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Special Event

The Florida Recount

Aired November 20, 2000 - 10:00 p.m. ET

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

JEFF GREENFIELD, HOST: If you're idea of a courtroom was shaped by Hollywood, today must have been a letdown: no courtroom confessions, like in Perry Mason, no steamy sex in the chambers like in "Ally McBeal," no soaring speeches with violin music to make strong men weep.

Instead it was two-and-a-half hours of sometimes arcane, often intense dialogue involving seven justices and two teams of lawyers. It may have sounded very technical: Did section 111.001 clash with 162.168, but at its root, nothing less than the presidency of the United States was on the line.

In the next hour we are going to bring you highlights of today's argument before the Florida Supreme Court. We'll talk with legal experts. We will get front-line reports from the presidential campaigns and analysis from CNN's Bill Schneider and from a panel of top flight, not-yet-exhausted journalists.

But we begin in Tallahassee, Florida, where CNN's David Mattingly brings us some samples of the complexities of today's historic hearing when attorney's for the Gore and Bush campaigns argued over recounts and the justices worried about changing laws and perhaps history.

(BEGIN VIDEOTAPE)

(BEGIN VIDEO CLIP)

CHIEF JUSTICE CHARLES T. WELLS, FLORIDA SUPREME COURT: We would ask that we get right to the heart of the matter.

(END VIDEO CLIP)

DAVID MATTINGLY, CNN CORRESPONDENT (voice-over): The justices didn't have much patience for prepared statements. Again and again, presentations were cut off so the justices could ask questions.

(BEGIN VIDEO CLIP)

PAUL F. HANCOCK, ATTY. FOR FLA. ATTY GENERAL: The real parties in interest to this lawsuit are not the presidential candidates nor the parties that support them.

WELLS: Excuse me for interrupting you, but let me ask you, are you prepared? JOSEPH KLOCK, FLA. SECY OF STATE COUNSEL: The petitioners here, to succeed, a number of things has to occur.

WELLS: But Mr. Klock, let me get you to my concern.

KLOCK: Yes, sir.

(END VIDEO CLIP)

MATTINGLY: One of the first concerns raised by the court: How long can the legal fight continue before Florida loses its chance to cast electoral votes?

(BEGIN VIDEO CLIP)

WELLS: My question is specifically, what is the attorney general's position as to the date in December that the Florida's electoral votes would be prejudiced?

HANCOCK: December 12th, Your Honor, is my understanding. The Electoral College meets on December 18, issue, and we have constitutional law professors here who can address this, but my understanding is it is December 12th.

KLOCK: Problem with respect to the electoral votes in Florida only occurs if the status quo is maintained, if the votes cannot be certified, if contest procedure cannot begin.

WELLS: Would they have to be certified today? Under the federal scheme, is there a mandatory certification today?

KLOCK: Well, Mr. Chief Justice, as governed by Florida law as certification is concerned.

WELLS: But what I'm concerned about is the ramifications under the federal statutes, which as your opposition says here, is December the 12th or six days before December 18th.

(END VIDEO CLIP)

MATTINGLY: Early on the justices signaled concerns about seeming conflicts in Florida election laws, especially a demand for the secretary of state to certify vote totals by seven days after the election. How can that be balanced against the time needed to complete a manual recount?

(BEGIN VIDEO CLIP)

JUSTICE BARBARA J. PARIENTE, FLORIDA SUPREME COURT: What evidence in the record is there that it couldn't be done in a normal situation, understanding there's here some claims that there was obstruction? But what evidence do we have that it couldn't be done within a seven-day period?

HANCOCK: I don't know that there's any evidence in the record.

(END VIDEO CLIP)

MATTINGLY: And is it too late to include the recount results in a certified vote total. The Bush camp argues yes, the Gore campaign says no.

(BEGIN VIDEO CLIP)

DAVID BOIES, GORE CAMPAIGN ATTORNEY: It talks in subsection 8 about the official returns including not only the machine count, the initial returns, but also the absentee ballots, which obviously are coming in after the seven days and the manually counted ballots, which are coming in after the seven days.

So, we believe that if you read all of those sections together, what you have is a requirement of the counties to come forward with their returns seven days after the election, that those returns will then be supplemented by manual recounts, by absentee ballots, and then there will be an official return. And that official return will then be certified.

KLOCK: The petitioners are trying to conduct a contest proceeding prior to certification, not for legal reasons, for political reasons.

(END VIDEO CLIP)

MATTINGLY: Two words we heard quite a bit, protest and contest. A protest is made before certification and is made to the county canvassing board. A contest is made after certification and goes to the court.

And there were questions about what kind of standards were needed for hand counting the ballots.

(BEGIN VIDEO CLIP)

JUSTICE PEGGY A. QUINCE, FLORIDA SUPREME COURT: Should we be trying to determine also this whole issue about faulty chads. If we're worried about this time limit, is that something that we should be concerned with now and is it squarely before this court now?

