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The Florida Recount: Judge Clears Way for Final Vote Certification Saturday

Aired November 17, 2000 - 10:00 a.m. ET


DARYN KAGAN, CNN ANCHOR: We have our eye on Leon County and Tallahassee where, just minutes from now, the entire presidential race may hinge on the decision of one man. Not that man, but Judge Terry Lewis. In Tallahassee, Florida, the nerve center of what may be the most unnerving presidential race in U.S. history, circuit Judge Terry Lewis will issue a ruling that may decide this nation's 43rd president. At least it will be the next step in the legal process. The ruling will decide whether Florida Secretary of State Katherine Harris must accept manual recounts compiled after Tuesday's date -- imposed deadline.

Democrats are backing the legal request. They believe the hand counts will narrow the 300-vote lead that George W. Bush now holds over Al Gore. Meanwhile, recounts continue in the Democratic strongholds of Broward and Palm Beach Counties. At last count, workers in Broward County reported that Gore had picked up some 21 votes; that is with 1/6 of the ballots being recounted. Once again we have our eyes on Tallahassee, on the announcement that is about to be made.

And let's turn to my partner, Bill Hemmer.

Hi, Bill.

BILL HEMMER, CNN ANCHOR: Daryn, thanks; good morning again. Three hundred votes, the margin of difference at this moment between George W. Bush and Al Gore in the state of Florida. The state canvassing commission -- it says it's all ready to go ahead and certify the vote, lock it in tomorrow morning here in Florida. However, that may all change in a matter of moments.

Over to the circuit court, CNN's Mike Boettcher waiting for that ruling to be distributed.

Mike, hello; bring us up to date, once again, on what's happening over there at court.

MIKE BOETTCHER, CNN CORRESPONDENT: OK, Bill, let me tell you exactly what's going to happen. In just about a couple of minutes or so, Terre Cass, who is the chief court administrator for the Leon County Circuit Court, will walk up to this podium. She will do what she did about three days ago and read a portion of the judge's ruling. We now have been told in exactly two minutes the announcement will be made.

She will read a portion of that, but let me warn you: last time that happened there were other things in the ruling that we did not hear. There were certain nuggets that brought us back to court this time. Basically, that the secretary of state should use proper discretion. And so we're going to need a couple of minutes after we get this, actually, in our hands to decipher everything. But you'll get the guts of it from Terre Cass when she steps up to the microphone.

I am actually going to, now, back off a little bit so you can view exactly where this will occur. Right now you're seeing a public affairs officer for the Leon County courthouse here.

Now, there are three options, basically, the judge could do. He could stick with the Republican argument that the secretary used her proper discretion and just followed Florida state law. Or the judge could rule that she must consider these -- not the overseas ballots, but the hand counted ballots, but not push back those deadlines -- say she must consider those when they come in. Or he can move those deadlines until the hand counted ballots do arrive here in Tallahassee and are finally certified.

HEMMER: Hey, Mike?


HEMMER: Mike, just a moment ago you said that lawyers for both sides had gone into the judge's chambers; are they still in chamber or have they come out since then?

BOETTCHER: I don't know right now because that is on the third floor, and we got word from our people who are canvassing this building that that is what has occurred, so I'm not sure. But, regardless of how long that meeting takes with the judge, we are told that this opinion was done this morning, the copies have been made and they're going to come down here and read it right on time, they say.

You know, Bill, the interesting thing about the judge is he has a real poker face in chambers, so it's very hard to read what, exactly, he's going to do. Here we go.

ANNOUNCER: Ladies and gentlemen, Ms. Terre Cass, court administrator of the second judicial circuit.

TERRE CASS, COURT ADMINISTRATOR: Good morning ladies and gentlemen. I have the ruling from Judge -- circuit Judge Terry Lewis. OK, I'll try to speak up a little bit, thank you. "On the limited" -- I'm going to read from the body of the ruling and then the order:

"On the limited evidence presented, it appears that the secretary has exercised her reasoned judgment to determine what relevant factors and criteria should be considered, applied them to the facts and circumstances pertinent to the individual counties involved and made her decision. My order requires nothing more. Accordingly, it is ordered and adjudged that the plaintiff's motion is denied." Thank you.

