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Florida Supreme Court Halts Certification of Vote Totals; Counties Counting Overseas Ballots

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


ANNOUNCER: This is a CNN special report.

A one-two legal punch against the Bush campaign.


JAMES BAKER, BUSH CAMPAIGN OBSERVER: We are disappointed, of course.


ANNOUNCER: Republicans see their effort in federal court to stop manual recounts denied. While Florida's highest court forbids a final official tally until further notice handing the Gore campaign a victory, at least temporarily.


AL GORE, VICE PRESIDENT OF THE UNITED STATES: I'm very pleased that the hand counts are continuing. They're proceeding despite efforts to obstruct them.


ANNOUNCER: The stage is now set for a major showdown in Florida's Supreme Court next week.


BAKER: The Supreme Court will find that the secretary of state properly exercised her discretion and followed the law.


ANNOUNCER: This is a special CNN report on the Florida recount. We begin in Washington with anchors Bernard Shaw and Judy Woodruff, and senior analyst Jeff Greenfield.

JUDY WOODRUFF, CNN ANCHOR: And to our viewers in the United States and around the world, thanks for joining us. The legal landscape in Florida literally seems to shift by the hour. Here are the latest developments. The Florida Supreme Court has ordered the secretary of state not to certify the result of the election until the court says so. Monday, the court will hear an appeal from the Gore campaign on whether the secretary of state may reject the results of manual recounts.

Recounting by hand continues in several areas because a federal court today denied a GOP request to stop the action. Meanwhile, absentee ballots must be in the hands of county officials by two hours from now. The Associated Press reports those ballots have given Bush a 652-vote lead over Gore so far.

BERNARD SHAW, CNN ANCHOR: Here now with a closer look at all these court matters, CNN's Deborah Feyerick in Tallahassee.

DEBORAH FEYERICK, CNN CORRESPONDENT: Well, Bernie, a lot of the votes now being totaled up. The absentee ballots -- everyone has been wait to hear what the results of those are. There will be a final check of the post office and then of course the results will be announced tomorrow, though they will not be certified. That was the finding of state court today.


FEYERICK (voice-over): As the absentee ballot results streamed in, the race for president passed through three courts Friday. The Gore team late in the day, winning a temporary reprieve when Florida's highest court blocked Secretary of State Katherine Harris from certifying any vote totals, as she had planned to do over the weekend.

CRAIG WATERS, FLORIDA SUPREME COURT SPOKESMAN: The court on its own motion enjoins the respondent, secretary of state and respondent, elections canvassing commission from certifying the results of the November 7, 2000 presidential until further order of this court.

FEYERICK: Seven Supreme Court judges unanimously agreed to hear arguments to decide whether or not manual recounts now underway in several counties can be included in Florida's final tally. The Gore team filed their appeal after a district court earlier in the day said the secretary of state could ignore new vote totals.

TERRE CASS, COURT ADMINISTRATOR: On the limited evidence presented, it appears that the secretary has exercised her reasoned judgment.

FEYERICK: But Gore's attorney's argue that Harris, a Republican who co-chaired Bush's Florida campaign, arbitrarily ruled out new votes before knowing what they were.

DOUG HATTAWAY, GORE CAMPAIGN SPOKESMAN: The secretary of state here has done everything she can to delay the counting of votes.

FEYERICK: Harris's lawyer defended the state's top election official, saying she has followed the law.

JOE KLOCK, SECRETARY OF STATE LEGAL COUNSEL: The secretary doesn't have a horse in this race. Her job is to follow the law of Florida and to certify the elections the way they're written.

FEYERICK: Another blow to the Bush campaign came when a federal court of appeals denied their request to put an end to the hand count altogether, deciding instead it was a matter first to be considered in state court.


FEYERICK: And the next state court hearing will be Supreme Court, Monday 2:00. Both sides there to present oral arguments which in the end could ultimately decide whether the vote is changed.

Reporting live from Tallahassee, Deborah Feyerick, CNN, Florida.

SHAW: Thank you, Deborah. A closer look now at Florida's Supreme Court. Six of the justices are Democrats and one is an independent. All were appointed by Democratic governors except for one, who was appointed jointly by a Democrat and Republican. Aside from today's ruling, the court two days denied request from Katherine Harris to stop all hand recounts and to consolidate the lawsuits.

For a closer look at the legal aspects of this Florida recount, we're joined by CNN election analyst Kenneth Gross and very shortly, we're expecting to hear from former Supreme Court justice Gerald Kogan.

Ken, given the political affiliation of the justices on the Supreme Court in Tallahassee, what would you say to people who wonder whether these justices can administer rulings fairly?