BOIES: Your Honor, I think it is squarely before the court and I think the court must be concerned with it now because I think that given the particular deadline, the wall that is set up by the federal provision, that this court needs to act expeditiously to set the standards.

MICHAEL CARVIN, BUSH CAMPAIGN ATTORNEY: If you were doing a recount in a municipal proceeding, I don't think anyone would take seriously the notion that, well, we have had some problems with our machines, so what we're going to do is recount in three of the 67 precincts here and then we'll know who the winner is.

(END VIDEO CLIP)

MATTINGLY: But the only definitive word out of the Florida Supreme Court tonight came after the hearing. There will be no ruling today.

David Mattingly, CNN.

(COMMERCIAL BREAK)

GREENFIELD: And now to attempt to translate some of this into ordinarily English, we are joined by CNN's legal analyst Roger Cossack, who is in our Washington bureau. I believe he is tethered to that chair because he is there all the time.

Roger, first we thought we were going to hear an argument about hand counting versus machine counting and fairness and finality and suddenly December 12th becomes the mantra of this court. It almost seems that these justices are worried about something we haven't heard much about until today, what?

ROGER COSSACK, CNN LEGAL ANALYST: Well, Jeff, actually, once again, you're right on it. That kind of caught me by surprise, too. But when you think about it, what they were saying is sort of what we lawyers call, Jeff, you know, the battles of the policies.

On one hand, they said December 12th is the last day that we have to resolve this issue because the most important thing is that we have to make sure that Florida's votes get counted. OK, so everything has to be done by December 12th.

All right, now what? Well, we have these competing values: When do you count? can you recount? what about a protest? what about contest? And what they said was, in fact, look, whatever happens, it has to be over by December 12 with perhaps the hint of, that, if we do allow the recount to go on, that we have to put, maybe, an artificial stop date that everything has to be done, perhaps, arbitrarily by December 1st, so that if someone then wanted to file a contest, which we described earlier would be a lawsuit to take the whole election process. That could be over by, say, December 8th on an expedited method, so that by December 12th, Florida's votes would be counted in the Electoral College.

And I think that's what the process that they were talking about was, time is of the essence. Whatever we do, we have to figure out a way to make sure our votes get counted.

GREENFIELD: So, without attempting to predict, it almost sounded as if the justices were looking to develop some kind of calendar and say to the parties, OK, we're going to, you know, if we allow this hand countings to go through, it's going to be on this basis, which raises this interesting question. Miami-Dade just started recounting. They say it is going to take a month. That's way past December 12th.

COSSACK: Yes, and that's -- once again, Jeff, you have a question that I'm not too sure of the answer. But I will tell you that one of the reasons I think I'm right about this calendar business, as you point out, is at the end of argument, when Mr. Boies got up and made his final argument, one of the questions they seemed to be asking him was, do we have the authority, if you will, to set up a timing process? And he was saying, yes, Your Honor, you do have the authority to set that up, which at least gave the hint that perhaps they were suggesting setting up some kind of schedule.

Now, what you do with Miami-Dade that says they can't get it done in 30 days I don't know, but I have the sense that if the court said to them, you will have it done by December 2nd, there's a very good chance they would have it done by December 2nd.

GREENFIELD: Now, oral arguments with the constant interjection of justices, which is commonplace -- I think it surprised some in the audience, but that is how they do it -- often may not be the best clue to how they will decide.

Were there any particular questions or lines of inquiry you heard today that you went, a-ha, isn't that an interesting approach?

COSSACK: Well, yes, the timing aspect, also, the thing that I thought was most interesting was how poor Michael Carvin ran into this sort fire storm when he began to hint that perhaps hand counting wasn't such a wonderful thing. And you could see that he ran -- I think one of the justices was well prepared to take him on and talk about that hand counting, there's nothing wrong with hand counting and that we are going to have hand counting.

And so, that issue in and of itself sort of got put -- or did get put to the side. There seemed to be this overlying theory of questioning that went to the fact of isn't it the best thing we can do to figure out a way so that most -- so that all of the people who voted could have their votes counted. And that leads to, of course, we're going to have those hand counts and we're going to have those hand counts counted.

GREENFIELD: Roger, thank you very much. I'm sure we'll be hearing -- you know, first impeachment, now this. It's law nerd's dream, I guess. No -- no personal reference there, I promise you.

OK, thanks for joining us.

Now a look at -- now, for politics, a look at how the Bush and Gore campaigns are trying to ride out this post-campaign ordeal. While both sides refrained from making any official comment today, it is obvious they are putting an awful lot of weight on the outcome of today's court proceedings.

So we begin in the Texas capital of Austin, where CNN senior political correspondent Candy Crowley opens her "Reporter's Notebooks" and takes us inside the Bush camp.

