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Breaking News

The Florida Recount: New Crop of Lawsuits Arises

Aired November 22, 2000 - 2:54 p.m. ET

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

STEPHEN FRAZIER, CNN ANCHOR: Now to David Cardwell who's the kind of man we need on the spot to answer that question we just put to Kate Snow.

What happens should the legislature go ahead and select a new group of electors, David?

DAVID CARDWELL, FORMER FLORIDA ELECTION DIRECTOR: Well, the federal Constitution says that the members of the Electoral College from each state are selected in the manner that the legislature determines. In this state, the legislature has passed a statute which says that the electors are the slate that represents the candidate who received the most votes on Election Day. That's a statute; the legislature could change that. The legislature could either change the method for selecting the electors or it could actually pass a statute which names the electors by name.

FRAZIER: So they can change things as they go here?

CARDWELL: That's right. Now, they're going to have to do it, though, before December 12 because December 12 is the deadline for submitting the names of the electors to Congress, and then they vote on December 18. So December 12 is the critical date, as was evident in the oral argument before the Florida Supreme Court when they constantly asked, was that the absolute date before Florida's votes went into jeopardy.

NATALIE ALLEN, CNN ANCHOR: David, thanks again; that's another angle we'll be watching that could happen in Tallahassee.

We're also waiting to hear from a judge in Palm Beach County. We may hear what he has to say about whether the county canvassing board should be counting those dimpled ballots. He may or may not decide on that. And when we started two hours ago, the Miami-Dade canvassing board just voting to stop all recounts there. The Democrats say they'll appeal that decision.

Let's go to CNN's Frank Buckley who's there, who can bring us the latest -- Frank.

FRANK BUCKLEY, CNN CORRESPONDENT: Natalie, we just talked to Jack Young, who is an attorney for the Democrats; and he was just telling us, adding to what we've heard from the Gore campaign that, yes, indeed an appeal will immediately be filed. They are planning to file one here in circuit court here in Miami, an appeal of the decision by the canvassing board here, reversing its previous decision to just do a count -- a manual recount -- of the under-vote. Those 10,750 ballots that did not seem to indicate a presidential candidate selection -- and reversing that decision later today, and now deciding not to go forward with a manual recount at all.

ALLEN: Frank, excuse me, we're going to have to interrupt because we've just been handed a bulletin, and that is Candy Crowley has learned that George W. Bush is authorizing his lawyers to file an appeal with the U.S. Supreme Court in an effort to shutdown all hand recounts of Florida ballots. Of course, the only two counties, as Frank is telling us now, that are doing the hand recounts are Palm Beach County and Broward. Many people wondered what, if any, next step the Bush team would take; and apparently they are taking this matter to the U.S. Supreme Court.

FRAZIER: Now, we were talking to Frank Buckley a moment ago; we're going to keep him on hold and go back, once again, to David Cardwell for his insight into what this will mean.

David, will this supersede everything that's happening in Florida?

CARDWELL: Well, it could. What's interesting about going directly to the Supreme Court here is that the issues before the Florida Supreme Court were predominantly state law issues, which does not raise the federal question that the U.S. Supreme Court can determine. Of course, this is a federal election for federal office.

The other thing to keep in mind is that this Supreme Court of the United States hash over the past few years shown a great deal of deference to the states. When the states, either through the legislatures or the state courts have made decisions, the U.S. Supreme Court has said, we're not going to interfere with that.

And finally, let's not forget that there's still a lawsuit pending in the 11th circuit court of appeals that was filed by the Bush campaign and challenging the whole manual recounts. The 11th circuit said they would hear that case, but they haven't set an oral argument for it yet. So we've got that case still pending on the federal side; so it remains to be seen whether the 11th circuit goes first or they're able to get up to the Supremes.

ALLEN: We will wait and see what happens next. David Cardwell, thanks again.

The news from the past two hours is we've just learned George W. Bush and the Bush team appealing to the U.S. Supreme Court; but, as you heard from David Cardwell, the Supreme Court has used a great deal of deference to the states, keeping this a state manner. We still, of course, have the appeals court here in Atlanta that may hear the case as well; and also in the past two hours, we learned that Broward County will not recount any more votes, and that is something the Gore team will appeal.

FRAZIER: That was actually Miami-Dade County which changed its mind about it's recount...

ALLEN: Sorry about that.

FRAZIER: ... so let's go back to Frank Buckley, who was there filling us in on that decision and what has happened since.

Frank, sorry about that.

BUCKLEY: Stephen, it's a little difficult to hear you because, if I could have William -- just pan over, William and if -- I just want to give you a sense of what we're up against. There is a great crowd of protesters here. They're constantly making noise, so it is a little difficult for us to hear you, and so I apologize -- if you've asked a question I couldn't hear it. But the bottom-line here is that Republicans have been elated over the decision by the canvassing board to simply go with the certified vote that they have gone with before.

