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Burden of Proof

Election 2000: Gore Versus Bush Before Florida Supreme Court

Aired November 20, 2000 - 12:30 p.m. ET


GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF, arguing the law. It's Gore versus Bush, but this time it's in the Florida Supreme Court.


JIM SMITH, FMR. FLORIDA ATTORNEY GENERAL: This is not a complicated legal issue. It's really not a constitutional issue. They're being called on basically to interpret a statute.

GERALD KOGAN, FMR. FLORIDA SUPREME COURT JUSTICE: Regardless of what their political philosophy is, these people want to come up with an opinion and a decision in this case that's going to be fair to everybody. They're not going to let politics bother them.

CRAIG WATERS, SPOKESMAN, FLORIDA SUPREME COURT: This is a case of great public importance requiring immediate resolution by the Florida Supreme Court. The court takes the word "immediate" seriously. So this case has the court's highest priority right now.


ANNOUNCER: This is BURDEN OF PROOF, with Greta Van Susteren and Roger Cossack.

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF. I'm in Tallahassee today. And just behind me is the Florida Supreme Court where, in 90 minutes, the lawyers for both Vice President Al Gore and Gov. Bush will begin arguing their case before the highest court.

ROGER COSSACK, CO-HOST: Attorneys from each side will have up to one hour to articulate their arguments. At issue: a circuit court ruling which affirmed that Secretary of State Katherine Harris followed Florida state law in rejecting vote tallies after Tuesday's 5:00 p.m. deadline.

VAN SUSTEREN: And joining us from Miami, Florida is Roy Black. And in Gainesville, we're joined by professor Jon Mills.

COSSACK: And joining us here in Washington, Brian Jones (ph), law professor Neal Katyal and Anita Patankar (ph). And in the back, Christopher Bill (ph) and Erin Shanahan (ph).

And now I want to go right to Jon Mills. Jon, the argument before the supreme court today, each side seems to phrase what they're asking the court to do in different words, but yet the issue seems to be, are these votes legal? And did the secretary of state abuse her authority or overstep her authority? But yet each side comes to it in a different way, right?

JON MILLS, LAW PROFESSOR: Well, there are really only two questions left. That is, the legality of the hand count. The Bush attorneys are saying that it was de facto illegal because you're not supposed to consider it unless the tabulation was a machine problem, so they should never have been considered or even should there have been a recount.

The second question is, of course, the obligation of the secretary of state. The Bush attorneys say that she has the freedom to make a decision based on her discretion, and the Gore attorneys say the ballots are legal, and since they are legal and could affect the outcome of the election, that she has an obligation to consider the hand recounts. So those are the two legal questions.

VAN SUSTEREN: Jon, let me ask you about that first question, about whether the hand count is legal. Now, the secretary of state says you cannot have a manual hand count unless you have a power outage, an act of God or a tabulation system error. Is the word "system" in that statute -- because the Democrats say it's enough to have a tabulation error and the secretary of state says it has to be a system, a mechanical equipment error?

MILLS: Well, it appears -- well, from the argument made by the attorney general, and of course the argument made by the Gore attorneys, that they rely on the issue of tabulation, that if you show a distinction and if you have a 1 percent count that shows a distinction in the ultimate count and what you've got from the 1 percent count, that you're then justified to go to a hand count. It would also seem to me that the Florida Supreme Court has let this go on through several iterations in last couple of days.

COSSACK: Neal, does it -- could the court come to this decision? Could they say, yes, the hand count is legal, the hand count should go on, and, yes, the secretary of state acted properly, so that you end up with a situation where you have both sides winning but really the votes don't come in?

NEAL KATYAL, LAW PROFESSOR: Absolutely. In fact, I think that that may be the most likely course of action, that the court will say, yes, the counts are legal and they should go on; the secretary of state has the discretion to exclude them from her count. The reason is there's another provision in the Florida statute that's called Section 168 which allows contesting an election after the results are finally in. And what the supreme court may very well do today is say, Secretary of State Harris can refuse to count these votes. The Gore attorneys then can bring their 168 challenge, and then we'll be back before the Florida Supreme Court next week.

COSSACK: And then we go on and on and on and on. KATYAL: And on and on. And let me say that I think that that may be the strongest argument for the Gore attorneys because it bypasses this whole question of whether the secretary of state acted properly or not. It's simply, are the legal votes being discounted?

