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Will Florida's Legislature Ultimately Decide the Presidential Election?

Aired November 29, 2000 - 7:30 p.m. ET


ROBERT NOVAK, CO-HOST: They are Republican members of Florida's legislature, and they may cut through all the recounting and legal maneuvers by simply voting for 25 electors who would give the presidency to George W. Bush.


JOHNNIE BYRD (R), CO-CHAIR, FLORIDA STATE HOUSE: At the end of the day, we must make absolutely sure that Floridians are represented in the electoral college.



KENNETH GOTTLIEB (D), FLORIDA STATE HOUSE: I'm concerned that this could be seen as a sham. Are we meeting to set the stage for a special session to guarantee the presidency to George W. Bush?


NOVAK: With Republicans controlling both houses of the legislature by nearly 2 to 1, the outcome of next week's special legislative session is a foregone conclusion. But Al Gore's lawyers are still at it, trying to get another recount in three Democratic counties. They file for appeal to the Florida Supreme Court to force Circuit Judge N. Sanders Sauls to immediately begin a massive recount.

Meanwhile, Judge Sauls agreed to a Republican request to send to his court in Tallahassee all ballots cast in Palm Beach and Miami-Dade counties, over a million of them, not just disputed ballots. That's a 400-mile trek for a police escort.

But the spotlight is shifting to the Florida legislature, ready to try to propel Governor Bush into the Oval Office -- Bill Press.

BILL PRESS, CO-HOST: Representative Fasano, thank you very much for joining us tonight.

I'd just like to get the -- let's just start with reality. There is a meeting of your committee tomorrow, but aren't you ready to admit to the American people tonight, representative, that the fix is already in? You know you're going to call a special session and you know Governor Bush will sign that legislation. Isn't that correct?

MIKE FASANO (R), FLORIDA HOUSE MAJORITY LEADER: No, that's not correct, Bill. But the speaker of the House and the president of the Senate convened a special committee, a committee, a select committee of seven members of the House and seven members of the Senate, to find out what our constitutional obligations and responsibilities are as a legislative body.

PRESS: Well, you know, I just don't want us to play games here. I mean, the governor came out today with the reporters and said, he's going to sign this legislation. So surely, you intend to pass the legislation, selecting a group of electors. Correct?

FASANO: Well, if we were to convene a special session -- that's yet to be decided; that will be decided by the speak of the House and president of the Senate -- the purpose of the special session will be to protect and preserve the 25 electors and the 6 million votes that were cast on November 7th.

PRESS: Well, not all the people of Florida, of course, see it that way. I happen to be one of those old-fashioned people, with all due respect, who think that the people should elect the president, not state politicians. And you heard from some of the fine citizens of Florida today. I'd like just to remind you what one of those citizens had to say about her feelings about what you're doing.

Here's her testimony.


UNIDENTIFIED FEMALE: ... every one of you deciding our president for us. It's like saying, hey, Florida -- you know, Florida residents have the right to vote, but let's just go over that right, right now, and let's make that right -- let's make their vote for them.

Of course, you guys probably don't feel as we do, because you're sitting up on a committee that would get the chance to vote, and your vote would count way more than any one of our single votes.

But to us, our single votes are the most important thing that we have and the only voice that we have in our community.


PRESS: So if you go ahead with this, representative, in effect, she's right: You're stealing her vote, aren't you?

FASANO: No, not at all. We're preserving and protecting her vote.

Bill, if we don't do something -- we've had three weeks, three weeks of lingo, legal battles and court action after court action, and nothing has come to fruition, there's been no finality.

If we don't do something, if we just ignore our responsibilities, there's a good chance, Bill, that we'll not have 25 electors come December the 18th.

NOVAK: Senator Wasserman Schultz, we're going to put -- I'm going to put up on the screen something just so we can start and find what your authority in the legislature is. I'm going to read from the U.S. Constitution, Article II, Section I. "Each state shall appoint in such manner as the legislature thereof may direct a number of electors."

And if you don't understand what that means, let's listen to Professor John Yoo of the University of California Berkeley testifying before your joint committee.


PROFESSOR JOHN YOO, UNIVERSITY OF CALIFORNIA-BERKELEY: The Constitution specifically lays the final constitutional responsibility on the state legislature and specifically the legislature, not the state supreme court, not the state executive branch.


NOVAK: So there's no question is there, senator, that the legislature has the authority to name the electors?

