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Burden of Proof

The Florida Recount: Will State Officials Certify the Vote Today at 5:00 p.m.?

Aired November 14, 2000 - 12:33 p.m. ET

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

(BEGIN VIDEO CLIP)

JAMES BAKER, BUSH CAMPAIGN OBSERVER: If the Gore campaign accepts this proposal and drops its litigation, we will dismiss our lawsuit, and then, ladies and gentlemen, the courts will not decide this election.

WILLIAM DALEY, GORE CAMPAIGN CHAIRMAN: There truly was not a proposal, it was strictly in my opinion an inaccurate description of the laws of Florida. And again, the laws of Florida will be determined by the courts not representatives of these two campaigns.

(END VIDEO CLIP)

GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: Democrats and Republicans fight in court over a crucial deadline. Will state officials certify the vote today at 5:00 p.m.?

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

VAN SUSTEREN: Hello, and welcome to BURDEN OF PROOF. I'm in West Palm Beach, Florida, where today the West Palm Beach Canvassing Board has suspended its manual recount. But the major developments are occurring right now in Tallahassee.

ROGER COSSACK, CO-HOST: This morning, James Baker, observer for the Bush campaign, held a press conference in Tallahassee, and urged the Gore camp to accept today's 5:00 p.m. deadline, and put a deal on the table.

(BEGIN VIDEO CLIP)

BAKER: We are offering to accept the manual recount up to the time of the statutory deadline, if the Gore campaign will accept that deadline.

DALEY: This is not about, as the vice president has stated repeatedly, not about the individuals, but about upholding the system of democracy, which is based upon the right to vote and have our votes accurately counted. And that's what's going on in Florida, and we should allow that process to move forward.

(END VIDEO CLIP)

ROGER COSSACK, CO-HOST: Joining us today here in Washington, Jamie Davidson (ph), Republican Congressman John Shadegg, and Democratic lawyer Glenn Ivey, who has been a legal adviser for the Gore campaign.

And in the back, Jason Nelson (ph) and Juhie Veehay-Vargeeya (ph).

VAN SUSTEREN: And joining us from Tallahassee, outside the Leon County Courthouse is CNN's Bill Hemmer.

Bill, what is going on right now outside that courthouse and inside the courthouse.

BILL HEMMER, CNN ANCHOR: Greta, right now it has been relatively quiet, but we expect the bees to start swarming any minute right now because we are waiting for the judge's decision on the deadline that is supposed to hit later today, 5:00 local time, about four-and-a-half hours from now.

It is our understanding that either way the judge decides on this matter, it will be appealed by one side or the other, which means basically the state supreme court in Florida could have it in their hands in about a couple of hours of time from now.

Now the circuit court is off to my left. Off to my right is the state supreme court. So just a short distance here, pending the outcome of that decision, again, that we anticipate shortly.

James Baker also spoke about an hour and a half ago here in Tallahassee. The latest PR spin indicating from his opinion that the Gore campaign's focus right now is on selectivity and not fairness.

Another interesting point to bring up right now, if the deadline comes at 5:00, and if legal process right now does not stop the current deadline, the secretary of state's office indicates right now the official numbers they have inside is that George W. Bush leads Al Gore in the state by a total of 1,065 votes give or take a few. This number came out about 9:15 this morning.

Now the reason why that number is a lot greater than the 388 figure we've been giving through the Associated Press is because the Palm Beach County certification right now is not allowed. You know, there is a court case right now under way where you are, Greta, that doesn't allow Palm Beach to certify their votes at this time. That's the reason for the great margin.

But, again, if the legal process does not intercede here, the state figures that George Bush is leading the state by 1,000 votes. But again, things can change at any moment, and it is likely, within a few moments, it will change again. We will be here to track it.

Now back to you, Greta and Roger, with more now.

VAN SUSTEREN: Bill, you are talking about that Palm Beach vote, which has not yet been certified. And we have someone with us who is at the center of that controversy. We have a member of the Palm Beach Canvassing Board, Carol Roberts.

Carol, what is the status of the manual recount, it has now been suspended, why?

CAROL ROBERTS, PALM BEACH CO. COMMISSIONER: Well, the manual recount was suspended a vote of the canvassing board this morning, based on a secretary of state's opinion. And we decided that we would wait until we got an opinion from the attorney general. We did then get subsequently an opinion from the attorney general, and the vote went on to say that if the attorney general's position was contrary to the secretary of state's position, we would go and ask for declaratory action, which means that the opinions would be decided by court as to which is the correct opinion.

