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Has the Florida Supreme Court Overstepped its Authority?

Aired November 17, 2000 - 7:30 p.m. ET


MARY MATALIN, CO-HOST: Good evening, and welcome to CROSSFIRE.

Late today the Florida Supreme Court voted to delay tomorrow's certification after a Florida judge ruled earlier that it could proceed. That vote would have included the statewide machine recount and the freshly tabulated overseas ballots but not the ongoing hand counts.

Late in the day, Miami-Dade County reverse an earlier vote not to hand count, which if allowed by the Florida Supreme Court, would make a total of four Democratic hand counted counties to be added to the final count. On that issue the United States 11th Circuit Court of Appeals ruled late today that the hand counts may continue.

The Florida Supreme Court will hear oral arguments on whether or not those ballots are valid on Monday at 2:00 p.m. While the hands counts go on, so the do did overseas ballots counts which are expanding Bush's lead. So with Bush ahead today, will Gore be the victor on Monday? Should only Gore's counties be hand counted? And how much patience does America have?

Bill is taking a breather tonight. Sitting in, our old friend, Washington editor of "The Nation" magazine, David Corn.

Before the discussion here, reactions from the respective camps by our crack CNN reporters to the ground. First Chris Black on Gore in Washington -- Chris.

CHRIS BLACK, CNN CORRESPONDENT: Mary, two major court rulings late Friday have given the Gore campaign something it desperately needed, a little bit of time to prove Al Gore got more votes in Florida on November 7th than George W. Bush. The Gore campaign is relieved, but also resolute. Officials say the campaign will now push ahead with recounts in three Gold Coast counties.

Gore operatives are convinced that Gore can pick up enough votes in those recounts to overcome Bush's statewide lead. One Gore observer, in fact, in Broward County is now projecting Gore will pick up between 250 and 260 votes at a minimum in that county where the standards for judging ballots by the hand count is the stiffest.

Gore campaign officials say the votes themselves carry legal and moral authority, and now they are more optimistic than ever that the state Supreme Court will eventually sanction the recounts and force the state to consider the results. So while nothing is certain, it now looks like the end game of this amazing election will be played out in the courtroom in Tallahassee next week -- Mary.

MATALIN: Thank you so much, Chris. And now for reaction from the Bush camp, we go Candy Crowley in Austin, Texas.

Hi, Candy.

CANDY CROWLEY, CNN SENIOR POLITICAL CORRESPONDENT: Mary, in a couple of words, the Bush camp finds the Supreme Court ruling surprising. They called it an unusual statement and an unusual action. They are clearly disappointed. You could hear that when Secretary Baker gave his reaction in -- within the last half hour.


JAMES BAKER, BUSH CAMPAIGN OBSERVER: As the Florida Supreme Court stated in this recently issued order, the court's action is designed to maintain the status quo until its hearing on Monday.

The court issued an order that neither side requested. Nevertheless, its action is not an order on the merits of the case. We remain confident that, for all of the reasons discussed by the trial court in its two opinions, the Supreme Court will find that the secretary of state properly exercised her discretion and followed the law.


CROWLEY: Again, that's called looking on the bright side. The Bush camp thinking that this was not any kind of decision on the merits and they say they continue to believe that once the Supreme Court in Florida looks at the case as the trial judge did, they will find that the secretary of state of Florida is acting within her right and within reason.

Now on that 11th Circuit Court of Appeals case that also was turned back by the 11th Circuit Court of Appeals, James Baker said that they noted that the appeals court left it open so that the Bush camp could come back at some other appropriate time. In a word, they are disappointed as one Bush aide said, "However, after everything we've been through the last 10 days, we're kind of getting used to this roller coaster. It'll go up again" -- Mary.

MATALIN: Well, Candy, we hope you're home before Christmas. We miss you. Thank you.

CROWLEY: Thank you.

MATALIN: Well, I hope we're out of here before Thanksgiving, David. It's to you.

DAVID CORN, GUEST CO-HOST: OK, let's go now to Barbara Olson in Tallahassee.

Barbara, before we start here we want to make it clear to our viewers that you are married to Ted Olson, who is one of the lead attorneys for the Bush campaign. Is that not true?

BARBARA OLSON, FORMER ASSISTANT U.S. ATTORNEY: Yes, it is and I guess -- is there a problem?