COSSACK: It begs the question, doesn't it?

KATYAL: Well, it doesn't beg the question. What it does is it says that it should be a court that decides whether or not these votes are legal, not a secretary of state, who's a partisan official who's, you know, who's got perhaps some separate issues of her own.

VAN SUSTEREN: Roy, I don't know if you're a Democrat or Republican, but which case, which side would be more fun for you as a lawyer to argue today? The one on behalf of Vice President Al Gore or George W. Bush, and why?

ROY BLACK, CRIMINAL DEFENSE ATTORNEY: Well, you know, Greta, I took the unusual step. Instead of listening to all the PR people of the campaigns, I sat and read the statutes. And I came across a couple of issues that I think are important. Number one, the secretary, to exercise her discretion, has to look at all the evidence. The count hasn't been done yet so she doesn't have the evidence before her. The statute says that manual counting trumps machine voting. That's the Florida statute 102.166 sub 5. It also says that any time within the seven days prior to certification, if there's an error in the tabulation, you can ask for a manual recount. Obviously that manual recount...

VAN SUSTEREN: Let me stop you for one second. Let me stop you for one second. If the secretary of state says tabulation system error and says it has to be equipment or malfunction in order to have the hand count, is the word "system" in the statute or is it simply "tabulation error"? And does that make a difference?

BLACK: I think it's purely a tabulation error. I think the standard is much lower than what the secretary set. But in any event, how can the secretary say that she's exercising her discretion before she gets the final total to see what the errors are? I mean, it makes a big difference if there's a small error or a big error.

Now, as I was saying before, within the seven days, anybody can ask for a recount. Obviously the manual recount's going to go beyond the seventh day, and has done so in the past and has been lawful to do that. So the secretary has really not exercised her discretion properly. I think the court's going to order that the recount be done, then the secretary should exercise her discretion based upon what the evidence shows.

COSSACK: You know, Roy, some might argue that it only took seven days to create the Earth, I don't know what's taking so long here. But let's take a break.

We'll be looking at some pictures of the Florida Supreme Court and watching. We'll see when and if the lawyers arrive. Stay with CNN. We're going to take a break right now. Seven justices, don't forget, will hear today's argument on the Florida Supreme Court bench. We're going to have a closer look at that court and those judges when we come back. Stay with us.


The canvassing board of Broward County announced yesterday that they had rejected about 246 absentee overseas ballots. Of the 246 ballots tossed, 119 were postmarked after Election Day. Others were disqualified for various other reasons.



VAN SUSTEREN: Good news for our Internet-savvy viewers. You can now watch BURDEN OF PROOF live on the World Wide Web. Just log-on to We now provide a live video feed, Monday through Friday, at 12:30 p.m. Eastern time. If you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show and even join our chat room.

COSSACK: The case of hanging chads and manual recounts could end up on the docket of the Florida state supreme court. That court, located just across the street from the circuit court in Leon County, is a virtual legal legacy of the late Democratic Governor Lawton Chiles. Chief Justice Charles Wells was appointed by Chiles in 1994. Justice Leander Shaw was appointed 17 years ago by Governor Bob Graham. Justice Major Harding was appointed by Chiles in 1991, and Harry Lee Anstead was added in 1994. Three years ago, Chiles appointed Barbara Pariente to the bench, and then added Fred Lewis in 1998. And the initial nomination of Justice Peggy Quince was made by Governor Chiles, then supported by his successor, Governor Jeb Bush.

Roy, you probably know this supreme court quite well. You've probably been in front of them, I know you have several times. Is this the kind of bench that will, what I say, beg the question in a sense that they could come up and say the secretary of state acted properly, but yet the votes are legal, leaving for another day the question of whether or not Vice President Gore, assuming that -- or the other side, brings a contested action against to overturn this whole election, or would they just short cut it right now and make the decision to include the votes?

BLACK: I think they are going to want to answer the question, Roger, though we all know judges love to squeeze out of tough decision-making whenever possible. But I think here they are really presented with the interpretation of these statutes.