DEBBIE WASSERMAN SCHULTZ (D), FLORIDA STATE SENATE: There's no question, Bob, that the legislature orchestrated the testimony of extremely right-wing constitutional law professors to give them the testimony that they want so that they can lay out the groundwork for a special session. That's what there's no question about.

And further, what Professor Ackerman from Yale University testified before the joint committee today, he also cited the U.S. Constitution and said, yes, the legislature is responsible for prescribing the electors in the state of Florida. However, we've already done that. It's done on election day, and then subsequently when the election is certified, which it was done on Sunday evening. And Governor Bush has already sent that certification to Washington.

So we've got out slate of electors until at some point someone tells us that they should be different, and that has not occurred.

NOVAK: Well, Professor Ackerman, is a great liberal, senator, and will all respect to him, but everybody I talk to, even a lot of Democrats, don't deny the authority of the Florida legislature, if it so desires, to say after all the politicians in South Florida have been manhandling those ballots and interpreting votes, it's time for us to name -- name electors to elect a president.

Do you deny the power of the legislature to do that?

WASSERMAN SCHULTZ: What can't be denied is that if we go into special session called by the leadership and led House Speaker Tom Feeney, who is really using this drum beat of support, what can't be denied is that they will be sweeping the votes of the people that they cast on November 7th off of the table and imposing the legislature's will, the Republican legislature's will. That's what can't be denied. NOVAK: Well, senator, I've asked you twice, but I'm a kind of a stubborn guy. I'd really like to ask you -- I think that's a simple question -- whether you believe the legislature has the authority to do it or doesn't. I mean, obviously, you're a Gore supporter, you don't like them to do it, but you can't deny they have the authority, can you?

WASSERMAN SCHULTZ: We have the authority, and that's already been done. What we don't have the authority to do is we don't have the authority to turn around and overturn the will of the people.

Once election day occurs and those votes are cast and the election is certified, which has been done, then the electors that have been certified are the ones that go to Tallahassee to cast their votes. That's been done. There is no need for a special session, that we already have electors that have been designated.

This is just simply as an insurance -- if we do this, Bob, this would as an insurance policy for the Republicans to ensure that George W. Bush would be elected president regardless of what the outcome of the will of the people was.

PRESS: Representative Fasano, I want to stick with that point, if I can, because, of course, Bob Novak wants to pretend that everybody reads the Constitution and that law the same way. In fact, it is not as clear as he or maybe you would pretend.

But first, I want to ask you the factual question: You would agree with Senator Wasserman Schultz that the secretary of state did certify this election and that Governor Bush did send that certification to the National Archives here in Washington, correct?

FASANO: Yes, they did.

PRESS: OK, now, let's get to Professor Ackerman's testimony in front of you today, and I had a long talk with him this evening. I mean, his point is very clear that the Constitution is very clear, and let me show our viewers on the screen what he said today.

He said -- quote -- "The statute only allows a state legislature to intervene under one and only one condition: that is, when despite the election results, the state has failed to make a choice of its electors."

And he goes on to point out: "In short, the only scenario under which Florida's legislature may legally intervene has already passed. Once Governor Bush sent a certificate to Washington early this week, Florida can no longer to make a choice."

He's right, representative, isn't he? Your window opened and your window closed and you're out of business.

FASANO: No, sir, you're incorrect, and with all due respect, so is he.

The legislature has a responsibility, as I said earlier -- it's in the U.S. Code. It doesn't say when or when we cannot convene. We will convene for the purpose of protecting, preserving those 25 electors.

You know, Bill, we've had three weeks, as I said, of legal battles. We're getting close to that December 12th date. We cannot take the chance that Florida will not be represented on December the 18th.

That would be a sad day when 6 million voters voted in the state of Florida and they don't have a voice to be heard on December 18th.

WASSERMAN SCHULTZ: Representative Fasano...

PRESS: Go ahead, senator. Go ahead.

WASSERMAN SCHULTZ: There is no chance that that is going to happen. We have electors that are certified, and if we go into special session, then the only purpose for going into special session would be to preserve and protect the choice of the Republican legislature.

The choice of the Republican legislature is obviously Governor Bush, and what you'd be trying to do is, regardless of whatever happens in the ongoing legal battle, that as a backup plan, you would have the candidate of your choice preserved.

We have electors in Florida, they have been certified. That is who would go to Tallahassee to cast those votes on December 18 barring any other action; and even if there was another action, we would still have electors in place. So the only purpose for you going into special session is to put your electors in place and usurp the will of the people as they decided on November 7.

PRESS: All right representative -- go ahead, representative, sure -- quickly, please.

