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The Florida Recount: State Supreme Court Allows Manual Recount to Continue; Federal Court to Hear Republicans' Case Against Hand CountsAired November 16, 2000 - 10:00 p.m. ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
ANNOUNCER: Florida's Supreme Court opens the door for more hand recount.
(BEGIN VIDEO CLIP)
WILLIAM DALEY, GORE CAMPAIGN CHAIRMAN: The Supreme Court's clear and unambiguous ruling that the counties are authorized to proceed with the manual recount is a victory for everyone who wants to see the votes counted fully and fairly here in Florida.
(END VIDEO CLIP)
(BEGIN VIDEO CLIP)
JAMES BAKER, BUSH CAMPAIGN OBSERVER: A one paragraph interim order of the Florida Supreme Court has just been portrayed to you by my good friend Secretary Daley as biggest thing since night baseball.
(END VIDEO CLIP)
ANNOUNCER: On another playing field, a circuit court in Florida must decide whether Florida's secretary of state must accept new hand count results.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: I doubt if the Florida Supreme Court meant to have these counts go forward only to have them be ignored.
(END VIDEO CLIP)
ANNOUNCER: This is a CNN special report on the Florida recount. We begin in Washington with anchors Bernard Shaw, Judy Woodruff and senior political analyst Jeff Greenfield.
BERNARD SHAW, CNN ANCHOR: Thank you very much for joining us. And we extent a special welcome to our international viewers. Tonight, in Palm Beach County, Florida, they are finally counting ballots by hand. A late afternoon ruling by Florida's Supreme Court let the manual recount get under way. Tomorrow morning, a state judge is expected to say whether the results of hand count in Palm Beach and Broward counties can be added to Florida's statewide vote total. Yet more legal maneuvering is taking place in a federal appeals court in Atlanta. Justices there are considering a Republican Party appeal to stop Florida's manual recount as well as a separate appeal from some Florida Republican voters who also want the hand recount stopped.
Meanwhile, the Bush campaign will not ask for recount in Iowa, which went for Al Gore by a narrow margin.
JUDY WOODRUFF, CNN ANCHOR: Helping to keep track of all the legal maneuvering, our Deborah Feyerick. She's in Tallahassee -- Deborah.
DEBORAH FEYERICK, CNN CORRESPONDENT: Well, Judy, today the Florida Supreme Court, the highest court here in the state, said the count will go on. They reviewed the opinions of two lower courts and upheld those opinions, saying that there was no legal impediment as to why this recount could not continue. The Gore team claiming victory tonight because of this unanimous ruling by the seven-judge panel.
(BEGIN VIDEO CLIP)
DAVID BOIES, GORE CAMPAIGN ATTORNEY: Several courts now, three lower courts and the Florida Supreme Court, have all said that these recounts should be completed. And I would hope the secretary of state would not again act to try to prematurely cut off the electoral process. Now, if she does then there may be no alternative but to go back to court.
(END VIDEO CLIP)
FEYERICK: The Bush team was very quick to point out that in fact this ruling by the Florida Supreme Court does not resolve several outstanding issues that remain in state court.
(BEGIN VIDEO CLIP)
THEODORE OLSON, BUSH CAMPAIGN ATTORNEY: The Gore lawyers are doing what lawyers do. They are trying to make lemonade out of lemons and they're describe cases as victories and instructions to the secretary of state or to the electors or the voters of the state of Florida. They are nothing of the sort.
(END VIDEO CLIP)
FEYERICK: One of the main issues that is before a state court judge right now, and he is deciding it, is whether in fact he should declare the certification of the vote on Tuesday null and void. That is what Gore team is asking him to do. They also want to compel him to make -- or they also want to have him compel the secretary of state essentially say that she must accept the recount totals. Something that yesterday she said she is not willing to do because she abided by the Tuesday deadline as is Florida State statute.
Now the judge will make his decision tomorrow and a lot is resting on this decision. Of course, a similar case in U.S. Court of Appeals where they're hearing a motion to stop the recount altogether. So all the lawyers know that this is definitely not over yet.
But as for where we stand now, I spoke to one election attorney and he said that this is really a win for Gore. He said the reason is, now, they will be able to go ahead with recount. So we will know what that recount total is. The secretary of state may not accept it, but the country will know who got the most votes -- Judy.
WOODRUFF: Deborah, just to recap, what we want to keep an eye on tomorrow is the state court there in Tallahassee, state judge who will rule presumably on whether or not the secretary of state must include those hand counted ballots?
FEYERICK: Exactly. He had issued a ruling early in this week and he said that, yes, he would uphold deadline but he said the secretary of state really had a lot of discretion in terms of what she accepted and how she accepted and she was very quick to come out with a ruling saying, no, I'm not going to accept these votes.
The Gore team right now is basically saying how could you not accept votes, you don't know what they are. And that's what they object to and that's why they're trying get judge to come down much more forcefully to tell her what she must do.
