November 17, 2000
Florida's Supreme Court ruled today to delay final certification of the state's presidential vote until it considers ongoing hand recounts on Monday. Margaret Warner examines the legal struggle with two experts.
WARNER: Joining me again tonight to analyze today's developments are former
Florida Supreme Court Justice Gerald Kogan -- 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 come back to you both. Justice Kogan, take a look
at the order that came down this afternoon and explain to us why the Supreme
Court would decide to act now before Katherine Harris certified these
GERALD KOGAN: Well, very simply, the court has not yet made up its mind, and does not intend to do so until it hears oral argument from the attorneys for both sides. So rather than have people receive a false belief that the final election results have been certified, they have ordered her not to certify anything until further order of the court. But interestingly enough, they say in their order, and I'll quote from that, that it is not the intent of this order to stop the counting and conveying to the secretary of state the results of absentee ballots or any other ballots. So what they're saying is that let's have everything keep going along the way it is, we're going to hear argument from the attorneys on Monday, and soon thereafter, the court will be rendering its opinion.
MARGARET WARNER: What would you add to that, Pam Karlan. Is there a reason that the court would have wanted -- a legal reason that the court would have wanted to forestall her from even certifying these results, which everyone expected she would do and there would be appeals after the fact?
PAM KARLAN: I'm not sure that there's precisely a legal reason for that as opposed to what Chief Justice KOGAN was referring to, which is you do want to leave people understanding that the process isn't yet over, and that the Florida Supreme Court hasn't yet ruled. And allowing her to certify the election might leave people with the impression that that's the end of the process.
|Acting on its own motion|
MARGARET WARNER: Staying with you for a minute -- also another interesting thing in the order is that the court said they were acting on their own... on its own motion. That's how the statement read. In other words, the Gore camp had not asked for this immediate order. Today in their press conference they were talking about coming in tomorrow. How do you interpret the fact that the court decided to act on its own motion?
PAM KARLAN: Well, I interpret that as their indication that they knew that the Gore camp would file an appeal and there was no sense in waiting and leaving people hanging for a day or so over what they were going to do, since they knew what they wanted to accomplish.
MARGARET WARNER: All right. Someone just handed me something, which I'm get Justice Kogan to respond to. It says here the 11th U.S. Circuit Court of Appeals has denied... this is this Atlanta, the federal appeals court has denied the Bush request to stop the hand recounts in Florida. Your reaction to that?
GERALD KOGAN: Well, that more than ever tells us that the final decision in this matter will rest in the hands of the Florida Supreme Court. It's no longer in federal court, and it is going to have to be decided by the state Supreme Court.
MARGARET WARNER: Because you mean, as you would read this, they're not putting it off -- they're just denying it outright.
GERALD KOGAN: They're denying it. What they're doing is, they're upholding Judge Middlebrooks' opinion early this week, and that opinion was to deny the motion to stop the recount filed by the Bush campaign.
MARGARET WARNER: And you know this Florida Supreme Court well as we were discussing last night, since you just left it two years ago. How do you interpret the fact that they acted on their own motion and that it was unanimous? Any significance?
GERALD KOGAN: Well, first of all, knowing these folks the way I do, they are very, very careful in everything they do. They want to make sure that everybody is fully heard before they render an opinion in this case. So the best thing to do is to stop all the proceedings as far as certifying the vote is concerned, allow the vote counts to keep going on and allow the counties to report the votes, and then, after they've had an opportunity to hear both sides argue this case, then they can sit down and deliberate and come up with a final decision. And it's caution on the part of the court, also showing to the American people that the court is doing everything in its power to make sure that everybody is treated fairly in this matter.
|Does Harris have to follow this order?|
MARGARET WARNER: Professor Karlan, let me turn to something else. Does Katherine Harris have to obey this order? Now she is apparently supposed to make a statement pretty soon or issue one. But the reason I ask that is that in the papers here at least today, this morning, there were Bush lawyers quoted as saying they were going to raise a separation of powers argument that the court...no court, even a Supreme Court can't substitute its judgment for the judgment of a state constitutional officer in the executive branch, doing her lawful duty. Is there any debatable point about whether she has to obey this order?
