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Larry King Live

Florida Supreme Court Grants Gore Campaign a Reprieve

Aired December 8, 2000 - 9:00 p.m. ET

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

(BEGIN VIDEO CLIP)

CRAIG WATERS, FLORIDA SUPREME COURT SPOKESMAN: The Circuit Court of the 2nd Judicial Circuit here in Tallahassee shall immediately begin a manual recount of the approximately 9,000 Miami-Dade ballots that registered undervotes.

(END VIDEO CLIP)

ROGER COSSACK, GUEST HOST: Judgment Day, and major decision from the Florida Supreme Court on day 31 gives Vice President Gore new life. Where does it all go from here?

Joining us from Tallahassee, David Boies, lead Gore attorney and then from Montana Governor Marc Racicot. He's close to Governor Bush. He'll joining us soon.

And here in Washington, Senate Judiciary Chairman Orrin Hatch and in New York tonight, Democratic Senator Bob Graham of Florida. Also in New York, that state's former governor, Mario Cuomo, and in D.C., Republican Senator Tim Hutchinson of Arkansas. Then, the man who knows all about the ballots from West Palm Beach Judge Charles Burton.

All that and much more tonight on LARRY KING LIVE.

Hi, I'm Roger Cossack sitting in for Larry King and joining me first, Senator Orrin Hatch.

Senator, have you seen anything like this?

SEN. ORRIN HATCH (R), UTAH: I really haven't. I've seen a lot of it. You know, in 24 years on Judiciary Committee, one of my lifelong goals, and I've tried every year, is to try to make sure that federal judiciary is fair, honest, that it's not an activist judiciary, that it doesn't -- it's not results oriented. It follows the law. It interprets the law not make -- they don't make the law, and this is a perfect example of the Supreme Court gone awry.

This court is an activist court that has decided on what it wants to do, regardless of the law, has done it and now has thrown us into what really could amount to a constitutional crisis that there's really no easy way out of. And ultimately, this could come to the Congress of the United States. If it does, unless the Supreme Court acts or the 11th Circuit Court of Appeals acts and either one of those courts could correct this judicial activism, unless they act and act promptly then this could wind up in Congress where -- just think about it. Whichever person is certified first and right now, George Bush is certified first.

If the court orders the governor to certify Al Gore first or Vice President Gore, then whoever is certified first is probably going to become president of the United States because what'll happen is there'll -- there'll be objections raised against Governor Bush by the Senate, and that...

(CROSSTALK)

COSSACK: It'll be a whole state of confusion.

HATCH: ... and the House will approve him and then the objections will be overruled by Al Gore who will elect himself, and that's just not going to be acceptable to people and vice versa.

COSSACK: All right, Senator Graham, Senator Hatch says that the Florida Supreme Court is an activist court and I think I can says he says that perhaps they had politics on their mind rather than law, your response?

SEN. ROBERT GRAHAM (D), FLORIDA: My response is that this is an excellent court. It's elected through a nonpartisan process. Orrin, it's the same process that Connie Mack and I have been using in selecting federal judges that you have so kindly approved through your Judiciary Committee. I think these are seven fine jurists, and, they have reached an opinion based on their closely-divided interpretation of the law.

COSSACK: But Senator Graham, how can they split? This is 4-3 opinion which may very well decide who the next president of the United States is, and yet they seem to be so far apart. The one -- the majority said that the standard that Judge Sauls used was wrong. The minority said, well, it wasn't -- at least two of minority said it wasn't wrong and one of the minority said that even if it was wrong, it was the right decision. How can that be?

GRAHAM: Well, it can -- you know, Roger, what lawyers do is they make their living looking at the law and trying to reconcile disparate positions and sometimes those positions are irreconcilable. And so, you end up with a court which divided 4-3, but that is the legal system that we have. And I think the questions that we are about to come down to is do we believe that this process should be one which is essentially a political process or one which is rule of law?

And if this next president, whoever it is, is going to have the legitimacy to be an effective president of the United States for our people and the world, it is critical that he be selected based on the rule of law.

GRAHAM: Senator Hatch, we've just heard what Senator Graham says, it has to be law and not politics, but I think what you said is that perhaps you suspect the Florida Supreme Court of playing a little politics?

HATCH: Well, I'm not even going to say that. I'm saying that they have ignored the Florida law. Now, look, Senator Graham and Senator Mack have worked very hard to get nonjudicial activists in the federal courts and they've been very successful in getting judges through the nomination of the Judiciary Committee and I've helped them because of good way they've worked, but this different.

Let me just not -- let me just not make Orrin Hatch statements here, even though I think I would do my best to be honorable and honest, let me quote the chief justice of this court. He said the majority's decision cannot quote, "withstand scrutiny under the United States Constitution," unquote. He said there is, quote. "no foundation in the law of Florida," unquote for the court's opinion. He said the standard that will be applied conducting hand recount is quote, "unknown or at best ambiguous," unquote.

He said the hand recount will be conducted by people who quote, "the credentials, qualifications, and objectivity of whom are totally unknown," unquote. And finally, the courts' opinion, he said, quote "propels this country into an unprecedented and unnecessary constitutional crisis," unquote.

