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Election 2000: U.S. Supreme Court Sends Hand Count Case Back to Florida Supreme Court

Aired December 4, 2000 - 2:00 p.m. ET


LOU WATERS, CNN ANCHOR: Nearly a month after American voters had their say, the United States Supreme Court weighed in today on an unfinished presidential election. If you were looking for clarity and finality from the United States Supreme Court, you may be disappointed. In fact, the justices themselves expressed a bit of confusion about the case. In short, the justices dumped the case back in the lap of Florida's Supreme Court.

For the ruling and what it means, here again CNN senior Washington correspondent Charles Bierbauer, who is at the U.S. Supreme Court -- Charles.

CHARLES BIERBAUER, CNN CORRESPONDENT: Well, Lou, the justices were themselves looking for clarity, as you suggest, and they did not find it in the ruling of the Florida Supreme Court. So what they have done is to issue what is called a precureium, it's a ruling by the full court that is not signed or initialed or written by any individual justice and it says -- in this quest for clarity -- "After reviewing the opinion of the Florida Supreme Court, we find that there is considerable uncertainty as to the precise grounds for the decision" that the Florida court had made. That decision being the one which extended the time frame for doing the hand count of ballots beyond what seems to be the limit laid down in a Florida statute.

So the justices said, specifically, that they were "unclear as to the extent to which the Florida Supreme Court saw the Florida Constitution as circumscribing the legislature's authority." This was very much the central issue -- was the court using the Constitution of Florida or was it using the law as laid down by the legislature? They have vacated the ruling, that means it's no longer, in effect, the Florida state ruling and they have remanded it for the Florida Supreme Court to give it another...


WATERS: Charles, excuse me. We have something going on in Leon County.


DOUG SMITH, LEON COUNTY COURT SPOKESMAN: ... more news that I'm going to be able to provide you right now, but at this point, we have no word from the judge as to how he wishes to proceed. So at 4:00 p.m. today, we will give you another status update. We really have no more news at this time.

QUESTION: Where is the judge, though?

WATERS: All right, that was the promised news briefing at 2:00 from the Leon County courthouse, where Judge N. Sanders Sauls is yet to make a decision in the contest over the weekend. We saw the trial -- the decision in that contest was expected today, but Judge Sauls postponed it, pushed it back. He was supposed to report out about noon today on what he had decided, but then the Supreme Court came down, handed its decision back to the Florida Supreme Court. Judge Sanders Sauls needed more time to read over that decision. And by 4:00, now, we're expecting another briefing. That doesn't mean we're going to get the decision then, but we are going to get another briefing. It might be similar to the one we just heard.

But let's go back to Charles Bierbauer, with our sincere apologies. Charles, it's up to you now.

BIERBAUER: Well, let me suggest how what just happened in Florida differs from the way things happened here. The no-news news conference basically says stand by until 4:00. Here at the U.S. Supreme Court this morning, at 10:00, when the court normally convenes, we were handed orders -- that's an indication of which cases the justices will hear in the future -- and they moved directly into arguments for the two regularly scheduled cases that were on their docket today.

And most of us were sitting up in the courtroom, oh, at about 11:30 or so when suddenly these little pieces of paper were being fed down the rows to us and immediately all we had to do was look at it and see George W. Bush on the top and we knew that we had in hand the opinion. This is not the way the court usually works. In fact, veteran court watchers and officials here cannot remember the court ever having handed out an opinion in this fashion in the middle of a session. And most of us sort of just ducked out as quickly as we could from the courtroom and sprinted outside here. In fact, one of the lawyers who was arguing, so intent on his own argument, said he didn't even notice that we had gone -- a very strange proceeding here.

The bottom line, as we were saying before, Lou, was that this court has told the Florida Supreme Court to explain itself, just as Justice Ginsburg said in the arguments Friday -- when she said, we could remand for clarification, she was telling us exactly what the court was going to do -- Lou.

WATERS: That's a question I had, Charles. You say the ruling by the -- this has all been vacated now, back to the Florida Supreme Court. The U.S. Supreme Court says it's unclear to them what they meant by their decision.