KENNETH GROSS, CNN ELECTION LAW ANALYST: Well, reviewing the court decision of the Florida Supreme Court, they do have a history of independence and I think that's what's going to be stressed here. Whatever opinion they render, they're going to go to great lengths to make sure it is based on whatever authority is available in that state.

There aren't a lot of election law cases involving these issues, but there are some out there and they're going to hang on those as much as possible. The unfortunate reality is that they are all Democrats except for one independent and if they rule in favor of Gore, half the country is going to say they were acting politically, which is unfortunate because in part the court system is on trial here as well as the presidency.

SHAW: As you know, and our viewers know former Secretary of State James Baker, Governor Bush's lead attorney there, has frequently referred to the merits of the case. What are the merits of this case?

GROSS: This is a case about discretion, about the legal discretion whether the secretary of state properly exercised her discretion in enforcing a 5:00 deadline on last Tuesday for accepting of ballots.

Of course, the argument on the other side is, is that these ballots are the ballots that were rightfully tabulated and voted upon by the people, and a deadline should not be ignored because there were good reasons to get them in late because there was a justifiable hand recount.

That's the clash, and the court is simply going to have to decide whether she properly exercised discretion -- that is, the secretary of state of Florida in rejecting the decision to hand count these ballots which took them past that deadline.

JEFF GREENFIELD, CNN SENIOR ANALYST: Ken, you know, Mr. Dooley once said the Supreme Court follows the election returns. And it cannot possible escape these people that a decision for instance to require the secretary of state to include certain hand-counted ballots or not is going to determine -- may determine who the next president is. To what extent can a court distance itself from the inevitable political ramifications of its decisions?

GROSS: Well, you know, the reality of this is that it is steeped in the politics. The best way a court can distance itself is to base its decision on the legal authority as much as they possible can. They've just got to get away from the politics of it and stick to the law. Keep their eye on the law.

So far this court has taken a moderately active approach. They're not going to let political events bypass them. That would have happened, potentially, if they had not su esponte, on their own issued this order today to the secretary of state not to certify the votes tomorrow. If she had certified and then the Bush campaign would have stood up and said, we're the winner, and political events might have overtaken.

So we see a court here that's trying to preserve a atmosphere for legal decision making and not get involved as much -- to the extent possible in politics.

SHAW: Ken, one last question. How soon after the oral arguments, 2 p.m. Monday in the Supreme Court, how soon would we expect a ruling?

GROSS: Well, I don't think they're going to rule immediately, like that day. This court put off this hearing until Monday. They could have had a hearing tomorrow. They could have had a hearing on Sunday. But they said no. We're going to take a couple days. We're going to order the secretary of state not to take action.

We're going to have the parties brief this case. We're going to hear oral arguments, two hours of oral argument on Monday afternoon and then we're going to issue a decision maybe in a day or two after that. I don't think they're going to take a week, but you're not going to see any instant decisions on Monday.

SHAW: CNN election law analyst Kenneth Gross and our apology. We were expecting Florida Supreme Court Justice -- former Justice Gerald Kogan but we were not able to bring him up -- Judy.

WOODRUFF: And turning away from Florida just a moment, the Associated Press is reporting that Al Gore will be the winner in the state of New Mexico. With 100 percent of the vote in, Gore leads Bush by 481 votes. It is the closest presidential race in the country outside of Florida. However, results will not be made official until the state canvassing board meets on November the 28th. With the official tally, Gore would pick up five electoral votes.

SHAW: Still ahead on this CNN special report, an expert on constitutional law considers where the presidential election will wind up legally. And we're going to find out what the Bush and Gore campaigns have to say about today's court decisions. We'll be right back.


WOODRUFF: We are following reaction from the Bush and Gore campaigns to today's court actions.

And let's go first to CNN's Chris Black. She is here in Washington and she is going to tell us what the vice president had to say.

CHRIS BLACK, CNN CORRESPONDENT: Judy, the Gore campaign was as stunned as anyone else when the Supreme Court of Florida handed down its unexpected order forbidding Secretary of State Katherine Harris from certifying the election returns tomorrow.

The vice president was intending to make a preemptive strike at 4:00 to make his case to directly American people and say, look, this election is not over no matter what you may hear tomorrow. But he had to wait for 45 minutes while lawyers obtained the order and analyzed it. Gore then came out welcoming it and he said it backs up his argument and that is, the people of Florida should decide this election.


AL GORE, VICE PRESIDENT OF THE UNITED STATES: Neither Governor Bush, nor the Florida secretary of state, nor I, will be the arbiter of this election. This election is a matter that must be decided by the will of the people, as expressed under the rule of law, law which has meaning as determined in Florida, now, by the Florida Supreme Court.