Now, that chief justice is absolutely right. He paid attention to the Supreme Court remand to these people to don't make this -- they were very gentle with the Florida Supreme Court. Rather than overrule them, what he did -- what they did is they said, this time pay attention to Article II, Section One of the Constitution. Pay attention to Title 3, Section 5 of U.S. Code and pay attention to the state legislature and don't foul it up they just turned around and done exactly that. Fouled it up.

(CROSSTALK)

COSSACK: Senator Graham, Senator Hatch...

GRAHAM: Senator Hatch, you can't have it both ways. On the one hand you're saying that they are being too creative or activist...

HATCH: No, I'm saying Florida was.

(CROSSTALK)

GRAHAM: On the other hand, you're criticizing them, because they followed precisely what the state law is. Florida, for better or worse...

HATCH: No, they didn't, Bob.

(CROSSTALK)

GRAHAM: ... happens to have -- Florida, Orrin, for better or worse happens to have a very decentralized election execution system, as we are learning. And part of that is that the standard is the same statewide, which is to discern the intent of the voter, but we have left it up to 67 canvassing boards to determine what that means in terms of ballot by ballot evaluation.

COSSACK: And that's fine -- Senator Graham, what about 67 canvassing boards with no set standard?

GRAHAM: Yes, I personally think one of the things that will come out of this, Roger, not only in Florida but in many other states -- in fact, the governor of Maryland just made a major announcement to this week to that effect -- is going to be to relook at our state election laws which have traditionally been very localized in their administration.

In where we're dealing with elections that are statewide in nature, clearly, there need to be more statewide standards, better uniformity of technology. But one of the arguments is that you shouldn't change the standards and rules after the election is held, so we're conducting this election under the rules and standards that existed prior to November 7th, which was a very decentralized system.

HATCH: Bob, unless the Supreme Court of the United States or the 11th Circuit Court of Appeals changes this matter, you're going to have first the president of the United States elected by dimpled ballots that have never before been counted in Florida, which is a violation of due process, which is a violation of Title 3, Section 5 changing the rules after the election, and which is a violation of Article II, Section 1, which says that the Florida legislature is in charge here.

COSSACK: All right, let me jump in.

(CROSSTALK)

COSSACK: Let me jump in here gentlemen we've got to take a break. Senator Graham, I'm afraid we have to take a break. Senator Bob Graham of Florida, Senator Orrin Hatch. When we come back, Mario Cuomo, former governor of New York, Senator Tim Hutchinson of Arkansas. We see now the contest going on,the arguments going on about the Florida vote in Tallahassee as we speak. We'll see you when we come back, stay with us.

(COMMERCIAL BREAK)

COSSACK: Joining me now is former Governor Mario Cuomo of New York and Senator Tim Hutchinson of Arkansas and also the hearing is continue as we speak in Tallahassee right now, and, of course, they're debating how to go about starting this recount. As we know Judge Sauls has already recused himself and they have to figure out where do we go from here.

Governor Cuomo, in the dissent, the chief justice of the court said perhaps we have now brought upon us a constitutional crisis. What do you say to that?

MARIO CUOMO (D), FRM. NEW YORK GOVERNOR: First of all, I remind you it's a dissent, which means he lost. COSSACK: That is true.

CUOMO: And the court disagree with him, but I hear this language all the time, Roger, and I wish somebody would describe for me what they mean by a constitutional crisis. If they mean that for the first time in history you had a really close race, and now we have to use our constitutional apparatus in a way that it wasn't used before, that's not a constitutional crisis that is constitutional opportunity.

That's what it's there for. I mean, what is a crisis? A crisis suggests that you're about to injure the instrument. It's going to be hurt somehow. Can you explain to me how?

COSSACK: Senator Hutchinson, I'm not going to ask you to explain to Governor Cuomo how we're going to be hurt, but in a 4-3 opinion like this in a very, very close election is the country going to be worse off for this, the fact that there's no certainty still, 30 days after the election?

SEN. TIM HUTCHINSON (R), ARKANSAS: Well, the country is certainly worse off, and the end result of this is going to be less certainty in the outcome than what we had with the certified results in Florida. I think it's going to undermine the ultimate winner, and it's going to -- it is a bad situation.

Certainly, hurting the country in the delays and the transition in itself. But I think that this decision is outrageous. I think they -- it is the end result of an activist court that not only has substituted their own opinion for a Florida law, but they've now superseded their own original opinion, and set it aside as well.

And I think the presidency of the United States should be decided on something more than what Judge Wells called the intent of the voter is in the eye of the beholder. The American people are once again going to see these punch cards held up to lights as we go through this beat the clock process trying to finish this up before the deadline.

COSSACK: Governor Cuomo, one of the things that is pointed out in the majority opinion, they talk about the fact they want all of the undervotes counted but they don't tell us how to do it. And the dissent picks right up on that. What they say should be right -- they say it should follow the intent of the voter, and without telling us how we ascertain that intent.

CUOMO: Well, how did Broward do it? How did Palm Beach do it? How did the other do it? How you do it he do it in lawsuit, Roger? You're an expert. You're talking about intent every time you have a criminal statute. What do you tell the jury? Here are all specific criteria should you apply. You don't do that. You define for them the intent. And you say be reasonable, be intelligent. Take all the relevant evidence. Weigh it, and give us a conclusion. They have done it.

