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Burden of Proof

Election 2000: Will Manual Recounts be Stopped in the Sunshine State?

Aired November 15, 2000 - 12:35 p.m. ET

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

(BEGIN VIDEO CLIP)

WARREN CHRISTOPHER, OBSERVER FOR GORE CAMPAIGN: We hope that Secretary Harris and the Bush campaign will join with us and support this proposal to have the supreme court of Florida take charge of these questions and bring them to a speedy, rapid resolution.

(END VIDEO CLIP)

GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: Will manual recounts be stopped in the Sunshine State?

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

VAN SUSTEREN: Hello, and welcome to BURDEN OF PROOF.

The legal battles continue here in the state of Florida, where the supreme court has now been asked for emergency relief.

ROGER COSSACK, CO-HOST: In addition, Republicans in Florida accuse Palm Beach Canvassing Board member Carol Roberts of manipulating ballots at an initial recount last Friday. They claim Roberts was mixing questionable ballots with Gore ballots.

Also, Florida Secretary of State Katherine Harris has filed an emergency petition with the state supreme court. She wants the court to halt all manual recounts. Harris is requesting that all lawsuits surrounding the election be transferred to circuit court in Leon County.

The Gore team responded just a short time ago.

(BEGIN VIDEO CLIP)

CHRISTOPHER: Well, we will certainly abide by the standard that the supreme court of Florida sets for the way to recount or hand count the votes. That's the reason, that underlies the move that is being made today.

You have all noticed that there are litigation in each of the counties, and I think what we want to avoid is having conflicting judgments reached in these counties, and thus only delaying the matters. That's why we would like to have it before the supreme court.

(END VIDEO CLIP)

VAN SUSTEREN: Joining me here in West Palm Beach is David Cardwell, who is former state director of elections. And in Tallahassee, Florida, we're joined by Ron Klain, who is chief legal counsel for the Gore campaign.

COSSACK: Here in Washington, Susie Dewey (ph), former Bush White House counsel C. Boyden Gray, and Joe Yvari (ph).

And in the back, Erin McVeigh (ph) and Katherine Peters (ph).

Also joining us from West Palm Beach is CNN correspondent John Zarrella.

But before we go to John Zarrella, I want to go to my co-host, Greta Van Susteren with some breaking news -- Greta.

VAN SUSTEREN: You know, Roger, it never stops, the legal news keeps pouring out. Let me tell you what is going on in the West Palm Beach County Court behind me. The judge, Judge Labarga, who has been hearing matters all day today on the citizen suits, as well as the Democratic Party's request that the so-called dimple ballot be considered, has now ordered that a hearing occur on Friday morning at 9:30 a.m. He wants to hear argument from the lawyers on both sides on a particular issue.

The issue is this: Would it be constitutional to order a revote in this county? Now that is not to say that he is actually going to order a revote, but he simply wants to make a decision whether or not it would be constitutional should the circumstances warrant it.

It is actually a very prudent thing to do because in the event that it would be unconstitutional, he wouldn't have to get through all the process of considering all the evidence about whether a revote would be necessary or not.

So he is going to consider the threshold question, which is whether or not a revote would ever be constitutional.

COSSACK: In terms of that, what is he asking the lawyers to do, to come in with briefs on strictly the constitutionality of ordering a revote, as well as perhaps suggested procedure on how that revote would go? For example, who revotes, just the people who voted the first time or does everybody within that county get to vote this time?

VAN SUSTEREN: Well, you raise the one issue about the revote. We've been down here so long in West Palm Beach and wondering if members of the media wouldn't be eligible -- we might become residents by then to vote ourselves.

Putting that joke aside, this is obviously a very serious matter. It will simply be on Friday, or at least what we expect at this point is that the lawyers will be arguing the very sophisticated issues of constitutionality and when votes can be reargued, or when votes can be redone because, at least at this point, no one is particularly clear about whether a new election could ever be ordered in this county.

So it will simply be the lawyers arguing that the constitutional issues. There won't be any witnesses, I don't anticipate any exhibits. I don't anticipate any evidence. It is simply arguing the Constitution, looking at the Supreme Court's rulings over the past 200 years on issues that are even remotely related.

COSSACK: Boy, Greta, this gets better and better every day. Let's go to John Zarrella.

John, what's happening with you where you are?

JOHN ZARRELLA, CNN CORRESPONDENT: Well, Roger, right behind me Judge Charles Burton, who is, of course, the chairman of the canvassing board here, is going over the rules and regulations and what's a chad and what isn't a chad and what counts and what doesn't count in light of what the court ruled.