Is it a requirement now of the Florida Supreme Court to report back?

BIERBAUER: Well, I'm not sure that it's a requirement, but I think that that's pretty much unavoidable. In fact, as we were listening to David Boies, the attorney for Vice President Gore, earlier, he seemed to indicate that he thought that the Supreme Court in Florida would do just that and that it could come back up here fairly quickly.

It's my sense -- and not being completely familiar with Florida operations -- that the justices down there could simply provide that clarification without additional hearings, without additional arguments, but to elaborate on the reasons that they took in arriving at their conclusions, send that back to this court and then this court could respond to that. I think because we're operating so much on unplotted terrain here that there are a lot of things that are being decided pretty much on an ad-hoc basis -- not to suggest the law is being done on an ad-hoc basis, but the procedures are quite unprecedented -- Lou.

WATERS: And my congratulations to you, Charles, for sprinting down those steps this morning with your great breath control being able to report the story. I'm glad I didn't have to ask you any questions to see how you survived that. Congratulations.

BIERBAUER: Very breathlessly and without stumbling.

WATERS: Man, Charles Bierbauer, our national correspondent at the Supreme Court -- Natalie.

NATALIE ALLEN, CNN ANCHOR: Yes, our thumbs up for Charles for that one. He had a slight sweat, but he got through it, even though with no breath left.

Well, now the matter is, as you heard, back at the Florida Supreme Court. So what happens now? Everyone wants to know.

CNN's Susan Candiotti is at the court in Tallahassee. Whether she's seen any action or not, we don't know -- Susan.

SUSAN CANDIOTTI, CNN CORRESPONDENT: No, Natalie. No action or reaction here at the Florida Supreme Court, as we continue to wait for a decision from this court as to how they want to -- or decide to clarify their earlier ruling from two weeks ago. We can tell you at this hour that all of the justices here, all seven of them, have received copies of the U.S. Supreme Court decision and currently, we know for sure that at least some of them are in the process of reviewing that decision.

Eventually, at some point in the day, according to a spokesperson for the court here, the justices will get together to discuss matters and decide how to proceed from there. At this juncture, we do not know whether a response would come via telephone, via some sort of written response, whether they will hold a hearing of some kind. The spokesperson doesn't know what the justices will do at this stage.

The court here this morning started off their day in a quite normal fashion. They heard oral arguments all last week and were proceeding along with putting together written decisions on that business from last week. Then late in the morning, some of the staff here heard about the Supreme Court ruling from news reports, contacted the U.S. Supreme Court and asked the copies of the decision be sent here to be distributed to the justices, and that's what's occurred.

Now, the other matter, of course, pending before this court, as everyone is waiting for that ruling from Judge -- Circuit Judge Sanders Sauls, because once he makes a decision one way or another, it is very clear that whichever side loses, assuming there is a decision this day, the losing side will be dashing over here to the Florida Supreme Court to file an immediate appeal.

And there is one more matter election related here at the Florida Supreme Court. By 3:00 this day, a gentleman by the name of Matt Butler and his attorneys will be filing briefs as ordered by this court. Mr. Butler is challenging the constitutionality of manual recounts in the state of Florida. He believes that as a citizen he should be able to demand a manual recount just as any political candidate or canvassing board or party can do. The court will receive briefs by that -- by both the Florida attorney general, Secretary of State Harris, and Mr. Butler, and then this court must decide how to proceed after that.

But, of course, more immediate is this matter from the U.S. Supreme Court, they will be getting together at some point this day to decide how to respond to that.

Natalie, back to you.

ALLEN: OK, Susan Candiotti, thanks. We'll wait to hear from you when there is some news from there.

We want to let you know that James Baker with the Bush campaign will be stepping out there in Tallahassee before the cameras and will make some statements presumably about this action by the U.S. Supreme Court today coming up at 2:30, and CNN will provide live coverage.

So again, we also await to hear from Judge Sanders Sauls, we just heard 10 minutes ago that nothing before 4:00 p.m. Eastern. This will be the decision on whether he will order hand recounts in two South Florida counties.

