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Burden of Proof

Election 2000: The Nation Awaits a Decision from the Florida Supreme Court

Aired November 21, 2000 - 12:30 p.m. ET


ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: The contest for the White House rests with seven justices in Tallahassee. The nation awaits a decision from the Florida Supreme Court.


MICHAEL CARVIN, BUSH CAMPAIGN ATTORNEY: How can this court, after the election has been held, start deciding, resetting the statutory deadlines, re-analyzing the statutory terms for resolving empirical questions of the sort that you're discussing and redoing everything that reflects a considered judgment that's already in the election code?

DAVID BOIES, GORE CAMPAIGN ATTORNEY: If you concluded that it was essential to avoid unfairness or some kind of overweighting of one county's vote over another county's vote, this court has, within its equitable power, to have a statewide recount if that was necessary.


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

COSSACK: Hello and welcome to BURDEN OF PROOF. Now, my colleague Greta Van Susteren was on her way back from Tallahassee, Florida when she got caught and was delayed in the Charlotte airport where there has been an airport security breach. Last I heard, she's stuck on that airplane -- aren't you glad you're not on that airplane? She's going to be back with us tomorrow, though.

Now, the ruling from the Supreme Court could come down at any time. The arguments before the court: Did Florida's Secretary of State Katherine Harris act within the law to call for last Tuesday's 5:00 p.m. deadline for turning in vote totals? Should manual recounts continue, and will they be included in Florida's vote totals?


CRAIG WATERS, FLORIDA SUPREME COURT SPOKESMAN: Eventually there will be a majority opinion. As I've told you before, Florida's Constitution requires that at least four justices must agree before the court can take any action whatsoever; so they have to reach, at least, that threshold. Then, after the opinion is finalized and any dissenting and concurring opinions are also added, the chief justice will authorize the release at a certain time, and then the procedure that I told you about will kick in.


COSSACK: And joining us today from Tallahassee, Florida is former Florida Supreme Court justice Ben Overton. Here in Washington, David Rusiecki (ph); Miriam Vincent from the office of the federal register; and constitutional law professor Mark Tushnet. In the back, Julie Vijayvargiya (ph), John Feere (ph) and Angie Anderson (ph).

Well, Justice Overton, I want to go right to you. The justices are deliberating now -- tell us what's going on, tell us how they deliberate; what do they do?

BEN OVERTON, FORMER FLORIDA SUPREME COURT JUSTICE: Well, first, right after oral arguments yesterday they went into conference -- just the seven justices, no staff. The case was probably assigned, as it ordinarily is, on a blind assignment to one of the justices who would take the lead to begin the discussion, to determine: one, what should be the result and, two, what should be an opinion.

Then each justice, in order of seniority, expresses his views or her views, and their ideas as to what should be in the opinion. I might say the chief justice speaks last. After they conclude their discussion and have a preliminary determination of what a result should be and what should be in the opinion, it will be left to the assigned justice, as long as that person is on the prevailing side, to draft an opinion which will be just immediately circulated to all the justices. They will make both written comments concerning it and then they will, again, reconvene to discuss the opinion.

COSSACK: Justice Overton, it all sounds so civilized, but does it get a little heated in there? Is there ever a time when these justices, perhaps, you know, drop their civility and get a little angry with one another?

OVERTON; There's an old rule: You can disagree up to the point of being disagreeable.


COSSACK: But is there ever a time when, perhaps, two or three justices who may think one way get together and caucus a little bit to decide how they can convince the other justices who, perhaps, aren't seeing it their way?

OVERTON: Let me say this, these are seven individuals that spend eight to nine days a month together discussing cases and legal issues; so they are in a collegial body and they understand the process. And, as I said, that little principle of disagreeing up to the point of disagreeable is pretty well enforced.

COSSACK: Justice, have they made up their minds pretty much before the oral argument? Does the oral argument ever sway them, or rarely? What part does oral argument play in this? I know they've seen the briefs before they've had the oral argument and they've had the chance to study the briefs.

OVERTON: I've said on a number of occasions in teaching this subject of appellate practice and oral argument, that an oral argument is important because it forces a court to act collegially together, to hear the presentations by the lawyers and then to immediately discuss what the issues are. They all, of course, read all the briefs; and I think you could tell that by the questions that were asked yesterday.

But there is one thing: Each of them, when they read and prepared the materials, probably came up with matters that they wanted to have answered or clarified for them. It's very dangerous for a lawyer not to answer a question because, I have said in instances in teaching oral argument, you may not win a case in oral argument, but you sure can lose it in oral argument.

COSSACK: Mark Tushnet, we saw, yesterday, competing lawyers talking about, in some ways, very different things that the court should consider. The Bush people, I think, were arguing, look, you know, the secretary of state was well within her discretion in ordering the vote certified last Tuesday; and the Gore people were saying, let the hand count continue and after it's continued you must include it.

How can you have two such disparate views?

