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| LEGAL BATTLES | |
 November 22, 2000  |
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Three experts discuss the Florida Supreme Court's ruling on hand recounts and the presidential race's other legal developments.
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 MARGARET
WARNER: For analysis of all these legal developments, we're joined by
law professors Pam Karlan of Stanford University Law School and Doug Kmiec
of Pepperdine University. Also with us is former Florida Supreme Court
Justice Gerald Kogan; he retired from the court two years ago after 12
years there, including two as chief justice. Welcome back to you all.
Justice Kogan, we were all waiting for the Florida Supreme Court to bring some clarity to the situation. Now less than 24 hours later, it seems legally more confusing if not chaotic than ever. How do you explain that? GERALD KOGAN: Well, very simply at the time they ruled last night, they did not have before them a judge's order from a lower court telling them as to his or her finding as to any lawsuits that may have been brought concerning the counting of the ballots, and the Supreme Court will not address something that's not before it. And now of course, at least in Palm Beach County, there is a judge's order, a finding, and that is an appealable order, and now the Supreme Court can go ahead and rule on that particular order signed by the judge. MARGARET WARNER: Doug Kmiec, how do you see it, how do you explain that decision last night, if anything, just triggered all these additional developments?
MARGARET WARNER: And so you think he definitely has grounds for this appeal and has a chance of success at the U.S. level? |
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| Defending constitutional structure | |||||||||||
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DOUGLAS KMIEC: Well, the Supreme Court review, as you know, is completely discretionary, you need at least four justices who agree to grant review. But this is an explicit part of the text of the Constitution. It's a structural part, and it's a very unusual part, Margaret, because it assigns a specific responsibility not to the state courts but to the state legislature. And if the Supreme Court of the United States doesn't step in, there's hardly anyone else in the system who will defend the constitutional structure, and that's why this is so important. MARGARET WARNER: Professor Karlan, what do you think about the grounds for appeal here, of last night's decision to the U.S. Supreme Court?
MARGARET WARNER: And so what do you think are the prospects that the U.S. Supreme Court will even get into this? PAM KARLAN: At this point in the case I can't imagine that they're going to grand certiorari and hear oral argument.
GERALD KOGAN: Well, no, I read it very simply as being a statement of the court that the real party of interest in this lawsuit are the people who went and voted at the polls, who voted and expected their votes to count. And now the court wants to make sure that those votes count. And I don't think the court was looking to see whether or not it could prevent an appeal to the United States Supreme Court. It just wanted to do what it felt was correct. Now, remember that even though the United States Constitution gives the state legislatures the right to pass laws governing who shall be electors in that state and who shall vote and they have the authority to also decide how elections will be conducted, it is always the court system that is there when a conflict arises to straighten out the conflict, and also to go ahead and interpret what the law means. And there's nothing unusual with this, it happens all the time in all of our 50 states, and in the U.S. Supreme Court. |
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| Changing deadlines | |||||||||||
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PAM KARLAN: But the state legislature here has said what they think, which is it has allowed county canvassing boards to conduct manual recounts. It has created discretion in Section 112 for the secretary of state to accept late filed returns, and it's provided in Section 166 for election contests which are supposed to be decided by the circuit court with appeal ultimately to the Florida Supreme Court. So the legislature has spoken here, and everyone in the process all along has been adhering to what the legislature has said. MARGARET WARNER: All right. Let me move onto another one of these legal developments in Miami-Dade County. Justice Kogan, starting with you. Now, last night this looked like a great victory for Al Gore, but today the Miami-Dade County canvassing board said essentially we can't meet the Sunday deadline that the court established, so we're going to end all hand recounts. And then the Gore folks as you just heard Bill Daley say, they're going to appeal that. How do you see that playing out legally?
DOUGLAS KMIEC: This is one of the problems of law making from the bench. When you do law making in front of the legislature, you get to hold hearings, and people get to tell you what the possible problems with the system that you're constructing are. In this case, the judges didn't have that ability because of course they only had an appellate record in front of them. It will be interesting to see what the judges do, Margaret, because in the context of the opinion last night, they talk about the sound broad discretion of the canvassing boards as to whether or not to have recounts or not or whether or not to rely upon changes in the tabulation software, or rerunning it through the machine after a partial hand recount. Given the sizeable amount of discretion they conferred on the canvassing board, it would be hard I think for Mr. Daley and Mr. Gore to argue now that discretion doesn't exist. |
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| The ultimate decider | |||||||||||
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MARGARET WARNER: Pam Karlan, does he have a point? That kind of language is all through that opinion, that the canvassing board is the ultimate decider.
MARGARET WARNER: Okay. Now, Justice Kogan, let's go to the third big legal development today, which was in Palm Beach County, I hope everyone can keep track of this, where the judge there -- the Gore folks had gone in and said we want you to order the canvassing board to look at these dimpled ballots. How do you interpret - I won't characterize it -- how do you characterize what the judge said, and where this thing is going to go from here now?
MARGARET WARNER: So, Doug Kmiec, is it possible just in a legal sense that this decision last night that looked so great for Al Gore might end up not being so great for Al Gore? DOUGLAS KMIEC: Well, in fact, I think he is getting less from the opinion than he thinks -- both, he's raised this profound constitutional question, and the opinion itself left unresolved the standard that the counters are supposed to use. Now, Palm Beach County has said, as Justice Kogan has alluded to, in very general terms, that the will of the voter, the intent of the voter is the standard, and is a dimpled ballot fairly and satisfactorily ascertainable. The fact that we don't have a standard really makes this process a mockery. And that's why it's important to return to the law as it was written, namely to count votes where there is no ambiguity, where the punch card has been punched fully through, where the chad has been dislodged, but not try and guess the subjective meaning of an indentation on a card, especially a card that has other chads that are fully cast. MARGARET WARNER: Professor Karlan, do you want to weigh in on this point, in terms of just legally who has more to be happy about this evening?