WOODRUFF: All right, CNN's Deborah Feyerick in Tallahassee. Thanks. And to give you an idea of just how big a job it is to recount the votes in those two Florida counties, consider this. In Broward County, teams are going over each one of the 588,007 ballots that were cast. In Palm Beach County they have just started looking over 462,657 ballots -- Bernie.
SHAW: As we saw in Deborah's report, the Bush and Gore campaigns have different interpretations of the Florida Supreme Court decision that allowed the hand recounts to proceed. Al Gore's people see it as victory.
(BEGIN VIDEO CLIP)
DALEY: We are obviously gratified by the unanimous ruling of the Florida Supreme Court authorizing the continuation of the manual recounts. The Supreme Court's clear and unambiguous ruling that the counties are authorized to proceed with the manual recount is a victory for everyone who wants to see the votes counted fully and fairly here in Florida.
(END VIDEO CLIP)
SHAW: But listen to how the Bush team interprets the same ruling:
(BEGIN VIDEO CLIP)
BAKER: Let's be real clear about the real meaning of this order. It was not a decision on the merits. It was an interim order. It did not address the decision of the state election's canvassing commission to certify the results of the presidential election in Florida. It did not speak to whether the secretary of state's or the attorney general's opinion controls as to the question of expanding test manual recounts to the whole county.
(END VIDEO CLIP)
SHAW: To help us figure out how one decision can be seen in such completely different ways, we're joined by two legal exerts. Attorney David Cardwell joins us from West Palm Beach. He was head of the Florida Division of Elections in the 1970s. And here in Washington, Kenneth Gross, the former head of enforcement for the U.S. Federal Election Commission. He's a consultant to CNN.
Ken, first to you. How could such competent lawyers have entirely different reads of this ruling?
KENNETH GROSS, FORMER FEC OFFICIAL: Well, they're each trying make the best of the opinion. There's a little bit for both of them in there, I think this is a somewhat better news for the Gore campaign because if this had ruled against Gore, that'd been the end of it as far as the Gore campaign is concerned.
But it is true that it is an interim decision and we still don't have a decision on whether in fact these votes will be accepted. But the fact that the voting is going forward and the Supreme Court said there's no legal impediment to the vote going forward, that's good news for the Gore campaign.
SHAW: David, why such a different read by these competent lawyers?
DAVID CARDWELL, FORMER FLORIDA STATE ELECTIONS DIRECTOR: Well, they're each going to try to interpret decision as to the most favorable terms to themselves and to their particular positions. I look at the decision the Florida Supreme Court today as basically saying let's get back to the way we've done thing in the past.
We've given a lot of discretion to the canvassing boards. Let's let them exercise that discretion and we as an appellate, the Supreme Court, saying get it up --- if we're going to review this, get it to us in the proper form. Let it be handled at the local level, then, if necessary in a trial court, and then come up to the Supreme Court on appeal.
They can handle it on an expedited basis, but I think they want it to come up on a record that they're customary -- are accustomed to having on an appellate basis.
SHAW: David, in the end, if the recount shows Al Gore the winner and the secretary of state, Katherine Harris, rejects the recounted votes, what happens next?
CARDWELL: Well, I guess you could say that we will then be into another one of those uncharted areas we've been sort of rolling through in the last week. We've never been in this situation in Florida. In fact, I would say that it's probably not any other state that's been in this particular situation.
We've always deferred to the local authorities, but contest of elections and recounts such as this have always been for local offices. We've never had one at the statewide level like this and certainly not one after state returns were already certified. So it's going to then turn on whether the court feels the manual recount was valid, that it more accurately reflected the intent of the voters and that the secretary's decision to not accept those runners is arbitrary and should be set aside.
SHAW: Ken, your read if such a scenario were to unfold?
GROSS: Well, I do agree with David that would present an odd situation and it would be complicated by the fact that you would actually have a vote out there that presumably would be publicly known and it would be ignored, and it could make the situation even more difficult if in fact that vote is a Gore vote and it's ignored on a legal technicality.
GREENFIELD: Mr. Cardwell, it's Jeff Greenfield. Speaking of unchartered waters, as I read the Constitution from my dim law school days, it gives the state legislatures almost total power to figure out what to do with electors. Is it possible that if this vote count is mired in challenge after challenge, that at some point the Florida state legislature could say, enough, we will decide who the electors are? Do they have that legal power?
CARDWELL: They could do that by amending the election code. In order to do so, though, they would have to be called into special session.
CARDWELL: There is an organizational session of the legislature on Tuesday, but they'd have to be called into session after that to make any changes in the statutes on the selection of the electors. But keep in mind, we have a Republican governor who can call a special session. It also can be called by the two presiding officers of the House and Senate, both of which, as of now, are Republicans.
GREENFIELD: So just to follow up, if somehow a court orders the secretary of state to count the ballots, and there are appeals, and appeals on appeals, it is at least legally possible for this state government, which is all Republican, to say, come back into session, legislature, and you figure out who the electors are, and we might guess that they would be Republican, right?
CARDWELL: They could do so.
GREENFIELD: OK -- Bernie.
