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Florida Supreme Court Considering Validity of Manual Recounts

Aired November 21, 2000 - 8:00 p.m. ET


WOLF BLITZER, CNN ANCHOR: Tonight, the waiting game.


CRAIG WATERS, SPOKESMAN, FLORIDA SUPREME COURT: There has been no decision yet whether an opinion will be released tonight.


BLITZER: As Florida's Supreme Court deliberates on how Florida's recount should proceed, the Bush and Gore camps trade charges over the other's intentions.


UNIDENTIFIED MALE: I just think the Democratic Party is reaching to try to find votes wherever they can be and where they're not.



SEN. BOB KERREY (D), NEBRASKA: We didn't fish for votes, we are just trying to get an accurate count in the votes and if George Bush is the president, God bless him, but if it's Al Gore, God bless him as well.


BLITZER: And the issue of absentee ballots from the military.


UNIDENTIFIED MALE: It appears that a campaign sought to target the military overseas voter and that is wrong.


BLITZER: As the hand count in three Florida counties presses on, a close look at the dimples and chads that could determine the next president of the United States. The legal arguments and the political strategies ahead in this special edition of THE WORLD TODAY: "The Florida Recount."

Good evening. I'm Wolf Blitzer reporting from Washington.

Two weeks after the presidential election, all eyes are on the Florida Supreme Court. Indeed, all eyes are on this door, a door where we may be getting some indication. We're awaiting a decision on whether manual recounts in three Democratic strongholds should be included in the state's final tally.

As the hand counts continued today, so did the legal challenges. The Bush campaign filed a surprise brief with the state Supreme Court, contending the justices do not have the authority to set ballot standards. The Democrats asked the court to consider whether partially punched ballots should count as votes. They countered today by accusing Republicans of stalling.

In a setback for the Bush camp, a circuit court judge rejected a motion to stop the manual recount in Miami-Dade County. The recount pressing on in South Florida has netted moderate gains so far for Al Gore. Still to be decided is whether piles of overseas military ballots lacking postmarks will be counted.

With no decision yet from the Florida Supreme Court, we turn now to CNN national correspondent Mike Boettcher in the Florida capital.

Mike, any indication at all what we could expect, if anything, tonight?

MIKE BOETTCHER, CNN NATIONAL CORRESPONDENT: Well, Wolf, we're trying to do a little on scene addition, trying to see what adds up and it may add up to something, it may add up to nothing.

But the court has not told us to go home tonight like they did last night. Secondly, the Florida state marshal who is designated to come out and give us 30 minute warning before the opinion is read by the spokesman for the court, he is still in there. He walked out a few minutes ago with a cup of coffee and looked at all the crowds out there. And third, there is a heavy police presence here.

Now, we were told this morning that the police and the highway patrol and sheriff's office here asked for a two-hour warning if an opinion was going to come down, because they wanted to have police presence here. There's a small group of protesters and they were concerned that would grow.

Whether that adds up, we don't know. We're standing by here in case it does add up to an announcement.

Now, earlier this evening, Governor Jeb Bush of Florida, who has maintained a very low profile throughout all of this election ordeal was at the Florida Women's Hall of Fame ceremony inducting three Florida women into that hall of fame. And after that he spoke publicly for the first time to cameras. He was asked what he believes the affect of all this delay has had on the nation.


GOV. JEB BUSH (R), FLORIDA: We're a resilient nation. I don't think there's any damage to our country. I worry about the world a little bit. I worry about the instability that this may send, the perception of instability. Clearly, we are not -- we have a president. We're not in a constitutional crisis or anything like that. So, there's nothing from that perspective that would be worrisome at all. But I think over time that this has some impact, probably, on the financial markets and on the world.

But the good news is that we are reaching a conclusion. This is going to come to an end and the rule of law will prevail and we'll move on.


BOETTCHER: If the court does come with an opinion, there is one central thing to look at: Does the secretary of state have the authority to certify the election and not count those hand ballots -- Wolf.

BLITZER: Mike Boettcher about to begin his third week in Tallahassee.

Thanks for joining us.

And now to the recount. Here's where it stands right now. In Palm Beach County, elections officials have not released new numbers since yesterday. What we have so far shows a gain of three votes for Al Gore. In Broward County, Gore has a net gain of 118 votes with all 609 precincts counted. And in Miami-Dade, Gore has gained 114 votes with 99 precincts out of 614 counted. The official, uncertified state results show Bush leading by 930 votes.