CORN: No, you're on the show. We just want people to know that. OK, let's move on to today's news. The Florida state Supreme Court ordered Katherine Harris, the secretary of state, not to certify the elections and they will be heading into that court come Monday, 2:00 p.m. Is there anything wrong with this, letting the state courts in Florida, the state courts deal with a dispute amongst the state elections?

OLSON: Well, I mean, the problem really is that there's the Florida law, which we hear so much about, which does require that she report and indeed it required that if precincts didn't give her their information that they shall not be counted and she shall not report them.

The Supreme Court has come in now and as they said held down the status quo to look at everything on Monday, prohibited her from reporting, which is by statute, and the interesting thing, though, I find of this is that when they're preserving the status quo of not having the secretary of state report, they're not preserving the status quo of the election. They're still allowing these manual counts to continue which I think changes the election, each and every count and every day.

CORN: So are you staying that the Florida Supreme Court is not acting fair in this regard?

OLSON: Well, I think in fairness they do believe they're preserving the status quo. I would just say that these manual recounts are a problem and that if they want to preserve the status quo, they should stop the manual recounts, which in effect, every time people like at them, chads fall out.

We're hearing stories all over Florida of piles of chads. Every time they're looked at. No longer voters will know who they voted for. Let's say there was a card that someone decided not to vote for the president. It's very likely at this point, some of these have been run through machines and hand counts four times.

It's very likely that a clad may have fallen out, in which case, the intent of the voter that we hear so much about is not being effectuated. If a chad has fallen out, they voted when they didn't intend to. Same thing if somebody voted for one person and a chad falls out, it may show up that they've actually voted for two. So I seriously question whether the status quo is being preserved by allowing these manual counts.

MATALIN: Well, Lanny, what's Barbara's just described is one of many stories of what's going down there in that chaotic -- we've all seen it, you know, Carnac kind of things going on. The vice president today came out and said two things he wants, and once again reiterated his call for an accurate and fair count. An accurate count would require, by his measure, a hand count which the Democratic -- Democratic supervisor of elections, Pam Iorio said, start quote, and I quote: "To start manually recounting million of ballots in the state of Florida would cause more problems than it would solve. With a manual recount, each ballot is at the discretion of a human being. You're going to get mired in problems."

Your own beloved Senator Daniel Patrick Moynihan said, quote: "Hand counts of machine ballots -- I don't like it one bit." No one except the vice president apparently believes that this mind reading is going to elicit an accurate count. Do you?

LANNY DAVIS, GORE SUPPORTER: Well, first of all, as Secretary Baker said this morning, the rule of law has prevailed. Somehow, tonight he forgot that sentence. We are now looking at the Supreme Court of the state and Governor Bush is the first one to remind us that we shouldn't be legislating from the bench and we should be trusting the people at the state level, so isn't it ironic that the Republicans are now criticizing the state Supreme Court of Florida when this morning they were praising a circuit court judge in Florida because of the rule of law. That sets a double standard.


MATALIN: That's beautiful, but it had nothing to do with my question and no one's criticizing the court. I've asked you, do you think with all these chads on the floor and all this other Karnac mind reading going on that it's an accurate count?

Let me ask you if it's a fair count, that's the other thing the vice president said. It is only being done in selected and overwhelmingly Democratic counties. When there's a dispute the Democrats ate the Republican on the canvass board every single time. Is that fair?

DAVIS: If Governor Bush would accept the very statesman-like proposal made by Vice President Gore to count in all of the counties of Florida and we could bring in former President Ford and former President Carter and we could preside over this in a non-partisan fashion. The only reason why Governor Bush didn't say yes to that, and I think he should reconsider today given the Supreme Court decision, is that he knows that Al Gore has more votes and at the end of the day will win Florida.

CORN: Let's stick with this manual recounting issue. Let me get in a question now Barbara, then you can put in an answer. I think it's been the biggest Republican spin of the week that these recounts are akin to Karnak the Magnificent.

On the front page of "The New York Times" today, you have industry experts -- don't shake your head yet -- you have industry experts who say that the most accurate way of counting these ballots, these are the people who make the voting machines, is by hand and I want to put on the screen now a graphic with a statement that was put out by two computer scientists this week, Lauren Weinstein and Peter G. Neuman who are very prominent people. They say, you know, you can laugh, Mary -- but they say, in general, so long as the interested parties both have observers participating in manual recounts to assure a consensus on the interpretation and tabulation of the punch cards, manual recounts provide the most reliable mechanism for counting these cards accurately.

