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Burden of Proof

Election 2000: Race for the White House Stops at the Nation's Highest Court

Aired December 1, 2000 - 1:44 p.m. ET


ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: The race for the White House stops at the nation's highest court.

GRETA VAN SUSTEREN, CO-HOST: While ballots keep on truckin' to Tallahassee.


DALE BOSLEY, MARSHAL OF THE SUPREME COURT: The honorable, the chief justice and the associate justices of the Supreme Court of the United States.

THEODORE OLSON, BUSH CAMPAIGN ATTORNEY: The Florida Supreme Court overturned and materially rewrote portions of the carefully formulated set of laws enacted by Florida's legislature.

LAURENCE TRIBE, GORE CAMPAIGN ATTORNEY: When the game is over, and when it's over in a, kind of, photo finish that leaves people unsure who won.


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

COSSACK: A historic hearing was held this morning in the building behind me, the U.S. Supreme Court heard arguments regarding hand recounts in Florida, and the Florida Supreme Court ruling delaying the certification of votes -- Greta.

VAN SUSTEREN: As you can hear from behind us, the First Amendment is alive and well here outside the United States Supreme Court. But, there's a lot of action today here after a 90-minute oral argument, audio tapes were released. They were released. This is a very historic moment, the Supreme Court has never allowed audio tapes being released on the same day as the actual arguments.


OLSON: The Florida Supreme court said we are not going to be bound by technical statutory requirements or what the Supreme Court called hyper-technical statutory requirements, instead we are going to resort to the will of the people, the will of the electorate, the will of the voters, so to speak, and we are going act because we can't rewrite the statute, but we are going to partially rewrite the statute, we are going to resort to our equitable powers.

TRIBE: Here's the key phrase, I think: "By judicial or other methods or procedures, at least six days before the time fixed before the meeting of the electors," that means in our situation December 12th, "then the final determination shall be conclusive and govern the counting in Congress."

Now, the question for Congress, I suppose, would be, though I don't see how this court could get into that question at this stage, but the question would be: Is a particular change, extending a deadline for exigent circumstances because a recount has been authorized, a change in the traditional methods or procedures for resolving the contest.


COSSACK: Joining us today at the U.S. Supreme Court is Republican Governor Marc Racicot of Montana, Democratic Congressman Ed Markey will join us in our next segment.

Governor, you had the opportunity to hear the arguments, boy, it's loud out here.


COSSACK: We Washingtonians take this seriously. You had the opportunity to hear the argument. It looked like the Bush side was having a problem with the issue of federalism. whether or not there really was a federal question there, and clearly they were getting grilled on that. Your response?

RACICOT: Well, as you know, that is always a critical threshold question for the court. They are not going to get engaged in something that does not have a federal question associated with it. I though that the responses assuaged their fears in that regard. And I believe that they went on to hear the substance of the arguments, which focused upon issues of fairness. That is what is embodied in the federal, that is what is embodied in the state law.


VAN SUSTEREN: Interesting, I mean, oftentimes as lawyers we argue one thing one day and another thing another day, and it is true oftentimes it is true. How do you address the issue that typically the Republican position has been to let states decide state matters and now here it's essentially that the Republicans asking the United States Supreme Court, a federal court, to sort of step in and tell the state what to do?

RACICOT: Well, as I know you know, because I have watched you talk about these issues before, the principles of federalism, even the most conservative principles of federalism, recognize that there are some seminal responsibilities performed by the federal government on behalf of all of the people of the United States of America that have to be vindicated.

When you are electing a president of the United States, of course it's a president for all of the people of this country, and when you are going to make certain that votes aren't going to be diluted from one state to another, or one region of a state to another, you have to make certain that that is not going to occur as well. So there are some issues, seminal issues that are reserved for the federal government and they should address.

VAN SUSTEREN: You know what I didn't get from the argument is the Supreme Court said to both sides: What's the practical affect if we rule a particular way? Justice Breyer asked it about 34 minutes into the argument of Ted Olson, who was representing Bush, and he had sort of a vague response.

I didn't hear Larry Tribe give any answer at all. Maybe he did and it just went over me.

What is the practical affect of a ruling here?

RACICOT: Well, you know the relief that was requested, and of course the petition was filed prior to the time that we had been going through this contest process and the certification process. So the relief that would be granted would address itself toward the Florida Supreme Court and restore the rule of law in the state of Florida, the election code in Florida.

What that would do, in our judgment, is, most importantly, vindicate the principles of the law. But, secondly, what it would is set a different tone, different boundaries, and a different direction for the Florida court.

VAN SUSTEREN: What about the argument that I have heard made a reference to it in the written pleadings, which said, if you push the certification back to November 14th, from November 24th, that what happens is that the contest filing that was filed on Monday is untimely. Right or wrong?

RACICOT: Well, I think that that is subject to interpretation. There's no question that a Florida court might deal with it in a way different than we understand it. But the bottom line is that you would be restored back to a set of principles that were articulated by Florida law, and that would allow for you to make certain that Florida voters aren't disenfranchised before December 12th arrives, which I think is a very serious question.

COSSACK: Governor, one of the issues that seemed to be brought up was the suggestion that perhaps this case wasn't quite ready to be before the Supreme Court, that, in fact, even if there is a problem, the remedy laid with Congress rather than the United States Supreme Court, that it was Congress, under Section 15 of the statute in question, that really has to solve this problem. Your response to that?

