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World Today

The Florida Vote: Election 2000 Arrives at the U.S. Supreme Court

Aired December 1, 2000 - 8:00 p.m. ET


WOLF BLITZER, CNN ANCHOR: Tonight: election 2000 arrives at the U.S. Supreme Court. Millions listen to the justices spar with the attorneys.


PAUL HANCOCK, ATTORNEY FOR FLORIDA ATTORNEY GENERAL: The laws were in place before the election, and those laws granted to the judiciary...

SANDRA DAY O'CONNOR, ASSOCIATE JUSTICE OF THE UNITED STATES: Well, but certainly the date changed. That is a dramatic change, the date for certification.

RUTH BADER GINSBURG, ASSOCIATE JUSTICE OF THE UNITED STATES: I do not know of any case, where we have impugned a state Supreme Court the way you are doing in this case. In case after case we have said we owe the highest respect.


BLITZER: That state Supreme Court deals a small setback to Al Gore and weighs in on the butterfly ballot.

And a second ballot caravan arrives in Florida's capital, exhibit B for tomorrow's critical hearing contesting the count.

All ahead on this special edition of "THE WORLD TODAY: The Florida Vote."

Good evening. I'm Wolf Blitzer in Washington.

We're coming to you tonight from just outside the Supreme Court on a cold night in the nation's capital, typical for this time of year. But inside the building behind me, behind a small group of demonstrators, it was anything but cold. It was hot, and it was also historic.

For 90 minutes, lawyers for Al Gore and George W. Bush were grilled by Supreme Court justices. Their tough questions went to the heart of the legal dispute: whether the Florida Supreme Court went too far in allowing a Gore-requested manual recount to go forward. Later, for the first time ever, the Supreme Court released a same-day audio tape of the hearing. It probably will take a few days for the nine justices to come up with an opinion. For Al Gore, a setback here could mean the end of his presidential campaign.

We're now joined by our senior Washington correspondent Charles Bierbauer. He was inside the high court today. He heard all the arguments -- Charles.

CHARLES BIERBAUER, CNN SENIOR WASHINGTON CORRESPONDENT: Wolf, it was indeed a unique day in the history of the U.S. Supreme Court, made more so by the fact that it dealt with the U.S. presidency. And we all, the world, got to put our ears to the door at least and hear what goes on inside there.

But now let me take you inside.


(voice-over): The justices wanted to be sure they should deal with the Florida state Supreme Court decision extending vote recounts.

ANTHONY KENNEDY, ASSOCIATE JUSTICE OF THE UNITTED STATES: If the state Supreme Court relied on a federal issue or a federal background principle and got it wrong, then you can be here.

BIERBAUER: Bush attorney Ted Olson says Florida violated both the U.S. Constitution and federal election statutes.

THEODORE OLSON, BUSH ATTORNEY: The Florida Supreme Court radically changed the legislative scheme because it thought it could do so under the Florida Constitution. By doing so, it acted inconsistently with Article II of the Constitution and inconsistently with section 5 of Title 3.

BIERBAUER: The change in counting deadlines is critical.

HANCOCK: The laws were in place before the election. And those laws granted to the judiciary...

O'CONNOR: Well, but certainly the date changed. That is a dramatic change, the date for certification, right?


BIERBAUER: Later, Gore attorney Laurence Tribe:

LAURENCE TRIBE, GORE ATTORNEY: We're not dealing here with a decision in which within the gray area where a court could reasonably go either way. This court simply said, we don't care about these federal considerations.

BIERBAUER: This court will not lightly reverse the Florida decision. Justice Ginsburg:

GINSBURG: In case after case, we have said we owe the highest respect to what the state says, state Supreme Court says, is the state's law.

OLSON: This is a very unusual situation, Justice Ginsburg, because it is in the context of a presidential election.


BIERBAUER: And the justices are mindful of the stakes involved in this case and involved in what is going on in Florida. Justice Breyer asked what would be the consequences. Well, the probable consequences of a rollback to the Florida -- of the Florida Supreme Court decision would be to set an earlier date for counting votes, slightly widen George Bush's margin. But it would still allow some of the contests in Florida to go on.

So while the Supreme Court has the last word on this case, it may not yet be the final word on the whole election -- Wolf.