And we have CNN's Mark Potter joining us to talk more about this, and he has one of George Bush's lawyers with him -- Mark.

MARK POTTER, CNN CORRESPONDENT: That's right, Natalie. We're standing by, awaiting this announcement at 4 o'clock on where we stand.

We are told that the judge is still working on his decision. The staff has talked to him, but the judge has given them no guidance on exactly what he plans to do. So maybe at 4 o'clock we'll get more word.

In the meantime, let's talk with Barry Richard, who represents Governor Bush.

Sir, what's your -- your feeling about how the Supreme Court decision will affect this case, in which we are awaiting a decision from the judge, Judge Sauls. BARRY RICHARD, BUSH CAMPAIGN ATTORNEY: One of the arguments that I made to Judge Sauls was that the federal statute prohibits the state from changing the rules after the election of the presidential electors, and that's what was done in both Palm Beach and Broward counties. Palm Beach had a longstanding written policy that no dimpled ballots count as votes and Broward County had a very liberal standard that counted dimpled ballots, which had never been the case before.

So the Supreme Court has indicated that they do expect states to comply with that rule. And if judge -- if Judge Sauls reads the opinion, and agrees with that, then -- then the result of it is that many of the votes that Vice President Gore picked up in Palm Beach and Broward counties would actually be reversed.

POTTER: And what bearing would this have on his decision? Would he decide that he can't hear this case? Could it be that dramatic? Or does he go forth as David Boies, as he argues, that this should have no bearing whatsoever, what happened in the Supreme Court?

RICHARD: Well, I don't think what the Supreme Court did would stop Judge Sauls from hearing the case. I think that it...

POTTER: Or ruling on the case?

RICHARD: Or ruling on it. I think that it might well keep him from starting a recount of ballots at this point. But you know, I don't think it would stop him from ruling on the merits of the case.

POTTER: And again, in laymen's terms, so that we understand it, why would the Supreme Court ruling stop him from ordering the counting of ballots? That's really the crux of this case.

RICHARD: Well, it's vacated the Florida Supreme Court decision, which was the decision that brought us to where we are today, and I think at very least Judge Sauls would want to wait and see what the Supreme Court is going to do now before he gets into ballot counting.

Of course, we go back to where we were last night. As I told Judge Sauls, I don't believe that Mr. Gore's legal team made any case whatsoever to justify counting any ballots even before the U.S. Supreme Court decision.

POTTER: Now, the judge had said he would have a ruling this morning, then at 2 o'clock. Now we're going longer. Does this surprise you at all given the developments today?

RICHARD: Well, no. I think the only prudent thing for Judge Sauls to do would be to read and analyze that opinion and see how it affects what he did. But there's certainly nothing in the United States Supreme Court opinion that would cause him to be less motivated to rule in favor of Governor Bush.

POTTER: Mr. Richard, thank you very much for your time. It's a pleasure to see you. Thank you very much.

RICHARD: You're welcome.

POTTER: So, that's the situation here. We're awaiting the ruling from Judge Sauls. We do not know when that will come or how that will come. Hopefully, we'll learn more at 4 o'clock.

So Atlanta, Natalie, back to you.

ALLEN: All right, nice of the lawyers from both sides to stop by while we're all waiting. Thanks, Mark Potter. Now here's Lou.

WATERS: Guiding us through this legal and legislative maze these past four weeks has been David Cardwell, doing yeoman work for us down there in Tallahassee.

So, David, here we have David Boies saying that Judge Sauls' decision will have no effect -- I mean the Supreme Court decision will have no effect on the Sauls decision. Now we have Barry Richard suggesting it might have a dramatic effect. Which is it?

DAVID CARDWELL, CNN ELECTION LAW ANALYST: Well, we shouldn't be surprised at this point that they disagree. There hasn't been much that they've agreed on. They have really been taking sort of opposite conclusions from the same set of facts or same statutes or the same court decision. So not surprising at all that they would interpret it differently.

What the U.S. Supreme Court did was to say, we're not sure on what basis the Florida Supreme Court used in rendering its decision. So it has sent it back and basically said, clarify it and recognize that you need to be proceeding under the statute, and also take into account the provision of the United States code dealing with the electors.