The judge ruled just a while ago that it was really up to them. And he said that what it does is it goes back to a 1990 ruling by the canvassing board in 1990 that set the standard for what is and what isn't a vote. So they will continue with the standard that they set during that initial recount of the selected precincts last weekend, which does not include the so-called "dimpled ballot" or "pregnant chad."

But they are not -- even with this ruling -- not going to proceed with the recount at this point. They're going to continue to hold off until they get that ever-critical Supreme Court -- Florida Supreme Court ruling on whether they even have the legal authority to continue on with this -- Roger.

COSSACK: John, is there any idea when the Supreme Court, or any notion of when we might hear from the Supreme Court on this?

ZARRELLA: No, and that's one of the questions that they've been pressing to the judge here. And he says, look, as soon as we know anything -- we're waiting like everybody else -- no one seems to know when the Supreme Court is going to deal with this issue, along with the issues that the secretary of state has dumped in their lap as well -- Roger.

COSSACK: All right, joining me now -- Greta, go ahead.

VAN SUSTEREN: Let me ask Ron Klain up in Tallahassee -- Ron, have you already filed, has the Gore campaign actually filed the request in the Florida Supreme Court to take charge of this?

RON KLAIN, ATTORNEY FOR GORE CAMPAIGN: We haven't yet, Greta. I expect we'll file it in the next hour or two.

You know, our problem with Secretary of State Harris' proposal is, it's an effort to delay the process all the more. It's an effort to wipe out all the progress that's been made so far, start over at square one and start over at a trial court here in Tallahassee. It's just another plan for delay. Look, all over the state everyone what's going to happen. There are issues that need to be resolved by the Florida Supreme Court to move the counts forward. We want those issues to be resolved sooner, not later.

COSSACK: Ron...

VAN SUSTEREN: Ron, do you agree, though, that her original -- Ron, do you agree, though, the secretary of state's original decision to consolidate is a good one -- or to consolidate these issues? Is your only objection that she thought it should go into county court -- you think it should go immediately to the Supreme Court of Florida?

KLAIN: Greta, I think consolidating some of these issues certainly make sense. I didn't know about all the cases that are out there. We think bringing together the cases that concern the counting of votes -- what sorts of ballots should be counted, whether or not they can continue to be counted, what county should or shouldn't go forward -- I think bringing all those together, resolving them quickly, in a single proceeding makes a lot of sense.

What she's actually proposed are three things that will add to delay. She's proposed not only to consolidate, Greta, but to wipe out all the litigation thus far -- wipe out the rulings in Palm Beach and Broward and start at square one. She's proposed to send the ball back to trial court when these cases could move up through the system in Florida; and she's proposed to stop all the counting everywhere in the state of Florida indefinitely.

And we think all three of those things are a formula for delay. We want to see the counts move forward, we want to see the Florida Supreme Court set rules sooner rather than later.

COSSACK: Ron, why are you in such a hurry to go to the Supreme Court regarding this decision about how the count goes on? Haven't you won a victory with what the judge said today -- that it's up to the local canvassing board to set their rules, set reasonable rules? How can it get any better than that?

KLAIN: Well, Roger, I think the people of Florida won a victory with the idea that reasonable rules should be set. But the point is that this process has dragged on. And it's dragged on because the secretary of state issues a new legal opinion or a new edict every single day to drag it out.

We want the votes counted, and we want the votes counted under full, fair and accurate rules. And so we think the best way to do that is to move the things to the Florida Supreme Court and get some clarity, get some direction and get this thing moving forward. If we don't do that we'll have the secretary of state's proposal to wipe out the victories in Palm Beach and Broward, start all over again in Tallahassee, in the trial court, and who knows how long that will take.

COSSACK: Ron, let me just interrupt you for one second here -- Greta... VAN SUSTEREN: Let me just say we've got to take a...

COSSACK: Greta -- Ron, Senator Daschle has called for Secretary Harris to recuse herself. Your feelings on that?

KLAIN: Well, I don't really know, Roger. We don't have a position on that. Secretary of State Harris is, obviously, a Bush supporter, a Bush delegate, an officer of the Bush campaign.

I don't really know about recusing herself. What I know is this: She needs to act in a more fair and more impartial way than she has when, you know -- I think her role under Florida law should be to try to get the votes counted, not continuing to issue edicts to stop the counting of votes, and that's what's troubling to us.