Meantime, the partial recount results from the three counties give Gore a net gain so far of 235 votes, about a quarter of the votes needed to overtake Bush. Keep in mind this: The hand count results are still subject to the Florida Supreme Court ruling, and may not be included in the final statewide tally.

While all the precincts have been recounted in Broward, the counters there still have a bit more work to do. Then elections officials will turn their attention to thousands of questionable ballots.

With details now, here's CNN's Susan Candiotti.


SUSAN CANDIOTTI, CNN CORRESPONDENT (voice-over): On the seventh day, Broward County completed review of all 609 precincts, and continued recounting 50,000 absentee ballots. Once that's done, probably Wednesday, these people can go home.

But there is no rest for the canvassing board. As many as 2,000 dimpled ballots will be evaluated, unless the Supreme Court orders the panel to stop.

SUZANNE GUNZBURGER, BROWARD COUNTY CANVASSING BOARD: Then we'll be able to give every voter their vote when they intended to vote for a president, be it Governor Bush or Vice President Al Gore.

CANDIOTTI: The board's chairman, a Democrat, says he's troubled by trying to determine a voter's intent on ballots with less than two corners punched out.

UNIDENTIFIED MALE: You don't know, and you can't guess, and you can't count it. That's my view.

CANDIOTTI: Regardless, the board's attorney says the law indicates even those questionable ballots should be considered.

UNIDENTIFIED MALE: I would much rather go to the voters of this county and say we've wasted our time and effort than to say, we're sorry, we were lazy and we didn't count something.

CANDIOTTI: Contrary to Republican charges that scores of overseas military ballots had been thrown out, in Broward County, the board said no overseas ballots were thrown out for missing postmarks. Here the county counted any military ballot properly signed, witnessed and dated by Election Day.

A new face joined the board this day. Republican circuit court judge Robert Rosenberg replaced elections supervisor Jane Carroll. She had been the lone Republican, but quit, she said, for health reasons.

JUDGE ROBERT ROSENBERG, BROWARD COUNTY CANVASSING BOARD: I'm simply a judge, and I'm looking at this in as fair and dispassionate a way as I can.

CANDIOTTI (on camera): The board hopes to complete canvassing those absentee ballots Wednesday and then take an early Thanksgiving holiday before resuming work Friday unless the Supreme Court changes their plans.

Susan Candiotti, CNN, Plantation, Florida.


BLITZER: Earlier today, a judge rejected a Republican attempt to stop the hand count in Miami-Dade. The judge also denied a request by Republicans to sweep the counting room for fallen chad. Tomorrow in Palm Beach County, a hearing is scheduled for several requests, including one by Democrats to force the canvassing board to count dimpled ballots.

Next here, campaign strategy as the candidates await the decision from the Florida Supreme Court. And defining dimples: getting the chad to count depends on where it's hanging. And later Jeanne Moos, down for the count.

This is a special edition of the THE WORLD TODAY.


(BEGIN VIDEO CLIP) UNIDENTIFIED MALE: We're here defending democracy and fighting for democracy in Kosovo. It's very disappointing to think that maybe our votes aren't going to be counted.


BLITZER: The future of the presidency may be up in the air, but Bush campaign officials say the Texas Republican is not waiting for the Florida Supreme Court ruling to prepare for office. He continues what they call "quiet transition work."

CNN's Candy Crowley has more from Austin, Texas.


CANDY CROWLEY, CNN CORRESPONDENT (voice-over): The grassroots and the Republican Party show no signs of crumbling as George Bush faces a critical -- but Republicans say not necessarily final -- ruling from the Florida Supreme Court.

As the governor of Texas goes about the process of normal activity under abnormal circumstances, his political team in Austin and his legal team in Florida are in contact with the Republican leadership, monitoring the pulse of support. A source close to the Florida operation says James Baker, the Bush point man, receives calls from Republicans, asking how they can help, asking for talking points before they meet the media. "Basically," said the source, "the message is hang in there and fight."

In Austin, the campaign says it talks with the Republican leadership nearly every day. The dynamic, said a top Bush staffer, is completely different in the Republican caucus than in the Democratic caucus. The aide said there is no sense on Capitol Hill of major criticism either of the style or substance of what the Bush campaign is doing, nor any sense that Bush should drop legal pursuits.