HEMMER: Mike, if you're still with us, that seemed rather straightforward and not near as ambiguous as the ruling was a few days ago.

BOETTCHER: Well, we expected, Bill, a shorter ruling, much like the supreme courts in the country do. They don't waste a lot of words, and this is what happened here. He basically said that the Secretary of State Katherine Harris followed the letter of the law, that she asked the counties for explanations why they wanted more time, thought about it and ruled on it.

As we said earlier before this, the threshold that the Democrats had to meet was abuse of discretion; and in terms of a public official, that's a very high threshold to meet because there is a remedy. We elect public officials to use their discretion. If we don't like the decisions they make, they can be voted out of office. So the judge has said that she used reasonable judgment and applied that to the factor of those hand-counted ballots.

So -- this is not the end of it, though. You can bet that attorneys for Vice President Al Gore are going over now to the circuit court of appeals where they will file what is known as a pass-through motion which will ask the circuit court of appeals to pass on their appeal of this directly to the Florida Supreme Court. So the ball goes back a block away to the Supreme Court this afternoon, Bill.

HEMMER: All right, Mike Boettcher, thank you.

As it stands right now, though, it appears the deadline of midnight tonight for the overseas absentee ballots will come and go and then tomorrow morning, barring any Supreme Court intervention here in the state of Florida, the state canvassing commission will be able to certify the vote tomorrow. At that point we will know who, indeed, is the leader and the winner of the state of Florida.

Now, Bob Crawford is the state canvassing commissioner. We're putting a microphone on him right now. He is part of that three- member board that, tomorrow, will indeed certify the vote. Do we have time to go to Mr. Crawford or not?

Go ahead, Mr. Crawford. Tell me your reaction quickly to what we just heard out of court across the street.

BOB CRAWFORD, FLORIDA CERTIFICATION OFFICIAL: Just speaking, me, individually -- not as a member of the canvassing commission -- what the judge said today is exactly what I thought he was going to say because the law is very clear that the election is over.

We've got to count the absentee ballots from overseas and, I think, what he has said this morning -- although I haven't read the whole ruling, I have to give that caveat -- it upholds the position of the secretary of state and the canvassing commission that we properly have read the law and we have properly complied with that.

HEMMER: Do you think you're a winner in this, and if so, do you think you'll be able to certify within 24 hours in Florida?

CRAWFORD: Well, I'm not saying that we're a winner or we're a loser. But I think what it does say is clearly what the law states; and as a former member of the legislature, I can read the statutes and it says the election is over as of seven days after the election. And I believe Judge Lewis, acting independently, said that that is correct.

So it upholds what we've been saying all along, that there does have to be a cutoff at some point to make these elections reasonable and credible.

HEMMER: We anticipate an appeal from the democratic side directly to state Supreme Court. Is it possible, between now and later today at the close of business, the Supreme Court may step in and prevent you from taking action tomorrow?

CRAWFORD: It's possible, and I'm sure the other side will appeal, and certainly that's their right to do that. And if the Supreme Court wants to take jurisdiction -- I think the Supreme Court is reluctant to get involved unless it's absolutely necessary. But this is certainly another step closer to resolving an election that needs to be resolved.

HEMMER: In summary, and quickly: Do you think the fight for Florida is now over?

CRAWFORD: I think there's going to be more -- there are probably going to be more court cases; but I think that the election canvassing commission, that has the responsibility to determine the true winner, now is much closer to making that final decision.

HEMMER: Thanks for your time; Bob Crawford, here, state canvassing commissioner here in the state of Florida. We'll be talking throughout the day. More reaction coming up from Tallahassee.

Back now to Daryn, though, in Atlanta -- Daryn.

KAGAN: All right, Bill, thank you very much. And before we go declaring and races over, we have to, also, remind our viewers that all the overseas absentee ballots have not been counted yet. Those numbers not out, probably, until tomorrow.