PAM KARLAN: No, there is no debatable point at all about whether she has to obey this order. Of course she does. The question of what her discretion allows her to do is very open and quite real. But the question whether she has to obey an order from the state Supreme Court is really not an open question in this system of government. Judicial review entitles courts to review the behavior of executive officials and to enjoin them either to require them to do something they don't want to do, or to order them not to do something they do want to do. And I just don't think that is an open question at all. The standard by which the Florida Supreme Court will review her decision to reject the hand counts is, of course, another issue altogether. They have to be deferential to her on that because Florida law gives her a fair amount of discretion. But if she goes outside of that discretion, if, for example, her interpretation of what extenuating circumstances are as a legal matter is wrong, they can reverse her on that.
MARGARET WARNER: So, in other words, you're saying whatever argument there would be about her rights and responsibilities, that's something that would come up Monday in the actual hearing. It's no grounds for not obeying the order.
PAM KARLAN: No. That's absolutely correct. It is not within an executive official's authority to disobey an order from the court.
MARGARET WARNER: That takes us, Justice KOGAN, back to this morning's order that gave rise to all this, it feels like an age ago, but it was just this morning the Leon County circuit court judge, Judge Lewis -- who essentially upheld her or refused to overturn her decision saying she wouldn't accept hand recounts -- now I know you have that order, too. What was the legal basis on which Judge Lewis upheld her?
GERALD KOGAN: Well, as you recall in his earlier order, earlier on in the week, he said she had the discretion, but she had to use that discretion judiciously, so to speak. In other words, she couldn't arbitrarily go ahead and reject the new count from the ballot hand count. But what he's saying this morning was that he is satisfied that she has shown him enough evidence to believe that she in fact did not do this arbitrarily; that she in fact gave them-- that is the county elections people-- the opportunity to explain why they would need a continuance or a postponement to allow them to finish these recounts, and that she acted within her discretion. So really what it is right now, Judge Lewis's decision has not really been overturned by the court. All the court has done is, they have enjoined the secretary of state from certifying tomorrow at noontime the results of the election. So his order still stands, and the court is going to have to decide whether or not they're going to uphold his order or set it aside.
|A legal road map|
MARGARET WARNER: Finally, starting with you Professor Karlan, give us a little bit of a road map for Monday. First of all, the Supreme Court did consolidate a couple different cases, a case from yesterday and then this Judge Lewis... the appeal on Judge Lewis's order. They have a briefing scheduled over the weekend -- Saturday and Sunday. But on Monday what will really be before the court? Will it be a narrow issue about Katherine Harris' discretion, or will they finally get to the substance of all this, are hand recounts legal? What standard should be used and do they have to be included?
PAM KARLAN: Well, I think it's kind of halfway between the last two points you made, which is I think it's not going to be simply the issue of her discretion, but whether she exercised her discretion in accordance with law. Let me give you one example from the letters that went back and forth between her and the county canvassing boards, which is she says that only extenuating circumstances like an act of God or an electrical power outage or the like can excuse turning in your votes late. It may be that the Florida Supreme Court will agree with the counties who say things like we're turning our votes in late because we have so many of them that we can't physically recount them in the time allotted or we're turning them in late because we got so confused by the conflicting legal opinions we got from the secretary of state and the attorney general that we didn't begin as soon as we might otherwise have, and the question whether those extenuating circumstances rise to the level of a justification for turning things in late and whether her refusal to accept those justifications is permissible -- that will be before the Florida Supreme Court on Monday.
MARGARET WARNER: So Justice Kogan, is that will they be essentially deciding all the issues in this case or is that still fairly narrow?
GERALD KOGAN: Well, they will be deciding the issues that are coming out of Judge Lewis' opinion, and the issues that have been raised by both Republicans and the Democrats. And essentially, I think they're going to want to issue one opinion that's going to, once and for all, decide this election. So they're going to decide as many of these issues as are humanly possible so they can come up with a way in which the ballots are either to be counted or not counted. And they just want to end this so we can get on with the business of selecting a President of the United States.
MARGARET WARNER: Well, thank you both very much. I'm sure we'll all welcome that. Thanks again.