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Crossfire

Election 2000: Gore Loses Legal Doubleheader

Aired December 4, 2000 - 7:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

BILL PRESS, CO-HOST: Tonight, two major court decisions: one, a major defeat for Al Gore. What's next? And will pressure now mount for Gore to concede?

ANNOUNCER: Live from Washington: CROSSFIRE. On the left, Bill Press; on the right, Mary Matalin. In the CROSSFIRE: Congressman Alcee Hastings of Florida, a Gore supporter; and Florida Congressman Mark Foley, a Bush supporter.

PRESS: Good evening. Welcome to CROSSFIRE, and "Black Monday" for Al Gore.

It's not over yet, but after losing a legal doubleheader today -- one in Tallahassee, the other in Washington -- Gore is two court decisions farther away from the White House and George Bush is two decisions closer. Lawyers for Gore have already filed an appeal to today's Florida court decision.

Is that the final step? Well, it's a day full of powerful political and legal implications -- we'll get to the politics with our two congressmen next, but first let's check out the legal fallout with CNN's Roger Cossack.

Roger, let's start with the Tallahassee decision, the big one today. What is Gore's next step and how long will that take possibly to play out?

ROGER COSSACK, CNN LEGAL ANALYST: Well, I mean, obviously he's got one step left and that's an appeal to the Florida Supreme Court, which he's already begun, and the way they expedite things down there, it's obvious the Supreme Court knows that -- how quickly this has to be done, and I would say the briefs could be ordered -- let me see, today is Monday -- they could have briefs in there by Wednesday and we could see an argument by perhaps Thursday or Friday.

But, Bill, I mean, it's hard to describe what a devastating defeat this really is for Vice President Gore, and I'm not trying to say this in any subjective way, I'm trying to be objective and call it the way it is. There are many ways that N. Sanders Sauls could have been nicer to Vice President Gore, but he chose the most -- a way that gave him the hardest appeal.

He could have just dismissed the case and gone over to the Supreme Court and the Supreme Court could have decided whether or not he should have dismissed the case or not, but what he did was make findings of fact and that is almost an impossibility for a reviewing court to overturn, because this judge made the decision, he heard the witnesses, he made his own findings of fact, and unless you can say that he was so far off that it's almost absurd, you have to stay with what he has done, and you know, like it or not, that's the way it is.

PRESS: Just one quick follow-up, if the Florida Supreme Court says that Judge Sauls made the correct decision, in other words, refuses to overturn him, is that the end of the road for Al Gore?

COSSACK: I would say that's certainly the end of the road on the contest. I don't think there is any going to the Supreme Court on this. And this is clearly Florida law and it's a Florida contest statute, and I think that's pretty much the way it is. You know, you never hate to say never, but I would say this: that if Vice President Gore came to me and wanted me to take this case at this stage of my career, or if I was practicing law, I would make him sign a letter saying that I had told him that his chances are too, you know, slim and none and that it's a real uphill battle.

MARY MATALIN, CO-HOST: Well, Roger, preceding that good news for Gore out of Tallahassee, the supreme spoke -- the case that had given the Gore campaign -- breathed new life into their campaign was that very good ruling from the Florida Supreme Court, which the United States Supreme Court said today lacked clarity and was confusing.

Could you clear up the confusion for us and give us some clarity? What did the Supreme Court actually say about the Gore campaign's case?

COSSACK: Well, Mary, what the Supreme Court did was, I think indicative of the fact that perhaps there is really a split among the justices on the Supreme Court, and so to try and find some common way of figuring this out what they did was say, OK, we need a little more information. The Supreme Court, unlike the Florida Supreme Court, which has to hear cases -- the United States Supreme Court doesn't have to hear cases and there are certain jurisdictional requirements, and one of them is that there has to be a federal question involved or else the Florida Supreme Court presumptively should be the final word on this.

So it was up to the Bush people to convince the United States Supreme Court at least that there was a federal question, and so what happened was -- and we heard all those, by the way, during the argument -- we heard all those questions from the justices, you know, why are we here, what's the federal question, et cetera.