SHAW: OK, thank you. Jeff Greenfield, David Cardwell, Kenneth Gross, thanks very much.
And still to come, a closer look at the status of the candidates' strategies in the wake of this day's developments. This CNN special report on the Florida recount continues in a moment.
(COMMERCIAL BREAK) WOODRUFF: Well, the importance of winning in the court of public opinion is not being lost on either candidate. We have reports on both campaigns. First to Chris Black on the Gore strategy.
CHRIS BLACK, CNN CORRESPONDENT (voice-over): The state Supreme Court's terse ruling is giving momentum to the Gore campaign strategy of getting a recount of votes on the heavily Democratic Florida Gold Coast.
WILLIAM DALEY, GORE CAMPAIGN CHAIRMAN: The Supreme Court's clear and unambiguous ruling that the counties are authorized to proceed with the manual recount is a victory for everyone who wants to see the votes counted fully and fairly here in Florida.
BLACK: Vice President Al Gore remained at his official residence, but did make his case on a radio talk show.
AL GORE, VICE PRESIDENT OF THE UNITED STATES: The choice really is whether the voters are going to decide this election by having every vote count or whether that process is going to be short- circuited.
BLACK: While the legal wrangling is far from over, the Gore team is convinced the law is on their side.
DAVID BOIES, GORE CAMPAIGN ATTORNEY: I think it's very unlikely that the Florida Supreme Court would have directed that these recounts go forward if all they meant was to do -- was to preserve the votes for history. This is a situation in which every time the courts have looked at this issue, the courts have said, let the recount go forward.
BLACK: More than a week after the election, the main action is taking place in three separate courtrooms, with one bottom line: get the courts to sanction the recount.
Operatives at every level of the Gore campaign share a single conviction: That is Al Gore got more votes than George W. Bush in Florida. The Democratic vice presidential candidate said publicly what others claim privately.
SEN. JOE LIEBERMAN (D-CT), VICE PRESIDENTIAL CANDIDATE: We think if all the votes in Florida are counted, not only will we have won the popular vote in America, Al Gore and I, but we will have carried the state of Florida and therefore the electoral college, and would have won the election.
BLACK (on camera): Gore campaign officials are encouraged by the latest court ruling. They say they believe the Florida secretary of state ignores the new tallies at here political and legal peril.
Chris Black, CNN, Washington.
(END VIDEOTAPE) SHAW: Now to the Bush camp, which today conceded Iowa's seven electoral votes to Gore. Now to our senior political correspondent Candy Crowley.
CANDY CROWLEY, CNN CORRESPONDENT (voice-over): The Gore team hailed Florida's Supreme Court interim decision as a green light for making the recount count. The Bush team hailed the Gore team's spin machine.
JAMES BAKER, OBSERVER FOR THE GORE CAMPAIGN: A one paragraph interim order of the Florida Supreme Court has just been portrayed to you by my good friend Secretary Daley as the biggest thing since night baseball.
CROWLEY: Bush lawyers say the court did not consider the merits of the case, but merely made a decision based on elementary law school law.
BAKER: What the court said was simply that there is no legal impediment to the recounts continuing, and therefore, the counties in question can proceed with the manual recounts. This decision does nothing more than preserve the status quo.
CROWLEY: Despite the shrug from the Bush campaign, the ruling did set in motion recounts the Bush team is fighting. While the courts weigh deadlines and jurisdictions, in the public arena, Gore v. Bush is about who seems more reasonable, which is why a Bush team decision not to contest Iowa is wrapped in terms of the larger good.
DON EVANS, BUSH CAMPAIGN CHAIRMAN: Both sides waged vigorous campaigns in Iowa. The results are exceptionally close, but Governor Bush believes the time has arrived for our nation to begin the process of moving forward.
CROWLEY: In this case, there is little cost to reasonable. Iowa doesn't have enough electoral votes to change things. Bush aides noted that their decision not to challenge the outcome came prior to Iowa's recount deadline, a way to underscore that once the overseas ballots are in, Florida has a deadline of its own.
EVANS: Win or lose, this election will be over. For the sake of our country and so that we can begin to unite our nation, tomorrow's deadline must be honored.
CROWLEY (on camera): In the end, not asking for a recount was a political and practical decision. With little chance and little reason to overturn the Iowa verdict, the Bush team used it as leverage in Florida, where everything matters very much.
Candy Crowley, CNN, Austin.
WOODRUFF: Now a closer look at each candidate's strategy. We are first joined from Tallahassee by Ron Klain, a senior adviser to the vice president.
Ron Klain, how can your camp be so pleased with the state Supreme Court ruling today when there's no guarantee that the secretary of state of Florida will include any counted ballots by hand in her overall count?
RON KLAIN, SENIOR ADVISER TO AL GORE: Well, Judy, our goal has been very simple: It's to have the votes tallied in a full, fair and accurate way, and the Florida Supreme Court ruling today clears the decks for that to happen and gives the counties a direction that they can go forward.
