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Burden of Proof

Election 2000: Will Courts Help us Pick a New President?

Aired November 16, 2000 - 12:30 p.m. ET

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

GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: Dueling courts, the Florida state court system and the United States court of appeals. Will the courts help us pick a new president?

(BEGIN VIDEO CLIP)

VICE PRES. AL GORE (D), PRESIDENTIAL CANDIDATE: We need a resolution that is fair and final. We need to move expeditiously to the most complete and accurate count that is possible, and that is why I propose this evening a way to settle this matter with finality and justice in a period of days, not weeks.

GOV. GEORGE W. BUSH (R-TX), PRESIDENTIAL CANDIDATE: The way to conclude this election in a fair, and accurate, and final way, is for the state of Florida to count the remaining overseas ballots, add them to the certified vote, and announce the results, as required by Florida law.

(END VIDEO CLIP)

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

ROGER COSSACK, CO-HOST: Hello and welcome to BURDEN OF PROOF.

The race for the White House continues to be fought in the Florida courts, where questions of manual recounts and certification deadlines continue to dominate the dockets. In Tallahassee, there's focus on two courts: The state supreme court is trying to reconcile a divisive issue in America, whether or not canvassing board members can authorize those manual recounts. And we're going to have more on that case later.

But across the street, in circuit court, the Gore legal team wants to force the secretary of state to accept revised vote totals.

Joining us today from Miami is Kendall Coffey, attorney for the Gore campaign. And joining us today from Tallahassee is George Sheldon (ph), a former deputy attorney general of Florida. Also in Tallahassee, law professor John Mills (ph). In Gainesville, we're joined by law professor Joseph Little. And joining us from Fort Lauderdale is Democratic attorney Charles Lichtman (ph). And here in Washington, Kristina Klimovich (ph), constitutional law professor Paul Clement (ph), and Republican Congressman John Mica. Instead of the constitutional law professor, I should introduce, I am sorry, my friend C. Boyden Gray.

In the back, A.J. Day (ph), Carolyn Leuner (ph) and Helen Jang (ph).

And also joining us from Tallahassee later on will be perhaps correspondent Mike Boettcher.

But first, let's go right to Kendall Coffey, the attorney for the Gore campaign.

Kendall, what do you intend to do today?

KENDALL COFFEY, ATTORNEY FOR GORE CAMPAIGN: Well, the issue is of course not getting anything done by the courts except authorization to proceed with the manual recounts. We are not seeking to have anything changed by the courts, what we are seeking to do is get to the will of the people, get the votes counted. Unfortunately, beginning with an unceasing onslaught of litigation moves, the Republican have, starting this past Saturday morning, thrown every possible legal obstacle they can in the way of getting these recounts done. They would be on the verge of getting finished, we would just be within a day or two of having them finished, if we hadn't had one court matter after another.

Now, of course, the Supreme Court of Florida is going to be determining one of the issues. We are in Leon Circuit Court addressing another issue.

When it is all said and done, the courts are going to do, we believe, what everyone in this country wants done, and that is allow the manual recounts to proceed. Let's get the most accurate and reliable determination of who is the rightful winner of the 25 electors of the state of Florida.

VAN SUSTEREN: All right. Well, let's go to Fort Lauderdale to Charles Lichtman, who is the attorney for the Broward County Canvassing Board.

Mr. Lichtman, Charles, are you party to any of the actions in Tallahassee?

Let me go then to George Sheldon, who is in Tallahassee.

George, you are the former deputy attorney general, what is the authority of the secretary of state under Florida law to make a decision about certifying or not? Does she have absolute authority?

COSSACK: Greta, I think we are having tough times today.

Let me go over here to Boyden Gray...

VAN SUSTEREN: Let me tell you what is going on here, Roger, in all this chaos. I'm down here where the manual recount is supposed to begin here in Palm Beach, they are still waiting for what the Florida Supreme Court is going to tell them or not. But behind me, to add to all the chaos of the media and everybody else trying to figure out whether there will be a manual recount or not, we have now got a demonstration going on, people demonstrating who want this recount to go forward.

It only gets a little bit wilder and wilder. And as we started this show, I asked the question, I posed the question: Will the courts help us decide? And at this point, all we are going to do is have to wait to see whether the Florida Supreme Court is ultimately going to give us any direction.

COSSACK: Well, Greta, once again, you are right there in the center of the hurricane, while I'm up here watching, but I have C. Boyden Gray with me, let me go to Boyden, I mis-introduced and please forgive me.

Boyden, you heard what Kendall Coffey said, he said that the Republicans had been obstructionists in this situation, that in fact, if they hadn't gone to court, this thing would have been over by now, everybody would have been happy.

