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| LEGAL ANALYSIS | |
 December 8, 2000  |
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Former Florida Supreme Court Justice Gerald Kogan and law professors Pam Karlan and John Yoo discuss today's momentous Florida Supreme Court rulings.
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MARGARET WARNER: For analysis of today's stunning decision,
we're joined once again by former Florida Supreme Court Justice Gerald
Kogan, who retired from the court two years ago; Pam Karlan, a professor
and election law specialist at Stanford Law School; and John Yoo, a
professor at Boalt Hall Law School at the University of California,
Berkeley.
MARGARET WARNER: Were you stunned, Pam Karlan, at the ruling?
MARGARET WARNER: And, Justice Kogan, what did you think when you heard it? GERALD KOGAN: Well, to be quite honest, I was not surprised. I know these people, and I know the way they think, and to me, their underlying principle has always been all the way through this and that is that every vote must count. So when this decision came out the way it did, I was not surprised. Now, of course, whether or not all of this can be accomplished before the December 12 deadline, I don't know. Also I don't know what's going to happen if it isn't and the state legislature has to come through on this particular problem. I thought, you know, yesterday, that we were only a few days away from a final solution to this problem. But now I think we're a lot farther away than I realized. |
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| Legal votes must be counted | |||||||||||||||||||||||||||||
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JOHN YOO: This is the 4-3 decision with a chief justice actually writing a very powerful dissent which I assume we'll get to later. What they said is exactly what Justice Kogan said. They placed the principle that if there is a legal vote out there, it must be counted. Every legal vote must be counted and they raise that into the overriding principle that is to infuse the interpretation of all other state election laws, and there is a phrase they use where they say "this principle counts whether we're electing the county commissioner all the way up to the President of the United States." And they start the opinion with a sort of perfunctory citation of the federal statute 3 USC Section 5, which was of great concern to the Supreme Court. They barely mention again in the whole rest of the opinion and, in fact, as Pam Karlan said, they seem to trust in the ability of the local canvassing commission and electoral votes to count the votes fast enough in order to meet that federal deadline. The problem is, as several of the dissenting judges mentioned, there are a lot of problems and questions they didn't answer as to how to actually count those votes. For example, there is no discussion of what standard to use. Judge Sauls, after the case goes back to him, could say I'm not going to count any hanging chads at all. There has to be a clean punch hole though the ballot until I count it as a legal ballot. There is no discussion of that standard anywhere in the opinion. This is going to create even more problems because it will probably have to come back on appeal to the Florida Supreme Court at this point. MARGARET WARNER: Pam Karlan, how did you read the way the court addressed the question of the standard? They did say they were citing the legislature that a vote shall be counted where there is a clear indication of the intent of the voter. Haven't we just spent the last four weeks with various people all interpreting that differently? PAM KARLAN: We have. And two things about what the Florida Supreme Court said -- one is that they really I think did listen to the U.S. Supreme Court. So they keep trying to wrap themselves in the statutory language, in what the legislature directed be done. So almost every other word out of the Florida Supreme Court's mouth is "and the legislature has told us in the statutes did we mention that the legislature has told us to count the votes" -- and so they really want to stick to the legislative standard, which is just this clear intent of the voter. I think we get some insight into it from the fact that they upheld the Palm Beach County canvassing board's decision not to count the dimpled chads -- that is, there were a number of votes the Gore team tried to get the Florida Supreme Court to count which hadn't been counted by the Palm Beach County recount. And the Florida Supreme Court said no, we're not going to say that that was a mistake. So they have narrowed down substantially what counts as a clear intent of the voter, although they haven't set up their own standard because, as they would say, did we mention, the legislature told us this is the standard. So I think they are really trying to make it clear to the U.S. Supreme Court that all they're doing here is interpreting the existing Florida statutes. MARGARET WARNER: Justice Kogan, you're our man on the ground there. Help us through the practicalities of this. We're told by the Associated Press, there are about 180,000 of these under votes state-wide, that is votes where the ballot went through the machine and didn't register a vote for president. Who is going to count these? How is it going to be done?
MARGARET WARNER: But you agree with John Yoo that this probably busts the December 12 deadline or risks busting it? GERALD KOGAN: Well, you certainly risk not complying by December 12. As I said before, I thought we would be finished definitely by December 12. Now I'm not so sure. |
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| Bush's legal options | |||||||||||||||||||||||||||||
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MARGARET WARNER: All right. Professor Yoo, what does George W. Bush do now? What are his legal options? JOHN YOO: He is going to appeal this case to the Supreme Court. He is going to do two things. I think the first thing he will do's appeal for an emergency stay of the Florida Supreme Court's decision so they have time to get a cert petition to the Supreme Court. There are several federal issues that are mentioned in the opinion. In fact and I want to go back to this, I think this remarkable dissent by the Chief Justice of the Florida Supreme Court who essentially invites a review by the U.S. Supreme Court -- he states quite clearly in his dissent that he believes that the laws have now been changed by the Florida Supreme Court in violation of federal law and in violation of the federal constitution. This is a remarkable thing for a chief justice of a state Supreme Court to do, to invite Supreme Court review. So essentially what will happen is I'm sure the Bush campaign will quote a lot of the language from the dissent in a cert petition to the U.S. Supreme Court and they will say that the Florida Supreme Court has violated the federal statute which requires some choice by December 12, and that it doesn't seem consistent with the earlier Supreme Court opinion which vacated Florida's opinion earlier this week.
