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U.S. Supreme Court Decision Halts Florida Hand Counts

Aired December 9, 2000 - 8:30 p.m. ET

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

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: A stunning decision from the U.S. Supreme Court, halt the hand counts of the undervote in Florida until the Bush and Gore campaigns present their case on Monday.

But while the counting has stopped, the clock hasn't. Time is running out for a recount, as election 2000 continues its battle through the courts.

Hello, I'm Greta Van Susteren.

The Florida recount has been a legal roller coaster ride for both candidates, and Saturday brought more twists and turns. Just as hand counts of the undervote in Florida counties began, the U.S. Supreme Court issued a stay, putting a stop to the proceedings and throwing into question once again when and how election 2000 will be resolved.

We'll examine the legal drama and its impact on the election in depth with a panel of legal experts in a moment, but first a look back at another dramatic day in the courts and elsewhere.

CNN's David Mattingly reports.

(BEGIN VIDEOTAPE)

DAVID MATTINGLY, CNN CORRESPONDENT (voice-over): Fifty-eight counties, more than 42,000 ballots and now a circuit court plan, count them all by 2:00 p.m. Sunday.

UNIDENTIFIED MALE: Repeat after me...

MATTINGLY: In the meantime, confusion and criticism.

GOV. GEORGE PATAKI (R), NEW YORK: I think the decision of the four justices of the Florida Supreme Court is outrageous. It has no basis in Florida law.

SEN. BARBARA BOXER (D), CALIFORNIA: It may be, after all is said and done, that George Bush won fair and square. You know what? If he does, that's good. If Al Gore loses fair and square, it's fine. And, of course, my preference is Al Gore wins fair and square. But what we want is fairness.

MATTINGLY: 9:52 a.m., counting begins of ballots from Miami-Dade County. Eight judges sworn in to examine 9,000 ballots. Machine sorting underway to sift out uncounted ballots or under votes from Leon County, to be counted later by hand. The same in Duval County. But computer problems mean hand counting may not begin until 9:00 p.m.

President Clinton watching from Washington.

WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES: If this whole process leads people to believe that every reasonable effort is being made to get an accurate count, then I think that will help the incoming president.

MATTINGLY: Later, the Florida Supreme Court denies a Bush request to stop the recount pending a decision from the U.S. Supreme Court. But both candidates out of the public eye, Bush at his ranch in Texas, Gore in Washington, on early afternoon conference calls shoring up Democratic support.

REP. DICK GEPHARDT (D-MO), MINORITY LEADER: Respect the courts, count the votes and if you don't like the decision, appeal it to a higher court. But don't engage in attack politics against the judicial branch of our great democracy.

MATTINGLY: Criticism of the recounting split down party lines. But who has the advantage -- 25,699 recountable ballots in counties that favor Bush, just 17,733 in counties that favor Gore.

DOUG HATTAWAY, GORE CAMPAIGN SPOKESMAN: We think they should stop filing their lawsuits, stop trying to disrupt the process. This couldn't be more fair.

MATTINGLY: Miami-Dade County picks up to 1,000 ballots an hour, most ballots surprisingly listed as non-votes. And all eyes constantly on the federal courts. A Bush emergency request to stop the recount pending at the U.S. Supreme Court essential, according to documents, to protect the integrity of the electoral process. Gore attorneys reply, saying a halt in the recount would delay ultimate resolution of the election contest.

2:30 p.m., the 11th Circuit Court of Appeals in Atlanta denies the Bush attempt to halt the recount, but orders the state of Florida not to certify the results until the U.S. Supreme Court decides whether or not to hear the case.

BOB FRANKEN, CNN NATIONAL CORRESPONDENT: Very big news, the U.S. Supreme Court has...

MATTINGLY: Then, minutes later, a surprising development in Washington.

FRANKEN: Quoting from an order that just came out, they are staying pending further order of the court...

