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Burden of Proof

Election 2000: Legal Challenges by Gore and Bush Campaigns Could Delay Declaration of a New President Even Further

Aired November 24, 2000 - 12:30 p.m. ET

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

ROGER COSSACK, HOST: Today on BURDEN OF PROOF: Legal challenges by the Gore and Bush campaigns could delay the declaration of a new president even further.

(BEGIN VIDEO CLIP)

CRAIG WATERS, FLORIDA SUPREME COURT SPOKESMAN: "The writ is denied without prejudice to any party raising any issue presented in the writ in any future proceeding. No motion for rehearing will be allowed." It's signed unanimously by all seven justices.

DAVID BOIES, GORE CAMPAIGN ATTORNEY: The right answer is that it is a matter of Florida law. There ought to be one standard. The Florida supreme court sets that standard. This is not a matter for the United States Supreme Court.

THEODORE OLSON, BUSH CAMPAIGN ATTORNEY: They lost the day before yesterday, they lost in the trial court, they lost in the appeal court, they lost in the Florida supreme court. And now they say they're going to go back to a trial court again. It's clear that they are not going to give up until they're out of lawyers, and they're never going to run out of lawyers.

(END VIDEO CLIP)

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

COSSACK: Hello, and welcome to BURDEN OF PROOF.

By Monday morning, the voting tally will likely be certified in the state of Florida. But will that tell us who the 43rd U.S. president will be?

GRETA VAN SUSTEREN, HOST: Legal challenges by both campaigns contesting voting results could jeopardize the timetable set this week by the Florida supreme court.

And the Gore campaign has vowed to contest returns from Miami- Dade County, where the board voted Wednesday to stop hand recounts once statewide totals are certified.

COSSACK: The Bush campaign has filed challenges to results in 14 Florida counties, claiming overseas military ballots were illegally excluded. And in addition to that, they have asked the United States Supreme Court to help -- to halt hand recounts in Broward and Palm Beach Counties.

VAN SUSTEREN: We are expecting former Democratic Governor Mario Cuomo and former Bush White House counsel C. Boyden Gray to join us shortly.

But with us in Orlando now is CNN election law analyst David Cardwell.

COSSACK: And here in Washington, Mercy Choy (ph), law professor Larry Gibson and Paul Gee (ph). And in the back, Marianna Ofusu (ph) and Kerry Ogata (ph).

Let's go right to you. Let me ask you, in terms of David Cardwell, I want to hear you -- what you have to say about the contesting of the election. What exact rounds will they be using to contest the election? Does evidence have to be taken? And more importantly than anything, how long is this going to take?

DAVID CARDWELL, FORMER FLORIDA ELECTIONS DIRECTOR: Well, a contest is a judicial proceeding. It's filed in circuit court, which is our basic trial court in Florida. It is an evidentiary-heavy proceeding. Very often there will be affidavits presented, witnesses will be brought in to testify to what may or may not have occurred.

The legislature expanded the grounds for a contest just two years ago in 19 -- one year ago, excuse me, in 1999. It used to be you had to allege fraud or some sort of really willful wrongdoing by an election official. Now you can show just that there was number of votes either not counted or that were rejected.

But you're going to have to bring in evidence of that. The standard is very high. You must show that but for what you're complaining of, that the result of the election would have been different, and that's a basic allegation in the contest.

VAN SUSTEREN: But David, let me, let me -- having said that, in order to make the -- to make your case under a contest that you should be the lawful one holding the office, you can get a hand recount to establish that but for you would have been the one who should rightfully have the office.

In light of that, can you give me an explanation as to why the Democrats have been fighting the issue at the protest level, and the whole issue about the secretary of state, when she should certify, whether it's seven days after the election or Friday at 5:00 p.m., according to what the Florida supreme court.

What difference? Why not just have the contest instead of the protest?

CARDWELL: Well, sort of what are the same thing, when we were going through a lot of the legal wrangling over the protest, I thought it may have been just easier to get the election certified and then file the contest and have the court step in. But there is some difference between the two proceedings.

