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The Florida Vote: Nation Awaits Decision From U.S. Supreme Court

Aired December 12, 2000 - 8:30 p.m. ET


ANNOUNCER: This is a CNN Election 2000 special report.



CROWD: We want a fair count.


ANNOUNCER: Waiting, and wondering what's taking the Supreme Court so long. Tonight, the legal challenges from both campaigns on the agony of waiting.


GOV. GEORGE W. BUSH (R-TX), PRESIDENTIAL CANDIDATE: I'm keeping my emotions in check.


ANNOUNCER: And the twists and turns of this election tale. Just like the song says, "What a long, strange trip it's been."

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: Tonight, along with the presidential candidates, their lawyers, and the rest of the nation, we're waiting. A U.S. Supreme Court decision in the case of George W. Bush versus Albert Gore hasn't come down yet, but there are some developments elsewhere.

Tonight's legal challenges are in Tallahassee. Florida's House of Representatives voted 79 to 41 to appoint a slate of electors for George W. Bush. Florida's state Senate is expected to follow suit tomorrow.

Also in Tallahassee, Florida's Supreme Court upheld the lower court decisions in the Seminole and Martin County absentee ballot application cases, turning down appeals from Democrats who had wanted thousands of absentee votes thrown out. And here in Washington, there's no indication as to when or even if, the U.S. Supreme Court will say something about the presidential election. As a lawyer, I can assure you the hardest part of a case is waiting for a decision. I've done it a million times. It never gets any easier, and it isn't any fun.

And waiting along with the rest of us are CNN senior Washington correspondent Charles Bierbauer at the Supreme Court, and CNN's Martin Savidge at Florida's Supreme Court down in Tallahassee.

Charles, first to you, since you've been sitting out in the cold. Marty gets the benefit of at least the warmer weather. What have you been doing all day?

CHARLES BIERBAUER, CNN CORRESPONDENT: I've been going in and out of the cold, getting fresh air and going in to get no fresh news on the inside. We're just waiting. A group of people inside the Supreme Court press office, the press office staff is still there, if that's any sign. They went home earlier last night, but we just don't have an answer yet. We have to wait this out -- Greta.

VAN SUSTEREN: Charles, it's now about 8:35. Have you had any sighting of any justices in the last couple hours?

BIERBAUER: I have not seen any of the justices myself. There have been some reports that some of the justices might have been seen leaving the building, but I cannot verify that. We just don't see a whole lot of them. Our office is down on the lower floor. Their offices are on the upper floor and the two do not mingle a who lot. It's sort of like "Upstairs, Downstairs," if you remember the show.

VAN SUSTEREN: Marty. let's go to Tallahassee. You at least had news from the Florida Supreme Court down there, some action. What happened today down there?

MARTIN SAVIDGE, CNN CORRESPONDENT: Well, what the Florida Supreme Court -- what is basically did in two cases, that's Martin and Seminole Counties, they essentially upheld the lower court's ruling in both of those cases. The Florida Supreme Court essentially saying that they did not find any case of intentional wrongdoing and as result of that throughout the appeals by the Democrats in both cases and essentially denying that some 25,000 ballots would be tossed out. These are absentee ballots that the Democrats said had been tainted as a result of the Republicans having access to absentee ballot application forms. So, in a sense a victory for George W. Bush there by inaction on the state Supreme Court.

VAN SUSTEREN: Marty, when I was down in Tallahassee, there were an awful lot of demonstrators. Have things thinned out a little bit since the news seems to have at least shifted a little bit up to Washington?

SAVIDGE: Certainly, there's not the sort of crowds that we have been seeing. There was a demonstration that took place today. There were about 50 Republicans that demonstrated in the courtyard of the State House. They were mainly there to show their support for legislature and what is going on in the House and the Senate regarding the selection of the slate of electors. But that's about as much as we have seen. Occasionally, a few people in front of the Florida state Supreme Court, but nothing like you see up north.

VAN SUSTEREN: You know, Charles, I always call for cameras in courtroom. We don't get them in the Supreme Court. We don't get them in the press room, so tell me, what's in this press room where you hang out at least part of the day? Who's there? How big is it?