Once the votes are counted, I have no doubt that the secretary of state will honor Florida law, and Florida law is very clear: The candidate with the highest number of votes gets the electors. And if Al Gore has the most votes, I'm confident the secretary of state will award him the electors.
WOODRUFF: But she's shown no indication so far of a desire to include these hand recounts. In fact, every judgment she's made on this has been in the other direction. Aren't you in need of a definitive court ruling requiring her to include these ballots?
KLAIN: Judy, first of all, every time she's tried to cut off these hand counts, the courts of Florida have rebuffed her as they rebuffed her three times in the past 36 hours here in Florida and her three efforts to cut off the hand counts.
I fundamentally believe this is about fairness, not law. If the counts go forward and the counts show that Al Gore got more votes in Florida, then one way or another, I believe he will win the electors here in Florida and therefore be our next president.
I just don't think we are going to have a situation where the candidate who got the most votes isn't going to be declared to be the winner. That may be George Bush, that may be Al Gore. We are going to have to wait and see, of course. But I do think that if we wind up with the most votes here in Florida, Al Gore will be our president.
WOODRUFF: Are you satisfied this can be resolved in the state courts or is it going to end up in the federal courts or beyond that in the Congress?
KLAIN: Well, I don't think there's any reason for it to go to the Congress. I don't think there's any reason for it to go to the federal courts.
It's the Bush campaign that brought the federal court lawsuit, not our campaign. Our position has been consistent. First of all, we don't want it in court at all.
And Al Gore, last night, offered a proposal to take it out of court altogether with a simple idea, just count votes and let's be done with it. But, to the extent we have had to go to court, we have gone to the state courts and, Judy, we have only had to go to court for one reason, because Secretary of State Harris and the Bush campaign has tried to stop the counting of ballots. We have gone to court to make it possible for the counties to do what they want to do, which is count their votes.
WOODRUFF: What do you say to Americans who may be growing weary of all this and asking how much longer does it go on?
KLAIN: Well, I'm very sympathetic to that. We are frustrated too. If the Bush campaign and Secretary of State Harris hadn't put these obstacles in the way of the hand counts, they might well be done by now. We think once the hand counts get started, it will only take a few days to finish them if no other obstacles are thrown in their path.
So, I'm very sympathetic to that frustration. I would like it to be over. I would like to come home to my family too. But most of all, what we would like to see is to have the ballots counted. That shouldn't take very long as long as no new obstacles are created to doing the vote counts.
WOODRUFF: All right, Ron Klain, we appreciate your joining us so late at night. Thanks a lot.
KLAIN: Thanks very much.
WOODRUFF: And now we get some insight into Governor Bush's strategy. The Bush campaign spokesman, Tucker Eskew joins us from West Palm Beach.
Mr. Eskew, you just heard Ron Klain. We have been hearing from other representatives of the Gore camp. They believe that, in their view, the secretary of state will have no choice but to include these manually recounted ballots once the recounting is done.
TUCKER ESKEW, BUSH CAMPAIGN SPOKESMAN: That's a fundamental misreading of the law, Judy.
In fact, the law is what should be upheld here. We heard just heard Mr. Klain say this should be about fairness, not the law. That's what he just said. Now, the law is fair. To uphold the law is fair not only to the people of Florida, but to the people of this country who need and deserve a fair, accurate and complete tally of the vote here. We have had that tally.
Behind me tonight, Judy, there is another tally going on, a count with a new set of rules adopted just tonight, a count where people are mishandling, manhandling, even, these ballots. I just witnessed a counter in that room gather a stack of ballots and rifle you through them like a deck of cards. These are fragile pieces paper that have been run through the precision machinery that is supposed to count them. And this process is just fatally flawed.
WOODRUFF: But aren't there observers there, Mr. Eskew, both Republican and Democratic observers, not to mention law enforcement officers keeping an eye on all this?
ESKEW: Absolutely, and it's because of those observers that I'm able to report to you that Post-it notes are being stuck on these ballots, that questionable ballots are being stacked and restacked.
And then, of course, those questionable ballots will be turned over to the three Democrats for them to apply a new and different set of standards in what constitutes a vote. They admitted tonight that they will seek to determine a voter's intent, read voters minds. That doesn't give you any confidence in this process happening behind me.
WOODRUFF: Do I hear you saying that once this manual count is redone and if a court rules that the secretary of state has to include these, that the Bush camp will argue as you just argued that these ballots were mishandled and so forth?
ESKEW: Well, we have argued that for a number of days. That's not a new argument. In fact, what is happening behind me is evidence of exactly what Secretary Baker predicted last week. We have been quite consistent about that.
And let's not jump the gun. We have got a Leon County court taking up this matter and resolving questions of the law. You know, today they did not do that. So there are no winners or losers today. And I think it's time to stop judging this like a sports event. We don't need to score it. We need to uphold the law. And Mr. Klain seems to reject that idea.
WOODRUFF: If you think the ballots are being mishandled, are complaining to county officials or what? I mean, how are you expressing this to the officials who are in charge of all this?
