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The Florida Vote

Aired December 7, 2000 - 8:30 p.m. ET


ANNOUNCER: This is a CNN Election 2000 special report. One city, two courts, three cases and what may be Al Gore's last chance.


DAVID BOIES, GORE CAMPAIGN ATTORNEY: When you have a very close election, you have to have a manual review of those ballots in order to have an accurate tally.



BARRY RICHARD, BUSH CAMPAIGN ATTORNEY: This is nothing more than a garden variety appeal.


ANNOUNCER: And if the courts don't end it, Florida's legislature could be George W. Bush's insurance policy.


UNIDENTIFIED MALE: It's time to bring finality to this. Its time to bring closure.


ANNOUNCER: And a case study of profiting from uncertainty. 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: It's been a day of tension and tedium as we draw ever closer to a resolution of Election 2000. The stage is Florida's capital city of Tallahassee. In Leon County's Circuit Court and in Florida's Supreme Court, attorneys argued about including or throwing-out ballots. And now, we wait.

In a few minutes, we'll talk to players on both sides of this election saga. But first, a closer look at all of the legal challenges.

CNN's David Mattingly walks us through another extraordinary day.


DAVID MATTINGLY, CNN CORRESPONDENT (voice-over): Three Florida court cases, three decisions that could make or break Vice President Gore's claim to the Florida election.

UNIDENTIFIED MALE: Hear ye, hear ye, hear ye.

MATTINGLY: First, 10:00 a.m., the Florida Supreme Court.

BOIES: May it please the court, my name is David Boies and I represent the vice president and Senator Lieberman.


MATTINGLY: Immediately, the questioning is aggressive.

JUSTICE BARBARA J. PARIENTE, FLORIDA SUPREME COURT: Why isn't the request made and why wouldn't it be proper for any court if they're going to order any relief to count the undervotes in all of the counties where the very least punch card systems were operating.

MATTINGLY: The justices want to know why does this appeal need their attention?


JUDGE N. SANDERS SAULS, LEON COUNTY CIRCUIT COURT: At this time we call the case of Albert Gore...


MATTINGLY: Gore attorneys argue Circuit Judge Sanders Sauls should have looked at the 14,000 disputed ballots from Miami-Dade, Palm Beach and Nassau counties before rejecting Gore's call for a manual recount.

BOIES: We demonstrated first that there were a large number of ballots that were not counted by the punch card machines. We demonstrated second that when you have a very close election, you have to have a manual review of those ballots in order to have an accurate tally.

RICHARD: The record indicates that every one of these votes was sent through the machine. They were rejected by the machine because of the parameters that had been set. The machine determined that the votes had not been properly marked on the ballots.

MATTINGLY: Then, little over an hour later, case and court number two.

UNIDENTIFIED ATTORNEY: I don't think one vote should be thrown out.

MATTINGLY: Closing arguments in the challenge of 10,000 ballots in Martin County. Was the law broken when Republicans removed hundreds of ballot applications, filled in missing information, and returned them to the election supervisors's office.

Election officials say applications from Democrats didn't need that help and were properly filled out. By now every one keenly aware of the clock. Florida must pick its 25 electors by Tuesday.

DEXTER DOUGLASS, GORE CAMPAIGN ATTORNEY: The real issue that is facing the court is how can you get them counted four, five days assuming that you're able to count the way -- the one's we've contested which are the ballots in Dade and Palm Beach counties. That gives us those undervotes of about 10,000 in Dade and I think about 3,300 that we want re-evaluate in Palm Beach To do that requires some logistical planning and support.

MATTINGLY: Finally, 1:30 p.m. Case number three. Final arguments: Did the election supervisor in Seminole County favor Republicans by allowing them in her office to add missing information on thousands of ballot applications?

The supervisor says she would have let Democrats do the same if they'd asked. By 4:30 p.m., arguments end in the last of today's three cases. No word on when to expect a ruling in the Seminole County case, but a written ruling promised in the Martin County case by noon tomorrow. A decision for Gore in either could deliver him the majority vote, the state's 25 electors and the White House.

But Bush attorney Barry Richard, part of all three court appearances, confident at the end of the day.

RICHARD: They didn't prove that there was anything that violated anything, so they're not entitled to any remedy.

MATTINGLY: Still, what of the Florida Supreme Court? Will the vice president be awarded a hand recount? Or will it be his last legal stand in this presidential impasse?

David Mattingly, CNN, Atlanta.


VAN SUSTEREN: I'm joined now by attorneys from both sides to discuss the events which David Mattingly just told us about. First, Ed Stafman, the plaintiff's lead attorney in the Martin County case. He's in Tallahassee.