FASANO: Senator, I can understand and appreciate what you're saying, but I would ask you if you would suggest to Vice President Gore and to his team to stand down and stop the continuation of court battle after court battle so the 25 electors that were certified on Sunday night won't be challenged by the Gore team.

WASSERMAN SCHULTZ: You know, representative, what I was elected to do is to stand up for the rights of my constituents. And my constituents want me to ensure that every vote counts.

How could we go back to our constituents on the next time that we run for office and say, you know, you should go to the polls; every vote counts, everyone's vote matters. You couldn't do it if you proceed as you want to.

PRESS: Senator, representative, we're going to take a break there, please stick with us -- please, we're just going to take a break.

Don't forget, folks, after the show you can take this debate online with tonight's guests, Florida state Senator Debbie Wasserman Schultz and Florida House Majority Leader Mike Fasano will be in our chatroom right after the show at

Bob Novak and I will be back to continue CROSSFIRE; and when we come back: is there a cloud hanging over the sunshine state?


PRESS: Welcome back to CROSSFIRE. Well, if we're still uncertain about the election results in Florida, we're also uncertain about how, when and where it's going to be resolved. Maybe in state court, maybe in the Supreme Court, and maybe -- it's looking more and more likely -- in that 102-member, Republican-controlled Florida state legislature. Are they acting to serve the people or steal an election?

Tonight, two members of the legislature preview the debate they'll soon be having down in Tallahassee: Republican Mike Fasano, Florida House majority leader and a Bush supporter; and Democrat Debbie Wasserman Schultz, a state senator and a Gore supporter.

NOVAK: Senator Wasserman Schultz, you seem to not understand why the legislature, that you're a member of, has a duty to act in this case; and let me refer you to the Florida Supreme Court, an activist court, which seems to put its desire for justice, quote-unquote, "ahead of the rules."

Do you think that the Florida Supreme Court is the final authority on everything that happens in the state of Florida, and that you cannot act to overrule that court?

WASSERMAN SCHULTZ: I think that there is something called the separation of powers, Bob, and the system of checks and balances. And the judicial branch -- unfortunately, Governor Bush doesn't realize this -- but the judicial branch interprets the laws. And when those laws have been overstepped, as they were by Secretary Harris when she ended up sending memos -- erroneous memos -- to counties to get them to stop the manual recounts, the Supreme Court found it necessary to step in and right a wrong. That's what courts are for, they're to remedy a problem.

NOVAK: Well, senator, I'm sure, then, that you're in favor of this judicial activism -- of the courts taking the law into their own hands, which has created such havoc all across this country for many decades.

And I want to read to you something that was written in "The Los Angeles Times" by a law professor, Mark Scarberry, of the Pepperdine University School of Law, and put it up on the screen: "When a branch of government claims it has supreme power, that it is not just the Supreme Court, but the supreme authority over all, the other branches cannot allow the claim to go unchallenged."

So I guess I understand you to say that this bunch of liberal Democrats sitting on the Supreme Court have the absolute authority over the elected representatives of the people and that you cannot assert the rule of law and rules that were in effect before this election, but can let the court make rules after the election in order to elect Al Gore.

WASSERMAN SCHULTZ: No; since I teach political science at a university, I clearly understand that the branches of government are coequal. What I do understand is that when one branch has violated that law, as Secretary Harris did, that the other branch is required to step in and make sure that that wrong is righted; and that is exactly what the Florida Supreme Court did.

And, frankly, for you to say that it is a liberal, activist court is totally erroneous because this court has handed Democrats an arbitrary decision, contrary to what their desire was. Governor Childs was handed several, quote-unquote, "defeats" by this court. So to call this court liberal is probably an overstatement.

NOVAK: We don't want to get into this, but we know what a feud -- this court has had an outrageous political feud with Governor Jeb Bush -- but, you know, we've heard the mantra, senator, so many times about the votes of the people being taken away and I -- the best explanation of why they're not being taken away was given by one of your colleagues in the legislature, Mario Diaz-Balart, a member of the state House of Representatives, a member of a very distinctive Florida political family -- and let's listen to what he said.


MARIO DIAZ-BALART (R), FLORIDA STATE HOUSE: The bottom line here is that we want to make sure that the 6 million people who went out to vote -- that those vote are, indeed, counted when the 25 Florida electoral votes are counted.


NOVAK: In other words, if you keep messing around in the courts and try to elect Al Gore by default, the votes of the people would not be counted, and that's why legislature may have to act.

