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| LEGAL PERSPECTIVES | |
 November 20, 2000  |
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Margaret Warner and two legal experts discuss today's court happenings.
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MARGARET WARNER: To analyze what we just heard, we turn to former Florida Supreme Court Justice Arthur England. He retired from the court in 1981 after serving six years, including two as chief justice. He's now in private practice in Miami; and Pam Karlan, a professor and election law specialist at Stanford University Law School. Welcome to you both. Professor Karlan, as you listened to this whole two-and-a-half hour hearing today, what did the justices seem most concerned about? |
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| The court's foremost concern | |||||||||||
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MARGARET WARNER: Justice England, would you agree that they seemed to -- whatever solution they came up with, they wanted to make sure that Florida wasn't shut out of the electoral college? ARTHUR ENGLAND: No question. Some of the justices were very concerned about that. And that was the focus of their question. The questions went beyond that, though, because the election law covers not just the presidential election, and it's only the presidential election that has this electoral college concern. And the hard questions were posed by, why do we have this artificial deadline and how do we deal with it when a federal law requires the electoral college resolution by December 12, but if this were an ordinary case of Senators or Governors or anybody else, that wouldn't be a concern. And so how do we reconcile the statute for those situations as well? MARGARET WARNER: So, Professor Karlan, what did the justices seem to you to most... if we take the Democrats' case first-- most hone in on? Where did you hear the greatest skepticism when they were questioning the Democrats' lawyers? PAM KARLAN: Well, I think they were most concerned there about whether postponing the certification longer would make it impossible to conduct what are called election contests. Those are the lawsuits that challenge a certification after it's made. They were concerned with whether those would be impaired in some ways. And I think they were also a little bit skeptical when Mr. Boies got up to do his rebuttal about just how far their equitable powers extend. Just what could they order here? Could they order a statewide recount? Could they set a bunch of deadlines? I think you saw Justice Harding on the tape that rolled a moment ago asking where do we get the deadlines that you want us to set? Are we supposed to pull them out of thin air, or is there some record that would enable us to figure out exactly what date the certification should be done on and exactly what date the recounts should be done by? MARGARET WARNER: Justice England, what would you add to that? What struck you about the skepticism they showed toward the Democrats? ARTHUR ENGLAND: Well, they showed skepticism on both sides. MARGARET WARNER: I'll get to the Republicans.
MARGARET WARNER: All right. And staying with you, Justice England, in terms of their skepticism toward the Republicans, what did you pick up on most there? ARTHUR ENGLAND: Well, the Republican position basically was the seven-day requirement of the statute is the end of all decision making. If there are no counts of hand-counted votes by that time, it's too bad. Now they hedged on that a little bit. But their basic position was after seven days the secretary of state certifies because you need that certainty and the legislature provided it. The justices had trouble with that in the face of the fact that it was cutting off hand-counted votes which might never be counted. And, again, you heard in the extracts-- and there were many questions during the argument about-- how do we make sure that every vote that was cast is counted? And the Republicans were pressed to answer that question in the face of their insistence that there be a seven-day cutoff and that's the end of it because the legislature set that date.
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| Gauging the court's skepticism | |||||||||||
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MARGARET WARNER: Professor Karlan, what would you add to that in terms of skepticism toward the Republicans' position?
MARGARET WARNER: So Justice England, if we took what the two sides were saying today, is it fair to say that the Democrats are asking for a pretty broad ruling that reconciles all these different demands that you and the professor have just laid out, whereas the Republicans really are looking for a very narrow one, just to say that seven-day deadline stands? She's within her authorization or her authority to do it, end of story -- is that too simple? ARTHUR ENGLAND: That is a little too simple. That was argued that way. They both have a position. The Republican position is the statute says that the process ends with the certification or this phase of the process ends with the certification after seven days. And everything after that is a contest and you have to leave time for that. The Democrat position was, no, you have to take into account where someone has challenged the election and even before there is a contest, the certification process, you have to allow the county canvassing boards to count by hand if they have started that process and are authorized to do so. So each of them were asking for relief, which the statute provided, but the statutes didn't match because the statutes weren't written, I guess carefully enough in a way which tied both of those ends together. MARGARET WARNER: Professor, what did you see as the two sides' bottom lines here? PAM KARLAN: Well, I think everybody agrees ultimately the Florida Supreme Court is going to have to decide whether the manual recounted votes are going to count in the state's total or not. Where the two parties seem to disagree is the Democrats would like to have that decision made sooner rather than later, and the Republicans would like to have that decision made later rather than sooner.