So what they finally did today was they said, look, Florida Supreme Court, we need some more information from you, we are going to vacate your judgment, which kind of means we're going to put it on hold for a while, we're not going to reverse it, we're just going to vacate it and then we want to find out from you exactly what it was that you had in mind when you made your decision. What did you base it on? Did you base it on the Florida Constitution? Did you base it on any federal law? Or was this strictly an interpretation of Florida statutes? Depending on which one they come up with is depending on whether or not the United States Supreme Court would then take the case, but after what happened today with Judge Sauls, this case may never really get back to the Supreme Court, because this could really end it -- end this case and this litigation as we know it, as the saying goes.

MATALIN: Well, Roger, always a voice of clarity, no confusion here.

If you are still confused or want to know more about any of these cases, Roger is on cnn.com/crossfire even as we speak. You have to listen to him, chat with him, and listen to us at the same time, you smart audience.

Thank you, Roger.

OK, Congressman Hastings, you're a brilliant judicial activist...

REP. ALCEE HASTINGS (D), FLORIDA: What's coming here?

MATALIN: You are a great lawyer, but let's do the practical fallout of this. It's Monday. Only yesterday, vice president-elect -- no, I won't say that -- Secretary Cheney had this to say on one of the weekend shows, "Meet the Press."

Let's take a quick listen.

(BEGIN VIDEO CLIP, "MEET THE PRESS")

DICK CHENEY (R), VICE PRESIDENTIAL NOMINEE: I do think that it's time for him to concede. So far, he has chosen not to do that, to pursue other avenues, and clearly that's his prerogative, but I think long-term, I think history would regard him in a better light if he were to bring this to the close in the very near future.

(END VIDEO CLIP)

MATALIN: The Democratic leaders like yourself, who have been on the front lines, have been saying here, let the vice president pursue all of these legal options. Are the Democrats now going to say, let him pursue all of these appeals that he...

HASTINGS: Mary, by all means. I think all of us -- the media agreed that what would happen after the judge ruled, Judge Sauls, is that whoever lost would take an appeal. Let me go and try to put a bright face on what happened today. It was a dark day, as Bill said, but it is not a fatal day.

Among the things, for example, when Mr. Cheney just got through saying that it's time to concede, I have wondered -- you know, I'm advocating for a person that got 1/3 of a million more votes than did Governor Bush and I don't have any hesitancy in wondering perhaps why Governor Bush wouldn't consider conceding, particularly in light of the fact in Florida, when I was on the ground, a significant number of irregularities and discrepancies, the cumulative affect of which leaves a foul taste in the minds of many of us. And does he, on the backs of Jews in Palm Beach County who made mistakes and African-Americans who made mistakes -- 23,000 people the analysis in the "Herald" shows -- is he prepared to say that, I want to be president on the backs of those people in spite of the fact that they don't want me to be president.

MATALIN: Congressman, you know what? You are a great lawyer, but you know, as the judge in Tallahassee said today, voter confusion, voter error does not overturn an election. There is no fraud, there was no malfeasance, there was no negligence. Confusion does not result in overturning an election.

HASTINGS: Mary, there was a little more than confusion, and I wish Roger was still with us, because he and I on CROSSFIRE earlier had a discussion about this -- excuse me, it was on...

PRESS: "BURDEN OF PROOF."

HASTINGS: Yes, on "BURDEN OF PROOF." We had a discussion about it. There are two cases looming in the background, that's why I say it isn't fatal. Those absentee ballot cases from Seminole and Martin County -- Martin happens to be one I represent -- are going to have an explosive effect on this. If the irregularities were such that they rise to the level of fraud, then you have something different.

PRESS: Congressman Foley, the judge I think left no doubt certainly about his decision, but he did leave a lots of doubts about how he reached his decision, and I thought that Vice President Gore's lawyer, David Boies put the finger right on it today right after this decision.

Please listen just a bit.

(BEGIN VIDEO CLIP)

DAVID BOIES, GORE CAMPAIGN ATTORNEY: This is the first case that I'm aware of that in a ballot contest, a court has refused to look at any of the ballots that are the subject of that contest.

(END VIDEO CLIP)

PRESS: Now, how could the judge make a finding that there is no reasonable probability that counting these ballots are going to make a difference in the election when he never looked at one single ballot?

REP. MARK FOLEY (R), FLORIDA: Well, I think he was basing it on prior law. He clearly said in 1990, the precedent in Palm Beach County was dimples don't count, and I think what we have seen, which is extraordinary in the counties, they have changed the standards.

