LEGAL CHALLENGES

	November 27, 2000
	A discussion of the legal issues surrounding the presidential contest.

JIM LEHRER: Ray Suarez has more on the legal situation. RAY SUAREZ: And joining me to sort out the new cases in Florida and the arguments coming to the United States Supreme Court are law professors Pam Karlan of Stanford University Law School and Doug Kmiec of Pepperdine University who has informally advised Governor Bush's legal team. Also joining us from Florida is Jon Mills, interim dean of the University of Florida Law School. He's a former Democratic state legislator and served as speaker of the House in Florida. Jon Mills, let's start with you. In Florida, what Al Gore's lawyers began this afternoon is technically referred to as a contest. What is it? JON MILLS: Well, I think it was accurately described as once you actually have a certification of election, then a contest is timely. So the Gore attorneys are contesting this based on several criteria. They're alleging misconduct, they're alleging that legal votes were not counted and importantly they're requiring the court to determine whether if you accept all of those arguments, it could affect the outcome of the election. So you would have to prove both aspects of that; that there was either misconduct or legal votes that were not counted and that ultimately that would affect or potentially the outcome of the election. RAY SUAREZ: In effect who is the defendant here? When Al Gore goes into a Florida state court, is it George Bush and his campaign that he's arguing against or the state government itself, which certified the election? JON MILLS: The relief they're seeking in looking at the complaint was actually for the court to order the canvassing commission to change the results of the election. So I presume that that would be the relief sought would indicate the actual defendant in the case. RAY SUAREZ: Doug Kmiec as you read the statute does Al Gore's team have a particularly heavy burden going into this. JON MILLS: I don't think it will be easy to any contest of a certified election. The certified elections that have been overturned in the past have been clear results of fraud. We had the Miami mayor's race that was overturned because provably absentee ballots were filled out by individuals, and those ballots were thrown out. So I suspect you have to show both the ballots were legal and the evidence-- which they're alleging by the way, is that the Miami Dade recount could result in a 600-vote swing and a recount in Palm Beach would result in 215. So, collectively they're alleging that that could change the result of the election. RAY SUAREZ: Doug Kmiec, same question. DOUGLAS KMIEC: I agree with the assessment of Dean Mills. I think it is a very heavy burden. I think this is the... the arguments that we're seeing here are very tired, worn-out arguments; the arguments that Vice President Gore has tried before for the last several weeks. In essence, the Vice President was given an unauthorized overtime period; it was authorized only by the Florida Supreme Court. He had an opportunity to test these theories then. I don't think they'll be any more successful now. RAY SUAREZ: Pam Karlan, the way you read the statute governing contests, are there any rays of hope, sort of like the lights shining through those ballots, that the Gore team may take some comfort in? PAM KARLAN: The statutory standard is whether there were votes cast legally and didn't get counted and some of the allegations are about those and also whether there's reason to believe that had the votes been counted the result would have been different. And if you believe the allegations in the complaint, then, yes, there's a ray of hope here. You don't have to show fraud. You don't have to show misconduct under Florida law. All you have to show is that there were votes that weren't counted and that those votes, if counted, would change the outcome of the election. RAY SUAREZ: Two things though: There are votes that weren't counted and that counting them would change the outcome. Is that difficult to prove given the certified numbers in Florida? PAM KARLAN: We know what the margin is in the certified count. And so if you can show that there were more ballots that weren't counted than that amount, that's enough. So, for example, if you had one voter who filed a lawsuit and said I showed up at the polls at 7:30, but I wasn't allowed to vote because they closed the polls early, that voter might able to show that he wanted to cast the ballot and wasn't permitted to cast it, but one vote wouldn't change the outcome of this election. Several hundred votes would potentially change the outcome of this election. That's what the plaintiffs will have to show in this case. RAY SUAREZ: But the contest - go ahead Doug Kmiec. DOUGLAS KMIEC: I think we're forgetting that none of these votes were unlawfully excluded. The Vice President was given his opportunity, in each of these counties to have a recount. Some of the counties chose to have recounts; others chose not to. They had the discretion to decide under the state law. PAM KARLAN: They had the discretion, Doug, before certification. After certification, this is no longer about whether the county had discretion to count the votes or not. It's a question of whether the votes were actually cast and that's a decision under Florida law for a court to decide. DOUGLAS KMIEC: Yes, but as you know, the courts are quite deferential on these questions unless there is some showing