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The Florida Vote: U.S. Supreme Court Turns Tables on Gore

Aired December 09, 2000 - 10:00 p.m. ET


BRIAN NELSON, CNN ANCHOR: Another day in Florida, another dramatic court reversal in the race for the White House. Officials stop their mandated ballot count in the process.

DARYN KAGAN, CNN ANCHOR: When the U.S. Supreme Court steps in and agrees to take on the legal battle over the ballots.

NELSON: And a surprise in the political crisis in Israel: Prime Minister Barak throws the reins of the nation to the voters.

KAGAN: From CNN Center in Atlanta, I'm Daryn Kagan.

NELSON: And I'm Brian Nelson. We'll have more on the Barak resignation in just a minute, but first the latest twist in the Florida vote controversy.

The tables have once again turned on the presidential candidates. What the Florida Supreme Court gave to Al Gore, the U.S. Supreme Court has now taken away. The high court voted 5-4 to call a halt to the ballot counting today, saying it will hear George W. Bush's appeal on Monday.

CNN national correspondent looks into the high court's action.


BOB FRANKEN, CNN NATIONAL CORRESPONDENT (voice-over): The moment the word went out that the Supreme Court had issued its stay, the recounts in Florida suddenly stopped. And on the plaza outside the nation's highest court, the demonstrators gathered once again to chant about a ruling that could finally end the election.

RON KLAIN, GORE CAMPAIGN SPOKESMAN: We're obviously disappointed in the Supreme Court's decision to grant the stay.

FRANKEN: Gore campaign attorneys had reason to worry. Five of the justices, a majority, had ruled in favor of the stay: Rehnquist, the chief justice, O'Connor, Kennedy, Thomas and Scalia. And as Scalia pointed out, "It suffices to say that the issuance of this stay suggests that a majority of the court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success."

And if the Bush attorneys were successful, the recount would never resume. But four justices dissented: Souter, Ginsberg and Breyer, joining Justice John Paul Stevens in saying, "There is a danger that a stay may cause irreparable harm to the respondents and more importantly the public at large."

Bush lawyers were careful not to appear overconfident.

JAMES BAKER, BUSH CAMPAIGN OBSERVER: We're very pleased that we will have the opportunity to argue the merits of our case before the United States Supreme Court.

FRANKEN: This will be the second Supreme Court hearing on the election in 10 days. After the first, the justices sidestepped a definitive decision. But this time may be different.

EDWARD LAZARUS, FORMER SUPREME COURT CLERK: This time around it's very difficult to imagine the justices stepping back from the political fray because they've been down this road once before. They already know because of the previous case that they're deeply split. The fact that they took this case again suggests that there's sort of no going back.

FRANKEN (on camera): The court ordered that briefs be filed by 4 p.m. Sunday, guaranteeing that dozens of lawyers in Tallahassee, Austin and Washington would pull still another all-nighter.

Bob Franken, CNN, the Supreme Court.


KAGAN: It is indeed going to be a long night for lawyers for both campaigns. For more about the work cut out for them, let's bring in our legal analyst Greta Van Susteren, joining us once again from Washington.

Greta, good to see you.


KAGAN: Those written briefs due tomorrow, tomorrow afternoon. What first must the Gore campaign do to get better decisions from the Supreme Court?

VAN SUSTEREN: Boy, I tell you, it's tough when you go into a case like this and you've got 5-4 stacked against you. You don't ordinarily know the leanings of justices in cases, but in this particular case you do because the Bush side asked for a stay from the Supreme Court to stop the hand counts. In order to do that, they had to convince the Supreme Court in a very quick filing that there's a substantial likelihood they's win. Five-four, they did that. So oddly enough, the Gore people know they have an uphill battle.

What I would do is I would go back to that December 1st argument and take a look at the justices and see what kind of questions they asked, see who might have a soft spot for my particular view if I were arguing for the Gore people. On the other hand, if I were arguing for the Bush people, I'd do the same thing. I'd go back and say, who are the ones that are definitely in my corner. I would play to those people.