BLITZER: Charles, it's always dangerous to read into too much into the questioning, but some longtime Supreme Court observers are already speculating that a 5-4 split may have emerged during the course of today. Are you getting that sense that there's something to that?

BIERBAUER: Well, most people thought that there was a split if you take it from the questioning, Justice Ginsburg, for example, talking about owing respect to the Florida Supreme Court, but others raising the matter of, as Justice O'Connor did, the fact that the Supreme Court had changed the date, had altered the rules of the game, as it were.

So the questioning suggests a split, and the experts are mulling over whether is a split. But even if you say, Wolf, it's 5-4, it's 5- 4 which way? I don't know. We'll see.

BLITZER: All right, I don't know either. Charles Bierbauer reporting live from here at the Supreme Court.

Thank you so much.

And while a Supreme Court ruling against Al Gore could be politically devastating, it may not necessarily be the final word, as Charles just reported.

Gore is pinning his hopes on winning out on several fronts in Florida: Democrats in two counties, Martin and Seminole, are going to court to have tens of thousands of absentee ballots thrown out. The Democrats say Republican officials were allowed to correct faulty or incomplete applications.

But what seems to be the most important legal hurdle for Gore is clear: convincing a state court judge to allow an immediate hand count of some 14,000 ballots that were spit out by machines. The trial will begin tomorrow morning in Tallahassee. That's where CNN's Gary Tuchman is reporting from.

(BEGIN VIDEOTAPE) GARY TUCHMAN, CNN CORRESPONDENT (voice-over): It won't another Saturday in Tallahassee.

N. SANDERS SAULS, LEON COUNTY CIRCUIT COURT: This is a trial of contesting a state-wide election.

TUCHMAN: A state election that will determine the winner of the presidential election. Now that the motorcade carrying Miami-Dade County's 654,000 ballots has pulled into the Leon County Courthouse, more than 1.1 million ballots are inside. Democrats want to count them now. Republicans do not. a Democratic appeal to the Supreme Court to start counting immediately was denied on Friday.

Circuit Court Judge N. Sanders Sauls says he'll decide whether to do a count after testimony begins on Saturday but says standards for counting will have to be determined.

SAULS: We can't have people just running off and jumping on the horse again and riding off in all directions just counting. They can -- we can count until everybody's slap happy, but if nobody's on the same page that I don't know what's being accomplished?

TUCHMAN: A Republican motion to demand ballots from three additional counties was just one action that makes Democrats think the Bush team is using delay tactics.

DAVID BOIES, ATTORNEY FOR GORE CAMPAIGN: I think the inevitable effect of what they have done is to make it more time-consuming and confusing, and I think anyone knows that.

TUCHMAN: But late Friday, Bush lawyers said they now don't want more ballots sent but preserve the right to get them if a count begins. Surprising most, the judge says he wants to get this whole trial done in 12 hours.

SAULS: We're going to have to do the best we can. So I suggest to each of you, look at your presentations, let's slim it down to absolutely, let's get all the fluff off and proceed in that fashion.

TUCHMAN: This judge has the power to overturn Florida's certification for George W. Bush. Republicans will fight for him to maintain the status quo.


TUCHMAN: Throughout most of the week during preliminary hearings, the atmosphere in the court has been relatively light. This judge is very folksy. Sometimes he's downright funny. There's lots of laughter in the court. But all know the stakes are enormous, and there will be a lot of tension in the court and in the nation when the judge utters his decision about whether or not to count ballots.

Wolf, back to you.

BLITZER: Gary, you say that the judge wants to complete this hearing tomorrow, this trial, in 12 hours. Is that realistic, given the number of witnesses the cross-examination that is anticipated in this kind of trial?

TUCHMAN: Well it's not only the number of witnesses, there are probably 15 attorneys in the court.


... attorneys to go 12 hours would be a minor miracle, many people think. So it's fair to say that most people in the courtroom do not think it will take that little amount of time. They think it will take much longer. However, there's one important caveat: It's likely the Republicans will file a motion to dismiss the case. If the judge would grants that, then it could be much less than 12 hours -- Wolf.

BLITZER: Gary Tuchman in Tallahassee, thanks for joining us. And there were other developments today: Florida's Supreme Court rejected a Gore appeal for an immediate manual recount of the disputed ballots.

The justices also rejected an appeal for a revote in Palm Beach County because of the so-called "butterfly ballot."