It basically sent a signal to the Florida Supreme Court loud and clear we think if you followed a certain path, you can do what you were doing. It remains to be seen yet what the Florida Supreme Court will do.

Now that Judge Sauls has put off from the morning until 2 o'clock, now 4 o'clock, he may be waiting to see does the Florida Supreme Court do something this afternoon. They've had a tendency between 4 and 5 o'clock in this case. Might he wait and see if they do something in response to this U.S. Supreme Court decision.

WATERS: It struck me that the U.S. Supreme Court justices, the first question they asked on Friday is why are you here, why do you think this is a federal case. Now, they seem to be asking the Florida Supreme Court, what does this mean?

CARDWELL: Right, if they -- the Florida Supreme Court can explain that all that they were doing was trying to reconcile two state statutes enacted by the legislature, which is the recipient of the grant of power from the U.S. Constitution to select the manner by which electors are chosen, then I think the Supreme Court, the U.S. Supreme Court will say, fine, all you're doing is helping the legislature. But when the Florida Supreme Court want and relied upon many provisions in the Florida Constitution, dealing with the right to vote and suffrage, then the U.S. Supreme Court said, are you going over into the Constitution, the state Constitution, which is not enacted by the state legislature and is that something different?

But in the final paragraph of this opinion from the U.S. Supreme Court, I think they gave a road map to the Florida Supreme Court on how to proceed.

WATERS: Now back to the arguments, I was watching the final arguments last night, as I assume you were, and when David Boies stepped up and said there are legal votes out there that have been missed and must be counted, and was citing the statute which allowed for this, I said, yes, that's a good point there, he hit a home run. And then Barry Richard stepped up, and as he put it, he said the Gore team is light years away from proving the kind of electoral errors the law requires before a recount be ordered. Voter confusion, voter mistakes is not enough. I said, yes, that makes sense, hit a home run.

They're both looking at the same statutes, coming to different conclusions. You've already addressed that. However, the question is, is there something about this statute that's that unclear that these arguments can be so diverse?

CARDWELL: Well, I don't believe it's so much that the statute is unclear in and of itself. The problem is, is its application to this situation.

Florida has never had a statewide recount. Florida has never had a statewide contest, as basically what we have here. So what's happening is we're trying to take a statute that was really enacted for the purpose of resolving local races, those in a single county, and trying to really extrapolate it statewide. And as a result, you start coming to some different conclusions.

You know, I had the same reaction you did, Lou, when I was watching the oral argument last night. I thought David Boies did excellent, and then Barry Richard got up, and I said he did a great job.


CARDWELL: I think what it shows is that the legal issues here are just like the election. It's very close and it could go either way.

WATERS: And we really can't anticipate which way it's going to go, but I have a message here that at 2:45 -- that's about less than a half an hour -- Craig Waters, the Florida Supreme Court spokesman, will be stepping out with some sort of announcement. Do you have any idea what the Supreme Court is doing today? Or what they might be doing?

CARDWELL: Well, they might be wanting to issue some order clarifying their decision in response to this Florida Supreme Court case, the U.S. Supreme Court case. They may feel they've got to give some guidance possibly to Judge Sauls. Of course, it also could be that Craig Waters comes out, as he has done a few times, and announce that there is no announcement.

WATERS: Right. So if you'll just stay right where you are, David Cardwell, we have a few dozen more questions for you, and they'll be coming up later on this afternoon. Thanks once again, David.

CARDWELL: Only a few dozen?


WATERS: Well, that's my first count. We're going to recount that.



WATERS: OK, David Cardwell.

ALLEN: All right. So we will hear from James Baker of the Bush team at 2:30, and Craig Waters with the state Supreme Court at 2:45. So sit right there. We should have plenty to talk about in between that.

Right now, we'll talk with CNN's Jeanne Meserve, covering the Bush campaign in Austin, Texas, who, you reported earlier, they wanted to go very slowly reacting to the United States Supreme Court announcement today -- Jeanne.