BIERBAUER: How big is it? Well, it's probably about 20 feet by about 50 feet. It's got a lot of desks and cubicles and computers. What it does not usually have is as many bodies as have been in there during this day and what is also does not unusually have is a strange melange of takeout food smells: pizza, Thai food, popcorn. It's a pretty gruesome part of it this evening, Greta, but everybody is hanging on. Everyone is waiting. This is an extraordinary moment we're waiting for.

VAN SUSTEREN: Charles, everyone refers to the Supreme Court as the highest court in the land, but there's a higher court, is there not, in that building behind you?

BIERBAUER: You're talking about the basketball court at the top of the Supreme Court, the so-called highest court in the land. There is. I've never played there. I'd like to. I still play a little basketball, but yes, that's what you're referring to, sure.

VAN SUSTEREN: Marty, what's going on in the legislature down there in Tallahassee?

SAVIDGE: Well, it's pretty quiet tonight. Obviously, you saw the House took that vote of 49 to 71. It was pretty much along party lines. Followed 5 1/2 hours of sometimes very heated debate. Essentially, what the House has done is finish their work in this special legislature and they have approved and passed on now to the Senate the slate of 25 electors. This is a slate in favor of George W. Bush, the same slate of electors, actually, that had been certified by the state earlier, only they have been approved by a different route.

Tomorrow the whole process begins again, this time in the Senate side. However, they're starting later. They were scheduled to start at 10:00 a.m. They'll start at 1:00. The Democrats have already said they plan for about eight hours of debate just for the Democrats. They really can't filibuster, but in a way, this is their attempt to try to do that and delay things, hoping, of course, the Supreme Court will rule in their favor before this is a done deal in the Florida legislature.

VAN SUSTEREN: Charles, we've all gotten to know Craig Waters of the Florida Supreme Court. He's given us so much information about the Florida Supreme Court, including when we're going to get decisions. What about the U.S. Supreme Court? Is anyone telling us anything? Will there be a notice to the media?

BIERBAUER: Well, those of us who are inside are waiting for that notification. It may be very slim. It may be a moment's notice and not a whole lot more. But the court's press staff is -- its office is manned. They, too, are sitting there waiting for word that the opinion is ready. That's pretty much what it has come down to, that last piece of action by this court on this case that will then send the news reverberating and the action careening back down to Florida in some form or another.

VAN SUSTEREN: Let's careen back down to Marty. Marty, you want to get in on this.

SAVIDGE: Well, yes, there is something I heard. Apparently, shortly before the announcement came out from the Florida Supreme Court, about five minutes before 4:00, the clerks of courts down here at the order of the justices made a so-called courtesy call to the U.S. Supreme Court to essentially say one, they were going make their ruling and make their ruling at 4:00 so that in case the U.S. Supreme Court was going rule, they didn't want to have sort of competing rulings coming down.

But also just to let them though as to what the verdict was in this particular two cases. Now, we've also been told that it may be very probable that the U.S. Supreme Court will give the Florida Supreme Court a half-hour heads up notice when in fact the U.S. Supreme Court is planning to rule. Of course, that doesn't mean they're going to pass it along to the general public.

VAN SUSTEREN: And of course, it's doubtful that we will get it, but thanks to my good friends and colleagues CNN's Martin Savidge in Tallahassee and our senior Washington correspondent Charles Bierbauer at the United States Supreme Court.

Next, the political and legal waiting games. Please stay with us.


VAN SUSTEREN: Also keeping vigil here in Washington as we wait for the U.S. Supreme Court to weigh-in on the presidential election, our senior political analyst, Bill Schneider, and CNN election law analyst Kenneth Gross, an attorney who spent nearly a decade with the Federal Elections Commission and seemingly almost a decade with us covering what was supposed to be one election night and has gone a little bit further.

Bill, first to you, does it makes a difference to the American people or the voters of Florida if the Florida legislature does complete the act and step in and vote and choose those electors?

WILLIAM SCHNEIDER, CNN SENIOR POLITICAL ANALYST: I think it has a little bit of an impact. I mean, they've heard that Bush has won Florida about three or four times, so -- on election night, it was mistakenly called for Bush. They saw him certified once and again in the ceremonious occasion by the secretary of state. And now, the legislature has declared him a winner.

