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CNN Today

Florida Recount: Democrats Suffer Major Setback in Florida Circuit Court Ruling

Aired November 17, 2000 - 2:00 p.m. ET

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

LOU WATERS, CNN ANCHOR: High-fives from the Bush camp and emergency appeals on the Gore side. It boils down to this in the neck-and-neck fight over Florida: Will the hand-counted votes count? The Gore team made beeline for Florida's supreme court to try and overturn that lower court ruling. The judge concluded the secretary of state can -- can reject late-reported, hand-counted ballots in the final tally. Certification of the votes is expected tomorrow. Despite the decision, the hand recounts resumed in two Florida battleground counties this morning, Broward and Palm Beach. Republican voters went to court today to try and stop the recount in heavily-Democratic Broward.

Overseas ballots, estimated at 2,800 as of noon today, will be accepted until midnight. A very unofficial count of the overseas ballots have added slightly to the Bush lead.

We have Mike Boettcher now in Tallahassee. He's been watching events at the Circuit Court.

Mike, tell us where we go from here?

MIKE BOETTCHER, CNN CORRESPONDENT: Well, let's first talk about overseas ballots, rather than the hand-counted ballots, Lou. We'll keep that all straight and get to that in a moment.

What's going on behind me, in Leon County circuit court, ironically in the same courtroom where the Democrats lost their case today, the overseas ballots are laid out on a table. There are only 49 here. Those are the ones that arrived after the Tuesday vote. Now there are representatives of the Republican, Democrat Party. They are inspecting these ballots. Some will be challenged. It will then up to the county election canvassing commission to decide which will be counted, but there are 49. In about 30 minutes, they will start to put the ballots through the machine, and we'll start to get totals all over the state on those all-important overseas ballot. We really don't have an indication of how that will go, expect for past history. And in 1996, for example, there were about 2,300 of those which were counted after the Tuesday election between Dole and Clinton, and Dole won about 54 percent of those ballots, so that is historical precedent.

Now, back to the legal battle that occurred today. The circuit court judge, Terry Lewis, ruled that the secretary of state of Florida did not abuse her discretion when she said that she is setting this deadline for Saturday and will not consider the hand-counted ballots. The Democrats were quick to respond. Warren Christopher and David Boies, the attorney for the Gore campaign, came to the podium very quickly to say that they were going to the supreme court.

(BEGIN VIDEO CLIP)

WARREN CHRISTOPHER, FMR. SECRETARY OF STATE: If Secretary Harris goes forward tomorrow, we believe that such a step before the authorized recounts have been completed would be a mistake, would frustrate the will of the people in Florida, would risk acting contrary to Florida law, which requires her to declare a winner only after it has been determined which candidate has received the largest number of votes.

If she does go forward tomorrow, we will take steps to have her action set aside or reversed. The winner in Florida should be and must be the person who received the greatest number of votes under a full, fair and accurate count.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

DAVID BOIES, GORE CAMPAIGN ATTORNEY: We will be saying, now, to the courts, you've got to look at the substance of the certification. You've got to now address the issue of whether that certification involves, in the statutory words quoted by Judge Lewis -- Quote -- the rejection of a number of legal votes, sufficient to change or place in doubt the result of the election" -- close quote. And we think that that standard is a standard from -- just from the evidence already on the record, that demonstrates that the secretary of state's certification that was made as of last Tuesday and the certification that apparently the secretary of state intends to make on Saturday would be improper under Florida law.

(END VIDEO CLIP)

BOETTCHER: The big question now is, whether the Supreme Court in Florida will hear that. They have been waiting until the end of the day to make those sorts of judgments. We're watching it very closely to find out.

Right now, there is a public meeting of the Leon County Canvassing Board. They are talking about those overseas ballots. There are 49 of them laid out on the table. They will go over the challenges to those ballots and the board will decide which ones stay and which ones go. This process has been duplicated in 66 other counties around Florida -- Lou.

WATERS: Mike Boettcher, we will let you go, because it sounds like a golf match.

NATALIE ALLEN, CNN ANCHOR: Thank you, Mike.

The recount controversy also remains under consideration by a federal court here in Atlanta. All 12 justices of the 11th circuit of appeals have yet to decide on whether to rule on the request from the Bush campaign to shutdown the recounts. These justices also are considering a related case filed by several Republicans voter in Orlando asking that the recounts be stopped.