MARK TUSHNET, CONSTITUTIONAL LAW PROFESSOR: You have those sorts of disagreements for two reasons: One, the statutes really are not all that clear; they're not as clear as the Republicans were contending; and two, there's serious political disagreement, which inclines people to read the statutes in the way most favorable to their political position.

COSSACK: Well, but the political -- understanding that that's what the client's position is is through the politics, the notion of these competing statutes -- it seemed like one of the things that the court was really concerned about was, look, whatever happens we want to make sure Florida's votes get counted as a policy. And it seemed like they're working down from that.

Did you agree?

TUSHNET: Yes, they certainly want to make sure that the votes get counted in the electoral college. But they also want to do that in a manner consistent with Florida law. And to do that they have to reconcile the provision that does authorize hand recounts with the provision that says there's a seven-day period; and figuring out exactly how you reconcile those two provisions is the task that they're now facing.

COSSACK: All right, let's take a break. Up next, the nation waits as the Florida Supreme Court considers the legal arguments surrounding election 2000. Stay with us.

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; and 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.



WATERS: After an argument, the justices will meet in conference, and go over their initial impressions about the case. They sometimes will make an initial vote. There is a justice that is assigned to write a majority opinion. Some justices may agree with that, but want to write a separate opinion of their own. Some may disagree, and decide to write a dissenting opinion.

Typically, they break up and go back and start doing research and start drafting opinions. They sometimes write memoranda and circulate those to other members of the court just to get feedback on particular issues. Eventually there will be a majority opinion.


COSSACK: Welcome back. I want to remind you that my co-host Greta will be with us tomorrow. She unfortunately was in the Charlotte airport when there was a breach of security, apparently someone had a toy gun which shut down the airport for at least two or three hours, causing Greta to be stranded on the tarmac in an airplane, but she will be back tomorrow and luckily and fortunately all is well.

Now for two hours yesterday, justices on the Florida Supreme Court heard arguments, and questioned the attorneys about vote deadlines and manual recounts. Now their decision could be handed down at any time.

Miriam, I want to ask you about the process and the procedure here. Now, give us deadlines, and give us dates, and when does all of this have to be in, and when are we going to hear the vote, and when is the procedure set up that we will know who the next president is?

MIRIAM VINCENT, OFFICE OF THE FEDERAL REGISTER: Well, at this point, probably we will know who the next president is January 6th, I hope.

COSSACK: I hope.

VINCENT: I hope.

COSSACK: Now back up a little bit and tell us the dates and the deadlines.

VINCENT: Well, all of the deadlines are statutory. They are not constitutional. They are found in 3 US-C.

COSSACK: That is the United States Code.

VINCENT: Correct. The first deadline is a little known provision, which is Section 5, which says that any controversy shall be determined at least six days prior to the meeting of the electors.

COSSACK: What does that mean "controversy"?

VINCENT: It's not defined. Presumably...

COSSACK: Controversy is one of the few times when it means controversy.

VINCENT: It means controversy, I mean, presumably what is going on in Florida would count as being a controversy. Then -- but also there is no remedy, or there are no consequences written into the statute anywhere that says, OK, if you don't meet this deadline, this is what is going to happen. It just says you've got to meet the deadline.


VINCENT: The next date is December 18th, which is Monday, a week before Christmas, which is when the electors meet in their individual states to actually cast their votes.

December 18th is also the deadline for us to receive all certificates of ascertainment from the states, which the states certify the popular vote, and actually send in the names of those members who are elected to be members of the Electoral College.

COSSACK: What happens if they don't get it in by December 18th? What happens if Florida is still counting ballots down there and looking for chads on the floor, what happens then?

VINCENT: Well, again, there's no statute, or there's no constitutional provision that says this is going to happen. Presumably -- we don't have the authority to return anything that comes after the date. So we would accept it, I assume. And then it would go to Congress to decide if it is going to get counted or not, or if they are going to disallow the votes because they were not cast in a proper manner or whatever that specific terminology is.

COSSACK: Talk about the word controversy if it gets to Congress.

VINCENT: Yes, yes.

COSSACK: So, in other words, what you are telling me, there are these statutory dates, but that they are kind of soft statutory dates, is that right?

VINCENT: That's correct. I mean, the dates are set, and they are calculated specifically, so you always know what the date is, but there is nothing that says what happens if you don't meet the deadline.

COSSACK: All right.

Justice Overton, I want to come back to you a second and talk about the problems that the court has in making decisions where you have two conflicting statutes, or some would argue conflicting statutes, like you have that they are discussing now. How do you go about reconciling that? How does the court go about reconciling that? Do they look for legislative history? What do they want?

OVERTON: Well, first of all, I think it is important to recognize you said there are two conflicting statutes. The first principle courts have to follow is to try to reconcile the differences within the two statutes to make them both make sense.

You heard arguments, in some instances yesterday, that asserted that one statute trumped the other, although the statutes didn't directly say that they repealed the other or amended the other.

So that their first obligation really under that type of principle is to look at ways that the statutes that had been asserted by both sides to be in conflict can be construed to carry out the intent of both. If not, then they have to look at what really is the intent of the election scheme by the statutes as a whole, and try to follow that.

