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Burden of Proof

How Can George W. Bush Win All the California Delegates if John McCain Wins the Popular Vote?

Aired March 7, 2000 - 12:30 p.m. ET

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

(BEGIN VIDEO CLIP)

MIKE FAULKNER: It probably disgraces the word marriage. I believe it's between a man and a woman, and that's only what is right. And beyond that, it's so wrong that it's going to tarnish it.

JACK WEINER: If they love each other, why shouldn't they get married?

ROSE WEINER: If they agree on all important views.

J. WEINER: Sure.

(END VIDEO CLIP)

ROGER COSSACK, CO-HOST: Today on a special Super Tuesday edition of BURDEN OF PROOF, California voters cast their ballots on same-sex marriages: the legal debate surrounding gay unions. Plus, if Senator John McCain wins the popular vote in California, how can George W. Bush win all the delegates? That's next on BURDEN OF PROOF.

ANNOUNCER: This is BURDEN OF PROOF, with Roger Cossack and Greta Van Susteren.

COSSACK: Hello and welcome to BURDEN OF PROOF.

Sixteen states representing 39 percent of the nation's population are polling voters in today's Super Tuesday contests. Except for the November 7 election, more people will vote today than on any other day in this year's race.

GRETA VAN SUSTEREN, CO-HOST: Senator John McCain is in California, which has the most delegates at stake. But his rival has already predicted victory in the winner-take-all state. Ironically, McCain could wind up with the majority of the popular vote, but Bush could take all the delegates.

COSSACK: And joining us today in Austin, Texas, Ben Ginsberg, legal counsel to the Bush campaign. And in Los Angeles, McCain legal counsel Trevor Potter.

VAN SUSTEREN: And here in Washington, Monty Johnston (ph), constitutional law scholar Bruce Fein, and Ray Harris (ph). And in our back row, Madeleine Coleman (ph) and Sarah Russell (ph).

Trevor, first to you: Is the California process fair?

TREVOR POTTER, LEGAL COUNSEL, JOHN MCCAIN CAMPAIGN: Well, the voters in California said they wanted to have a blanket primary so that people could participate regardless of party. After that, the Republican and Democratic Parties out here went to the legislature and got the law changed so that you only have the 35 percent of the California electorate who are Republicans deciding who the delegates are going to be from California. Obviously, Senator McCain would like to win both. He thinks it's a real problem for the party and a mistake if they end up excluding Independents in a state where you need Independents to win.

VAN SUSTEREN: But what about, Trevor, the problem of having Democrats trying to go in and vote for Senator McCain in an effort to deny a delegate to Governor Bush? I mean, you've always had the problem of someone sort of crossing over or Independents trying do that. Shouldn't Republicans pick Republican delegates?

POTTER: Well, first off, you've got to look at history in California where the party has done badly in the last several elections and desperately needs to reach out to the middle. It has a fairly small percentage of voters out here who are actually registered Republicans, so we need to be reaching out into the middle of the electorate.

Secondly, remember that this is a year in which, in South Carolina which Bush won, and Michigan which McCain won, people of any party could go in and vote in the Republican primary. South Carolina doesn't even register by party, so you'd have people voting for whomever they want. We think, basically, that's a good thing because if you go vote for a candidate, whether Bush or McCain, in the primary, that means you're committed enough, you're going to go ahead and vote for them in the general election. We also think it brings Independents into the party.

So it really is, in some sense, foolhardy for the Republican Party to say, we don't want Independents in California voting in our primary when we desperately need them to win the general election. And of course you have as situation where Senator McCain is far outperforming Governor Bush in polls against Al Gore. So that's another reason we think it makes sense to pick the stronger candidate in a statewide vote.

COSSACK: Well, Ben Ginsberg, as a Bush representative, do you think it's fair that perhaps Bush could -- or McCain could win the popular vote but Bush could get the delegates?

BEN GINSBERG, LEGAL COUNSEL, GEORGE W. BUSH CAMPAIGN: Well, it's still a little bit hypothetical until those people called the voters get to issue their verdict, Roger. But the truth of the matter is that both candidates, I think, will be inclusive towards bringing independents into the party. What you have here is a situation where each state in the country is allowed to formulate its own rules for how its delegates go to the convention. And that's the basic system that you have.

California has a unique primary in that all the candidates appear on the ballot. The 1996 Republican convention came up with a rule in which Trevor and other of his cohorts in the McCain were actually in charge of putting through those rules processes that imposed a rule that said the results from a vote like California or Washington State couldn't alone determine the delegates. The rest is what the legislators in California had to do to make the process so that people from California could be represented at all at the Republican convention.

COSSACK: All right, Bruce, we asked about fairness. Let's now turn to the constitutional scholar. Is it legal?

VAN SUSTEREN: Or is it fair?

BRUCE FEIN, CONSTITUTIONAL LAW SCHOLAR: It certainly would be. It -- I think it's both, you know, falls within the realm of our understanding of fairness in the electoral system. Remember, we've had those in the presidential campaign and the general election win even though they lost the majority of the votes. John Quincy Adams was one, Benjamin Harrison was another. So it's not anomalous to have a winner lose the popular majority.

COSSACK: Well, it's actually happened a couple of times, and that makes us all a little uncomfortable that somebody could, you know, lose the popular vote and yet end up being the president. We don't want that to happen.

FEIN: Well, but we do accept it if it's an outcome. The Kennedy-Nixon race was very close on that score. But with regard to the constitutionality, the Supreme Court, since a landmark case Cousins and Wagoda (ph) in 1972 has made it relatively clear that the party itself is entitled to designate the method of choosing delegates. States could only overrule it for very, very compelling reason. I wouldn't think California's situation would create such a situation. So if the party wants to go ahead with this method of selection, that's fine. Now of course there is a national convention...

VAN SUSTEREN: Let me just stop you for one second. Let me go to Trevor before we lose Trevor and Ben for the day. Trevor, in the event, and we don't know how the voters are going to vote today -- it's still very early in the day. But in the event that Senator McCain wins the popular vote, and by a resounding number, but Governor Bush gets all the delegates, are there any legal actions, hypothetically, available to you? Is there anything you can do?

POTTER: Well, California's a very peculiar place in terms of these laws. I think Senator McCain expects the California Republican Party to show some good sense here and want to win the general election. So they're going to have to take a look at this if there is indeed a split in the vote.

VAN SUSTEREN: But is there anything you can do? POTTER: Well, I'm answering that. The fact is that in California today, you are not really even electing delegates in the Republican primary, you're electing delegates to state and county conventions, and they are then going to go ahead and select the delegates to Philadelphia. So you have a process where the state party is going to have several months before the actual delegates are named and sent on to Philadelphia.

COSSACK: I'm going to interrupt you for one second, Trevor. I hate to interrupt you, but we have to go to Frank Sesno now -- Frank.

(INTERRUPTED BY COVERAGE OF A LIVE EVENT)

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