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Burden of Proof

Election 2000: Ballots on the Road to Tallahassee

Aired November 30, 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, CO-HOST: Today on BURDEN OF PROOF: The ballots are on their way to Tallahassee. The vice president wants contested ballots counted immediately.

(BEGIN VIDEO CLIP)

DAVID BOIES, GORE CAMPAIGN ATTORNEY: We've now brought a contest action, which focuses on the contested ballots. One of the things that we are doing, is we're getting close to the end and we're trying to focus on those issues that we think can be resolved easily and quickly because we're going to run out of time.

BEN GINSBERG, BUSH CAMPAIGN ATTORNEY: Let's not forget that the reason we're in this time bind now is of the Gore forces' own making. They chose to hold up the certification by the normal state processes on November the 17th. That's what's led to the truncated time process.

(END VIDEO CLIP)

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

COSSACK: Hello and welcome to BURDEN OF PROOF. This morning in Tallahassee the Gore legal team filed a 50-page brief with the Supreme Court of Florida. The vice president wants the court to order Leon County circuit Judge N. Sanders Sauls to count nearly 14,000 contested ballots from Palm Beach and Miami-Dade Counties immediately.

GRETA VAN SUSTEREN, CO-HOST: More than a million ballots will be in Tallahassee within the next 28 hours; 462,000 from Palm Beach are already en route to the state capitol encased in 162 metal cases aboard a Ryder truck; the van is expected to arrive this afternoon. And authorities in Miami-Dade said they'll transfer ballots tomorrow. Judge Sauls has not ruled if any of the ballots will be counted. He's scheduled to rule on that this Saturday.

(BEGIN VIDEO CLIP)

BOIES: They've brought in a million ballots that nobody is contesting. We think they've done that simply to try to delay matters and to prevent the court from counting the ballots that are at issue.

GINSBERG: This is an attempt to try and jury-rig a solution by press conference and, I'm afraid, to put pressure on the justices of the Florida Supreme Court to do something for which there is no basis in law right now.

(END VIDEO CLIP)

COSSACK: Joining us from Tallahassee, Florida is Republican Congressman Asa Hutchinson; also in Tallahassee, John Newton, attorney for Vice President Al Gore.

VAN SUSTEREN: And here in Washington, Barbara Zimmerman (ph), former supreme court clerk Viet Dinh and former supreme court clerk Sheryll Cashin. In our back row, Neal Glansy (ph), Juhie Veejay- Vargeeya (ph) and Christopher Bill (ph).

Congressman Hutchinson, let me go first to you. The hearing is on Saturday on the contest proceeding. In the meantime, the Gore people have gone to the Florida Supreme Court on something called a mandamus to order the judge to accelerate it, to count ballots. What is everybody doing today, Thursday and Friday -- why couldn't the hearing be today or tomorrow?

REP. ASA HUTCHINSON (R), ARKANSAS: Well, you have to have an orderly process in this proceeding, and the judge gave the Gore team virtually a hugely expedited calendar in which they will have the hearing on Saturday. And so, obviously the attorneys have to have time to prepare, to get their witnesses. The Bush team, under the law, would have 10 days to respond; that has been shortened and so, even though you're making it up as you go along, there's a certain amount of due process and regular procedure that should be followed. That hearing will be set for Saturday.

VAN SUSTEREN: Congressman Hutchinson, I always mention the fact that before you were in Congress you were a federal prosecutor.

Look, I mean, the lawyers know these arguments. We could all argue this standing on our heads at this time. I mean, to push it off to Saturday in some way seems -- you know, nothing's going to really change in terms of the preparation. Why not have the hearing on whether or not there is going to be the recount this afternoon?

HUTCHINSON: Well, because it's not a legal question, it is a factual question, first of all. And so you have to have an evidentiary trial. It's not a matter of lawyers standing up and making arguments, it's a matter of presenting evidence to make a case, and the case has not been established that there should be a recount, that there was any abuse of discretion by the Miami-Dade election canvassing board.

And that is the first finding that has to be made, and you can't make that based upon legal argument. It has to be based upon facts and evidence, and you have to have a trial to accomplish that.

COSSACK: Congressman Hutchinson, I agree with you that it's fact-oriented, particularly at this stage, but I think that the Republicans have to answer to the criticism of, every day that goes by is like a year. Look, we all know it has to be done by December 12, and even though a trial has to begin, why couldn't the trial part of it begin today or, at the very latest, tomorrow morning? You know what lawyers can do when they really get down to it and have to burn that midnight oil. They can get very prepared in a hurry.

HUTCHINSON: Well, the Gore team has presented a list of witnesses that includes expert witnesses, that include fact witnesses and, obviously, if you are going to be bringing in those expert witnesses, the other side has an opportunity to do the same thing.

