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| LEGAL ANALYSIS | |
 December 4, 2000  |
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Former U.S. Supreme Court clerk John Yoo, former Florida Supreme Court Chief Justice Gerald Kogan, and Pam Karlan of Stanford University Law School analyze today's court rulings.
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GWEN IFILL: And to help us with that I'm 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; Pam Karlan of
the Stanford University Law School; and John Yoo of the Boalt Hall Law
School at the University of California, Berkeley. He formerly clerked
for Supreme Court Justice Clarence Thomas. GERALD KOGAN: Well, he obviously felt from the evidence that he heard during the trial of this case over the weekend that the Gore campaign did not sustain its burden of proof. In other words, he felt that the evidence that he heard did not leave him with the feeling and the conclusion that, in fact, had they gone ahead and recounted these ballots that they probably... there's a reasonable probability that the result would have been different. And that's the way he ruled the way he did. Now, when this particular decision goes to the Supreme Court, as far as it deals with facts, it's really presumed to be correct. And unless the Gore faction can show that the judge completely abused his discretion, they are not going to go ahead and override his finding of facts. However, as to whether or not he applied the correct law to the facts as he found them, that, of course, is another decision entirely. They could find that he did find facts but he applied the wrong law in his finding of them. GWEN IFILL: Judge, the court seemed to say, in fact, said very directly that there was no reasonable probability that the outcome of this... any challenge in this case would overturn the results of this election. This, as the Gore folks pointed out, without looking at any of the ballots that were taken to Tallahassee. Is that a basis for challenge? GERALD KOGAN: Well, sure, it's a basis for challenge because you can then argue before the Supreme Court that that's how he abused his discretion by not looking at the ballots, and then it's up to the court to make that particular decision. GWEN IFILL: Pam Karlan, how about that? Is that relevant, the fact that the judge didn't look at ballots? PAM KARLAN: Well, it is if what the Gore people argue on appeal is that he made a legal error in deciding without looking at any of the ballots that there was no reasonable probability of there being a change. So it's really a question of what the legal standard is for deciding which votes should count, and if he got that legal standard wrong, then the Florida Supreme Court can review his decision without giving him any deference, whereas, if he applied the correct legal standard, then it's very hard to get him reversed on appeal. GWEN IFILL: Professor Karlan, the Judge said no to the argument that the ballots were bad, no to the extended deadline for counting these ballots, no for any evidence that additional counting would change anything-- is there any realistic reason to believe that the Florida Supreme Court, where the Gore folks have now appealed this, any reason could find any daylight in that? PAM KARLAN: Well, you can always find daylight. Courts are very good at saying that although a trial court judge found the facts in a particular way, his finding of the facts was informed by an incorrect view of the law. How likely the Florida Supreme Court is to do in this case I would defer to Justice Kogan who has a better sense of just how tightly they rein in judges on findings of fact and conclusions of law. But there's always daylight until they turn off the lights. GWEN IFILL: Well, before we go to John Yoo, let's ask Justice Kogan that. What's your sense of that? GERALD KOGAN: Well, as I pointed out before, finding of fact comes with a presumption of being correct. And the Supreme Court will accept that as being correct unless, from the record, they ascertain that the Judge abused his discretion. Now, if he, in fact, went ahead and applied the wrong law in the opinion of the Supreme Court to arriving at his factual conclusion, then, of course, they can say that that was an abuse of discretion, it was error on his part and they can, in fact, reverse his findings. GWEN IFILL: John Yoo, what is your sense about the chance of appeal in this case with the Florida Supreme Court? JOHN YOO: I think it's quite unlikely that the Florida Supreme Court will reverse here. And the reason for that is because as the other two speakers have said, when trial judges make factual findings, they're given discretion. It's called a clearly erroneous standard. And basically appellate courts because they haven't sat in the position of the trial judge, looked the witnesses in the eye, made judgments on their credibility, appellate courts are very, very loathe - it's happens very rarely -- to reverse factual findings. So it would have to be some kind of legal determination perhaps that the district judge in just completely excluding the use of these ballots as evidence at this portion of the trial was a legal error. But I might add when the Gore campaign made an emergency appeal to the Florida Supreme Court asking them to order the district judge to do precisely that, they denied that appeal. So I can't say I would think they would be sympathetic to that claim. GWEN IFILL: Well, the Florida Supreme Court seems to be the hot spot today, John Yoo. The U.S. Supreme Court today kicked back a Gore appeal and said that the deadline for counting ballots should be once again decided by the Florida Supreme Court but based on their reasons for reaching this conclusion. Explain to us exactly what the Supreme Court was trying to say today. JOHN YOO: The Supreme Court essentially said that the Florida Supreme Court did not explain whether it had considered the federal law at issue here, Article II, Section 1 of the Constitution and Section 5 of Title III of the U.S. Code -- whether the Florida Supreme