MATTINGLY: The U.S. Supreme Court orders the Florida hand recounts to stop, a 90-minute hearing scheduled for 11:00 Monday morning. JAMES BAKER, OBSERVER FOR BUSH CAMPAIGN: It changes from day to day. It's one day you're up, one day you're down. It's taken a lot of twists and turns. But it's very, very gratifying to us, I know to Governor Bush and to all of us, that the United States Supreme Court has now, for the second time, indicated a willingness and an interest in hearing this very, very important case and this very, very important federal issue.

RON KLAIN, GORE CAMPAIGN ATTORNEY: We're obviously disappointed in the Supreme Court's decision to grant a stay against the manual recounts here in Florida. We believe that the progress made in the count thus far indicated that we were clearly on a path for Vice President Gore and Senator Lieberman to make up the difference and to pull ahead, had the count been fully completed.

MATTINGLY: Now, the clock weighs in more heavily than ever before. Florida's 25 electors must be chosen by Tuesday. The Florida legislature set Monday to take matters into its own hands while the high court deliberates.

David Mattingly, CNN, Atlanta.

(END VIDEOTAPE)

VAN SUSTEREN: Is it over, or just another turn in this election roller coaster ride? I'll ask my guests when we come back.

Stay with us.

(COMMERCIAL BREAK)

VAN SUSTEREN: You are looking at one of the most beautiful buildings in the nation, perhaps one of the one of the most important buildings: the United States Supreme Court.

Arguments before the United States Supreme Court begin Monday at 11:00 a.m. Eastern, with a time limit of 90 minutes. Like last time, video cameras will not be allowed, but an audio tape will be released later.

What might we expect? Our guests are, from Washington, former Supreme Court clerk Sheryll Cashin and constitutional law scholar Bruce Fein; from Los Angeles, former Supreme Court clerk Edward Lazarus; and from New York, Robert Giuffra, also a former Supreme Court clerk.

Welcome to you all.

Let me start first with putting up for our viewers a portion of the decision that was issued today per curiam. It's a statement from Justice Scalia, and it says, "It suffices to say that the issuance of this stay suggests that while a majority of the court, while not deciding the case, the issues presented, believe that the petitioner has a substantial probability of success."

Five-four, Sheryll Cashin, is it over? SHERYLL CASHIN, FORMER SUPREME COURT CLERK: I hope not. Five votes, it takes five votes to grant a stay, four votes to grant a petition for cert. We read the tea leaves from last week's oral argument, I think there are five people, the five people who voted for the stay, who are favorably inclined towards the Bush position.

However, when all is said and done, this is going to require a sitting Supreme Court to characterize a state Supreme Court interpretation of its own state of Florida election law as creating new law. And I think that's a real stretch. And it's inconsistent with the court's federalism principles, the idea they would characterize, would second-guess, a court's view of its own state laws.

VAN SUSTEREN: Bob, it sounds to me, though, from what I just put up on the screen Justice Scalia said there's a substantial probability of success, and five of them said that. I mean, doesn't that tell you that they've made up their minds?

ROBERT GIUFFRA, FORMER SUPREME COURT CLERK: Greta. if I were to make a prediction I think it will be at least five justices who will reverse the Florida Supreme Court's decision. I think Governor Bush will almost certainly be the president, based on the fact that the stay has been issued, which is -- you know, obviously makes a huge difference.

But I think it's important to remember, as Justice Scalia pointed out in his decision today, that had this counting gone on and had the numbers started to change and then had the Supreme Court come in on Monday or Tuesday and said that this process was unlawful, it obviously would damage the legitimacy of whomever became the president.

You also had the problem of the fact that if you continued to do these manual recounts without knowing what the proper standard was, you obviously -- you would obviously have a negative effect on the ballots and it would be hard to do an accurate recount.

VAN SUSTEREN: All right, well let me take -- I'll issue with you for -- in one second, but first let me just say that the thing that troubles me a little bit, it sounds like the decision has already been made.

Eddy, you know, what do you do if you represent the Gore side and you you've got to go into court and it sounds like the five have already said that basically you lost?

