November 16, 2000
The Florida Supreme Court today ruled that manual recounts may proceed in several counties. Margaret Warner discusses latest legal wrangling over the inconclusive presidential election with two experts.
MARGARET WARNER: And for analysis of that, we turn to former Florida Supreme Court justice Gerald Cogan. He retired from the court two years ago, after 12 years there, including two years as chief justice. And Pam Karlan, a professor and election law specialist at Stanford University Law School. Welcome both.
Professor Karlan, obviously, the big development today was the Florida Supreme Court saying to Palm Beach County and the other counties, go ahead with the manual recount. What's the significance of that in the big scheme of things?
PAM KARLAN: Well, the significance in the big scheme is that this will result in actually getting a recount in those counties. And I think if that recount shows that the election would come out differently based on the second canvass-- the manual hand count -- that puts a lot of pressure, factual pressure, on the courts actually to accept the second recount. Whereas, if that recount was stopped somewhere along the way, there'd be much less of an incentive for the courts to go back and then order another recount.
MARGARET WARNER: Justice Cogan, do you see it the same way?
GERALD COGAN: Basically, yes. I think what you're looking at here is the court saying, look, we may or may not have decided yet whether or not we're going to permit these votes to be counted, but in case we do, we don't want to delay anything, and that's why we're asking you to continue with your count, and later on we'll make that decision. The ultimate issue here is, when they complete that count and when their voting officials in Palm Beach County decide to submit the new vote tally to the secretary of state, the court's going to have to rule whether or not she's going to be required to accept it. That's what's going to have to happen here.
MARGARET WARNER: Well, that's right. Professor Karlan, that's the other track here, and there, that track was still in the circuit court today in front of Judge Lewis. He's expected to rule at 10 o'clock tomorrow morning on whether she may have to accept those recounts. How do you see... first of all, give us some insight into what Judge Lewis has to be taking into account right now as he makes this decision.
|Looking at the facts|
PAM KARLAN: Well, Judge Lewis' opinion several days ago said that the secretary of state couldn't arbitrarily refuse to accept the ballots that come in on recount and that she had to exercise her discretion using all of the appropriate facts and circumstances. And I think the more times she announces before the recounts come in that she's simply not going to look at them, the more likely he is to find that she has abused her discretion because she's made a categorical determination without looking at the facts or circumstances from any of the individual counties.
MARGARET WARNER: But Justice Cogan, today the lawyers for Katherine Harris said, look, the reasons these counties give for saying they need to do a hand recount, they've already stated them in the letters they sent in last night, their reasons aren't going to change. She did have everything in front of her. I mean, what do you think Judge Lewis is looking at right now?
GERALD COGAN: Well, basically he's going to look at whether or not she abused her discretion. The fact that she has discretion doesn't mean that whatever she decides is going to be done is going to be permissible. I mean, all the time courts are constantly overruling, for example, judges in lower courts who abuse their discretion. So that's really the issue that he has to decide here: Is she abusing her discretion? And, if she is, he may very well order her to accept these new vote recounts.
MARGARET WARNER: Then, of course, Professor Karlan, the loser of that, whichever way Judge Lewis goes, is bound to appeal that immediately to the Florida Supreme Court, as well. Would you...
PAM KARLAN: Oh, absolutely.
MARGARET WARNER: So we'll all end up with the Supreme Court ultimately, the state Supreme Court?
GERALD COGAN: Yes.
PAM KARLAN: Well, the question of Florida law will end up ultimately in the state Supreme Court. And then I think it's predictable that someone will go into federal court to challenge that decision, whichever way it comes out.
MARGARET WARNER: All right, but let's go back to a little bit more about tomorrow. Now, Justice... Justice Cogan, when the Supreme Court tomorrow has before it still, first of all, the Gore team has all these questions about when are recounts really legitimate, what standards should be used, plus they get this ruling from Judge Lewis, someone appeals. Do you think they're likely, from your experience with many of these justices, to feel an urgency that they have to rule before tomorrow night, before Secretary of State Harris starts doing her final count based on the absentee ballots?
|Court will take its time|
GERALD COGAN: Oh, I don't think they have to feel they must do it by tomorrow night because they can very easily enjoin her from certifying these particular votes prior to that time or even at that time. And they can say that she's not to certify until the court approves a date for certification. And the court's not going to rush into this. This is a group of people that I am very, very familiar with, having worked with many of them over many, many years. They are very, very thoughtful, they're highly intelligent people, and they're not going to want to make a mistake. And since they don't want to make that mistake, they may very easily just say, you're going to have to wait until we make a decision as to whether or not you have to accept these, and we're going to enjoin you from declaring the ballot final tomorrow night after you count the overseas ballots.
