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| LEGAL ANALYSIS | |
 November 29, 2000  |
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Former Florida Supreme Court Chief Justice Gerald Kogan and election law specialist Richard Briffault of Columbia University Law School, discuss the legal battles in Florida. |
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MARGARET WARNER: For analysis of this blizzard of cases, we're joined by former Florida Supreme Court Justice Gerald Kogan-- he retired from the court two years ago after 12 years there, including two as chief justice-- and Richard Briffault, a professor and election law specialist at Columbia University Law school. Welcome, gentlemen, Professor Briffault, I hope I'm saying your name correctly. No problem. MARGARET WARNER: I'll start actually with Justice Kogan. Let's start with the recount case in front of Judge Sauls, because that is where Gore is concentrating most of his legal firepower. What, whoever decides this, what are the issues that courts have to take into account now in deciding whether to order either a full or partial recount of the ballots in these two counties? GERALD KOGAN, Former Justice, Florida Supreme Court: Well, first of all, they've got to make a decision as to whether or not the recount would, in fact, produce enough votes to overcome George Bush's lead at this particular point, because if all the machinations do not produce what will be a change in the election results, then there is no need to go any further. Once they discover, I guess, from expert testimony or testimony from the people who have taken that 1% sample, that in fact it would affect the outcome of the election, then the judge has to go ahead and decide whether or not there should be a hand recount, and the problem they're running into right now is that December 12 is not too far away. And I understand as far as the Miami-Dade ballots are concerned, that will take a while to do. There is an additional issue and that is whether or not the judge set a stand around as to how you count the votes. By now people are familiar with the so-called pregnant chads and the chads that are only attached, you know, in one corner or two corners. Or what should be the standard used by the counters? That is a question. Does the judge set that down, or does the judge merely say, look, I'm going to leave it up to the ballot counters to ascertain from what they see, what they believe to be the intent of the voters. It is not an easy issue. MARGARET WARNER: Professor Briffault, if you are Judge Sauls and you have that hearing before you on Saturday, let's say it says with -- stays with him, how do you make these determinations that Justice Kogan just outlined? In other words, what are your precedents? RICHARD BRIFFAULT, Columbus University: Well, there aren't many specific precedents on these particular issues. The judge has to consider, as Justice Kogan has suggested, whether the recount or -- whether some change would make a difference but also whether there was some problem in the certified results. I think the arguments I take it the Democrats are pressing is that in Palm Beach County where the hand recount was concluded two hours late, and in Miami, where the hand recount was never undertaken, the error, there is an error under the statute which says that the certification may be overturned if ballots that should have been counted were not counted. So there is kind of a legal concern. There is an evidentiary concern, would it make a difference then a practical concern can that be done in time? The contest calendar normally could take months. Under on the other hand circumstances, they have about two weeks. MARGARET WARNER: Justice Kogan taking the deadline has a lot to do with it. Let's look at the two developments today. On the one handled the Bush team successfully persuaded Judge Sauls to bring not just the 14,000 disputed ballots but a million ballots up to Tallahassee. What is that all about? Secondly, the Gore team went into the appeals court and said, we want this recount to begin immediately, which Judge Sauls had refused to do last night. Explain the strategy here and what do you think are the prospects that the Gore team will succeed in getting that recount advanced? GERALD KOGAN: Well, the strategy is obvious, and that is on the Bush side, you want to delay this as long as possible. And if you bring up a million ballots, and you say that you have to count a million ballots, if that is what Judge Sauls rules, there is a big difference between that and counting only the 10,000 so-called under count or under vote ballots. Now as far as the Gore camp is concerned, they need to speed this along because they don't have a second to waste. The longer this remains open, the less of a chance they have of meeting that December the 12 deadline. MARGARET WARNER: I want to go on to what happens after the deadline passes, but, first, professors, let's look at the Seminole County case. That is one Gore isn't officially a party to but this is dealing with the absentee ballots. There the hearing will be next Wednesday I think is December 6 before Judge Clark. What does she have to consider and what does she look to in deciding whether to throw out these 15,000 absentee ballots? RICHARD BRIFFAULT: She has got to consider the seriousness of the illegality in question. Remember the, what the Republican workers did in Seminole County will not directly affect the absentee ballots. They supplied some information on the application that is necessary. That alone might not be fatal but as I understand it only Republicans workers were able to do that for people they assume were going to vote Republican. Democratic workers weren't given the same opportunity. So here you have got the situation in which Democrats as well as Republicans were allowed to vote in Seminole