But the recount resumed this morning in Palm Beach County. That's where election workers going through hundreds of thousands of ballots.

And CNN's John Zarrella is there -- John.

JOHN ZARRELLA, CNN CORRESPONDENT: Natalie, a little bit of information following up on what Mike Boettcher said in Leon County, where the canvassing board there has begun the absentee ballot count. Behind me at the podium here in just under two hours, the canvassing board will come out, and they will count in public here all of those absentee ballots from Palm Beach County, so they do intend to certify those and send them up to the secretary of state this afternoon. They'll get that order of business out of the way now.

Now inside the emergency operations center, behind me, the canvassing board has been poring over some questionable ballots. You can see them at times with the ballots up to the -- looking up to the light see if they see light shining through. Again, what's happening is that the 26 teams that are counting for seven hours at a time, 14 hours a day, two sets of teams, what they do is they take only the absolutely certain ballots, the ones that have a punch hole all the way through, put those in a pile for the different presidential candidates, and any questionable ones -- the one with the one corner out or the pregnant chad, as they've been called -- all of those are thrown out to the side, and the canvassing board goes over those, and only they can make the determination as to whether to count those ballots.

Now, of course, what led to all of this in Palm Beach County was that so-called "butterfly ballot" that had the presidential candidates listed on two sides of the ballot with the bunch holes down the middle. And what a resulted in that was 29,000 ballots being thrown out; 19,000 that had more than one presidential candidate counted and 10,000 that didn't have any presidential candidate listed on the ballot. And because of that, half a dozen lawsuits filed in circuit court by citizens here in Palm Beach County, saying that they wanted a revote in the county,that their vote didn't count and it was unfair because of that butterfly ballot.

The judge, Jorge Labarga, who today has been handling the case, a while ago said, we are going to take a look at that and issue a ruling on Monday on that. The attorneys for the -- in the case say they feel confident about the outcome.

(BEGIN VIDEO CLIP)

GARY FARMER, PLAINTIFF'S ATTORNEY: We're in a little unique situation here as opposed to what you would consider an ordinary lawsuit in that we've gone to the end of the game and started there, and the determination of whether the remedy which we seek can be awarded. And as I said to Judge Labarga today, we just hope that the judge does not foreclose the possibility of that remedy at this early juncture.

(END VIDEO CLIP)

ZARRELLA: Now the canvassing board is continuing to pore over those ballots again, taking a look at all of those before they make a decision, Natalie, on whether to count those questionable ballots or not to count those questionable ballots -- Natalie.

ALLEN: Do you know if they're getting much input there from the Democrat and Republican observers right over their shoulder?

ZARRELLA: That's right. They continue to have both of those observers there right there with them, getting input and, of course, the partisan input from both sides, but it is their decision, the three members of the canvassing board, to determine the intent of the voter in those questionable ballot, and they can listen to the arguments posed by the representatives of the two parties, but they themselves, those three, have to make the crucial ultimate decision.

Let me tell you, we have very narrow numbers. 6-0 lead from some numbers received last night from one small precinct that they finished tallying. But they're up around 20,000 now. But no new numbers, but the vice president was leading 6-0 in the recount so far. Very early returns, so to speak -- Natalie.

ALLEN: All right. And as you said, we expect their counting will take place and keep going until next Tuesday evening. A lot could happen between now and then.

Thanks so much, John Zarrella.

WATERS: And now to Austin, Texas and reaction from the Bush campaign to today's developments.

CNN's Jeanne Meserve keeps an eye on things there.

Hello again, Jeanne.

JEANNE MESERVE, CNN CORRESPONDENT: Hi, Lou.

First, let me tell you about a potential reaction to tomorrow's development. We asked the Bush campaign if they would declare victory if the Florida secretary of state does indeed tomorrow certify election results that show George W. Bush ahead. And we were told, "Events that take place 24 hours from now are an eternity away."

Now the campaign does believe that Governor Bush will be ahead when those overseas absentee ballots are tallied after midnight tonight. One staffer saying, based on history, we believe they should go for Governor Bush. It is unclear by what margin. The campaign of course heartened by the court decision this morning, which said that the Florida secretary of state acted within authority to deciding to exclude hand counts from the tally of Florida votes. Secretary of State James Baker was the first to react from the Bush campaign. He said the governor and runningmate, Dick Cheney, were understandably pleased.