Back to Tallahassee and this very important judgment coming out of Judge Terry Lewis' court.

Let's bring in our legal analysts. This is a two-analyst job, so we're going to bring in Roger Cossack and Greta Van Susteren at the same time.

Roger and Greta, thanks for joining us.

ROGER COSSACK, CNN LEGAL ANALYST: Daryn, it's a pleasure, let me -- I'll start off here...

KAGAN: OK, Roger you jump in here, go ahead. COSSACK: Let me just explain; what happened here is that circuit court Judge Terry Lewis has decided that she did not abuse her discretion. Remember what you're looking for here, the law was looking for, what he was looking for was whether or not she used reasonable standards in making her decision, or did she act in an arbitrary manner.

And we may not like the standards, he may not like the standards; but the only question is: Were they reasonable standards? And he has decided that they were reasonable standards. This case now goes to the Florida Supreme Court. Whatever their decision is may be the decision that decides who's the next president of the United States.

KAGAN: Greta, when we talked to you in the last hour, you said this is where you think this would ultimately end up: with the Florida state Supreme Court and end there. Given how the system works, would they be likely -- or what would it take for them to change the decision of Judge Lewis?

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: Well, I tell you -- you'd much -- you'd rather, in this particular case, to be the winning party when you end up in the Florida Supreme Court on this issue. This is an uphill battle, now, for the Gore people because the issue isn't whether or not you agree with what Secretary of State Katherine Harris did. That wasn't what the judge is saying. The judge could think her decision was a stupid one. But the question is whether or not he thought that she, at least, used some standards, something she that she used that wasn't whimsical or fanciful when she made her decision.

Now it goes up to the Florida supreme court, assuming they appeal, and I assume the Gore people will appeal, and what that court will look at is whether or not Judge Harris was whimsical in his decision, when he upheld the discretion exercised by the Secretary of State Katherine Harris.

Now I think what's interesting in this case, and I think what the viewers should have their eye on is not all four counties that we're really talking about, but on Palm Beach County, because Palm Beach County has statistical information to present to -- to Judge Lewis.

And that was this, is that they did that 1 percent hand count on Saturday. And they found an extra 19 votes for Vice President Al Gore. And if you take that out to 100 percent, it could be as many as 1900 votes. Now that is obviously just a theory, a mathematical theory. That is not evidence of proof.

But it may be an abuse of discretion, the fact that you have actually had statistical evidence that might make you pause to wonder whether or not there truly was a problem here in Palm Beach County, that may be a -- that may be an abuse of discretion, in refusing to consider Palm Beach County.

The other counties didn't have that -- Broward County didn't have that evidence and Miami-Dade, which is not doing a hand count, but which is included, didn't have that evidence either.

My eye is on how the Florida Supreme Court looks at Palm Beach County when the issue arises in their court.

KAGAN: Well, Greta and Roger, as sit here and continue our conversation, we can actually look at Palm Beach County and West Palm Beach, a live picture from West Palm Beach, live picture from Ft. Lauderdale, that would be Broward County. The recounting, the manual recount goes on, even once the judge's decision has been read.

Question now, what happens to this recounting and what happens to the other lawsuits that are still in motion in Florida?

COSSACK: I think that everything continues on, Daryn. And the reason is is because, until the supreme court says that the elect is over, as of Tuesday at 5:00, then there's really no question they have to continue counting because the supreme court easily could turn around and say, listen, we think there is an abuse of discretion.

I agree with Greta. This is a real -- Now it becomes a very tough uphill battle for the Democrats. While she points out one county, Palm Beach, that perhaps has more statistical information than the others, I still think this now becomes a really tough battle, because what you're asking the Supreme Court to do is say, that they -- that this women abused her discretion by having an unreasonable standard. And every lawyers knows that's a tough way to go.

VAN SUSTEREN: Here's the problem, Roger, is that they have statistical evidence in this county, whether it is true or not remains yet to be seen, but at least they have statistical evidence. And they say they think it may effect the outcome of the election.