WASSERMAN SCHULTZ: Well, I'm glad to see that my colleague, Representative Diaz-Balart, agrees that everybody's vote should be counted. Unfortunately, in the county that he and I both represent, Miami-Dade County, there are 10,700 votes that have never been counted. The machine spit those back and they have never been counted.

NOVAK: They were counted.

WASSERMAN SCHULTZ: No, they most certainly were not. The machine spit them back and they were not counted.

NOVAK: Because that was no vote on them.

WASSERMAN SCHULTZ: No; there was an impression on every one of those ballots and, unfortunately, we have had no one go back and manually recount those ballots and allow those people to have their vote counted. It's unconscionable. PRESS: Representative Fasano, we've heard a lot of pious rhetoric from you tonight, and just from your colleague, representative Diaz-Balart, about protecting the will of the people. But you know what, sometimes the truth slips out. And today on CNN's "BURDEN OF PROOF," from no less a figure than Boyden Gray, who was counsel -- White House counsel to President Bush, he was asked what this -- what your -- we know what's going to happen in the Florida legislature was all about, and here is how Boyden Gray described it, very accurately. Please listen.


C. BOYDEN GRAY, FORMER WHITE HOUSE COUNSEL TO PRESIDENT BUSH: Well, there may be a role here for insurance policy, maybe not now, because the 12th is not here yet, but there is nothing wrong it seems to me to provide an insurance policy for after the 12th.


PRESS: He's got it, doesn't he? That's what you're all about. If Jeb's brother doesn't win fair and square, this is your insurance policy that Jeb's legislature is going to hand him the election, right?

FASANO: No. That's incorrect. I have had no communications with that gentleman. What we are trying to do here is just make sure...

PRESS: He called it right.

FASANO: ... that the 25 electors -- the 25 electors go -- come to Tallahassee and vote on December the 18th. You know, Senator Wasserman Schultz talked about wanting every counted in Miami-Dade -- how come the Gore team now is challenging 15,000 absentee ballots in Seminole County? If the vice president wanted every vote...

SCHULTZ: On the contrary, Representative, they are not challenging. The Gore campaign is not involved in that lawsuit.

FASANO: Excuse me, if I could finish please. Excuse me.


NOVAK: Go ahead.

PRESS: Go ahead.

FASANO: ... they may not be involved in the lawsuit -- they may not be involved in the lawsuit, but if they want every vote counted they should be condemning this gentleman who is challenging the 15,000 absentee ballots. Why is he not coming out and stopping that, or at least saying no, let those 15,000 ballots count? But yet he wants hand counts in four other counties. How come in Duval County, where over 10 percent of the people didn't vote in the presidential election, he is not demanding for a hand count there?

PRESS: Quick response, Senator Schultz.

SCHULTZ: What I've heard Vice President Gore say is that he wants every vote counted. They are specifically not involved in that lawsuit, and every citizen obviously has the right to redress before the courts. We want to make sure that every vote is counted, but we also want to make sure that every vote is accurately and legally counted. So, for a citizen to pursue a significant problem with the way those absentee ballot applications were handled in a county is entirely appropriate.

NOVAK: OK, we are out of time.

Thank you very much, Senator Wasserman Schultz.

SCHULTZ: Thank you.

NOVAK: Mr. Leader Fasano, I appreciate your help.

FASANO: Thank you.

NOVAK: And these two experts on constitutional law, Bill Press and I will be back with closing comments.


NOVAK: Don't miss your chance to debate tonight's guests, Florida State Senator Debbie Wasserman Schultz and Florida House Majority Leader Mike Fasano will be at following the show.

Bill, the Democrats kill me when they say, we want every vote to count. You know very well that the Gore campaign provided the lawyers to challenge all these absentee votes in Seminole, and Al Gore in his enumerable interviews tonight was said would you just -- would you condemn this, would you wash your hands of it, he said, no, no. Don't be pious about counting every vote, you want to count Gore votes.

PRESS: Bob, relax. He's not part of the Seminole County thing. There is no evidence that he is. I think what happened there is wrong. Gore isn't a part of it.

What you ought to be condemning...

NOVAK: Why doesn't he condemn it then?

PRESS: What you ought to be condemning is the power grab by the Florida legislature. This is undemocratic, it's un-American, and the people won't stand for it.

NOVAK: I believe in the Constitution, you don't.

PRESS: I know the Constitution, you don't.

From the left, I'm Bill Press. Good night for CROSSFIRE.

NOVAK: The Cuban Constitution. From the right, I'm Robert Novak. Join us again next time for another edition of CROSSFIRE.



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