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Election 2000: Florida Supreme Court Considers Future Action in Light of U.S. Supreme Court RulingAired December 4, 2000 - 2:33 p.m. ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
LOU WATERS, CNN ANCHOR: The United States Supreme Court sent the presidential election case it got back to the Florida Supreme Court today. The justices say they're unclear about several points in the Florida court ruling, which extended that deadline for hand counting ballots. The Florida court is expected to review the order today and decide what to do.
A Florida judge is expected to announce today whether he will order hand recounts in a pair of south Florida counties. Judge N. Sanders Sauls' decision would come after a weekend of testimony in the contest action brought by the Gore campaign. Whichever way Judge Sauls rules, the losing side is expected to appeal immediately to the Florida Supreme Court.
NATALIE ALLEN, CNN ANCHOR: Well, let's bring in CNN legal analyst Greta Van Susteren in Washington, who's had a little bit of time to think this over.
Hi there, Greta.
GRETA VAN SUSTEREN, CNN LEGAL ANALYST: Hello, Natalie.
ALLEN: Do you consider this action or inaction by the United States Supreme Court a draw?
VAN SUSTEREN: Well, in many way it is a draw; but here's what's going to happen, though: It's going to go back to the Florida Supreme Court and the Florida Supreme Court then has to sort of rework its decision, send it back to the United States Supreme Court.
Believe me, the Florida Supreme Court isn't looking to get reversed, and they got lots of hints in today's decision from the United States Supreme Court how to rewrite their decision so next time it goes back up -- assuming that it does go back up -- that it will not be reversed. So they got a lot of tips from the United States Supreme Court how to write this.
But, you know, it's sort of an interesting proceeding. I mean, there's a lot of glamour with the United States Supreme Court -- it's, you know, the highest court of the land. But remember, this had to do with the protest phase of this legal mess that we have, and we're now in the contest phase. So in many ways, while this is fascinating and riveting and exciting, that it may not be wholly related to what's going on in Leon County, which may be where we really should have all our attention this afternoon.
Will there be a hand count in those counties that Vice President Al Gore has asked for or not? And so it's very important what happens this afternoon in Leon County, although the United States Supreme Court certainly is a fascinating study.
ALLEN: It all is to us, and we're so glad you understand it all. So you agree with David Boies, who says what happened with the U.S. Supreme Court and, indeed, what may happen now as the state Supreme Court responds will no affect on the contest phase?
VAN SUSTEREN: It certainly -- there's, sort of, hanging in the balance is about 550, give or take a few votes, out of Broward County. Now, those votes were added to the count, remember, November 14 is when the secretary of state in Florida wanted to certify the election in Florida; but, instead, the court said she had to wait until November 26.
Well, in that time there are about 550, give or take a few ballots, from Broward County that were added to the Gore category. So that may, sort of, be in the balance. But, you know, there a lot -- the Gore people think that they can make up for lost footing, so to speak, if they get the hand count this afternoon. They don't know that they're going to get that, but if they get the hand count they think they can get those votes. Of course, they'd like to keep those votes.
But, you know, Natalie, there's another case that's intriguing to watch, and that's tomorrow afternoon out of Seminole County; and that has to do with whether or not absentee ballots -- about 15,000 of them will be thrown out. There is an allegation -- I underline "allegation" -- that there was improper conduct having to do with those ballots. And if those ballots do get thrown out because they violate the law -- if, indeed, the judge finds that, then there will be some more votes in the Gore category.
So we simply don't know where this is going, other than that we've got these dueling courts and we're keeping all the lawyers and legal analysts very busy.
ALLEN: And we know that when N. Sanders Sauls speaks that that decision will likely be appealed. Do we look for the same to happen in Seminole County as well?
VAN SUSTEREN: Not only do we look for it, but I would bet my right arm -- I've even had conversations with people -- those briefs on both sides are being written out, they're ready to go. Both sides, in any event -- and both sides are predicting a win. The Bush people expect to win, the Gore people expect to win, but they also know it's possible they could lose.
Those briefs will be in so fast our heads will be spinning. So whoever loses this afternoon, assuming Judge Sanders Sauls issues his decision today -- he may, perhaps, you know -- it's possible he could delay it, waiting to digest in the Supreme Court, see if it has any impact. But as soon as that decision comes down, the losing party is going to bolt to the Florida Supreme Court and the case will be filed, and it will be up in the Florida Supreme Court.
ALLEN: We'll see lawyers literally running behind Mark Potter there in Tallahassee.