This seemingly solid support is in no small way attributable to a very real feeling in the Republican community that George Bush won Florida.

The bush camp admits to some initial hand-wringing from GOP officials, particularly as court rulings ran against the governor. But an aide adds, "They are unified behind our approach that the hand count is flawed."

Capitol Hill lawmakers contacted confirm that at this point the Bush campaign has wide latitude to pursue legal options in the battle for Florida. Bush officials won't say whether they would appeal a Florida Supreme Court ruling should it go against the Texas governor, but several Republicans on Capitol Hill indicate he would have their support should he choose to do so.

"There is a legal basis to make an appeal should they need it," said one, "and they have every right to go after it, and I think the public would support it."


CROWLEY: Of course, the problem with public opinion is that it does have tendency to change and politicians have a tendency to change along with it -- Wolf.

BLITZER: Candy, is there any sense among the Bush team over there in Austin why Republicans seems much more anxious to pursue the legal challenge if the Florida Supreme Court goes against than the Democrats would appear to be, the case right now?

CROWLEY: Well, I'm not so sure that they're eager for the legal battle to continue so much as supportive of whatever the governor wants to do. I think outside the Bush campaign and Republican circles there's a feeling that all this talk you're hearing about the Democrats saying, boy, if Gore loses in the Supreme Court in Florida, then really there should be no more legal appeals. And Republicans point out that, first of all, if Gore loses in the Florida Supreme Court, his options are very, very limited. And they say, second of all, that they believe that these Democrats have reason to believe or really feel that Al Gore will win in the Florida Supreme Court and that this is a way of telling the public, gee, it's all over in the Florida Supreme Court, and thus putting the pressure back on Bush. Such is sort of the nature of spin these days.

BLITZER: Advance public relations, pre-emptive spin, whatever you want top call it.

Candy Crowley, thanks so much for joining us once again from Austin.

The Gore campaign, meanwhile, is also maneuvering as wait for the Florida Supreme Court ruling on the recounts. CNN's John King is covering the vice president here in Washington.


JOHN KING, CNN CORRESPONDENT (voice-over): For the vice president it could well come down to this: Should a ballot that looks like this one be counted or disqualified? The preliminary recount figures show a net Gore gain, but so far not nearly enough to overcome Governor Bush's Florida lead. So the Gore team is pushing to count the dimples, and at the same time trying to quiet a dispute over overseas military ballots.

Hundreds were disqualified over the weekend because they did not have postmarks, leading Republicans to label the Democrats anti- military. Enter Senator Bob Kerrey, a decorated Vietnam veteran.

SEN. BOB KERREY (D), FLORIDA: If they want to bring a legal case, let them bring a legal case. But please don't stand out here and say that votes are being stolen or that vice president is not fit to be commander in chief or there's fraud going on or votes being manufactured. That simply isn't true.

KING: And if those disputed military ballots are worth another look, Kerrey says similar attention should be paid to ballots that are clearly marked but not punched through.

KERREY: Are they willing to do the same thing for an 85-year-old that simply didn't have the strength to punch through a punch card.

KING: It is these contested ballots that the Gore camp says will turn the tide if they are counted. As a senior Gore adviser overseeing the recount put it, quote: "We are confident that we are within range of victory, but there is a little turbulence in getting there."

The vice president's lawyers on Tuesday urged the Supreme Court to articulate a legal standard for reviewing contested ballots and judging voter intent. But if the court rules in Governor Bush's favor, Mr. Gore will face intense pressure to bow out.

SEN. JOHN BREAUX (D), LOUISIANA: I think there's a growing feeling among a number of individuals that this should be the final decision. This is, after all, the Supreme Court of the state of Florida. "Supreme" means the final decision.

KING: Those who have spoken to the vice president in recent days say he understand the stakes of the court's decision.


KING: And simple math now explains the intensity of this fight over whether to count the dimples and other marked ballots that aren't completely punched through: the official statewide total right now showing Governor Bush with a 930-vote lead. The Vice President has made up some ground in the recounts underway -- not enough yet -- but even Republican lawyers who are closely following the dispute over those contested ballots say that, if they're allowed to be counted, that the vice president stands to gain at least 1,000 votes, perhaps many more -- Wolf.

