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Gore Campaign Observer Warren Christopher and Gore Campaign Lawyer David Boies Hold News Briefing; Announce Appeal of Recount RulingAired November 17, 2000 - 1:01 p.m. ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
NATALIE ALLEN, CNN ANCHOR: We want to take you straight live to Tallahassee. Warren Christopher, spokesman for the Gore camp.
(JOINED IN PROGRESS)
WARREN CHRISTOPHER, OBSERVER FOR THE GORE CAMPAIGN: ... and directed by the Florida Supreme Court yesterday.
The counting, indeed, is going forward today in Broward and in Palm Beach counties.
We continue to believe that Secretary Harris was wrong to certify the election result before the recounts were completed. To the extent that Judge Lewis' decision today is contrary to that, we believe it incorrect, and we will be appealing it to the Supreme Court of Florida.
We'll ask the court for a hearing and decision at the earliest moment, tomorrow if possible.
I must say, I think most observers have thought this matter would end up in the Supreme Court of Florida, and we expect and hope that it will.
If Secretary Harris goes forward tomorrow, we believe that such a step before the authorized recounts have been completed would be a mistake. It would frustrate the will of the people of Florida. It would risk her acting contrary to Florida law, which requires her to declare a winner only after it has been determined which candidate has received the largest number of votes.
If she does go forward tomorrow, we will take steps to have her action set aside or reversed. The winner in Florida should be and must be the person who received the greatest number of votes under a full, fair and accurate count.
Let me add just another word. What we're talking about here is the presidency of the United States. It's of enormous importance to the people of Florida, the United States and the world as a whole. We'd be making a very serious mistake, I think, if we permitted the desire for an early result to compromise our basic standards and principles. I think we must not let expediency overcome our fundamental precepts and principles.
Now I'd like to ask Mr. Boies to say a few words about the basis of our proceeding in the Supreme Court of Florida.
DAVID BOIES, GORE CAMPAIGN ATTORNEY: Thank you.
We will be filing later today an appeal of Judge Lewis' order to the Florida Supreme Court. As I think most of you know by now, in order to that, you first have to go to the intermediate appellate court, get the intermediate appellate court to certify this as a matter of great public importance, and then take the appeal to the Florida Supreme Court.
In addition to that, we will be, to the extent that the certification takes place, attempting to overturn that certification. There have been two issues that have been discussed in the briefs that have been filed. One of those issues has been presented for decision thus far; a second will be presented for decision soon.
The decision that has been presented for a decision thus far, and which Judge Lewis ruled on this morning, is when can the certification be made. And what Judge Lewis did today is to say that that certification can be made when the secretary of state in the secretary of state's discretion decides to make it. We will be challenging that ruling in the Florida Supreme Court.
The second issue is, assuming that the certification is validly made in terms of timing, does the certification reflect in Judge Lewis' words, and he quotes from the statute, "the rejection of a number of legal votes sufficient to change or place in doubt the result of the election." And Judge Lewis holds that that is a second basis for challenging what the secretary of state has done. That is a basis that is not yet been considered, either by Judge Lewis or any other court, and, in fact, could not have been, because that objection to the certification only takes place after the certification is actually issued.
Up until now, we have been attempting to convince the secretary of state and Judge Lewis that the certification was premature. We will continue to urge that to the Florida Supreme Court.
In addition, we will be saying now, to the courts, you've got to look at the substance of the certification, you've got to now address the issue of whether that certification involves, in the statutory words quoted by Judge Lewis, quote, "the rejection of a number of legal votes sufficient to change or place in doubt the result of the election," close quote. And we think that that standard is a standard that, just from the evidence that's already on the record, demonstrates that the secretary of state's certification that was made as of last Tuesday, and the certification that apparently the secretary of state intends to make on Saturday, would be improper under Florida law.
I'd be happy to take any questions.
(CROSSTALK) QUESTION: Mr. Boies, can I ask you a legal question and then ask the secretary a political question? Let me ask you a legal question.