(BEGIN VIDEO CLIP)

JAMES BAKER, FMR. SECRETARY OF STATE: The rule of law has prevailed. The court applied the rule of law objectively and fairly, upholding, as the judge's opinion states -- the quote -- "reasoned judgment" -- close quote -- of the secretary of state and the state election commission certification of results on November 15.

(END VIDEO CLIP)

MESERVE: Now an appeal of that court decision is still looming, but a Republican familiar with the legal toing and froing in Florida expressing optimism of the Florida Supreme Court will not overturn it. This person explained that, to do that, the Florida Supreme Court would have to rule that Judge Lewis of the circuit court did not know what he had in mind in first ruling, in which he said the secretary of state had to use reasonable standards to exclude those hand-counted ballots. That they think is problematic and unlikely to happen.

So there is optimism in the Bush campaign. I would not say, they are dancing in the streets by any means, however.

Communications director Karen Hughes telling reporters an hour or so ago, everything is in flux, we are in a wait mode -- Lou.

WATERS: Jeanne Meserve in Austin, Texas. And this still unresolved election is the talk of every town in the United States. To find out what America's friends and foes are saying, check out our Web page, CNN.com. There you also can learn how Congress could overturn whatever happens in Florida.

ALLEN: Thanks for that, Lou. Something else to think about.

About 15 minutes ago, we had our live camera at the state appeals court where the court clerk made an announcement and he talked about a case out of Volusia County. Let's get all squared away with what exactly that related to. Roger Cossack has been checking on this for us.

Roger, we need you.

ROGER COSSACK, CNN LEGAL ANALYST: Well, it's good to be needed, Natalie.

Here's where we are. You know, as you know, they're going up to the state supreme court to discuss whether or not Judge Lewis' ruling on what the judge said Katherine Harris did was proper. But there are other lawsuits out there that have to do with Secretary Harris, and what the supreme court I think has done has decided that all of these things will be consolidated for the one hearing. As we know, Vice President Gore's legal team has filed what's called an emergency writ, emergency -- asking for an emergency hearing, meaning quickly, let's get done in hurry, we need to know right now.

And so I think what the supreme court is going to do is try to consolidate all of these matters and put a conclusion to all of the district lawsuits that are out there having to do with Katherine Harris' actions. It's obviously a good idea if we can do it.

ALLEN: All right, so any question about recounts will be at this one setting for the supreme court?

COSSACK: Well, all questions, certainly having to do with Katherine Harris' activity will be there. Remember, there is this other lawsuit, I think that's still hanging out there, having to do with, you know, my favorite phrase, the pregnant chad, and I think that that's question has to -- the constitutionality of that was decided, or is being listened to, in a Florida court. I'm not sure whether or not that will be consolidated, but I think all of those having to do with, is the voting over Tuesday night at 5:00 p.m. or will additional votes be counted.

As you know, Judge Lewis has said that no, secretary of state Katherine Harris did not abuse her discretion, and therefore, her intention to shut the votes off at 5:00 p.m. next Tuesday and to just count the absentee ballots and call it day is so far, at least until the supreme court says no, is what the ruling is.

ALLEN: And is it anybody's guess where the state supreme court will rule on the matter before tomorrow at noon?

COSSACK: Well, I don't know about anybody. It's certainly my guess, but I couldn't tell you what they are going to do. A long time ago, I stopped trying to guess when state supreme courts are going to do things.

But I think the key again here is again, that when we hear the word "emergency" -- look these seven justices recognize exactly how important this case is. I mean, you know, we've now been since -- excuse me, we've now been since a week, over a week, without a clear- cut winner in the presidential campaign. We need a winner. We need finality. And I think that the Supreme Court of Florida understands this. I think the Supreme Court of Florida is the best place for this decision to be made. Presumptively, states should handle their own elections policies, and unless there's something that's done that violates our individual constitutional rights, the state should make final decision. And, Natalie, I think that's what's going to happen here one way or the another. Obviously, there is going to be half the country that is disappointed and half the country that is going to be pleased with what's decided. But I think the important thing is to come to a final decision.

ALLEN: Roger Cossack. Thank you, Roger. We will see you again.

WATERS: Here's what to watch for in the next few minutes, assuming the trains run on time. In Austin, Texas, the Bush campaign will be heard from again. Spokeswoman Karen Hughes will step out. When that happens, we'll pick that up live. That should happen 2:30 Eastern time. That's about 13 minutes from now.

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