And the question really for the Florida Supreme Court: Is it an abuse of discretion to turn your back on that statistical evidence in this county? It is not just something whimsical, where county says: Hey, how about us? We would like to do a hand count too. And the secretary of states: Well, why? And they go: Well, we just like to do it. That's not the situation. Palm Beach County actually had that 1 percent. those three precincts that say: Hey, look we have a serious problem here. And we think it might effect the outcome of the election, which is what the Florida statute says, which is why I think that's what the key issue will be before the Florida Supreme Court is Palm Beach County.

KAGAN: So the very thing, Greta, that you're saying that Judge Lewis said was reasonable judgment that Katherine Harris used on her part., state supreme court in Florida might look at that and go: No, that was not reasonable judgment, that is still possible?

VAN SUSTEREN: That's right because it wasn't just some whim of some county, saying: Me, too, we want a hand count because we think it would be fun to hand count. That is not like it. What Palm Beach says is: Look, we actually got some numbers that have alarmed, that have us alerted us. We think this is necessary, out of an abundance of caution. Because, and this is key, because they say, when they extrapolate it out to 100 percent of the Palm Beach County, it might affect the outcome of the election. That's key.

You know if they had done a statistical analysis in Palm Beach, based on 1 percent of the vote, which is what they do in the initial hand count, and let's say that if they took that out to 100 percent it wouldn't affect the outcome of election, then I would say that Katherine Harris is on very strong footing in the Florida Supreme Court. But the fact they got the statistical evidence sitting here in Palm Beach County, and the fact that it might effect outcome because it could be as many as 1900 ballots in a 300 ballot race right now, is the biggest problem I think facing the secretary of state. But let me underline...

KAGAN: Greta, you couldn't see it, but Roger was shaking his head through that whole thing. Got to give him one change to reply.

COSSACK: let me just give you 30 seconds and just tell you, I think that Greta is obviously, you know, well thought out. But I think the problem is there's two statutes that conflict. You have got one statute that says the vote is over Tuesday night at 5:00, if the secretary of state so finds it, and you have got another statute that says there can be a recount if there is reason to believe that the vote was wrong. No one arguing about whether or not there should...


COSSACK: Wait a minute, Greta. There should be a recount in Palm Beach.

VAN SUSTEREN: It says might affect the outcome.

COSSACK: The question is -- I agree with that -- The question is there is a statute that says it is over at 5:00 p.m. and that has nothing to do with whether or not you count the new votes, even if it does have an effect on the outcome. That's where we are right now.

KAGAN: Where we are right now is I have to ask you actually both to collect your thoughts. Stay with us. Don't go anywhere. We are going to want to come back to you and talk to you more about this. This is a very big decision. And we will have some more thoughts on this. We will get to you in just a moment.

Once again, if you are just joining us, Judge Terry Lewis, out of Leon County, coming out with his decision that Secretary of State Katherine Harris, of the state of Florida, worked with reasonable judgment when she decided that her state must adhere to the 5:00 p.m. deadline tomorrow for certifying -- or to certifying the election.

So with more on this here's Stephen.

STEPHEN FRAZIER, CNN ANCHOR: This is fine how do you do, when our own two legal analyst can't come to any kind of an agreement about what the outcome may be.

But for a sense of what Judge Terry Lewis was thinking and what he actually ruled, let's turn now to Mike Boettcher, who is just outside his courtroom, who has got his hand on the ruling now.

Mike, good morning, again.

BOETTCHER: Well, Stephen, it sounds to me it is a little quieter here than it is back in Atlanta with that debate going on.

Let me read to you from the order again. We have only heard it once. Let me read it again so we get the wording. "As noted in my previous order, Florida law grants to the secretary, as the chief elections officer, broad discretionary their authority to reject or accept late-filed returns. The purpose and intent of my order was to ensure that she, in fact, properly exercised her discretion, rather than automatically reject returns they came in after the statutory deadline.

"On the limited evidence presented, it appears the that the secretary has exercised her reasoned judgment to determine what relevant factors and criteria should be considered, applied them to the facts and circumstances pertinent to the individual counties involved, and made her decision. My order requires nothing more."