BLACK: The Gore campaign was convinced that Secretary Harris intended to declare George W.Bush the winner on Saturday. That would have put tremendous pressure on the vice president to give up this fight. But now with this decision, plus the U.S. district court decision to refuse to stop the hand counting, the Gore campaign has bought what it really needed: time, time to get enough results from the hand recounts to prove their contention that Gore got more votes in Florida than Bush did.

The focus now is on the three counties with recounts. It should be noted, all in heavily Democratic counties where Gore got a huge vote. Now, the going is very slow but Gore is picking up some votes and his observers are convinced he can pick up enough votes to offset Bush's lead.

WOODRUFF: Chris, we know the Florida Supreme Court, the make-up of it, seven individuals, all of them appointed by Democrats. What are the expectations of the Gore camp at this point from the Supreme Court which is going to make an important ruling next week?

BLACK: Judy, they are extremely optimistic. I mean, there are no guarantees. You never know what any sort of court is going to do in the end. But they point out that in the last two days three separate times the same court has ruled in their favor. And they also note -- every lawyer I've talked to today has said the same thing -- how unusual it is for a court to take an order on its own. No one actually asked the Supreme Court to take this step today. On their own, they decided to freeze the action.

WOODRUFF: All right, Chris Black here in Washington.

As for the Bush camp, the Texas governor arrived back in Austin this afternoon. And that's where CNN senior political correspondent Candy Crowley is standing by -- Candy.

CANDY CROWLEY, CNN SENIOR POLITICAL CORRESPONDENT: Judy, all along for the last 10 days the Bush team looked to Saturday as a way to bring some finality to this race. It has had very little of it for a year and a half.

What they got instead, of course, was this Supreme Court decision in Florida saying that a certification in Florida cannot take place on Saturday. So, there was disappointment all around from the political team in Austin and from the legal team in Florida.

But having had that ruling and holding it in hand, the Bush team tried to make the best of it. James Baker, the Bush team's point man in Florida called it a status-quo decision.


JAMES BAKER, OBSERVER FOR BUSH CAMPAIGN: We remain confident that for all of the reasons discussed by the trial court in its two opinions the Supreme Court will find that the secretary of state properly exercised her discretion and followed the law.


CROWLEY: The disappointment was a good deal more obvious from the political arm. They called decision out of Supreme Court surprising, an unusual statement and an unusual action, because, as Chris Black pointed out, no one had asked for this court ruling.

Still they look forward to what they hope will be a favorable decision Monday or Tuesday. Said one aide, after everything we've been through for the last ten days, we are used to the rollercoaster by now. We will go back up again -- Judy.

WOODRUFF: Candy, I want to ask you the same question I asked Chris, and that is, given the make-up of this court -- not to suggest anything about the leanings of these justices on the Florida Supreme Court -- but what at this point are the expectations of the Bush people?

CROWLEY: Well, the expectations in private are pretty much what you heard in public, and that is James Baker saying, look, we had this trial court judge who said that he thought the secretary of state was acting within purview, was not acting irrationally. That was court order that we got earlier today, the court ruling saying that it looked like the secretary of state was acting as she should under the law.

So, they remain very hopeful that the Supreme Court really was just trying to sort of stabilize things. And as you heard Secretary Baker say that this was not a ruling from the state Supreme Court that was based on the merits. It was simply a sort of status quo ruling from their point of view. So, they remain hopeful, publicly and privately.

But the fact is, what else can you do? This court decision is coming up. And so they remain hopeful that they will have a strong enough argument that the secretary of state in Florida will be given the freedom to go ahead and declare the election certified.

WOODRUFF: All right, Candy Crowley reporting from Austin, thanks very much.

So, the question on everyone's mind: Where will all this end? with one sweeping legal decision? or several? or even in Congress?

Mark Tushnet is a professor of constitutional law at Georgetown University here in Washington.

Professor Tushnet, thank you for being with us.

Before I ask you about the role of Congress in this, a question about the federal appeals court today, today declined to get involved even after the Bush campaign cited a denial of equal protection under the law. Is this an argument that we have heard the end of? we're not going to hear this anymore? or could it get revived later?

PROFESSOR MARK TUSHNET, GEORGETOWN UNIVERSITY: Well, the technical matter probably could get revived. The case that the Bush people had presented in federal court was not a very strong one, both on procedural grounds, as the court of appeals said, these issues should be basically explored in state court. and on the merits, the equal protection argument for a variety of reasons just is not -- it resonates in public, but as a legal matter, it's not a very strong argument.