The U.S. 11th Circuit Court of Appeals agreed to hear on Tuesday two Bush campaign appeals that the hand recounts are unconstitutional.

And next here, reaction from the Bush and Gore campaigns to today's Supreme Court arguments and the political fallout from Republican Sen. Fred Thompson and Democratic Congressman Barney Frank.

And later, Bruce Morton on the case of the Supreme Court versus the voters of the United States.

This is a special edition of THE WORLD TODAY.



BOB CRAWFORD, FLORIDA CANVASSING COMMISSION: I think it's pretty clear that in Florida we're lost in a legal nightmare, and I'm hoping that the Supreme Court today can give us a road map out of it.


BLITZER: Both George W. Bush and Al Gore remain tight-lipped as they awaited a ruling from the high court. The Texas governor brought the case to the justices last week, arguing the Florida Supreme Court should not have extended the deadline for the manual recount.

With reaction from the Bush camp on today's hearing, here's CNN senior political correspondent Candy Crowley.


CANDY CROWLEY, CNN SENIOR POLITICAL CORRESPONDENT (voice-over): What the Bush team wants is a clear U.S. Supreme Court win. GOV. MARC RACICOT (R), MONTANA: Will it end the entire process in the state of Florida? That, I think, might be the most optimistic thing to expect. And clearly, I think it'll give direction. But the relief that was sought certainly wouldn't address virtually every single contest that's ongoing.

CROWLEY: What the Bush team fears is a clear Gore win: again, not because it necessarily decides things, but because it will shape decisions to come. What some in the Bush camp think they may get is a mixed decision. Said one source close to the legal team: "I don't think any institution in America wants this dead mouse at their door. If it's murky, everyone thinks they got something."

Both sides, the source said, "will come out and flog it, and nothing changes. The message is: proceed on."

The question then becomes: Where does it end? A political source within the campaign says: "There is a clear recognition by Bush that he has shared that there are things he will not sanction, things he will not do, things he will not go beyond." Asked for specifics, the source said there was a desire not to have the Florida legislature move precipitously: that is, to jump into the fray before it absolutely has to, to get electors certified.

But what if a court-ordered vote tally comes up with Al Gore as the winner? The source was elliptical: "There is a continuing desire to have the Florida's action be an affirming or confirming act."

(on camera): The orders now are to keep the options open and push on. For the Bush legal team, that means a court date in Leon County Saturday, when George Bush will be at his ranch in Crawford, talking next year's legislative agenda with top congressional leaders.

Candy Crowley, CNN, Austin.


BLITZER: And out of the Gore camp, which kept track of today's legal proceedings -- proceedings from right here in Washington. Here's CNN's Jonathan Karl. He has reaction from the vice president.


JONATHAN KARL, CNN CORRESPONDENT (voice-over): Florida's Supreme Court dealt the Gore campaign a blow, denying the vice president's request for an immediate recount of some 14,000 disputed ballots. A setback, Gore's lawyers say, but not a devastating one.

RON KLAIN, GORE SENIOR LEGAL ADVISER: We're obviously disappointed, but I think it's very important that they said that we could come back at a later point, depending on how the proceeding in Judge Sauls' courtroom is going. And we're very pleased with what happened in Judge Sauls' courtroom today.

KARL: Circuit Court Judge Sanders Sauls, in a hearing before the state Supreme Court acted, vowed a speedy 12-hour trial Saturday in the Gore campaign's case contesting the election, leaving enough time, the Gore campaign now says, to count the disputed ballots.

KLAIN: He made it very clear that he's going to move this proceeding forward on an expeditious basis.

KARL: As for the U.S. Supreme Court, the vice president remained behind closed doors at his residence during the historic hearing, leaving his point man before the court to comment on the proceeding.

LAURENCE TRIBE, GORE CAMPAIGN ATTORNEY: I have learned from 29 other arguments that you can't always guess anything about where the justices will come out from exactly what they ask.

KARL: Although the court is looking at a relatively narrow aspect of the election dispute, some of Gore's Democratic allies are looking for the justices to speak decisively about this most indecisive election.

SEN. PATRICK LEAHY (D), VERMONT: I hope, though, for the sake of the country that whatever decision they make will be unanimous.