C. BOYDEN GRAY, FORMER BUSH WHITE HOUSE COUNSEL: Well, Volusia County couldn't its manual ballots, other counties started and stopped, started and stopped. It wasn't because of the courts, it was because the canvassing panel decided to suspend the standard here, and this is what ultimately probably the federal courts will have to get into, but the state supreme court as well, is whether there is authority to do a manual recount when there is nothing wrong with the machine balloting.

And there being nothing wrong with the machine balloting from the sampling of precincts, the machine balloting stands, that vote count stands to be augmented by the absentee ballots on Friday.

VAN SUSTEREN: Let me jump back to Kendall Coffey, who represents the Gore campaign. Kendall, can you explain to me, we have got these state court actions, and we have got a federal court action in Atlanta, United States Court of Appeals, who really is in charge here? I mean, which court system will this be answered in? Does the, for instance, the federal court have the authority to tell the state of Florida how to run its elections or not run them?

COFFEY: No, this is a state matter, and it is the beauty of the constitutional system that our Founding Fathers conceived. Even though this is the presidency of the United States, the matter of the determination of Florida's electors is strictly a matter of state law. The state system designs it -- the state voters and the state courts are involved, but again, we don't want any courts, state or federal, deciding this.

This should be decided by the voters, and that's what the manual recounts are intended to accomplish.

And I want to correct the statement that manual recounts are just about machine error. To the contrary, in 1989, when it was passed in Florida, and as is recognized around the country, and is in fact as was recognized specifically in Judge Middlebrook's order this past Monday, manual recounts get to a category of votes that the machines arbitrarily and unfairly kick out, and they are votes that simply aren't punched perfectly, and that is why we have the systems, not because it is a matter of machine error, because we don't want votes discarded where you can in fact, upon physical examination, discern the actual voter's intent.

The whole system is about enfranchising voters, counting votes, and getting to the most accurate possible total. That's what manual recounts are about, that's why they need to proceed, and that's why the Republicans keep doing everything they can to shut it down and stop it.

COSSACK: Joining me now is -- I'm sorry, Greta, I have Congressman Mica with us, I think might have even mispronounced your name too, please forgive me. Isn't there the problem that there's going to be a perception here that if the votes are not counted, and the counties go ahead and continue to count, that there could be one thing certified by the state of Florida, one amount or total, and later on the counties come in, and say: Guess what, the other person won?

REP. JOHN MICA (R), FLORIDA: Well, Roger, I'm in Congress now, but I served in the Florida legislature when we wrote these election laws, and the law is very clear, it has a 5:00 p.m. deadline. I brought a copy of it with us.

It says that "The department of state by 5:00 p.m. of the seventh day following an election, all missing counties shall be even ignored, and only those shown on file shall be certified." That's what a Democrat judge upheld, just the other day. The only thing he said was she had the discretion and she couldn't be arbitrary. So she gave them until 2:00.

They responded, they certified, the canvassing board certified, it is over. We allow a manual count, we allow a machine count, but those are within the seven days.

What the vice president proposed last night is wrong, it is illegal. There is a controlling legal authority, and it is very clear, if all this goes into chaos, it will be thrown into the Florida legislature, and they will appoint the electors. The courts will never appoint the electors.

VAN SUSTEREN: All right, Congressman Mica, let me ask you a question: When you talk about the "shall," that statute you were citing, that's a 1989 statute. How do you reconcile it with the Florida statute, which was passed in 1996, and according to my non- fuzzy math, which was seven years later, it uses the term "may"...

MICA: May is from the canvassing board on up to the state canvassing board, from the local canvassing board up she may accept that. That's exactly what the judge said.

This is over. We devised this law so we wouldn't allow these contested recounts and recounts on and on ad infinitum. And that's what I think will be shown in the end -- it's over. They certified, as required -- "shall" -- it isn't even a question, "shall" -- the only exception to that is the overseas ballots, which must be counted, they must be counted by 12:00 midnight.

VAN SUSTEREN: All right; congressman,let me ask you a quick question. There are four letters -- four counties sent letters to the secretary of state. Two, I think, that gave no -- actually Collier County didn't even ask for a manual recount, that's one of the letters. Another letter didn't even say why it wanted a manual recount. She said she wanted a reason.

Two counties, though -- Palm Beach County and Broward County said very specific reasons in a letter and both said that if they did a manual recount they thought it would affect the outcome of the election. Why is it not an abuse of election when the actual recount could have this incredible result? Why is it not an abuse of discretion?