WOODRUFF: Your sense is that if courts decide this, it's going to be the Florida state courts, rather than any federal courts.

TUSHNET: Yes, I think that the dispositive issues are going to be in the Florida courts.

WOODRUFF: Questions are being raised, Professor Tushnet, now, about the electors. Of course, Florida would send -- what this is all about is Florida sending its 25 electors to vote for either Bush or Gore. New scenarios, though, being surfaced now, wherein maybe there would be more than one set of electors. Talk to us about what the possibilities are if you reach a deadlock in Florida. What could happen here?

TUSHNET: Well, if this is not resolved by the courts and by the politicians, all sort of scenarios could open up. The middle of December when the electors meet, you could have 25 Republican electors meeting and 25 Democratic electors meeting and they'd send votes to Congress and Congress would have to decide in early January which ones to count. And the procedures for doing that are not very well- settled. So, basically, if it doesn't get settled relatively soon, all sorts of possibilities open up.

WOODRUFF: When you say not very well-settled you mean because we've never had a situation like this?

TUSHNET: There have been some similar things. Nothing, of course, on this scale and there are some precedents in the House and Senate about what to do when you get this conflict of electoral votes. But it's much more significant now and the precedents might not carry very much weight.

WOODRUFF: Jeff Greenfield has a question.

GREENFIELD: We haven't had a situation where it's actually been thrown into serious doubt since, I think, 1876. Is there any concern that this 200-year-old piece of machinery, which has been in a sense rusting away for more than a century, might not be up to the politics of the early 21st Century?

That is, we could be in for a really serious, difficult -- I don't mean blood in the streets, but because even the Congress isn't even sure of it's power. much less the public. Are you worried about that?

TUSHNET: Well, certainly, the case that after this situation is resolved, there'll be some discussion about whether the machinery should be changed. Basically, most people seem to think that the system works except under really extraordinary circumstances.

GREENFIELD: Like this one.

TUSHNET: Right, but it happened once 100 years ago. It happened once now. It's not clear that you have to change everything for something that's going to happen in another hundred years.

GREENFIELD: Just a quick follow up. In the 19th century, we didn't elect our senators, women didn't vote, blacks didn't, it was a much less small d democratic time. You think the public when it wakes up and realizes how much it's out of this process at this point is going to raise an eyebrow and say we had no idea?

TUSHNET: Well, I think the realization that the Electoral College doesn't necessarily mirror what the popular vote is beginning sinking in. Whether something will be done about that after this situation is resolved is another matter entirely.

WOODRUFF: I'm not sure it's at all likely, Professor Tushnet, given the divisions that are so clear now in the country, but what happens if some electors decide they are not going to go with the person they supposedly were going to represent? What does the Constitution say and what do the various states say about that?

TUSHNET: The Constitution and the traditions associated with the Constitution say that the electors can vote for whoever they want. And there's nothing wrong with that. Indeed, when the Constitution was designed the point of the Electoral College was to get these people together and they would think and deliberate over who they thought the best person for the country would be.

It's since then that this notion that they're a rubber stamp developed. Now there are some state laws that purport to require the electors to vote for the people they're pledge for, but those laws are almost certainly unconstitutional.

WOODRUFF: Just to quickly follow up on what Jeff was asking, is there any aspect that really worries you about whether the Constitution is sufficient to handle all of this?

TUSHNET: Well, If the discrepancy between the popular vote and the electoral vote really becomes a persistent problem, then there's something seriously wrong. We don't really know whether that's going to happen. This is an extraordinary election at least so far. But if it happens again, then something probably ought to be done.

WOODRUFF: Professor Mark Tushnet from Georgetown University Law School, thank you very much for joining us.

TUSHNET: You're welcome.

SHAW: Still to come on this CNN special report, a panel of journalists give our Jeff Greenfield their perspective on this unconventional election.

And is the public's patience with this presidential impasse starting to wear thin? Our Bill Schneider will have the results of a new poll.


SHAW: This election, this election stalemate is moving toward its second week with no end in sight. What do Americans make of all this waiting? Our CNN senior political analyst Bill Schneider joins us with that -- Bernie.

WILLIAM SCHNEIDER, CNN SENIOR POLITICAL ANALYST: Bernie, time is now of the essence. The Gore campaign wants to stretch this thing out. The Bush campaign wants to shut it down. What does the public want to do?

(BEGIN VIDEOTAPE) SCHNEIDER: Which is more important: For this to end quickly, say within a week, or for both campaigns to have a chance to make their full case in court?