I mean, before we get to the issue of challenging the certification afterwards, they have to see that the secretary properly exercised her discretion. And let's face it, she does have some discretion here. The only question is: Did she exercise it by taking into consideration all the evidence? I expect this court, which is a moderately conservative court to interpret these statutes and give guidance to the secretary, and then send it back to her and say: Look, you've got to follow these particular rules, you can't decide until the manual recount is over, you've got to do this and that, and then you can exercise your discretion. At least that's what I think is going to happen.

VAN SUSTEREN: You know, Jon, what I find so intriguing about this is that the issue that came up from the lower court really centers around the issue of whether or not a hand count is legal in these circumstances, and if so, whether or not the hand count should be counted in the final tally.

But slid in through the back door, and not considered by the lower court, is the issue of the standards for actually looking at these ballots to count. How did that make it before the Florida Supreme Court, you are supposed to start in the trial court. This one has just suddenly shown up as an issue?

MILLS: Well, I think the standard issue will be based on what criteria the secretary chose. One of her references was the contest statute, which was referred to earlier, 102.168. So that issue is going to raise, did you invite all of those criteria, among those that you chose, and one of the criteria that was not enumerated was the rejection of legal ballots that might change the results of an election.

So you might imagine the supreme court saying that you haven't considered all the facts because the count is not in, and when you do, you might consider this criteria.

COSSACK: Neal, I have a great thought that I know many Americans share with me, and that is that this thing is over quickly, and we have a president. Let's suppose, though, that -- let's take the other side, what you pointed out, the fact that they could come to two decision which, in fact, then invite a lawsuit that contests the election. How long would that take, and how would that occur?

KATYAL: Let me say that is what the trial judge in Florida, Terry Lewis, who had this case before, did. He said the Florida secretary of state has discretion, has exercised it properly here. And then said, at the end of his opinion, that this 168 procedure is the proper procedure by which Gore should bring a lawsuit.

COSSACK: That is the contesting of the entire election.

KATYAL: Yes, contesting of the entire election after it is a final. Now I think that this could be wrapped up in a period of days, that the legal arguments are fairly clear, in fact both sides have kind of already briefed or tipped their hands in their current briefs. So I don't think this would require much more effort. But I think that it is an interesting thing...

COSSACK: Wouldn't it require a great deal of evidence. I mean, if you are claiming that the election has been -- something is wrong, and that you are contesting it, wouldn't you have to put on evidence to show what is wrong.

KATYAL: You would have to put on the evidence that says that the machines systematically undercount ballots, and you can just show some, and then the count itself may take a while, there's no question about that. And I think what Broward and Palm Beach County are saying that most of the counts will be done by the end of this week, I take it. So maybe it won't take as long as some are projecting.

VAN SUSTEREN: And Neal, it is of course wishful thinking, of course, that doesn't take into account the fact that there may be an appeal out of Palm Beach County in the decision earlier today, as well as Seminole County.

But Roy, let me go to you before we go to break. We were talking a few moments ago off air about the fact that if Governor George W. Bush loses here, and then wants to get to the United States Supreme Court, you saw something quite ironic about it, and I wanted to ask you about that.

BLACK: Well, Greta, it's always been the strict construction conservative side that you do not go to the federal courts, it should be done at a state court level. I think everyone agrees it should be at a state court level.

I wanted to add one other thing, though, that the problem with the secretary's decision, and her discretion, you know that she accepted the manual recount of the ballots in Volusia County, and now was saying she's rejecting the ones out of Dade, Palm Beach and Broward. It is that kind of inconsistency that's going to trouble the supreme court, and that's why I think they are going to saying: Look, you are going to have to re-examine this, let all the votes come in, then exercise your discretion because the way it is now, you are totally inconsistent.

VAN SUSTEREN: But I think what she would also say, though, is that Volusia County got in before the 5:00 p.m. deadline, and I think she is quite critical of the other counties for essentially sitting on their hands and not completing their votes in time. But of course those counties are saying; Look, we never could do it within seven days, and that's going to be the battle behind me. But we are going to take a break...

BLACK: Not only that, but they are going to say that the secretary's actions interfered with their ability to count, so they couldn't do it within the seven days.

VAN SUSTEREN: We will be right back with more. Stay with us.


Q: How are the justice for the Florida Supreme Court appointed?

A: Under Florida law, the justices are appointed by the governor. In the first general election after their appointments, they are either retained or voted out by the voters.