(BEGIN VIDEOTAPE)

CANDY CROWLEY, CNN SENIOR POLITICAL CORRESPONDENT (voice-over): One Bush staffer described the feeling inside the Bush campaign when the hearing and the Florida Supreme Court got under way as eerie, sort of a state of suspended animation. If that's true, it didn't show on the governor's face. In fact, about a half an hour into the proceedings, the governor left the mansion and went over to the Statehouse. So while he was watching closely, we're told, he certainly was not listening word by word. Once the proceedings were over, the Bush campaign in Austin and in Florida was very reluctant to say anything. As one aide put it, we want to give the court the respect it is due for its deliberations.

They did put out Governor Marc Racicot, who is from Montana. He is a lawyer. He is less identified with the political arm of the Bush campaign. He did say that he thought the lawyers for the Bush team did a good job in the Florida Supreme Court. But when he was asked about some of the tough questions and whether they led him to believe that the court would decide one way or the other, Racicot was all lawyer and declined to read the tea leaves.

GOV. MARC RACICOT (R), MONTANA: I think what you can discern is that they were very well-prepared and obviously recognized that this is a matter of grave, grave importance, and I believe that their ruling will reflect the kind of precision that is needed under the circumstances. And we feel good and confident about our case.

CROWLEY: As he left the Statehouse in the evening, Bush was full of answers but not necessarily to the questions being asked.

(BEGIN VIDEO CLIP)

QUESTION: Hey, governor, how did the hearing go today?

(CROSSTALK)

GOV. GEORGE W. BUSH (R-TX), PRESIDENTIAL CANDIDATE: Yes, I'm cold, too.

(LAUGHTER)

QUESTION: How did the hearing go?

(END VIDEO CLIP)

CROWLEY: Though the Bush campaign had very little to say, they had big hopes out of the Supreme Court, and obviously, what they hope for, said one aide, is the Supreme Court will uphold what a circuit court said, and that is that the secretary of state of Florida can within her discretion certify those Florida votes. That is their fondest hope out of this Supreme Court.

(END VIDEOTAPE)

GREENFIELD: Now the Gore camp was watching not only that courtroom, but it's keeping a very close eye on the hand recounts that are continuing in three Southern Florida counties. The net gain at this point is not as high as Democrats had hoped, but as CNN's Chris Black tells us in her "Reporter's Notebook," the Gore people say they're optimistic that the justices will rule their way.

(BEGIN VIDEOTAPE)

CHRIS BLACK, CNN CORRESPONDENT: What the lawyers say is, you know, you can never tell what to conclude from an oral presentation, but they were very encouraged by the nature of the questions that the judges were asking. They got the impression that the judges were not really at all hung up on the idea of manual recounts, and they were extremely encouraged that the judges seemed to respond to the campaign's concern about setting a uniform standard for judging the ballots.

The vice president had long been scheduled to go to Nashville on Sunday night to participate in a conference on family issues, and he canceled it because he really didn't want to get pulled into the sort of political tit-for-tat between the Gore campaign and the Bush campaign.

AL GORE, VICE PRESIDENT OF THE UNITED STATES: We decided to move this one out of the heat of the election to late November, so we could be sure that it was well after the conclusion of the election. And you know, I just assumed by November 20th the election would be over with, but I guess not.

BLACK: But he also is intensely involved in monitoring this action and wanted to watch every bit of it.

I would describe the mood of Gore and his advisers as resolute. They believe in their hearts, and every last one of them says that they believe Al Gore and Joe Lieberman carried Florida. They believe that they got more votes than George Bush and Dick Cheney, and they want to hang in there as long as they can, as long as it is feasible to prove their case.

(END VIDEOTAPE)

GREENFIELD: When we come back, we will go beneath today's arguments with two leading lights in the legal academy. So please stay with us.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: It's been a long time. They've counted, they've counted, they've counted. They've come up with new words like chad.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: If there's any question about something that's so important and that has so many ramifications about the future of our country, I think that there should be no question. They have to recount.

(END VIDEO CLIP)

GREENFIELD: And joining me to discuss today's Florida Supreme Court hearing and even broader legal issues, University of Chicago law professor Richard Epstein, who's in our Chicago bureau. In an op-ed piece in today's "Wall Street Journal," Professor Epstein expresses hope the Florida Supreme Court will side with Secretary of State Katherine Harris and spare us further acts in what he calls a drama that has already overstayed its welcome. And in Palo Alto, California, Stanford law school dean and professor Kathleen Sullivan, an expert in constitutional law, a member of the "National Law Journal's" list of the 100 most influential lawyers in America. She also is a supporter of Al Gore.

It's a delight as a one-time law student to be able to quiz famous law professors. So I'll be gentle.

Professor Epstein, if you were in that courtroom today, enlisted in Secretary of State Harris' cause, what from what you were hearing from the justices would give you the most pause? Where would you go, uh-oh, we may have a problem here?

RICHARD EPSTEIN, UNIVERSITY OF CHICAGO: Well, I think they actually have several problems. One is I didn't hear much about the deferential standard (UNINTELLIGIBLE) associated with an abuse of discretion standard. So I think there's some good chance that they're going to try decide this on its own perception of the merits.

And I think the second problem that they have to face is that the justices did not seem to be particularly troubled about the inaccuracies and the possible frauds that might be associated with hand recounts. So those would be the two stumbling blocks.

