the entire pool must be thrown out as a matter of law in Florida.

TUCHMAN: In both cases, Democratic plaintiffs say all absentee ballots should be disqualified, because alleged tampering of ballot applications was unfair to Democrats and independents. If that's done, it would give the state and the presidency to Al Gore, because most of those absentee ballots were votes for George W. Bush.

In the Seminole case, the Republican election supervisor acknowledges letting GOP workers inside her office to fill out missing Republican I.D. numbers on applications.

RICHMAN: They took a public office. And that public office was then turned into an agent or an arm of one particular political party.

TUCHMAN: But attorneys for the county and Governor Bush told the judge to keep in mind these were ballot applications, not ballots.

RICHARD: There is no evidence in this case that the ballots were ever compromised. And if the ballots weren't compromised, the election was not compromised.

TUCHMAN (on camera): After marathon court sessions on Wednesday and lengthy ones on Thursday, it's likely both decisions will come down on Friday. The Seminole County judge says she'll have a written ruling as soon as possible. The Martin County judge says he'll have a written ruling around noon on Friday, but only after conferring with the Seminole judge. Gary Tuchman, CNN, Tallahassee, Florida.


BLITZER: Let's bring David Cardwell back in and get his thoughts on these two cases.

This notion that the two judges, Nikki Clark and Terry Lewis, the two judges from the Seminole and Martin County cases are conferring, is that extraordinary or normal when there are two cases similar like these two?

CARDWELL: Wolf, that's unusual, but we're in unusual times here. I thought it was interesting when Terry Lewis announced today when he was concluding the Martin County trial that he was going to confer with Judge Clark. Now, initially, I thought perhaps he was just going to confer with her on sort of maybe coordinating the issuance of their respective orders. But it sounds like they're going to confer beyond that, on more than just administrative details.

Now, it's one thing if they're going to talk to each other, about questions of law, if they've got some -- some similar issues that the two of them could try to come to common ground on so they don't have a conflict between their opinions. But they certainly should not be getting into discussing questions of fact in their respective courts, because each judge does not know what evidence was put on in the other courtroom.

BLITZER: Because it would seem to suggest, at least to the layperson out there, that they want to at least come up with the same solution so that there's no real conflict given the extraordinary nature of these two cases.

CARDWELL: Well, that would be your logical initial interpretation of saying they're going to confer with each other, but you know, they may come to different conclusions because they could come to different conclusions on the facts even though they may apply the law in the same manner.

The facts, while very similar, are different in the two cases.

BLITZER: Probably the most compelling part of the Republican cases involves the remedy. What are you going to do? Throw away thousands of ballots that were honestly cast by descent people who made no mistake of their own? Why not punish the election supervisors, but don't punish the people who cast those ballots? Wasn't that the most compelling part of the Republican argument?

CARDWELL: Well, in both cases the remedy really became the focal point of a lot of the -- of the presentation to the court as well as in the closing arguments, because both judges are clearly troubled by the thought that due to, you know, a problem with a few of the ballots that you throw them all out, and they were looking for some other way to try to resolve this. And there are some alternative approaches that can be taken, though outside the judicial system. If someone thinks the election official acted incorrectly, we have ways under our ethics laws and other things that could be done.

But both courts obviously are trying to balance the fact that there may have been a violation of the election code, but do you disenfranchise thousands of voters in the meantime? I think they're trying to find some balance there so that they don't disenfranchise people who thought they complied with the law and cast valid votes.

BLITZER: David Cardwell, thanks once again for joining us tonight

And up next, dissecting arguments before Florida's Supreme Court with a former member of that bench. This is a special edition of "THE WORLD TODAY."


BLITZER: Welcome back. The Florida Supreme Court announced it will not issue a ruling tonight, but it's open for business tomorrow morning, 8 o'clock Eastern, right in Tallahassee.

In the meantime, let's turn to a former justice of the state's high court. Gerald Kogan once again joins us from Miami.

Justice Kogan, thank you for joining us.

I want you to listen to one exchange that one of the justices, Justice Harding, had with the Gore attorney David Boies earlier today in Tallahassee. Listen to this, then we'll talk about it.


JUSTICE MAJOR HARDING, FLORIDA SUPREME COURT: Did anyone ever pick up one of the ballots and hold it up and show it to the judge and say, this is an example of a ballot which was rejected but which a vote is reflected?

DAVID BOIES, GORE CAMPAIGN ATTORNEY: Not a particular ballot, Your Honor. We offered the groupings of ballots that we had segregated. All of those, of course, in order to prevent contamination, were not given to the lawyers. They were kept under the control of the clerk of the court.


BLITZER: Do you think Justice Kogan that the justice in this particular case was suggesting David Boies should have been more insistent that Judge Sanders Sauls go ahead and look, or at least order someone representing the court to look at those ballots?

GERALD KOGAN, FORMER CHIEF JUSTICE, FLORIDA SUPREME COURT: Well, as trial strategy, I certainly, had I been trying the case myself, would have asked the judge to look at the ballots and probably would have held it up. But the important factor here is those ballots were introduced into evidence, and it's my opinion that a trial judge should look at the pieces of evidence that are before him. Now, he doesn't have to look at all the ballots, but at least a representative sample, so he sees what the attorneys are talking about.

BLITZER: All right, Barry Richard is the chief attorney in this particular case for Governor Bush. Listen to this exchange he had earlier today at the Florida Supreme Court.


JUSTICE BARBARA PARIENTE, FLORIDA SUPREME COURT: Are you really saying that the votes, the 9,000 votes in Dade County, which are the exact same votes that were looked at in Palm Beach County and Broward County, should not be looked at in a contest action?