County by absentee but the county using Republican workers made it a lot easier for Republicans to do so. Normally the Florida courts I think are loathe to reject ballots which themselves are not tainted by fraud but here you have a sense is that there was a partisan imbalance it making it easier for absentee voters to vote. And that's a hard question. I don't think they've had to consider that question before. There was no direct tampering with the ballots themselves, but there was a scheme in which the group of voters for one party found it a lot easier to get their absentee ballots and therefore to cast their votes. It's a very tough question. MARGARET WARNER: Justice Kogan, what would you like to add to that? GERALD KOGAN: Well, I think quite frankly the way Gore can win best of all is to have these so-called ballots that are now under contention in Seminole County thrown out, because without those absentee ballots, then as I understand the vote count, he will go ahead substantially and will carry the state. So I think this is a very, very important lawsuit that is going on in Seminole County. MARGARET WARNER: All right, Professor, we can't get through all the other cases obviously because I want to get to some general questions. But what about the so-called butterfly ballot case? This is where the Democratic voters are saying to the Supreme Court I was confused by the ballots, what are the prospects there? RICHARD BRIFFAULT: That's another tricky one. I would say it is uphill
but not out of the question. Normally the courts say and the Florida
courts have said that confusion alone is not enough. Indeed, it's easy
enough for a voter after the fact to come and say, oh, gee, I was confused.
What you have in the butterfly ballot, though, is a combination of circumstances.
One is there is the argument that the ballot is itself illegal although
authorized properly that it's inconsistent with provisions of Florida
law that say - the marks to - the place to mark your choice has to be
to the right of the candidate's name, and here because of the butterfly
structure, somewhere to the right and somewhere to the left, and so
the state -- The other is you have the statistical evidence of much higher than expected Buchanan vote -- a much higher than normal double vote so a court would have to look at the legal question - make a decision as to whether this ballot was in fact illegal, not clear, there is an argument that it is and the court would have to consider did it have an impact and that you would require statistical evidence suggesting that there was a higher level of confused voters than you would expect and maybe even send affidavits or testimony by voters. Again, there are both difficult legal questions and some difficult factual questions. The question is can this all be done within the brief time allotted. MARGARET WARNER: So Justice Kogan, back to you. What are the chances now that you think that time is going to run out on al Gore, on these various challenges before December 12 and what happens if that happens? GERALD KOGAN: Well, patently it's going to fall to the Florida legislature to select who the electors are going to be if they cannot be certified by the secretary of state's office. You see, there is also an additional problem in that Palm Beach case. Even if the court found the ballot to be confusing, and even if the court went ahead and found that voters were disenfranchised, and what does the court do? The court has to fashion a remedy. The only remedy that I know of that would be successful would be for the court to have a new election in Palm Beach County. But that is going to be impossible time wise. MARGARET WARNER: So, Professor, going to the Florida legislature's role, today a couple of legal scholars told the legislative committee, look, you have a certified winner right now. It's George W. Bush. There is no confusion here. At what point is it appropriate or would they be called on to get involved do you think under law and Constitution? RICHARD BRIFFAULT: It's a tricky question because it depends on what they think they are doing. It's a little confusing to me what they think they are doing. I think they think they are trying to determine who won the election. And that the statements by the leadership and by the Republican leadership in Florida to cast out on the actions of the Florida courts, leads me to think what they are trying to do is we don't want the courts messing us up; we know who won - it was Bush. MARGARET WARNER: Let me interrupt you because we are almost out of time. Do they have the legal right after say December 12, legal right or responsibility to step in? RICHARD BRIFFAULT: I don't think they can declare who won the election, but if there should be a situation in which no won one the election, we are not at that stage. For the moment there is a winner, Bush -- if no one won the election, they have an argument that under a federal statute they have the right to step in and declare who they would award the electoral votes to. They can't say who won the election. They may have the power to say we are giving the electoral votes to Bush. MARGARET WARNER: Go ahead, Justice. GERALD KOGAN: We have to remember one thing: The secretary of state as the professors pointed out has already certified Bush as being the winner so as long as she has certified Bush as being the winner, then obviously the legislature has no grounds to act. It would have to be a change in the certification or a withdrawal of the certification either by court order or by the voluntary action of the secretary of state. MARGARET WARNER: All right. Thank you both gentlemen. We have to leave it there. RAY SUAREZ: Still to come on the NewsHour tonight, the mandate for change in Mexico, the politics of global climate control, and a Clarence page essay.
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