They haven't heard any information yet that Gore is ahead or has been ahead in Florida.

VAN SUSTEREN: Ken, if the legislature completes -- we've had the House now vote for this slate of electors for Bush -- if the state Senate does that down in Florida, does the activity in the United States Supreme Court almost become irrelevant?

KENNETH GROSS, CNN ELECTION LAW ANALYST: No, I don't think so. This is just a state legislature picking their slate of electors. The state law still says that the popular vote also shall be taken into account, and if the U.S. Supreme Court sends this back down to Florida, and in fact, they start counting again, and Gore -- Gore actually wins the popular vote, even at this late stage, I think that would have some impact on the process.

It wouldn't -- it wouldn't solve it, it wouldn't clarify it. We'd probably end up with two slates of electors, in fact.

VAN SUSTEREN: Bill, 5-to-4 decision or 6-3, does it make a difference?

SCHNEIDER: Yes, it makes a difference. I think the closer the decision, the less impact it's likely to have as final and authoritative. Everyone will know if it's a 5-to-4 decision. It will look, my god, it was a margin of just one vote, the Supreme Court is just as divided as the rest of the country and the Congress and everybody else...

VAN SUSTEREN: But doesn't that beg -- if the Supreme Court's divided, the American people are divided -- even if the Supreme Court went 9-0, the American people still remain divided. So what difference does it make?

SCHNEIDER: They're looking for an authoritative voice that can bring closure to this occasion, and they'd like to hear a voice of the Constitution. The Supreme Court is the voice of the Constitution.

And if the court -- you know, the president is in no position to do that. He's a partisan and the Republicans will not trust him on this. The court is the voice of the Constitution. If the court is divided, it's not, I think, encouraging for the country or good for the court.

VAN SUSTEREN: Ken, what do you think it's like for the lawyers on both sides as they sit here waiting since yesterday for the Supreme Court to act?

GROSS: Oh, it's excruciating, except this is one situation where the American people actually share it. Usually, the lawyers kind of suffer in private, but here they're suffering along with everybody else as we're all anxiously awaiting the opinion. But it's a very hard -- it's a hard stretch.

VAN SUSTEREN: All right, Ken, before the show I gave you a little research project. It was a federal code, 28 USC 455. Disqualification of justice, judge or magistrate, and reads in part that a "judge or justice should disqualify when he or his spouse or person within the third degree of relationship to either of them, or the spouse is such a person is known by the judge to have an interest that can be substantially affected by the outcome of the procedure."

Does that mean that Justice Scalia, whose son is in a law firm that represents Governor Bush, should disqualify himself, even though that son gets no money from this case?

GROSS: Well, I think that there would have to be some substantial benefit accruing to a personal family member, probably in a pecuniary way.

VAN SUSTEREN: Let me give you an example.


VAN SUSTEREN: You work in a big firm. You've got some lawyers in your firm, partners who represent some big clients. Don't you get benefit or cache out of the fact that some of your partners have been in big cases?

GROSS: Well, perhaps if I had a spouse on the bench and we were -- and my partner was representing somebody, and I actually got some money benefit from that case from my spouse ruling in our firm's favor, that would be different. I don't know that we have those facts in this case. And it's usually a very personal decision whether there's a recusal. There's a lot of play in these words "substantial" and what exactly the statute means.

VAN SUSTEREN: Bill, do you think that the American people trust this bench, that they have -- they think it's good, credible, fair, and impartial?

SCHNEIDER: Well, they certainly don't think it's above politics, but they've never felt that way about the Supreme Court. When they were asked, when the Supreme Court came in to stop the Florida recount, was that mostly because of the law or were they driven by politics, people say politics. They don't think the court above about politics, but they do look to the court as a final authority simply out of need.

The court is the only institution in the position to bring closure to this debate, to this controversy, and that's what people want: closure. So they do trust the court to do its duty.

VAN SUSTEREN: And I second that -- I'd like some closure as well, but we need to go.

Many thanks to CNN senior political analyst Bill Schneider and CNN election law analyst Ken Gross.

Next, five weeks for the history books.


VAN SUSTEREN: Today marks five weeks since the presidential election. Who would have thought that by this point we'd still be waiting to find out who won? Then again, who would have thought we'd see a lot of things we've been witnessing in the past five weeks?