One more questions for you, Greta. I want to get your take on the how the hearing this weekend in Judge Sauls' court wrapped up. Lou was saying earlier to David Cardwell, you hear David Boies and, boy, that makes sense; and then Mr. Richards stands up for the Bush team and he comes right back at them.
What was your assessment once they did their final arguments?
VAN SUSTEREN: You know, that's why we pay the judge the big bucks and we give him the honor of calling them "your honor": because they have the tough decision. I mean, they've got to listen to all the evidence and make the decision. And, unfortunately, it's one person making a very tough decision.
You know, I thought that, you know -- I agree in many ways with David Cardwell. You listen to one side, you're convinced of that side; then you listen to the other and you're convinced of the other.
What I thought was particularly, though, you know, a stroke of good fortune or good lawyering or whatever -- was on behalf of the Gore team. The Bush team put on an expert having to go with Vote-o- Matic machine and he, basically, was put on as a Bush witness to say that these machines are really good at counting ballots. But then what happened is the Gore team surprised him with a patent application that he submitted subsequently to designing this particular machine in which he was critical about the quality or the ability to count -- that the machine that was the subject of this dispute may have some problems with it.
So it was sort of a, quote, "Perry Mason" moment, and certainly may raise questions in the judge's mind about whether these machines really are as good as the Bush people would like the judge to believe.
But, having said that -- you know, who knows how this judge will rule. At this point, it's a jump ball and I can't tell you how the judge is going to rule.
ALLEN: All right, we'll wait and just hear what the judge says this afternoon. Greta, thanks -- Now here's Lou.
L. WATERS: And if you've been waiting for James Baker, he's been delayed, so we're now on his time schedule. We'll join him when he decides to step before the microphones in Tallahassee -- we expect momentarily.
In the meantime, let's get on to the next bit of business in this election resolution business, and that is a decision by the Republican-dominated Florida legislature, who still may decided to call a special session and elect Florida's electors. Here's Mike Boettcher, now, from Tallahassee, who's covering us on this story.
Mike, what's new on this?
MIKE BOETTCHER, CNN CORRESPONDENT: Well, Lou, the legislature -- the Republican side of the aisle, believes this decision affirms their no-hurry strategy, in which they decided to hold back and see what the Supreme Court does, see what comes out of other courts before they decide to go into a special session.
The other thing they're looking at now is what Judge Sauls does in the circuit court. They're going to wait for that this afternoon as well. Do not look for a decision from the legislature today. Now, they do believe, though, that they will have a special session and that this Supreme Court decision today does give them political air cover -- that it makes it less risky for them, that they're not out there on limb all alone if they go out and have a special session and reaffirm their slate of legislators.
On the Democrat side of the aisle, new members met today in a caucus. Over half of the new members are freshmen. And can you imagine coming in here, your first bit of legislation is a selection of electors, something that has never been done in modern times. Well, today, those Democrat legislators heard from the constitutional experts who argued, and said they argue that no special session is needed, that the governor of Florida, Jeb Bush, has already sent a slate of electors on to Washington to the Electoral College, so that there is no concern.
There should be no doubt right now. But the Republican side of the legislature is going to press on, Lou. But it will happen later this week. Don't look for a decision today. There is still in that no-rush strategy -- Lou.
L. WATERS: And, Mike, I see you in front of that podium where Craig Waters is supposed to step out and make some sort of statement on behalf of Florida Supreme court. Do you have any idea what that is about?
BOETTCHER: Well, to find out how the court is going to react to this themselves, they would have to react to what the Supreme Court did. And what you are going to have is an intersection of these cases again flowing this direction: back from Washington. And whatever decision Judge Sauls is going to come through here. It's likely those two would be consolidated.
But first, I think -- according to legal experts here -- that they will probably wait to see what Judge Sauls does before they react to the U.S. Supreme Court decision. And later today, at some point, they will come out and do that. And Craig Waters, hopefully, won't have to miss his Aunt Ethel for Christmas like he did for Thanksgiving.
L. WATERS: OK, Mike. And please keep it all straight for us, if you would -- Mike Boettcher down there in Tallahassee.
The lame-duck Congress is back in town and weighing in on today's U.S. Supreme Court decision.
Here is CNN congressional correspondent Chris Black with more about that from Capitol Hill -- Chris.
CHRIS BLACK, CNN CORRESPONDENT: Hello, Lou.
