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Burden of Proof

Election 2000: Florida Certified for Bush; Gore Lawyers Contest Results

Aired November 27, 2000 - 12:31 p.m. ET






GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: The state of Florida certifies Gov. George W. Bush as the winner of its 25 electoral votes. But lawyers for Vice President Al Gore have contested the election results.

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

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF.

Vice President Al Gore has contested the election of Florida. The Gore legal team filed suit in circuit court in Leon County. The lawsuit challenges the voting results from Miami-Dade, Palm Beach and Nassau counties.

ROGER COSSACK, CO-HOST: Now, the legal skirmishes surrounding Florida's vote continue throughout the state. Another case is being sent to the Florida Supreme Court, this one from Palm Beach County. On the docket, an appeal of a judge's ruling that a revote would be unconstitutional. And a case in Seminole County, if what we've heard isn't enough, is also being sent to Tallahassee. A hearing is expected sometime this week on a lawsuit filed by a Democratic attorney seeking to have 15,000 absentee ballots thrown out.

VAN SUSTEREN: Joining us today from Tallahassee is Gore campaign attorney Jeff Robinson. And here in Washington, Brian Jones (ph), former Bush White House counsel C. Boyden Gray, and Anita Patankar (ph).

COSSACK: In the back, Dana Richard (ph) and Matt Pillsbury (Ph). And joining us from Tallahassee, Florida is CNN correspondent Gary Tuchman.

Well, Gary, you are where the action is. The contest has been filed.

GARY TUCHMAN, CNN CORRESPONDENT: Roger, history has been made. The contest was filed, for you history buffs, precisely at 12:16 Eastern time. And this is it, 22 pages. And it's summed up rather succinctly by the Gore campaign. It says, "We want that the Elections Canvassing Commission, the secretary of the state of Florida and the Division of Elections certify as elected the presidential electors of Al Gore and Joe Lieberman."

And the way they sum it up here is they say the difference, the 537-vote difference, which, by the way, is .01 of a percent -- that's one-hundredth of 1 percent, the vote difference here -- they say the difference was entirely the result of four things: number one, rejecting the results of the complete manual count of Palm Beach County, which was 215 additional votes for Al Gore; rejecting the 20 percent of the precincts in Miami-Dade County, which were already counted -- that was 160 votes. Number two, the Nassau County problem, which is in northeastern Florida; 51 votes were taken away from Al Gore because the county canvassing board there decided to count the votes from November 7 instead of the machine recounts. Number three, not counting approximately 4,000 ballots in Palm Beach County, according to the Gore lawyers, that were marked with an indentation, but the board there decided not to count them. And number four, not counting approximately 9,000 ballots in Miami-Dade County because the board there decided to stop the count, believing it did not have enough time to finish the count.

So it's a 22-page contest delivered by Al Gore's attorneys to this court. Court action could start as early today. It's more likely, though, it will begin tomorrow. The judge, by the way, 59- year-old N. Sanders Sauls. He will be presiding over the case.

VAN SUSTEREN: Boyden, what do you make now? We've gone from protest, certification last night, and now contest.

C. BOYDEN GRAY, FORMER BUSH WHITE HOUSE COUNSEL: Well, I think it's an uphill battle;not impossible, but I think it's a very difficult row to hoe. And I think that if the courts do reverse on the basis of this certification, it will raise the same issues now pending in the Supreme Court and before the Florida legislature, whether the rules of the game have been changed after the game's played.

VAN SUSTEREN: You know, I find this sort of extraordinary in the sense that I think this is like a whole new action. Whatever happened before almost becomes irrelevant because the Florida statute says you can protest, and then you have a certification. And now it just changes the forum. But I think it starts it all over again.

GRAY: Well, it does, but it's not standardless. And if it is, if the courts view it as standardless, which I don't think the legislature intended and I don't think the law implies or states, then I think you've got the same issue all over again about changing the rules.

VAN SUSTEREN: But I'm not even sure that the issue is, you know, standardless. You know, the law as I understand it in Florida has always been to determine the intent of the voter when you do the manual recounts, for instance. And I think that's where you and I disagree. I mean...

GRAY: Well, the law refers to a "legal vote," quote-unquote. And that means that the vote has to be legal before it's counted. So you get back into the question about...

COSSACK: Right, that's the whole issue.

Let's go to Jeff Robinson.

Jeff, you have filed this action on behalf of the Gore campaign. I want to talk to you about what you expect to have happen next and how you're going to prove your case.

JEFF ROBINSON, GORE CAMPAIGN ATTORNEY: Well, the actions that we've taken, we expect that the court will promptly have a hearing. We've asked that the court bring the disputed ballots up to Leon County so that a count can take place of the ones that needed to be counted. But the action that's been filed is a fairly straightforward one, which we believe can be resolved quickly. It is focused on matters that can be heard by the court, the challenges resolved, any appeals we believe will win. So any appeals from the other side can be heard and we can still meet the December 12 deadline for having electors chosen.

COSSACK: Jeff, let me get a little more specific with you on this. First of all, in a contest, you have the issue of first convincing the judge that even if you win, if you're right, you would change the vote and that your candidate would win. Second of all, how are you going to be able to prove your case to the judge? I mean, you now have to perhaps put on testimony. What are you going to do?

