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Burden of Proof

Election 2000: Florida Supreme Court Sets a New Deadline and Oral Arguments

Aired December 5, 2000 - 12:39 p.m. ET


GRETA VAN SUSTEREN, CO-HOST: The Florida Supreme Court sets a new deadline and oral arguments.

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

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF. And a special welcome to our international viewers.

Yesterday, rulings from the U.S. Supreme Court and a Leon County Circuit Court judge damaged Al Gore's legal quest for the White House. But today arguments over hand recounts and disputed ballots continue in Florida and Georgia.

ROGER COSSACK, CO-HOST: Oral arguments were held today at the U.S. Court of Appeals for the 11th Circuit in Atlanta, where the federal court is deciding the constitutionality of hand recounts occurring only in selected counties.


TED OLSON, BUSH CAMPAIGN ATTORNEY: The decision in this case could affect all of the other things that going on in Florida. Because we're alleging that the manual recount processes in Florida are unfair, inconsistent, treat equal people in a different way. The rules are changing all of the time, and if this process is unconstitutional, everything that the Gore people are trying to ask for in Florida, they won't be able to have. Because they can't have an unconstitutional manual vote process.


VAN SUSTEREN: Joining us today from Miami, Gerald Kogan, who is former chief justice of the Florida Supreme Court. And from Atlanta, Neil Kinkopf, law professor at Georgia State University.

COSSACK: And from Tallahassee, Alan Greer, plaintiffs' attorney in the case of disputed absentee ballot applications in Seminole County. And here in Washington, Wendy Dahle (ph), constitutional law professor Tom Sargentich, election lawyer M. Miller Baker.

VAN SUSTEREN: And in our back row, Kasandra Lundquist (ph), Scott Francis (ph). and Christina Forst (ph). Justice Kogan, let me go first to you. Florida Supreme Court, big news, set the case down for oral argument in the case that was decided yesterday against the Gore campaign. The first question, though, is they have to decide whether or not they are ever going to take it. Explain that to us?

GERALD KOGAN, FORMER CHIEF JUSTICE, FLORIDA SUPREME COURT: Well, the case has come to the court what we call a throw-up. That is, instead of stopping at district court of appeals, it has gone through the district court of appeals on a certified question of great public importance.

Now jurisdiction in this type of a case is still discretionary with the Florida Supreme Court. In other words, even though the district court has certified this matter as being of great public importance, it's still up to the Florida Supreme Court as to whether or not it even wants to hear it, and they could very easily say we don't even want to hear this particular appeal.

VAN SUSTEREN: I love the new legal term throw-up. I hadn't heard that one before, Justice Kogan. But let me ask you another question: What's the standard review? As these justices look at the trial court decision, what do they apply? what's the framework?

KOGAN: Well, basically, as far as the order on the facts entered by Judge Sauls, it comes up to the court with what we call a presumption of correctness. And that is, it is assumed that Judge Sauls, since he heard the witnesses testify, is the one who's in the best position to make the determination as to who is to believe, who is not to be believed, and what the facts are in the case.

Unless the Gore camp can show a gross abuse of discretion, then his finding of the facts will be accepted as correct by the Supreme Court.

COSSACK: Let me interrupt you just one second, I want to go to Tom just a second.

Tom, let's suppose that we heard the justice tell us what happened with the facts. But what happens with the law. Because they are going to appeal on the law, and I suppose one of the things that the Gore campaign is going to say is: You know, this judge applied the wrong law, the wrong standard in making this decision. What happens then, what's the standard?

TOM SARGENTICH, CONSTITUTIONAL LAW PROFESSOR: Well, in general, courts will ask whether the lower court got the law right. I mean, it's true that if a lower court judge gets the wrong standard of proof, or burden of proof if you will. Here the lower court said probability of a change in the election, if that's not right, then the higher court will review it as a matter of law.

VAN SUSTEREN: Justice Kogan, could a case ever be reversed, when you are talking about abuse of discretion, if a trial court judge decides: Look, I'm not going to look at the evidence, here are the ballots, that is what the Gore people complain that the judge should have looked at the ballots to make a determination that Al Gore was the probable winner or whatever the standard.

Is that the kind of decision that could be reviewed as being plainly wrong, or is that something that is left to the discretion of the trial court judge?

KOGAN: Well, you know, everything is left to the discretion of the trial court judge. But again, if the Supreme Court determines that he abused his discretion, in other words, if the Supreme Court feels that he could not legitimately decide this case without looking at these questioned ballot, then they can say he abused his discretion and not accept his finding of fact.

COSSACK: It is a hard way to go, isn't it justice?

KOGAN: It always is. But, you know, when these justices sign on to hear these cases, nobody promised them a rose garden.