BOIES: That's a good division of authority.
QUESTION: Do you believe that you can get a court here in Florida to stop Secretary Harris from declaring a winner before she plans to do so tomorrow?
BOIES: I don't think that the issue that is really presented is whether she declares the winner tomorrow or not, because, for one thing the section that I was just talking about, Section 168 that Judge Lewis relies on, can only come into play after she does that. In other words, the standard as to whether or not she has rejected a sufficient number of votes to cast in doubt the accuracy of the election is something that only comes into play after she certifies.
Whether or not the Supreme Court will act between now and the time she certifies I think is uncertain. We're going to file our papers right away. The Supreme Court, I think, will try to consider this promptly.
But I don't think that, from a standpoint of the legal case, it is significant whether they rule Saturday or Monday or Tuesday, because that is an issue that can only be raised after the certification is raised.
QUESTION: Can I ask a political question of Secretary Christopher? I understand that legally, if she does indeed certify the election, you'll fight that in court, but as a political matter, once she declares Governor Bush, if indeed that's what happens, the winner here in Florida, and he presumably accepts the presidency with enough electoral votes to do so, isn't that a tremendous burden on Vice President Gore to then keep fighting?
CHRISTOPHER: Well, David, first let me emphasize I still have my membership in the bar, and I'm not -- don't regard myself as a politician, not as a practicing politician.
I would say that there is a tremendous burden on all involved in this process to try to make sure that the next president has the legitimacy and carries forward with the confidence of the people of the United States. And I think taking this matter next steps to the Florida Supreme Court would tend to enhance legitimacy of Governor Bush, if he is ultimately the winner. Anything that would detract from that legitimacy I think would be unfortunate, and for that reason I hope they won't go ahead with the certification tomorrow.
I, among many others, have no reason at all to want to delay this process. We'd like to see it come to an end as soon as possible. But we don't want to have it come to an end with a rush for judgment that would leave many questions out there.
Wouldn't it be unfortunate if this matter were concluded by her action tomorrow, and then the Supreme Court of Florida were to reach a different conclusion at some time in the future? Or, indeed, that it turned out that Vice President Gore had received more votes in Florida than Governor Bush?
So I think the plea that I have is that we take time, that we wait just these few days necessary to reach a result that will enhance the legitimacy of the next president of the United States.
QUESTION: So what would you urge Governor Bush to do or not do tomorrow?
CHRISTOPHER: I think I've made it as clear as I can on that subject. I hope that Governor Bush will not attach finality to tomorrow's result, will not begin the partying, but will give the Florida Supreme Court an opportunity to act in the matter.
BOIES: Let me just add a legal aspect to that.
Everybody has been saying, I think the lawyers as well as the media, that this was something that was going to end up in the Florida Supreme Court. Until Judge Lewis' opinion today, the Bush camp was saying this was a matter that was going to end up in the Florida Supreme Court.
And I think it would be premature, from a legal standpoint, to say this issue has been resolved based on the decision of a trial court before the Supreme Court has had an opportunity to decide this issue.
This is an issue that is important enough to be decided by the Florida Supreme Court. It will be decided by the Florida Supreme Court.
Everybody wants finality, but the difference between waiting two or three days to get a final answer from the Florida Supreme Court and prematurely declaring victory because you have at the present time a trial court that decides in your favor, I think as a legal matter is not a close call.
QUESTION: ... might it end up there?
BOIES: Anything is possible, but this is basically a question that's going to be decided under the Florida law, the Florida election law, and that is something for the Florida courts to determine.
QUESTION: On the matter -- one follow-up, sir, one follow-up, sir. On the matter of the certification, can you explain again, perhaps in lay person's terms, why you're not seeking a preliminary injunction to stop certification? That's both a legal question and a political one.