of misconduct or fraud or other things. And unless you can show that there were, in fact, actual cast votes, not just simply voter error, that the Vice President can point to. RAY SUAREZ: Well, Dean Mills, the clock is ticking, at this moment, down to December 12 when all the electors have to be chosen. Can a contest, especially one that involves the results in three different counties with three separate points at issue, can it be wrapped up by December 12? JON MILLS: Well, if you appoint a special master or appoint a group to do the actual count, this is different now. We're now in a contest stage where a judge has control over how to do the count. We don't... we no longer are going through the canvassing boards where three members have to, by law, review this. So, in this contest phase, you may actually have an opportunity to do it in a briefer period of time if a judge decides that he wants to do that. DOUGLAS KMIEC: Ray, I think there may be an easier way out of this. It's the question you asked earlier about the United States Supreme Court. That's going to be a very important ruling because, in essence, Governor Bush is arguing that the changes in the Florida election law that the Florida state Supreme Court had made, namely extending the deadline, disregarding the discretion of the secretary of state, were unconstitutional, not authorized by the grant of power given to the state legislature, not the court. If that argument prevails, then the overtime period that the Vice President was given is essentially unlawful, and any of the recounts that occurred in the overtime period can be reasonably and properly disregarded under the law, and so the certification that counts is maybe not the one last night but the one from November 14, and that's a much sounder outcome. RAY SUAREZ: But does that really matter given the fact that we've opened a whole new process at this point before a court in Leon County? The United States Supreme Court may rule that the earlier Florida ruling was out of bounds but this seems...is this a whole new thing that would have to be responded to, in effect, by another case? DOUGLAS KMIEC: Well, the two inter-relate because, in essence, the Vice President is arguing that the flaws that he perceives in the Florida process are things that he discovered in the overtime recounting period. If those flaws are, in fact, nonexistent because the overtime period was unauthorized, then that that should cut to the quick the notion that all the votes haven't been counted. They have been counted in accordance with the law of Florida that existed on election night. RAY SUAREZ: Pam Karlan, how do you see the US Supreme Court arguments relating to what's going on now in the contest phase? PAM KARLAN: I think with all due respect, Doug Kmiec is simply wrong about this. What the United States Supreme Court is going to decide is a question of whether the Florida Supreme Court correctly engaged in statutory interpretation rather than legislation. I personally think that's what they're likely to decide. But on November 7, on November 14, as today, Florida's election law provides for post- certification contests, and the rules in those contests ask whether ballots were, in fact, cast. And that question of whether these votes were, in fact, cast for Vice President Gore or Governor Bush or someone else has not yet been resolved and nothing the US Supreme Court decides in the case in front of it is going to dispose of that question. Now, the fact that we may know that some of these ballots weren't counted because of recounts-- recounts that began, although they didn't end by the November 14 deadline-- doesn't put the genie back in the bottle. It's a little bit like the story of Adam and Eve and the Garden of Eden. Once you take the bite out of the apple you can't go back and say we no longer know what happened. RAY SUAREZ: Quickly, Doug Kmiec, take another bite out of the apple yourself. How do you respond to Professor Karlan? DOUGLAS KMIEC: I will rest with my position that I think the Supreme Court will say that the Florida Supreme Court was out of bounds and when they were out of bounds what happened between November 14 and the agony that we went through of last night, most of that can be set aside. And the interesting is we do have a certification now in Florida. I think most people say the Vice President was given his second bite of the apple, if not third and fourth bite of the apple, and he simple I'm hasn't found the votes. It's time to conclude the matter. RAY SUAREZ: Before we close, Jon Mills, a little bit about Seminole County. There it's not the Gore campaign but other citizens that are challenging absentee ballots that were filled out by a Republican operative. Can that be wrapped up quickly? JON MILLS: That has actually been removed to Leon County as well today. So I suspect they will be hearing that right away. The allegation there is misconduct, and it's one of the first where there's been a more firm allegation of misconduct, a process in sending out the absentee ballots where Republicans were invited into the elections office to fill out some of the actual blanks in those ballots that were sent properly. The question is, would that actually affect the outcome? Is that tampering or misconduct with an earlier election process, or is it actually a conduct that could affect the results of the absentee ballots? That will be a question of fact for the court. RAY SUAREZ: Dean Jon Mills, Pam Karlan, Doug Kmiec, thank you all.