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CNN BREAKING NEWS

Judges Rule California Recall Election to go on October 7

Aired September 23, 2003 - 12:01   ET

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

WOLF BLITZER, CNN ANCHOR: First, let's get the latest on this decision in California.
CNN's Bob Franken is standing by, as he always does for us, in Los Angeles right now.

The decision of the 11 members -- there were eight Democratic- appointed judges, three Republicans, but in effect they said go forward October 7 and let this election take place. But we want to caution the viewers, Bob, don't we, that there is still one more potential legal hurdle?

BOB FRANKEN, CNN NATIONAL CORRESPONDENT: Well, there is a potential, but it's considered pretty much a far-fetched one. The American Civil Liberties Union is going to have to decide, Wolf, whether it will now try and change this ruling by going to the U.S. Supreme Court. The procedure would be to go to the justice who is in charge of this region, Sandra Day O'Connor, asking her to stay the order to stop the election from proceeding, and then have the justices decide very, very quickly that they want it to have an expedited hearing.

Most legal experts say that the Supreme Court really doesn't want to get into this tangled mess; that the en banc panel that just ruled that the election should proceed was within its rights.

The 11-judge panel, of course, heard this case after a three- judge panel of the Appeals Court had ruled to the contrary last week. On many occasions -- not that many -- but on many occasions in the circuit courts, there is an expanded look when a ruling is controversial or whether it is questionable. And in this case that what's happened.

What is remarkable about this is the speed in which they operated. First of all, to hold a hearing so quickly was remarkable, but to have a ruling the next morning at an appeals court level is almost unprecedented. And I'm sure somewhere in our history it's happened before. They did move with remarkable speed. The next morning after an afternoon hearing they've ruled, and we don't have the specifics of their decisions yet, but they've ruled that the election should go forward on October 7 -- Wolf.

BLITZER: So, let's talk about the politics. Assuming that the United States Supreme Court here in Washington, Bob, is not going to get involved in this process, is going to let this 9th Circuit Court of Appeals ruling stand, does this suggest that the momentum that appeared to be helping a little bit Gray Davis in terms of withstanding this recall, does it look like the trend is moving in his favor, that he has a shot of beating the recall if the election occurs October 7?

FRANKEN: You know, it does look like there is a trend. In any case, the question is: Is there enough of a trend to overcome the deep deficit that he started and the, quite frankly, large amount of public disapproval that he has. But there has been this very, very slow-moving trend against the recall.

Now, all eyes are going to be on the debate tomorrow. That's the debate sponsored by the California Broadcasters Association, a controversial debate, where the questions have been submitted in advance -- the debate, which is the only one where Arnold Schwarzenegger has agreed to appear.

Now, the question is going to be: How will the Republicans do? How will Schwarzenegger do? If he does badly, what does this do to the Republican race? If he does well, what does it do to the Republican race?

There is already pressure, a lot of pressure, on Tom McClintock, the conservative Republican who is taking votes away from Schwarzenegger. There is already pressure on him to pull out. If Schwarzenegger would do well tomorrow, that pressure would increase.

As a matter of fact, Congressman Darrel Issa, who is the congressman -- the California congressman who really got the recall going by putting a lot of his personal money in it, is now saying that unless the Republicans feel like they can win, the worst choice would be if the other Democrat, Cruz Bustamante, the lieutenant governor, got in. And therefore, there might be a chance that Republicans should oppose the recall. But many view that as just another way of pressuring McClintock -- Wolf.

BLITZER: All right, Bob, stand by.

I want to bring in our legal analyst, Jeffrey Toobin, who is just getting word, like all of us now, that the 9th Circuit Court of Appeals in San Francisco has indeed decided to let this election go forward October 7, overruling the three-judge panel that said no because of those hanging chads, the punch card ballots, that it was going to be unfair. And that ruling now rejected.

How much of a surprise is this? A certain bit of a surprise, I assume, to some, since eight of the judges were Democratically- appointed and three of them were Republican appointees.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Given how quickly the court agreed to review the case en banc, and particularly given the argument yesterday where you heard the sentiments of most of the judges, it's really not much of a surprise at all -- at least today's decision isn't. They were clearly disinclined to push this back to March. They were not favorably disposed towards their colleagues' opinion of earlier -- of last week.

So, the speed is something of a surprise. It was obviously going to be today or tomorrow. And the unanimity apparently is something of a surprise, because it seems like this was an 11-0 ruling. Bob Franken can correct me if I'm wrong.

Given all of that, this seems just about certain to be the last word on this legal controversy.