(CROSSTALK)

COSSACK: But Governor Cuomo... CUOMO: They've done it over and over. And it's -- let me remind you of something that the Republicans appear to be confused about. They talk about the Republican legislature having plenary power, et cetera, et cetera. It does and it created this system we're using. It created the judicial system. It created the elective system. We are doing exactly what the Republican legislature told us to do.

So, this notion that somehow this system is run amok and run away from the Republican legislature, and now they have to get their own Bush roster because the court is becoming a legislature, is pure pat and in terms of being hurt, George Bush has got plenty of money. They're Republicans. His transition hasn't slowed a minute. This guy's riding horses, cleaning out his barn, having a ball, but he's got Colin Powell and others. He said -- he has them all lined up already.

Who's being hurt? What do we need to do? Go back to football. We couldn't afford this month to pick the true winner of the election? And you know, to talk about outrage, Al Gore is ahead in the popular vote. Every day the margin gets larger. Who should be outraged Gore or Bush.

(CROSSTALK)

COSSACK: All right let me go -- let me go to Senator Hutchinson and find out about this outrage.

HUTCHINSON: Roger, we have a hearing going down there where they're taking suggestions on what standards should be used on the counting of these dimpled ballots. This is incredible. And this is 67 different counties, potentially, I suppose, could be involved in undercounts but undervotes, there were over two million of them nationally. In Cook County, Illinois, there were 120,000, and there were enough in Oregon 40,000 to reverse the outcome of Oregon.

There were enough -- not at all, George W. Bush has not suggested that we should go back and do hand recounts of all of those undervotes or no votes for president. But yet that is -- when we have a candidate willing to use the court process to overturn the certified results of a campaign, it's the kind of chaos and disorder that Judge Wells predicted that we now see occurring.

COSSACK: Governor Cuomo, chaos and disorder?

CUOMO: Are you suggesting -- are you suggesting that the Republican legislature, senator, when it created this system, created an absurdity?

HUTCHINSON: Governor, in all due respect.

CUOMO: Just a minute, just a minute.

(CROSSTALK)

HUTCHINSON: In all due respect, the Florida legislature set a date. (CROSSTALK)

CUOMO: May I speak please? These Republican legislators created a system. It's called you vote. And after you vote, you go to court. And they laid out the protest system and they laid out the contest system, and what you're saying, now, is anybody that uses it although you Republicans were first to say you would go to the Supreme Court anyone that uses it, is desecrating the constitutional system. That's ridiculous.

HUTCHINSON: The Florida Supreme Court changed the date established by the Florida legislature. They changed the rules after the fact. It's not the Florida legislature that laid down the chaotic process that we now see taking place in Florida.

(CROSSTALK)

CUOMO: Then senator, beat them in court. If they did -- if they created...

(CROSSTALK)

HUTCHINSON: It is my sincere hope that the U.S. Supreme Court will restore some sanity to the madness we see in Florida now.

CUOMO: You mean you're going to go to the court? Senator, you're going to go the courts.

HUTCHINSON: Indeed, we are.

CUOMO: Isn't that an absurdity? I thought you said it was wrong to let them decide.

HUTCHINSON: I'm saying that what we saw in the Florida Supreme Court was the result of an activist court that substitutes their own opinion for the law.

(CROSSTALK)

CUOMO: I see, so you'll go to a Republican court. I see.

(CROSSTALK)

COSSACK: Gentlemen, and with that and with great respect I'm going to have to call halt here and take a break. Thank you both, and when we come back Lois Frankel from the Florida state legislature as well as Ginny Brown-Waite, the Republican from the Florida Senate pro tem. We're going to find out what that Florida legislature is up. And we're seeing now what's going on in Tallahassee in that discussion about how do you count the votes and what do you do in Florida? Stay with us. More on LARRY KING LIVE.

(COMMERCIAL BREAK)

COSSACK: We're back with more LARRY KING LIVE. I'm Roger Cossack, sitting in for Larry King. Tonight, joining us is Lois Frankel, the Democratic Florida state representative and the House minority leader, as well as Ginny Brown- Waite, the Republican Florida senate pro tem. Also, we'll be seeing more of the contest that is going on in Tallahassee as they discuss what is -- what and how they possibly can decide to count all of those votes and how they're going go about doing it and when can they get started.

Let's go first to you, Representative Frankel. What is that Florida legislature going to do now that this decision has come down?

LOIS FRANKEL (D), FLORIDA HOUSE MINORITY LEADER: Well, I'm afraid they're going to do what they said they were going to do which is they want to ensure a victory for George Bush. George Bush has certified electors up there. And now they want to send another certified group of electors up there for George Bush and that's just an insurance policy just in case Al Gore wins in this recount.

COSSACK: Well, Representative Frankel, what happens if Al Gore does win in the recount? Then what happens?

FRANKEL: Well, if Al Gore wins in the recount of the courts here will disqualify George Bush as his electors and they will instead have the secretary of state and the governor certify the Al Gore electors up to Washington. That's what's supposed to happen.