Ed, does it really matter if someone didn't fill out the -- or if someone else filled out the identification number on an application?

EDWARD STAFMAN, PLAINTIFF'S ATTORNEY: Well, Greta, first of all, it's nice be with you. Yes, the law in Florida is very specific. It requires that the requester of an absentee ballot provide and disclose certain information and if that information is not disclosed, the request is not valid under Florida law. These requests were disclosed. They were declared invalid. Greta, it's as if you write a check and then somebody else later fills in couple of zeros. Once that document is signed, the request has been made. What's happened is somebody else made the request for these voters after the fact and under Florida law those requests are invalid. The rules are the rules.


VAN SUSTEREN: But Ed, I thought that -- OK, the rules are the rules and I'm going to ask your counterpart who represents Republicans in a second. But Ed, I mean, isn't the law in Florida is that you're supposed to determine whether or not you can tell the intent of the voter? Isn't that what really matters and not so much the number on the ballot, but what the voter intended to do?

STAFMAN: Well, the intent of the voter is important, but let's say, Greta, that a voter arrived late at the polls, and the poll was already closed and the election supervisor opened it for this voter. He may have intended to vote for one candidate or another, but he voted in violation of the law. And, you know, I noticed that the Republican lawyers are -- want to use every hypertechnicality of the law they can when it suits them.

When an elderly voter in Palm Beach misses a chad by a millimeter, they say well, sorry, that don't count because the machine didn't count it. Or when our secretary of state needs more time to certify the vote because some counties haven't yet sent their vote tallies in since they can't count them that fast, it's the Republican lawyers saying, well, the date is date and it can't be changed. So this...

VAN SUSTEREN: Ed, let me ask you about the two election supervisors. One is Sandra Goard and the other is Peggy Robbins, from Martin. Sandra Goard is from Seminole County. Did both know it was wrong, number one, and number two, what do you think should happen to them if anything?

STAFMAN: Well, I don't know about Seminole County. I'm not involved in that case. I'm only involved in Martin County. The testimony in the Martin County from not only supervisor of elections but from every single employee in her office is that they would never under any circumstances change a voters card after it was signed without first getting permission from the voter, yet they had no problems about allowing Republican operatives to remove those cards and go somewhere else...


VAN SUSTEREN: What should happen to them? What should happen to them for doing that?

STAFMAN: That's up to other officials. That's not up to us. We're only concerned that legal illegal votes don't count. You see, voters who cast legal votes are disenfranchised when illegal votes count. That's unfair.

VAN SUSTEREN: All right, Ed Stafman, the plaintiff's lead counsel in the Martin County absentee ballot case. Now the view from the other side. Also in Tallahassee is Bush campaign attorney Ben Ginsberg, who was involved in today's Florida Supreme Court hearing. Ben, what about it? A rule is rule. The Republicans were jumping up and down when the Supreme Court changed the deadline. Why shouldn't a rule be a rule in Martin County and Seminole County?

BEN GINSBERG, BUSH CAMPAIGN ATTORNEY: Greta, you're mixing apples and oranges. What happened in Martin County was that perhaps some election officials did something that they haven't done before in terms of enabling voters to enfranchise themselves, but at the end of the day the voters themselves did absolutely nothing wrong and the case law in Florida and indeed all around the country is crystal clear. You don't disenfranchise voters because of an error...

VAN SUSTEREN: But Ben, you know what.

GINSBERG: ... or even a potential error in this case by a clerk, Greta.

VAN SUSTEREN: But Ben, the rule is -- the law's also pretty clear in Florida that a valid application is invalid if someone else fills out the number. Secondly, this is a brand new law created by the Florida legislature which tomorrow may disenfranchise about 2.9 million Democratic voters. So, how do you rationalize that?

GINSBERG: Excuse me? First of all, you're using some interesting math that I know the Gore campaign is spinning to you, Greta with you those numbers.

VAN SUSTEREN: That's actually my own, Ben. That's actually my own.

GINSBERG: Well, that's even -- OK. At any rate, in terms of Martin County, let's get to the simple facts here. If Al Gore was sincere about saying count every vote, why hasn't he come into case on the side of disenfranchised voters instead of encouraging his supporters to do this? The burden is on the Gore supporters to show that there is some reason to disenfranchise all of these voters.


VAN SUSTEREN: But skip that. You're missing my question, Ben.

GINSBERG: How at the end, Greta. Greta, how at the end of the day could any presidency be legitimate if it was brought about by disenfranchising 14,000 people who did absolutely nothing wrong?