BARRY RICHARD, BUSH CAMPAIGN ATTORNEY: Not at this point, Your Honor, for two reasons. The first is that the canvassing board made the judgment that at the deadline that this court set for everybody, they could not conceivably complete their count. And I would suggest to this court that based upon what the Florida legislature has told us, that they did not have the authority to submit a partial count, only a full count. And had they done so, they probably would have violated the Federal Voting Rights Act and the United States Constitution. That's the first reason.

And this court has no basis in this record to determine if a canvassing board abused its discretion in making that decision.


BLITZER: Is it possible, Justice Kogan, that the Florida legislature was unclear in coming up with this legislation? As a result, all this confusion is developing in how to count disputed ballots?

KOGAN: This is very, very possible. You know, everybody assumes that the legislature knows exactly what it's doing when it passes legislation. It's been our experience when attempting to find out what the legislative intent was where I had myself read conversations on the floor of the House or the Senate between two legislators, and one will ask the other, "Now what does this provision mean?" And the other legislator, including sponsors of bills, have said, well, I really don't know, we'll let the courts figure that one out.

So you're assuming that every time the legislature passes a piece of legislation, they are intimately familiar with everything in that particular bill. And that's just not the case.

BLITZER: Justice Kogan, you've been on the Florida Supreme Court. You sat there. How much pressure do you think those seven justices are feeling right now, pressure from the U.S. Supreme Court, which sort of admonished them earlier this week, and pressure from the Florida legislature, which is about to go into special session tomorrow potentially to come up with the state's 25 electors?

KOGAN: Well, it really depends upon what you mean by pressure. If you mean is pressure making them afraid to make a ruling, the answer is certainly no. If pressure means do they understand the importance of what they're doing, of course, yes. They understand how important this is.

BLITZER: All right. Justice Gerald Kogan, retired from the Florida Supreme Court. Thank you once again for joining us from Miami.

KOGAN: You're welcome.

BLITZER: Thank you. And when we come back, CNN political analyst Bill Schneider on Al Gore fight. Where is it going and when might it end? Stay with us.


BLITZER: A private company that sells commemorative medallions has found a way to profit from the nation's electoral indecision, deciding to mint a presidential medallion with George W. Bush on one side and Al Gore on the other. Company officials call it a coin toss medallion, and say it's the best selling item in the company's history.

Governor Bush was back at work in Austin today. He ignored reporters' questions as he arrived at the state capital. Later, he said he was too busy planning for his possible transition to pay much attention to the legal wranglings in Florida, but he said he had received legal updates from his point man in the Sunshine State, former secretary of state James Baker.

Vice President Al Gore and running mate Joe Lieberman took time to grab lunch as the election drama unfolded in Tallahassee. The candidates and their wives watched the state Supreme Court proceedings on television earlier in the morning. Aides say the campaign has drafted neither a concession speech nor a victory speech out of superstition. Gore himself made no comment as the lawsuits from Election 2000 reached a climax.

And for some insight, I'm joined now by CNN's senior political analyst Bill Schneider.

Bill, if the Supreme Court in Florida rules against Al Gore right now, does he have anything left?

WILLIAM SCHNEIDER, CNN SENIOR POLITICAL ANALYST: Well, he says he won't pursue it beyond the Supreme Court that case. There are other cases in Seminole and Martin that could still be outstanding. But you know, I don't think Al Gore wants to be elected president by throwing people's ballots out. That's why he didn't participate in those cases. I think it would be very hard for him to say that's what could get him elected president and discarding those absentee ballots.

BLITZER: Well, given the fact that Florida has certified George W. Bush the winner, everyone recognizes that Al Gore faces an enormous uphill struggle. What does he have to do, assuming he loses this election, to remain the viable presidential front-runner in 2004? SCHNEIDER: Well, Wolf, what he really has to do is show that he's not just fighting this for himself, that he's fighting for a cause that's bigger than himself. He's got to become a martyr, not a loser. He's got to demonstrates to Democrats that this is about them, not just about himself. I mean, remember Ted Kennedy when he got out of the race or he conceded at the convention in 1980? He made a speech that all Democrats remember. He said for those whose cause -- whose cares have been our concern, the cause endures. The fight goes on. The dream shall never die. Gore came close to that when he gave his convention speech and he talked about fighting the powerful forces that want to keep you from having a better life. He's got to retain that language and make it clear to Democrats that he's in it to fight for them and he's going to be in it in the future.

BLITZER: And very briefly, Bill, I know that whatever Al Gore does, if there is a concession speech could go a long way to helping Governor Bush strengthen his legitimacy as president of the United States?

SCHNEIDER: What's he's got to say, if he decides he has to concede, is that he will not challenge Governor Bush's legitimacy as president. He won't make an issue of the Electoral College and he won't continually bring up the fact that he got more popular votes in the nation than Bush did, that's he's not going to claim to be a loser who really should have won. He's got to say he's going to be my president. He's going to be the country's president. He's going to be our president and all Americans should support Bush. That's what he really does have to say to show that he has the country's interest in mind.

BLITZER: Bill Schneider, thanks again for joining us.

And in tonight's "MONEYLINE" update, another tech stumble hit the Dow and Nasdaq today. Blue chips fell almost 46 points to close at 10618. The tech-heavy Nasdaq stayed true to its recent form, falling more than 43 points to close at 2752. Its the third loss in the last four trading sessions.


BLITZER: Tomorrow we may get rulings on the Gore appeal as well as from the absentee ballot application cases in Seminole and Martin Counties. And stay with CNN throughout the evening for complete coverage of the Florida Vote. Attorneys David Boies and Barry Richard join Larry King at the top of the hour. Jeff Greenfield hosts a special report at 10 p.m. Eastern and "THE SPIN ROOM" opens right after that. For now, thanks very much for watching. I'm Wolf Blitzer in Washington. Greta Van Susteren picks up our coverage with a special report next.



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