PAM KARLAN: Well, I think his prospects for stopping the recount right now are not particularly good. And the reason for that is that he would first appeal to Justice Kennedy for a stay because Justice Kennedy is the circuit justice for Florida. And one of the things is if Justice Kennedy issues that stay, it is as good as saying the election is over because if there is a stay now, there is no way those ballots will be recounted. And I think the pressure to have a single Supreme Court justice determine the outcome of the election without briefing and without oral argument is extremely high. So although I wouldn't gain say Governor Bush's chances of getting U.S. Supreme Court review again -- I would be surprised if they stopped the whole process now when stopping the process actually is to make the decision without briefing and oral argument and the like. And I should say here also I thought Chief Justice Wells' opinion was not all that extraordinary. So I guess I disagree with John Yoo a little. Dissenting justices in state Supreme Courts all the time claim that what the majority did was to violate the federal Constitution or misinterpret federal constitutional law because that's the only way of getting more reinforcements on their side so it is not an atypical dissent in that sense, I don't think. MARGARET WARNER: Justice, Kogan, how do you view George W. Bush's prospects for appeal here? GERALD KOGAN: There is no way for me really to assess how successful he is going to be. I agree with our last member of the panel that it doesn't appear to me that the Supreme Court would issue a stay order and prevent this from continuing pending their review because they're also mindful of the fact that December 12 looks like the cut-off date to all this. So I think they will probably entertain this and want to make a decision on it. But you know, there is something that we're unaware of. We don't know how that court breaks down. And when they heard this the first time around, I'm sure they took a vote. And it impressed me that this particular decision of theirs came down the way it did because they wanted that to be unanimous but yet they were afraid if they went to the exact merits of the issue, it might not be. So I don't know what the votes are up there. It may be, you know, 3-3-3, it might be 5-4, 6-3, nobody really knows. So a lot depends upon where they are in their minds at this time as to how they view the merits of this particular case. MARGARET WARNER: Professor Yoo, last night we discussed in a similar panel, a couple of you said most of the judges in all this have been trying to avoid being "the" person who chooses the next president. It does sound as if it's going to end right back up at the U.S. Supreme Court, doesn't it? JOHN YOO: I think it does. And the Supreme Court clearly hoped that this was all going to go away, that a 9-0 decision, which was trying to hint to the Florida Supreme Court, please don't send this back here -- please settle this will now -- we don't want to have to see this ever again. The Florida Supreme Court essentially threw it back into their court and said it's your problem now, not ours. And I think the other thing to keep in mind is regardless of what the appeals go through here the Florida Supreme Court, if it does allow this process to go past December 12, triggers a lot of possibilities in the political arenas now as well. And that may continue well past that December 12 date we were all hoping was going to be met and this would all be over. MARGARET WARNER: All right. Well, Professors Yoo and Karlan and Justice Kogan, thank you all three again very much. JIM LEHRER: Please note the full text of today's decisions and audio of all the lawyers arguments are available on our Web site. |
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JOHN
YOO: I'm frankly stunned. This is an overwhelming victory in the Florida
Supreme Court for Vice President Gore. I also think that the Florida
Supreme Court has opened up a whole Pandora's Box of different political
actions that are going to occur now. Essentially what happened here
is that the Florida Supreme Court seemed to brush aside the United States
Supreme Court's concerns that they were going to interpret state election
law to run into the December 12 deadline, and instead ordered a recounted
which does run a serious risk of violating the December 12 deadline.
If that happens, then I think it is very likely the Florida state legislature
will become involved and it also triggers a whole series of possibilities
in which the United States Congress will now have to vote on whether
to accept Florida's electoral votes, meaning that this may really not
get resolved until early January now. 
PAM
KARLAN: I was a little surprised because I wasn't sure how the Florida
Supreme Court was going to handle the question of what the remedy was.
It seemed to me after reading Judge Sauls' opinion that he made several
significant legal errors, and I expected the Florida Supreme Court to
say he made those errors. What surprised me is their confidence that
they can provide a remedy and provide the remedy quickly. But they do
seem to think that by enlisting the entire Leon County supervisor of
elections office and some designees they can get the state-wide undercount
counted by the December 12 deadline. 
MARGARET
WARNER: John Yoo, I know that those of you who have had a chance to
read it, we've all had to speed read it, but you say they seem to just
brush aside the U.S. Supreme Court's concerns. What was really the rationale
of the majority, which we should emphasize was only four of the seven
justices? 
GERALD
KOGAN: Well, the ballots from Palm Beach County and from Dade County
are up there in Tallahassee, so can I see how court personnel and election
personnel in Leon County can count those. However, for the rest of the
ballots, you're going to have to rely upon the election officials in
those counties that use the punch card method. I really don't know how
you're going to organize those people or even notify them, you know,
to start immediately to do that. I don't know, I have not seen the opinion,
so I don't know whether or not the opinion sets forth how this is going
to be done. 
MARGARET
WARNER: Based on the U.S. Constitution saying the legislature shall
determine the manner in which electors shall be chosen. Pam Karlan,
your view on Bush's prospects for appeal, both for stopping the recount
immediately -- do you think he has grounds for that how does he do that
-- and the larger grounds? 