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Burden of Proof

U.S. Supreme Court Considering Bush Challenge of Florida Recount

Aired December 11, 2000 - 2:46 p.m. ET


GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF, U.S. history was made again in Washington as lawyers for the Bush and Gore campaigns argued their cases before the United States Supreme Court.


THEODORE OLSON, BUSH CAMPAIGN ATTORNEY: The federal question arises out of the fact that the Florida Supreme Court was violating Article II, Section 1 in the Constitution, and it was conducting itself in violation of Section 5 of Title 3 of federal law.



DAVID BOIES, GORE CAMPAIGN ATTORNEY: What the Florida Supreme Court said is we have to look at what is the criteria by which you decide whether you may ignore and will ignore these returns, and what the Florida Supreme Court said, we're going to interpret that exactly the way we've interpreted it for 25 years.


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

VAN SUSTEREN: Hello and welcome to this special edition of BURDEN OF PROOF, and a special welcome to our viewers from around the world.

We're at the United States Supreme Court, where the nation's highest judicial body is delivering a historic ruling.

ROGER COSSACK, CO-HOST: Now, this morning, the nine justices on the high court heard arguments in the case of George W. Bush and Richard Cheney versus Albert Gore et al. Their decision could affect who will be inaugurated as the 43rd president next month. Arguing on behalf of the candidates' attorneys, Theodore Olson and David Boies.


OLSON: These are ballots where the system created by Florida, both with respect to the initial tabulation and the preferred system for the recount, the automatic recount in close elections, is to submit those ballots to the same mechanical -- mechanical, objective scrutiny that the initial count was done.



BOIES: If you conclude that the Florida Supreme Court's interpretation of Florida law is either a sham or it is so misguided that it is simply untenable in any sense...


BOIES: I think at that point then you can conclude that what it has done is changed the law.


VAN SUSTEREN: Joining us here at the U.S. Supreme Court is Republican Senator Gordon Smith of Oregon, and in our Washington bureau we're joined by law professor Sheryll Cashin, a former clerk for Justice Thurgood Marshall.

COSSACK: And from New York, former Senate Whitewater Committee counsel Bob Giuffra, a former clerk for Chief Justice William Rehnquist.

First, I'd like to go to Senator Smith. Senator Smith, one of the arguments today is whether or not the United States Supreme Court should overrule basically what the Florida Supreme Court has done. This, I think, is troubling to most people because of the notion of having the United States Supreme Court get involved in things that people feel are particularly Florida issues.

SEN. GORDON SMITH, (R), OREGON: Well, I think that what they pointed out was that -- or at least I inferred from their questions -- is that this evolving standard of counting dimples does not square with the equal protection under law of the federal Constitution. And I think they also pointed out, or at least Judge O'Connor did, that you cannot ignore what this court does, has said, which apparently the Florida Supreme Court may have done. And...

VAN SUSTEREN: Senator Smith, let me ask you a question about that equal protection. Maybe you can clarify. I'm a little bit confused. Let's broaden it out. If the hand count in the state of Florida is unconstitutional because there are different standards within the state, how do you reconcile it with the fact that the equal protection clause, if you go out to like Nevada, Wisconsin, New York, I mean, every state seems to have a little different standard. Don't we have a huge equal-protection problem that is just not located only in Florida?

SMITH: I think we have found out in this election, Greta, that we do have a problem around the country. But right now, the issue is Florida. And you what have is counties with the same voting systems, but applying different standards to counting those votes. And that cannot be squared with the equal protection clause.

COSSACK: Senator Smith, let me just play devil's advocate for a second. The Florida legislature has adopted the standard that votes should be counted by looking to the intent of the voter. The argument, therefore, is that the canvassing boards -- those grassroots people -- are best able to discern what the intent of the voter is, and under the contest statute, there would be a judge that would decide whether they acted reasonable or unreasonable. What's wrong with that?

SMITH: Well, I think partly what's wrong with it is that it is being applied differently. You have got one standard in Broward County. You have got another standard in Leon County. And they have the same machines. And yet you are coming up with a very different result. And I think what they are saying with their questions is: You can't do it that way and be consistent with the U.S. Constitution, both Article II and then our statutes under Title III.

And so they are saying: We have a federal issue, a federal concern because this is the federal president we're electing.

VAN SUSTEREN: Sheryll Cashin joins our Washington bureau.