MICA: They had their ability up until 5:00 p.m. to do it any way they wanted -- manual, machine -- and some did; 5:00 p.m. is the deadline. The Florida legislature set that in stone with two "shalls," and a judge has already upheld that. You can go on and on. And this is exactly what we didn't want to happen.

So you could come up with 1,000 excuses weeks from now to recount -- do recounts. But we had a count on election night that was sent to the state. We had a recount which was also ordered by law when you have 1/2 of 1 percent, which we put in the law. Gore and Bush didn't even have to request that, that was done. They could have done that in any fashion -- manual or machine. The only exception might be a natural disaster that would have some delay in extending that 5:00 p.m. deadline. That didn't happen.

VAN SUSTEREN: Did you read the statement from the Broward County -- their certification -- the statement to Secretary of State Harris in which they explained the reasons why they couldn't get it sooner? Did you explain -- they specifically set out reasons why they are having problems. Are you aware of those reasons?

MICA: Well, again, she -- and it's not just Katherine Harris, this is the law -- the canvassing board is required to certify. Even if they hadn't sent in their results, she is required to certify what she already had on file, and she already had two counts on file, one from election night, one from the recount that was mandated by law.

COSSACK: Well, I want to go ahead and interrupt for just a second and remind, or tell our viewers, that shortly we will be going to the Florida state circuit court, to the courtroom of Judge Lewis who is the judge who will be making the ultimate decision on the appeal by the Gore people to overrule what Secretary of State Katherine Harris -- and we expect a decision, or at least some court proceedings in just a few moments, so stay with us as we continue with BURDEN OF PROOF.

I'm going to ask a question I should know the answer to: Do we still have Kendall Coffey with us, and if we do, attorney Coffey, how do you respond to this?

COFFEY: Well, first of all, Congressman Mica's comments, with due respect, are way off base. It's right in the terms of Judge Lewis' order that he specifically rejected the thesis that the seven days means seven days unless there's a natural disaster.

In fact, Judge Lewis pointed out that, with larger counties, they would, effectively, be disenfranchised and excluded from the manual recounting process because, in many instances, a larger county cannot complete a manual recount within the seven days. And it would be an absolute abuse of discretion to deny votes, especially where it would change the outcome of the election.

What Florida election law is all about is counting and validating cases. In every single Florida case that's ever been decided on the issue makes it crystal clear: If something would affect the outcome of the election, that has to be considered, that has to be embraced because, in the final analysis, this contest does not belong to George W. Bush or Al Gore, it belongs to the people of Florida. Their will is paramount in getting the most accurate possible determination at will is what's required.

We didn't hear when Seminole County was doing a manual recount and generated an additional 98 votes for Bush -- we didn't hear that that kind of recount was illegal and that that kind of recount was disallowed because only machine error can be considered. Nor have I seen George W. Bush's campaign offering to give those 98 votes back, nor do we want any kind of manual recount discouraged.

We think it's a process that has people who are working carefully side-by-side, Democrat and Republican, getting to the truth. And I think it's, frankly, an inspiring thing when this whole country comes in and looks at these recounts and sees everyday people, one by one, with integrity and reliability, determining as they -- as human beings, as individuals -- count vote by vote, determining who will be the president. It's great that our kids are watching it, it's great that the world is watching it because we are showing that democracy works and that a couple days is not as important as arriving at the truth.

VAN SUSTEREN: All right, Kendall. Four letters went to the secretary of state. One said -- Collier -- we don't want a recount, we're not asking for that. Miami-Dade just says, well, we want one, with no explanation.

Would it be an abuse of discretion for Secretary Harris to dismiss that one? They didn't even give any reason. Granted, Broward County and Palm Beach County said they think that a recount would affect the outcome of the election -- but what about Miami-Dade, they gave no explanation to her. Is she supposed to just accept that?

COFFEY: I think any outcome that could affect the election has to be accepted; and as long as counties, individual counties, are observing the manual recount laws -- and let's be clear, the initial request for manual recounts was made within the 72 hours. Everything has been followed in careful conformity with Florida election law. As long as the manual recounts proceed lawfully, those results have to be counted. Anything else would mean, not only that the Florida law is being ignored, but that people are being disenfranchised. Let's not lose sight of what's involved here.

VAN SUSTEREN: All right, let me ask you this then: Palm Beach County says they did four precincts, 1 percent of the vote. They came up with 19 more votes for Gore; if they go out to 100 percent they think it's be as many as 1,900 for Gore, so --

COSSACK: Greta, I want to interrupt you for a second. We're going to the Florida state circuit court in Tallahassee, Florida, the courtroom of Judge Lewis. We will hear some hearings on the Democratic petition.

(INTERRUPTED BY COVERAGE OF A LIVE EVENT)

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