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The Florida Recount: Election Hinges on Florida Judge's Decision Whether to Let Manual Recounts Proceed

Aired November 14, 2000 - 12:11 p.m. ET


FRANK SESNO, CNN ANCHOR: Now to the key county of Palm Beach, where the question now is not how long it will take to count the votes again, but whether they'll be counted by hand at all.

CNN's John Zarrella is in West Palm Beach.

And John, there's been a real story today with the judges who would or not hear this thing.

JOHN ZARRELLA, CNN CORRESPONDENT: Well, there's a flurry of activity on a bunch of legal issues. Now there are four judges who have now recused themselves from hearing the cases of the six lawsuits filed by individuals in Palm Beach County seeking for some reelection, new vote here in Palm Beach County. They'd have to go outside of the circuit if they run out of judges, and find a new judge to hear that case.

The other issue here is they stopped -- did not even start to recount here in Palm Beach County because the secretary of state said they filed -- sent in a notice saying that they do not have the legal authority here, that was her opinion, to recount because there wasn't a problem with the machines. And by her interpretation there had to be a machine problem in order to allow them to go ahead and recount, by hand, all the ballots in the county.

A differing opinion then came in from the Attorney General Bob Butterworth; he said they did have the authority. So the county has gone to circuit court seeking an opinion from a judge -- whether they have the authority to do a recount starting tomorrow morning, now, at 7:00 a.m., not today.

And the Democratic Party has also gone to court here, seeking the "dimple ballot," let's call it; that's what they're calling it. They say that they want to ask a judge to tell the election board here that they have to count dimple ballots. And what a dimpled ballot is -- because up until now, any ballot that wasn't completely punched or didn't have one corner or chad out -- if it was just dimpled, pushed in a little bit, but not punctured, wasn't being counted.

So all kinds of legal maneuverings here and, again, that big news -- back to you, Frank for breaking news.

SESNO: All right, John Zarrella; and we're going to just tell you that we're expecting the judge momentarily, Judge Terry Lewis, who's going to be ruling on the 5:00 p.m. deadline.

But also want to share something that's been reported by our senior White House correspondent John King, who's been talking with those who are in attendance at Bill Daley's meetings up on Capitol Hill, representing the Gore campaign. According to sources talking to John King, telling those Democrats that they should be supportive of the vice president's push for a Florida recount. Daley telling those in attendance that the legal wrangling here is so complicated there's really no telling what the timeline will be, and urging them to refrain from any public questioning of the vice president's position so far. So, Bill Daley still up on Capitol Hill, now over on the Senate side, as you know.

Now as we are awaiting the judge -- as I said, Judge Terry Lewis, who is to rule on this 5:00 p.m. deadline set by the Florida secretary of state for all counties to have their votes in if they're to be counted -- we go over to our legal analyst Roger Cossack.

Roger, your snapshot on this rather fast-moving day?

ROGER COSSACK, CNN LEGAL ANALYST: Well, this is an amazing day; but this is the real story, Frank, as we've pointed out. The question here becomes whether or not, and how, this statute gets interpreted. The statute which, on its face, seems at least clear right up until it says they shall report by 5:00. But as I have said, often, to lawyers, "shall" oftentimes means "may."

The issue that Judge Lewis talked about yesterday when he had the hearing on the case was, he said, doesn't it seem a little strange that we should cut the counting off at 5:00 p.m. Tuesday night when we know that there's going to be absentee ballots that are going to have to be counted that won't be here until Friday. Didn't seem, -- at that point, he said -- it makes much sense. Perhaps he was telegraphing what his decision will be.

SESNO: Roger, when we have words like "shall" and "may," are they subject to open interpretation in a court, and if so, how?

COSSACK: Well, you know, Frank, one of the things that lawyers and judges always look to is the legislative history of the particular statute. And they look back to see what the legislators were talking about when they put these words on paper, and they look back to see what the debate was.

So, are they open to interpretation? Yes, they are. As we know within this statute it says, they shall report by 5:00 p.m. a week later, but then there's a "may" part in there -- that the question is, does that only reflect to some kind of a natural disaster, or does it reflect to something that's broader, that would, perhaps, overrule this 5:00 p.m. -- what appears to be a necessity to have it by 5:00 p.m. on Tuesday?