BLITZER: Why do you say that, Jeffrey? Why isn't it possible that the United States Supreme Court, assuming the ACLU and the others try to go to the U.S. Supreme Court, why do you believe that it's almost certainly a nonstarter as far as the nine justices of the U.S. Supreme Court listening to the arguments?

TOOBIN: Two reasons, Wolf. The first reason is here you have 11 judges of the most liberal court in the nation saying, we don't think that the ACLU has a valid claim. That suggests that the far more conservative Supreme Court is really not going to think that there is any merit to the ACLU's claim that the system is so bad it needs to be fixed by March.

The second reason is, you have the recent history of the Supreme Court, and Bush v. Gore was such a traumatic, difficult experience for the justices, the personal animosity, the personal criticism they took is something that they are not looking forward to repeating. So, they don't want to wade into this area in general.

And also, there is just the calendar. The election is October 7. They would have to do an incredible fire drill to even hear this case by October 7. All of the signs point to the Supreme Court staying out of this.

BLITZER: And at this point, therefore, you have to assume the election is going to go forward on October 7. Is there a sort of, I guess, double standard though: the Supreme Court getting involved in the Florida recount and the Supreme Court presumably deciding not to get involved in this California issue? Are there going to be charges of hypocrisy and politics as far as the U.S. Supreme Court is concerned?

TOOBIN: You can be sure that there are. But, you know, one of my favorite quotes about the Supreme Court is Justice Robert Jackson said in the 1940s, you know, "We are not final because we are infallible. We are infallible because we are final."

So what if they're criticized? They have the last word. And people can criticize them all they want, but if they decide not to hear this case, there is no other legal recourse available to the ACLU, and there is no way to stop this election.

BLITZER: All right. Jeffery, I'm going to ask you to stand by with Bob Franken.

I want to bring in senior political analyst, Bill Schneider, into this discussion, as well as to talk a little bit about the politics.

Bill -- assuming this election goes forward in two weeks on October 7, what does it look like right now, the latest polling numbers that we're getting, first of all as far as the recall? Is it a done deal that Gray Davis, the incumbent governor, will be recalled?

WILLIAM SCHNEIDER, SENIOR POLITICAL ANALYST: No. In fact, every time I look at the polls, I reach the conclusion nobody knows anything. We've never had an election like this in the past. We don't know who is going to vote. Certainly the trend has been very slowly moving in the direction of Gray Davis surviving the recall, but I haven't seen a single poll in which more than 50 percent say they're going to vote against the recall.

So, nothing is really known. He's been doing somewhat better, but you still seeing the majority saying they're going to vote to recall him.

What is really unknown is who is going to vote. How many people are going to turn out? We have no way of knowing that.

BLITZER: And that's an important issue, because there could be a lot of first-time voters, and that always sort of tends to screw up the pollsters going into a contest when you have people showing up who normally don't vote. I'm referring specifically to what happened in Minnesota when Jesse Ventura got elected. Surprised all of us, of course, because he managed to bring out people who don't normally vote.

SCHNEIDER: That's right. And there are 135 candidates on this ballot. Imagine.

Well, one of them is, of course, Arnold Schwarzenegger, a movie star, not a traditional politician by any means, very much shares the same kind of support as Jesse Ventura. He's going to be tested in the debate tomorrow in California, because the question is: Is he a plausible candidate for governor? Do people think he has credibility? Does he know anything about government? That's going to be tested.

The debate tomorrow is going to be all about Arnold. I don't care what the rules are, all of the other candidates are going to challenge Arnold Schwarzenegger's credibility. If he survives that debate and he comes out doing well, he could bring a lot of nontraditional voters, particularly younger men to the polls, the same people who supported Jesse Ventura, and they could upset everything.

BLITZER: And let's talk a little bit about this scenario: Assuming Gray Davis does go down to defeat, is recalled, the polls right now show that Cruz Bustamante, the Democrat, the lieutenant governor of California, slightly ahead of both Arnold Schwarzenegger, as you can see, as well as Tom McClintock, the other more conservative Republican in the race. If you add those two numbers together for Schwarzenegger and McClintock, it looks like a decisive Republican win.

But it doesn't look at this point like McClintock is about to drop out, so it could be a very tight race between Bustamante and Schwarzenegger.

SCHNEIDER: It looks very tight. And what we're going to see, if Schwarzenegger does well in that debate and he gains credibility but he still looks like he's running neck and neck with Bustamante, you're going to see a lot of pressure from the Republican establishment in California to Tom McClintock, get out of this race. We'll do something for you. We'll appoint you to anything you want, just get out of the race so we can take over the governorship.