So this means that the lawyers for Vice President Al Gore will be going up the ladder of appeal. It means that their argument that the secretary of state abused her discretion were not bought by the judge. He believes that she followed the statues of Florida in declaring a couple of days ago that she would certify the election on Saturday, that the results she received statewide last Tuesday are the results that will be counted, and that there is no impediment to her declaring, or the state election commission declaring a victor on Saturday, after all of the overseas ballots are counted.

So a very important decision. But not it is over yet, Stephen.

FRAZIER: And, Mike, you've been there before. This is in some contrast to what we've seen earlier from Judge Lewis. You called his earlier ruling in this matter Solomon-like. It was really very crafted to give a little bit of something to either side. Less so this time I gather.

BOETTCHER: Well, I believe he set forth a framework for her to follow the laws -- set forth the framework telling her: You apply discretion and allow these counties to tell you why they want to -- to delay this. That's why, within hours after the initial judge's order last Tuesday, she gave the counties that time frame to come up with explanations.

And then there were the stories from statehouse that she met with her attorneys, and then closed herself off in her office for an hour, while she considered this.

I mean, I think that all of those stories were leaked out because they wanted it known out there that she was contemplating this, hadn't made up her mind, and that the judge agreed with everything she did.

I mean, you know, abuse of discretion is a very high legal standard and this is an elected official who says she is following state law, and basically, this judge didn't feel that he was going to make new law or that he was in a position to do that. But the Supreme Court might decide something different.

And the Democrats are going to keep fighting this. FRAZIER: Mike, we appreciate that clarification. It is an impressive display not only of thinking on your feet, but thinking on your knees. We saw how you scooched (ph) down there to get out of the shot so we could look all the way up to the lectern for that statement. Thank you very much.

Now let's go to Daryn.

KAGAN: As we heard Mike Boettcher report, he fully expects the Democrats to appeal the decision by Judge Lewis. But still this is a big blow for the Democrats.

Let's bring in Eileen O'Connor, who is covering the Gore campaign, the Gore camp from Washington D.C.

Eileen, any reaction yet from the Gore camp?

EILEEN O'CONNOR, CNN CORRESPONDENT: No, they are huddling together right now, coming up with their reaction. They did say earlier, they had been actually fairly confident that, while they might not have gotten a very clear ruling that insisting that Katherine Harris include the recounts in -- the hand recounts in the certified total, they had been fairly confident, at least expressing confidence, that they would get some kind of middle-of-the-road type ruling. And that it would still, again, leave it to her discretion. And they were hoping that, with these recounts continuing, that that would force her -- and with votes going to Al Gore -- that that would force her to actually wait and to postpone the deadline.

But obviously this is a blow. And they have, though, said earlier that they would take any legal recourse that they had available if this ruling went against them. And so it is pretty probable, most likely -- I would say 99 percent -- that they will go to the state supreme court, because that avenue, obviously, is open to them -- Daryn.

KAGAN: And, Eileen, this is a Gore camp that was encouraged by what they heard yesterday from the state supreme court, thinking that that court wouldn't have allowed the recounts to continue on if they didn't intend to include that in the final count. But at this point, as we heard Mike Boettcher mention, it becomes a very steep, uphill climb for the Gore camp to make its claim.

O'CONNOR: It certainly does because, you know, Daryn, they are actually not just in court on this, it's the court of public opinion they also have to win. And with those recounts going on, they are going on slowly.

Now, Palm Beach County, though, is saying that they will come in with their votes a day earlier. But now with this ruling the question is, will the recounts continue? Will the canvassing boards continue the recounts?

Also at stake here is, at 1:00 this afternoon in Miami-Dade County, the Gore camp had gone back to the canvassing board there that had issued a ruling that they didn't want to go for a fuller, countywide recount -- hand recount, the Gore camp wanting to try to get that recount in Miami-Dade, another Democratic-leaning county. This ruling obviously will impact on that hearing. And they were hopeful that they would also start a recount in Miami-Dade.

