Tuesday, November 21, 2000
Following is the transcript of Bush adviser former Secretary of State James A. Baker III's news conference on the Florida Supreme Court's opinion.
JAMES A. BAKER III: Good evening, ladies and gentlemen.
At Monday's oral argument before the Florida Supreme Court, Justice Harding asked a key question about Florida's electoral laws and standards. He said, "Is it right to change the rules in the middle of the game?"
The Florida Supreme Court and some Democratic county electoral boards have decided to do just that. In keeping with Section 4 of Article II of the United States Constitution, Florida's legislature enacted a detailed statutory system for voting, for recounting, and for certifying results of elections. This statutory system reflects careful decisions about the separation of powers among various branches of government. It also strikes a balance between Florida's interests in achieving finality, and in permitting multiple recounts by various methods.
Today, Florida's Supreme Court rewrote the legislature's statutory system, assumed the responsibilities of the executive branch, and side-stepped the opinion of the trial court as the finder of fact.
Two weeks after the election, that court has changed the rules, and has invented a new system for counting the election results. So one should not now be surprised if the Florida legislature seeks to affirm the original rules.
In addition, the Gore campaign is working to try to change the counting rules and standards in the three counties that are still manually recounting so as to overcome Governor Bush's continuing lead after all of the counts and recounts.
Statistical experts have indicated that, based on the results so far, unless the counting standards are changed, there won't be enough votes to overcome Governor Bush's lead. So they now argue that a punch card vote should count even if there appears to be only an indentation.
This is, of course, is the famous dimpled chad.
And at least one of the Democratic-controlled county election boards has already decided to use this new standard and the others are considering it.
No hole in the ballot is necessary, not even one loose corner is necessary, not even seeing any light through the ballot is necessary. Even if a voter decided not to make a choice because he or she could not decide between two closely competitive candidates, the Democratic county election boards can divine a choice based on an apparent indentation.
This new standard for manual recounts directly contradicts a guideline issued on November 2, 1990 by Theresa LePore, the Democratic supervisor of elections for Palm Beach County. In that statement, Ms. LePore wrote, and I quote, "but a chad that is fully attached, bearing only an indention, should not be counted as a vote," close quote.
All of this is unfair and unacceptable. It is not fair to change the election laws of Florida by judicial fiat after the election has been held. It is the not fair to change the rules and standards governing the counting or recounting of votes after it appears that one side has concluded that is the only way to get the votes it needs. And it is also not fair to refuse the count even once the ballots of many of our servicemen and-women overseas. It is simply not fair, ladies and gentlemen, to change the rules, either in the middle of the game, or after the game has been played.
Therefore we intend to examine and consider whatever remedies we may have to correct this unjust result.
QUESTION: Secretary Baker, first of all, can you be more specific about what the Bush team might do now in the way of an appeal or some other challenge? And second of all, when you alluded to the Florida legislature, what relief would you seek from the Florida legislature?
BAKER: Well, I'm not suggesting that we are seeking relief--we've made a decision to seek relief from the Florida legislature. But it does occur to me that the Supreme Court has pretty well rewritten the Florida electoral code even though they disclaim, in the opinion, that they intend to do so. And so I would not be surprised to see the legislature want to, perhaps, take action to get back to the original statutory provisions that were in place initially.
I cannot tell you specifically tonight what additional actions Governor Bush and Secretary Cheney might authorize.
There are some actions that we can take. And as I indicated in my statement, I think it's incumbent upon us to consider and examine whatever remedies are available to us to reverse what we consider to be an unjust result.
Yes?
QUESTION: If the legislature...
BAKER: Just a minute; I've got a question right here.
QUESTION: If the legislature takes this up, would the Bush campaign support that, condone it?
BAKER: Depends on what they take up.
QUESTION: But if they take up a remedy as--I guess, I've heard some members talk about setting the standard. Earlier a state senator said that he felt the Supreme Court was essentially trying to undo what the legislature did.
BAKER: I think that...
QUESTION: And that's what you're saying.
BAKER: I think the legislature--some people in the legislature probably feel that the court has undone the statutory provisions that were laid out in compliance with the U.S. Constitution for the conduct of the election in Florida.
QUESTION: So if the Republican-controlled legislature then writes a bill that would redo it, would the Bush campaign support and endorse that?
BAKER: Well, I think we'd have to see what the bill said before I could answer that question for you. We'd have to see what it said. I can't give you a carte blanche answer here today.
Yes?
QUESTION: If you're behind on Sunday at 5 p.m.--if the vote total puts you behind, would you not accept those results?
BAKER: Well, I don't know. I'm going to give you the same answer that you've been getting from the Gore campaign for--since the 8th of November: All options have to remain on the table. We have to see what the situation is at that time.
Yes, sir.
QUESTION: As (inaudible) pointed out, you've been involved in many presidential campaigns; this one looks like it's ending in a court room. I wonder, you think that's a sign of the times, and is that troubling to you?