VAN SUSTEREN: VAN SUSTEREN: And Ben, I'm not for disenfranchising. What I'm trying to understand is the rationalization a rule is a rule in one case, and a rule is not a rule but something we should overlook when it's Martin County and Seminole County...


GINSBERG: because Greta, if you want engage in legal talk, there's a difference between directory rules and mandatory rules. And this is directory rule to officials who process votes. It has nothing to do with the people who cast ballots. This was about applications that were turned in.

There are no allegations of anything being wrong with the votes that were cast. No questions about the legitimacy of the individuals involved nor the sanctity of their ballots, yet the Gore forces want to disenfranchise these 14,000 people. The only consistent principle is what the Gore campaign is trying to do to absentee votes in Seminole County and in Bay County where they lost today and in their effort to disenfranchise overseas absentee military men and women as well.

VAN SUSTEREN: All right, well let me just correct one thing. This is brought by Democratic voter, a supporters of Al Gore, not the Gore campaign but in the 20 seconds we have left, can anything be...


GINSBERG: Greta -- Greta -- Greta, excuse me. Excuse me, Greta, but if that were true, then why hasn't Al Gore as someone who wants to count every vote either publicly tried to separate himself from the case or...

VAN SUSTEREN: I have no explanation.

GINSBERG: ... as a matter of real principle come in on our side. But you're the one, Greta, who created the proposition. You just argued the point that this wasn't the Gore campaign and just that's just simply not the case.

VAN SUSTEREN: All right, Ben. This time you get the last word, but I'll have you back -- you know that -- so I'll get it next time.

GINSBERG: It's a miracle, Greta.

VAN SUSTEREN: You got it. Anyway, Bush campaign attorney Ben Ginsberg. Thank you for joining me. We need to take a break. Next, two Florida state lawmakers join me to for what's being called election insurance for George W. Bush. Please stay with us.


VAN SUSTEREN: Tomorrow, while the rest of the country waits for the Florida Supreme Court or the two district court judges to hand down their decisions, Florida lawmakers take matters into their own hands. They're going into a special session to appoint Electoral College members.

And since Republicans dominate the legislature, there's no doubt those electors will support Governor George W. Bush. Democrats are calling this election insurance for George W. Bush, meaning, no matter what happens within the courtrooms, Florida will have Bush electors by December 12th.

Now, I'm joined from Tallahassee by lawmakers from the two parties. Republican Mike Fasano is the state house majority leader and Democrat Tom Rossin is the senate minority leader.

First to you, Representative Fasano. Tomorrow do you expect to pick electors?

MIKE FASANO (R), FLORIDA HOUSE MAJORITY LEADER: No, tomorrow we're going to convene for the introduction of a joint resolution, a committee which will be developed in the House of Representatives by the Speaker will then convene on Monday, hear the resolution, hear public testimony, debate the resolution and then the House will hear it on the floor on Tuesday sometime.

VAN SUSTEREN: Representative Fasano, I'm sort of -- help me out, a little bit. In the event that the legislature does select electors and the Constitution does give you that duty, it seems according to my math that 2.9 million approximately Democratic voters will be disenfranchised in Florida, which, of course, may compare to the opposite argument that in Martin County and Seminole County there could be a disenfranchised of only 25,000. How do you explain or reconcile that disenfranchisement?

FASANO: Well, first of all it's very possible, Greta, that all six million votes may not count if we don't act. As you say the Constitution is clear that the legislative body, not the executive body, has the final say in selecting the 25 electors. All we want to do is to be sure that we have representation from the state of Florida in the electoral process. And if we don't act, it's a very good chance that no vote will be counted on December 18th.

VAN SUSTEREN: Senator Rossin, you're a Democrat. Is there anything that you can do to stop the legislature from selecting electors? I assume that you do, because you're a Democrat, you don't want them to select them. Is there anything you can do?

TOM ROSSIN (D), FLORIDA SENATE MINORITY LEADER: Well, first of all, that's really not the issue that's before use. The problem is, is that state of Florida has already appointed and certified their electors to Congress. That's has already happened. And under every constitutional edict that we can find, 37 constitutional experts around the country, have certified or have said, that the Florida legislature has no power here to act and that's very clear.


VAN SUSTEREN: I don't understand why it's so clear. Let me ask you this because I'm looking at Article II, Section One of the Constitution, maybe you can educate me, but it says each state should appoint in such manner as the legislature thereof may direct. Aren't you sort of cooked on that issue?