That's what "The Washington Post" poll asked on Thursday. Surprise. Most Americans want this settled in the next week, especially Bush supporters. Gore supporters say it's OK to wait for each side to have its day in court which is why Democrats were delighted by the Florida Supreme Court's ruling delaying the certification of the vote.

Is it faith in the legal process that's driving Democrats? Not exactly. Democrats believe that the more votes are counted by hand, particularly in Democratic counties like Broward and Palm Beach, the more they'll cut into Bush's narrow Florida lead. The minute those publicly hand-counted ballots show Gore overtaking Bush, Democrats will claim the advantage and portray Bush as trying to steal Florida from them.

Gore defends hand counting as fair. Bush rejects hand counting as not accurate. Which do Americans think is more accurate: ballots counted by machines or ballots counted by hand? Surprise. Americans trust machines more than people.

So does this mean that the public would accept a final tally without hand counts, as Bush wants? Yes, that would be fine with most Americans. That's why Bush believes if he can get a result announced as soon as possible -- that is, while he's leading-- the public would accept it.

But, they would also accept a final tally including hand-counted ballots. In fact, that's slightly more acceptable. Two counts are better than one. That's why Gore is saying, let's wait and get a better count, one that just might show him ahead.


SCHNEIDER: Once the overseas ballots are tabulated on Saturday, every minute that passes without a certification of the vote works to the advantage of Al Gore. Saturday to Monday, Bernie, that's a lot of minutes.

SHAW: So once again, Bill, tactically for Vice President Gore, why it is important to him that this hand recounting continue.

SCHNEIDER: Well, they believe that as long as the counting continues, they can keep the nation's impatience at bay while piling up more Gore votes to overcome Bush's 652 vote lead, which is where he is now. The minute Gore overtakes Bush in the vote count, then the whole political equation begins to shift.

More people have voted and their votes now have made a difference. Can the court dare allow the Florida secretary of state to exclude those vote.

Of course, Bush can still say he wants a statewide hand recount, and Gore has said, fine. But that means, one, Bush would be giving up his opposition to hand recounting, and two, he'd be repudiating his call for finality. Bush -- Bush -- would then be responsible for delaying the outcome.

SHAW: Bill Schneider, thank you -- Judy.

WOODRUFF: And there is much more ahead on this CNN special report. First, a look at the margin of error in counting ballots by hand versus machine. And then later, we'll examine current methods of voting across the United States and what it would take to standardize it for federal elections.


WOODRUFF: The Bush campaign insists there is a chance for human error and even mischief to occur during a manual recount of ballots. But as CNN's Brooks Jackson reports, machines do not have a history of being perfect.


BROOKS JACKSON, CNN CORRESPONDENT (voice-over): Is a machine count enough? The plain fact is punch-card reading machines routinely make small errors.

ROBERT SWARTZ, CEO, CARDAMATION CO., INC: It would be rare to have these types of cards fed through and have a large, large number of cards without there being some minor discrepancy.

JACKSON: Swartz's company provides punch-card equipment and services to universities and businesses, where he says multiple machine counts are routine and hand counts of cards are not uncommon.

SWARTZ: We make sure we run them through twice and compare the results for 100 percent accuracy. If we're getting a difference, we then examine the cards to find out what the problem is, whether it's the card reader's problem, something's jammed in there, or whatever.

JACKSON: If counting machines were perfect, you should get the same count every time a given batch of ballots is run through -- theoretically.

RICHARD SMOLKA, ELECTION ADMINISTRATION REPORTS: Theoretically you should, but you probably get a slight variation because all the chad are not clearly detached, so the reader may or may not see enough light or have enough -- may not be able to read what the voter did.

JACKSON: Smolka has covered vote-counting controversies for 30 years.

SMOLKA: We haven't found an infallible vote-counting method yet.

KIMBALL BRACE, ELECTION DATA SERVICES, INC: Machines are always suspect, and they can have problems to them. You need to have that double-check and cross-check of a hand count. That is allowed in almost every single state of the nation. JACKSON: Would hand counting damage the cards? Not according to this expert...

SWARTZ: The cards are designed to be handled by people. That was the purpose when IBM developed these cards, and they're used for all sorts of purposes where they are handled by people.

JACKSON: Vendors of vote-counting equipment say accuracy can reach 100 percent, given proper maintenance and exacting procedures for handling ballots. But even a tiny error rate can make a critical difference.

(on camera): There were nearly 6 million votes counted for president in Florida. An error of only 1/100 of 1 percent would amount to 595 votes, enough to change the outcome.

(voice-over): And machines are all too human.

Brooks Jackson, CNN, Washington.