Joining me now is Congressman Steve Buyer of Indiana, a Republican who has been here as a chairman of the armed services subcommittee on personnel.

You were particularly concerned about the military ballot. Give us your reaction to the decision here by the canvassing board.

REP. STEVE BUYER (R), INDIANA: Well, you're right -- I came down to Florida because I was concerned about the disenfranchisement of the military who are serving our country overseas, and American citizens living abroad by the state of Florida. They were in violation of a consent decree entered back in 1980; so I've been down here working on that issue.

Yesterday I observed some of the counting that was going on, began to pay attention to the canvassing board. Then, when the Supreme Court ruled, I think that decision put a lot of pressure on this canvassing board. There were thousand, tens of thousands of ballots yet still to go through. They actually looked at many of these under-counted ballots that were actually going to come to them and there is only so much that actually a human can do in looking these ballots that are meant to go through a machine. They were never really meant to be hand counted.

So, when they looked at the logistics in time and the constraint that the Florida Supreme Court put on them, they made a rational decision.

BUCKLEY: Thank you very much, sir. Thanks for joining us.

Steve and Natalie, we'll get back to you.

ALLEN: All right, Frank, thanks again.

The news that broke just a few moments ago, George W. Bush filing an appeal to the U.S. Supreme Court on the ruling last night handed down by the state Supreme Court allowing for manual recounts until this Sunday. We also have just received more information that the request would ask the Supreme Court to consolidate the Florida Supreme Court ruling and the an earlier case begun in the 11th U.S. Circuit Court of Appeals in Atlanta; and you had just asked that of David Cardwell -- how that would play out. We've also learned here that the Bush team plans to make a three-pronged argument.

We want to bring back in David Cardwell to look at each one of these points.

And here is what we have, David -- the first point of the argument: The state justices violated the U.S. Constitution's separation of powers by determining electoral deadlines and the recount process that federal law invested solely in the legislature.

Your comments on that?

CARDWELL: Well, the federal law invested the legislature the determination of the electors. And the legislature did take that authority and pass the statute, which says the electors are selected at the November election.

The argument can be made by those that would support the Florida Supreme Court decision that the November election took place when it was supposed to. In fact, that was part of the basis for the judge here in Palm Beach County finding that there was no right to a revote.

But those who would say the Supreme Court was correct would say that, well, the November election is not final. You go through the state process to get to your final returns. So, that is what is happening here.

What they are going to have to show is that somehow or another the Florida Supreme Court, by extending deadline on its own, has somehow or another gone beyond what the legislature intended.

FRAZIER: David, it's Frazier here with the second prong of this Bush legal team three-pronged argument. This one goes to all of the flipping and flopping and changing of what constitutes an actual vote on the ballots. It says that the court ruling and the alternating recount standards in the three counties violate a federal law that forbids changing election rules after the election itself.

CARDWELL: Well, I'm not sure this is changing election rules. That statute goes to the actual process that's followed on Election Day. It's always been left -- it's always been left to state election officials to determine what the actual vote count was, but there again, there has been a lot of questions raised about the changing positions that the county canvassing boards have been taking.

ALLEN: OK, David, and finally here is the final argument that the Bush team plans to take to the U.S. Supreme Court and its about the different standards and the different counties. It says the recounts are so selective and unevenly carried out that they violate both the equal protection and due process clauses of the Constitution. The effect of the court's opinion will be that voter's votes are being evaluated differently in different parts of Florida some votes were cast legitimately may be offset by votes that were not. That is from the statement from George W. Bush.

What about that. That is certainly at the core of what is left to be argued here in these two counties that are counting.

CARDWELL: It's slightly worded differently but that's basically the argument that the Bush campaign made in their court filing in the U.S. District Court in the southern direct of Florida that Judge Middlebrooks ruled on which is the subject of the appeal to the 11th Circuit. So, I'm not surprised they want to consolidate it and the 11th Circuit case, get it up to the Supreme Court as quickly as possible. And that is really probably the primary argument they are going to rely upon, because that was the argument that they raised first when they went to court in federal district court a few days ago.

ALLEN: Well, we need to get Supreme Court correspondents up next to talking about this.

Do you have any experience, David, with opinion on how quickly or not so quickly the Supreme Court could take up this matter?

CARDWELL: Well, they have shown in the past when there were real emergency situations they could rule very quickly. If you recall through some of the constitutional crises in the past, that they have ruled literally overnight. Courts can move quickly when they need to and election law cases very often move very quickly.

So, certainly, if the court is aware of the importance -- and I'm sure they will be -- of getting this decided quickly, we will get a quick decision from them.

FRAZIER: David Cardwell, very helpful as he walks us through the electoral machinations here of this last steps, the legal steps.

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