Now, why should we listen to you or Mary or Karen Hughes or anyone else when industry experts and computer scientists tell us it's best to hand count these? And, in fact, in Texas they passed law to have hand counting ballots.

OLSON: Well, David, I wish you had told me because I could have given you probably four or five industry experts. A gentleman who actually invented the part in the machine that does the counting who said there's special paper that goes to those machine. Indeed, every time the ballots go through the machine, it degrades the paper. And that's part of the problem why we had piles of chads every time they put it through the machine that they swept up. It's a problem with experts. They can battle all day long.

But I wanted to comment on something Lanny just said about the fact that Governor Bush didn't accept Vice President Gore's to have the nation -- the statewide, I guess, now statewide, maybe nationwide, manual recount. And the real problem is Governor Bush has been completely consistent on this issue. And he believes that it is inherently unfair. Not just the fact that it's in Democratic districts.

Of course, we know that the Democrats chose their districts where they had an overwhelming majority so that they would get more votes. But if you go into Republican districts, where I'm sure the same mistakes exist, we would overwhelmingly get more votes there. You still have voters who aren't getting an equal vote. We are manipulating chads. We're looking at them. We are having these things fall out and it's just not fair.

Indeed, it's interesting because there was a review that was done in one of the counties and it took, I think, 15 hours to do one percent. And so, if you add that up -- that was one day -- to do a hundred percent you're talking about months and I think Governor Bush realizes that we've had an election and we don't want to go into Christmas with this.

MATALIN: That's right. On the good side, friends, out there, nothing is going to happen tomorrow, so we may get a couple hours off but it's not going to be over for a long time.

As we go break, and more discussion on this, you're looking at partial results compiled by the Associated Press from counties that have counted overseas absentee ballots. These figures do not include any results from the various hand recounts going on in Florida. We will report those hand count -- hand count recount results to you as they become available.

Barbara Olson and Lanny Davis will also be available to you after the show in the chat room,


CORN: Welcome back to CROSSFIRE. I'm David Corn of "The Nation" magazine sitting in for Bill Press. It's day 10 of no decision 2000 a day full of ups and downs in the Florida courts and it looks like there will be no final certification of the Florida vote this weekend and no parties in either Austin or Nashville.

With us on this historic day are Barbara Olson, a Bush supporter and a lawyer and a Lanny Davis, a Gore supporter and a lawyer -- Mary.

MATALIN: This is pretty scary.

OK, Lanny, maybe we are going to need a really good criminal lawyer here. Let's go to some of these irregularities being reported. Police confiscated 78 chads in Broward, one of the Democratic counties, put them in a folder called crime, found property. Another Democratic county, Volusia, a parole clerk showed up with a bag of votes and a voting machine in the back seat of his car. The third Democratic county, Palm Beach, one of the canvassers there was reported in an affidavit by witnesses that she was poking her finger directly into the ballots.

Are you stealing this election, Lanny?

DAVIS: If things are happening that are irregularities, they are certainly happening on both sides and I don't think they're happening intentionally unless you have evidence of that, and I don't believe you believe in innuendo, Mary.

But let's go to the real serious question of the trust of the American people in this process. What the American people are asking is, who actually won this election? Vice President Gore's proposal was not to cherry pick and just do Democratic counties, even though the Bush campaign had the right to ask for a recount and didn't. Vice President Gore would join with Governor Bush and waive any objection. So that we do an honest count, I propose that President Carter and President Ford be brought in, maybe Bob Dole and George Mitchell. Why won't George Bush say yes to that?


DAVIS: Because he's afraid of the results.

MATALIN: But I just cited for you only three irregularities, only three irregularities. You can't cite one Republican irregularity. It's too late to get an honest count.

DAVIS: If your candidate George Bush were down 300 votes, you would want to apply the law in Texas that he signed and you would be asking for a recount by hand and you know it.

MATALIN: We just had an opportunity for a recount and we didn't in Iowa.

CORN: You know, there are alleged irregularities in Seminole County and other places on the Republican side. Barbara, I want to see if I can tease out of you one moment of political candor.

OLSON: You'll get more than one.