WOODRUFF: just ahead, beyond the candidates and the two political parties, who wins and who loses when all the balloting is done? We'll hear from our Jeff Greenfield and a panel of journalists.


SHAW: Yes, some day that Florida recount will be over and we'll have a new president. For a look at the likely winners and losers beyond the balloting, CNN's senior analyst Jeff Greenfield joins us with a panel of keen observers.

JEFF GREENFIELD, CNN SENIOR ANALYST: Yes, we've decided to bring you back from the sunshine state of Florida and talk about Washington and what's ahead with three journalists, who are going to share with us their perspectives: Andrew Sullivan is a senior writer at "The New Republic," edits his own Web site,, and is braving hypothermia to be with us from our studio. Tamala Edwards is warm and inside. She's also a political writer at "Time" magazine more importantly. And Jake Tapper is the Washington correspondent for the online newspaper

Andrew, speaking of weather -- you know, when a snow falls in September and throws off the calendar, the snow hits the leaves, trees fall, power lines are down -- in some sense, is this endless campaign disrupting the natural calendar of post-election Washington?

ANDREW SULLIVAN, "THE NEW REPUBLIC": Yes. We were all supposed to be on vacation by now and we're sitting here in the freezing cold biting our nails. I think it's absolutely exciting. Everybody is part horrified, part riveted by this, and staying up every night late writing and thinking and chatting. So worse things could happen.

GREENFIELD: Tamala Edwards, how much second-guessing is going on in different camps among Republicans and Democrats that you hear about? In other words, do you hear Republicans saying if only they had listened to me and Bush would have done X? If only -- the Democrats are saying -- if Gore had listened to me, are you hearing a lot of that?

TAMALA EDWARDS, "TIME": Well, I think most of the second guessing -- well, it hasn't started as much with the Democrats. It's more, how long can this go on? trying to gauge public opinion, trying to gauge at what point do you cut it off.

And with the Republicans it's much more backward looking. That last week, him taking the Sunday off a week before the election, going to states like New Jersey and California, there are people now who think that's not what he should have been doing. He should have spent a lot of time in Florida, a lot of time in the Midwest.

GREENFIELD: Jake Tapper, even though nobody can claim a victory, are there particular forces on the left or the right that can look back at this campaign and say, if my guy wins he's really going to owe me? and who would they be?

JAKE TAPPER, SALON.COM: I don't hear a lot of that right now, because so many Republican governor's, for instance didn't deliver for Governor Bush. And, you know, I think that there are Democrats out there who feel that Al Gore delivered a lot better than anyone anticipated that he would. You might remember there was only one poll, the Zogby Poll, that had Al Gore winning the popular vote by one percent.

So, there are people Gray Davis, the governor of California who are able to say, look, we told you he was going to deliver -- I was going to deliver California and we did.

GREENFIELD: Well, stay with that for a second, Jake and then I want to hear from the others. For instance, I would think the African-American community can say in a lot of key states, Gore is going to owe us big time because we turned out, that labor may be able to come to Gore with some chits and say, we got our vote out, no?

TAPPER: I think absolutely, without question the African- American community, without them turning out, and labor in states like Pennsylvania and Michigan, without the turnout, Al Gore would not even be in this race.


GREENFIELD: OK, one at a time, folks.

Tamala, let's let Frosty the Snowman here -- go ahead Andrew.

SULLIVAN: It's like, what is this, the Discovery Channel?

No, I think whoever wins at this point is going to have such a razor-thin margin that they can't pay back anybody. I think we are going to have autopilot for four years, which, for everybody who voted for either candidate with severe reservations, is great. It means that we are not going to get a big tax cut probably if Bush gets in. We're not going to get a big prescription drug entitlement if Gore gets in. All the money is going to go to pay down the national debt. I think, in fact, this end game is giving the voters exactly what they wanted in the last few days of this campaign.


EDWARDS: I think that's an interesting perspective, but I do think the unions will come back if it's Gore because you know, they had many issues with him going into this campaign and for union officials to get their guys in line in different states to get the day off to get people out to the polls, I think they will come back and say it was razor thin and you really needed us and now you owe us.

GREENFIELD: Try this one out. Do any of you hear Republicans saying, you know, long term it would have been better for us if Bush lost and Democrats saying, you know, if Gore were to take a dive on this one, we would be in great shape to take the Congress back in two years and then come in.

Any of that kind of conversation going on?

SULLIVAN: Absolutely, Jeff. I think if Gore wins this, I think he's going to be a paralyzed president. I think the Republicans are going to loathe him. They are not going to give him anything on the Hill, and I think they are going to build for 2002. The Gore wins, Rush Limbaugh's day has arrived. I mean that right-wing insurgency is going to take off. So I think, frankly, Gore would be better off losing. He's not going to take this advice, but I think he will have a terrible task if he wins this way.

