November 24, 2000
Gore campaign lawyer David Boies and Bush campaign lawyer Ben Ginsberg discuss the Supreme Court's decision to accept the Bush campaign's appeal and other legal matters
MARGARET WARNER: Ray Suarez explores the Supreme Court developments.
RAY SUAREZ: We go first to the lawyer representing the Gore campaign in the Florida legal battles, David Boies. Welcome to the program.
DAVID BOIES: Thank you.
RAY SUAREZ: Well, were you surprised by the Supreme Court of the United States agreeing to hear one of the Bush pleadings?
DAVID BOIES: No, we had always said that there were a number of issues that the Supreme Court might want to hear. Our view was and continues to be that after the United States Supreme Court considers all the issues, it will decide that it is not appropriate to interfere with the Florida Supreme Court's actions. However, we think it's entirely appropriate for the United States Supreme Court to give Governor Bush a hearing on his appeal. We would hope that, while that appeal is going on, it would not be used as an excuse to delay the counting procedures that are going on here in Florida.
RAY SUAREZ: Well, they seem to be steaming ahead toward the deadline set by Secretary of State Harris for Sunday evening. So...
DAVID BOIES: Yes, and that's our view as well. What we hope and expect is that the counting will proceed until Sunday at night. At that point there'll be a certification, and that Monday the contest proceedings will start to determine the validity of the counting.
RAY SUAREZ: When you say the contest proceedings, you plan to go into court Monday morning and ask for what?
DAVID BOIES: Governor Bush's campaign, as you know, filed a proceeding on Wednesday, involving, I believe, it's 12 counties-- it may be 13 or 14, but approximately a dozen counties-- and we would file our own contest on Monday, probably involving three, maybe four counties. Certainly one of those counties is going to be Miami-Dade, where, unfortunately, the counting was disrupted, and it looks like it's not going to be restarted. Another county might be Palm Beach, where the court has twice given the canvassing board instructions as to an appropriate standard to follow in determining voter intent. Whether or not the canvassing board is following that is something that we're monitoring, and that could be another county. A third county almost certainly will be Nassau County. What happened today is Nassau County, which is a Republican- controlled county, changed the composition of its canvassing board, and then, with a new canvassing board member, they voted to decertify the results that they had previously certified and go back to uncorrected returns that the canvassing board itself had rejected at the time it made its original certification. The only apparent rationale for that is it gives Governor Bush another 50 or 55 votes. There is no support in Florida precedent or Florida law for that action, and that will certainly be part of the contest as well.
RAY SUAREZ: At her last public utterance, the secretary of state said that she fully intends to certify this election Sunday night. From what I hear you saying, this certification will only be a pause on the way to a widening, a reopening, of the inquiry into who won in Florida, rather than a beginning of the narrowing of it.
DAVID BOIES: Yeah, it's not really a reopening or widening. What it is, is it is a resolution of the contested ballot. In other words, the counting procedure has substantially narrowed the issues, but there still are ballots that are contested. For example, the easiest example is Miami-Dade. In Miami-Dade, in violation of what the Supreme Court ruled, they stopped the counting. Rather than continuing the count and including the results in their amended certification on Sunday, they stopped the count. Now, I've got some sympathy for them, given the particular conditions that they were subject to, with people storming the election offices and knocking people down and punching them and pounding on doors, but whether it was understandable or not understandable, we think it was a violation of what the court ordered, for them to terminate the counting before Sunday. As a result, we've got to ask the court to finish that job so that the vote can, in fact, be counted.
RAY SUAREZ: Will your team's plans and actions change depending on what ms. Harris certifies Sunday night?
DAVID BOIES: No, I don't think so. I think our view from the beginning is that what is important is that the votes that have been cast be counted and counted accurately.
RAY SUAREZ: What about... I'm sorry, but what about if you are certified as the winner-- there will be some point in continuing these battles beginning Monday morning?
DAVID BOIES: Well, there will be because the Bush campaign also has a contest going, and one of the things that obviously we want to make sure is that if some of the Bush campaign's contests are granted, we have protected our rights to be sure that the additional votes that we believe would be for Vice President Gore are in fact counted. I don't think either side on Monday morning wants to sort of sit back and say, "well, I'm ahead now, so I'll allow only the other side to contest." One of the things that people were talking about today were the dueling contests, which was the colorful news way of describing what was going on, but I think there's a certain accuracy to that. I think both sides are asking the courts to decide for them the issues of the canvassing boards decided against them.
RAY SUAREZ: Let's take a look at that term "contest." There's something materially different going on in the challenges beginning once the secretary of state certifies a winner in Florida?