COSSACK: All right, let's now go to Ginny Brown-Waite. Senator Waite, In terms of the -- what happened today with the Supreme Court deciding that these counts should go on, how does that affect the Republicans' ideas and the Republicans notion of going ahead having a joint meeting and certifying -- selecting their own set of electors for George W. Bush.

GINNY BROWN-WAITE (R), FLORIDA SENATE PRO TEMPORE: Well, obviously, the court in its very split decision of 4-3 once again thinks that they are legislature and they are changing the rules and writing law. Their job is to interpret the law. They already rescheduled the date for the certification of the electors, and now we find that they are saying well we didn't really mean that, instead this is what we mean. Let's count them all.

Obviously, it will be taken to another court and -- but in the meantime, in order to protect the electors -- that's what we are meeting in session. That's why we began the process today, why we will continue it on Monday, throughout next week.

COSSACK: Senator, why do you have to protect electors? It's now in the hands of the court. They ordered the recount. Apparently, this is -- whether it's 4-3 or 7-0 this is the Supreme Court speaking and they have ordered the count. What would happen if Vice President Gore wins? Why would you want to be on record as having selected another set of electors?

BROWN-WAITE: Well, first of all, we have to realize that there really right now is no accurate process of hand recounts. You know, is it that if he light is shining in on three corners we have to go through, again, this whole process. If it's three corners of chad, does it get counted? If it's not, does it not?

You know if it's just dimple, does it get counted. There's too much arbitrariness there at this point, and that's why I firmly believe that when it goes either to the -- the circuit or to the United States Supreme Court that it will be overturned. Once again, I think that they will find as Justice Wells very adequately stated that they have no right to enter into this fray.

COSSACK: Representative Frankel, Senator Waite says that there's absolutely no standard. But in fact, what the court said today was that the standard is to follow the intent of the voter, and that's the standard that the Florida legislature set. So, how do we follow? How do we know what that intent is?

FRANKEL: Well, you know that's what I was going say to respectfully remind my colleague, Senator Brown-Waite, is look, this legislature -- we wrote the law that the contestants are following. We wrote the standard. It seems a little bit disingenuous now for us to be criticizing the courts for trying to interpret and enforce our laws. Are we supposed to say, look, we didn't put an exact standard, a precise standard in there other than to discern intent of voter and therefore Al Gore or George Bush is not allowed to get a hand recount?

COSSACK: Representative Frankel, let me go to the senator on that. The point is is that your -- the legislature wrote that. They said, well, you're supposed to follow the intent of the voter and now you're saying that this is too vague to be followed?

BROWN-WAITE: Well, obviously, following the intent of the voter when you have different kinds of systems throughout the state -- some of them have the Acusystem, some of them still have where you use the stylus to go down. The question is these mostly were those where there was no indication. Now, not everybody was happy and unlike California, people could not say none of the above, and they obviously chose not to vote here. So, is the fact that that stylus slid down and may have at one point had a slight dimpling, is that intent of voter? If that wasn't pushed, and clearly pushed through, that's not a vote. That's a wanna-be vote.

(CROSSTALK)

COSSACK: And Senator Waite -- and Senator Waite, I think that that is what we're going to try to find out tonight from the Tallahassee hearing, as well as everything else. What is the intent of vote? But thank you for joining us, Representative Frankel, Senator Waite. When we come back, Dave Hattaway, a Gore campaign spokesman. Let's find out what's going on with them. Stay with us.

(COMMERCIAL BREAK)

COSSACK: We're back with more LARRY KING LIVE. I'm Roger Cossack, sitting in for Larry King tonight. Joining me is Gore campaign spokesman Doug Hattaway.

Doug, you must be very pleased with what the results of the Florida Supreme Court today. How did Vice President Gore react? DOUG HATTAWAY, GORE CAMPAIGN SPOKESMAN: He was obviously very pleased, too. I think going into it we felt that we had the law on our side and the facts on our side, and had faith that the Supreme Court would agree, and we were certainly ecstatic about it when we heard the news, but I have a lot of faith in this court to follow the law and what they've done is essentially uphold the principle that every vote counts, every vote should be counted. They grounded their opinion in the statutes of Florida, which govern these things and we're very happy about it and we'll do everything we can to make sure that the count gets completed quickly, and fairly and accurately.

COSSACK: All right, Doug, we want to thank you, of course, for joining us. We were expecting David Boies, but he is presently engaged being a lawyer in that hearing that is going on in Tallahassee where they're deciding how they're going to count those votes when they're going to get started.

Doug, let me go right back to you. It would seem to me that there's some problems that you still have left. One of which is getting all of these votes counted by the 12th, if that is the date they get counted by, as well as some issues on appeal that we'll get to in a moment. First of all, tell us your plan for how all of these votes can be counted so quickly.

HATTAWAY: Well, there's about 45,000 undervotes that have yet to be counted across the state. We certainly think that's a manageable number. What they're discussing in the courthouse behind me now is how to proceed, hopefully immediately, to get those counts under way. We think that the local officials in each county will want to get the resources that they need...

(CROSSTALK)

COSSACK: Doug, I just want to interrupt -- Doug, I just want to interrupt you for a second. That David -- we see David Boies, who's now become a familiar face to all CNN watchers, that he is now arguing to the judge in Tallahassee, in his familiar pose with his hands sort of spread apart, trying to make his point about how these votes should be counted and what should be done. He's been successful so far. Doug, I guess you guys are very pleased with having David Boies on your side.