BAKER: Yes, it does a little bit; it troubles me as I indicated right here in this room on November the 8th. But I've never been involved in any that were quite as much of a dead heat as this one. But I think it is--I think it is troubling.
On the other hand, we are a resilient nation and our Constitution and laws provide for remedies and actions and procedures in the event that a very close election like this happens. And therefore, I think it's important that we look at those and examine them and consider whether or not to move on any one or more of them.
Yes, sir?
QUESTION: Is the governor prepared to meet with the vice president now?
BAKER: You know I've talked to Governor Bush today probably three times, maybe four, but I have not talked to him since the vice president appeared on television and that's a decision that Governor Bush will make.
Yes, ma'am?
QUESTION: You said, Secretary Baker, that this is unfair and unacceptable. Would you assign political motives to the justices?
BAKER: I haven't done that. I think that I have said here that I believe that they have, in effect, rewritten the electoral laws of Florida after the contest, after the election has been held.
And I have said that they have taken over, I believe, the functions of the executive branch in Florida. I believe that they have disregarded the principle of separation of powers.
They are, in effect, telling the secretary of state that she must accept certain returns and eliminating the discretion that the Florida statutes give her.
I'm not assigning political motives, but I saying what I said in my statement. I think that they're--I think that the opinion, in those two respects, clearly overreaches and I'm sorry I have to say that, but that's my view.
Yes, ma'am?
QUESTION: If I may follow-up, if I may follow-up. So are you saying that you don't believe that they're politically motivated, just that you disagree with their interpretation of the law?
BAKER: Well, I think they've done more than interpret the law, and I suppose we disagree with the actions that they've taken which go beyond interpreting the law, in our opinion.
Yes?
QUESTION: The opinion clearly states how they've come to their ruling...
BAKER: Clearly states what? I didn't hear you.
QUESTION: It clearly states how they reached their decision, and they lay out that certain laws supersede others, that it must be written--that it must be taken in its entirety. It's not a rewriting of the law at all.
BAKER: I think that the opinion is written is a manner that it gives great--it gives great lip service to the principle that they are just interpreting the laws. They say in a number of places there: "We must leave this to the legislature to determine."
But no one can deny that they change the statutory scheme for the conduct of Florida's elections, and no one can deny that they usurp the executive branch's functions as far as the secretary of state is concerned.
I don't think many people would really argue that forcefully.
Yes?
QUESTION: Have the campaign, or Governor George W. Bush, consulted at all with Florida legislative leaders about that...
BAKER: The legislative--I haven't. I certainly haven't and I don't know--and I'm sure Governor Bush has not.
I can't tell you about everybody at the campaign. And--nor can I tell you--nor could I answer the other question here: Would we support action that the legislature takes carte blanche?
We would have to know what the action was.
Yes?
QUESTION: Mr. Boies was here earlier. He stated that he felt there was no basis for an appeal in this evening's decision. Would you like to comment on that?
BAKER: Well, I suppose if we--if we determined to perfect an appeal to the United States Supreme Court, a decision that we have not as yet made, we would disagree with that, or we wouldn't perfect the appeal.
I thought I also heard Mr. Boies say that they court relied upon an Illinois case which, in effect, blessed the standards--blessed the idea of using--of counting dimpled chads. I thought I heard that; maybe I misinterpreted that.
But if that's what he said, I would disagree with that. The Illinois case cited on page 36 or 39--I don't know which it is, but it was the Hartke case--didn't talk about dimpled chads at all. It involved hanging chads, the standard that these three counties or four counties, began using and the standard that they're not seeking to change. They're seeking to move from that standard to a more restrictive one--I mean, sorry, more liberal one, being the dimpled chad.
Yes?
QUESTION: Mr. Baker, there was some talk earlier when Mr. Boies was speaking about the possibility of the Republicans--your team--asking certain counties in Florida to go back and do a manual recount, just try to crank it out and get it done by Sunday.
Do you support that? Have you talked about that as a possibility?
BAKER: I can't answer for you tonight whether that would be one of the remedies that I mentioned in my remarks.
QUESTION: Can you rule it out?
BAKER: Well, I don't think could--I wouldn't want to rule anything out. But I certainly can't rule it in either. It's something that we would have to simply give some consideration to.
Let me just say one final word and then I've got--really have got to go. There has been a lot of talk about the Texas manual recount provision. If we were in Texas this would all be over because Texas only allows one manual recount. And it has some very, very clear and objective standards.
And the first of those is when you see light coming through, and the second of those is where you have two corners or where you have a hanging chad. And it's only in the third instance that the statute in Texas speaks about any consideration of a dimpled chad, and it doesn't say that a dimpled chad can be considered standing alone. It says it can be considered only where it also is accompanied by a clearly ascertainable intent of the voter to vote.
So there's a lot of difference between that statute and what's taking place here. And I think it's important that I point that out.
Thank you all very much.