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American Morning

Another Twist in California Recall Saga

Aired September 17, 2003 - 07:21   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.


BILL HEMMER, CNN ANCHOR: Another day, another twist in the California recall saga. The federal appeals court that postponed next month's election will reconsider that decision. Written arguments are due by this afternoon. Whether they make any movement on it is a wide open question.
Legal analyst Jeffrey Toobin is here to talk about it and sort us through it.

How are you?

JEFFREY TOOBIN, CNN LEGAL ANALYST: OK.

Everybody get their score card out, things are changing by the moment.

HEMMER: There we go. That's right. Get your arguments in today. The deadline is this afternoon.

What does it tell you that the court is going to hear this?

TOOBIN: Well, what's most important is that the full Ninth Circuit, not the three judges, but all 26 judges said we want to hear from the parties today about whether the full Ninth Circuit should consider the decision. What's important about that is no one asked the Ninth Circuit to ask. They did this on their own.

HEMMER: So what does that tell you? Does it point to anything?

TOOBIN: That tells you that there are at least several judges on the Ninth Circuit who are very anxious to get this decision reversed and have it back in October.

HEMMER: Listen to this, 2002, 1,001 requests for the court to have a new hearing. Seventeen were granted.

TOOBIN: Very few.

HEMMER: Very few. A very small percentage.

TOOBIN: Now, keep in mind, they have not granted the request for en banc. They have not decided. They need a majority of the 26 active judges. But the fact that they went out and solicited briefs from the parties without being asked suggests that there are going to be some votes for an en banc review.

HEMMER: Does that mean that they're calling into question the three panel judge's decision or they're weighing the gravity of that decision with a statewide election 20 days away or so?

TOOBIN: I think it's a combination of the two. I think there is certainly discomfort with the merits of the decision. They think it's wrong. But also, given that we're only three weeks from the election, they realized that if the Ninth Circuit is going to stay involved at all, keeping in mind that either side is going to go to the Supreme Court afterwards, they've realized that they have to act probably today. I mean I expect that we will have a decision by the end of today.

HEMMER: Is that so?

TOOBIN: Oh, absolutely. Whether they will take en banc review.

HEMMER: Take this a little bit broader here, across the country. The punch card ballot is used in 27 different states. There is a presidential election 14 months away. Is this the beginning of a tide of lawsuits and court challenges?

TOOBIN: Absolutely, because remember, what the Ninth Circuit said on Monday, in effect -- they didn't say this directly -- was if you have one system in one part of the state and another system in another part of the state, that may be simply unacceptable. Under their reading of the equal protection clause, as interpreted by the Supreme Court in "Bush vote. (ph) Gore," you have to have essentially the best system across the state.

There is no -- I mean that is a, perhaps, unmanageable demand on the states at this point, and also a change in how we've had elections. I mean in New York State, you have several different voting systems. And that's true in a lot of different states.

HEMMER: You know, we met in Tallahassee, Florida three years ago.

TOOBIN: So we did.

HEMMER: So we did. And we had many, many conversations -- there is no perfect election.

TOOBIN: There is no...

HEMMER: You can't do it.

TOOBIN: There is no perfect election and the systems, even the new systems have problems. One of the interesting issues about, you know, moving the election to March, as that stands, is that some of the new technology may not be able to be fit 133 candidates. The system was not set up for elections with 133 candidates. So even if the election is moved to March, there are a lot of unanswered questions. And I mean another one, just to think about it...

HEMMER: Sure.

TOOBIN: ... under California law, there is a suggestion that you could have more candidates in March because the statute says you can have more candidates 60 days before the election. If it's March, 133, Bill, may not be enough. And I see a possible governor's candidacy for you, maybe.

HEMMER: You think so?

TOOBIN: It could be.

HEMMER: Well, I don't have...

TOOBIN: It may be time.

HEMMER: I don't have residency in California.

TOOBIN: Hey, you know, but compared to some of the candidates, I think you'd do pretty well.

HEMMER: Thank you, Jeff.

Talk to you later, because it's not over, as you well know.

TOOBIN: It's not over.

HEMMER: I'll be watching that later today, though.

TOOBIN: You bet.

HEMMER: We'll see if that moves.

TOOBIN: Yes.

HEMMER: Thanks.

Good to see you.

TOOBIN: OK.

HEMMER: A programming note. Later tonight, Arnold Schwarzenegger is the guest with Larry King, 9:00 here on CNN on the East Coast, 6:00 in California. Arnold and Larry later tonight here.