So I think when the judge reflected on all that's gone on since Election Day, he said, wait a minute, you know, you started out with one set of rules and now you have changed them in midstream, and so there is no need to look. Confusion is no reason to overturn an election, that's case law in Florida, and I think -- and I would suggest that the judge was very clear on his decision today. PRESS: Well, I'm talking about the evidence, the evidence. I mean, the ballots are sitting there, he says there is no evidence that counting these ballots would make any difference, when he hasn't touched a single ballot.

Let me ask you this, why did he truck all those ballots to Tallahassee if he never looked at one of them?

FOLEY: I can't explain that and I don't know why.

PRESS: But doesn't it make it curious about...

FOLEY: Obviously, he may have wanted to see...

PRESS: ... that he didn't do his job?

FOLEY: Well, I think he did his job. I think it's unfair to say he did not do his job. I think what he was looking for is reasons from the Gore campaign as to why should we look at three or four counties. I think if Gore had asked and his lawyers had asked from day one to count 67 counties, he probably would have gotten somewhere with the courts, but he selectively chose a few counties. There is some confusion...

HASTINGS: But, Mark, wasn't that pursuant to the law that he selectively chose? And did not Bush have an opportunity to do that? And did not Gore at another point in time say -- twice, as a matter of fact -- why don't we count them all?

FOLEY: Yes, but, Al, if you won an election, you don't ask for a recount. If you win the Super Bowl, you don't say, let's play the game over on Monday to see if we can give them another chance.

HASTINGS: Why is the law there, the manual recount? Were you in the legislature when the law was passed?

FOLEY: Yes, I was.

HASTINGS: Why did you pass it? I mean, tell us.

FOLEY: Well, I think what we did, in particular in Palm Beach County, they denied another person's right to have a hand recount because...

(CROSSTALK)

HASTINGS: Betsy Green, friend of mine and yours.

FOLEY: ... but it wasn't within 1/2 of 1 percent, so I would have to say if that's the standard, then you at least have to go to the county where that discrepancy is within 1/2 of 1 percent. You can't pick four counties and say, well, I won by 125,000 votes, but let's count those anyway. I really believe if they would have cited it at a county where there was 1/2 of 1 percent discrepancy, they would have not had...

(CROSSTALK)

HASTINGS: But Bill's point about Judge Sauls is something that has to be considered here. Judge Sauls never looked at a ballot, and now what I am going to have to do is go home and tell my Dade, Broward, and Palm Beach constituents, particularly my Dade and Broward ones, and Palm Beach, where you and I represent, that, listen, your vote doesn't count, even though it was counted at another point in time.

FOLEY: But I think it did count. We've gone through the machine three times in Palm Beach County, Al, three times through the mechanical tabulations. There is no error on the machines, which the judge said clearly had to be established before the case. There was no fraudulent mechanisms by which the computer operated, so there was no standard in which to vacate.

PRESS: Well, I just have to pick up on that. If the machine didn't count the vote, that's an error.

FOLEY: No, it isn't. No, it isn't. Bill, if you didn't accentuate your vote -- if you don't get all six numbers on the lottery, you don't win, even though you may have meant to pick number 24 and you didn't pick it.

MATALIN: Furthermore, Congressman, here is the standard, there is no evidence that recounting them for -- what -- the fourth or fifth time now, these mutilated ballots, would have resulted in a different outcome. If you don't do it, you can never get another outcome.

HASTINGS: Well, Mary...

MATALIN: And you know what the law does provide for, as you know, counting precincts, and you guys got to select the overwhelmingly Democratic 1 percent precincts...

HASTINGS: Absolutely.

MATALIN: ... which gave Gore -- what -- an extra 19 votes in one county, an extra six in another county. You never got to the Hispanics in Miami-Dade. You know, you -- it wouldn't have changed what the judge said...

(CROSSTALK)

MATALIN: ... if you don't change the whole outcome, then you can't -- that's what the evidence is.

HASTINGS: But let me see -- can I respond? Dade started counting, and when they started counting, it netted 157 votes for Al Gore. They stopped counting. That's evidence with just that 1 percent that they counted, even though they were Democratic precincts, that there may have been a different outcome had the other 10,000 votes that have never been manually counted -- they were indeed counted by the machine -- Mark would argue and you would argue that they were dimpled or indented; I would argue that in Texas they have had 50 recounts and indentation is a part of their law, and I don't understand why it can't count in Florida.