BOIES: Well, from a legal standpoint, there are two grounds that we are going to seek relief from. One of those grounds, that is the contest of the election on the grounds that it involves a rejection of a sufficient number of votes to cast the results of the election in doubt, is something that can only be considered after you have the certification. So that if we want the court to consider that issue, we either have to direct that exclusively to the certification that took place as of 5 p.m. on Tuesday, or it would apply to both that certification and the certification that's expected on Saturday. So you have to make a choice there.
The second issue is that I think you can only get a preliminary injunction if you can show that there is going to be some kind of irreparable harm. I think that since the Supreme Court has the power to vacate any certification, if it concludes that it is inconsistent with Florida law, and since the electors aren't going to meet, nothing is going to happen over the weekend except maybe some premature partying, I don't think that the Florida Supreme Court would necessarily view that as irreparable injury.
QUESTION: Mr. Boies, aren't you saying that you won't be able to argue that the election would have gone another way until you're sure of that? So that might not be, in fact, Monday or Tuesday or even next week. If these counties count at the rate they're going, you might not be able to make that claim, that Al Gore would have been president had these manual recounts been included, until maybe 10 days from now, right? Which makes it harder politically, correct?
BOIES: Well, remember that the statutory standard is the rejection of a sufficient number of legal votes sufficient to change, which is really your point, or place in doubt, which is also in the statute, the results of the election. And we think that the evidence is already pretty clear that the number of votes at issue here would certainly place in doubt the results of the election.
I think you're exactly right, that the more days that pass, the more information we have on the recount. And I think you're also right, if it's an implication of your question, that it would be desirable to have this litigated after we have those results. And that's only a matter of a few days.
Unfortunately, the secretary of state holds in her hands the power to prematurely precipitate this battle, because, thus far, she has indicated that she intends to certify the numbers, in terms of electoral -- the votes, not the electoral votes, but the votes tomorrow. If she does that, then we have to address it at that time, and we don't have the ability to wait.
We obviously urge -- although our urgings have not necessarily been, thus far, entirely successful with the secretary of state -- we obviously would urge the secretary of state to wait the few days that is necessary to get those votes counted.
Once those votes are counted, then she can make whatever decision she makes, and then it can be tested under the law.
If she acts prematurely, we'll have no alternative but to contest that.
QUESTION: Mr. Boies, if I could as a follow-up, please. Wouldn't it be...
QUESTION: ... about the will of the people. In addition, it's not about the will of the people.
QUESTION: May I ask a follow-up, please?
QUESTION: You need specific examples of violations of election procedures. What evidence do you have that those procedures were violated?
BOIES: I'm sorry, could you repeat that?
QUESTION: In addition to raising doubt about the will of the people being expressed, the case says you also need to show specific examples of election procedures being violated. Do you have any evidence that the election procedures have been violated?
BOIES: That's not what Section 168 says.
QUESTION: That's exactly what it says, and that's...
BOIES: No, no. Beckstrom was a case that involved a different factual situation. It did not limit Section 168 to that situation. There are alternative grounds for an election contest.
Remember, this is not a protest. The protest takes place before certification; the contest takes place after certification. There are different legal standards for a protest and a contest.
The protest standards are in 166. We've probably talked about that enough for all of you to pass the bar. The criteria of the contest are in 168. And Judge Lewis, in his first opinion, describes that on page 8, and he says one of the specific itemized grounds for such a challenge -- that is, a contest -- is the, quote, "rejection of a number of legal votes sufficient to change or place in doubt the result of the election," close quote.
And we believe that we'll be able to meet that standard. Now, we may be able to meet other standards in the statute as well, but we believe we can at least meet that standard.
Somebody got cut off here.
QUESTION: Have you decided yet whether you will wait to claim that the manual recount would change the result -- which means you'd have to wait until all the numbers are in and you'd have to wait until Vice President Gore has exceeded the total of Texas Governor Bush, and by that time the overseas ballots would have been counted -- or do you plan to file simply saying that it might or could change the result, which would require waiting less time?
BOIES: We plan to file this afternoon. That is, we plan to put these issues in front of the court at this time.
