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Interpretation of Bush v. Gore May Force California Recall into Supreme Court

Aired September 16, 2003 - 11:38   ET

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

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


LEON HARRIS, CNN ANCHOR: Right now we want to take a closer look at the legal steps ahead in the California recall. David Cardwell is an election law attorney and he around served as CNN's election analyst during the Florida recount. He joins us this morning from Orlando.
Good to see you again, David. Always nice to have you with us. First of all, now the big question is whether or not the U.S. Supreme Court is going to be stepping in in this California issue and overrule the 9th Circuit or decide one way or another about how to proceed here in California. but there's so many questions about whether or not the court would even want to jump in right now. What are your thoughts?

DAVID CARDWELL, ELECTION LAW ANALYST: Well the 9th Circuit really put it to the U.S. Supreme Court. They relied heavily on Bush v. Gore, the U.S. Supreme Court decision that ended the recount in Florida.

And the Supreme Court is now faced with whether or not they will visit that case or will say that it is precedent. If you recall, they had a strange and somewhat unorthodox provision at the end of the opinion that said it was not to be relied upon as precedent. But the 9th Circuit certainly did that.

It's also interesting that the U.S. Supreme Court doesn't reconvene until the first Monday in October which is October 6. So, unless the full court meets in emergency session before then it's going to be up to the circuit justice which is Sandra Day O'Connor.

HARRIS: And, what do you think would happen if it does fall into her lap?

CARDWELL: Right now I would think that the Supreme Court might let the 9th Circuit decision stand and not get involved in this election.

HARRIS: But there are some experts who are saying that perhaps the court, the 9th Circuit did overread that ruling in the Bush v. Gore case. And I'm quoting now an article that was in "The Washington Post" today which quoted the decision in that case by the Supreme Court back in 2000 saying that decision at that time was limited to the present circumstances.

What do you think about that? Is it clear to you whether or not this court has overread that decision? CARDWELL: Well that's certainly the question that everyone's grappling with today. The facts in the Bush v. Gore case were very different. We had already had the election. We were in the midst of counting votes. And so we had the punch cards being used.

And the case that was decided yesterday, the 9th Circuit is looking ahead and anticipating what might happen with the punch card. So very different situation.

Also the other thing that is true in California is the secretary of state is already decertified the use of punch cards in that state. But it wasn't going to be effective until March of 2004. And the courts seemed to take a lot of reliance upon the fact that the secretary of state had already determined that these machines were unreliable.

HARRIS: You know this whole thing looks like it's going to be a mess. But I've got to ask you about this prospect. If the U.S. Supreme Court does decide to walk away from this and let the 9th Circuit's decision stand, I would imagine that guys like you, election law specialists, experts across the country will be just chomping at the bit from now on during election cycles because anybody who doesn't like the turnout or doesn't like the way that the vote came down, could they not also pursue this recall effort or actually pursue some sort of remedy through the courts down the road?

CARDWELL: Certainly. And that was something that many commentators, including myself, said after the Bush v. Gore decision. That even though the supreme court tried to limit that to just the facts in Florida recount situation, it was going to be cited as authority in numerous cases. And we're seeing that now. And the 9th circuit has certainly elevated to it where the equal protection standard now could be applied to any election situation that may arise in any state.

HARRIS: All right, final word. Just give me a date here. When do you think the election's going to finally be held? Will it be in October or will it be sometime in March?

CARDWELL: I think it's March.

HARRIS: Here we go. David Cardwell. It's going to be a lot of fun to watch and see how it plays out. We appreciate your time.

CARDWELL: Sure. It's good to be back.

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




into Supreme Court>


Aired September 16, 2003 - 11:38   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
LEON HARRIS, CNN ANCHOR: Right now we want to take a closer look at the legal steps ahead in the California recall. David Cardwell is an election law attorney and he around served as CNN's election analyst during the Florida recount. He joins us this morning from Orlando.
Good to see you again, David. Always nice to have you with us. First of all, now the big question is whether or not the U.S. Supreme Court is going to be stepping in in this California issue and overrule the 9th Circuit or decide one way or another about how to proceed here in California. but there's so many questions about whether or not the court would even want to jump in right now. What are your thoughts?

DAVID CARDWELL, ELECTION LAW ANALYST: Well the 9th Circuit really put it to the U.S. Supreme Court. They relied heavily on Bush v. Gore, the U.S. Supreme Court decision that ended the recount in Florida.

And the Supreme Court is now faced with whether or not they will visit that case or will say that it is precedent. If you recall, they had a strange and somewhat unorthodox provision at the end of the opinion that said it was not to be relied upon as precedent. But the 9th Circuit certainly did that.

It's also interesting that the U.S. Supreme Court doesn't reconvene until the first Monday in October which is October 6. So, unless the full court meets in emergency session before then it's going to be up to the circuit justice which is Sandra Day O'Connor.

HARRIS: And, what do you think would happen if it does fall into her lap?

CARDWELL: Right now I would think that the Supreme Court might let the 9th Circuit decision stand and not get involved in this election.

HARRIS: But there are some experts who are saying that perhaps the court, the 9th Circuit did overread that ruling in the Bush v. Gore case. And I'm quoting now an article that was in "The Washington Post" today which quoted the decision in that case by the Supreme Court back in 2000 saying that decision at that time was limited to the present circumstances.

What do you think about that? Is it clear to you whether or not this court has overread that decision? CARDWELL: Well that's certainly the question that everyone's grappling with today. The facts in the Bush v. Gore case were very different. We had already had the election. We were in the midst of counting votes. And so we had the punch cards being used.

And the case that was decided yesterday, the 9th Circuit is looking ahead and anticipating what might happen with the punch card. So very different situation.

Also the other thing that is true in California is the secretary of state is already decertified the use of punch cards in that state. But it wasn't going to be effective until March of 2004. And the courts seemed to take a lot of reliance upon the fact that the secretary of state had already determined that these machines were unreliable.

HARRIS: You know this whole thing looks like it's going to be a mess. But I've got to ask you about this prospect. If the U.S. Supreme Court does decide to walk away from this and let the 9th Circuit's decision stand, I would imagine that guys like you, election law specialists, experts across the country will be just chomping at the bit from now on during election cycles because anybody who doesn't like the turnout or doesn't like the way that the vote came down, could they not also pursue this recall effort or actually pursue some sort of remedy through the courts down the road?

CARDWELL: Certainly. And that was something that many commentators, including myself, said after the Bush v. Gore decision. That even though the supreme court tried to limit that to just the facts in Florida recount situation, it was going to be cited as authority in numerous cases. And we're seeing that now. And the 9th circuit has certainly elevated to it where the equal protection standard now could be applied to any election situation that may arise in any state.

HARRIS: All right, final word. Just give me a date here. When do you think the election's going to finally be held? Will it be in October or will it be sometime in March?

CARDWELL: I think it's March.

HARRIS: Here we go. David Cardwell. It's going to be a lot of fun to watch and see how it plays out. We appreciate your time.

CARDWELL: Sure. It's good to be back.

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




into Supreme Court>