Congressional reaction to this U.S. Supreme Court decision seems to be breaking along fairly predictable partisan lines. Republicans, not surprisingly, are calling this a big win for George W. Bush. J.C. Watts, the chairman of House Republican Conference called on Al Gore to concede the race, saying, quote, "America needs to move forward, not be bogged down by the desperation of one man's obsession."
Democrats, not surprisingly are saying: Not so fast. They say that this ruling was not definitive and that the vice president should continue to pursue his legal option. And this, Lou, is the reaction we are getting from both Blue Dog Democrats -- though conservative Democrats in the House -- as well as more centrist Democrats. In fact, one centrist Democrat in the Senate, Bob Graham, the senator from Florida, said just earlier on CNN that both Gore and Bush should allow the process to play itself out.
I guess we are not getting sound from Bob Graham.
Meanwhile, the Gore campaign is concerned enough about its support on Capitol Hill that, later today, the Democratic vice presidential candidate Joe Lieberman will be holding two conference calls: the first with House Democrats, the second with Senate Democrats. And tomorrow, he will appear at both caucuses, in the House and Senate side, with Bill Daley, the chairman of Vice President Al Gore's campaign.
Not to be outdone, the Republicans are sending their vice presidential candidate, Dick Cheney, to Capitol Hill tomorrow to addresses the closed-door conferences on both the House and the Senate side -- Lou.
L. WATERS: And, Chris, how would you characterize the Democratic support for Vice President Gore's legal battle here? Early on, we had heard that maybe there had been some wavering. And then there wasn't any wavering. And it's been going on for a while now. How does it stack up now?
BLACK: So far, Lou, by and large, Democrats are standing by their man. The members who feel the most pressure, however, are conservative Democrats, Democrats from the South, Democrats from areas that went heavily for George W. Bush. But so far, the ones would we have been able to reach so far today are sticking by Al Gore and saying that this Supreme Court decision has not changed their minds.
L. WATERS: And what will be the process for planning the new Congress, with a 50/50 Senate, for instance? BLACK: Well, every -- they're buzzing about that up here, Lou. Nobody really knows for sure. It will be a 50/50 Senate, as you said. In fact, tomorrow, the new Democratic senators and Republican senators -- all 11 of them -- will be here for their orientation. They are talking a lot about power-sharing. Nobody exactly knows what that means. But one thing that is clear: If George Bush is president, the tie-breaker of that 50/50 will be Dick Cheney, the vice president.
L. WATERS: All right, Chris Black, up on Capitol Hill. We have Craig Waters now down at the Florida Supreme Court.
CRAIG WATERS, SPOKESMAN, FLORIDA SUPREME COURT: Shortly before noon today, the clerk's office here at the Florida Supreme Court received confirmation that the United States Supreme Court had reversed one of this court's opinions in the presidential election cases. The opinion of the U.S. Supreme Court has now been posted on our duplicate Web sites, for those of you who have not yet received copies.
The court now has the matter under advisement and will determine how it will proceed. I will let you all know when the court makes any further decisions regarding scheduling and similar matters.
I'll take a few questions from you, but I'd like to explain in advance, I cannot comment or explain the issues that were before the United States Supreme Court or the issues that are pending in any current case involving the presidential election. Those are questions that you should pose to the attorneys in the case or to legal experts, such as law professors.
QUESTION: In what fashion will the justices now proceed in their review of the Supreme Court decision?
C. WATERS: The question was how the justices will proceed. They will be meeting later today to make a determination as to that.
QUESTION: Do you know what time that will be?
C. WATERS: No, I don't know exactly what time that will be.
QUESTION: Is there a chance that they might not respond at all to the Supreme Court decision? Is that an option?
C. WATERS: The U.S. Supreme Court is the highest court in the land. We do not ignore what they tell us.
QUESTION: Do you know if they asked for more briefs or whether they'll hold hearings or whether they'll just issue a ruling on their own?
C. WATERS: No, at this point, we don't know whether there will be requests for more briefs, whether there will be an oral argument. We just don't know.
This is a very preliminary stage. As I said, we found out about this just before noon. And so I will let you know as soon as we have anything like a scheduling order or something that will give you some indication of how we will proceed.
QUESTION: Can the justices ask for clarification from the U.S. Supreme Court? Are they waiting for more word?
C. WATERS: I have never heard of a state Supreme Court asking the U.S. Supreme Court for clarification of its opinions.
QUESTION: Do you know anything about deliberations or any sort of talk between the seven...
C. WATERS: I've been fielding many calls from the press, so I don't really know how many of the justices are in here at the present time. You can be assured though that all seven will be participating.