And so the Gore team and the Florida Supreme Court really set the rules on the timetables and pushed the time back for the election contest; and so we're having to abide, now, by a shortened election contest period because Gore and the Florida Supreme Court changed the rules after the game. This is one of the things that results from that.

VAN SUSTEREN: All right, well let's turn the corner. Let's go to that other side that you're talking about to John Newton, who is part of the Gore legal team.

John, the congressman says you that you have a lot of witnesses, this is a fact-driven issue, you need a hearing -- it's not just a matter of the lawyers arguing. What witnesses do you have that's going to, apparently, complicate or extend it on Saturday?

JOHN NEWTON, ATTORNEY FOR VICE PRESIDENT AL GORE: Well, Greta, the answer is none. The congressman is wrong.

There are three things he said that are incorrect. And I think we have to address those first before you go into the hearing. The first thing is is that an evidentiary hearing is required -- it is not. That is one reason we were comfortable going to the Florida Supreme Court. I think the best thing to do is analogize this case to the construction of a contract. I know you and the congressman are both skilled lawyers, and many of the people watching will know that a court determines a contract. In fact, the law is that even on appeal, the appellate court determines what the words of a contract mean unless a lot of exceptions are met that would invoke the parole evidence rule.

That's all we're talking about is looking at a piece of paper and applying legal standards to it.

VAN SUSTEREN: But do you have actual witnesses you intend to call on Saturday -- and if so, who are they?

NEWTON: OK, we -- if we are required to have an evidentiary hearing, that we do not think is necessary, we do have witnesses. I apologize, I am not intimately involved in that trial preparation right now, I've been busy writing a brief. I know they include the inventor of the Vote-o-Matic machine and some expert witnesses who can analyze the statistics and point out the discrepancies between ballots which no one voted for president in Palm Beach. COSSACK: John, how can you take this case to the Supreme Court or any other court without putting on witnesses? I mean, you clearly have the burden to demonstrate that, first of all, there was something wrong with the election and, second of all, that if you had asked and got the remedy that you asked for that it would change the results of the election.

How are you going to do that without putting on evidence?

NEWTON: Well, see, that's not correct. We have the burden of showing legal ballots were rejected; and our argument is legal ballots were rejected because a machine did not read them. We argue that Florida law, statutory and case law says that you double check the machine's ballot by having a human being look at the ballots. That's how we go to the Supreme Court, is it's a question of what the legal standards are and what you're supposed to do with them.

VAN SUSTEREN: All right, well let's let Congressman Hutchinson respond.

Congressman Hutchinson, you wanted to respond to John?

HUTCHINSON: Well, I mean, John indicated that I was wrong in my facts, but the fact is that the Gore team has submitted a witness list. If they don't intend to call witnesses, why did they submit a witness list?

Obviously this is a trial that they requested. It's an election contest, witnesses are going to have to be called, it's not going to last just on Saturday, but will very well continue on beyond that. You can't make legal procedures up as you go along. You have to actually have a reason to -- for the judge to tell the Miami-Dade canvassing board, you've got to reverse what you did. It has to be an abuse of discretion; it takes facts to do that -- you just can't call a news conference and ask the judge to reverse what has already happened under Florida law. And so I think that, clearly, they are calling witnesses in this case.

VAN SUSTEREN: And gentlemen, Roger and I both look forward to working Saturday and covering the hearing that you both have generated; and we'll get the facts determined once and for all.

But Asa Hutchinson, John Newton, thank you for joining us today from Tallahassee.

Before we take a break, a side-bar on potential conflicts of interest in the legal battles surrounding the Florida vote. Eugene Scalia, the 37-year-old son of Supreme Court Justice Antonin Scalia, works at a firm representing Governor George W. Bush. The American Bar Association guidelines cite family relationships as a possible, not a mandatory, reason for a judge's recusal. The younger Scalia says he's, quote, "doing absolutely nothing on this case."

COSSACK: And yesterday lawyers for the Bush campaign filed a motion to have a judge dismissed in the Seminole County absentee ballot application case. The Bush motion cites that Leon County Circuit Court Judge Nikki Ann Clark was passed over by Governor Jeb Bush for an open appellate court seat, and she might not be fair. I think that's a stretch. Clark denied that motion.

VAN SUSTEREN: And we'll be back -- we're not disqualifying ourselves -- we'll be back with more on the contest and other legal battles in Florida. Stay tuned.