ESKEW: We have an ability to do that. I'm afraid that it's a limited ability. They're are allowing observers to only raise their hand. Objections are not being fully heard in this room. It's not a fair and open process in that regard and these ballots will go before those three Democrats and they will start to make subjective judgments about the intent of a voter who voted more than a week ago.
WOODRUFF: But there are Republicans there as well, just to be clear.
ESKEW: Absolutely and because we have Republicans in that room, I am able to report to you tonight these things, that fact a box full of ballots, one was held upright and another was held on its side. They were opened and ballots were disheveled inside that box.
We are indeed reporting this not just to the officials in that room but to the public so they will understand what we have been saying all along and that is that this manual count is not an accurate way. These are ballots designed for precision machines. They have been counted, they have been certified. Let's get the overseas ballots in, count them accurately and certify the results so people can have not just closure, but accuracy and fairness.
WOODRUFF: All right, Tucker Eskew, adviser to Governor George W. Bush. Thank you very much for joining us. We appreciate it -- Bernie.
SHAW: Still ahead on this CNN special report, our senior political analyst Bill Schneider examines how the Republican and Democratic presidential campaigns are playing for time.
We'll be right back.
WOODRUFF: Joining us now, CNN's senior political analyst, Bill Schneider -- Bill.
WILLIAM SCHNEIDER, CNN SENIOR POLITICAL ANALYST: Judy, for a week now the Bush campaign has been pushing for closure, get this thing decided. The clock is ticking. The Gore campaign has been pushing for fairness, make sure every vote is counted. Stop the clock.
On Tuesday each campaign responded to the other side's argument.
SCHNEIDER (voice-over): At 4:20 p.m. Eastern Time, Bush's main man James Baker makes the case for closure.
BAKER: Shortly after Election Day, and I think right here in this room, I cautioned that there would be no reasonable end to the election process in Florida if it should dissolve into multiple recounts and court cases. And I'm afraid to say that's exactly what's happening.
SCHNEIDER: 6:36 p.m. Eastern, Al Gore makes the case that fairness requires a manual recount.
GORE: Machines can sometimes misread or fail to detect the way ballots are cast.
SCHNEIDER: But then, for the first time, Gore makes the bid of closure.
GORE: The results of this recount would of course be added to the present certified vote total and the overseas absentee vote total. If this happens, I will abide by the result.
SCHNEIDER: What about Bush's argument that a recount in selected Democratic counties is unfair?
GORE: I am also prepared, if Governor Bush prefers, to include in this recount all the counties in the entire state of Florida.
SCHNEIDER: If that's what Bush wants, then he'll be responsible for prolonging the process.
8:07 p.m. Eastern: the Bush campaign accuses Gore of trying to stall.
KAREN HUGHES, COMMUNICATIONS DIRECTOR, BUSH CAMPAIGN: Yet it appears we now have a deadline that may not be respected as a deadline at all.
SCHNEIDER: 8:42 p.m.: the Gore campaign accuses Bush of trying to force a rush to judgment.
DALEY: Every Floridian has the right to have his or her vote counted. The Bush campaign and the secretary of state are, in our opinion, are trying to cut off that right.
SCHNEIDER: 9:14 p.m.: Florida Secretary of State Katherine Harris moves to shut the process down.
KATHERINE HARRIS, FLORIDA SECRETARY OF STATE: The reasons given in their requests are insufficient to warrant waiver of the unambiguous filing deadline imposed by the Florida legislature.
SCHNEIDER: 10:25 p.m.: George Bush answers Gore's call for fairness.
GOV. GEORGE W. BUSH (R-TX), PRESIDENTIAL CANDIDATE: I honor and respect the value of every single vote. That's why my campaign supported the automatic recount of all the votes in Florida.
SCHNEIDER: He then raises Gore by saying the process must also be accurate.
BUSH: Additional manual counts of votes that have been counted and recounted will make the process less accurate, not more so.
SCHNEIDER: Bush sees Gore's call for a statewide recount by arguing it would just compound the inaccuracy.
BUSH: This means every vote in Florida would be evaluated differently, by different individuals using different judgment, and perhaps different local standards, or perhaps no standards at all.
SCHNEIDER: Bush thanks Gore for conceding the need for closure.
BUSH: I was encouraged tonight that Vice President Gore called for a conclusion to this process. We all agree.
SCHNEIDER: But he insists that must happen with a vote count, not a deal.
BUSH: The outcome of this election will not be the result of deals or efforts to mold public opinion. The outcome of this election will be determined by the votes and by the law.
SCHNEIDER: So far, the public has been more sympathetic to Gore. People value fairness over closure. Bush is betting that the clock is going to run out on Saturday when the Florida secretary of state is supposed to stand up and certify the results. And after that, the public mood may shift. If people feel it's over, then the burden will be on Al Gore to make the case that it should go on.