MATALIN: Well, you only get one recount in Texas, not five -- the law is one recount. You can't keep counting until you get the results you want.

FOLEY: Well, there were 176,000 spoiled ballots in Florida and nobody can say with certainty they're all Al Gore's votes.

MATALIN: Thank you.

PRESS: Gentlemen, great debate.

We're going to have to take a little break here and we're going to -- as we take a break, we want you to join our chatroom and you can vote on our online audience vote. The question tonight is: What's more important to you, resolve the election quickly, or remove doubts about the winner? In other words, get it over, or get it right.

Tell us at cnn.com/crossfire, we'll have the results later and a lot more exciting debate with tonight's guests. And of course, they will be both online after the show, you can chat and debate with them -- what a bountiful feast tonight for all you CROSSFIRE freaks -- thank you.

(COMMERCIAL BREAK)

MATALIN: Welcome back to CROSSFIRE.

Day 27 of the election held hostage was not a good one for Al Gore. The United States Supreme Court was not impressed with the Florida Supreme Court's ruling in Gore's favor, but worse, the critical Leon County court completely rejected his arguments for another hand count. As appeals are filing, time is flying. Can Gore beat the December 12 deadline? Will Democrats stay with him?

Florida congressmen join us to clarify the confusing conscious, this political fallout: Bush supporter Mark Foley and Gore supporter Congressman Alcee Hastings, both of whom are missing a White House party to be with us and to be with you in the chatroom afterwards, so don't miss them.

And thank you both for coming.

HASTINGS: Thanks.

PRESS: But it's always more fun on CROSSFIRE than it is at the White House.

Congressman Foley, Congressman Hastings mentioned in the first segment this "Miami Herald" article yesterday, which said if you took the whole election and everything was glitch free that Gore would have won Florida by 23,000 votes, which -- and by the way, whoever wins, as far as I'm concerned, wins. Whoever wins is going to be my president, I'll respect them.

But it does raise, I think -- that possibility that the vote could be incomplete or wrong in Florida -- a pretty troubling process, which Dick Gephardt talked about yesterday on "Meet the Press."

Please listen in case you didn't see it.

(BEGIN VIDEO CLIP, "MEET THE PRESS")

REP. DICK GEPHARDT (D-MO), MINORITY LEADER: You know, it would be terrible a month from now after this is all over if Gore is not the winner, not declared the winner, somebody is going to go back and recount these ballots and look under the Freedom of Information Act and look and see who actually won. Would we want to wake up a month from now and have the national popular winner and the actual winner in Florida not be the president of the United States?

(END VIDEO CLIP)

PRESS: Doesn't that prospect frighten you?

FOLEY: It doesn't. What did we do with Richard Nixon and John Kennedy? What did we do with Gerry Ford and Jimmy Carter? We got past it. Yes, it was a close election, yes, there was concern over Chicago and vote tampering, but this country has a remarkable way of coming together.

Al and I want to figure out Social Security, prescription drugs, Medicare, and yes, there could be a cloud over this election and it's regrettable. Nobody is happy the position Florida is in, and certainly not our home counties that we share.

PRESS: But I note, Congressman, you didn't -- you don't deny it could happen, and I'm not talking about a cloud over the election, I'm talking about a cloud over the incumbent -- over the occupant of the White House. I'm talking about the fact that we could end up with an impostor in the White House. Now, George Bush wouldn't want to be under those circumstances, neither would Al Gore, so why not take the time now to count the ballots and make sure we have it right?

FOLEY: Because they have been counted. They have been counted three times.

PRESS: He's saying that it's not true.

FOLEY: In Clay Shaw's race against Elaine Bloom, one of the closest elections in this country, they hand counted every precinct to make certain in Dade County, there was no change in the ballot. So if there is an error downstream, there would have been an error upstream. I don't think we can reach the conclusion with 176,000 spoiled votes that they're all going to inure, a majority will inure to Mr. Gore.

Now, we have to move past this. I think the courts ruled today 25 electoral votes are going for Mr. Bush. I think there is a number of people that are anxious to work with him. Mr. Gephardt, Mr. Gore ran against Congress, they ran with the Harry Truman line of do- nothing Congress, they failed to deliver.