KAGAN: On your show about an hour and a half ago, our guest Sheryll Cashin said that she would -- if she was working for the Gore campaign she would write a love sonnet to Sandra Day O'Connor, since she tends to be that swing vote on that divided court. What do you think of that idea?

VAN SUSTEREN: Indeed that's true. In the five you have Justices Scalia, who wrote the dissent and a very -- I mean, who wrote the opinion and a very strong one; Justice Thomas, who oftentimes votes right along with Scalia and the chief justice, who's also very conservative.

The other two who make up that five are Justice Kennedy and Justice O'Connor. So the best hope that the Gore people have probably -- and this is reading tea leaves, but we lawyers do it all the time. We think that we can read minds, but of course we can't -- but those two seem to be the most likely to be the ones likely to swing over to the Gore side.

I say most likely, remember, they signed on to this 5-4 in which it says substantial probability of success by the Bush people. So they need...

KAGAN: Well, Greta, on that split court, what about that burden, not just on each campaign but on the court itself to unify the nation and have a strong decision that doesn't look like a split down the middle like the one we heard today?

VAN SUSTEREN: You know, Daryn, I hear lawyers talk about that all the time, and I hear people who have clerked in the Supreme Court or who are far closer to that pulse than I am.

What we're taught in law school, though, is that politics have no business in the courtroom. That may be perhaps a little bit naive.

What the justices are supposed to, they're supposed to enforce the Constitution and enforce the law. And in so doing, hopefully politics say very far away from it.

And I'm very mindful of the fact that seven of these justices who are on the Supreme Court are Republican, and some people may be critical and say, ah-hah, then they're going to vote Republican. But the odd thing about this, you really can't predict for certainty. Look at Justice Souter, who sided against the Bush side and for the Gore side, and he was appointed by Governor Bush's father.

So to the extent that you can say how anyone's going to rule whether politics play a role, I can't tell you that. I can only hope that they apply the Constitution and the law and that they use good judgment based on their experience as justices.

KAGAN: All the more reason to stay tuned to see how this thing plays out. Greta Van Susteren in Washington, thank you.

VAN SUSTEREN: Thank you, Daryn.

KAGAN: Brian.

NELSON: Well, with the voting -- I'm sorry, the ballot counting in Florida now stopped, the ballots once again have been packed away. Both campaigns claim gains for their candidates in the partial hand recounts, but those claims mean nothing right now with the Supreme Court-ordered stay.

CNN's national correspondent Gary Tuchman has a background of this from Tallahassee -- Gary.

GARY TUCHMAN, CNN CORRESPONDENT: Well, Brian, when Al Gore decided to contest the presidential election results, he wanted several things, but perhaps nothing more than for a manual count of Dade County's disputed 9,000 votes. Well today it happened, and then suddenly it stopped happening.


(voice-over): A sign outside a Leon County library says "closed today," because inside the library history was being made. Nine thousand disputed votes from Miami-Dade County trucked into the state capitol last week were being counted as the Gore campaign had wanted.

Nine county and civil court judges were acting as counters and separating ballots in piles for Bush, Gore, no vote, or disputed, but then this announcement...

TERRE CASS, LEON COUNTY COURT ADMINISTRATOR: We have stayed the recount at this point until we hear from the U.S. Supreme Court based on that U.S. Supreme Court decision that was handed down today.

TUCHMAN: Nearly half the ballots had been counted in a process that was looking like it would end early in the evening.

DAVE LANG, LEON COUNTY COURT CLERK: I'd say it was as smooth as glass, and there were no hitches, no problems, nothing of that nature.

TUCHMAN: After the announcement the ballots were packed up in the boxes they came in and put in a police van for the ride back to Leon County Circuit Court where they had been in storage with more than 1,000,000 other ballots from Miami-Dade and Palm Beach counties.

The Miami-Dade election supervisor who was one of the three people who decided to stop the manual recount of this county's votes in midstream last month was asked about this count.