So that's the kind of thing that the lawyers are arguing and we heard yesterday the judge even mentioned -- he said, look, we know that it's not -- that the absentee ballots aren't going to be there until Friday, so is there really this necessity to shut down this counting on Tuesday?

SESNO: Roger, one more question before we go, very, very quickly: Regardless of what the judge rules, what is the legal recourse left to the aggrieved party, if you will, after that?

COSSACK: An appeal; and I think, in Florida, Frank, that they have the option of going right to the Florida Supreme Court.

SESNO: All right, I want to go now to Broward County, where the question is how many votes should be recounted by hand.

Joining us on the phone is CNN's Susan Candiotti in Fort Lauderdale, Florida -- Susan.


We just learned a little while ago, that, in just a few minutes, at the bottom of the hour here, the Broward County canvassing board is going to be holding a meeting. The board consists of three people. This is the board that, last night, decided not to do a total hand recount of all 560,000-some votes in Broward County.

The canvassing board is meeting just prior to an emergency hearing at 2:00 this afternoon that was just agreed to and ordered by a Broward circuit judge. That was because of a request from attorneys representing the Democratic Party here in Broward County that are asking for a total hand recount. The Democrats want this because they believe that the canvassing board's decision -- voted two to one, two Republicans, one Democrat -- against a total recount.

The Democrats say that that is unfair, that the 1 percent of the votes that were recounted -- and some precincts turned up four additional votes for Vice President Gore and the Democrats are arguing that, based on that, and considering a rate of error, that a total recount could yield up to hundreds of additional votes for Vice President Gore.

Now, the Republicans are arguing that all of this is amounting to a mish-mash of various arguments. And they say that the Democrats are simply shopping for additional votes and won't be happy until the Democrats get the kind of result that they want. So we've got this hearing coming up at 2:00 and the canvassing board meeting just prior to it at 12:30.

SESNO: And Susan, do Democrats there, or Republican, either, feel that there are hundreds, potentially more than that, of ballots that were not counted or that were somehow miscounted? What do they think is at stake?

CANDIOTTI: They think that the outcome of the election is at stake. And they're arguing that in their papers filed before this judge who will be holding a hearing at 2:00. There were more than 6,600 votes that did not register any vote in the presidential race here in Broward County and the Democrats are arguing that that proves that there is fertile territory here, potentially, for errors -- that the machine didn't pick up any votes at all, and so they think that a manual recount could turn up additional votes for either candidate.

SESNO: All right, Susan Candiotti in Fort Lauderdale.

Now to West Palm Beach, Florida, and David Cardwell. He's the former director of the Florida division of elections; a lawyer who's represented both Republican and Democratic candidates and knows this Byzantine process better than most, although I'm not even sure that you could have charted this territory you're on now.

All right, you've heard from our correspondents all over, David, and you know what's coming down, you know, through the legal channels today. Is there anything that you can anticipate at this point based on what county officials are saying, what state officials are saying? Or are you completely in the dark? Are we all completely in the dark?

DAVID CARDWELL, FORMER FLORIDA ELECTION DIRECTOR: I'd say we can anticipate something that's never been done before because that's, sort of, been the rule so far, that we are into areas where there is no real legal precedent or, certainly, no strong legal precedent.

We've never had a situation like this in Florida. We've had election contests on numerous occasions but, customarily, they've been at the local level for local races. In fact, the statute that sets such issue today, this 5:00 p.m. deadline, was enacted because counties were taking so long getting their election returns in because of really localized contests that it was affecting the certification of legislative races where the legislature takes office two weeks after the election.

So that was really why the one week was selected, so they could get the legislature in place. And the exception was our so-called "hurricane exception." But we've never had anything like this.

SESNO: What is the precedent over this statute?

CARDWELL: It's really intended to try to get the returns in as quickly as possible while providing a reasonable period of time to resolve all contests. Manual recounts have typically been just in a single county and were able to be completed on time. The closest we've been to this situation was in 1988 and the U.S. Senate election of Connie Mack over Buddy MacKay, which went right down to the wire; and there were protests and contests filed there which dealt with election machinery and the layout of the ballot.

SESNO: I just want to remind our viewers, David Cardwell, that we are awaiting, literally any moment now, we believe, the judge who is hearing this case as to the 5:00 p.m. deadline as to what his determination is going to be. An appeal is likely regardless of how he rules.