WOODRUFF: Given all this, Bill, what is the significance, do you think, of today's state Supreme Court ruling in Florida that the manual counting should resume? SCHNEIDER: Well, I think the rule is you don't count the ballots if the ballots don't count. As Deborah Feyerick reported earlier, you're going to have a total on those ballots and that's going to be very compelling. Also, of course, can you imagine the scene on Saturday if the secretary of state announces a vote total and on the other half of the screen we're watching the votes being counted in Palm Beach? That's going to be very jarring.
WOODRUFF: Bill, let me ask you about something here in Washington, memos being circulated today, yesterday on Capitol Hill by Republicans and evidently Democrats. What's going on there?
SCHNEIDER: Well, this is part -- the Republicans are circulating it because it's part of what I would call their thermonuclear strategy. If everything else fails and Florida sends a certified slate of electors to Tallahassee December 18th to vote for Al Gore, the votes have to be counted by the United States Congress.
And they have discovered rules from the 1880s after the 1876 disputed election that say that if both houses of Congress, by a simple majority vote reject a slate of electors, in this case the electors from Florida, then they can throw those electoral votes out but you still need 270 electoral votes, a majority of all the electors who were appointed to win the presidency.
So neither candidate would have 270, and then the election would go to the House of Representatives and there most states have a Republican majority. Each state gets one vote. That's the nuclear strategy for the Republicans. For the Democrats, their strategy would be to contest the Palm Beach butterfly ballot, bring that to court, which they haven't been talking about recently, and demand a new vote for Palm Beach County voters.
WOODRUFF: All sorts of strategies being played out.
SCHNEIDER: Those are nuclear.
WOODRUFF: All right, Bill Schneider. Thanks a lot -- Bernie.
SHAW: Much of this election fight in Florida revolves around tiny pieces of paper called chads. Now, if a ballot is punched correctly, they're supposed to end up on the voting booth floor. But sometimes they don't.
And as our Brooks Jackson tells us, this isn't the first time those tiny pieces of paper have played a role in an election tug-of- war.
BROOKS JACKSON, CNN CORRESPONDENT (voice-over): How should Florida do it? If officials there follow the trend in other states, they'll count those dangling chads or even just bulging chads as votes.
The most dramatic recent example, a 1996 Democratic primary in Massachusetts. The state's seven-member Supreme Judicial Court pored over 956 disputed ballots and declared a winner by counting ballots that were merely dimpled and the chad not dislodged.
The court said the cardinal rule in such cases is -- quote -- "If the intent of the voter can be determined with reasonable certainty from an inspection of the ballot, effect must be given to that intent and the vote counted." It said a voter who failed to push out the chad completely "could have done a better job of expressing his or her intent, but such a voter should not automatically be disqualified."
The winner was now-Congressman William Delahunt.
(on camera): And that's been the trend. A 1990 case in Illinois, for example, hinged on 30 partially punctured punch-card ballots. It was a Republican primary race to determine a nominee for state representative.
(voice-over): The Supreme Court of Illinois looked at the disputed ballots and counted them, saying -- quote -- "Nothing in our election code requires voters to completely dislodge the chad from the ballot before their vote will be counted."
In a 1987 Alaska case, the court counted punch-card votes marked with a pen, rather than punched. A 1981 Indiana case counted hanging chads as votes on grounds they indicated voter intent. State courts often count ballots where election administrators don't see clear voter intent.
DOUG LEWIS, DIRECTOR, THE ELECTION CENTER: Anything you cannot clearly determine, you set aside. And if the contest is still where you can't decide who wins, then you put that group of ballots in front of a judge and let a judge make a decision.
JACKSON: State judges are not unanimous. A 1984 Louisiana case refused to count punch-card ballots merely marked with a pencil.
(on camera): But in other cases, courts look closely for voter intent. In a dramatic case from South Dakota, one judge examined two disputed ballots under a 40-power microscope. That county-level race came down to a single bit of bulging or pregnant chad, with only two corners detached.
(voice-over): The South Dakota Supreme Court declared that vote counted -- quote -- "A vote shall be counted if the voters' intent is sufficiently plain." The race was declared a tie. The winner was determined by a game of poker, the Republican won, with a pair of 10s.
(on camera): What Florida courts do remains to be seen. The trend in other states might be summed up by that Illinois decision. The judges said: "The voters are the owners of the government."
Brooks Jackson, CNN, Washington.
WOODRUFF: And much more to come on this CNN special report on Election 2000. Governor Jim Gilmore of Virginia and Governor Gary Locke of Washington state join Jeff Greenfield to talk about getting things done in Congress. That's just ahead after this break.
GREENFIELD: So beyond the questions of how to count what ballots lies a small question called governance, and we thought who better to talk about governance than governors. For that, we're joined first from Tampa, Florida by Virginia Governor Jim Gilmore, a Republican, who is not there counting ballots, and from Seattle, Washington state Governor Gary Locke, a Democrat.
Governor Gilmore, to you first. I want you to put yourself in the following position. Imagine yourself taking the governorship of Virginia when you had tied in the vote with your opponent, when every ballot had been bitterly contested, and when roughly half the state might have thought that you had kind of finagled your way into office. How big a challenge would that have been to you as a governor trying to set an agenda?