So, again, the longer the legal wrangling goes on, it's the worse it is for the Gore camp. And also, they want to get these recounts in so that they can show the public that there is support there that's been uncounted for the vice president -- Daryn.

KAGAN: Yes, well, it looks like now the only uncounted support that they'll be able to rely on is whatever support he might get in the overseas ballots. That is...

O'CONNOR: And one thing, Daryn, you know...

KAGAN: OK, go ahead.

O'CONNOR: ... is that Secretary of State Warren Christopher had said that no matter what happened this weekend, with the hand counts still ongoing, they are not willing to concede. So even with this ruling, and if they're going on to the supreme court, which I said is very likely, if there is a certification of this vote, as long as those hand recounts are ongoing, very unlikely, almost improbable, as the secretary -- former Secretary of State Warren Christopher said, that they will concede. But as I said, of course the Gore camp now still huddling together compiling their reaction -- Daryn.

KAGAN: All right, and the other good point you make about this being also a PR battle as well, and the Gore camp having to measuring the public whims of support and tolerance as well.

Eileen O'Connor in Washington, thanks you very much.

Now from the Bush camp, here's Stephen.

FRAZIER: Just as Eileen reported, there are huddles under way in Washington; so, too, in Texas, both in Austin and, I guess, perhaps at Gov. Bush's ranch north of Waco.

So let's turn now to Jeanne Meserve, who has been standing by in some miserable weather down there to fill us in.

Jeanne, what do you know of the reaction of the Bush campaign?

JEANNE MESERVE, CNN CORRESPONDENT: No official reaction yet, Stephen. When I called various offices, I've been told that folks on the staff are still in meetings. I'm sure you're right. I'm sure there are consultations under way with the governor, who remains at his ranch, a couple of hours away in Crawford, Texas.

But we can expect that the Bush campaign is very pleased with this ruling. They had argued all along that the secretary of state, Katherine Harris, was well within her rights to rule that these ballots, these hand-counted ballots, should not be included in the final hand total. They initially said she could do that because they were tardy and because there were no uniform standards. We heard some additional arguments yesterday that there hadn't been hurricanes or any natural disasters; and additionally that there hadn't been any indications that machines malfunctioned.

But this a clear win for the Bush camp after a couple of setbacks in the courts. I'm sure they will be very happy and I'm sure you will hear them reiterate something they have been saying since this whole tussle began, which is the only thing we are waiting for now are the overseas absentee ballots. And when those are tallied, a victor should be declared on Saturday -- Stephen.

FRAZIER: So, Jeanne, if I understand you correctly, does the campaign need to do anything now? Are there any filings required on their part or are they in a position now where they're just waiting to see how things play out?

MESERVE: Stephen, I wish I was a lawyer. I'm not. I can't really answer that question. I'm sure they're anticipating that an appeal will be filed by the Gore side. And you can bet if there's an appeal, they're going to answer it.

Meanwhile, of course, there is that other court case in the 11th District Court of Appeals in Atlanta. You'll recall that the Bush camp had gone to court in Florida, in a federal court, to try and get the hand recounts stopped on the basis that they were unconstitutional. They were denied there and so they went to this appeals court in Atlanta. Arguments have been filed there, but as yet no hearing set. That may become moot if this ruling today in Florida saying that the secretary of state doesn't have to include these hand counts in her final tallies -- if this indeed holds before the Florida Supreme Court.

FRAZIER: Jeanne, thank you for that analysis. I think we're going to head next to Atlanta, so let's go to Daryn for an understanding of that.

KAGAN: Yes, actually, in a bit we'll be able to check in with Bob Franken, who is covering the 11th Circuit Court of Appeals today and what the Bush camp is trying to achieve there. Get to Bob Franken in a moment.

Right now, I want to go right to the site where some of the recounts have been taking place: Ft. Lauderdale in Broward County. Susan Candiotti on the scene.

Susan, we were able to see through live pictures that even as the judgment came from Judge Terry Lewis in the circuit court in Leon County, the recount and the manual count continues in Ft. Lauderdale and Broward County.