CORN: I'm just hoping for one. Imagine the situation is reversed. A Democratic secretary of state who is on the Gore campaign committee comes out and throws out recounts that have been requested by the Republican candidate in the closest election on record.

Do you mean to tell me that you and the other Republican spinners and the Bush campaign people wouldn't be out there on shows like this screaming bloody murder and saying that this fellow was trying to rig the election in favor of Al Gore?

OLSON: Well, first of all, if the roles were reversed, I'm assuming that the Democrat governor of the state would not recuse himself as Governor Jeb Bush has done.

CORN: Why not?

OLSON: If the roles were reversed and there was a Republican attorney general as you have a Democratic attorney general in the state, we would not enter into the case and write opinions and try to decide. A Republican attorney general likely would also recuse himself, as I said, as Jeb Bush did. And the real problem here -- and I would like to get to one thing Lanny said -- you know, we can't make new laws. We have some laws. It's a wonderful idea to have a commission decide our election. There have been so many rules rewritten, starting with dimples and pregnant chads, and now we're into let's have a commission do this. We have laws in Florida that say...

CORN: And we don't...

OLSON: ... there should be certification...

CORN: And we have courts in Florida...

OLSON: ... And the Supreme Court has decided on Monday they'll look at that and decide whether the secretary of state can use her discretion and look at the...

CORN: And if they don't...

OLSON: ... manual votes and count them up.

CORN: And what I want to know -- what I want to know, if the vote -- if the decision doesn't go your way, are you and Mary and my other friends on your side going to be out there the next day saying that this is part of this conspiracy to steal the election?

OLSON: But, David, we've never had a conspiracy. You know, you all have always invented the vast right-wing conspiracy...

CORN: You've been saying this... OLSON: ... And the real problem, though -- and I do want to make one point that I think is very important -- the real problem that we have here is we have ballots that are being degraded every time they are looked at. We can't tell where original votes were anymore. They've gone through machines two and three times, they've been looked at and manipulated.

You are getting reports all over Florida, I'm hearing even more reports of fraud and activity. And the problem with that is not necessarily evil people doing it, but the people counting those ballots know that each vote is precious and that they can change an election for the presidency based upon their looking at the intent of the voter.

MATALIN: Barbara...

OLSON: I think that's wrong and no way to choose -- yes.

MATALIN: Barbara, thank you for joining us. Go back and be an observer. Clearly it's necessary on the ground there.

Lanny, last word to you.

DAVIS: Look, one thing we should all agree on is there should be some finality. The Supreme Court spoke today. It will speak on Monday. If we count all the ballots, we will have a legitimate president that we can all rally round. My old friend George Bush can be a good governor. Thank you.

MATALIN: Not likely. And you'll find out why when David and I return.

Stay with us on CROSSFIRE.


MATALIN: All right, CROSSFIRE continues online tonight. First debate, Gore supporter Lanny Davis, then Bush supporter Barbara Olson. Just go to right after this show.

Don't forget to tune in this Sunday for a CROSSFIRE special edition.

And we want to hear from you. If you have questions or comments about the election, log onto, once again, to send us an e-mail, and we'll respond on Sunday's show.

Manufacturing votes, bribing electors, intimidating local officials, investigating electors. This is the only way Gore can win: lie, cheat and steal. It's you bumper sticker: Lie, cheat and steal -- vote Gore.

CORN: So you don't trust the Florida courts. You have a secretary of state...

MATALIN: Did I say that? I didn't say that. CORN: ... that's done her decision -- will you still claim...

MATALIN: I said lying, cheating, stealing.

CORN: Will you still claim that the election was stolen if the Florida courts say that it's OK for the recounts to go ahead?

MATALIN: Not unless they include looking at all these irregularities of stolen, manufactured ballots.

CORN: You know, I say put the spin aside...

MATALIN: I'm not spinning.

CORN: ... and let the legal process work it out. You show me evidence...

MATALIN: No, I'm the rule of law person, OK? Your the means justify...

CORN: Well, OK, the rule of law is the courts.

MATALIN: The ends justify the means.

CORN: Well, I don't believe that, but Mary said.

From the left, sitting in for Bill Press, I'm David Corn. Good night for CROSSFIRE.

CORN: And from the right, I'm Mary Matalin. Have a wonderful weekend.

Join us next week for more -- no, join us on Sunday for a special Sunday edition of CROSSFIRE.



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