HATTAWAY: Well, sure, he's obviously done a great job, and has gotten all of our thanks and congratulations. It's obviously a team effort. He's a key member of that team. There've been a lot of people working very hard. At the end of the day, they had faith that we had made a good case because it was based on the law and facts on our side and that says that you cannot exclude legal votes, and the lower court ignored legal votes that had been counted already, and had also failed to look at evidence.

That I think one of the rulings here is that you can't have a fair trial without looking at all evidence. So, we felt good going into this Supreme Court argument despite some of the press saying that it was all over before we'd heard a ruling. We felt confident as we were waiting for it today. I think what we'll focus on now is doing whatever we can to facilitate a quick count of vote.

We hope that the Republicans will not do as they've done until now, and keep trying to drag this through the courts and delay or even disrupt the counts as we've seen before. We hope they'll just let these counts go forward so that we have a full, fair and accurate count of the vote. The Supreme Court's ordered it across the whole state and there's nothing could be fairer than that.

(CROSSTALK)

COSSACK: Well, Doug, though -- Doug, when you talk about perhaps your opponent taking this, dragging this through the court. You know, dragging it through the court is in the eyes of beholder. When you appealed, I suppose those same criticisms could be made of your side. But it's clear, you know, your side -- the opposite side, the Republicans, have already filed a petition, as you know, with the Florida Supreme Court asking for a stay of this ruling pending the Republicans' filing a petition of certioraris, that is, asking the United States Supreme Court to review this.

And we understand that three Republican voters have now filed a petition with the 11th Circuit Court of Appeals to stop the hand count from going on. How do you expect to respond to those, and what -- are you concerned about the United States Supreme Court?

HATTAWAY: Well, certainly we don't feel that the federal courts are the place to be resolving that. We think it's a matter of the Florida courts. We know that the Florida Supreme Court decision is based in Florida statutes. Our attorneys will be making obviously the best case we can that this is a matter for the Florida courts and that the hand counts ought to proceed.

I think we've seen -- let's look at the history here. The Bush campaign was the first to drag this into court when they took into it federal court at the very beginning to try to stop people's votes from being counted. And everywhere along the way, they have had the secretary of state here, the bush campaign co-chair in the state throw every obstacle in the way of counting the votes. And what we've had to do along the way is to clear their obstacles out of the way. That is why we're here today.

This all could have been done a long time ago if it had not been for the secretary of state, also known as the Bush campaign co-chair here in Florida, throwing up obstacle after obstacle to the counting of the people's votes. That's the only reason we are still here today. Now that the...

COSSACK: All right, Doug...

HATTAWAY: ... highest court in Florida said so, they should let the count go ahead without any further delay.

COSSACK: Doug Hattaway, Gore campaign spokesman, thank you for joining us.

When we come back, Governor Marc Racicot from Helena, Montana. And there's the now-familiar face of David Boies arguing once again before a court in Tallahassee, Florida.

Stay with us.

More on LARRY KING LIVE.

(COMMERCIAL BREAK)

COSSACK: We're back now on LARRY KING LIVE. I'm Roger Cossack.

And joining me from Helena, Montana, is Governor Marc Racicot, who has been active in the Bush campaign, has been active in Florida, and now joins us from Helena, Montana.

Governor Racicot, your reaction to the Florida Supreme Court's decision today?

GOV. MARC RACICOT (R), MONTANA: Well, there are so many different things that spring to mind, it's hard to describe it in a short, brief sentence. But clearly it was a stunning judicial adventure. It is fanciful, it is almost absurd in its expectations and I think even naive in its expectations. It is just one of those most unbelievable judicial adventures and events that I have ever seen in my 27 years of practicing law.

COSSACK: Governor Racicot, let me just tell you what I've just found out, that as we speak the Bush team is going over to the United States Supreme Court right now, filing an emergency application for a stay of enforcement of the Florida Supreme Court order. They're going to the United States Supreme Court pending their filing of petition for certioraris. And I'll tell our viewers that a petition for certioraris is a fancy way of saying to the United States Supreme Court, please review this case.

And also, there is now action in front of the 11th Circuit Court of Appeals in Atlanta, Georgia, where they're asking voters, I think three Republican voters, are asking the 11th Circuit Court of Appeals to review their prior decision when they refused to stop the manual hand recount in Florida. So the lawyers are busy again, Governor Racicot. Are you surprised at all these legal machinations still continuing?

RACICOT: No, as you and I talked last week we know that the Supreme Court in their ruling, where they unanimously vacated the Florida Supreme Court's reinvention of the law previously, sent a signal. I think they shot over the bow and said that you can't do the kinds of things that you're contemplating because they violate Article II and they violate the United States code.

And I think what we have here is a complete rewriting -- I mean, they've even gone beyond the expectations that they created in their first judgment. Now they've assigned to Judge Sauls the responsibility to carry this out with no direction, no standards. There is no guidance or advice given about whether or not he has to do this personally or not. It's just a situation that I think is almost a calamity in some respects, because it has gone so far beyond what the law requires. It's very, very unfortunate.