They're desperate to win this, and if Schwarzenegger comes out looking like he can win, looking stronger rather than weaker, the pressure on McClintock is going to be enormous.

BLITZER: All right, stand by, Bill, because I want to get back to you.

If Bob Franken is still with us, a quick question. Bob, on the whole issue of Darrel Issa, the Republican congressman from the San Diego area who came up with the whole recall, funded it personally, he is now suggesting that unless one of those Republicans -- McClintock or Schwarzenegger -- drops out, he says to the Republicans in California, go ahead and vote against the recall, because he would rather have, I guess, Gray Davis in power as the governor of California than Cruz Bustamante, who is on top of the polls, albeit slightly.

What is the latest on what Darrel Issa is up to out there in California, Bob?

Unfortunately, we lost Bob Franken.

But Bill Schneider can handle that question just as well. Bill -- why don't you take it?

SCHNEIDER: The Republicans are in a real fix here, because they don't want to see a fresh Democratic face as governor of California. They figure as long as we have an unpopular governor, Gray Davis, damaged just by the fact that he was forced to face a recall, if he's the governor, then the Republicans have a chance in California to carry the governorship in 2006, and maybe even an outside chance -- imagine -- for George Bush to carry California. I think that's very unlikely.

But they say an unpopular Governor Gray Davis is better than a new face, Cruz Bustamante, who did not run on the ticket with Gray Davis and who will be seen as a new start, not necessarily blamed for Davis' mistakes.

BLITZER: What are the national political ramifications of whatever happens in California on October 7? And for our viewers who are just tuning in right now, the 9th Circuit Court of Appeals in California has basically decided go ahead with the election on October 7. That's almost now certainly going to happen unless everyone is stunned by the United States Supreme Court deciding to get involved at this late moment.

But what are the national presidential ramifications, Bill Schneider, from this election on October 7?

SCHNEIDER: Well, I don't think anyone believes that George Bush is likely to carry California. But, look, he believes that he may have a fighting chance if the Democrats look bad in that state, and they do look bad with Gray Davis as governor. So, they're looking at various scenarios.

But the White House is keeping its hands off. It doesn't want to have anything to do with this, because it got burned once before in California when it tried to support a moderate Republican, Dick Riordan, who lost the Republican primary.

So, the White House knows Bush is unpopular in California, but if events unfold the way they might like, so that either they have a popular Republican governor, say Arnold Schwarzenegger, or an unpopular Democratic governor, like Gray Davis, then they might have a change, a fighting chance in California in 2004.

BLITZER: All right, Jeffrey Toobin, I want to just bring you back briefly, because we're going to try to assess what exactly happened with the law as far as this is concerned. What are the deep, if any, long-term ramifications of this decision by the 9th Circuit Court of Appeals in San Francisco today as far as other elections down the road?

TOOBIN: Well, I think that's a very interesting issue, Wolf, because Bush v. Gore was decided in 2000, as we all know. But it contained that very remarkable sentence in it which said, well, this decision applies to this case and this case only.

But courts tend not to work that way, and courts are going to start interpreting what Bush v. Gore means in terms of how we continue to have elections. And the issue really is: How good do our voting procedures have to be? How similar do they have to be within a given state? Can you have punch cards and electronic voting in the same state? Can you have systems that you know don't work very well?

Here, obviously, we had three judges who said punch cards are so bad that the election has to be postponed until they are improved. The 11 judges said, no, you're wrong; the punch cards are good enough.

But those kinds of issues about voting -- the mechanism of voting is something that we're really going to have to keep an eye on as we get to a big election year, because these issues obviously are not settled. You have judges who are disagreeing about them, and you have lots of different voting procedures around the country. Look for more challenges. Don't look for the October 7 date to change at this point.

BLITZER: Jeffrey Toobin, thanks for that legal analysis.

I want to thank Bill Schneider, of course as well Bob Franken. We're going to continue to monitor that story.

Breaking news here on CNN for our viewers just tuning in, the 9th Circuit Court of Appeals in California deciding the California election, the recall election, will indeed go on in two weeks, on October 7 as scheduled, overruling an earlier decision by a three- judge panel out in the 9th Circuit Court of Appeals, unlikely, according to our Jeffrey Toobin, the United States Supreme Court will reconsider this issue. So, it looks like that election going forward.

Everyone is going to be focusing in tomorrow night on the debate in California, the debate in which all of the participants get the questions in advance. We'll assess that. That's coming up.

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