COSSACK: Joining us now is Alan Greer, the attorney for the plaintiff in the Seminole County case.

Mr. Greer, you are bringing your lawsuit, and you have to show that there was a fraudulent intent by this canvassing board, don't you?

ALAN GREER, PLAINTIFFS' ATTY., ABSENTEE BALLOT CASE IN SEMINOLE CO.: No, that's not correct. We have to show that one standard is there was disparate or different treatment between two groups of electors in one geographic area.

As you heard Ted Olson complaining on the Republican side earlier, you can't treat people differently. Here, in this case, Republican absentee ballot voters, or people trying to vote by absentee ballot. made requests that weren't properly filled out. They had their requests corrected by Republican operatives and the supervisor of elections. Similarly situated Democrats or independent voters had their request just put in the reject file. That's illegal under Florida law.

VAN SUSTEREN: Miller, you got to love this in some ways in some sort of twisted ways is that the Gore camp has been saying for so long, now, this is not brought by Gore, this is brought by Democratic voters, but count every vote, and now of course I am sure they are rooting that the judge decides that this is wrong, illegal, and be tossed out.

ON the other hand, though, the Bush camp has been saying all along: Rule of law, rule of law, that November 14th was the day that should have been certified by Secretary Harris, and the Florida Supreme Court was wrong. Now, of course, the Bush side is: Well, let's stretch the rule to include these. How do you answer that?

M. MILLER BAKER, ELECTION LAWYER: Well, it's not stretching the rule at all for the Bush side to contend that these votes should be counted there. There was substantial compliance with Florida election law and that's what the test is under these circumstances. But I think what is the most telling about this case is that Al Gore has not joined it. That just shows you how weak the plaintiffs' case is in Seminole County.

VAN SUSTEREN: I don't know if that's true, I don't if the fact that he didn't join it is a sign of weakness. I mean, it may be that he thinks that politically it would be unwise to join it, and let someone else carry the water.

BAKER: That may be a consideration, but on the merits, this is almost frivolous as a...

COSSACK: Alan, I want to go back to your case, if you will, for a moment. There is a case in Florida called Boardman (ph), which sets out certain standards which I think that you may have to comply with.

GREER: That's correct.

COSSACK: And one of the things they talk about in that case is: Was there -- is there the absence of fraud, gross negligence or intentional wrongdoing? And they talk about substantial compliance. Aren't you going to have a problem here? What this issue here isn't about fraudulent votes, it's about applications to get votes so that people would be able to vote. No one is claiming that the votes were irregular?

GREER: Well, the substantial compliance has been ruled by the Florida courts to include properly filling out the ballot request. You can't leave out, as a matter of law, you can't leave out information. Its absence is the absence of substantial compliance as a matter of law.

And what happened here is the voter registration numbers that you identify the voters were not on there, and the Republicans came in, and with the connivance of the supervisor of election, filled in those numbers. That is illegal in and of itself, and meets the standard of not being substantially in compliance with the law.

VAN SUSTEREN: Let me stop you right there because we have one of the lawyers who is arguing in the 11th Circuit down in Georgia. Teresa Wynn Roseborough now joins us from Atlanta.

Teresa, what happened at the argument? You argued for the Gore side.

TERESA WYNN ROSEBOROUGH, GORE RECOUNT ATTORNEY: Yes, I did. Hi Greta. The court was very active, asking questions often before counsel had a chance to stand up before the podium. They were very well prepared. They had obviously reviewed the briefs in detail, and very concerned about the allegations that were raised in this case. They were also concerned about the state of the record before them and whether or not they had sufficient information in front of them to decide the constitutional questions, and they were concerned about what deference they owed to the state courts in the proceedings going on there. VAN SUSTEREN: Teresa, let me ask you this: the question is essentially the constitutionality of the hand counts raised by the Bush side in federal court. Was the court today concerned with the fact that it might be sort of a dead issue because no hand counts are even going forward? Was that a concern?

ROSEBOROUGH: There was a lot of concern about whether, since the Section 166 proceedings are essentially over, the initial hand counts, and that if there are any hand counts now, they will be conducted pursuant to a court order, whether these proceedings were, in fact, moot. And a number of the judges asked very sharp questions about that issue.

COSSACK: Teresa, were you surprised that they had this hearing at all today, in light of what you just said. It seems to me that this is an exercise in legal surplusage?

ROSEBOROUGH: Well, it was clear from the questions that the court asked that they took seriously their Article III charge to consider cases and controversies, and to consider an allegation of a constitutional injury. And I think they wanted to fulfill that obligation to give hearing to that allegation.