As Secretary Baker today, it's a sad day.

COSSACK: Governor Racicot, I'm just being told that we're just learning what -- go ahead, please.

Bush has filed in the 11th Circuit -- Governor Bush's team has filed in the 11th Circuit Court of Appeals in Atlanta for a rehearing, what we previously announced, for a rehearing on the 11th Circuit Court's previous hearing to stop -- when they denied Governor Bush's request to stop the manual hand recount. Governor Bush's team has now gone in there and asked for a rehearing. One of the reasons they were denied earlier is they said there really wasn't a problem.

The Governor Bush team is now going in and saying, court, now there is a problem. Take a look at it.

Governor Racicot, I just want to get back to you. The other side says, look, what has gone wrong here? What has really happened is that they have ordered every vote to be counted. We know there are undervotes, what's wrong with counting the votes?

RACICOT: Well, you know, Roger there's nothing wrong with counting votes. That's not what's taking place here. I sat for three and a half days in Broward County, and what's taking place is a process of casting votes.

These are ballots that have no demonstrable indication that anybody intended to vote. This is not a dangling chad, there's no hole through the ballot. Those should count. What happens in this instance is that people try to divine in some borderline-mystical way whether or not someone who executed a ballot in every other respect meant to vote because there's a blemish, a mark or some small indentation in the ballot. That's not a trustworthy way of going about determining the intent of somebody and determining who ought to be president of the United States of America.

COSSACK: But, Governor Racicot, one of the -- there's a couple things I want to bring up. One is, in the majority opinion at least in this decision is they seem to go way out of their way to point out that all of the decisions they're making are based on Florida state statutes and really have nothing to do with the federal Constitution.

And the second thing they point out is, look, we're sending them back to have our ballots counted according to the intent of the voter. And where do they say the intent -- that phrase comes from? It comes from the state legislature. Doesn't that make a strong argument that this is what the state legislature intended?

RACICOT: I don't think so, Roger. In the first place, their reference to the Florida legislature is almost imaginary. It's largely rhetorical. There's really no substantive reference and deference to the legislature's authority or prerogative. I think it's an effort to try and mask or convince the United States Supreme Court that they in fact did what they were supposed to do under the circumstances. But I don't think it will be very long before the United States Supreme Court sees right through that attempt, it's so cosmetic.

In reference to the second question about the standards and the definition of what it is that it takes to count a ballot, clearly the legislature's provided this standard of determining with reasonable certainty what the voters' intent was. But they didn't translate it into the practical consequences or the practical steps that are taken to determine that.

For instance, you tell me. If a ballot is properly executed all the way through and it has a slight indentation on one of the races, is that a vote for someone, or is that an indication that someone was entirely content to execute the entire ballot and decided not to vote in that particular race?

Well in one county in Florida, that vote would have counted. In another county, that particular vote would not have counted. That's what the problem is with all of this. That's what Secretary Baker warned about from the beginning. It's standardless, it's arbitrary, it's capricious. It's not the way that we should go about electing a president of the United States of America.

COSSACK: All right, Governor Marc Racicot from Helena, Montana, thank you for joining us tonight.

RACICOT: Thank you.

COSSACK: You're once again a wonderful guest.

When we come back, a man's face who's very, very familiar, even maybe as familiar as Larry King -- well, maybe not that familiar -- Judge Charles Burton from Palm Beach.

Stay with us.

(COMMERCIAL BREAK)

COSSACK: We're back with more LARRY KING LIVE. I'm Roger Cossack, sitting in for Larry King tonight. We'll be seeing also the hearing that's going on in Leon County, which is going on right now, where they are discussing how to implement the Supreme -- the Florida Supreme Court's decision today, which orders the recount of all the undervotes of 67 counties in Florida.

Glad I don't have that job, but here's a man who knows about how you count dimpled and chad ballots. Joining me now is Judge Charles Burton, who headed the Palm Beach County Canvassing Board, a man whose face is very, very familiar to all of us.

Good evening, Charles Burton -- Judge Burton. Let me ask...

JUDGE CHARLES BURTON, PALM BEACH COUNTY CANVASSING BOARD: How are you doing, Roger?

COSSACK: Let me ask you this, are you back in business?

BURTON: Actually, I think we're done with our business in Palm Beach. What the Supreme Court ruled is that, No. 1, the votes that we actually counted will in fact count. But they also ruled that they won't be able to go back into any of those 3,300 objectionable ballots that Mr. Boies had wanted to go back into.

COSSACK: All right, Judge Burton, you were probably the most successful vote counter in history, you and your members of your team. Do you have any tips to tell all the other canvassing boards in the state of Florida who are now going to have to do what you've done?

BURTON: I think given the time limits imposed on them they better start counting quick. It -- you know, it's a difficult task. And with -- as you well know, with all of the lawyers with certainly varying interests in this case, it's going to be difficult. Certainly there are going to be those lawyers that will never want to see a count happen.

COSSACK: Now describe the process. What happens? We're seeing a picture of you now, that famous picture of you holding up a ballot and trying to see if there's sunshine. Describe -- coming through. Describe the process. We see there's a lot of people. Is there -- how many people are in the room? How much room is there, and how long do you go on?