MARGARET WARNER: So you are talking about some sort of an interim order possibility tomorrow night that would prevent her from certifying the vote on Saturday, as she said she intends to do?
GERALD COGAN: Yes, I would anticipate that because I anticipate that the other side, the Gore side, is going to ask the Supreme Court to stop her from certifying that vote, you know, when the overseas ballots are counted.
MARGARET WARNER: Professor Karlan, do you see that as the only avenue at this point that might prevent the certification of this vote on Saturday?
PAM KARLAN: You mean an order from the Florida Supreme Court telling her not to?
MARGARET WARNER: Yes.
PAM KARLAN: Well, there might be an order from one of the many trial courts in Florida that's hearing cases connected with this, as well.
MARGARET WARNER: Do they have authority to do that, if she's...
GERALD COGAN: Yes, they do.
MARGARET WARNER: Explain that. I thought she was a state officer.
GERALD COGAN: Yeah, it's a state officer that's involved, and literally, any circuit court judge within the state of Florida would have that authority. So Judge Lewis, for example, could do it, or even theoretically, one of the judges down in Palm Beach County. But I think more than likely, it would be Judge Lewis who would do it so it could go to the Supreme Court, since he is now handling that phase of the case.
MARGARET WARNER: Professor Karlan, now, there is also this hearing before the 11th Circuit, the federal appeals court in Atlanta. We talked a little bit about this last night with you. And they have scheduled a hearing for noon tomorrow. At this point, since the Florida Supreme Court has said that these recounts can continue, what do you anticipate, what are the options before the federal appeals court?
PAM KARLAN: Well, the federal appeals court has essentially two options: One is to affirm what Judge Middlebrooks, who was the federal district court judge, did, and that is to deny an injunction and allow the recount to continue. That would be to do essentially the same thing that the Florida Supreme Court did today. The other possibility is they might reverse Judge Middlebrooks and hold that a primarily injunction stopping the recount should issue. Now, I think that second possibility is relatively unlikely and I think it's relatively unlikely for two separate reasons: One is that federal courts tend to defer to state judicial processes while those processes are ongoing. And Florida is conducting, you know, speedy, reasonable hearings on the various cases that are in Florida. The second reason that I think it's unlikely that the federal court of appeals will override Judge Middlebrooks' decision not to grant an injunction is I think he got the right answer on that issue when that was presented to him, which is he said he thought it was unlikely that the Republican voters would suffer an irreparable injury merely from having a recount. And he thought that the public interest would be best served by allowing the process to continue in the state of Florida before federal courts intervened.
GERALD COGAN: I would agree with the professor on that score.
MARGARET WARNER: You would?
GERALD COGAN: Yes.
MARGARET WARNER: So final question to you, Justice Cogan: Can you envision -- this is now going back to the dispute with Katherine Harris -- any way in which the -- I'm asking this backwards, but do you think the Florida Supreme Court is going to be the ultimate sort of interim authority between now and Saturday in deciding this?
GERALD COGAN: Well, I think the Florida Supreme Court, based upon my best thinking in the matter, is going to be the final arbiter of this particular election.
MARGARET WARNER: Period? You mean period? You don't see it going to the U.S. Supreme Court?
GERALD COGAN: Well, you know, you can try to go to the U.S. Supreme Court, but I... If the 11th Circuit Court of Appeals affirms Judge Middlebrooks' decision, I cannot see the U.S. Supreme Court willing to take jurisdiction in this particular matter.
MARGARET WARNER: All right, well, thank you both very much for helping us again with this legal thicket.
PAM KARLAN: You're welcome.
GERALD COGAN: You're welcome.