The thing that would give me modest encouragement from that particular side is that they seemed to be very much worried about the finality issue, and they must be aware that contest will follow in a hand recount.

GREENFIELD: Now, Kathleen Sullivan, the same hypothetical: If you're sitting on behalf of Vice President Gore or Attorney General Butterworth, what did you see or hear today in which -- in which you might think, uh-oh? Is it the finality issue that Professor Epstein was raising or something else?

KATHLEEN SULLIVAN, DEAN, STANFORD LAW SCHOOL: Yes, it is, Jeff. This is a contest in which we have two competing values. Do we care about accuracy and getting the will of each voter right in Florida, or do we care about finality, making sure that this election comes to an end in time not to pitch us into constitutional crisis on January.

And from the Democratic side, the worry had to be that the justices on the Florida Supreme Court were quite worried about when will this end: when can certification take place so that the contest phase is going to begin, when are you going to stop asking for more hand recounts.

Now, there's two separate issues. One, do you finish the hand recounts that have already begun or do you go to a statewide recount? Now, they're didn't seem to be too much interest on the court's part on a statewide recount. But at least the Democrats had to worry that even the hand recounts that have already begun need to finish in time, that they don't like they're running out the clock. EPSTEIN: They also...

GREENFIELD: Yes, go ahead, Richard.

EPSTEIN: Yes, they also have another problem, which is the question of how consistent the standards on the hand recounts are going to be from beginning to end and across counties, even with the three. And then they have to figure out what counts as a chad that's been removed. How much of an indentation, how much of a hanging will do it. And this whole thing, I think, will in effect be subject to both case-by-case challenges and also to challenges on standard. So they have a lot of work before them.

GREENFIELD: Now, Kathleen Sullivan, I want to ask you a question that I think a lot of non lawyers might well ask, which is, isn't it astonishing that while lawyers talk about high-minded principles and fairness and finality, it always seems that the high-minded principles come out on the side of the person you happen to be supporting.

You know, that is, right now no Gore person is talking finality and no Bush person is talking let every vote count.

SULLIVAN: And it was the other...

GREENFIELD: Do folks...

SULLIVAN: And it was the other way around in impeachment, when you had a lot of Republicans...

GREENFIELD: Exactly.

SULLIVAN: ... try to run out the clock and Democrats calling for finality.

GREENFIELD: So is it appropriate for people to say, you know, this is -- this is -- I hesitate to use the word "scam," but that it's a front, that behind it is simply political interest, and that's what going to govern this and high-minded principles are just a cover. What do you think of that?

SULLIVAN: Absolutely not, Jeff. I really do think that one thing that should come out of this process is some respect for legalism. I mean, the real question here is what does Florida law hold? Now unfortunately the law is not always clear, and Florida law has contradictions built into it.

On the one hand, it says a rule, count the votes by X -- 5:00 p.m. on X date. On the other hand it has a kind of standard that says if you want to -- if there's reasonable doubt about an election, go to the machine recount. If there's a contest in the counties, go to the manual recount.

So it's the job of the Florida court to resolve as a matter of law, not as a matter of party affiliation, whether or not those Florida legal standards have been satisfied. You don't want to make up the law as you're going along. That would really look partisan. There should be some law in advance. The problem here is there is law in advance, it just wasn't clear. So I do think the Florida Supreme Court can make a decision that's legal, not political.

And you're right that sometimes people are in an awkward position. You have Republicans who would like to appoint justices to the Supreme Court in favor of states' rights and keeping things out of federal court running to federal court to make federal claims that I agree with professor Epstein's piece in "The Journal" today are very weak.

So people might look embarrassed by the political spin of their positions, but ultimately this will be decided by Florida law, not by anybody's party affiliation.

GREENFIELD: Professor Epstein...

EPSTEIN: I...

GREENFIELD: No, go ahead. You probably don't need my rapprochement to respond.

EPSTEIN: I mean, it's not that I disagree with her aspirational level, but the performance level is something that's much harder.

We can write a respectable opinion either way given the division in the arguments. But the question that you're asking is, behind the respect do be find motivation which is likely to be partisan? And I think the answer to that question would be extremely difficult for these judges to put their private preference aside. And I think the risk that we're talking about here, or that you mentioned, is in fact one that has to be taken into account.

A lot's going to depend upon the way this thing shakes out. If they were to decide, for example, I think, that the dimpled chads start to count, then I think there will be no respect for the decision in question because it will amount to essentially a reversal of a standard that was set long before this particular crisis took place back in 1990.

If, on the other hand, they were to decide to say, we're going to let this thing run its course but keep to the original standards for what counts as a vote, I think that they will have a lot more respect that is coming out of this thing.

So I think to some extent we can read back from the decision to the logic.

GREENFIELD: Now, Kathleen Sullivan, in the time we have remaining, let me throw you a quote that I seem to remember dimly from my law school days. Hard cases make bad law. This is a hard case. What bad law, other than the fact that it might not come out for the guy you are rooting for, but in terms of legal principles, do you have concerns that this could lead to some bad law?