BURTON: The way we did it in Palm Beach, we had up to at some point about 30 counting teams. And so we had two people who would hold up ballots, and then there would be an observer from each party. And they'd hold up the ballot, and if one party wanted to call that ballot questionable they'd set it aside. And then it was a canvassing board who had to look at those ballots.

You know, as you know, much of the controversy came around the standard that we tried to apply in reviewing those ballots.

COSSACK: Now tell us about that standard, because you had a standard that apparently the Florida Supreme Court approved of, and that may turn out to be the standard for some of the other counties. Did you create that standard?

BURTON: Well, we didn't. And actually it's interesting, because the Democratic Party was arguing that we should apply that Illinois case, the Pullen case. And we actually were able to get a copy of the transcript of the judge in that case going through each ballot. And basically, he applied the same standard we did, and that is, if there was some kind of indentation that was consistent throughout the ballot -- didn't have to cover the whole ballot, but as long as there was enough to show a pattern that this is how the voter voted, then we would go ahead and count that as a vote.

If, for example, in the presidential column there was just some type of indentation or impression, but in every other race they were able to successfully punch out the ballot, then in those cases we didn't count it as a vote.

COSSACK: In other words, Judge, what you did was look for consistency. BURTON: Well, we really took the totality of the ballot card and tried to come up with, you know, obviously some type of consistent approach, I mean, listen, our main focus in this whole thing was to apply a consistent standard, to be open, to be public, and we really felt that's the only way people are going have confidence in what we're doing.

COSSACK: But, Judge, there is nothing in the law, as far as you know, that would require any other county to follow your lead, is there?

BURTON: No, I mean, it certainly -- you know, part of the way through, it was interesting because we actually tried to apply a standard to be consistent with Broward County, and then halfway through they kind of went back and said, well, we're going to count single dimples. You know, that's not the issue.

I think one of the main problems, Roger, quite honestly, with this whole process and the Florida Supreme Court is we have a state law that provides for manual recount. We have a secretary of state who wanted to cut us off in seven days. Quite simply, in these large counties, Dade, Broward, Palm Beach, there's no way to complete a recount in seven days, so...

COSSACK: All right, thank you for joining us, Judge Charles Burton, a man who became famous and helped his state. Thank you once again.

When we come back, Viet Dinh, professor of law from Georgetown Law School; Bob Woodward, assistant managing editor of "The Washington Post"; and Hal Bruno, former ABC news political director will talk a little politics and we we'll talk a little law.

Stay with us on LARRY KING LIVE.

(COMMERCIAL BREAK)

COSSACK: Welcome back. I'm Roger Cossack sitting in for Larry King tonight on Larry King Live.

We see now the hearing that is going on in Leon County, in Tallahassee, Florida, these continuous hearings to discuss now how to implement the decision of the Florida Supreme Court.

But joining me now to talk a little politics and a little law is professor Viet Dinh from Georgetown University Law School; Bob Woodward, assistant managing editor of "The Washington Post," Pulitzer Prize winner; and Hal Bruno, former ABC news political director.

Well, Viet, let me just tell you something. If Larry King was here tonight, this is what he would say to me: Roger Cossack, CNN legal analyst, you told me this was a dagger in the heart of the Gore campaign. How could you get so it wrong?

Viet Dinh, how could I get it so wrong?

VIET DINH, GEORGETOWN UNIVERSITY LAW SCHOOL: Roger? Do I look like Roger?

No, let's not talk about how we got it so wrong, let's talk about how the Florida Supreme Court got it so wrong. I think what the problem here fundamentally is that they, their entire opinion hangs on a very thin thread. And that thread is the one that they start their entire opinion with. That is, we do not give any deference to the decision of the canvassing board and of the secretary of state. As Judge Wells made clear in his dissenting opinion, that is contrary not only to Florida law under the Boardman case, that is also contrary to Florida law under the Beckstrom case, the newer case. And indeed, that is contrary to the statute that the Florida Supreme Court relies upon.

COSSACK: All right, let's talk about the United States Supreme Court for a second...

DINH: Sure.

COSSACK: ... because these papers, I now understand, have been filed with the United States Supreme Court, asking for a -- asking the United States Supreme Court to stay what the Florida Supreme Court has done today and stay the count, of course.

In the dissent, Justice Wells refers to Article II, Section 1 and clause 2 of the United States Constitution. He says that neither this court nor the circuit court has the authority to create the standards by which it will count the underballots. Now is that the kind of thing that the United States Supreme Court will get involved with? Is that the federal question?

DINH: Yes, there is one issue here that is very critical for us not to miss. That is the United States Supreme Court in its prior decision has stated nine to zero that this is a federal question. Why is it a federal question? Because Article II of the Constitution gives the power to the state legislature. They could have given it to the local sheriff and it would be the same kind of federal question.

The local sheriff could go tell the local fire chief to go do something. The interpretation of that direction would be a matter of federal law. And one reason why they would take this case more likely than others is that the Florida Supreme Court here completely ignored the former -- the vacator and the remand of its earlier decision. They completely ignored it and assumed that it's still valid law and builds this decision upon it -- error upon error.

COSSACK: All right. Let me go now to Bob Woodward.