Bit can we come back for just a minute; David, since you know electoral law so well in Florida, you've been the director of it, you've argued it. Back to the point that Roger Cossack was making earlier, a few moments ago on the "shall" versus "may" -- getting these ballot, the counties getting these ballots -- their count certified and to the secretary of state. "Shall" or "may," and what do you make of that?

CARDWELL: Well, when you look at the provision that says that the canvassing board shall file the returns with the secretary of state by 5:00 p.m. on the seventh day following the election, also look at fact there's another provision that says if they don't do so, that they are then fined -- each individual member of the canvassing board -- is fined $200 per day.

So it appears the legislature did contemplate there would be some late filings and imposed a penalty if the canvassing boards went too late.

SESNO: All right; David Cardwell, thanks a lot, stay there, I'm sure we'll be back to you once we hear from the judge to try to digest the significance of that.

Want to turn to our senior political analyst Bill Schneider now.

Bill -- political, let's come back to the political. It's in your title and it belongs in the portfolio and in the discussion here.

This is in the courts and both sides are saying, to one extent or another, we'll accept the courts for a limited time; that's what the Bush folks said. Let it play out say the Gore folks. But politically, both in terms of how they stand and how the public perceives this, what's your read?

WILLIAM SCHNEIDER, CNN POLITICAL ANALYST: My read is that each campaign is trying to push a political argument -- and it's a public relations argument. The Bush campaign is saying, we want closure, we want finality; the public is running out of patience, this has to end and we cannot keep this up forever. And so he says, we want it to end at 5:00 today -- that's why they're supporting the secretary of state.

But the polls show that the public is pretty patient about this. I'm not sure the Bush campaign has the upper hand on that argument. People say, look, let's just wait and do this carefully and count all the votes. That's the Gore campaign line. Their argument is, we have to look at all the votes that have been cast very carefully, count them one by one.

The counter-argument from the Bush campaign is, No. 1, they don't want to do it for the whole state, they want to do it selectively; and if they did want to do it for the whole state, that's not practical and the process of recounting is chaotic and there are no uniform standards. So they're say that's unfair.

SESNO: Public opinion seems to suggest patience up to about Friday, the way the questions have been asked.

SCHNEIDER: I'm not even sure of that.

SESNO: Maybe beyond?

SCHNEIDER: Maybe beyond; because "The New York Times" did a poll they published today in which people said they's be willing to wait maybe a month. So there are no deadlines, the public isn't imposing any deadlines.

SESNO: The other interesting snapshot of public opinion is that roughly eight out of 10 say that, whichever of these men emerges as the next president, they think it's legitimate, the public thinks it's legitimate and would support it. Same results, really.

SCHNEIDER: That's right; and when we ask people, who do you think should be president, it's equally divided between Bush and Gore. Look, the view exactly a week ago, on Election Day, was people -- they weren't so much deeply polarized because they couldn't make up their minds between Bush and Gore. They're willing to accept either man. They want a process that appears fair and reasonable; and right now, the public, like the legal authorities, are thoroughly confused about this.

SESNO: Bill, when people vote for a president, they vote for a president to be, obviously, the leader of their country, but also someone who's going to be the captain through a crisis. Arguably, this is the first crisis -- a crisis is something unexpected and that bears significant impact.


SESNO: Arguably, this is the first crisis that either of these men could have, you know, encountered. How are they doing? How are they handling it?

SCHNEIDER: So far, so good. I mean, people don't -- the public does not believe that either candidate has made a terrible blunder, but I think it's -- there's been damage to both sides, really.

I think it's confirmed the impression these are politicians, they're scrambling for every last vote, they're looking for advantage. I mean, each side has had victories and setbacks in this. I think, initially, the Gore campaign got off on the wrong foot by saying they wanted to go right to the courts; and that's another part of the Democratic strategy: They want to turn it over to the courts, which have never been a part of our political process.

But each side has also been handed setbacks. I think when the Broward County board voted not to have a full recount that was a big setback for the Gore campaign, which is relying on that very democratic county to produce the votes that they're looking for. So right now I think Gore may have the stronger argument -- let's just count all the ballots -- but the Bush campaign is arguing as strenuously as they can: They're just looking for votes where they believe they can get the votes. They don't really want a full, fair recount.

SESNO: Bill Schneider, thanks a lot.



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