SULLIVAN: No, I think, Jeff, that it turns out that the way we set things up we leave our presidential elections very largely in the hands of the states, and in turn the county governments. So a lot will turn on the law of chad, but the law of chad in Florida will not really make great law for the rest of the country.

The real question here is one of institutional design. Are we happy with a system that makes a presidential election turn on bad product design with the butterfly ballot or turn on what kind of hanging chads count in Volusia County as opposed to Broward or Dade?

If we don't think that's the right way to go, then the issue isn't more court interpretation, it's whether we should make presidential elections more nationally uniform.

GREENFIELD: Thank you...

EPSTEIN: I do think...

GREENFIELD: Richard, I'm sorry -- this is -- unfortunately, unlike law school where you've got 50 minutes or whatever, we are bound by the clock and by capitalism.

EPSTEIN: OK, thank you.

GREENFIELD: Thank you, Richard Epstein. Thank you, Kathleen Sullivan. I greatly appreciate it.

Next, the latest numbers from the hand count. We will get an update from Palm Beach County when this special report continues.

Please stay with us.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: I just think it's getting out of hand really. I mean, it's pretty silly. I mean, if 450,000 people can vote correctly, what's wrong with the 10,000 that couldn't do it?

UNIDENTIFIED MALE: I wish we had a president, but until we figure out a better way I guess we have to do what we have to do.

(END VIDEO CLIP)

GREENFIELD: And welcome back.

Here is the latest we have now on the vote count in Florida. As you probably know, the final but uncertified returns give George W. Bush a 930-vote lead over Al Gore. But the partial tally of hand recounts in Broward, Palm Beach and Miami-Dade counties, they give Al Gore a net gain of 153 votes. All these recount figures are coming from canvassing board officials in those three counties. Quite obviously, we do not know as yet whether they will become part of the official count.

CNN's John Zarrella now, who is covering this story in West Palm Beach -- John. JOHN ZARRELLA, CNN CORRESPONDENT: Jeff, well we're still counting after all these days here in Palm Beach County, as they are in the other counties along the southeast Florida coast, about to wrap up here for the evening in Palm Beach County as they have in the other counties.

We take a look at the breakdown of those numbers and where the vice president has made some gains, in Broward County, which has the most precincts and the most ballots counted at this point. Of 544 of the 609 precincts reporting, the vice president has a net gain of 117 votes.

In Dade County, with 46 of 614 precincts, the vice president has picked up an additional 33 votes. And here in Palm Beach, we have of 104 of the 531 precincts, the vice president has picked up a net gain of three votes.

Now what's interesting about Palm Beach County is, of course, as we all know, the Democrats had said that they thought he could pick up perhaps 1,900 additional votes here in Palm Beach County with a manual recount. And that just is not playing out. The latest information that we have as of now is that they have counted 276,000 ballots in here, in this county -- that's about 60 percent of the ballots -- and he's only picked up three, three additional net gain.

They counted 86,000 today alone, and they have 1,800 that are questionable ballots. Those are -- that's the latest information we got just a little while ago.

At this pace, they say, given a Thanksgiving holiday, they still might be able to wrap it up sometime on Sunday. The plan right now here in Palm Beach County is to count until Wednesday at 5:00 p.m., take the Thanksgiving holiday off, Thursday, Friday and Saturday, and come back Sunday if they can find enough counting teams. If not, they'll pick it up again on Monday.

The canvassing board is going to meet, however, starting on Friday to go over all of the questionable ballots. They've got a lot of them to get through.

What's interesting is that we're not seeing much of a net gain. Although they've counted a lot of ballots, they have not certified a lot of the precincts. So, that's why there's a lag right now between the total number of ballots that have been counted and the total number of precincts that are being certified. And that's because they've got to get all the questionable ballots out of the way first before they can actually sign off on a precinct.

So there still could be some big numbers coming in because we just do not know which precincts -- they're telling us it's a random pick back there -- which precincts, whether they're Republican or Democratic, heavily Republican, heavily Democratic, that have to this point been counted.

So again, the counting's going to continue here as it is in the other counties tomorrow, and perhaps we'll be wrapped here in Palm Beach County sometime on Sunday. But that would be almost two weeks after they began -- Jeff.

GREENFIELD: Thank you, John. And unlike what we did election night, CNN is not going to project the final outcome of any of these counties.

Now, apart from the legal battle, there is a political fight going on for the hearts and minds of the public. Our senior political analyst Bill Schneider has been studying the possibilities and he joins us from Washington.

Bill, one of the big stories I think the last day or two, apart from the Supreme Court, was the barrage laid down by Republicans about Democratic challenges to the military absentee ballots. That seems to have spooked the Gore campaign and the Democrats a bit. Yes?