VAN SUSTEREN: All right, well, we're going to take a break. When we come back we're going to get the Republican response from former White House counsel Boyden Gray and we're going to talk about that 2:00 p.m. deadline.

(BEGIN LEGAL BRIEF)

The Committee for Honest Politics has filed a lawsuit against several news networks and the Voter News Service for making erroneous projections in last week's presidential election. Named as defendants in the suit: CNN, MSNBC, Fox News; CNBC, ABC News and CBS News.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

JUDGE JORGE LABARGA, PALM BEACH COUNTY CIRCUIT COURT: The Palm Beach County canvassing commission has the discretion to utilize whatever methodology it deems proper to determine the true intention of the voter and should not be restricted in that task. To that end, the present policy of a per se exclusion of any ballot that does not have a partially punched or hanging clad is not in compliance with the intention of the law.

Accordingly, the canvassing board has the discretion to consider those ballots and accept them or reject them. And that, basically, is my order. Ladies and gentlemen, thank you, and I obviously will...

(END VIDEO CLIP)

VAN SUSTEREN: Welcome back to BURDEN OF PROOF.

Boyden, let me go first to you. Former secretary of state Warren Christopher said that he had two questions he thought the Florida Supreme Court should consider -- actually I think he's got three, he called it two, though.

But the first question is whether a hand count is appropriate; the second one is, what are the standards; and the third is whether it should be county-wide.

What's wrong with that?

C. BOYDEN GRAY, FORMER BUSH WHITE HOUSE COUNSEL: I don't think there's anything wrong with the questions being asked. Those are the right questions. I think it's a little premature, perhaps, to ask the Supreme Court -- Florida Supreme Court -- to answer, but it will decide that for itself.

The first question is the key one, and I think the statute and the practice talks of a machine breakdown. These machines have been understood to do what they do or don't do. They're not the same throughout the state -- there are different machines in different counties; and there's no allegation or evidence of any machine breakdown. And therefore, the election is over.

VAN SUSTEREN: Let me tell you what the Democrats say, though...

GRAY: But the election is over -- yes, go ahead.

VAN SUSTEREN: Let me just tell you, though, what the Democrats are saying is that, in terms of a recount, a manual recount, that the statute doesn't talk about the system going down -- meaning the mechanical equipment. It's when there's a problem with the voting itself, and that adding the word "system," which the secretary of state did, changes the statute.

Do you agree or disagree?

GRAY: No, she doesn't change the statute. She's trying to enforce the statute. The statute talks about error in the vote tabulation and the machines have tabulated the votes correctly.

If there were a problem with the machines they should have corrected those problems before the election. If a hand count is the proper way to do this, under Florida law, then that's the way they should have done it from the beginning. To do a hand count now is just simply recounting the votes in a new electoral process. It is, in my opinion, totally improper. The election is over, it has been counted once, twice, and in some of the counties three times. I would believe that Florida supreme court would say, in the absence of machine difficulty, this election is over.

COSSACK: Boyden, what about Secretary Harris has called for the counties to file by 2:00 p.m. their reasons for why they want to have a recount. Now, in light of the judge's decision yesterday, who said that certification was due yesterday at 5:00 p.m. but the secretary could not abuse her discretion.

Why does she need to get from them something in writing by 2:00 that says this is my reason? Why do they have to do that? Can't they just go ahead, make their hand count, turn it in, and then it is up to her to make a decision?

GRAY: I think she wants to go back to the point that I just raised, and I think the Democrats want resolved by the supreme court, although a bit prematurely, she wants to know why do you think you should go to a hand count? What is wrong? They have had these isolated precinct samples. There is nobody wrong with the tabulation that can be found. That's the only authorization to go to a full county-wide recounting, and she wants to know: Why are you doing this? And it is a perfectly appropriate thing to do because...

VAN SUSTEREN: Well, let me ask the former director of elections here in the state of Florida, David Cardwell.

David, what do you make of 2:00 p.m. deadline, and the request for the counties to report why they want to do it to the secretary of state?

DAVID CARDWELL, CNN ELECTION LAW ANALYST: Well, like everything else that's occurred since election day in Florida, it is unprecedented, it has never happened before like this. But in Judge Lewis' order yesterday, he did note that the secretary of state has some discretion. I think what she's trying to do is to get the reasons from the canvassing board as to why they want to do the manual recount and get that before the result are in so she can make her discretionary determination before she necessarily knows what the totals are.