EDWARD LAZARUS, FORMER SUPREME COURT CLERK: Well, You can't just lie down and give up. You have to go in there and present the most compelling case you can. And I think Sheryll certainly pointed at what the main argument's going to be, which is, look, this is just a state court interpreting state law. There's no federal question presented here. The Supreme Court doesn't have any business ruling in this case.

VAN SUSTEREN: But, Eddie, it says that they has a substantial probability of success. I mean, how are you going to get around that? Five of them have said that and there are only nine on the bench.

LAZARUS: Well, Greta, that would mean that every time you had a stay issued, because that's the standard for a stay to be granted, then the party that lost at the stay proceeding ought to just give up. Now I agree with...

VAN SUSTEREN: All right, let me ask Bruce to join.

Bruce, do you want to join in on this?

BRUCE FEIN, FORMER SUPREME COURT CLERK: I think there are two elements here. One, scheduling it December 11th, one day before the December 12th deadline, which the court itself on the last go-round on the Palm Beach County case is critical in deciding what the state statute means because it said we should presume that the Florida state legislature in this election code would want the deadline to be met so then it would guarantee its 25 electoral votes would be counted.

And so scheduling this on the verge of the December 12th deadline almost ensures that the only way a decision could still respect that December 12th date since the manual recount has been held up in midstream is to go for Bush.

Moreover, I think the federal question here, which is independent of whether the state court was interpreting the state law, is the equal protection clause of the 14th Amendment. We know that this court in Florida issued no comprehensible standards to determine whether to count the dimpled chads.

VAN SUSTEREN: Bruce, let me stop you right there. Explain this to me, and maybe somebody else can help me out, but this whole business about the standard. Every day of the year judges and juries are determining the intent of the people, whether it's intent to kill or murder. Why is it that we have to have this scientific blueprint. The statute says that you just have to determine the intent of the voter. How is that so vastly different?

GIUFFRA: Well, but, Greta...

FEIN: The difference, Greta -- the difference, Greta...

VAN SUSTEREN: Go ahead...

FEIN: ... is this, that in the case that you've described you actually have the person there whose intent is to be probed, available to cross-examine and question. In the case of a dimpled...

VAN SUSTEREN: Then you just change it. You make it a tougher -- you make it a different standard.

Sheryll, do you want to help me out on this?

CASHIN: Yes, well if the court had prescribed a standard then the Republicans would have accused them of legislating from the bench. They enforced the Florida statute, but that's all the standard the Florida legislature gave them. And they knew if they went any further they would get attacked and they might create a federal question. They might have created new law.

And so let me say, in terms of the merits, if I were the Gore team I would make their arguments a love sonnet to Sandra Day O'Connor. I think she's the best shot they have. She's a former state legislator. I think, you know, she's very sincere in her views about federalism.

I don't think it's necessarily over, but they really do have to convince this court that it would be untoward for one court to characterize a garden variety statutory interpretation exercise as creating new law.

VAN SUSTEREN: Eddie, let me ask you, Sheryll raised the question of who you basically, you plead your case to. If you're the Gore people, it's O'Connor. We have Scalia, Rehnquist, Thomas who are in that five and then O'Connor and Kennedy.

Would you put Kennedy in that as well, since Scalia, Rehnquist and Thomas seem always to side together?

LAZARUS: Well, I agree with Sheryll. I think Sandra Day O'Connor is probably the key vote, but I don't think you want to give up on Anthony Kennedy. It was unclear in the last oral argument whether he was really all the way into the Scalia-Rehnquist camp. So you don't want to give up on him.

And here's the other consideration, which is, there are not going to be more than five votes for George W. Bush. So once again, the court is confronted with the fundamental question of its own integrity and whether they're willing to decide this case for Bush, 5-4, with the five really turning their backs on their own states' rights principles. That's a tough road to go.

VAN SUSTEREN: Bob, what about that? I mean, the Republican mantra in many ways has been states' rights, except now they're going to the United States Supreme Court saying, we need your help. The states aren't, at least in their view, enforcing the rights the way they should?

GIUFFRA: Yes, but you have a statute which has been distorted by the Florida courts. And the Constitution gives the legislature the power to enact the laws and not have courts overstep those bounds. And...