Court had considered those federal laws in reaching its own decision. And so it sent the case back for the Florida Supreme Court to explain itself. Now, one of two things can happen at this point. One, the Florida Supreme Court can come back and say, "we didn't consider the federal law. Now that we do, we were only engaged the process of interpreting conflicting statutes. We did not try to override the Constitution/s vesting of this authority in the state legislature." And then we're back to where we were on Friday. If the Florida Supreme Court does however say that we did use the Florida state constitution to override state election laws in violation perhaps of Article II, Section 1, then I think the Supreme Court might well come back in and reverse the Florida Supreme Court. GWEN IFILL: We should just mention that the Florida Supreme Court has asked for briefs to be delivered at 3 o'clock tomorrow afternoon on that very argument. Pam Karlan, what do you think about the Supreme Court's distinctions today? Were they clear? Did they give any other hints in their decision about what they really thought about the merits of this case? PAM KARLAN: They didn't give a lot of hints; they gave somewhat contradictory hints about it, because I think they sort of realized by the time they got the case and by the time they heard oral arguments that events had moved past them and that the real question in Florida was the question that Judge Sauls was deciding today, rather than the question of the extension of the certification. And I agree with John Yoo that essentially what they did is send the case back to the Florida Supreme Court giving the Florida Supreme Court some hints as to how it could write an opinion if it doesn't want to be reviewed again, which the Florida Supreme Court then says we were engaged in pure statutory interpretation and we simply referred to our state constitution because it helps us to understand what the legislature intended to do here. Or the Florida Supreme Court could issue a kind of mea culpa and say oh, well, now that we've looked at the federal statutes we realize that we should have interpreted our own law differently. But it leaves both of those really open for the Florida Supreme Court, and the hints that you get in oral argument don't tell you very much about what the Supreme Court would actually decide if the issue was put it to squarely today. GWEN IFILL: So, Judge Kogan, did we get any more clarity at all in your opinion on whether the Supreme Court felt that basic threshold of federal jurisdiction had been answered by the Florida Supreme Court? GERALD KOGAN: Well, you know, my belief in this particular matter is that if the U.S. Supreme Court felt that the action by the Florida Supreme Court violated the law-- whether it be federal law or whether it be U.S. constitutional law-- I think they would have said so. I agree with our other two guests tonight that basically they were giving the Florida Supreme Court a way out and also, by the way, giving themselves a way out because if the Florida Supreme Court picked up the hints that they were giving in their opinion, then what would have happened was it would have gone back up or can still go back up and the U.S. Supreme Court can then say, "well, we're satisfied and we're not going to interfere because this particular decision was decided on state grounds" and did not violate the federal Constitution or federal law. GWEN IFILL: I heard someone today describe this as a traffic circle where people are continually going around from circuit court to Supreme Court to appeals court and now we also talk about a circuit court decision which is pending in Seminole County, Judge Kogan. Do we have a sense even though Gore is not a party to that case that challenge about whether those absentee ballots were filled out correctly in Seminole County that that will have an effect on all this? GERALD KOGAN: Well, actually it would. It depends on how the trial judge rules. If she rules that she is going to throw out all of those absentee ballots and if that is upheld by the Florida Supreme Court and any subsequent appeal to the United States Supreme Court, then what's going to happen is Al Gore is going to win the vote in Florida. GWEN IFILL: So, Pam Karlan, is there always going to be another legal avenue no matter what judgments we talk about here every night? PAM KARLAN: No, I think that the opera is almost over. My sense is that by December 12 the Florida state courts are going to have to have finished up their business because after that point a whole new round of provisions kick in that either give the Florida legislature or the United States Congress the final say in who Florida's electors are but I think sort of make it harder for the state courts to continue to engage in lawsuits. The other thing I should say I think is as a matter of state law in Florida the time for filing an election contest has now passed. So we're now into a period where we have a finite universe of lawsuits, and it's just a question of they're all working their way through the system. GWEN IFILL: John Yoo, a finite universe of lawsuits, we can only hope? JOHN YOO: I think so. You know, Germany could only fight a two-front war and they lost. Now the Al Gore campaign has to fight a three-front war and they've lost on each front -- and the Florida Supreme Court now, the U.S. Supreme Court and in the state legislature. It's important to note I think Pam's quite right the December 12 deadline is an important one. I think the litigation has to resolve itself by then or it looks like the state legislature would step in any event and settle the whole thing. GWEN IFILL: Judge Kogan, do you agree with that? GERALD KOGAN: Oh, I think that it has to be over by December 12 because if it's not over then, and as I understand the law, the state legislature has the authority to choose the electors. And I don't think the courts in Florida are going to allow that to happen. GWEN IFILL: Thank you, legal experts, all.
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