COSSACK: All right, let's take break. When we come back, more on all of these legal matters. We will help you sort them out. Stay with us.


According to a study by a congressional advisory group, at least half of jailed juveniles suffer from a mental illness, but few programs exist to help them.

The group is seeking $100M in federal funds to create mental health programs for troubled youths and their families.



COSSACK: We're back and we are going to talk now about what just occurred in Atlanta, Georgia in front of the 11th Circuit Court of Appeals.

Joining us is Neil Kinkopf.

Neil, it is a real interesting point about why the 11th Circuit Court of Appeals would want to get involved in this case at all because the notion of whether or not there is going to be a hand count has been pretty well decided in the protest part. Now if it happens, it would have to be reversing of Judge Sauls' opinion. Why would they want to get involved?

NEIL KINKOPF, LAW PROFESSOR: Well, they may want to get involved in having an oral argument to be ready in case the Florida Supreme Court reverses Judge Sauls. And in that event, the manual recounts would all be back in play.

COSSACK: The argument seems to be that if you recount just selected counties, you are going to dilute the votes of those counties that don't get recounted because, obviously, there would be some errors there, and those people would not be getting the full value of their votes. How do you think this will play with the 11th circuit?

KINKOPF: Well, that is one of two arguments that were made. One is that equal protection argument that you just spelled out. The other is a due process argument. That is, that there were no standards to guide the ballot counters, the canvassing boards, to determine whether or not a ballot showed a vote for Gore or for Bush.

VAN SUSTEREN: Let me just quickly jump to the one case that we haven't addressed at least for a second.

Justice Kogan, to you, we talked about the Florida Supreme Court, and it has agreed to at least take briefs on the case that was decided in the trial court yesterday. We haven't talked about the United States Supreme Court sending that direction or missile back to the Florida Supreme Court. You've been there, what's it like for the Florida Supreme Court to sort of get what I think is a little bit of a slap from the U.S. Supreme Court, telling them how did you decide your case?

KOGAN: Well, you know, actually I don't look at it as being a slap by the U.S. Supreme Court, I look at it as an attempt by the U.S. Supreme Court to somehow wiggle out this. Because basically, they told the Florida Supreme Court: You answer our question in the way in which we are hinting that you should answer this, and everything is going to be fine, and you just tell us you decided this on your interpretation, and reconciliation of conflicts in the Florida statutory law, and basically that's going to be OK, and we're going to bow out of this thing.

VAN SUSTEREN: Let me just ask you one quick follow...

COSSACK: What if that isn't the way they decided it, now what happens?

KOGAN: Well, then you are going to have to see what they say when the Florida Supreme Court answers what they are requesting that they answer. It's the only way you are going to know.

VAN SUSTEREN: Now I want to know the inside, in a sense that, look, these justices are human. Do you think that they maybe grumbled a little bit when they got that decision from the U.S. Supreme Court on a personal level?

KOGAN: Well, they look at it and say: I don't know what they're talking about. We very carefully explained it in a 42 plus page opinion, and but if this is what they say they need, we'll just give them not a corrected opinion, but an addendum to our opinion, and let's see what they do from that point.

COSSACK: Tom, what happens now with the Florida Supreme Court, in terms of this direction they've got from the Supreme Court. And the justice points out, you know, if you answer this way, everything is going to be OK; if you don't answer this way, everything is not going to be so OK. Do they have to go back then and have a sort of a re-caucus and say: OK, everybody spell out exactly what you had in mind?

SARGENTICH: Well, I think the Florida Supreme Court now has the ball. It will decide how to respond. If it does respond, as the justice is suggesting, that all it's doing is statutory construction, that it's not trumping a statute with a constitution, it was aware of the federal law, then the issues raised by the Supreme Court would be dealt with, and there would be no further need for a federal question here.

VAN SUSTEREN: You know, I think it would be very telling is whether or not the Florida Supreme Court sort of drags this one, and sits on this one, and so it becomes very stale and old and sort of buried in the Supreme Court.

COSSACK: If the Florida Supreme Court decides the contest, then the whole thing is moot.

That's all the time we have for today. Thanks to our guests and thank you for watching. Boy, is this stuff confusing!

Tune-in to "TALKBACK LIVE." Is there an end in sight? Talk to Congressmen Bob Barr and Alcee Hastings about the presidential election. Send your e-mail to Bobbie Battista and tune-in at 3:00 p.m. Eastern time.

VAN SUSTEREN: And be sure to tune-in tonight for an election 2000 special report. Is the case in Seminole County a legal powder keg? That's tonight at 8:30 p.m. Eastern.

We'll be back tomorrow with the latest in the race for the White House and another edition of BURDEN OF PROOF. We'll see you then.



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