The other thing that's in this, as you said, is the time constraints. They discussed yesterday, in oral argument, what was the final date that the secretary had to certify the results where the Electoral College designees would be appointed. And they apparently came to a conclusion in that oral argument that it would be December 11th.

COSSACK: Mark, in terms of power, does the Florida Supreme Court have the right or have the authority to order a recount of the entire state?

TUSHNET: It probably does. This is a question, of course, of Florida law, and Florida election law. To the extent that there are indications in prior cases about the scope of the Florida Supreme Court's power, it's pretty broad that they can enter an order aimed at figuring out what the right solution is. That could be a local recount, it could be a statewide recount. It's pretty much, as I understand it, pretty much in their discretion, if they decide that the law authorizes them to do anything, they have a fairly broad scope of things they could do.

COSSACK: All right, let's take a break. When we come back we will talk about what are some of those things that they can do. We will find out more about the Florida Supreme Court while we await the decision. Stay with us.


Q: Why was Judge John Miller asked to recuse himself from any further court action on the Broward County recount issue?

A: Republicans accused Judge Miller of exhibiting bias against their party in rulings he had issued. Miller recused himself, and Judge Leroy Moe was assigned to the case.



COSSACK: We are back. I want to bring you up to date on the unofficial recount that is going on now in the state of Florida. I have some numbers for you, and I want to stress that these numbers are unofficial.

In the recount in Broward County, we have Gore having a net gain of 115 votes. In Palm Beach so far, Gore has a net gain of three votes. And in Miami-Dade, he has a net gain of 72 votes for a total of, unofficial this is, is 190 votes, which leaves him trailing Governor Bush by 930 votes, and I want to stress again that this is unofficial.

However, I was just told that 930 is the official number that he trails now, but the numbers that I previously gave you are unofficial number, but it is official that he trails by 930 votes.

Now, the Florida Supreme Court, we hope, will soon rule on manual recounts and the discretion of the secretary of state in accepting late vote tallies.

Meanwhile, a court ruling that a revote would be unconstitutional is being appealed in Palm Beach County.

And in Miami-Dade County, a circuit court judge today rejected a Republican motion to halt manual recounts, saying he lacked jurisdiction in the matter.

Justice Overton, does that mean that that Palm Beach will be coming to the Supreme Court soon? or do you think this is the end of it?

OVERTON: Well, there is a procedural way that they could come to the Supreme Court. They have to, first, under our structure here, go to the district court of appeal, and that court has to certify the case to the supreme court.

COSSACK: All right.

Now, Mark, let me talk about this Palm Beach issue because I think it is sort of an interesting one. In this case, these are a group of voters from Palm Beach County who are claiming that the Palm Beach ballot, this famous butterfly ballot, was so confusing that in effect it had the effect of depriving them of their right to vote. That sounds to me like a voting rights violation under the voting rights law, and perhaps a case that could end up in the United States Supreme Court. Your thoughts.

TUSHNET: I think, first of all, it is unlikely to get to the Supreme Court, partly because these issues do have to be resolved very quickly. Second, it is worth emphasizing that nobody yet has held that the ballot was in fact so confusing as to violate the law. What the judge in Palm Beach yesterday said was that, even if it violated the law, the remedy was not going to be a revote in Palm Beach County, that if it did violate the law, they would have to figure out some other way to rectify the illegality. COSSACK: But why wouldn't it be a revote in Palm Beach County? If in fact, and this is all hypothetical, look, let's say that a judge holds that the Palm Beach ballot was so confusing that a substantial number of people were deprived of their right to make a knowing vote, I mean, that's the basis of what the voting is all about. Wouldn't that call for a revote?

TUSHNET: Well, the basic image you have to have in mind is: What would the campaign look like in Palm Beach County if there was a revote? Everybody knows what the significance of the outcome would be. So the political parties would invest huge amounts of money, trying to influence this rather small electorate. It would be really administratively impossible to have a revote.

COSSACK: Justice Overton, the Supreme Court knew yesterday that they were on television, they know how important this case is, is this something that's being discussed among the justices, their need for clarify, perhaps unanimity in this case?

OVERTON: Well, I think that they do have to look at it from the standpoint of having a good analysis of their decision after they make a determination of what a proper result is in trying to interpret these statutory provisions that are, and have been said to be, confusing and in conflict.

But also the underlying purpose of the election statutes are to make sure that everybody's vote counts, and that's specifically said both in case and in the statutes.

So what they have to do is to try to make sure that they are articulating the basis for their ruling. But they also are concerned about the time constraints, as you could tell by the questions yesterday.

COSSACK: Right, OK. All right, thank you, Justice Overton. Thanks to all of our guests. And thank you for watching.

Today on "TALKBACK LIVE," weigh-in on these historic legal developments in Florida. I want you to e-mail Bobbie Battista and tune-in at 3:00 p.m. Eastern time.

And CNN will continue to monitor developments in Tallahassee. And I promise you Greta will be off that plane and with us again tomorrow for another edition of BURDEN OF PROOF. We will see you then.



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