Bob, you know what I'm doing here: I'm wiping a little egg off my face, because as you know -- and you and I had a conversation before the last time we appeared together -- I said, Bob Woodward, not a chance that they're ever going to reverse this case. And I couldn't use enough dagger in the heart, stake in the heart kind of phrases. And you said to me, Roger, they're going to, and let me tell you why.

Bob Woodward, go ahead. BOB WOODWARD, "WASHINGTON POST": Well, what's happened here is instead of all the legal mumbo-jumbo and language that we're getting here from my friend on my right is -- there is a common sense embedded in the law that people often don't recognize but courts often rise to. And what we have here, it's almost as if in those 9,000 ballots that have not been looked at or been hand-counted, it's as if they are mystery witnesses waiting out in the corridor of the courtroom. We've been waiting for them for one month. What are they? What's going on here?

And the court has said, or four members of the court in the majority opinion, said, well, wait a minute, let's look at them. We can deal with this. Yes, there are practical difficulties in getting some sort of reasonable count, but let's do it.

And those who are opposing them are essentially saying, no, wait a minute, those mystery witnesses, those 9,000 ballots, if they're going to be dimples and they're going to be hanging chads, there is going to be ambiguity and we cannot cope with it.

Well, in fact, I think as a society and as a legal system we cope with ambiguity all the time, and it may work here.

COSSACK: All right. Let's take a break. We're seeing -- we're going to see some more of that hearing that's going on right now in Dade County in Tallahassee, Florida as they try and figure out how to implement what the Florida Supreme Court did today.

Viet Dinh, Bob Woodward, Hal Bruno, we'll be back with more. I'm going to start with Hal Bruno, Stay with us.

(COMMERCIAL BREAK)

COSSACK: We're back with more LARRY KING LIVE. I'm Roger Cossack sitting in for Larry King tonight. We also see the hearing that is going on before Judge Terry Lewis in Dade County, where they're trying to figure out how to implement the Florida Supreme Court's decision on how to begin the votes.

Let's go now to Hal Bruno.

Hal, from a political standpoint, what does this do to the person who becomes the next president? Doesn't this -- doesn't each, whoever becomes the next president, end up as sort of the asterisk president, the accidental president?

HAL BRUNO, FORMER ABC POLITICAL DIRECTOR: We've said that all along, but it all depends. If it's Gore, at least he can say that he won the popular vote. If it's Bush, he still is a president who did not win the popular vote.

I'd also like to point out something about what the Florida Supreme Court is doing. They in effect are ordering now what should have been done the day after the election.

When you have an election this close, it's almost automatic in many -- well, in some states, it's mandated by law that you must have a full recount of the entire state. All of this should have happened long ago.

The other thing is, I'd like to point out, is that the Florida Supreme Court was very conscious that the U.S. Supreme Court is looking over its shoulder, and in the majority opinion, it took special pains to say, according to the laws of the state of Florida as set forth by the Florida legislature. The Supreme Court was in that Florida Supreme Court courtroom today.

COSSACK: But Viet, your opinion would be no matter how hard they try they could not duck this federal constitutional issue, and that means that the United States Supreme Court will be involved. Your opinion on that?

DINH: Yes. By ducking, they're making more of a federal case. They have to address Article II of the Constitution, they have to address the federal law issue, and so they know it is relevant, because it is the law -- that federal law is relevant. The only question is, did they interpret the Florida law correctly? And not because they have any special province in interpreting federal -- Florida law, because Florida law here, in effect, has become federalized in this process, because this is a matter of federal law.

COSSACK: Bob Woodward, now that the vote has been ordered to begin, can the vote be ordered to stop? I mean, how will it play out now if a court comes in and says, you know what, we don't want any more, we don't want any more votes counted?

WOODWARD: Well, we use -- we talk about 24-hour-a-day television. We now have 24-hour-a-day courtroom drama.

COSSACK: Nothing wrong with that.

WOODWARD: I know, but...

(LAUGHTER)

WOODWARD: ... I mean, they're meeting now. Briefs are due in one of the case at 7:00 a.m. on Saturday. I don't think there is a lawyer around who hasn't worked in a death penalty case who's seen anything like that.

It's absolutely impossible to predict where this is going, but quickly, what I find really interesting is the presidency is going to be changed, at least for a while. Whoever wins is not going to be an imperial president. They've been humbled, if not humiliated, by this process, and it's going to be a different job.

COSSACK: Politically, can they stop counting votes? If a court comes in now and says, stop counting the votes, how is that going to play?

BRUNO: They have to do whatever a court orders. Politically, it would not play very well. On the face of it, it would look totally unfair. So I don't think they can stop. COSSACK: That's all we have time for tonight on LARRY KING LIVE. Monday night, Larry King returns with Hillary Clinton: a show that I won't miss and I'm sure you're not going want to -- want to miss either.

That's all tonight we have. Thanks to our guests, thank you for watching. We see now the court is recessing in Dade County. I don't know if it's for the evening or just the way it's been going on there. For all I know, it's going to until 2 o'clock in the morning. But whatever it will be, CNN will be bringing it to you. We'll see you next time on LARRY KING LIVE tomorrow night.

Good night.

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