In a protest, you still have the canvassing board involved, whereas in a contest, the canvassing board is really out of the process. The circuit court basically takes over the counting of the votes and could either do it directly through the judge or through the appointment of a special master.

VAN SUSTEREN: Or, or the circuit judge, could it not, I mean, the language is quite broad in this statute, says, "may fashion such orders as he or she deems necessary to assert -- to ensure that each allegation and complaint is investigated, examined, and checked." Couldn't the circuit court judge order the canvassing board to do exactly what it's doing now?

CARDWELL: Could do so, but our experience has been, in some of the more recent recounts that went to a manual recount, that the court appointed a special master and really took the canvassing board out of the process.

COSSACK: All right, joining us now is former governor of New York, Mario Cuomo. Governor Cuomo, why go ahead and contest this election? I mean, don't you read -- part of being a lawyer is -- it is said on my diploma, at least, it says I'm a counselor. Don't you think it's about time that someone steps back in this situation instead of filing lawsuit after lawsuit?

MARIO CUOMO (D), FORMER NEW YORK GOVERNOR: God forbid. I'm one of maybe 50 million people that voted for my candidate, who happens to be Al Gore. But the notion that he or George Bush have some kind of personal prerogative to decide to give up on the legal system and abandon my votes and my agenda and maybe even because they think it's better for them, that's not what's good for the country.

What you should do here are two things, try to ascertain exactly what the people intended by their votes. While you're doing that, pursue the law. Both sides use one word that I love, "legitimacy." Well, you two experts -- and you're terrific at what you do, congratulations -- you know what that word means. The very basis of it is law.

And the only legitimacy we have, really, that matters is the legal system, not what politicians would tell you, not what we agree to between ourselves, what the law says.

VAN SUSTEREN: Governor, might...

CUOMO: So do the law, and do the counting at the same time, and don't hurt the country. When you get to December 12, you're out of time, but the court will take care of that.

VAN SUSTEREN: Governor, in light of that -- I mean, it seems to be an awful lot of squabbling, and some questions just posed to David Cardwell, a lot of squabbling about the certification date, whether it's seven days after the election or 5:00 p.m. Sunday as the Florida supreme court.

CUOMO: Right.

VAN SUSTEREN: And the Democrats have fought to get the hand recount done before the certification. But the law also provides a contest where they can have the hand count redone.

CUOMO: Correct.

VAN SUSTEREN: Why fight the battle over the certification date? Why not just let it happen and move into a contest?

CUOMO: Greta, you and I would probably try cases differently, depending on our own view of things, and that's what's happened here. I wasn't around and was no part of the judgment.

I -- it seems to me, looking back on it, there were a couple of things about this. You get two shots at it. Number one, you get the canvasses, recounting the ballots now, and you have the protest. That's what's going to happen in Miami-Dade. We took a crack at it at this level, it didn't work, and now we have a second crack.

Number two, I don't want to use the word "politically," but incent -- the sense of using the system itself is probably easier to sell to the lay public. In other words, they don't like the courts. They're wrong. You knew that -- you know that, Roger knows it, I know it. This -- the legal system in this country is what distinguishes us from every other attempt at a republican democracy that failed.

So we know how great our legal system is, with all of its imperfections. The public doesn't. They don't like lawyers, they don't like judges, they don't understand it. And so there is some sense, I think, to trying to use whatever the process was administratively. Canvassers, however fouled up it is, use it, see if you can get by with that. And then if you don't, you always have the protest. And that's what's going to happen here.

COSSACK: Let me go to David Cardwell for just a moment. David, is there any sure thing that there will be a recount just because there's a contest of the election filed? Isn't there a threshold that has to be met with the judge before the judge would order a recount?

CARDWELL: Well, certainly. And that's why these proceedings are very, as I indicated earlier, kind of evidence-heavy at the beginning, because you've got to convince the circuit judge that there's enough of a question involved and enough votes in -- that are at issue that there could be a different outcome.