QUESTION: Are they all in town, do we know?
C. WATERS: To my knowledge, they're all in town.
QUESTION: Has anybody asked that there be oral arguments?
C. WATERS: We have had no requests as of yet for oral arguments in this case.
QUESTION: How was it that the court was informed about the decision, to begin with?
C. WATERS: We initially heard some news accounts. Our clerk's office then called the U.S. Supreme Court and received confirmation and also received a copy of the order itself.
QUESTION: Can you explain in layman terms, "vacated," what that means? Explain it to the public, and what that means to the Supreme Court's ruling and can it be then reinstated or...
C. WATERS: Well, again, I think those are questions that you need to ask the attorneys or the law professors.
QUESTION: Has something like this ever happened before, where the Florida Supreme Court has made a ruling that was in part or in whole vacated by the U.S. Supreme Court?
C. WATERS: Yes. The court has issued opinions in the past that have been in whole or in part vacated. And we have received cases before where the Supreme Court remanded to us, or sent them back to us, with instructions about how to proceed.
QUESTION: Is there an example of one?
C. WATERS: Susan, I can't just recall any off the top of my head.
QUESTION: Do you have any timeframe for responding?
C. WATERS: We don't have a timeframe yet, but the court will be working on that.
QUESTION: (OFF-MIKE) where the justices feel compelled that they must respond to the ruling?
C. WATERS: They have been requested by the U.S. Supreme Court to respond, yes.
QUESTION: Some legal experts have suggested that they have an option to do nothing.
C. WATERS: Well, again, as to that, you need to ask the legal experts that. I'm not a legal expert. I can tell you whenever I try to guess even what my own court's going to do, I'm only right about 50 percent of the time.
QUESTION: What was the legal effect, Craig, of a vacated opinion? Does anything change operatively in Florida because the opinion has been vacated?
C. WATERS: Well, again, I would not know the answer to that question. You'd need to ask the attorneys or legal experts about that.
QUESTION: Craig, you've mentioned in the past how busy the schedule has been, and we've now got impending appeals, since both sides said if they lose Judge Sauls' decision that they will come here. Talk about the scheduling that the Supreme Court here now faces, and how quickly they could get to that case.
C. WATERS: Well, again, there are a lot of this. We don't know what Judge Sauls is going to rule. There could be any number of scenarios of things that could happen that would change the way that matter could come before us. And really, I don't think I can get into hypotheticals about guessing about what may or may not happen.
But as matters are brought to this court, the court will put up scheduling orders as necessary to deal with them, in as expeditiously a manner as possible.
QUESTION: Is the court going to juggle the presidential election cases and the execution cases?
C. WATERS: Well, as many of you know, there are two executions scheduled in Florida on December 7 and 8. These are also high- priority matters for the Supreme Court. The court will do whatever it needs to do to make sure that all of these mattes are fully addressed.
QUESTION: What is the Supreme Court -- how is it going to respond and in what timeframe?
C. WATERS: The court will meet sometime later today to determine how they will proceed. I will come out here later and either tell you that we have something to tell you or to tell you that nothing more is going to happen today, and you can go and file your stories.
QUESTION: Do expect that they'll decide within 24 hours?
C. WATERS: I just don't know. QUESTION: Do you know whether the justices will want to wait to hear what Judge Sauls has to say before they decide what to do with the Supreme Court matter?
C. WATERS: I just don't know the answer to that.
There's been some request for me to re-read the statement, so I'll go ahead and do that now.
Shortly before noon today, the clerk's office here at the Florida Supreme Court received confirmation that the United States Supreme Court had reversed one of the court's opinions in the presidential election case. The opinion of the U.S. Supreme Court has now been posted on our duplicate web sites, for those of you who do not have copies.
The court now has the matter under advisement and will determine how it will proceed. I will let you all know when the court makes further decisions regarding scheduling in similar matters.
Again, that's the basic statement. Any further questions?
L. WATERS: That's Craig Waters at the Florida Supreme Court. The reporters there are doing everything in their power to squeeze it out of him about what happens next, all he would tell us was that the matter is under advisement, that is the turning back of the Florida Supreme Court ruling by the U.S. Supreme Court. He said the seven justices of the Florida Supreme Court will be meeting later today to determine how they will proceed. He said, any further questions, ask your legal experts, so David Cardwell and Greta Van Susteren are here.
And, David, how will they proceed? What is the next bit of business here?