We don't believe that the statute requires absolute proof. Indeed, the language is inconsistent with that. If the court required absolute proof, the court probably would not decide it until after the recount was finished. However, two of the grounds of appeal do not require by any reading a requirement of showing that it absolutely would affect. It is the disregard of legal votes that would cast in doubt the results of the election -- that's the standard of 168 -- or it is votes that could affect the result, not necessarily would, but could is the language of the statute in section 166.
QUESTION: ... to the Circuit Court under the statute, though?
BOIES: Yes. One of the things that we have said, is that these issues have got to be raised in the lower court or courts prior to the time that the Supreme Court hears them.
Now, the Supreme Court has broad jurisdiction under the All Writs stature. The Supreme Court also has pending before it the Palm Beach County action that we have intervened in, in which the Supreme Court issued its opinion yesterday. So the Supreme Court will have before it a number of matters.
However, one of the steps we're taking this afternoon is to go to the intermediate appellate court and say, "Certify the appeal from Judge Harris' order to the Supreme Court as a matter of great public importance."
QUESTION: You sound like you don't have a lot of confidence that the absentee votes that are going to be counted tonight and tomorrow are going to help your -- are going to produce a win for Mr. Gore.
BOIES: I don't think it's a question of whether you have confidence in the absentee ballots or not. I think this is a question of whether the votes that were actually cast on Election Day here in Florida should or should not be counted.
We believe that it's important, particularly important in a presidential election, particularly important in a presidential election that's as close as this, that the votes that were actually cast be counted. And that's true, regardless of what happens in the absentee ballots.
QUESTION: So, Mr. Boies, you will continue to pursue this, even if she certifies Al Gore the winner tomorrow?
BOIES: Well, as I think Secretary Christopher said, we hope she will not act prematurely. If she acts prematurely, we will act to set that certification aside, both on the grounds that the certification was premature and on the grounds that the certification violated Florida law in the sense that it involved the rejection of a sufficient number of votes that would have changed or could have changed or would have at least placed in doubt the results of the election.
STAFF: We'll take two more questions.
QUESTION: ... tomorrow and if so, wouldn't that be another procedural hurdle if the governor takes action and appoints these electors to the Electoral College?
BOIES: I'm sorry, could you say that again?
QUESTION: After the secretary's certification, which you're expecting, could Governor Bush then appoint the electors to the Electoral College? And wouldn't that represent another hurdle for you to overcome?
BOIES: There is a declaration of the electors that has to be made. However, that declaration is something that applies a very similar standard to the standard that we've been talking abut. It's an additional standard, and it again requires that that declaration declare the electors of the candidate that got the most votes.
Here, we believe that the failure to include the manually recounted votes would be inconsistent with that statutory provision, as well.
QUESTION: ... premature for the secretary to certify tomorrow, but from people watching at home and seeing both sides, they've heard political parties, you know, debating this.
A court now had said that she was correct on the Tuesday deadline. They then said that she seems to be correct in not taking in the manual recounts. And is there anything out there, from a legal matter, anything at all that stops her from certifying tomorrow, that's out there?
BOIES: Well, I think what you have to do is look at the point that I think everybody has said from the beginning, which is this is a matter that is going to be decided by the Florida Supreme Court.
Yes, Judge Lewis made a decision yesterday that we think supports the secretary of state. It was not the decision we were looking for. On the other hand, we disagree with that decision, and we believe that the Florida Supreme Court will reverse that decision and will do so promptly.
And you don't sort of call the end of the game after the first inning or the second inning if you get ahead; you wait for the entire game to be played. And this is something that will be resolved in the Florida Supreme Court. It's a matter, again, of days not weeks.
I think when people talk about a court or the court deciding something, it's terribly important that the American people understand that there are a number of courts in the state of Florida that have dealt with this issue.
For example, a circuit court in Leon County, Judge Lewis, has made a decision. That decision favors the secretary of state in some respects.
A circuit court in Broward County has enjoined the certification of those results on the grounds that the manual recount has not been done, and it's illegal under Florida law for those results to be certified without that manual recount being decided.