DOUGLAS KMIEC: You know, Margaret, the court last night said this was an issue for the legislature, and again this just underscores that the legislature needs to step in and give us a standard. Now it may be some people will argue it's too late for this election. I don't think it is because I think the federal statute allows them substantial authority here. But one way or the other, this has to be clarified. Virtual dimples can't be the determinant for presidential elections. PAM KARLAN: Of course not. MARGARET WARNER: Last question to Justice Kogan, very briefly, do you think that the legal system of Florida, and if it takes the U.S. Supreme Court as well, is nimble enough to get all this resolved, all these different cases and still meet that December 12 deadline? GERALD KOGAN: Yes, I am convinced of it. Knowing the court as I do, they're going to make sure that they have this in hand and everything decided by December the 12th. MARGARET WARNER: All right. Well, Justice Kogan and professors both, thank you. |
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DOUGLAS
KMIEC: Well, I think the decision was very troubling, because on the
most basic thing, is that the American Constitution vests in the state
legislature the authority for electing presidential electors. And what
happened last night is that the Florida Supreme Court literally undertook
to change the dates and the deadlines, to change the nature of the discretion
that elected officials in Florida have. And it was like changing the
rules after the national election in disregard of the United States
Constitution. And of course this is the basis of the lawsuit that Governor
Bush says that he will be filing shortly before the United States Supreme
Court. 
PAM
KARLAN: Well, I think Professor Kmiec has just simply misread the Constitution
of the United States. It gives to the legislatures of the state the
right to create the manner in their state of selecting presidential
electors, and the Florida legislature did that. It said first that there
would be a popular election in Florida, and that the person who got
the most votes there would get the state's electoral votes. And it said
second that if there was disagreement about who won the election, that
would be solved by the courts. It knew how to say that it, rather than
the courts, would decide the winner of an election because in another
section it provides that the legislature and not the courts judges election
contests involving the state legislature. It specifically didn't say
that about presidential elections; it left those, as it left all other
elections, to the courts to be ultimate arbiters, so I see no federal
constitutional problem here. 
MARGARET
WARNER: Justice Kogan, based on your experience being part of this court
and knowing these men and women as you do, when you read that decision,
did it appear to you that the court was going for a broad ruling to
make a kind of broad grand legal statement, or a narrow one to sort
of protect itself against appeal? How did you read it? 
DOUGLAS
KMIEC: With due respect to both the justice and to my colleague, Pam
Karlan, there is something unusual about this provision. When the Constitution
reposes power in a specific branch of the state legislature and when
our history and tradition suggest it's that branch that has plenary
complete authority, then, yes, the court gets to decide disputes within
the context of the framework established by the state legislature. But
the court of Florida, with all due respect, does not get the opportunity
to change deadlines from November 14th to November 26th or 27th. They,
the legislature when it created the system, it had specific goals in
mind, it wanted to avoid delay so that there wouldn't be an opportunity
for fraud, that there wouldn't be an opportunity for mischief, that
there would be time to contest an election and so that what was happening
right now wouldn't have happened, namely that we have some counties
trying to out game other counties. We know what vote we need in order
to get our favored candidate ahead, and that subtracts from the legitimacy
of the election, and that's why the legislature is the final arbiter
here. And the Supreme Court, I think, is entitled to say so, or perhaps
the state legislature can say so. 
GERALD
KOGAN: Well, again, they're going to file suit in the circuit court
of Dade County, and the circuit judge will rule on the matter, and that
will go up to the Florida Supreme Court. Now, the Florida Supreme Court,
how they handle that I don't know, quite frankly. But that's the procedure
that must be followed. And I don't know whether or not they would order
the recount, especially in light of the fact that they have set a time
limit and the county says, look, we cannot meet that time limit, we
don't have the facilities, we don't have the number of counters that
are necessary. So we're just going to stick to our original machine
recount. 
PAM
KARLAN: I think that's right on the question whether the canvassing
board has to conduct a hand recount and try and get those returns in.
I think if Miami-Dade doesn't have amended returns in on Sunday, that
the secretary of state is entitled to certify the election. That still
leaves the question of whether someone will file an election contest,
that is, a lawsuit after certification, claiming that votes that should
have been counted weren't. That's one of the grounds under the Florida
statute which the Florida legislature passed for changing election results,
which is if it turns out that there were legally cast ballots that weren't
counted, or illegally cast ballots that were counted. So that option
still remains, a post-certification litigation. But I think that everyone
is right, that the discretion of the canvassing board here to stop is
discretion that needs to be recognized. 
GERALD
KOGAN: Well, basically I haven't read the judge's order, but from what
I understand apparently he has said that if in the mind of those who
are counting the votes it is obvious to them what the voter's intention
was, using the language of the Supreme Court opinion of last night,
then that's the way the vote will be counted. Now, of course, who ever
wants to can take the judge's order up to the Supreme Court of Florida
and let them decide this issue. But I think that based upon what they
said in their opinion last night, they are going to leave the decision
in the hands of the Palm Beach County vote counters. 
PAM
KARLAN: Well, I think legally Al Gore probably has more to be happy
about. In a practical sense I would imagine that George Bush does. Here's
the thing about the dimpled ballots: Some dimples you can tell there's
a dimple and what it means. I mean, I have dimples and you can see them.
Other people might have dimples that you can't really see, internal
dimples, virtual dimples. And I think the real question here is making
sure that the will of the voter is recognized. If, for example, you
had to take the most simple case, a Chad that was hanging by a single
thread, it wouldn't be ambiguous what that voter intended to do, and
it may be that some dimples are equally unambiguous, and if that's so,
those votes should be counted.