Tonight, a case study in surprises. Here's CNN's David Mattingly.


DAVID MATTINGLY, CNN CORRESPONDENT (voice-over): Down to the wire...


PROTESTERS: Bush! Bush! Bush!


MATTINGLY: ... we thought it would be close.



PROTESTERS: Fair vote!

UNIDENTIFIED FEMALE: When do we want it now?



MATTINGLY: Bush and gore neck-and-neck, but the uncommonly close race didn't begin to touch the unusual twists to follow.


PETER JENNINGS, ABC ANCHOR: There has been a change, or we're going to make a change.


MATTINGLY: It started election night. Who would have thought the networks would blow the call?


BERNARD SHAW, CNN ANCHOR: CNN right now is moving our earlier declaration of Florida back to the too-close-to-call column.


MATTINGLY: Who would've thought Vice President Gore would take back his telephone concession to Governor Bush?


WILLIAM DALEY, GORE CAMPAIGN CHAIRMAN: Just an hour or so ago, the TV networks called this race for Governor Bush. (BOOING)

It now appears -- it now appears that their call was premature




DON EVANS, BUSH CAMPAIGN CHAIRMAN: We hope and believe we have elected the next president of the United States.


They're still counting. They're still counting. And I'm confident when it's all said and done, we will prevail.


MATTINGLY: Turns out it was just one night in weeks' worth of startling, confusing...


JUDGE N. SANDERS SAULS, LEON COUNTY CIRCUIT COURT: The plaintiffs have failed to carry the requisite burden of proof...


MATTINGLY: ... even aggravating turns.

PAT BUCHANAN, REFORM PARTY PRESIDENTIAL CANDIDATE: Now, I do believe that some of my votes clearly were intended to be votes for Al Gore.

MATTINGLY: Who would have thought Pat Buchanan would do so well in Palm Beach County? Was it a case of butterflies?

And when the recounting began, who would have thought a little word like "chad" could take such a prominent place in national discussion?

JAMES BAKER, OBSERVER FOR BUSH CAMPAIGN: So they now argue that a punch-card vote should count even if there appears to be only an indentation. This, of course, is the famous dimpled chad

MATTINGLY: And who would have thought the chad could be pregnant?

UNIDENTIFIED MALE: Happy holidays.

MATTINGLY: Who would have thought the one state in question would have Bush's brother Jeb as governor? And who would have thought Jeb, not W., would be in the White House first? Yesterday, in fact, for the signing of the Everglades protection legislation. Who would have thought the nation's highest courts could move so quickly? State supreme court rulings in 24 hours, dramatic reversals, appeals, sometimes in minutes, not days or weeks like usual.


JUSTICE DAVID H. SOUTER, U.S. SUPREME COURT: That would be feasible, wouldn't it?

THEODORE OLSON, BUSH CAMPAIGN ATTORNEY: I think it would be feasible. Now, counsel for the secretary of state will be up in a moment.


MATTINGLY: And who would have thought we'd actually get to hear the U.S. Supreme Court in action?


OLSON: She would have the power to respond.


DAVID BOIES, GORE CAMPAIGN ATTORNEY: I feel tired. It was a very good argument.

MATTINGLY: But then who would have thought the names like Boies, Harris, and Richard would steal headlines from developments in the Middle East, space missions, and celebrity scandals?

UNIDENTIFIED MALE: The officers got there, they were able to conduct a search of the room. The room was occupied only by Mr. Robert Downey Jr.

MATTINGLY: And who would have thought cable television news itself would claim a piece of center stage? Rosie O'Donnell on "THE TODAY SHOW," talking about one particular cable news personality.


ROSIE O'DONNELL, TALK SHOW HOST: Go right to CNN. I feel very close personally with Greta Van Susteren now and...



MATTINGLY: As do we all here in Atlanta right now.

Greta, one more final and one big who would have thought it question: who would have thought now five weeks from the time polls were closing that we still wouldn't know who the president is?

VAN SUSTEREN: Thanks, David. Especially a thanks, of course, to Rosie, who I have never met, but I'm very flattered. Let me ask you, David, 20 years from now, when you look back, what's going to stick out in your mind about this election?