What you have is you have conflicting decisions by trial courts, by circuit courts. The way you resolve that is in the Florida Supreme Court.
And I know it's easy and I know to some extent it may be necessary to simplify this and talk about "the court ruling this way" or "the court ruling that way." But I think it's very important that the American people understand that what you have now is you have lower court decisions, and those decisions are being appealed to the Florida Supreme Court, and at the Florida Supreme Court, they will ultimately make that decision.
STAFF: Thank you.
ALLEN: All right, I hope you kept up with all of that. There is a lot to take in. David Boies, Warren Christopher reacting to the state court judge in Tallahassee today who said the secretary of state did not abuse her discretion, when she refused to consider recount results from four Florida counties.
Warren Christopher announcing they will appeal later today to the state supreme court and, also, they believe that it's not an issue whether Katherine Harris declares a winner tomorrow, because as the Gore camp sees this ruling by the judge, one of the standards laid out, can only come into play after the election is certified. That standard relates to the closeness of the race and that, according to the Gore campaign, would bring in those hand recounts, bring those into play as well.
Also, if certification does take place, they will attempt to overturn it as we just mentioned.
For more now on this development let's go over to Lou.
LOU WATERS, CNN ANCHOR: We are in the early legal innings, David Boies seemed to saying. He said the game is not over.
Greta Van Susteren, I am still working on my law degree. But until I complete a few more courses, I will call upon you to get to the bottom line here, which seems to be, still, those recounted vote, whether or not they will be allowed.
GRETA VAN SUSTEREN, CNN LEGAL ANALYST: That's right, Lou. And what we have here is David Boies saying that, although they lost this morning, they didn't really lose. And in some ways, he's right because the law in Florida provides as follows. Look the Gore people would have much rather have won this morning before the judge in Tallahassee, which ordered the secretary of state to consider the hand counts, but it is not over.
They are going to take that on an emergency basis to the Florida Supreme Court. But sitting in the wings, what David Boies was talking about, was something much -- was something else and even after the certification, there still is an avenue where Vice President Al Gore can seek a remedy, assuming that he is indeed the winner. And at this point, we don't know who really is the winner down here because we haven't completed the hand counts, and we have got the absentee ballots.
But, having said that, if the vote is certified, and we expect that it will be certified, under Florida law, there is something called a contest of election. That's where the candidate, post- certification, challenges the certification, in essence, challenges, claiming that he is the winner and not the other person.
And what you must show at that time is that the votes that were rejected could have effected the result of the election, meaning that the person who has been declared the loser is really the winner. That's something that happens after certification.
But, in the meantime, the Gore people still want to seek relief in the Florida Supreme Court, ordering the secretary of state to consider any of the hand count votes. So they are going in both directions, in an effort to seek the relief that they ultimately want, which is to have all the votes counted that they claim should be lawfully counted. Although the Bush campaign says all the lawfully counted votes have been counted. So there's where we are.
WATERS: Is there any reason for the Democratic team to suspect that the Florida Supreme Court is going to rule on anything any time soon, say, at a time prior to this certification that secretary of state has promised for tomorrow?
VAN SUSTEREN: I think there's a reasonable possibility that the Florida Supreme Court could rule ahead of time. I mean, all the courts across the country, not just in Florida, but are set up for emergency proceedings. And courts frequently step in on emergency matters. We saw it in federal court on Monday, when the Bush people on Saturday had filed a request for an injunction and they got a hearing two days later, which -- this is even over a holiday weekend -- but courts can move very, very quickly when they have to.
You oftentimes see, like in state courts, when someone needs a blood transfusion and is refusing it, you see judges who come to the hospital and they will rule right on the spot in the hospital about whether the person must have a blood transfusion.
So courts can move fast when they have to, when they think it is appropriate.
WATERS: Well, let's stay on our toes today. The civics lesson definitely is not over yet. Greta Van Susteren, down in West Palm, keeping watch. TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com
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