EDWARDS: Actually, I disagree with that a little bit, because what I'm hearing up on the Hill is that there's not necessarily a groundswell of support for Gore 2004. I think this is Gore's moment if he can take it.

But in terms of a Bush presidency, I think Democrats on the Hill are steeling themselves for that, and as someone said to me, he's going to be swimming upstream. This is going to be fine for us if we have to deal with Bush. So, I think they think that they can make their way either way.

GREENFIELD: Let me let Jake Tapper get in and then Mrs. Woodruff has a question for you guys.

Jake, what do you think about this notion that there's, I guess, a Machiavellian way to look at this? Losing now, what's the Bob Dylan line, the loser now will be the winner then? I don't think that's it, but you know what I mean.

TAPPER: Well, I think Al Gore -- I mean, Tam's right. This is Al Gore's moment. He ran such a horrendous campaign in a time of unprecedented peace and prosperity, that he is not going to be -- he'll be embraced like Hillary Clinton is going to be embraced in 2004. Nobody wants it. People want to win the White House.

And I think also Al Gore has been smart in one thing that he has done, which is not to heed the advice of the pundits right off the bat who told him, you know, be magnanimous, concede and in 2004 everybody will love you because he knows that those pundits are wrong and they don't love him any more than the American people are going to love him in 2004.


WOODRUFF: Something for you all to chew over, I mean, before the elections so many people were saying the loser is gonzo, is out of here. We are not going to hear from this person again. But, are we talking about a shadow president? I mean, if one of these gentlemen graciously concedes, is he going to have enough clout to really create huge headaches for the winner?

SULLIVAN: If Gore wins, I think Bush is going to start immediately campaigning for 2004. His slogan is obvious, it's going to be: this time it's personal. And he's going to have a huge Republican support for that. Operation 2002, the Republicans would sweep the Hill, I think, if Gore wins this way. I mean, if Gore had won clearly it would be another matter, but winning through litigation will just fire them up.

TAPPER: I think also what one slogan for Governor Bush if he doesn't get it is, I trust the machines not the people. That might be the one for him in 2004.

GREENFIELD: Before I turn you all into consultants, Tamala, as a matter of simple human empathy, I'm thinking of the politics -- well, let's take the candidates, sitting there with this prize within their grasp and yet so far and the operatives who figured, at least on November 7th I will collapse across the finish line one way or the other.

EDWARDS: And the journalists who thought they would be done.

GREENFIELD: Well, nobody cares about us. I mean, forget us a minute. But it doesn't remind me of that famous picture of the marathon runner that staggered into a stadium, fell across the finish line unconscious and it was the wrong finish line. I mean, is there a sense in which these folks are starting -- let me put it bluntly -- lose it?

EDWARDS: No, not necessarily. I think this is the kind of situation that Gore does best in, a fight when he has got his back up against the wall. But if I hear the phrase Groundhog Day one more time out of people in his campaign -- you know, they're like, you get up, you lose some, you win some, and then you go to bed and you do it all over again. And they have no idea where it's going to end up.

And I think it's -- you know that feeling that they had on Election Night where for a minute they had it and then it was taken away, that keeps being replayed over and over again. You win one court battle, you lose another. You have no idea where you're going to end up and when it's all done -- you know, I got a message from somebody inside the Gore camp today and it ended -- you know, it was his daughter and it ended with, what a mess. You know, just this whole idea of, can you believe how crazy this is? And I think that's hard to grapple with.

SULLIVAN: I think it's scarier that Gore has not lost this. I think it's scarier this man lives on three hours of sleep, is fanatically observing every single legal intricacy. For me and for my money, Bush just hanging out at his ranch dealing with his boil is a much more appealing and humane experience. And frankly I sympathize with him immensely. But Gore running this thing, and the way he is, he's hyper-charged, I find that a very bizarre personality.

EDWARDS: You know, I think survival is the first human instinct and the idea of a race and then you go off to the ranch, that one is hard for me to understand. I would be out there fighting for my political life.

TAPPER: Not to mention, he's delegated so much to James Baker, to his daddy's former right-hand man. And I don't know that -- they're running their battles, their recount battles, much as I think their White Houses would be run, and the idea that Governor Bush has delegated so much to Tallahassee forces is, I don't know, a little disturbing in a way.

SHAW: Could you responder this question? When does this victory become politically worthless?