Sheryll, let's talk about this federal issue. Is there, in your opinion, a federal question? Does it belong in the United States Supreme Court or not? If not, why? If so, why?

SHERYLL CASHIN, FORMER SUPREME COURT CLERK: I think if the court is intellectually honest about what the Florida Supreme Court did, that all it did was go through a very traditional exercise of interpreting Florida state law. And if it's intellectually honest about that, and it's consistent with its long-stated and recently stated principles about federalism and deferring to state institutions, then they would find there was no federal question as it regards Article II.

However, I do think they could say that there's a federal question in terms of whether equal-protection clause or the due- process clause is implicated.

COSSACK: But Sheryll, the notion being that the Florida legislature -- it's true that the Constitution gives the Florida legislature plenary power. And plenary means all the power. But that means that the Florida legislature could then give back a little of that power, if they wanted to, to the courts, and have the courts decide whether or not things have been enacted correctly, couldn't they?

CASHIN: Yes. And during the oral argument, I think the justices indicated that they were sympathetic to the idea that this Florida state statute did give courts a role to play. And they even seemed to be sympathetic to the idea that an appellate court, in particular, would have a role to play.

VAN SUSTEREN: Bob, is there a federal question or not -- Bob Giuffra in our New York bureau? ROBERT GIUFFRA, FORMER U.S. SUPREME COURT CLERK: No question, Greta. I mean, equal protection is clearly a federal question. I thought the two key moments, and the most telling moments in this argument, were one, when Justices Souter and when Justice Breyer questions Mr. Boies fairly extensively on the equal-protection issue. In addition, when Ted Olson -- this would be the second critical moment from what I could tell -- came back to the equal-protection argument in his rebuttal time.

Ted is a very experienced Supreme Court advocate. And I think he smelled a winner with the equal-protection argument. I got the sense from listening to the argument, the justices were trying to grapple for a way to get consensus. And I could see this decision coming out 7-2 for Bush, maybe even 9-0, if they went to equal protection. Justice Ginsburg, in questioning Mr. Olson in his rebuttal, was the only justice who really raised this equal-protection issue.


COSSACK: Bob Giuffra, let me interrupt you for a second, because we have to take a break. We're going to have more details from the U.S. Supreme Court and today's historic arguments after this short break.

Don't go away. Stay with us.


BOIES: It was a 45-minute interrogation. And it was a very, very good bench. Everybody was well prepared.

OLSON: ... and the questions they asked is that they are very well prepared. All of the justices are very much on top of the issues. They prepared well. Of course, much of this case they visited once before.




BOIES: I think there is a uniform standard. The question is whether that standard is too general or not. The standard is whether or not the intent of the voter is reflected by the ballot. That is the uniform standard throughout...

JUSTICE ANTHONY KENNEDY, U.S. SUPREME COURT: That's very general. It runs throughout the law. Even a dog knows the difference of being stumbled over and being kicked.


COSSACK: This morning, in the United States Supreme Court behind us, lawyers for the Gore and Bush campaigns made their oral arguments before nine justices. The Supreme Court is now deliberating its ruling in a case which will affect the outcome of the 2000 elections.

And joining us here at the court is Congressman -- Democratic Congressman Peter Deutsch of Florida.

Congressman Deutsch, in your view of this, it seems that really -- whether or not you agree with me -- it seems to me that the real argument here now has come equal protection: The notion that perhaps whether or not the Florida Supreme Court got involved in the federal Constitution almost seems to have taken a back seat. Do you agree?

REP. PETER DEUTSCH (D), FLORIDA: At least from the talking heads at this point. I will tell you that, up to this point, their argument has really been that the Florida Supreme Court made new law, which I think was discounted very early on in the oral arguments, with Judge Souter leading the way.

But in terms of equal-protection argument, I think what it is clear is Florida does have a standard. It's the standard of the intent of the voter, which a number of other states have as well. And let me make very clear -- because I sat through the entire recount in Broward County: 588,000 votes -- that standard happens to be a really good standard for a lot of reasons. In some precincts in Broward County, they actually counted dimples because there might have been 60 or 70 votes.

And they realized there was a problem with the machine. And if you have a strict standard, you couldn't do that. I mean, the standard of the intent of the voter happens to be an excellent standard across the state, and a fair state, and across many other states as well.