WILLIAM SCHNEIDER, CNN SENIOR POLITICAL ANALYST: That -- it certainly did. That charge had resonance with voters and it made a lot of people angry. I think they were outraged at the idea that the Gore campaign was challenging military ballots, particularly because they lacked the proper postmark. You know, the voters are not in control of the postmarks, particularly military voters.

Congressional Democrats, we found, have been telling the Gore campaign to really back off, because they're very fearful of a backlash from among military voters and military personnel in their own districts.

GREENFIELD: Now, apart from that direct impact, I want to talk about the secondary impact. Did that what apparently was a successful political effort by the part of the Republicans, do you think that's going in any way to affect Democratic support for Al Gore if he chooses to fight on should the Florida Supreme Court and the hand count not come out in his favor?

SCHNEIDER: Well, Jeff, it already is. Here at the Washington bureau, we have spoken to top-ranking Democrats who are in close communication with the Gore campaign, and they're telling Al Gore that the Florida Supreme Court really has to be his last resort, that if the court delivers a negative decision for Gore, that really -- he really can't go any further.

The Democrats are getting wobbly, and I think one reason is there is increasing pessimism about the numbers. You just heard John Zarrella talk about the fact that the hand counts are not producing the numbers that Gore needs. And Gore's also losing the public relations battle.

Perhaps unfairly, people see Gore as the sore loser, the guy who took back his concession speech on election night, and also that he more than Bush appears to be the one willing to use the courts to get what he wants.

I think the mood is out there is that a lot of Bush supporters are angry and resentful because they believe Gore is trying to steal the election, whereas the Gore supporters are more frustrated. They believe they actually won the election, but they just can't prove it. GREENFIELD: Which leads us to one last question, and that is -- and if I can use a Sherlock Holmes phrase -- "the dog that did not bark in the night." Gore's still leading in the popular vote by a couple of hundred thousand, and I think some people might have thought, well, you know, the public is never going to accept a president who's lagging in the popular vote. And yet the impact is what?

SCHNEIDER: Well, it's negligible. And that really surprised me, because I thought the voters would be outraged at the idea that Gore could lose the election while he's still winning the popular vote, but it does not seem to be turning into a big public relations advantage for Gore, and that's a real surprise.

There might be two reasons for it. One is that the public -- the nationwide vote is really very close. Gore is winning by less than one quarter of 1 percent, and of course, the nationwide popular vote has no constitutional standing. But probably more important than that is that Americans believe in playing by the rules, and the rules in this case are the electoral college, and the view is those are the rules, they were set down, both candidates understood it. The voters, while they don't know too much about the electoral college, they know what playing by the rules means.

But I'm not even sensing that's very widespread that the rules are unfair, that they have to be changed. Perhaps that'll happen after a winner is finally agreed on and people begin to think about what really happened.

But there's not much of a sense of outrage out there.

GREENFIELD: OK, thank you, Bill Schneider. And in a moment, our panel of journalists assemble to consider the post-election court and political battles. And we're going to show you a suggestion, whimsical at first, that is really looking better and better as the days drag on.

Please stay with us.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: I think now it's getting a little ridiculous. I think it's obvious that Governor George Bush has won Florida, like, four times now. I think the counting should stop.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Actually, they probably should disqualify both of them and give it to Nader.

(END VIDEO CLIP) GREENFIELD: Well, that's an interesting suggestion, and speaking of interesting suggestions before our panel begins, I want to bring you a suggestion made on this program the day before the election. During our unconventional conversation, I asked writer/director/novelist Andrew Bergman that if he were writing this presidential campaign as a movie, what the last scene would be. This is before the election.

(BEGIN VIDEO CLIP)

ANDREW BERGMAN, WRITER/DIRECTOR: They wind up dead-even, 269 electoral votes each. They have to put on a big show to see who wins, like an old Buzby Berkeley kind of thing. You know, they fly all the electors into New York to the Roxy or the Palace, put on a big show. Best show, applause meter, they win. Bang-o finish.

(END VIDEO CLIP)

GREENFIELD: Now, the question seems to be is what we are witnessing in Florida any less bizarre -- for that matter, less desirable -- than Andrew Bergman's suggestion of, you know, let's put on a show. So we're going to get some answer from three our regular guests. Elizabeth Shogren is the Washington correspondent for "The Los Angeles Times." Also in our Washington bureau, indoors this time as opposed to his last appearance, Andrew Sullivan, a senior editor for "The New Republic," and proprietor of his own Web site, AndrewSullivan.com. And here in New York is Time.com editor Rick Stengel.

I've got to ask -- let me start with you, Rick. What do you think of Andrew Bergman's suggestion? Just put on a show and whoever gets the most applause is president.

RICK STENGEL, TIME.COM: Well, the candidates were obviously listening to him. They complied and it looks like that's what's going to happen.

GREENFIELD: I see. OK, Elizabeth, I realize in Washington you take this stuff much more seriously than we do in New York, but -- but is there a sense that this has now become to some extent, farce? I mean, we know "Saturday Night Live" is having a ball with it, but within Washington is there some sense that this has gone off the rails?