ROBINSON: Well, let me take your first question. I think this is one election where that first standard is not going to be hard to meet. As you pointed out, the difference in vote, even as certified by the secretary of state, is so small that even small changes in the totals will make a difference. We don't think that there's going to be any debate about whether or not the matters alleged, if proven, will show that the outcome of the election would be changed.

With respect to the second part, yes, we may need some testimony, but many of the claims which have been raised are ones we believe can be resolved on a paper record. Take the Nassau County matter, for example. The whole issue there is whether or not votes -- whether or not the canvassing board properly certified the votes from the day of the election as opposed to, as we say, the statute requirement, the day after when the manual recount. That doesn't require testimony, that requires a court to look at what the law is, to look at what is done -- we don't believe what was done is disputed -- and to make a decision. We believe that can be done very quickly.

VAN SUSTEREN: Let me ask you a quick procedural question. I think one of the biggest hurdles you got to get over is in the statute it says that the Bush canvassing board, who are the defendants in the statute, have 10 days to respond, which, according to my fuzzy math, to quote I think it was Gov. Bush, is December 7. And you have December 12 when these electors have to be selected. How are you going to get around those 10 days?

ROBINSON: Well, one of the things which was filed today is a motion to shorten the time for response. As you well know, in matters where time is of the essence, courts routinely shorten the time for a party to respond. As -- the example that's been used is if someone's about to bulldoze your house and you're seeking an injunction, even though they may have 20 days in the normal course to file an answer to the complaint, the court will require them to respond more quickly so that the effort that it's going to undertake in resolving the dispute won't be meaningless.

COSSACK: All right, let's take a break. Our thanks to CNN's Gary Tuchman.

But is it too late for Vice President Al Gore to become President Gore? More on that when we return. Stay with us.


The trial of former Louisiana state elections commissioner Jerry Fowler was set to begin today in Baton Rouge, LA. He's accused of scheming to pad contracts and take kickbacks. Fowler is asking that the proceedings be moved to another city due to publicity.




JAMES BAKER, BUSH CAMPAIGN OBSERVER: On November 15th, when Vice President Gore was stating his case for a manual recount, he told the nation that if its results were added, quote, "I will abide by the result, I will take no legal challenge to contest -- no legal action to contest the result."



VICE PRES. AL GORE (D), PRESIDENTIAL CANDIDATE: The results of this recount would, of course, be added to the present certified vote total and the overseas absentee vote total. If this happens, I will abide by the result, I will take no legal action to challenge the result, and I will not support any legal action to challenge the result.


COSSACK: Last night in Tallahassee, Florida, elections officials certified the state's votes for president, and awarded its 25 electoral votes to George W. Bush. This morning, Vice President Al Gore filed suit, contesting the election. Boyden, let's go down the list of things that might happen now. In fact, some might call it the parade of horribles, but nevertheless, let's examine them for a second. It is my understanding that under a vote contest, now, the Florida Supreme Court could go ahead and appoint what they call a special master, someone who will investigate this; then recount some votes, and then, perhaps, if this is what they decide, they could make Vice President Gore, President Gore, say that he got the most number of votes. Could the United States Supreme Court even get involved if that happened?

GRAY: Sure, because it would probably involve such a change in the rules as to invoke Title 3, about which much has been said, about changing the rules in the middle of the game, and it could also provoke the Florida Legislature to make the same judgment.

You could end up conceivably with two completing slates, that would then go to Congress in early January, and as I understand, read Section 15 of Title 3, it says that the House and Senate vote separately on which slate to pick. If there's a split, and the Senate votes one way, which it might, given the fact it is 50/50, with Vice President Gore maybe providing the tiebreaker, then what happens? Then I think, I read Section 15 it goes back to the governor. So that's -- and if he ducks, then the whole thing may be thrown into the House.

VAN SUSTEREN: Boy, does the pot thickens.

Jeff, let me go back to your contest proceeding. Do you realistically -- I've seen some accounts -- do you really expect a trial on Wednesday in the Leon County Court?

ROBINSON: We believe that the hearing can start as quickly as Wednesday, perhaps hearings even tomorrow. Many of the issues can be heard very quickly.

VAN SUSTEREN: When I was in West Palm Beach I remember the ballots coming up to be initially manually recounted and it had police escort, and there were sirens, and there was quite a lot of security. Are you asking anything to be done with the ballots in the meantime to preserve them or even deliver them?

ROBINSON: We are asking that the ballots that are in question be delivered to the court here.

COSSACK: Jeff, do you agree with Boyden's analysis that if the court decided that, under a contest, that to go ahead and order the votes counted, and decided to then certify Vice President Gore as president, that this would be something that the United States Supreme Court might take jurisdiction over?

ROBINSON: Might is one of those questions that you know lawyers don't like to answer. But it would seem to us that if all that happens is that pursuant to existing Florida statute, the contest statute, the Florida Supreme Court does what it is entitled to do and counts the votes, and on appeal sustains that Vice President Gore was the winner of the Florida's vote, that there wouldn't be a role for the Supreme Court. It is not for me to say what the Supreme Court would choose to do, but it seems to be, while the circumstances are unusual, it is precisely what is provided for in Florida law, there's no change in the law here.

VAN SUSTEREN: Well, speaking of the Supreme Court, that's what we are going to talk about when we come back with Professor Dick Howard and Bob Giuffra. Stay with us.





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