VAN SUSTEREN: Congressman, what do you make of the suggestions by one of the justices, Justice Breyer -- and it was in a hypothetical -- he was not saying that he was necessarily going to do this -- or the court -- they send the case back down to the circuit court in Leon County and have the circuit court judge solicit from the secretary of state, Katherine Harris, a description what should be the standard to count? What do you make of that?

DEUTSCH: Well, I think he was pressing just to find out what makes a fair standard, and making sure that the intent of the voter is a fair standard. I think one of the points that was brought out by Mr. Boies was very significant as well: Not all Florida counties use computer ballots. A number of them use optical scanning. And, in fact, it's really interesting. If you take the most accurate optical- scanning county and the least accurate computer-ballot scanning, the difference in terms of undervotes is about 10,000 times.

Now, there is clearly an equal-protection argument that can be made that all the counties that used computer ballots had an equal -- their votes weren't counted as much. But, obviously, that's not a very credible argument. So I think the point that was made is that the differences that can result in terms of using the intent of the voter, you know, is based upon a factual situation in many cases.

You know, the machines are different. The paper itself -- I mean, not all computer cards are the same. And so the best people to make that interpretation, as determined by the Florida legislature, are the canvassing boards in the different counties. And in this case, it's by circuit judges in the Leon County.


VAN SUSTEREN: Let me interrupt you for a second.

Bob, what do you make of that argument?

COSSACK: Bob I just want to say one thing. There was this other...


COSSACK: Bob, there was this argument where they said: You can have 67 counties and 67 different standards. And they could go perhaps different from table to table. And David Boies said: Yes, I guess that could happen.

GIUFFRA: I think that is your equal-protection argument, because we have similarly situated people. All paper ballots...

VAN SUSTEREN: But are they? But wait a second, Bob. Are they similarly situated? That's the problem. They have different machines. They have different ways of tallying the votes. You have different quality of machines. Are they really similarly situated?

GIUFFRA: But I think if, in one county, you're saying that a dimpled ballot is a vote, in another county you're saying it's got to be a hanging chad, and that's a vote, I think that is an equal- protection violation. And it's quite clear to me that what Mr. Olson was trying to do in his rebuttal was appeal to Justices Breyer and Souter, because I think it is a pretty clear equal-protection claim if you are not treating voters who are casting their ballots by paper ballots the same way in a consistent manner.

VAN SUSTEREN: Well, let me -- let me ask Sheryll then.

Sheryll, I want you to answer Bob. But I also want you to throw into the mix the whole issue of equal protection or the dilution of the votes. Someone's vote is counted different from someone else's. What happens when we look across the nation and we see that votes are counted differently?

CASHIN: Right. Well, first, I would take some -- if I were on the Gore team, I would take some encouragement from the effort that Justices Souter and Breyer seemed to be making in suggesting that we might be able to remedy the problem with variation in the way different canvassing boards or different counties discern the intent of the voter by having any disputes come back to one circuit court judge.

And then that way, we could provide for standardization. And they were suggesting that perhaps that was the way to remedy it. So I would not suggest, as my colleague on the other side has suggested, that this equal-protection argument is a slam dunk. Now, what was your second point, Greta?

VAN SUSTEREN: My second is what about the fact that across the nation -- I mean, we're looking at whether people were treated differently within the state of Florida. When you looked at vote across the nation, that's done differently, and we have this equal protection. I mean, is it a bigger problem than just the state of Florida?

CASHIN: Well...

COSSACK: Is that really an equal-protection argument, Sheryll?

CASHIN: I think one of the big problems we have in this country is that poor and minority areas seem to have less good voting technology than other area. And I do think that is a problem. If anything, as David Boies was suggesting in his closing of his argument, the disparity that results from different types of voting technology is greater be than any disparity that might result from different standards in counting ballots.

COSSACK: All right, Sheryll, I'm afraid that's all the time we have for today. Thanks to our guests. And thank you for watching. Stay tuned to CNN for "TALKBACK LIVE" coming up next.

VAN SUSTEREN: And join me tonight at 8:30 Eastern for an election 2000 "SPECIAL REPORT." We'll have the latest developments in the United States Supreme Court. And Roger and I will be back tomorrow at our usual 12:30 p.m. with another edition of BURDEN OF PROOF.

We'll see you then.



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