GOV. JIM GILMORE (R), VIRGINIA: Well, Jeff, I think you return to first principles, and the principle of governance here in the United States of America is that if you win the most votes, you win the election, and that's a fact. You can't simply put it into the hands of people who would like to disrupt an election by going to court or by trying to change it over into chad issues or something like that, and undermine the election process and allow that to undermine this republic.
If you win, you get the most votes, then you are the elected person, and you have the right to govern, you have the moral authority to govern under this system of government that we have in the United States.
And I think that it would be fine. And furthermore, I think at some point we have to call upon our recollection that the republic is more important than any single vote and the time has come to go ahead here and to govern as real statesmen and women here in the United States.
GREENFIELD: But Governor Locke, as a political matter, if you were to come into office with a big chunk of the electorate, not seeing you as their opponent who had won, but as somebody who had won by illegitimate means, wouldn't that really make it much more difficult to govern?
GOV. GARY LOCKE (D), WASHINGTON: Well, I think it would make it difficult to govern if in fact the people of our state knew that the person who's presiding in the governor's office had -- did not have the majority of the votes or the popular vote. But clearly, once a decision has been made and a person is in office, it's important to try to move beyond that and try to heal the state, and to really focus on the common issues of concern.
And quite frankly, in all of our country, whether it's the United States Congress, Washington, D.C., or the state capitals all across America, so many of the issues that all of us are dealing with do not have a Democrat versus Republican label, and so it's really important to focus on those common issues of concern to everyday people and move on.
GREENFIELD: Well, in fact, the reason why I thought it would be interesting to talk to governors is that you folks on both parties have compiled a pretty impressive record of getting things done, whether it's, you know, Thompson on welfare reform or Jim Hunt on education, and I'm sure the two of you have your own agendas.
When you governors have looked to Washington, I get the sense you sometimes have been very frustrated by the climate there on both sides that's made it impossible to govern. Do you see that, Governor Gilmore, as a problem that's going to continue given this rather contentious election we've just had.
GILMORE: Well, first of wall, it is true that we deal with issues that are of concern to people, but the fact of the matter is that we are Republicans and Democrats, we do go on the ballot as Republicans and Democrats. When I went into the governor's office, we did not have a Republican majority in either house of our legislature, and you just have to find a way to be able to build your coalitions and to be able to govern.
And then, of course, you do fight your way through sometimes to majorities, like we have in Virginia. We have the first Republican majorities now in the history of Virginia. But even then, you still have to deal with people that are going back and forth.
But you still, as a governor, have got to get out there and make the policy, make the decisions, drive the agenda, and then persuade the men and women of your state -- and in fact, if you're the president, you have to persuade the men and women of the country -- that your policies are the right ones. And if you do that, I think you're going to be just fine, because that's the quality of leadership...
GILMORE: And we're going to be able to do that in this country.
GREENFIELD: Governor Locke, it's an interesting point that Governor Gilmore raises, that sometimes, in fact, the talk of common ground, mutuality ignores the fact that we have a political system where clashes are supposed to happen. Do you think we're making too much of this, Governor Locke, that maybe, all right, we'll have a big tough fight and then at the end day we'll move on?
LOCKE: Well, of course, we have chief executives, whether from the presidency on down to the governors and to the mayors, that are Democrat or Republican. And the chief executive is the one person who is elected statewide or countrywide or citywide whereas a lot of the legislative branches are elected from respective districts.
But the people of that particular political area look to the governor or the chief executive officer to lead and to provide that leadership. And I have had to work with, my first two years in office, a Republican-controlled legislature. We focused on issues of common ground. We oftentimes disagreed, and I used my veto pen to nullify legislation that I simply could not agree with.
But from that position of power and from that position of leadership, we focused on issues of concern, whether welfare reform, whether patients' bill of rights, and we're a state that has passed our own patients' bill of rights, one of the strongest in America -- by focusing on coalitions, putting together coalitions of legislators, Democrats and Republicans, that could agree on it, and then that provided the groundswell of support from other Democrats and Republicans.
GREENFIELD: OK. Thank you, Governor Locke and Governor Gilmore. We're out of time. I thank you both for coming and engaging in a, well, bipartisan and good discussion -- conversation rather than yelling. We thought we'd give the folks a break every once in a while. Thanks a lot.
GILMORE: Thanks, Jeff.
LOCKE: Thank you.
GREENFIELD: And to Judy.
WOODRUFF: We don't want too much of this reasonableness, Jeff.
GREENFIELD: Well, then I'll show up again.
WOODRUFF: What role, speaking of all these things, has the news media played in the longest election night in recent memory? That is just ahead on this CNN special report.
SHAW: The question of responsibility over the early projections and the possible impact on the election is being examined here in Washington. CNN's Brian Palmer reports.
BRIAN PALMER, CNN CORRESPONDENT (voice-over): The fallout from election night 2000 continues to spread...