UNIDENTIFIED MALE: Well, it was a very good process, very good people up here, appreciate the judges helping out, except they headed south, so...

UNIDENTIFIED FEMALE: Exactly. What do you think of that?

UNIDENTIFIED MALE: Don't have an opinion.

TUCHMAN: A Republican observer said George W. Bush had netted 42 votes during the partial count. A member of Al Gore's team said that number is not necessarily accurate because of a large number of disputed votes they're convinced would go for the vice president.


TUCHMAN: We learned about the U.S. Supreme Court decision before the counters did, and it was interesting watching them work at that time. When the decision came down, they were in the midst of counting about 1,000 ballots an hour.

About five minutes later, rumors started swirling around the room and the workers started slowing down. And then another five minutes later, the announcement came and the work stopped.

The ballots are now in the vault and ready to be brought back here to this library in Tallahassee if necessary.

Brian, back to you.

NELSON: Gary, it's been an up-and-down day. We understand. Thanks very much. CNN's Gary Tuchman in Tallahassee.

And the high court's decision is getting some mixed reviews from the Bush and the Gore camps.

KAGAN: We will be checking in with each of those camps just ahead after this break.


KAGAN: It is possible that the word roller coaster has been overused a bit today, and yet it does describe the mood of what has been happening with each of the camps, the Gore and the Bush camp. We're going to go ahead and check in on George W. Bush camp first and our Candy Crowley, once again, in Austin, Texas, covering that story.

Candy, good evening.


In the Tallahassee offices that Bush lawyers and staffers have called their home for more than a month, they were afraid to believe the news when they saw on television that the Supreme Court had both stopped the hand count and given the Bush team their day in court. But once they got that confirmed through one of their own, according to one who was in the office you could feel the walls shake. In public, they were a bit more restrained.


JAMES BAKER, BUSH CAMPAIGN OBSERVER: It changes from day to day. It's one day you're up, one day you're down. CROWLEY (voice-over): This one was up, courtesy the U.S. Supreme Court, which temporarily stopped ongoing recounts and gave the Bush team another day in court.

BAKER: 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.

CROWLEY: Shell shocked after a month of rapid-fire changes, the Bush campaign, which Friday pronounced itself out of reactions Saturday had all of them.

We are, said an aide, in a state of "subdued exuberance." They're also in a state of suspended animation, preparing and waiting for oral arguments Monday while tuning up in the public arena.

BAKER: We're extremely gratified that the United States Supreme Court has once again recognized, or seen, what we think are some very serious deficiencies in the way the process has been conducted down here. It's juts simply not fair to change the rules after the game has been played.

CROWLEY: Bush and company will also argue that those hand recounts are so standardless and subjective that they violate the equal protection rights of voters whose ballots are not so similarly scrutinized.

GOV. MARC RACICOT (R), MONTANA: Now wee have 180, potentially, different people, different judges, applying different standards, being different arbiters under different conditions. And all, of course, ultimately resulting in disparity, inequality and the dilution of votes not only in the state of Florida but all across this country.

CROWLEY: Shortly after the recounts were shut down, the Gore team let it be known that partial results showed the vice president had gained. Bush supporters blasted the claim as a violation of a judge's order against releasing partial figures and wrong to boot.

GOV. GEORGE PATAKI (R), NEW YORK: I can tell you that I was very pleased with the results that I saw when I was sitting in while the counting was being done. But I'm not going to tell you what those numbers were. Suffice it to say they're dramatically different from the Gore team's numbers.


CROWLEY: Some on the Bush team were described as seething when they saw the Gore camp release those partial figures out in public. And at all levels of the Bush team, they believe that the Gore team released those figures to move both the legal and political arenas -- Daryn.

KAGAN: Daryn, what about that Bush legal team? Will the same lawyers be arguing before the U.S. Supreme Court as did the first time around? CROWLEY: I think you've got me on a question that I didn't ask them today, and I felt like I asked them all of them. I think you will see Ted Olson. He has been their main man up in Washington doing Supreme Court preparations, so I suspect it's a good bet he will be there again on Monday.