KARL: Gore's aides concede a decisive loss before the Supreme Court, although it may not affect the legal battles in Florida, could be a devastating blow in terms of public opinion.

(on camera): Gore's legal aides say the vice president remains in frequent phone contact with not just his top lawyers, but with several members of his legal team, managing details in virtually every aspect of his legal battles in Florida.

Jonathan Karl, CNN, Washington.


BLITZER: More on the political impact of the Supreme Court case: Democratic Congressman Barney Frank and Republican Senator Fred Thompson will join us right after the break.



UNIDENTIFIED MALE: I think the judges asked a lot of good questions. They seemed more negative toward the Democrats' arguments.


BLITZER: The divided nation will be represented by an equally divided Senate in January. For the first time in 120 years, the next Senate will be split 50-50 between Republicans and Democrats at the beginning of the session now that a recount confirms Democrat Maria Cantwell has defeated Republican Senator Slade Gorton in Washington state.

Vice President Al Gore will break the tie until there's a new administration January 20th. Joining us now with his thoughts on all of this, including the Supreme Court argument today, Senator Fred Thompson of Tennessee. A little noisy here, senator, but I'm sure you can hear me.

SEN. FRED THOMPSON (R), TENNESSEE: Isn't the First Amendment great?

BLITZER: Fifty-fifty until January 20th when the next administration takes office. How is that going to impact on all of this? There are three weeks from the time the new Senate comes into play on January 20th.

THOMPSON: I don't think it'll be a great impact. I don't think there'll be an attempted take over for that limited period of time only to be changed back a little later. I think everybody realizes we're probably going to have to be a little more cooperative than we have been in times past and that we're capable of doing that.

BLITZER: You listened. You were inside the Supreme Court earlier and you heard those arguments. One thing that struck me was when Justice Ruth Bader Ginsburg, she complained about the way some of the lawyers for George W. Bush have blasted the Florida Supreme Court, saying, "I do not know of any case where we have impugned the state Supreme Court in the way you have." Those were pretty strong words.

THOMPSON: Well, I don't think she meant personally, and, of course, Ted Olson reiterated that there was nothing personal about it. I think that the problem with the Gore position is that the Constitution clearly gives the state legislature the power in terms of the manner of choosing electors, and the state Supreme Court has taken that on itself incorrectly. So, certainly there's nothing personal. But just as equally certain, Justice Ginsburg thought that the Supreme Court probably had the right to do that.

BLITZER: But did you think that not only some of the lawyers but James Baker and even George W. Bush himself went too far in criticizing the Florida Supreme Court decision?

THOMPSON: Well, let me say this, Wolf. I think all of us on both sides have been somewhat guilty of castigating all of the players in Florida, whether it be the governor, the attorney general, the local Democratic officials, or the Democratic judges who are hearing these case or the Republicans at the top.

And I just was thinking today as I was in there, I hope we draw the line at the Supreme Court of the United States. I don't know what they're going to decide, but I hope we are able to give it due deference and due respect and not be overly analytical about who appointed them. So, they're doing their best. We saw a good day in this county. We had some demonstrations outside and we had calm deliberations inside by very respected, responsible people. That's our system. And however it turns out, we need to accept that.

BLITZER: Senator Fred Thompson, thanks for joining us on a chilly night here. You're braver than I am. You're not wearing an overcoat, but thanks. THOMPSON: These things keep me warm.

BLITZER: Thank you very much.

THOMPSON: Thank you.

BLITZER: But I want to go right now to Boston where Barney Frank, a Democratic Congressman from Massachusetts is joining us. Congressman Frank, you heard very strong sentiments expressed today that that Florida Supreme Court went too far in not only interpreting the law, but in effect rewriting Florida state law.

REP. BARNEY FRANK (D), MASSACHUSETTS: Well, first, it would be very odd to the have the United States Supreme Court tell a Supreme Court of the state that it got its own state law wrong. I mean, that's essentially what we had was the Florida Supreme Court interpreting Florida law.

Secondly, what the Florida Supreme Court seems accused of is caring too much about getting the votes counted. I mean, what's striking about this is the assertion -- and I was particularly stuck listening to Justice Scalia today make explicit that there was a reading of the Constitution, a literal reading that says the legislator can appoint electors and not even have a presidential election. And he said suffrage is not relevant here.