REP. BILLY TAUZIN (R), LOUISIANA: The evidence is mounting that there was some kind of bias in this system.
PALMER: ... now with charges from Republican members of Congress that TV networks -- CBS, NBC, ABC, CNN and FOX -- skewed their coverage to favor Al Gore.
TAUZIN: There was a long delay for calling the states for George W. Bush compared to a much shorter delay for calling the states to Al Gore.
PALMER: That delay, says Congressman Tauzin, discouraged bush supporters from heading to the polls. Tauzin's remedy?
TAUZIN: We'll have a hearing, and the burden will on the networks and on VNS, this Voter News Service upon which apparently everybody depends now, to prove to this nation that the election coverage, which now apparently has the -- an effect of affecting the result of our presidential elections, may in fact have been intentionally biased.
PALMER: Not so, Democrats say.
REP. ED MARKEY (D), MASSACHUSETTS: In fact, the news media is biased in favor of only one thing: calling each race first.
PALMER: The news networks declined to be interviewed on Tauzin's charges. CNN chairman and CEO Tom Johnson told Tauzin in a letter, "I state categorically there was no intentional bias in the election night reporting."
(on camera): All of the networks have acknowledged there were problems with their election night coverage and are conducting internal reviews of their procedures.
(voice-over): One target of criticism and reform is the Voter News Service, or VNS, created by TV networks and the Associated Press to gather election data.
STEVE BRILL, "BRILL'S CONTENT": It's the network's fault. They formed a cartel and then they relied on the bad product the cartel produced, and then, even though the product was just an exit poll, they declared it as if it was a fact.
PALMER: Brill says the networks should not all rely on one polling service. Others critics say networks shouldn't predict winners until the polls close.
KEN AULETTA, "NEW YORKER" MAGAZINE: We are in the business of getting it right. And if technology speeds things up so much that we can't get it right, then we've got to slow it down.
PALMER: Slowing down in the age of the Internet may not be easy, but critics say it might be necessary to regain public confidence.
Brian Palmer, CNN, New York.
SHAW: For those unpaid volunteers in both campaigns who happen to be in Florida, there's no end in sight.
CNN's David Mattingly explains.
KATE TRUMBEL, VOLUNTEER: Hello? DAVID MATTINGLY, CNN CORRESPONDENT (voice-over): It wasn't supposed to be like this.
TRUMBEL: It's a bit like "Groundhog Day." You don't know what day it is when you wake up in the morning.
MATTINGLY: Kate Trumbel thought she'd be on a beach relaxing with her boyfriend, planning to start a new job. Instead, she hits the road every morning for the Gore campaign in Florida, going to courthouse after courthouse, keeping tabs on absentee vote tabulations.
TRUMBEL: It's a very intense atmosphere, you know. Things change every minute, and so you kind of feel like, I have to get done what they've asked me to do as soon as I can.
MATTINGLY: Trumbull is a 28-year-old volunteer. Before the election, she was stuffing envelopes, working phone banks, never expecting that she'd still be a in a race.
TRUMBEL: They saw and said you have a car, you're here. We need somebody to go out, Wakulla County and Bay County and collect some information. Will you go? I said sure, give me a map.
MATTINGLY (on camera): If it's been an emotional roller coaster for you at home, imagine what it's been like for people inside the campaigns. Your candidate wins and loses Florida all in the same night. Then there's no winner at all, and all that work you did leading up to the election, turns out it wasn't enough.
CHARLES MCCLURE, BALLOT COUNT OBSERVER: It leaves you in total anxiety and you move from the political -- or from the political arena to the legal arena.
MATTINGLY (voice-over): Circuit Judge Charlie McClure retired from the bench three years early to volunteer, making public appearances for the Bush campaign.
MCCLURE: Yes, this is Charles McClure.
MATTINGLY (on camera): Instead of going to his vacation home on the Gulf after the election, he continues in a new role, observing ballot counting in his home county.
MCCLURE: Everything went smooth here, and did not create a particular disturbance.
MATTINGLY (voice-over): Today, Trumbel still works 15-hour days for free, logging over 1,000 miles of two-lane in the Florida panhandle. It's her job to recheck voting results for errors or new totals, looking for that previously uncounted voted that could make a difference in this closest of races.
(on camera): You had a life before this campaign. Does there come a point where you say, I've got to stop. I've got go back. TRUMBEL: For me there does, only because my sister is getting married in a week, so I have to go back. But it's hard to make that choice because you've been involved in something that no one else that I know, I mean my age, has been involved in.
MATTINGLY (voice-over): But for now, the work goes on, all the while everyone wondering if the next news conference, the next court decision could bring months of non-stop labor to an abrupt end.
MCCLURE: I mean, it's just something that won't be over until it's over.
MATTINGLY: David Mattingly, CNN, Tallahassee, Florida.
SHAW: And that concludes this CNN special report on Election 2000. I'm Bernard Shaw.
WOODRUFF: And I'm Judy Woodruff in Washington. Thanks for joining us.
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