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| The court's next step | |||||||||||
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MARGARET WARNER: So what options do you think the court has now before it? PAM KARLAN: Well, it could issue a very narrow ruling that simply says the secretary of state can certify the results she now has and then we'll have election contests, which means litigation over whether different counties have to count their votes manually and, if they do, whether those totals should count. We could get a decision, on the other hand, that tries to resolve all of the issues that might arise now, ranging from things like whether the manual recounts are acceptable to whether pregnant chads count or only two-cornered chads count, that tries to resolve as many issues now as possible, rather than putting any off. I think we'll end up with something a little bit in the middle, which is a decision that postpones at least for a while the certification, while the currently ongoing manual recounts continue, but doesn't postpone that certification for too long because I think the court recognizes that it needs a fair amount of time, and the lower courts will need a fair amount of time to adjudicate election contests that won't begin until the certification has occurred. It's sort of like Winston Churchill used to say. This isn't the end. It isn't the beginning of the end but I think we've finally reached the end of the beginning. MARGARET WARNER: So, Justice England, from your former inside position on this court, on this Supreme Court, how will the justices go about... what's their process for going about deciding, A, how broadly they're rule and then what they'll rule and how much consensus they have?
MARGARET WARNER: All right. Well, Justice England and Professor Karlan, thanks both very much. |
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PAM
KARLAN: I think they were most concerned with making sure that Florida's
25 electoral votes get counted in the decision about who becomes President.
And reasoning backwards from there, they were concerned about the timing
of different rulings by them and different challenges by potential parties
who object to either how a count was conducted or not counted. 
ARTHUR
ENGLAND: Yeah. They were concerned with the hard answers that are not
provided by the statutes and trying to ferret out from the parties,
get some help on what actually they have to do to reconcile it. Yes,
they were very concerned about the limit of their powers. What can we
do, what would you have us do, they were asking the attorneys, to reconcile
statutes which don't match? And both sides struggled with the answers.
PAM
KARLAN: Well, I think that that was the major issue, although there
was one interesting additional one which is, as I listened to Secretary
of State Harris's lawyer argue, he seemed to concede that recounts that...
manual recounts that were conducted in time for the seven-day deadline
would have to be accepted, and that raises the question of whether her
reasons for not accepting later ones, which seemed to be that there
was no reason to have the recounts in the first place, are good reasons
or not. It raises the question whether recounts are very important,
regardless of whether they come in precisely before the deadline or
not. So I think that was the major issue. 
ARTHUR
ENGLAND: Well, they're going to leave the oral argument, take off their
robes and go into a conference room. And they're going to discuss those
very issues. They're going to listen to each other take positions on
what should be their decision, how broad or how narrow. They're going
to come possibly to a consensus but maybe not. They're going to ultimately
direct somebody to draft an opinion. By the way, it may already have
been started. Someone may have started a draft before just to get the
process rolling. One person will do that, they'll circulate that, and
then they'll probably before this is over talk again, convene again
maybe tomorrow morning, go over the language and decide whether it's
too narrow or too broad for everybody to accept. I think the important
thing here is I hope the court and I expect the court to adopt a unanimous
decision, even though there's disagreement. Perhaps there was disagreement
on the outcome. There may also be disagreement on the breadth of the
opinion, but I would think that in, like so many other great cases,
the court will come together and say when they finally have a majority
and it's time to get it out, we need to do this unanimously and so all
of us will sign on.