ELIZABETH SHOGREN, "LOS ANGELES TIMES": Well, it's true in Washington people take this very, very seriously, and it is a serious decision. But sometimes I think maybe it would be better decided with a flip of a coin or, I don't know, penalty kicks like in soccer because it seems that it is within the margin of error and so either man could have won this election. I don't know we will really know who really won.

GREENFIELD: Well, they do, I guess, in some states, I think in South Dakota you have a choice, or New Mexico, of coin flip or drawing a high card in poker. But Andrew Sullivan, I do have the sense, and you know, you can -- please correct me if I'm wrong, that if you looked at Washington and divided it left and right, that, as Bill Schneider was saying earlier, that the right is much more angry at Al Gore than the left is at George W. Bush right now.

Is that a correct perception, do you think?

SULLIVAN: That is certainly my impression from talking to people here. I think that there is sense that if Bush finally eked it out and was able to be president, then the Democrats could probably live with him.

But the Republicans are really infuriated right now, especially at the sort of legalisms and the military ballot issue has really thrown, I think, a match onto a tinderbox. I think if we have a Gore presidency, we are certainly going to have the biggest rush for Rush Limbaugh and Drudge Report and the vast right-wing conspiracy that we've ever had before. It's going to be an absolute bonanza for them.

GREENFIELD: Do you think -- I want to follow up with you Andrew -- do you think, to some extent, "The Wall Street Journal" news pages today as opposed to their editorial page, which is in pretty high dudgeon -- had a story that a lot of the Republican complaints about the hand count may have been ginned up. That is that they may have been encountering local officials to complain, the better to discredit the hand count.

Do you have any sense of that as a possibility that it's part of a pretty effective political campaign?

SULLIVAN: I think that's part of it. I think that they really don't need much more than the fact that all the military ballots were apparently thrown out. That's the beginning of it. The other part of is that it is truly chaotic there in the rooms. I mean, the latest joke going around is that Al Gore want a nine-month delay so the pregnant chads can actually give birth to baby chads in time for the election to be tallied up. That's how acute this sort of humor and hostility now is.

GREENFIELD: Yes, go ahead, Rick?

STENGEL: The problem here is that there is some illusion of precision. The Republicans believe that somehow there is some kind of perfect way of resolving this that is ultimately fair and particularly fair to them. There isn't. I mean, the law isn't a precise instrument the way we want it to be. There are dimpled chads and pregnant chads and all of these things require a measure of subjectivity. They seem to think that there is some objective answer to all of this and there is not.

Ultimately someone is going to decide and it is going to be arbitrary. It's like what Elizabeth said, there is a margin of error here and somebody is going to have to make some decisions to say who is going to be president. GREENFIELD: Well, one thing I think, Elizabeth, that, at least from the distant shores of New York, that does seem to have had quite an impact, as Bill Schneider was discussing, were those military ballots that Andrew mentioned. I mean they -- that issue with the implication, really, that Democrats are seeking to deny votes to the servicemen and women who are on the front lines, maybe risking their lives -- that seems to have really rocked the Democrats back on their heels, no?

SHOGREN: Well, I think that issue is important and just in general there is an erosion, a subtle, still, erosion of support for the vice president, even among his ranks. I cover money and politics and I have been talking to some of biggest donors, in fact, the biggest donor, individual donor to this election, and there is lot of sense, even among the people who have spent a million dollars to put Gore in office, that he really let people down in the last weeks of the campaign and that he didn't really win this election. They would still like to see him pull it out, but they don't think he persuaded the American people well enough that he is man that should be president.

SULLIVAN: I'll tell you something, Jeff. I think that there are a lot of people in Washington now quietly praying that the hand counts do proceed but that Gore does not get enough votes from them when all is said and done to overtake Bush. That way you get the best of both possible worlds. You get a sense that the hand counts went forward, that justice was done, but it didn't quite work out. That, I think, is even what some Democrats are now praying for in the city.

GREENFIELD: I want to pick up on that and also pick up on some of the implications of a Bush win, and for that matter, a Gore win when we come back. So stay with us because our panel will, I hope.

(COMMERCIAL BREAK)

GREENFIELD: I'm Jeff Greenfield and welcome back to this special look at "Election 2000: the Situation in Florida."

My guests tonight are "Los Angeles Times" Washington Correspondent Elizabeth Shogren, who is in our Washington bureau. That's appropriate enough, I guess, for the Washington correspondent.

Andrew Sullivan, senior editor at "The New Republic" and proprietor of the eponymously named dot.com site, also in Washington.

And here in New York, "Time.com" editor Rick Stengel, who, I remind our audience when you are on, was a senior adviser to Bill Bradley.