VAN SUSTEREN: What's the distortion? What is the distortion?

GIUFFRA: Well, the distortion begins first when you move the deadline. The statute says you must make a decision seven days after the election.

VAN SUSTEREN: That's the old case.

GIUFFRA: That issue...

VAN SUSTEREN: That's the old case. GIUFFRA: That case is still before the court, because what the Supreme Court did when it sent the case back down was to ask the Florida Supreme Court to specify whether they were dealing with this in terms of equitable principles or based on their interpretation of the statute.

The case is now coming back up, and I think that issue is a very live issue.

There's also a question about -- there's also a question about whether you can have a contest proceeding in a presidential election, another issue that's presented to the Supreme Court of the United States.

I think the one point which is very important is don't think that justices such as Souter and perhaps Breyer might not join with the five that everyone's assuming are for Bush. The disturbing thing about this is if it's decided by one vote, obviously the decision will not have the legitimacy that happened, for example, in the Nixon tapes case, where it was a unanimous decision.

VAN SUSTEREN: All right...

FEIN: Yes, but that's reduced in part because in Florida...

VAN SUSTEREN: Hold your thought for one -- Bruce, hold your thought. We'll be right back and you'll get your chance.

Stay with us.

(COMMERCIAL BREAK)

VAN SUSTEREN: Welcome back. Justice Stevens wrote a dissent to the court's decision today, an important decision stopping the hand counts. And he says this, "As a more fundamental matter, the Florida court's ruling reflects the basic principle inherent in our Constitution and our democracy that every legal vote should be counted."

Bruce, what is wrong with that?

FEIN: Well, the standard is impeccable. The problem is, what is a legal vote or not? If you cast a ballot and don't comply with the directions that tells you to punch through a hole completely or pull off a chad in order for it to count, then you've not necessarily cast a legal vote.

VAN SUSTEREN: Eddie, let me -- do you want to -- go ahead, Sheryll, you want to respond.

CASHIN: This is a state where the lowest technology or the most dysfunctional technology for voting is in the areas where it's predominately minority. And, you know, it's offensive to me the idea that you're going to characterize a voter who's trying their best to vote and that late in the day a machine that's full with chads, and their, you know, trying to cast this vote and you're characterizing them as somehow not casting a legal vote.

I mean, the idea -- what the Supreme Court did today, and I'm proud to come from a state, Alabama, where heads were cracked over and people died over the principle of the right to vote. And the idea that it's somehow going to be some irreparable injury just to count votes -- maybe after the courts decides the merits they'll decide that these votes should not count. But what is the harm in looking at votes and trying to apply a Florida standard, trying to discern whether there was intent there? What's the problem with that.

GIUFFRA: I think it would be very, very dangerous if we were to count these ballots in an unlawful manner, have the results of the election change and then...

VAN SUSTEREN: But, Bob, stop for a second.

GIUFFRA: ... and then have an issue as to who's the legitimate president of the United States. That would be very bad for everyone.

VAN SUSTEREN: But you know what would also be bad, Bob, is if we have some enterprising media organization or political science department after January 20th go in on a Freedom Information Act or public access to records in Florida going in and counting it as well.

Eddie, do you want to get in on this debate?

LAZARUS: Well, I just think it's a bit ironic to hear the conservatives arguing that, oh, you know, these aren't legal votes because they didn't quite detach the chad properly, while of course in Seminole County and in Martin County they were arguing, well, let's just turn our backs on the fact that the absentee ballot applications were filled out wrong.

I mean, it seems...

FEIN: They weren't filled out incorrectly. That's not true. All the ID numbers and everything was found impeccable by the judges. They said that the person...

LAZARUS: Right, they were filled out in violation of law, let's just put it that way.

VAN SUSTEREN: But that was the application. Does it -- Eddie, that's the application though. I mean, in those cases brought by Democratic voters, not by Al Gore, that had to do with the applications, not with the actual voters. And the wrongdoers weren't the voters. Isn't that different?