JEANNE MESERVE, CNN CORRESPONDENT: But now ready to go forward. James Baker, as you mentioned, going before the cameras within the half hour. He, of course, is the Bush campaign's pointman down in Florida. He's been quarterbacking the legal action down there.

I did ask the campaign aide what the headline was going to be out of that Baker press conference and was told -- told, we've been studying it carefully, meaning the U.S. Supreme Court decision. We are finding much to like and much to applaud. We'll be hearing chapter and verse from that, I'm sure, from Secretary Baker.

No word from Governor Bush and no indication we will hear from him today. He returned to Austin today from his ranch in Crawford. He'd been there since last Tuesday, more or less continuously. We were told he was coming back to do transition business and state business.

You can bet he also has been consulting heavily with his lawyers about exactly what this court decision today means. We had been told that the lawyers were going over it very carefully to make sure they fully understood the substance of what the court was saying.

Another prominent Republican, General Colin Powell, was interviewed by CNN a short time ago. He said that he thought Dick Cheney had it right yesterday when he asked Al Gore to concede this election, and he warned that the patience of the American people may soon wear thin.


GEN. COLIN POWELL, FMR. JOINTS CHIEFS OF STAFF CHMN.: The American people, to this point, have taken it in stride. They understand what's happening. They're watching it every day. And I don't think they are upset yet to a point where it is troubling to the nation. But I think if it drags on beyond the middle of December, when those Electoral College deadlines come into effect, then I think people will want to see a resolution of this as quickly as possible. But the American people have been patient, because they understand what's happening. The democratic process is playing out.


MESERVE: Powell, of course, a partisan in all of this: He was an adviser to the Bush campaign. He campaigned with the Texas governor. And he was at the ranch just last week talking about transition -- Powell rumored to be a top pick for secretary of state. And so we wait for Secretary Baker. Apparently, the Bush campaign has now sorted out exactly what this U.S. Supreme Court decision means for them and for this race for the presidency -- Natalie, back to you.

ALLEN: All right, Jeanne Meserve, thanks.

And let's find out if we are going to hear any more from the Gore campaign today.

CNN's Jonathan Karl is in Washington -- Jonathan.

JONATHAN KARL, CNN CORRESPONDENT: Well, Natalie, the vice president's team responded almost immediately to that Supreme Court ruling. The response was basically that this may not have been a victory for the Gore team. But they're also saying that it wasn't a defeat either. The official word came from David Boies down in Florida.


DAVID BOIES, GORE CAMPAIGN ATTORNEY: I think the Supreme Court of the United States' opinion does not in any way affect the contest that is going on in front of Judge Sauls. And we would hope that that decision would be issued promptly.


KARL: Boies saying simply that the Supreme Court was sending the decision back down to the Florida Supreme Court, asking for clarification on their ruling. Now, meanwhile, looking to that case down in Leon County: the Gore campaign looking a little bit nervously, waiting for that ruling by Judge Sanders Sauls.

In fact, the Gore campaign -- although they say they don't know how Sauls will rule, obviously -- say they have already prepared, already written a notice of appeal, so that should they lose in Judge Sanders Sauls' courtroom, they will take notice of appeal almost immediately over to the Florida -- over to the District Court of Appeals, asking that court of appeals in Florida to send it immediately to the Florida Supreme Court.

And Boies also mentioned that during his briefing earlier today.


BOIES: Remember, the thing that we relied on heavily in the contest section was the statutory interpretation portion of the Florida Supreme Court decision. And that is exactly the portion that the United States Supreme Court says raises no problem at all.


KARL: As for the vice president himself, later this hour, he is expected to leave his residence and come down to his executive office here at the Old Executive Office Building near the White House -- the vice president to have another one of those transition meetings with Roy Neel, the head of his transition team and several of his transition advisers, including Alexis Herman, the labor secretary, and Charles Burson, his chief of staff.

So as the legal battles continue, the vice president quietly making -- taking steps toward preparing for what he hopes to be a presidential transition -- back to you, Natalie.

ALLEN: All right, Jonathan Karl in Washington.



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