ROSSIN: Well, the point is that's true if Florida had not certified -- had not certified their electors. But that is not case here. The secretary of state and the governor have certified those electors. They've been sent to Congress, and they were Bush electors. If for some reason a court turns that over and says you certified the wrong electors, the electors should have been under Florida law for Vice President Gore, then we'll have Gore electors. But at no time...


VAN SUSTEREN: So, what do you do? What are you going to do?

ROSSIN: Well, you don't -- we shouldn't be here at all. We shouldn't have the special session. We should not be acting at all. We don't have the power to do that. I think that's going to come out very clearly if we act in this manner it's -- what we're doing is creating a constitutional crisis. We're not...


VAN SUSTEREN: But, can you actually stop this? Can you actually stop this?

ROSSIN: Well, you know, perhaps not. And perhaps that's the best thing that could happen for the vice president because clearly we're acting unconstitutionally and completely illegally.

VAN SUSTEREN: All right, let me go back to Representative Fasano. Representative Fasano, the Florida legislature passed the law that is creating so many problems in the Seminole County and Martin County cases having to do with the addition to the applications for absentee ballots. When you passed that statute, why didn't you put words into it to give it a little leeway, in a sense saying that you could have a system putting the identification numbers in?

FASANO: Well, Greta, of course we can go back to any piece of legislation that we've passed and say we should have do this, we should have done that. But I think the bottom line is that you've got 15,000 people in Seminole County that may be disenfranchised if Al Gore and his attorney get their way. You know, they've made it clear that they want every vote counted in this state.

VAN SUSTEREN: Isn't that what -- but you know, this is a Republican legislature that wants strict construction of its statutes and the statute is rather plain. You're not supposed to get extra outside help. Don't you want the statute you passed strictly enforced?

FASANO: Well, Greta, you have understand that the voter -- the voter who filled out their application, the voter who got the absentee ballot in the mail, the voter who filled it out correctly and had it signed correctly and witnessed correctly, mailed it back in. Why should their vote not count?

VAN SUSTEREN: Let me ask the senator. Why shouldn't their vote -- I mean, why shouldn't we count their vote since it seems like technical problem, the numbers weren't on? Nobody said they didn't vote.

ROSSIN: Well, you know, this is a very interesting argument by Representative Fasano and the Republican leadership in the House. In one case, they want to not -- sort of ignore the law and not pay any attention to it and in another case they don't want count votes in this state because they're worried that Al Gore may win the election and in that case they want very, you know, strict construction of the law. You know, you can't have it both ways, and the fact is, is that all we're asking for is the votes to be counted. VAN SUSTEREN: All right, Representative Fasano, do you want to respond to that.

FASANO: Well, I'd like to -- Senator Rossin, who's a very a good friend who I respect said why can't every vote get counted? Well, why are the Democrats wanting 15,000 votes in Seminole and thousands of votes in Martin County not be counted. I thought Al Gore and his attorneys wanted every vote counted in this state. Apparently, they only want certain votes counted.

VAN SUSTEREN: All right, gentlemen. We're out of time. Florida lawmakers Mike Fasano and Tom Rossin, thanks for joining us tonight. Next, a right almost as inalienable as life, liberty and the pursuit of happiness. The pursuit of the almighty dollar. Don't go away.


VAN SUSTEREN: America is known as the land of free enterprise, and there's nothing like a big news story to prove it. O.J. Simpson spawned several book deals and a cottage industry in souvenir watches and T-shirts and even legal analysts.

The fight over Elian Gonzalez gave birth to several Made-for-TV movies and Monica Lewinsky turned her accidental fame into a business, selling handbags on the Web.

Tonight, a case study in cashing in. True to form, the controversy over this year's presidential election has created some new financial opportunities.

Remember the Ryder truck used to transport the disputed ballots from Palm Beach County to Tallahassee? When it pulled over for gas, tourists lined up to get their pictures taken with it. It's not being auctioned on the Internet. The bidding has topped $30,000 and is still going strong. And in a nice twist on the capitalist ethic, the company says it will donate the proceeds to the American Red Cross.

But other people are looking to make themselves some real money. One company is now selling a keepsake coin featuring Governor Bush on one side and Vice President Gore on the other. A novelty? Probably. Cashing-in on a big story? Absolutely. If anyone wants to buy it.

While some people have a problem with such behavior, remember. This is America, and we are proud of our economic opportunities. This is simply one more example. It's OK with me, that is, until I show up on a T-shirt.

Let me know what you think. Send an e-mail to -- that's one word, askgreta.

Next on "LARRY KING LIVE," Barry Richard and David Boies, the lead attorneys for the Bush and Gore campaigns. I'm Greta Van Susteren in Washington, and I'll see you tomorrow.



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