LAZARUS: I don't think that they should have necessarily won in Seminole County, I just find it rather ironic that every vote really matters in certain circumstances, but not every vote matters in other circumstances.

GIUFFRA: But I think...

LAZARUS: Really, most people understand that Al Gore, if there is a full recount, is going to come out ahead. And it's just a lot lawyerly obfuscation.

VAN SUSTEREN: Maybe he won't, though, Eddie. Eddie, that's the irony. Maybe he won't. I mean, maybe...

GIUFFRA: But in fact, Greta, he already hasn't come out ahead. There was a manual -- there was a machine recount, two machine recounts, a hand recount, and he hasn't come out ahead yet.

CASHIN: And there were 9,000 votes, ballots, in Miami-Dade County that have not been examined.

GIUFFRA: But part of the problem with that, my understanding, is that those -- the count -- the votes that were counted were predominately from the Democratic districts, which is one of the problems with a selective...

VAN SUSTEREN: But, Bob...

GIUFFRA: ... arbitrary...

VAN SUSTEREN: But, Bob...

GIUFFRA: Go ahead.

VAN SUSTEREN: Bob, what if -- I mean, here's what I'm not clear about. If there were an entire hand count of the state of Florida, it might just very we will be that Governor Bush is the winner.

GIUFFRA: Of course, that's the problem, though. We can't have a hand count that's done in accordance with law that is consistent standards in the time that remains.

FEIN: Moreover, there's...

GIUFFRA: The way this is normally done is by running the paper ballots through machines. And that is what has happened in every presidential election in recent memory.

VAN SUSTEREN: Well let me ask all of you...

GIUFFRA: Using that system, Bush won.

VAN SUSTEREN: All right, let me ask you this, does anyone here object observe to, hypothetically, if we could all agree with some criteria of how we're to determine intent, make it more scientific than simply allowing it to whoever has the job under the statute determine the intent, would that satisfy everybody in terms of a hand recount, that we standardize the vote?

FEIN: I think that's -- that's an excellent idea, so long as you meet the congressionally prescribed deadline that enables the state to have assurance that their electoral votes will be counted and that deadline is known by everybody before the vote begins on November.

VAN SUSTEREN: Sheryll, you wanted to get in. CASHIN: I want to say something about this deadline. I think people are overstating the significance of both the December 12th and the December 18th dates. All that the December 12th date means, if the vote is -- if the count's done in election -- resolved by December 12th, that ensures that the state of Florida will have a safe harbor and Congress will have to take those electors. You know, that's all that it does. There has been points to history when electors have been selected as late as early January. So...

VAN SUSTEREN: Eddie, Eddie, let me ask you about one of the dissenters. Justice Souter, appointed by Governor Bush's father, President Bush, and in this time he didn't come down on the so-called Bush side. What do you make of that?

LAZARUS: Well, I think he quite clearly, as someone who was involved in state law quite extensively in New Hampshire, understands that this is a state law issue. I don't think there's a chance in the world that he will vote in favor of the son of the man who appointed him.

I would add, by the way, just on this other point, that the Florida legislature has a solution to the problem of the deadline...

VAN SUSTEREN: All right, well...

LAZARUS: ... they should just appoint a slate of electors that pledge themselves to abide by whoever wins the recount. That solves all the problems and opens up plenty more time.

VAN SUSTEREN: All right, well all the problems hopefully will be solved on Monday in the United States Supreme Court. But among the hallmarks of the U.S. democracy, power is transferred peacefully.

Recently we've seen the sometimes ugly aftermath of election results that are questioned, such as in Yugoslavia this fall, and the riots in Peru that stemmed from last spring's election there, an election that many saw as rigged.

The demonstrations about the elections seen here in the United States have been vocal and in some cases even humorous. In a nation where the rights of peaceful protest is protected by the First Amendment, whoever takes the Oath of Office on January 20th ill do so knowing America's history of peaceful transition of power has withstood controversies challenges and through it all that test of time

I'm Greta Van Susteren. Thank you for joining me this evening.

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