It is my understanding that we are filing this declaratory action with the Florida supreme court, under certain Florida statutes, which allows us to go directly to the supreme court. That's...

VAN SUSTEREN: Has that actually been filed? Are you going to do that this afternoon, is it imminent?

ROBERTS: I would make an assumption that it is imminent that we are filing it. It takes, I guess, some time to write that kind of -- ask for that kind of an opinion.

In the meantime, the attorney general's cover letter raised some interesting questions because there are a number of counties in Florida that have already had a manual recount, and it seems to me that, if the secretary of state has allowed full manual recounts in some of the smaller counties, that they are setting a two-tiered system in Florida, and that possibly, I believe, would ask the constitutional question: Is that allowable? I mean, why would we have a two-tier system where secretary of state never commented and did allow the other counties, I think Gadsden, one of the small counties, did a total hand recount and nobody -- they didn't tell them that was illegal, but they told us it was illegal.

COSSACK; Today, Mr. Baker made a proposal that said he will accept the count as of 5:00. But, for example, the Palm Beach, they're not even counting right no. So wasn't that more a, really, -- not an offer that anybody ever accepted the Democrats to accept -- or expected them to accept?

REP. JOHN SHADEGG (R), ARIZONA: Oh, no, I think it's an attempt to get some finality here, and I think it would have included that the Palm Beach results be reported. All we have to do here is have a sense of fairness where -- and I think your guest you just had on had it right. We have to have a single standard for counting these ballots.

And right now, we don't have that. We have one standard in these four counties, and probably not even one standard there. Sometimes they're counted if the chad is attached by one corner, sometimes they're counted if it's held up to the sunlight, sometimes we have the pregnant dimple and that's counted or not counted. We really need fairness here. We need a single system for counting the ballots, and I think that is at the heart of this dispute.

Under the equal protection clause of the U.S. Constitution, everybody's vote is supposed to have equal weight, and I think that's where we're trying to get. Everyone wants a fair count. Each vote by each voter should have equal weight and I don't think we can have a different system.

COSSACK: But, Glenn Ivey, your position or the Democrat's position in saying...

VAN SUSTEREN: Let me interrupt you for one second, Roger.

COSSACK: Go ahead, Greta. Go ahead.

VAN SUSTEREN: We've got to take a break. But more importantly, we just got a 10-minute warning. We're going to get that answer from the court on whether that 5:00 p.m. certification deadline can be extended. Stay with us.

(BEGIN VIEWER CROSS EXAMINATION)

"Why hasn't the possibility of a re-vote in Florida been given much attention in the media lately? Is this unlikely to occur? It seems like the best solution, given the problems that have surfaced there with the questionable Palm Beach ballot and allegations of discrimination at the polls."

-- K. France, California

(END VIEW CROSS EXAMINATION)

(COMMERCIAL BREAK)

VAN SUSTEREN: Welcome back to BURDEN OF PROOF. We're five minutes away from hearing from the Tallahassee court whether or not that 5:00 p.m. deadline when the secretary of state says she intends to certify the election results, whether it will be extended or not.

We're also just a few minutes away before an action here in the Palm Beach County court, a chief judge here is going to hold a hearing. There is currently in this courthouse an injunction against the Palm Beach Canvassing Board. They have been ordered not to certify the votes here. That injunction was issued a couple of days ago. There's a hearing here. We've been through several judges. It's now before the chief judge.

Joining me here in West Palm Beach is Steve Sheller, who represents one of the parties in this case.

Steve, tell us, who do you represent and what do you want?

STEPHEN SHELLER, PLAINTIFFS' ATTORNEY: Well, I represent voters in Palm Beach County who were denied the ability to pick their choice for this election. These are people who were tied in voting, in effect, for Buchanan by mistake. And what we want is we want the ability to have these people's vote count. And what that may entail is either a new vote in the county or a conclusion that a statistical analysis has to be done. And we have some of the top experts in the United States now in the courthouse from Harvard University, from Cornell, from Northwestern and the University of California at Berkeley, qualified under the Balbert Standard (ph).

VAN SUSTEREN: Well, let me ask you a quick question. If you have -- if you don't withdraw your injunction or your request for the injunction, you are going to disenfranchise -- run the risk of disenfranchising this entire county.

SHELLER: Right, and that's one of the things we've amended, our complaint and injunction complaint, for, which is to seek to not do that, to make sure that this vote counts, that we're essentially seeking to stop the secretary of state, who, as you know, is the co- chairman of the Bush campaign here -- in fact, it's surprising that we're now on our fifth judge who's recused themselves because of conflicts of interest, that she doesn't. I'm astonished. This could not happen in Pennsylvania where I'm from.