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






Aired September 17, 2003 - 07:21   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
BILL HEMMER, CNN ANCHOR: Another day, another twist in the California recall saga. The federal appeals court that postponed next month's election will reconsider that decision. Written arguments are due by this afternoon. Whether they make any movement on it is a wide open question.
Legal analyst Jeffrey Toobin is here to talk about it and sort us through it.

How are you?

JEFFREY TOOBIN, CNN LEGAL ANALYST: OK.

Everybody get their score card out, things are changing by the moment.

HEMMER: There we go. That's right. Get your arguments in today. The deadline is this afternoon.

What does it tell you that the court is going to hear this?

TOOBIN: Well, what's most important is that the full Ninth Circuit, not the three judges, but all 26 judges said we want to hear from the parties today about whether the full Ninth Circuit should consider the decision. What's important about that is no one asked the Ninth Circuit to ask. They did this on their own.

HEMMER: So what does that tell you? Does it point to anything?

TOOBIN: That tells you that there are at least several judges on the Ninth Circuit who are very anxious to get this decision reversed and have it back in October.

HEMMER: Listen to this, 2002, 1,001 requests for the court to have a new hearing. Seventeen were granted.

TOOBIN: Very few.

HEMMER: Very few. A very small percentage.

TOOBIN: Now, keep in mind, they have not granted the request for en banc. They have not decided. They need a majority of the 26 active judges. But the fact that they went out and solicited briefs from the parties without being asked suggests that there are going to be some votes for an en banc review.

HEMMER: Does that mean that they're calling into question the three panel judge's decision or they're weighing the gravity of that decision with a statewide election 20 days away or so?

TOOBIN: I think it's a combination of the two. I think there is certainly discomfort with the merits of the decision. They think it's wrong. But also, given that we're only three weeks from the election, they realized that if the Ninth Circuit is going to stay involved at all, keeping in mind that either side is going to go to the Supreme Court afterwards, they've realized that they have to act probably today. I mean I expect that we will have a decision by the end of today.

HEMMER: Is that so?

TOOBIN: Oh, absolutely. Whether they will take en banc review.

HEMMER: Take this a little bit broader here, across the country. The punch card ballot is used in 27 different states. There is a presidential election 14 months away. Is this the beginning of a tide of lawsuits and court challenges?

TOOBIN: Absolutely, because remember, what the Ninth Circuit said on Monday, in effect -- they didn't say this directly -- was if you have one system in one part of the state and another system in another part of the state, that may be simply unacceptable. Under their reading of the equal protection clause, as interpreted by the Supreme Court in "Bush vote. (ph) Gore," you have to have essentially the best system across the state.

There is no -- I mean that is a, perhaps, unmanageable demand on the states at this point, and also a change in how we've had elections. I mean in New York State, you have several different voting systems. And that's true in a lot of different states.

HEMMER: You know, we met in Tallahassee, Florida three years ago.

TOOBIN: So we did.

HEMMER: So we did. And we had many, many conversations -- there is no perfect election.

TOOBIN: There is no...

HEMMER: You can't do it.

TOOBIN: There is no perfect election and the systems, even the new systems have problems. One of the interesting issues about, you know, moving the election to March, as that stands, is that some of the new technology may not be able to be fit 133 candidates. The system was not set up for elections with 133 candidates. So even if the election is moved to March, there are a lot of unanswered questions. And I mean another one, just to think about it...

HEMMER: Sure.

TOOBIN: ... under California law, there is a suggestion that you could have more candidates in March because the statute says you can have more candidates 60 days before the election. If it's March, 133, Bill, may not be enough. And I see a possible governor's candidacy for you, maybe.

HEMMER: You think so?

TOOBIN: It could be.

HEMMER: Well, I don't have...

TOOBIN: It may be time.

HEMMER: I don't have residency in California.

TOOBIN: Hey, you know, but compared to some of the candidates, I think you'd do pretty well.

HEMMER: Thank you, Jeff.

Talk to you later, because it's not over, as you well know.

TOOBIN: It's not over.

HEMMER: I'll be watching that later today, though.

TOOBIN: You bet.

HEMMER: We'll see if that moves.

TOOBIN: Yes.

HEMMER: Thanks.

Good to see you.

TOOBIN: OK.

HEMMER: A programming note. Later tonight, Arnold Schwarzenegger is the guest with Larry King, 9:00 here on CNN on the East Coast, 6:00 in California. Arnold and Larry later tonight here.

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