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Morning News

Election 2000: Emory Law School Professor Discusses Issues Before Florida Supreme Court Today

Aired November 20, 2000 - 11:49 a.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

LEON HARRIS, CNN ANCHOR: The presidential ballot battle in Florida has raised a lot of questions about legal jurisdiction.

Joining us now to talk more about that issue, Richard Freer, Emory Law School professor here in Atlanta. He's an associate dean and a civil procedure law professor we should mention.

RICHARD FREER, EMORY UNIVERSITY LAW SCHOOL: Nice to be here. Thank you.

HARRIS: Good to have you back with us this morning.

FREER: Thank you, Leon.

HARRIS: Give our folks at home this morning, in the time that we have got remaining today, an idea of how things are going to proceed this morning.

FREER: I think it's very important that folks understand that what goes on in that courtroom is not going to look at all like courtroom scenes that we are used to from television and from the movies. There are no witnesses. There is no jury. There is no presentation of evidence. And there is no cross examination of anybody.

What we have is one lawyer at a time, standing in a podium, addressing the seven justices of the Supreme Court of Florida. And that lawyer has a very tough job. That lawyer is trying to get through the argument, which has already been made in writing. They're trying to emphasis their strongest points from their briefs, and they will have a game plan. They will go up there, and they will want to make points A, B, C, D and E.

The problem is that those justices up there on the bench can all fire away with questions whenever they want. And so the lawyer's job -- and let's watch for this -- the lawyer's job is to field the question, answer the question, but then get back into his game plan, where he walks them right through.

HARRIS: And they get only one hour to do all this.

FREER: There is one hour per side, which is actually quite a long time for an oral argument of this sort. We are only dealing with questions of law here. Indeed, it is very unusual, even at the Supreme Court of the United States, to get more than half an hour on a side. So this is a lot of time. They will divide it amongst the lawyers on the team. And the Gore people go first because they are bringing the appeal, they lost in the trial court. They will probably reserve five or 10 minutes of their one hour for rebuttal so they can address the court after the Bush people talk.

HARRIS: All right, but you are saying this is going to pretty snooze TV. We don't want to advertise that because we want folks to watch it here on CNN.

FREER: This may not be the most scintillating thing in the world. Now, it will get interesting when some of the questions from the bench, and one of the great games lawyers always play is to try to figure out from the body language, from the grilling from the justices, which way are they leaning, I think it's impossible to predict. But mostly they are going to be talking about fairly non- scintillating, fairly technical issues of law under the Florida statute.

HARRIS: Explain to us, then, in laymen's terms so we can all understand, what you think might be the key issues that have to get addressed today.

FREER: I think what happens is we are going to end up talking about three statutes. The Democrats generally are going to want to make the approach, and make the focus of attention much broader than that. They are going to talk a lot about the will of the people and the right to vote; the Republicans are going to try to focus more on these statutes. And I do think much of the questioning will be about these three statutes, very quickly: there is section 102.111 -- we are going to sound like tax lawyers here with all these numbers -- but section 111 says that, as of 5:00, seven days after the election, those results from the counties must be in. It's mandatory language. It says "shall"...

HARRIS: That's the deadline.

FREER: That is the deadline. And it says that the secretary of state shall ignore any that come in after that. And so it's an absolute deadline, and "shall" is a mandatory word. There is no discretion.

HARRIS: But there is a competing thing there.

FREER: Exactly. The very next clause in the statute, Section 112, says: Reiterates the same rule, imposes a fine on these people for being late, and then says, if you are late, if you are past 5:00 on that Tuesday, those votes may be ignored. Now the word "may" is a discretionary word and that gives the Florida secretary of state the discretion to extend that 7-day period. Nowhere, however, does it tell her how to exercise that or what the factors are.

The Democrats will argue that section 166 -- yet another code section -- is, in essence, a requirement that she extend that period, because it allows for the manual recounts.

HARRIS: All right, that is it folks. You got a preview here. Of course live coverage is going to be here on CNN this afternoon at 2:00 p.m. That is when it begins.

And tune in here to see whether or not it is exciting television or not. You make the call. Richard Freer, thanks much for your time.

FREER: Thank you.

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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