VAN SUSTEREN: But, you know, if the overseas ballots are not even supposed to be counted until the deadline is Friday midnight, why not just make her deadline Friday at midnight, She can't really -- she's got to consider those, I assume.

CARDWELL: It's a very short deadline. But at the time that the canvassing board makes a determination and wants to do a manual recount, it is supposed to make a finding at that time that the outcome of the election may have been affected by the vote in the way it was tabulated. So they should have already determined why they felt they needed to do a manual recount.

COSSACK: David, Boyden Gray makes a point that says there is no legitimate or legal way for the recounts to be done unless it comes within this statute, and it does not come within the statute, that is, the voting machines worked properly. Is that the correct standard?

CARDWELL: Well, until the past couple of days, I think any elections official in any canvassing board in the state felt it had the absolute discretion to order a manual recount at any time, if it felt it was necessary. Again, that broad discretion has been vested in the past in the canvassing board.

I've been involved in several manual recounts, where there was no allegation of any irregularity with the tabulation equipment or the software, but where there was merely a question as to the total.

VAN SUSTEREN: All right, let's go to our colleague Bob Franken.

COSSACK: Greta, Boyden, wants to respond for a second. Go ahead.

GRAY: I think there's discretion to do the sample precinct count to see if there is a problem with the disparity in the vote. But once that is done, which has been done, and there is no significant vote count disparity, then there is no authority to go on and do what is, in effect, hold another little election in the counties.

COSSACK: All right, Greta.

VAN SUSTEREN: Well, let's now go to our colleague, Bob Franken, who standing by for us in Atlanta.

Bob, the action isn't just here in the state of Florida, there's legal action there, What is going on?

BOB FRANKEN, CNN CORRESPONDENT: Well, the legal action is that there have been two efforts now in Florida to put things into the federal judicial system, both have been rejected. The most recent one is in Orlando. The losers in that one, the Republican-backed litigants who were trying to stop the hand recount, have filed an appeal here at the 11th Circuit Court of Appeals, which of course covers the state of Florida.

Now, we have no indication from the court here that any schedule has been set up for a hearing. There is no intention so far that we've been able to discern that the judges will immediately hear the request for an emergency temporary restraining order to stop the hand recount, the plaintiffs suggested there would be irreparable harm. And so far nobody has acted in a way to say that there would be irreparable harm. And of course, if there is a delay in having a hearing here that's almost an implicit rejection of the emergency argument.

COSSACK: Boyden, that...

VAN SUSTEREN: Boyden, let me ask you...

COSSACK: Go ahead, Greta.

VAN SUSTEREN: Boyden, let me ask you about the request to go to the 11th Circuit. In the judge's decision on Monday, he actually talked about whether or not he thought that the Bush campaign should win or not. But just even to get an injunction, you have to show irreparable harm. What's the irreparable harm over this hand count going forward?

GRAY: Well, that is a potential weakness in the case because you don't know, at least you didn't in the start, whether this thing was going to be as irrational and as subjective as it has turned out to be. Now I think the irreparable harm is is we've got this circus and we have got public opinion being shaped by whether these votes are there or not, when they actually shouldn't have been counted, and they may be totally bogus.

And so I think the irreparable harm is much clearer today than it was when the thing was filed before we saw the almost circus-like atmosphere of: Do you count the dimple, or the pregnant, or this or that? And we saw how sort of irrational the whole system is. COSSACK: But, Boyden, why more importantly could this ever be -- at least at this stage -- a federal question for what they are asking to do? Wouldn't this presumptively always be -- or should always be, until we get to a constitutional question, shouldn't this always be in the Florida state courts?

GRAY: Well, I think at some point whether or not you can have a reelection becomes a federal question; I think at some point whether, what the practice is as a decision out of the 11th Circuit some 10 or 12 years ago, the Roe case out of Alabama, which says that you can't change the rules after the game has been played, and you can't order another game. That had to do with counting of absentee ballots and they changed the procedure, and the 11th Circuit overruled I believe the Alabama Supreme Court.

COSSACK: Well, Greta, what do you expect to happen later on?

VAN SUSTEREN: Just more litigation and more litigation, Roger, who knows? I mean, we are in so many courts in so many counties, and now two states. What I hope is is that the Florida Supreme Court tells us what we are supposed to do.

COSSACK: All right, that's all the time we have for today. Thanks to our guests, thank you for watching.

Tomorrow on BURDEN OF PROOF, we will be back with more of this -- Greta.

VAN SUSTEREN: And we will continue the monitor events. Join us tomorrow on BURDEN OF PROOF.

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