DAVID CARDWELL, CNN ELECTION LAW ANALYST: Well, I think one of the questions we could ask is, will the Florida Supreme Court go ahead and issue some sort of clarifying decision or opinion in response to the U.S. Supreme Court, and do that now or, will they wait to see what Judge Sauls does?
We know that that case is going to be appealed to the Florida Supreme Court and they could do their clarification and take up the election contest at the same time. It remains to be seen whether or not they want to go ahead and follow the U.S. Supreme Court, because I agree with Greta, I think the Supreme Court gave them a lot of hints, if not a road map as to what they need to do to get on the good side of the U.S. Supreme Court decision.
WATERS: And, Greta, what if any bearing would have -- would what Judge Sauls decides have on the Florida Supreme Court?
GRETA VAN SUSTEREN, CNN LEGAL ANALYST: Well, it should almost have nothing to do -- the two are almost disrelated, because remember, in the United States Supreme Court, the question was whether the Florida Supreme Court went too far when it extended the time to certify the race in Florida. The reason it was important at that time is because Vice President Al Gore was in a protest phase of this election dispute.
Now, that's all over. We are out of the protest phase. Whether the certification occurred one date or another date really shouldn't matter too much to Judge Sauls, because the question before him is in a contest phase, which is an entirely different phase than a protest phase.
The one caveat is this, and this may be the sleeper, and that's if the Florida Supreme Court was wrong in when it had the vote certified, when the secretary of state should certify, does that roll back the certification time and then does Vice President Al Gore's filing of his contest because -- become untimely, because you have a certain number of days after the certification to find -- to file a contest.
Now, I don't know if the Bush people would be such a stickler for time and details like that -- you know, they always talk about rule of law, but you know, it may come back to haunt them, because in Seminole County we have one of these technical aspects that relate to 15,000 votes that might help the Gore campaign. So they may not be too smart trying to sort of focus on these dates and these deadlines, because it may hurt them in another county if all of a sudden they say, look, we want to be really rigid about times and dates in one county where it helps us, but in another county, we want to be a little bit more relaxed about these things.
WATERS: So what you are saying is that the Gore campaign had a certain number of days in order to declare their contest based on the certification date, and since the Florida Supreme Court moved it up, that now, it -- that now they won't -- they can't proceed with the contest?
VAN SUSTEREN: Except for one thing though, the Florida Supreme Court can now rewrite its opinion based on the hint, the tip from the United States Supreme Court today and say, look, we changed -- we moved that date because we interpreted the Florida law as created by the legislature to say that we could do that. And so, then send it back to United States Supreme Court and the United States Supreme Court would say, a-ha, the Florida Supreme Court was paying attention to the legislature when its made its decision and under the Constitution, it's the legislature which sets the rules for elections, so it's fine.
What happened in the decision that's created this confusion is the Florida Supreme Court made some reference to the Florida Constitution, and what was troubling to the United States Supreme Court is that they were worried from which authority -- where does the Florida Supreme Court divine its authority to change or to amend these dates? If it's from the legislature, it's probably OK, because the Constitution says it's a legislative function. If they get it from the Florida Constitution, it's probably not OK, so they're giving Florida's Supreme Court another bite at the apple to write their opinion.
WATERS: All right, and, David, what is Judge Sauls, do you imagine, concentrating on this afternoon as he formulates his opinion here?
CARDWELL: Well, first of all, I would venture that he probably was watching Craig Waters from the Florida Supreme Court and trying to determine if there was some hint there that the Florida Supreme Court is prepared to do something immediately. I didn't sense that, and I think from Judge Sauls' standpoint, he now feels that he probably has a green light to go ahead and issue his opinion, and I wouldn't be surprised we won't see it in the near future.
We also need to watch to see whether any one on the Bush side, or if any of the interveners in the contest case file a motion to dismiss on the grounds that it was untimely filed. That was not raised in the U.S. Supreme Court opinion. They did vacate the Florida Supreme Court case, but they didn't address the contest, but someone may raise it to at least get it on the record and that would be something then that would also go back up to the Florida Supreme Court on the appeal.
WATERS: All right, more to watch, David Cardwell, Greta Van Susteren.
ALLEN: We have a big afternoon still ahead here, we still are waiting to hear from Judge Sauls and we'll hear from James Baker with the Bush campaign momentarily.
That will do it for now. Thanks for staying in there, and stay with us for more. I'm Natalie Allen.
WATERS: I'm Lou Waters.
"TALKBACK LIVE" is next.
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