MATTINGLY: Well, probably election night, in spite of all that's happened, that was still a very powerful moment, as it was for most people. But, you know, strangely enough, I cannot get that image of that rental van out of my head going to court, that's probably the one image that won't get into the history books, though.

VAN SUSTEREN: Is there something about this, though, that's more bizarre, that, you know -- that you haven't reported that you think is -- you know, where the truth is stranger than fiction, that hasn't made the air?

MATTINGLY: You couldn't have written a plot with more twists and turns, I have to think that that's what that would be. There is just no predicting this and there never has been, and tonight we're still trying to predict what will the court do and, of course, we can't.

VAN SUSTEREN: Have you enjoyed reporting on this story?

MATTINGLY: Absolutely. For a time, I was in Tallahassee and it was quite an experience talking with people in both campaigns, seeing how they shifted from campaign mode to recount mode. It's been really quite an interesting time.

VAN SUSTEREN: Thanks, David.

This isn't only the most unusual presidential election of our lifetimes, it's one of the strangest in all U.S. history.

For some more perspective, I'm now joined from New York by historian Carol Berkin.

Carol, thank you for joining me.

CAROL BERKIN, HISTORIAN: Thank you. I'm a big fan of yours like Rosie.

VAN SUSTEREN: You both flatter me immensely, I can't tell you.

But, Carol, tell me, is there anything remotely similar to this case in presidential history?

BERKIN: Well, the only thing that comes anywhere close is the Tilden-Hayes election, but really, given the media that we have today, given the fact that people know what's happening instantly, or perhaps sooner, the Tilden-Hayes case really unraveled much more slowly, most people didn't know about it.

But today, you know, all over the country, people are following this as if it were -- I don't know -- Super Bowl Sunday, or the Academy Awards, and so I think that there has never been anything like this in terms of popular awareness and attention.

VAN SUSTEREN: Give me a history lesson, tell me about the Tilden- Hayes presidential election.

BERKIN: Well, it was really quite different from this one, in part because there was -- there were major issues at stake for both parties and so, as we teach our history classes, a deal could be made that was really very important so that the Democrats and the Republicans both got something out of it. Tilden won the popular vote, it went to the Electoral College, there were -- they couldn't resolve it, it was thrown to the Congress. It -- Congress couldn't resolve it, it was sent to a special commission and the special commission, like almost everything in American history, had political implications and the Republicans won.

But it is legend, or we think really it's true that a deal was made between Tilden and Hayes, and Tilden said, I will concede, I will give you this election, I won't challenge it if you will agree to remove federal troops from the South and end Reconstruction, and thereby, in a sense, liberate the South for the Democratic Party, and so the deals that were made, or the agreements, the reason to concede really had to do with large important historical developments in America. I don't see that happening in this election and that's what really makes them, I think, quite different.

VAN SUSTEREN: Carol, you focus on history and facts, but do you think you could have ever written this one?

BERKIN: Absolutely not. I -- historians of the future will just be wringing their hands with delight, there will be thousands of books written. I'm already ready to write the book called "Electoral College History: Things You Never Knew." I think that there will be enormous, enormous debate over the meaning of this. Constitutional historians, political historians, social historians who will write about the media. This is going to be an amazing story for two generations down the line, and no one in my profession would have ever been able to predict that this was going to happen.

VAN SUSTEREN: Carol Berkin, thank you for joining us tonight.

It seems like we've learned more about choosing a president in the five weeks since Election Day than in the five months before it. All of us, not just the lawyers, are discussing electoral votes, overvotes, undervotes, chad, the U.S. Supreme Court, Florida's supreme and circuit courts, and even Florida geography.

Immersed in this historic matter, I have had little time for anything else, but a friend of mine brought it to my attention that last night on "Monday Night Football," Dennis Miller compared me to the 1950's cartoon character "Clutch Cargo." For those who don't remember it, the show's animators used the unusual technique of superimposing real, moving human lips on an unmoving drawing of the silver-haired, globe-trotting adventurer. Now you know who "Clutch Cargo" is. But I have a question: Who is Dennis Miller?

That's all for tonight. I'm Greta Van Susteren in Washington.



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