We have control of Congress. We now have control of the White House. But now we have to be bigger individuals than just stand up here and beat our chests and say, we are now in charge. I think it means we're going to have to reach across to Alcee Hastings, Allen Boyd, people around this country and say, what are the American public demanding? And they are not going to be patient, they're not going to say, you guys can just keep having a field day of partisanship.

MATALIN: Can I just pick up there, because they are not getting impatient so much as it is occurring to Al Gore's detriment here, increasing numbers of people are disapproving of the way he's handling this. In a Fox News Opinion Dynamics poll, which better describes Gore? Fighter, 37 percent; whiner, 48 percent.

At some point, don't you Democratic leaders have to worry about not just Al Gore losing this present contest, but his future opportunities and taking the party down with him?

HASTINGS: Well, I'm not as worried about Al Gore's future opportunities as I am the legitimacy of the presidency and the integrity of democracy. I think Bill Press's point earlier cites to the fact that we have a problem if after this election, some academics or others come long and then they find that this was not a legitimate election.

But even more than that, I'm on the ground in Broward County, Mary, and in Dade and in Palm Beach, where Mark and I work, and I represent the people that in some respects have some difficulty understanding how it is that an overwhelming number of people were out to vote and their votes were discarded, and I'm here to tell you -- and you and I know each other, and I'm a veteran politician, I did not know until this election that as many African-American votes were discarded on a routine basis in our elections. Now, I'm not crying race, let me make it very clear.

MATALIN: But, Congressman -- OK, but some of your colleagues are and it smells of charges of racism when you say there is something systemic or systematic about voter confusion in African-American communities.

HASTINGS: OK. Yes, I think that's fair and I think it needs to be responded to. I think that there is a literacy problem in the African-American community, that's a part of my problem and those of us that need to do voter education. But I also know that the machines, for example, Bill, that were utilized in our communities were worse machines than the optic scanner machines were in other parts of the ritzier sections that Mark and I represent. That's problematical, and it's a minority situation of consequence -- it isn't a racial matter, it's a minority situation where we seem to don't care if the roads in the areas are poor, or if they're run down, now we don't care if the votes count -- I have a problem.

FOLEY: Well, no, I have a problem with the whole characterization of our county, Jesse Jackson comes down and raises Cain about we're disenfranchising people -- I think that's wrong. I think we work very hard.

HASTINGS: You didn't see me out there, did you?

FOLEY: I did not, and thank God.

MATALIN: No, we hope we see you both here again.

HASTINGS: Thank you.

MATALIN: I'm so sorry, we are out of time, but we'll -- for you who can stay with us, those two wonderful debaters will be in our chatroom, cnn.com/crossfire -- that's the CROSSFIRE chat room -- right after the show, cnn.com/crossfire, Congressman Hastings and Congressman Foley of Florida.

Stay with us, while Bill and I will come back with, hopefully, equally civilized and informed closing comments.

(COMMERCIAL BREAK)

MATALIN: Here are the results to tonight's online audience vote. Earlier, we asked what's more important to you: resolve the election quickly, or remove doubts about the winner? Seventy-six percent of you said resolve it quickly; 24 percent of you said remove the doubts.

The courts removed the doubts today, they reviewed the facts, they listened to the arguments, they considered the evidence and concluded that Florida's votes were cast and counted fairly. Don't try to delegitimatize a Bush presidency by making up these false claims of some statistical analysis would have made Gore the victor. That's just simply not true. There is no way to prove that, and you are just trying to delegitimatize the Bush presidency.

PRESS: OK. No, look, Mary, I'm just trying to get a final and honest count in Florida, which you guys have been objecting to and blocking for a month.

But let me tell you this, I mean, you have to be realistic tonight, I mean, this is the bottom -- for Al Gore, this is the bottom of the 9th inning, there are two outs, he's got two strikes against him, but you know what? That's not the time to walk out of the ballpark. I have seen ball games won on that last pitch, and Al Gore certainly has a right to take that last swing, because I think the...

MATALIN: So you're advocating disenfranchising 15,000 voters in Seminole County?

PRESS: No. What I'm saying is this judge did a careful job, but he got it wrong, so check it with the Florida Supreme Court.

From the left, I'm Bill Press -- it's not over yet -- good night for CROSSFIRE.

MATALIN: The doubts have been removed, tick tock -- from the right, I'm Mary Matalin, join us next time for more CROSSFIRE.

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