SUSAN CANDIOTTI, CNN CORRESPONDENT: That's right. The manual recount is continuing in Broward County. This is the third day they've been working on it. As of last night, they had gone through about 90 precincts with 21 additional votes for Vice President Gore. But this morning, another flurry of legal activity with lawsuits flying -- well, and arguments flying back and forth. We just wrapped up one here at the Broward County Courthouse in Ft. Lauderdale after a lawsuit was filed late last night, filed on behalf of four Republican voters to try to stop the hand recount. This morning there was a hearing to try to move that matter to a judge that has -- had provided a friendly ruling on behalf of Florida's Democratic Party. And the matter before him was to try to get him to take control of this latest lawsuit, but he has said he won't do it.

There were loud arguments back and forth, with the judge finally saying, look, the bottom line here clearly is that both sides want to win, referring to the results of the presidential election.

Ultimately, this means that there is going to be another hearing this afternoon at 1:30...


CANDIOTTI: ... before a different judge in which the Broward County Canvassing Board has been ordered to appear -- they've been served with subpoenas -- to try to prove why the hand recount should continue.

I'm going to ask the attorney representing the Republican Party's interest, William Sherer, what you hope to prove and accomplish at this afternoon's hearing?

WILLIAM SHERER, FLORIDA REPUBLICAN PARTY ATTORNEY: We're going to prove that the entire hand count should never have started. It's illegal, it's contrary to law, it's contrary to Florida election law, and we're delighted that we get an opportunity to go to trial and offer some proof so the nation also can see just how wrong it is to hand recount like they're trying to do here in Broward County.

CANDIOTTI: Now, since the canvassing board has been ordered to appear, and because canvassing board member -- at least one -- must be present for a hand count to continue, does that mean that the recount will have to stop while this hearing goes on?

SHERER: Well, I don't know how the hand recount can continue if the canvassing board comes to trial. Judge Stafford (ph) has offered them to come to trial. He entered a show cause order, which is essentially an order that says, you better be here because we're starting this trial at 1:30. And that's really what's going to happen.

CANDIOTTI: Well, in view of Judge Lewis's decision in Tallahassee that Secretary Harris used her discretion in denying and rejecting the results of any hand recounts, what does it mean to your lawsuit?

SHERER: Well, I don't -- I'm not exactly sure because I haven't seen the order. But, obviously, if Secretary Harris has the discretion, we'll bring that into ours as well. After we put the facts -- after we put the evidence in from witnesses and evidence, then we'll talk about the law. Obviously we're very pleased with the judge in Leon County's ruling. CANDIOTTI: All right, thank you Mr. Sherer.

SHERER: Thank you.

CANDIOTTI: Let's turn now for the Democratic point of view. And joining us is attorney Leonard Samuels.

Mr. Samuels, it appears as though you got a blow in court today. And, ultimately, will the hand recount have to stop this afternoon, both in view of what Judge Lewis had to say, but even more immediately, you've got a hearing to appear this afternoon? Won't that stop the recount?

LEONARD SAMUELS, FLORIDA DEMOCRATIC PARTY ATTORNEY: Well, this is just another attempt by the Republicans to stop the manual recount by serving subpoenas on the canvassing board, to stop the work out there. We're confident that the work will continue. And as far as Judge Lewis's opinion, I haven't seen it, but certainly we all know the Florida Supreme Court is going to have the last say on this.

CANDIOTTI: How big of a blow is this to the Democratic Party since it appears as though they've been pretty much winning every effort so far before the courts?

SAMUELS: It's just more procedural mangling and it's more trying to stop the recounts and to avoid a full, fair and final recount. Ultimately, courts are going to decide still whether that happens. And we believe that it will and we are confident in the court system.

CANDIOTTI: Well, it appears everything is heading down that path. Thank you very much, Mr. Samuels and Mr. Sherer.

So, again, to wrap up here, we'll have another hearing at 1:30 this afternoon. And how Judge Lewis's decision will play into all of this we have yet to see.

Back to you.

KAGAN: But we will stay tuned. Susan Candiotti in Broward County, thank you very much.



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