And what we're going to do is not disenfranchise these people, we're going to make certain that they, in fact, get the right to vote and their vote counts. And for this to have occurred -- and our statistical people, by the way, came to the conclusion that, of the Buchanan vote, more than 2,000 clearly would have gone to Vice President Gore. Of the 19,000 votes that were declared invalid, more than half of them would have -- the substantial majority -- would have gone to Vice President Gore. And that's just in West Palm Beach County.

So I think something has to be done in Florida. My own feeling is that from being here now in the midst of all of this and seeing how upset the people are, that they need to have a complete revote of the people who voted in the election in the county.

COSSACK: Steve, let me interrupt you...

SHELLER: And that's the answer and I think the challenge...

COSSACK: Steve, let me interrupt you for just a second.

SHELLER: Yes.

COSSACK: I want to go to Glenn Ivey, who is here with mere in Washington.

Glenn, what we're really talking about is the notion of how do we make sure that each person's vote counts and counts correctly? What is your response on that? We've heard from what the Republican -- your Republican counterpart has said.

GLENN IVEY, DEMOCRATIC ATTORNEY: Well, I think the goal is to have the recount votes moved forward in Broward County and Palm Beach County and others. Mr. Sheller was talking about some separate issues, I think, which leading to revote, I think, is unlikely. But I think the goal for the Democrats is to have the revotes -- the recount moved forward and see how it turns out.

SHADEGG: On this question of a revote and whether or not there was a confusing ballot, there is a clear principle in election law -- and I practiced election law for 10 years -- which says is if there is an irregularity in the form of the ballot and it could be caught before the election, you have a duty to raise it before the election. And if you don't raise it before the election, you lose it forever. And Florida case law is actually very clear on that. That's also the case law across the country.

So to the degree that there's an argument that this ballot was confusing or that it was, in fact, not properly ordered with candidates in the right order, there was a legal duty on the part of the parties to raise that before the election. And if they didn't raise it before the election, they lose it forever.

COSSACK: Steve Sheller, the argument is that you should have raised -- your client should have raised this before the election. How do you respond?

SHELLER: There was no opportunity to look at that ballot. The ballot that was given out to the public did not have the spots on it where you vote, and that's the problem. No one had the opportunity. And I can tell you, my mother-in-law is one of those people, the people in Palm Beach County who I represent, they're not going to tolerate your kind of legal opinion. What's right is right. This is the United States of America.

COSSACK: Well, we like to think the United States of America is based on the law, Stephen.

SHELLER: This is for our presidency and we're not going to let you steal this election. It's about time that you finally got around to saying Bush is a uniter. That's what he said in the campaign, and so far he's doing nothing to unite anybody.

VAN SUSTEREN: Let me interrupt you. Steve, let's get one thing clarified: Where was this sample ballot posted and why is it different, in your view, from what the voters actually saw in the paper?.

SHELLER: It was posted in the local newspapers and it had the names. The sample ballot that we saw that is out there had the names all in order, one, two, three, four, five, six, seven, not on two sides. There was no butterfly ballot posted and there were no punch holes posted in the sample ballot that was posted to notify the public of the ballot.

VAN SUSTEREN: What about that, Congressman? It doesn't sound like from what he said that there really was notice.

SHADEGG: The ballot was actually used in the absentee ballot ahead of time. People went in and walked in and punched it in various election offices ahead of the election in absentee balloting.

Of course, they saw it ahead of time. It was also published in the paper...

VAN SUSTEREN: Wait a second. Apparently it wasn't, congressman. Congressman, there ate two issues. I think what Steve -- and let's get this corrected -- Steve says, is it the ballot that was published in the newspaper was different from what was shown at the polling booth?

IVEY: Absolutely.

SHADEGG: The point I want to make, Greta, I want to make the point that this ballot and these machines, the butterfly machines, were actually used in absentee voting by people who walked in and voted absentee early, physically voted absentee early. It was also shown the Democrats...

IVEY: But that doesn't mean that the people that came in and voted -- voted to election. For example, the people THAT I spoke to in Palm Beach, they didn't vote absentee in advance, they came on election day. They didn't have any opportunity to before the election to object. I think that's the question. I don't know THAT this is where the challenge ultimately going to go, I think it is going to be the recount. But I think it is a fair complaint that the parties have.

SHADEGG: I agree, it is ultimately going to be what ballots are recounted.

VAN SUSTEREN: Let me interrupt everybody. We are going to go to Lou Waters down in Atlanta -- Lou.

(INTERRUPTED BY COVERAGE OF BREAKING NEWS)

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