RACICOT: Well, I know you know as well that, typically, there are probing questions that are in search of defining the outer boundaries of an argument. I do think, however, that the focus of their argument, as it evolved, focused exclusively on the things we think are important here, and those are issues of fairness. I think that they thought it was right. I'm expecting that they'll look in that direction, when they render a ruling.

VAN SUSTEREN: Governor Racicot, thank you very much for joining us on this very balmy and exciting day in Washington.

We are going to take a break. And up next, Democratic Representative Edward Markey when we come back. Stay with us.



OLSON: We are very gratified that the justices of the Supreme Court, as they always are, were extremely well prepared. They had read the briefs, they are very interested in the case. They asked very difficult and penetrating questions of the lawyers on both sides. And now we'll see what happens.

TRIBE: The fundamental issue was whether anything in the United States Constitution prevents the state, through its highest court, when a very major election ends in a photo finish, from taking a closer look at the films of that photo finish by counting, and recounting if necessary, in order to get it right.


VAN SUSTEREN: Welcome back to BURDEN OF PROOF. The case is George W. Bush versus the Palm Beach County Canvassing Board et al. And we're at The Supreme Court where there is a lot of people outside demonstrating and justices heard arguments today from lawyers of the Bush and Gore campaigns over the Florida elections.

Joining us now is Democratic Congressman Edward Markey of Massachusetts.

Thank you for very much for joining us.

Let me ask you, I thought Justice Scalia was very, very aggressive about one particular issue. He said, "The Florida Supreme Court says, in essence, our state constitution trumps the conflicting Florida law," and when you talk about the Florida Constitution, you are talk about the right to vote. He then went on to say is that the U.S. Constitution says it's the state legislature that should make the decisions, not in essence the judiciary or the Florida Constitution.

He gave Laurence Tribe for Gore a very hard time. What do you make of that?

REP. EDWARD MARKEY (D), MASSACHUSETTS: Well, but Justice Souter actually came back later and he pointed out that, in fact, the Florida Legislature, in promulgating its statute dealing with state and federal elections, did not bifurcate the state and federal election processes, and as a result, under Justice Souter's formulation, it all went up to the Supreme Court of Florida for clarification, where there is a gap, where there is a clarification which is necessary. And stated at the same time that the Florida Legislature made it quite clear that legislative, that is the House and Senate in Florida, in their races is never appealed up to the Supreme Court of Florida.

VAN SUSTEREN: You don't think that's a problem?

MARKEY: I think Justice Souter gave the answer, and Larry Tribe then elaborated upon it further, making it quite clear that it is very consistent with the federal law to allow the Supreme Court of Florida to make that interpretation.

COSSACK: Representative Markey, there has been a suggestion, at least by the court today, that perhaps again that they shouldn't be the ones hearing this, and in fact that if it ends up, it should go to Congress. If that happened, what would be the time limit be in terms of deciding who the next president of the United States would be?

MARKEY: I would have to go and check the statutory deadlines. But if you went back to 1876, that race went on for months in the United States Congress, ultimately having House, Senate, and Supreme Court in a 15-member panel. So I think that we would deliberate, beginning on January 6th, as to who should be the next president of the United States, it would come to the House of Representatives, and each one of the delegations would have to decide.

COSSACK: You heard the same arguments that we did. It is my opinion that this is a court that is divided. Perhaps we heard Judge Ruth Bader Ginsburg say, we should give great deference to the Florida Supreme Court, and yet we heard others, Scalia in particular, mention the fact that in fact maybe this is a federal question. This will not be a unanimous court, will it?

MARKEY: I think if they rule 5-4, that the country just won't be able to tolerate a president elected by one vote. I don't think we can have a presidency. I think they're going have to rule in a consensus fashion on one side or the other of the issue, even if it means they kick this decision back to the Florida Supreme Court. So a 7-0 decision in Florida decides it, rather than a split decision 5-4 in the United States Supreme Court.

VAN SUSTEREN: And, of course, what an extremely exciting day here at the United States Supreme Court. And I suppose what strikes me most about today's decision especially that we get to hear the audio a short time after arguments taking place. But you got to love the First Amendment. I got to tell you, the First Amendment is alive and well here in -- outside the Supreme Court, just listen to this crowd, and they are having an awful lot of fun screaming their positions, Roger.

MARKEY: I am on "Game Day" on ESPN, am I not?

COSSACK: This is "Game Day" on ESPN. I don't know what more to say. This is probably one of the most exciting, incredible days I have ever spent in my life. The majesty of being in the United States Supreme Court and getting to hear this argument is something I will never forget.

I'm afraid that's all the time we have for today. Thanks to our guests, and thank you for watching.

Tonight at 8:30, join Greta for an election 2000 special report. And then you will have the latest from United States Supreme Court, as well as the court developments from Florida.

VAN SUSTEREN: And stay with CNN.

COSSACK: Greta, go ahead.

VAN SUSTEREN: Stay with CNN throughout the weekend for the latest legal twists and turns in the Florida vote.

Roger and I will be back Monday with another edition of BURDEN OF PROOF. We'll see you then.



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