Well, the Florida Supreme Court is accused by some of being excessively concerned about getting every vote counted. Now, it may be that there was something in the Constitution that prevents a state Supreme Court from interpreting its own state law to get votes counted, but I hope there isn't.

BLITZER: But Congressman Frank, is there any doubt in your mind that according to the Constitution, when all is said and done, if all these cases go forward, the Florida legislature does have the right to select the 25 electors who would represent Florida in the Electoral College?

FRANK: No, that's the way the Constitution is written. That should emphasis to people, and I hope they'll remember that when we deal with the Electoral College issues, as I hope we will in the future, that the Electoral College was meant to be an undemocratic method for picking the president. It was put forward by people in 1788 who didn't think much about the idea of a popular election. And Justice Scalia referred to that.

So, yes, there is a reading of the Constitution which is the literal reading which would govern, which says you don't even have to have an election. It doesn't make any difference if you have an election who wins. The legislature, if it wants to, can appoint the electors. I would hope people would reject it. You know, it isn't always a case where just because you have the power to do something you ought to do it. And frankly, it seems to be odd that the votes -- both the national popular vote and the votes in Florida, the votes of people who went -- that the notion you want to really count everybody's votes is getting lost in all of this. BLITZER: Congressman Frank, we only have a few seconds left. At what point should Al Gore just give up? Is the last word here at the U.S. Supreme Court or should he keep on fighting, irrespective of that decision?

FRANK: Well, once the final court decisions are in, the U.S. Supreme Court could say, look, it's all over. Or the Florida Supreme Court could, but I think everybody agrees that the courts -- let me make one quick prediction, Wolf. By March, everybody -- you, others, print journalists, electronic journalists -- you're going to be giving us stories about how this turned out to be much less disruptive to the country and whoever's the president we're all going to be talking in March about how, well, gee, things are fairly normal.

BLITZER: All right, Barney Frank. Thanks for joining us from Boston. And up next, Bruce Morton with some perspective on the Supreme Court's involvement in Election 200.

Stay with us.


BLITZER: Before we go, CNN's Bruce Morton looks at the question, should the courts or the legislature decide the president when the people can't decide.


O'CONNOR: Why are we acting?

BRUCE MORTON, CNN CORRESPONDENT (voice-over): The Supreme Court wrestling with an election. In a perfect world, of course, voters -- not justices -- should decide.

KENNETH GOTTLIEB (D), FLORIDA STATE HOUSE: We should respect the rule of law and the constitutional right of one vote for each citizen.

MORTON: Sure, but one Floridian, one vote has got mired in a maze of chads and dimples; counters and recounters; squinting and wondering; truck loads of ballots wandering the highways. If it's now so complicated the voters can't be counted accurately, what then? If not the courts, who? The legislature?

JOHN LAURENT (R), FLORIDA STATE SENATE: The legislature has a fundamental obligation under Article II of the United States Constitution to ensure that Florida's electors are counted on January 6th when Congress counts the votes of the Electoral College.

ROD SMIT (D), FLORIDA STATE SENATE: This legislature will be held up to criticism and even ridicule if it is perceived that we are trying to take away voters choice.

MORTON: He may be right. In a recent ABC News/"Washington Post" poll, 59 percent said they would disapprove of the Florida legislature getting involved in the election. The legislature hasn't yet. The courts, Florida and U.S. Supreme have and 59 percent told a CNN/"USA Today" Gallup poll they would be bothered by the courts getting involved.

But that's courts in general. We look at these nine men and women. the U.S. Supreme Court justices, a little differently. Fifty- eight percent told that ABC/"Washington Post" poll they approved of the Supreme Court getting involved, maybe because people know they don't have to run for re-election. Maybe just because most of us have heard of them. Maybe because on a lot of big issues from school desegregation to the Watergate tapes they've come down about where the country has.

This time, when the court make important decisions it likes to do so by a good majority. That Watergate tapes case was 8-0. Listening to the Florida arguments, it was heard to head that kind of consensus.

O'CONNOR: So you probably have to persuade us there's some issue of federal law here.

MORTON: Bruce Morton, CNN, Washington.


BLITZER: And I'll see you Sunday at noon, Eastern on LATE EDITION. I'm Wolf Blitzer reporting from the Supreme Court. Greta Van Susteren picks up our coverage starting right now.



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