EDWARDS: I think if it gets to the Supreme Court. I think anything before then, you know, they will go through inauguration, people will move on, the country will move on, they will turn to the transition. But if this victory has to come out of the Supreme Court, that's when I think it gets sketchy, if not dangerous.

GREENFIELD: Andrew Sullivan, we heard about Groundhog Day and how sick Tamala was at that. If I hear uncharted waters once more, I think I'm going to be at a yacht club someplace.

But since they are in uncharted waters, think about the long-term effects of this. I mean, do you think this is going to have an impact or is this going to be like so much else in our media age that we are all obsessed with it and in a year from now it will be just a distant memory?

SULLIVAN: I think it depends entirely on who wins. I really do think that a Gore victory now is politically worthless for him. I think he has got to figure out how, if he wins this way, to throwing trial lawyers at this, by delaying, by getting this court action and that court action, I think he's going to have a very hard time governing. So I think it's over for him, basically.

TAPPER: Wait a second, Andrew. I mean, both of them have thrown trial lawyers. Both of them have been throwing lawsuits out there. And the truth of the matter is that Governor Bush knew, when Al Gore called for that second concession speech, he knew because he had already been called by John Ellis at Fox news that Florida was too close to call. GREENFIELD: Gentlemen, lady, people, it sounds like we can have a sequel any day now on the way this is going. It might be months from now.

Thanks all for joining us and Andrew, have a scotch.

SULLIVAN: I will. Don't worry.


WOODRUFF: No uncharted waters here.

Just ahead on this CNN special report, will Election 2000 affect the way we vote in the future? and at what cost? We will be right back.


SHAW: This question for you: Could the fallout from election 2000 land in the voting booths of future elections? CNN's Garrick Utley explores the way Americans vote today and what it would take to change it.


GARRICK UTLEY, CNN CORRESPONDENT (voice-over): How do we cast our votes in the 3,066 counties which conduct and pay for elections? Let us count the ways. In 40 percent of the counties, there is an optical scan of the votes. In 18 percent, the now famous punch-cards, whose technology dates back more than a century. In 15 percent of the counties, there are still voting machines, which they stopped making 30 years ago.

And of course, other methods still in use include the original paper ballot.

(on camera): If you think there must be a better way, a more uniform way, a more understandable 21st century way to elect our public officials, no doubt you're right. The question, though, is, Who's going to pay for it?

(voice-over): Advocates of cyberspace say make the computer and the Internet the new polling booth, but there are security problems online and not everyone has a computer. A more promising familiar method would put an ATM-type system in the polling booth, but here, too, computers are more expensive than paper.

KIMBALL BRACE, ELECTION DATA SERVICES, INC.: The electronic systems can cost up to $4,000-$5, 000 a piece, and certainly at that price you can't really have a lot of them in a polling place unless somebody else is footing the bill.

JONATHAN NAGLER, PROFESSOR, NEW YORK UNIVERSITY: If the states were to tell counties, we're going to go to a uniform system, here's the technology we're going to use, and we will pay for it, you would see no resistance. UTLEY: But if the states say they cannot afford it, then the electoral buck may be passed onto Washington, at least as far as electing a president is concerned.

SEN. ARLEN SPECTER (R), PENNSYLVANIA: It seems to me that we can do much, much better on how we vote on federal elections, and the thought on my mind is that Congress should address this issue at least as to federal elections.

UTLEY (on camera): Whether voting should be conducted with a touch screen computer, the Internet one day, by mail, or simply the old-fashioned paper ballot, there is still that question: What is it worth? Is it worth the cost of an aircraft carrier or a stealth bomber?

(voice-over): Perhaps we cannot put a dollar value on this part of democracy called voting, but estimates can be made of what a uniform more accurate system might cost.

NAGLER: If you add it all up across the U.S., it's unlikely we're talking about billions and billions. You know, we could be talking about some number in the order of tens of millions, hundreds of millions perhaps.

UTLEY: A bargain if it means that the way people vote will be less confusing, more accurate, and that what has happened this time doesn't have to happen again.

Garrick Utley, CNN, New York.


WOODRUFF: So here's a brief update on the latest in the Florida recount: With a deadline of a little more than one hour away in most of the states, the counting of absentee ballots from overseas continues in Florida. The Associated Press says those ballots give George W. Bush a lead of 652 votes.

Elsewhere the hand recounting of ballots continues in several areas after a federal court today refused Republican requests to intervene. In the popular vote, the Associated Press estimates Vice President Gore nationwide clings to a lead of 200,000 votes.

SHAW: And on that note, we thank you for watching this CNN special report: "The Florida Recount."

WOODRUFF: Stay with CNN for "THE SPIN ROOM." That's next. Have a good evening.



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