(BEGIN LEGAL BRIEF)

In Florida Supreme Court, members of the public are allowed to bring in cameras to take snapshots of the court in action. The only stipulation is that flash photography is not permitted. Cameras are not permitted in the United States Supreme Court.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

VAN SUSTEREN: More than 460,000 ballots are making a 400-mile journey from Palm Beach County to Tallahassee, Florida. The ballot caravan is expected in the state capitol late this afternoon. Ballots from Miami-Dade County are also ear-marked for a Leon County courtroom; they'll be sent tomorrow. In addition, a hearing is set for next week in the case of 15,000 absentee ballot applications in Seminole County; and a joint committee of the Florida legislature has recommended a special session on the issue of Florida's 25 electors.

Joining us from Tallahassee is CNN election law analyst David Cardwell.

David, I'm not going to ask you on all those cases, but I want to focus on this weekend. The Republican side of this dispute says that an evidentiary hearing is necessary and it's going to take a long time. The Democrat says, no, it's a legal argument.

Which is it? Sort it out for us.

DAVID CARDWELL, CNN ELECTION LAW ANALYST: Well, the hearing on Saturday is intended to be for arguments on questions of law as well as questions of fact, and it is going to also be an evidentiary hearing.

It's interesting that, in the filing that the Gore campaign made with the Florida Supreme Court this morning, which John Newton mentioned in the earlier segment, they say that their witness is not any individual, but their witness for this case are the ballots, and that's why they're focusing so much on trying to get these ballots counted. But they have indicated that they do intend to call witnesses at the hearing on Saturday that would include experts in the Vote-o-Matic vote system, as well as statisticians that are going to do a statistical analysis of the votes in Palm Beach County, Broward County and Dade County.

COSSACK: Now, that's going to be the witnesses for the Democrats. Have the Republicans filed a witness list? Are they planning on putting on their own expert witnesses? CARDWELL: I haven't seen their witness list. They indicated in court that they didn't think that there was a need for any evidence to be presented because they don't believe that the Gore campaign has yet shown, as a matter of law, that they are entitled to the relief they're asking for, which is the counting of the ballots.

There's a dispute here as to whether the counting of the ballots is something that must begin immediately, before the court rules on questions of law, and if they're entitled to any relief -- or should it wait until after the court has its hearing on Saturday.

COSSACK: David, what's the burden of proof that the Democrats must show to the judge to get the relief they want? How stringent is the burden of proof? What kind of mountain or hill do they have to get over?

CARDWELL: Well, the threshold they've got to make, and they did it in their pleadings, is that there's a number of votes in question that would change the outcome of the election. Now, they did jump to some assumptions, or extrapolate from votes that were counted during the manual recounts. The issue that they've got to prove to the court is that there are enough votes at issue to get to counting those ballots that they could show that the results of the election would have been different. It is a heavy burden.

VAN SUSTEREN: David, the Gore people filed what's called a mandamus to the Florida Supreme Court, telling this judge, who's going to hold a hearing on Saturday, that he's dead wrong and that he better accelerate it. Very risky; sometimes you insult the judge by running off and tattling on him to the Florida Supreme Court.

Smart move, or dumb move?

CARDWELL: It's a gamble. They want to accelerate the schedule. They asked for either the Florida Supreme Court to take over the case -- in essence, pull it up from the circuit court and have the Supreme Court itself oversee the counting or direct Judge Sauls into how he should immediately proceed with the counting of the ballots and the standard that he should follow. So they're sort of trying to supersede the hearing on Saturday and have the Supreme Court direct how this count would be done. It is risky.

VAN SUSTEREN: And, Roger, it's sort of like what lawyers oftentimes say, if you're going to shoot the king, you better kill him.

COSSACK: Yes, you better not miss.

David, in the sense of asking the Supreme Court to take this, what they're really trying to do is short-circuit this whole notion that they may have to put on evidence. They're just asking the assumption to be made by the Supreme Court that they've got a good case, that everything they're saying -- if you count the ballots, we'll win, you don't have to worry about anything else.

Where are you going to go with that? CARDWELL: That's correct; and that's, again, why I think it's a risky maneuver in the Supreme Court. The Supreme Court could go ahead and take this case if they think it's necessary for it to be consolidated within the Supreme Court and oversee the count.

But you're right, they're going ahead and telling the court, we don't have to prove that we need the count to be done, that as a matter of law we're entitled for it to be done; and then when the count is done, you can then make such orders as you think are necessary.

COSSACK: All right, let's take a break.

Up next, a look at tomorrow's historic hearing before the United States Supreme court from lawyers who have clerked for some of these justices. We'll get the inside story. Stay with us.

(BEGIN Q&A)

Q: The Supreme Court has been edging into the electronic age this year with the opening of its web site and its decision to release audio tapes of the oral arguments in Friday's election case on the same day.

But, sticking with tradition, what souvenir does the court still hand out to lawyers?

A: Quilt pens.