KAGAN: Well it is newsworthy when one can trump Candy Crowley. It is not an easy thing to do. I think it's my first time ever. So you made my day a little bit, Candy, thank you very much.


KAGAN: Brian.

NELSON: Advisers say that Vice President Al Gore held a champagne celebration following his victory Friday in the Florida Supreme Court which of course triggered the ballot counting under way this weekend that has now been stopped. And now that it is stopped, what is the mood tonight?

CNN';s Jonathan Karl joins us from Washington with the latest -- Jonathan.

JONATHAN KARL, CNN CORRESPONDENT: Well after yesterday's victory before the Florida Supreme Court, the Gore campaign knew they didn't have much time to celebrate. And now in the face of this stunning setback from the U.S. Supreme Court, they know they don't have any time to drown their sorrows. When asked what's next, one of Gore's top lawyers said, what's next? We've got to stay up all night writing our brief before the U.S. Supreme Court.


(voice-over): A dream turned into a nightmare for the vice president, as the counting of ballots started, only to be stopped a few hours later by a deeply divided Supreme Court.

DAVID BOIES, GORE CAMPAIGN ATTORNEY: I am sure the vice president of the United States is disappointed that the vote count has been interrupted., we have said from the beginning that our goal was to have all of the votes that have been cast counted.

KARL: Minutes before the Supreme Court halted the counting, Gore campaign chairman Bill Daley and Democratic House Leader Dick Gephardt were just a few hundred yards away on Capitol Hill, praising the Florida high court for ordering the recount.

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

KARL: But minutes later the nation's highest court ruled against the vice president, and soon it was Democrats who were attacking the courts.

Sen. Patrick Leahy accused the high court of compromising its, quote, "credibility and moral posture."

And down in Florida, the Gore team made it clear why they thought Republicans wanted to stop the counting.

RON KLAIN, GORE CAMPAIGN SPOKESMAN: 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.

KARL: Klain claimed that in just a few hours of counting Gore had picked up a net vote of 58 votes in 13 counties. That announcement prompted Republicans to accuse him of violating a court order against the release of partial recount information. But Judge Terry Lewis, while reminding all parties not to release such information, declined to hold Klain in contempt.


KARL: The counting on hold, Vice President Gore turns his attention to what his lawyers acknowledge is his last hope. As his lead lawyer said, quote, "The Supreme Court is the highest court in the land. We must accept its decision whether we agree with it or we disagree with it" -- Brian.

NELSON: Jonathan, Al Gore has maintained a sort of mood of optimism despite all the setbacks he's suffered in this long, tortuous process. What's his mood now, do you know?

KARL: Well, the Gore team is stunned. The vice president is described as taking this in stride. I know that Ron Klain, one of his top legal advisers, was on the phone with the vice president today when he heard the news. The vice president was getting briefed by Ron on a victory that the Gore campaign, a very short-lived victory, the Gore campaign enjoyed today when the 11th Circuit Court refused to grant the Bush request for a stay on the vote counting.

Klain was relaying this information to the vice president when Klain himself got the news about the Supreme Court and said, Mr. Vice President, I'm sorry. We have some bad news to report. And Ron Klain said, look, we've had a lot of ups and downs, but the vice president took it on stride.

NELSON: Maybe everybody should be on heart medication after this.

Thanks, Jonathan Karl in Washington -- Daryn.

KAGAN: And it was indeed a every newsworthy Saturday afternoon. The high court's decision not the only stunning political news of the day.

NELSON: No, Israel's prime minister is making some headlines of his own.

KAGAN: Ehud Barak says he is bowing out. We'll find out why when we come back. (COMMERCIAL BREAK)

NELSON: Well we turn from political uncertainty in the United States to some new political uncertainty in the Middle East.

KAGAN: As the political picture in Israel became cloudy Saturday afternoon, that's when Israeli Prime Minister Ehud Barak announced he will resign tomorrow.