DAVID BOIES: I'm not sure you would say it's materially different. There is one important difference, and that is that once the certification is made, the forum shifts from the canvassing board to the court, so that now the same issues that have been before the canvassing boards are now in front of the court, and as you know, Florida law has provided for a long time that these decisions are ultimately judicial decisions. So what you've done is you've moved it from the arena of the canvassing board to the final arena for decision, which is the courts.
RAY SUAREZ: And this was, in a way, part of your point to the Supreme Court, was it not, that this is ultimately a state issue?
DAVID BOIES: Exactly, and this is what the Supreme Court also said, which is we want to be sure that the results get certified so that there's enough time between the certification and December 12 for the protests to be resolved.
RAY SUAREZ: Well, did the high court signal what it's really looking for in its very brief granting of this hearing by asking both sides to prepare a brief that answers what would the consequences of this court's finding, that the decision of the Supreme Court of Florida does not comply with US Code Section 5, what does that signal to you, that they're specifically telling you, answer this question for us?
DAVID BOIES: I think one of the things that the Supreme Court is properly interested in is what are the consequences of the decision? That is, if it were to conclude, contrary to what we expect, that the Florida Supreme Court made an error, what is the kind of remedy that either side is proposing? I think that one of the things that everybody is very conscious of is that, unlike a race for sheriff or even Congressman or Senator, this is, because it's a presidential election, something that you do not have an indefinite amount of time to resolve. The country has to have a new President inaugurated in January, and the electors are supposed to meet on December 18. So you've got a situation in which I think everybody, including the Supreme Court, is focused on the fact that not only do you have to have the right result, but you have to find a way to reach that result within the time available.
RAY SUAREZ: David Boies from the Gore campaign, thank you very much, sir.
DAVID BOIES: Thank you.
RAY SUAREZ: And joining us from the Bush legal team, attorney Ben Ginsberg. Welcome to the program, sir.
BEN GINSBERG: Thank you. It's a pleasure to be here.
RAY SUAREZ: In the way that it granted this hearing next Friday and by what it asked you to brief on next Friday, has the court signaled what it finds the most interesting parts of your arguments that you made?
BEN GINSBERG: Well, we are gratified that the court decided to hear the case and I think the court is really looking at the question of whether it's fair to change the rules of an election in midstream.
RAY SUAREZ: And in response to that question that the court asked specifically, what would the consequences be of the Supreme Court of the United States saying that the Supreme Court of Florida did not handle this correctly? How would you answer?
BEN GINSBERG: Well, I think the practical consequence of that would be that the court would take a look at the Florida statutory scheme as it existed under the intent of the legislature and probably go back to the results of the election as certified by the various counties last Saturday night, the statutory deadline, and take those results and go from there under the Florida statutes.
RAY SUAREZ: You just heard David Boies giving a description of what your side plans to do. I want to give you a chance to answer whether, in fact, that is what you're going to do. Are you going to be opening contests in these various counties starting Monday morning, whatever Secretary of State Harris certifies?
BEN GINSBERG: Well, I appreciate the advice from Mr. Boies but I'm not sure we've reached any decisions on that. And as Secretary Baker indicated earlier this week, all options are on the table.
RAY SUAREZ: So, is there a strategy that goes ahead Monday morning, whether you win or lose Sunday night?
BEN GINSBERG: Well, I think it's a bit premature to look at that. We're very concerned about the notion of being disadvantaged because rules for counting ballots are changed after the election to get the pre-ordained result that the Gore campaign is trying to achieve. But if they fail in that effort to change the system for their own means, then that's one scenario, and if they're successful, well, that's another.
RAY SUAREZ: Just a short time ago, the speaker-elect of the Florida House of Representatives went before reporters, said that he had been in consultation with the president of the Florida Senate, and that they would be heading to Washington to be participants in this case next Friday as well. Will they be put in the situation of asking the highest court in America to overrule their own Supreme Court, in effect, joining you?
BEN GINSBERG: Well, from what I understand from what the legislative leaders have said, they take very seriously what they feel to be an intrusion into their constitutional and statutory prerogatives. That resulted from the Florida Supreme Court's opinion last week which did, in fact, rewrite much of the legislation that was prepared by a Democratically-controlled House and Senate some ten years ago and as well as taking away the statutory discretion afforded by statute to the secretary of state. Therefore, I think that the members of the legislature do feel some injustice from the court decision and, yes, I think they are in that position.
RAY SUAREZ: Does the recent record of this particular court set the bar rather high for a legal team making a pleading like the one you're going to be making; that is, in effect asking a federal court to vacate an order of a state court?