(END Q&A)

(COMMERCIAL BREAK)

COSSACK: It's role-reversal day at the U.S. Supreme Court tomorrow. Contrary to common political positions, lawyers for Republicans will be asking the federal government to become involved in the Florida election, and Democratic lawyers will argue on behalf of state's rights.

Viet, that is an unusual position. Now, this may mean that some of the more vehement -- or more vocal states' rights judges are going to find themselves in a position of perhaps not wanting to stand up for states' rights. Is this going to be an argument within the Supreme Court that is going to be heated and discussed?

VIET DINH, LAW PROFESSOR: Well, it is a battle of characterization. It is judicial activism versus judicial restraint. The Bush camp would argue that it is an intrusion into the legislative process by the Florida court. That is a traditionally judicial restraint.

COSSACK: Who is going to be responsive to that on the court? Who is going to buy into that?

DINH: I think the exact same slate of justices who are traditionally the states' rights believers. Now the Larry Tribe, the Gore lawyer, will also be arguing for the exact same slate, saying, hey, this is not about judicial restraint versus judicial activism, but it is about states' rights, and you justices will be judicially activists if you intrude into that area of states' right.

VAN SUSTEREN: Sheryll, isn't that even a little more than states' rights, in terms of it is also about whether or not a court is interpreting conflicting laws?

SHERYLL CASHIN, FORMER SUPREME COURT CLERK: Yes, I mean, this is just a garden variety interpretation of a statute by a state supreme court. I am going to go out on a limb and actually say that I would not be surprised if the Supreme Court affirms what this lower court did and does it by either a wide majority, if not unanimous. There is no magic line between interpreting a statute and creating law. And what the Florida Supreme Court...

COSSACK: Let me interrupt you a second, Sheryll, just for a second, what our viewers are seeing now is Vice President Al Gore and Senator Joseph Lieberman walking from the Old Executive Office Building on their way over to the White House for presumably some meetings.

It is a beautiful day here in Washington, but cold. Let's go back to our show.

VAN SUSTEREN: Sheryll, let me ask you another sort of question, I mean, besides the law that is going to be argued tomorrow, How exciting is it for the law clerks? I mean, this is a big case? I mean, do the law clerks feel this is different from the other cases?

CASHIN: I suspect they would, I haven't talked to any of them. But yes, it is very exciting, it is a momentous case that has the potential to, I don't know impact the outcome of the election now, but certainly it has the potential to legitimate the idea of courts having a role in resolving election disputes, and the idea -- legitimating the idea that all votes should be counted. It cannot get more momentous than this.

COSSACK: All right, Viet, take you back to your clerk days. This is an expedited hearing, obviously the whole country is watching, the judges are setting this thing up on the fast track. They are going to want an opinion by next week, clearly. What does this mean for the clerks?

DINH: A lot of hard work, but the clerks are obviously known for hard work, and the court is known for expedited and very high pressure work. Every single death penalty comes up before the Supreme Court in the wee hours of the night, and the clerks stay there, and the justices stay up in order to make a quick decision on these cases.

You know, the presidency hangs in the balance here. But in those other case, a man's life hangs in the balance, the same kind of momentous issues are at stake, and the court is very familiar with this.

VAN SUSTEREN: Sheryll, you clerked for one of my favorite justices, Justice Thurgood Marshall, do you wish you were a clerk for this case tomorrow?

CASHIN: Actually, no, I would not trade my year with Justice Marshall for anything in the world.

VAN SUSTEREN: We will give you another year, would it be fun to be working on this one?

CASHIN: Yeah, it would be fun, but it also would be tremendously sobering. I mean, think about it, this could determine the outcome of the election, it also -- the court has to decide whether or not it should even expend its political capital to intervene. I mean, things have grant since they granted cert.

VAN SUSTEREN: And of course we will all be listening, not watching, no cameras, we will have audio. But that's all the time we have for today. Thanks to our guests, and thank you for watching.

Tune-in to "TALKBACK LIVE" for the latest developments from Tallahassee and Washington in the Florida election. Send your e-mail to Bobbie Battista and tune-in at 3:00 p.m. Eastern time.

And tonight at 8:30, I'll be live from the U.S. Supreme Court with the latest developments. Also, I'll talk to Dick Wolf, the creator of "Law and Order," about the blurry line between fact and fiction. Is the election story a made-for-T.V. drama?

Don't forget, 9:00, my co-host will be guest hosting "LARRY KING LIVE," and make sure you watch that one.

COSSACK: Tomorrow both of us are going to be reporting from the U.S. Supreme Court -- I think we are going to be sleeping there tonight -- on a historic day of legal arguments before the nation's highest court. And join us for another edition of BURDEN OF PROOF tomorrow. We'll see you then.

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