NELSON: Mr. Barak has faced a lot of heat at home because of the ongoing fighting between Israelis and Palestinians, but his resignation does not mean that he's disappearing from the political landscape.

CNN's Nic Roberston explains why.


NIC ROBERTSON, CNN CORRESPONDENT (voice-over): The shocking move came in a nationally televised broadcast. Prime Minister Ehud Barak delivering the announcement of his resignation at the end of the almost 20-minute address.

EHUD BARAK, PRIME MINISTER OF ISRAEL (through translator): Tomorrow morning, I will officially announce to the president my decision to resign and to stand in a special election at the head of the Labor Party for the premiership in Israel. Right after that, I'll present my letter of resignation to the government in accordance with the law.


ROBERSTON: His decision clears the way for prime ministerial elections within 60 days. By resigning now, Barak preempts Knesset moves towards both general and prime ministerial elections in May and may prevent what polling shows to be his strongest opposition challenger: former Prime Minister Benjamin Netanyahu from running against him.

Mr. Netanyahu is no longer in the Knesset, and, therefore, not eligible to run for prime minister. Senior members of his Likud Party are confident they can meet the challenge.

EHUD OLMERT, LIKUD PARTY MEMBER: We all know that the reason why he submitted his resignation is because he's afraid to face Benjamin Netanyahu. He knows that Benjamin Netanyahu has an absolute majority in all the opinion polls in Israel, and he thinks that he can, by some political maneuvering, avoid the confrontation with Netanyahu.

ROBERSTON: Resignation may strengthen Mr. Barak's chances of being chosen by his Labor Party as its candidate for prime minister. Failure to end the current conflict combined with a breakdown in peace talks with the Palestinians had undermined the prime minister's leadership and popularity.

In his televised address, Mr. Barak spoke of the need for peace, while meeting the Palestinian challenge on the battlefield, and in questioning afterwards with journalists said he was not ruling out a peace deal before the elections.

BARAK: I cannot predict the chances of having an agreement, but if the opportunity will still be there, we will not ignore it.

ROBERSTON: Mr. Barak was challenged by senior Palestinian official Ahmed Qurei to make a bold move towards peace.

AHMED QUREI, SPEAKER, PALESTINIAN COUNCIL: And we hope that the new prime minister, whoever it is, whether Mr. Barak or anybody else, will be able to explain to the Israeli people in a very transparent way about the needs of peace, about the prerequisites of peace, about the rights of the Palestinian people that should be respected and implemented.

ROBERSTON: Even within the context of the ongoing confrontations on the battleground, the notion of a negotiated peace deal with Palestinians has the backing of 60 percent of Israelis.

(on camera): If Mr. Barak follows through on his resignation, the challenge will be on his opponents in the Knesset to pass laws to enable an early general election, or Mr. Netanyahu's entry into the premiership before the elections in 60 days. It is a major political gamble.

Nic Robertson, CNN, Jerusalem.


NELSON: And we will have a recap on today's dramatic developments in Florida in just a moment.


KAGAN: And before we wrap it up tonight we want to recap the day's stunning developments in the Florida election controversy.

The U.S. Supreme Court has put the latest round of court-ordered recounts on hold. It was responding to a request from the Bush camp. The high court ordered the hand count stopped for now and scheduled a hearing on the issue for Monday morning. The decision came just moments after the Florida Supreme Court rejected a similar appeal from the Bush camp. Florida election workers were already hard at work counting undervotes when that ruling came down.

Once again, written briefs due tomorrow before the Supreme Court and oral arguments 11:00 a.m. Eastern on Monday morning.

NELSON: Monday morning.

That's our special report on the Florida vote. Be sure to stay with CNN for the very latest developments on what happens next.

KAGAN: And you can also go to our Web site, simple to remember, has updates for you as well. That's going to do it for us. Been a long night.

NELSON: It has.

KAGAN: From CNN Center in Atlanta, I'm Daryn Kagan.

NELSON: And I'm Brian Nelson.



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