BEN GINSBERG: Well, the other principle involved, as I mentioned earlier, is the notion of changing the rules in midstream as well as the basic separation of powers argument that I think the Florida legislature has indicated it will make. And those are very real concerns, I think, of this court.
RAY SUAREZ: Let's talk a little bit about the things that are going on in individual Florida counties. It's my understanding that your campaign has asked a judge in Leon County to look into the military ballots matter. Tell me what the state of play is in that case.
BEN GINSBERG: There's been a hearing today before the Leon County Circuit Court. The action that we filed was in reaction to the Gore campaign's strategic decision to systematically challenge virtually every overseas military ballot that was filed in the state. They had an attorney prepare documents telling their challengers how to knock out every ballot from a military personnel serving overseas. We felt that that was not right, and we, in fact, went in to challenge it.
RAY SUAREZ: A lot of the partial and completed county results coming in now show that after all was said and done, a lot of those ballots were included in the count. Does that change your posture in this particular pleading?
BEN GINSBERG: Well, only to the extent that there were still a number of ballots that were not counted by county officials upon challenges by the Gore campaign where the deficiencies were caused not at all by the member of the armed services but rather by whether a postmark was applied or not, and the military personnel are not responsible for getting postmarks put on their ballots.
RAY SUAREZ: Earlier today, Mr. Boies said that he hopes that the hearing in Washington next Friday begins the process of laying this to rest. The way things are going and the way you ... both campaigns have become involved in various kinds of court challenges, do you think that that would be the beginning of the end? Is it reasonable to assume that?
BEN GINSBERG: Well, one can only hope. I mean, I think it is unfortunate that what we've seen by the Gore campaign is the wholesale challenging of military voters, an attempt to throw out some 15,000 absentee ballots in Seminole County, the rewriting of Florida election laws in Palm and Broward County at the behest of the Gore campaign and an unfortunate degree of subjective judgments on something called dimpled ballots, ballots that have never before been counted under Florida law. In the context of Governor Bush winning on election night, Governor Bush winning the first recount, Governor Bush being ahead after a second recount and then the changing of the rules started. So, that's a bad situation that we hope would be rectified and certainly the court hearing next Friday can be one step on that path.
RAY SUAREZ: In the case of some of those questionable ballots, isn't including them in a count for either candidate turning out to be a bipartisan process? Isn't there a representative there who can say, no, I don't think that that should go in someone's tally and so on? I'm just trying to get an idea of your view of how these ballots are being debated one by one?
BEN GINSBERG: I'm afraid that's not at all the way the system works. It is true that there is a Democratic and Republican representative who reviews the ballots in the first instance. If they do not agree whether it is a vote or not a vote, then the ballot is marked as challenged, and it's determined by the three-member canvassing board. In both Palm and Broward Counties those boards are majority Democratic boards. So that you have the unfortunate situation of these ballots being judged under a new set of rules imposed after the election and being judged by partisan boards. That is not a particularly reassuring method for determining a presidential election I'm afraid.
RAY SUAREZ: If you prevail next week, those ballots won't get counted, but there's a long way until next Friday. One of the things, as you heard Mr. Boies say, that the Gore campaign is going to attempt to do is reopen the inquiry into the counting of Miami-Dade's ballots. What's your answer to that legal effort?
BEN GINSBERG: Well, I think that the Gore campaign has showed that they will reopen ballots and change rules as long as it takes. And they have refused to accept the election-night count, refused to accept the first recount or the second recount, so that I don't doubt for a second that they would at least say today that they'll be filing a challenge to keep the process going even further, no matter what happens.
RAY SUAREZ: Well, in Miami-Dade there was no second recount. I think for them that's the problem, isn't it?
BEN GINSBERG: Well, there was an election night count and a first recount, both of those show Governor Bush would win statewide, and that apparently is not enough for the Gore campaign. So again, even although the Dade County Board has now voted on two and indeed three separate occasions not to proceed with a full recount, that discretion for local officials is not sufficient for the Gore campaign.
RAY SUAREZ: The fact that the vote totals have changed, and in several counties and in even some of the disputed areas that also meant more votes for Governor Bush as well as fewer votes for Governor... Vice President Gore in some cases. Doesn't that signal that the first count, which your campaign has paid so much attention to, was not necessarily an accurate count of what Floridians did on election night?
BEN GINSBERG: Well, no. What I fear it means is that as you have more recounts, more subjectivity enters into the process so that any further counts such as what the Gore campaign is seeking are guaranteed at this stage to be made, as I described before, by partisan members of a canvassing board. I don't see that that is a particularly trustworthy result.
RAY SUAREZ: Ben Ginsberg, thanks for joining us tonight.
BEN GINSBERG: Thank you very much. Nice to be with you.