VAN SUSTEREN: But David, but David, we've got that 1 percent sampling in those precincts. Doesn't that at least presumably meet that threshold?

CARDWELL: That would give the judge something to rely upon. Different judges will view this in different ways. There's the same reluctance at a circuit court level in Florida to inject the court into the election system as there is for the appellate courts to inject themselves. So you're going to have to show the judge, I think, really some good reasons why the court should step in and try to fashion some remedy that may affect the outcome of the election.

VAN SUSTEREN: All right, we're going to take a break. And when we come back, C. Boyden Gray, who is White House counsel in a Republican administration, will be joining us. And we'll have more on this. Stay with us.

(BEGIN LEGAL BRIEF)

On this day in 1963, Lee Harvey Oswald, the alleged assassin of President John F. Kennedy, was killed by nightclub owner Jack Ruby. Ruby was found guilty of murder and sentenced to death in 1964. In October of 1966, an appeals court overturned that conviction. He died in 1967, while awaiting a second trial.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

VAN SUSTEREN: The Bush campaign has petitioned to the U.S. Supreme Court, contending, among other things, that the constitutional right to due process is being violated, since different counties in Florida are using different standards in counting ballots.

Joining us now for the latest from the U.S. Supreme Court is our good friend CNN correspondent Bob Franken.

Bob, we've had a -- both sides have filed -- pleadings, and there's even been a response from the Bush campaign. Any news out of the Supreme Court? Are they going to hear this? Is there any movement around? Are the justices around? What can you tell us?

BOB FRANKEN, CNN CORRESPONDENT: Well, the answer to your question -- last question, no, oh, they're not around, but they don't need to be around, thanks to the wonderful world of fax machines and telephones. All the briefs, presumably, have been sent to them. And the question really is, A, should the federal court system get into it? B, should the Supreme Court get into it very quickly, or should they let the normal course of events take over?

That's the question that they're going to have to answer. And, of course, it really comes down to the same argument that they've been having now for the last several days, is this a federal matter, or is this a matter reserved to the states?

Both sides are citing constitutional arguments. One is the 14th Amendment argument that the Republicans put out, that is to say that the people of Florida, because some are getting hand recounts and some are not, are not getting equal protection under the law.

The Democrats are saying that Article 2 says that this should be a state matter. And the Republicans come back and say that because of the wording of Article 2 in the Constitution, that it should be a state legislature matter, that the courts in Florida should not have been involved.

So it's getting pretty, pretty tight as the arguments have flown back and forth, and now it's time for the Supreme Court justices to decide on whether they're going to get involved in this.

COSSACK: Mr. Gibson, yesterday we spoke about this, and you were of the opinion that perhaps the Supreme Court would take this case. Now, in light of the fact, in light of the fact, in light of the fact that perhaps -- that the -- now the Florida supreme court has spoken, I think there's even less of a reason for the United States Supreme Court...

VAN SUSTEREN: I think they might now, I think they might...

(CROSSTALK)

LARRY GIBSON, LAW PROFESSOR: I think you're confusing me with someone else, because in light of the fact that the Florida supreme court rested its opinion almost entirely on state law, trying to decide which of conflicting state statutes would be applicable, and stayed away from the constitutional issues, I think it's highly unlikely that the U.S. Supreme Court.

I think that the Florida supreme court will get the case back, and you can see that in the order which they issued yesterday...

VAN SUSTEREN: And, and they know which...

COSSACK: And yesterday, you and I were the only two that...

VAN SUSTEREN: Well, I...

COSSACK: ... that thought that perhaps they weren't. Have you changed your opinion on me?

VAN SUSTEREN: Well, I have. I may have. But I just want to remind our viewers, and I hate to sound like I'm stalking C. Boyden Gray, but this is a third announcement, but he is on his way to our location. C. Boyden Gray said we'd get the ris -- Republican response.