Now, so, I want to get a little personal, Rick, just a little. You spent months trying to deny the Democratic nomination to Al Gore. You are now witnessing a situation which he has to be suffering the tortures of the damned, having probably won the popular vote and come so close and yet so far and may lose the presidency. Any satisfaction in that? STENGEL: You know, I think either person who wins is going to have a -- you use the word damned -- I mean, is going to have a kind of cursed presidency. I think Al Gore can take a certain consolation in the fact that he's leaving no stone unturned, that he did campaign terribly hard if not always wisely, and I think at the end of the day, the scenario that Andrew sketched out is probably most likely one. And in fact, he will come out of it all right, if he, in fact, wants to run again.

GREENFIELD: Elizabeth, it does seem that -- to pick up on what I was talking about with Andrew earlier, the commitment or anger or determination of the Republicans -- it sound as if by some way that Al Gore gets those Florida electoral votes, it sounds as if the Republicans in Congress are bound and determined not to let those Florida votes be cast for Al Gore.

Take us into that a little bit. I mean, how serious do you take Tom DeLay's examination of the Congress' power over the electoral votes?

SHOGREN: I don't know. I think once the people have spoken and once the count is made, whichever way it comes out, I don't think anyone is going to be able to stand in the way. I think that there would be too much of an uproar.

GREENFIELD: Andrew, would there be too much of an uproar or would the Congressional Republicans say -- they have already said in so many words that Al Gore is trying to steal this election. I mean, what is your sense?

SULLIVAN: I think that congressional Republicans might, but my hunch is that Bush would bow out. I don't think he is that desperate to win this in that way, and I think that he'd be smart enough to realize that if he bowed out, he has it for 2004, he could win that coming election, the right wing will fuel a backlash across the country against Gore and that's how it would happen. I think that it would be a classic example of how the congressional Republicans are not the same as the Bush Republicans, there is a slight split in that.

You look at it in the past week, Bush has taken a pretty low-key approach to fighting for this. I think there is some concern among some Republicans that I have been talking to that they have been too low key, they haven't fought this, they haven't realized that the campaign is still going on. The Republicans are under the delusion the campaign is ended when the polls closed, and they are waking up to the fact that in this current climate that's not the case.

GREENFIELD: In the time we have left, I want to give all of you a chance -- I'm not sure that you're going to appreciate this -- to do some long-range prognostication, because we're so good at short-range prognostication.

Rick, a year from now, will this astonishing -- and I don't think that's an overstatement -- post-election period be a dim memory, or will it be defining the political climate of the country, or something in between? STENGEL: Yes, I think in a way almost both. I mean, your question points to the standard that we should be using with this, which I don't hear people talking about, is we should be resolving this not for what it will seem like a year from now, but what historians will look at this 100 years from now. That's why a delay doesn't really matter. But I think that a year from now, whoever is president is going to be cursed by this whole thing, it's going to haunt them, the House is so close, the Senate is so close, that president is not going to get much of a chance. He will -- you know, the best thing to happen would be some kind of power-sharing arrangement, I'm sure that won't happen, but I think that the president will be crippled by this.

GREENFIELD: Elizabeth, we're down to our last minute, so you and Andrew split it, what do you think a year from now?

SHOGREN: I'd like to be a bit of an optimist. Whoever wins the presidential race decides that the American people have made it very clear that they want somebody who is more middle of the road in the presidency, and so they take a moderate view and together with a very split Congress they are able to do the things that the American people want done without doing the other things that are on the two polls.

GREENFIELD: Andrew Sullivan, a touch of optimism, you share it?

SULLIVAN: Absolutely I share it. I think this will be regarded as the same thing as impeachment. I think it will be all historically part of the same period in which this divisiveness is acute. I think it depends who's president, but I think if Bush plays his cards right as president, he does have a chance to make a go of it. I think Gore is, I'm afraid, under too many shackles at this point.

GREENFIELD: All right, that's our time for this segment, I want to thank you all, Rich Stengel, Elizabeth Shogren, and the no longer freezing on the roof of CNN, Andrew Sullivan. Thanks for joining us.

And in a moment, I'm going to offer you a metaphor, an image that just might explain where we are right now.

(COMMERCIAL BREAK)

GREENFIELD: And finally, as we try to explain where we are now and how we got here, I thought of an image that just may help. Think of walking down a city street that's been torn up to fix a water main break. You peer down and you suddenly notice that underneath this smooth street there's this incredible tangle of pipes and wires and cables, a whole world of underground machinery. Not only that, a lot of these pipes and machinery in pretty bad shape. It's just that until something broke, we didn't notice.

I think that's what's happened with this election, a lot of the machinery just wasn't up to the burden of an incredibly close election. The way we count the votes, for instance, the sloppiness and messed up ballots that always happen may this time determine who wins the White House. The pageantry of the Electoral College system may this time select the president who actually got fewer votes than the guy he beat. The normally reliable network projections may this time have changed utterly the whole psychology of election night. Before next time, maybe each of these pieces of machinery will undergo some badly-needed repair.

That's all for tonight. Stay with CNN for the latest on the Florida vote. The state Supreme Court could rule on the ballot recount as early as tomorrow. I'm Jeff Greenfield.

"THE SPIN ROOM" at 11 p.m. Eastern is next with Bill Press and Tucker Carlson.

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