If the justices are retained, they serve for six years. No justice has ever been voted out of office.


VAN SUSTEREN: Welcome back to BURDEN OF PROOF. We are about an hour and five minutes away from CNN taking you inside the Florida Supreme Court for an exciting argument before the Florida Supreme Court. It is Gore versus Bush.

Roy, as lawyers look at these Supreme Court justices, do you have your eyes on one particular justice as being the linchpin? And is there a justice these who is going to be asking all the questions? And will some there be just sort of inanimate objects watching and listening?

BLACK: Well, there are certainly justices who are going to ask more questions than others, but trying to divine who is going the make this decision is very tough. I think it is going to be unanimous decision. They are not going to do anything when they are split.

I would hope, knowing how this court is, that they would say the manual recount goes ahead if Al Gore -- let's say if Bush wins on the manual recount, it is over. If Al Gore wins, then I think they've got to say it is unfair and they have to recount the entire state or revote. I mean, they have to come down in the middle of the road here. They can't look partisan one way or the other, and they can't help one party or the other. It's got to be -- it has to be look as to be very fair and moderate.

VAN SUSTEREN: But how can they say the whole state? I mean, only a few counties have actually made this application to the Supreme Court, Roy, how do you bring in the entire state?

BLACK: I know that, but I think that they have the ability to do it. I think, if you only allow those four counties to do this, you are always going to have a dispute afterwards. I think if Gore wins out of those four counties, and wins the election, I say they have to order the entire state recount, because if they don't do that, it is not going to look fair.

COSSACK: There is Roy Black wanting the entire state recounted, next the whole country.

Neal, what do you say?

KATYAL: With all respect to Roy, I don't think that is going to be a likely outcome. It is not unfair for Florida's judges to follow Florida law, and Florida law says that manual recounts trump automatic recounts, and anyone can ask for them up to seven days before the results -- right before the results are certified. The Republicans did that in some counties, in six counties there were manual recounts, and the Democrats have done it in three or four. I don't think it is unfair. I think it is just following the law that's laid down by the Florida legislature ahead of time.

VAN SUSTEREN: Neal, how do you answer the question, I mean, many viewers out there are probably thinking, well, this is a Democratic court, this is going to be a political decision. How do you respond to that?

KATYAL: Well, actually, Greta, my fear is the reverse, that because it is a Democratic court, and they are watching what happened to Secretary of State Harris getting attacked in the papers and in the press that they are going to bend over backwards to have a ruling that's fair, and indeed maybe even lean Republican, because of the enormous amount of pressure on them. So I wouldn't be surprised if this would cut the other way.

COSSACK: Jon, what about it? Are these people going to give in on the Supreme Court to possibly the political pressure, worry about Katherine Harris, or are they, as most Supreme Court judges that I know, just going to call it the way they think is best?

MILLS: Well, I practiced in front of them a few times as well. My judgment is they view this as a historic moment, and I think they are going to use their very best judgment, they are going to rely on the law. This is not a very doctrinaire set of legal questions. I mean, there are some fairly straightforward legal questions, and I suspect you are going to see no partisanship in this court at all.

COSSACK: Jon, what if Gore wins, could Bush then sue to overturn the election on fraud based on this hand count?

MILLS: Well, the same statute we've been talking about, the 102.168 that would require counting...

VAN SUSTEREN: I don't think arguing fraud...

MILLS: No, there is, under 168, there's a provision that deals with misconduct and fraud, on which you can contest an election. So if you thought that you could prove that the hand count was fraudulent, or based on misconduct, I would think you could contest the election under 168.

COSSACK: All right, we've got to go. That's all the time we have for today. Thanks to our guests, and thank you for watching.

One sad note, though, former White House counsel Charles Ruff died yesterday. The well-respected Washington lawyer defended President Clinton during his trial in the Senate. Ruff also served as an acting deputy attorney general. He was a U.S. attorney, as well as a special prosecutor. Charles Ruff was 61 years old, and he will be missed.

In just one hour, the Florida Supreme Court will begin hearing arguments from the legal teams of the Gore and Bush campaigns. CNN will have live coverage from the courtroom, as well as extensive coverage throughout the day.

VAN SUSTEREN: And we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.



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