But let me go to Governor Cuomo. Governor, I originally thought that the Supreme Court wouldn't get involved in any of this. I read the pleadings, and now I am wondering whether they might, because the Republicans invoke the fact that the, you know, that there are some constitutional issues. What is your read on this? You think the Supreme Court's going to get involved in this, or leave it alone?

CUOMO: Well, number one, a guess, and only a guess, (inaudible)...

VAN SUSTEREN: That's all we do on this issue.

CUOMO: Right. They're not going to get involved. Now, this is not an exhaustion of remedy situation, but the process isn't even complete at the state level. It's a long way from complete, as we know. We don't know what's going to happen in the protest after it. Many of these same questions will be part of that proceeding.

And so at this stage, certainly, apart from the jurisdictional question, I don't see this as the kind of question that the federal court would get involved in.

VAN SUSTEREN: All right...

CUOMO: Incidentally, I hope nobody starts talking about Rehnquist is a Republican, Thomas and Scalia will kill us. I hope the Republicans don't start that game with the Supreme Court of the United States, as they're playing it down below. I think their tactics have been cheap and des -- not destructive, but damaging to our system. And I shudder at the thought that they'll start talking...

VAN SUSTEREN: Well...

CUOMO: ... about the Supreme Court that way.

VAN SUSTEREN: ... as a plug for the Florida supreme court, they've given one to Bush and one to Gore, although that's not the way they look at issues anyway, so it's hard to really read into that, and I agree with you, governor, that we shouldn't get into the political aspect of attacking the bench.

But we are now, fortunately, we're joined on the telephone by C. Boyden Gray.

Boyden, do you think the Supreme Court -- first of all, do you think that it's proper for the Supreme Court, because they have jurisdictions, is this the type of issue that it will hear, the Bush petition?

C. BOYDEN GRAY, FORMER BUSH WHITE HOUSE COUNSEL: Well, I assume we haven't heard, is that the...

VAN SUSTEREN: They have not, they -- the Supreme Court has not said it's going to accept the Bush case in the Supreme Court. They have filed their petition. But first they've got to get past this threshold that this is a case that's within the purview of discretion of the Supreme Court or jurisdiction here.

Do you think...

GRAY: I think it...

VAN SUSTEREN: ... that the Bush campaign...

GRAY: ... I think it -- I think...

VAN SUSTEREN: ... has met the threshold?

GRAY: ... I think it -- I think at some point, but I don't think it's right now. And I can understand the need to file now to protect yourself. But I would doubt that the Supreme Court would take it right now. I think it would be right, much more right later. COSSACK: Boyden, I would like to get your feelings on an issue we spoke about earlier, the notion of the Gore campaign announcing they're going to contest the election. Do you think they will be successful, and if not, why not?

GRAY: I think the -- they will not be successful. The burden is pretty heavy. What Dade County did was perfectly consistent with the Florida supreme court, and the Florida supreme court refused to -- or declined to reopen the matter. And so I think it -- that's where it ends. I do not see what constitutional issues the -- the -- Gore campaign can raise to upset what's already happened in the Florida supreme court.

Now, the Florida supreme court (inaudible)...

COSSACK: Boyden, I -- Boyden, I'm more concerned with the notion of the Gore people filing a contest, or contesting the election in front of the circuit court and then perhaps the Florida supreme court on the issue that both -- legal ba -- legal votes were not counted because Miami-Dade refused to finish counting.

Your opinion as to whether or not that legal suit will be effective?

GRAY: I think it will not be effective, and I was trying to explain that unless they have a Florida constitutional issue they can raise that will resolve the matter very, very quickly, which I don't think they have, they are into a factual dispute, where discretion is involved, and that's a very heavy burden, and I do not see how they can do that, certainly not in time to meet the set -- the December 12 deadline.

COSSACK: All right, let's take a break. We're going to have more on the legal developments in the race for the White House after this short break. Stay with us.

(COMMERCIAL BREAK)

COSSACK: All right, we're back talking about the election, and we're back now with C. Boyden Gray.

Boyden, I want to recite something to you from Florida statute 102.168-3C. Please stay with me. It says that you can contest an election when you believe there's been a rejection of a number of legal votes sufficient to change or place in doubt the results of the election.

Now, in light of the fact that Miami-Dade refused to finish counting, and in light of the fact that those votes therefore will never be included, isn't this the kind of thing that would give grounds and standing to Vice President Gore to go ahead and challenge?

GRAY: Well, the reason why I believe it would not is because their problem is, is that they can't do it within the deadline set by the court. And the court set the deadline in response to the state constitution. And so their not being able to make the deadline means that they simply can't meet the court's...

VAN SUSTEREN: Here's -- here's the...

GRAY: ... (inaudible)...

VAN SUSTEREN: ... the problem, Boyden...

GRAY: ... (inaudible).

VAN SUSTEREN: Boyden, let me read you another section. I hate to keep hitting you with these sections of the code, which Roger and I both read. But it also says, "The circuit judge to whom the contest is presented may fashion such orders as he or she deems necessary to ensure that each allegation and complaint is investigated, examined, or checked."

The way I read that is that the circuit court judge could order, you know, half the county to come in and take a look at these ballots to get it done by December 12. So isn't it possible that these ballots could be examined in a contest proceeding by December 12?

GRAY: Well, it's possible that they could do, you know, half the county or something like that, but the fact of the matter is, they'd miss the certification deadline set by the supreme court, and I do not see now how they...

VAN SUSTEREN: Gov...

GRAY: ... could go back and reopen...

COSSACK: Let's give Governor...

VAN SUSTEREN: Governor...

GRAY: ... (inaudible)...

COSSACK: Let's give Governor Cuomo a chance...

GRAY: ... (inaudible)...

COSSACK: ... to respond.

GRAY: ... (inaudible).

COSSACK: Governor, he says they missed the deadline. Is that true?

CUOMO: With all due respect, the facts here, I think, just scream out for relief. The facts are that the supreme court said, the supreme court of Florida, said, You ought to go ahead with that mandatory recount, and we have allowed time so that we make the December 12 date, and we allowed for protests intervening.

And the -- they started, they were intimidated, they were obviously intimidated. But whatever the reason, they then arbitrarily respond that we're going to frustrate the supreme court order by not counting.

VAN SUSTEREN: But here's the...

CUOMO: Incidentally, incidentally...

VAN SUSTEREN: Here's the...

CUOMO: ... we've already found over 150 votes just with our abortive effort, so we know there are votes there that would change. But that notwithstanding, we're going to frustrate the previous order of the supreme court by simply ignoring it.

VAN SUSTEREN: But here's the problem is...

CUOMO: That's....

VAN SUSTEREN: ... in the mandamus action in which the Democrats sought to have an order from the Florida supreme court, they upheld the intermediary court, which said that they had the obligation to do the recount, but they say it's impossible, so we won't issue the order...

COSSACK: Yes, I don't know about mandatory...

VAN SUSTEREN: ... which is why I think...

COSSACK: ... I don't know about the word "mandatory"...

VAN SUSTEREN: ... which -- which -- but...

COSSACK: ... governor.

VAN SUSTEREN: ... which, which is why I think it's going to have to go to a contest, and, and have certification, a contest, and a circuit court judge order a revote if it's going to happen.

But I get the last word, because that's all the time we have today.

Thanks to our guests, and thanks for watching.

Today on "TALKBACK LIVE," the presidential election and its aftermath. How long can this go on? Send your e-mail to our colleague, Bobbie Battista, and tune in at 3:00 p.m. Eastern time.

COSSACK: And CNN will continue to follow this weekend's legal developments surrounding the presidential election.

And we'll be back Monday with another edition of BURDEN OF PROOF. We'll see you then.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com

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