BLITZER: John, you heard Candy refer to some Bush supporters in Austin, some Republicans, suggesting that there's some preemptive spin going on in the Gore campaign -- saying that, with the Florida Supreme Court, that might be the last word, fully anticipating that Gore will win in the Florida Supreme Court.

Do the Gore -- does the Gore team really believe they are going to win this decision in the Supreme Court in Tallahassee?

KING: They're confident they will. They say you cannot predict what these justices will do; and we're all waiting and they're waiting with us for the court's decision.

They were confident based on the skeptical questioning of some of the justices of the Bush team lawyers, that the justices, essentially, see a collision in the state law. On the one hand, it says the secretary of state should certify, on the other hand, allows these recounts. The Gore team's analysis is the judges will rule in favor of the voters, essentially -- give the process a chance, let the votes be counted. Do they know that will happen? No. Are they trying to say this is the final step? They believe if they lose here the vice president has very limited options. So, in part, that's reality when they say this is probably the final step if they lose.

But, certainly, at the same time Candy is right. They are trying to create an impression that, if they win, this should be it, count the votes, pick a winner.

BLITZER: OK, John King here in Washington, thanks once again.

Joining us now is a strong supporter of Vice President Gore, Democratic Senator Tom Harkin of Iowa. He joins us live from Des Moines. Senator Harkin, thanks for joining us. Let's get right to the point at issue right now.

Should the Florida Supreme Court, as you we heard your colleague John Breaux of Louisiana say -- should that be the final word in this battle?

SEN. TOM HARKIN (D), IOWA: I believe that as long as every vote in Florida is counted fairly and accurately, then that should be the final word. And I believe that's what the Florida Supreme Court is going to find.

Like everyone says, we have no way of knowing, but I believe they're going to find in favor of the voters. They're going to -- I hope -- say that the final word ought to be with the voters, and not some state law that cuts off their right to be heard?

BLITZER: Well what happens -- and, obviously this is hypothetical -- if the Supreme Court in Florida says the secretary of state, like the lower circuit court decided, did not exceed her discretionary responsibility, her authority, in rejecting these additional hand counts. What if they simply issue a one-sentence statement like that and end it?

HARKIN: Well, I hope that doesn't happen, Wolf; I hope that they explain their findings. But I don't believe they can allow that to go on. I don't think they could have that kind of a finding because it is clear that the secretary of state, a strong Bush supporters who campaigned for him in New Hampshire has, on three occasions, tried to stop the voting -- the recounting, and three times the courts have rebuffed her.

I think the Supreme Court's going to look at that, also. What did the lower courts say? Three times the lower courts rebuffed the secretary of state.

BLITZER: Talk to us, senator, about the mood among your democratic colleagues in the Senate as far as how far Vice President Gore should push this issue.

HARKIN: Well, I believe the mood is simply this: that we know, as we believe the Bush camp knows, that if every vote is counted fairly and accurately in Florida, Al Gore will get more votes in Florida than George Bush. And that has been the crux of the whole problem. The Bush camp has tried to stop a valid recount every step of the way.

Now, again, on these dimpled ballots that you're talking so much about, I've always said, why don't we just apply the same kind of law that we have in Texas, that George Bush signed into law, which clearly states, in Texas, that if the ballot is dimpled or otherwise indented, it should be counted. Now, George Bush signed that into law in Texas three years ago, so I would assume that he would not be opposed to applying that standard in Florida.

BLITZER: We only have a few seconds left, Senator Harkin -- it seems to be slow going in trying to make up those 900 or 1,000 votes that Vice President Gore will need. It may turn out to be the case that he'll win the Supreme Court decision but not get the votes.

HARKIN: Well, the way I look at it is this, Wolf, very simply: If all of the votes are counted fairly and accurately, that you use the standard at least that was applied in Texas and count those dimpled ballots and if on the overseas ballots, on the military ballots, as long as they were signed and had a proper witness, and was dated before the election, that ought to be counted. You do all that, then whatever the outcome is, then we have a president-elect of the United States.

BLITZER: All right, Senator Tom Harkin, thanks for joining us from Des Moines.

HARKIN: Thanks, Wolf.

BLITZER: Thank you. I want to now bring in the Republican governor of Montana, Marc Racicot who's been spending a lot of time in Austin helping the Bush campaign argue its case in this Florida recount. Thanks, governor, for joining us.

The whole issue of standards now before the Florida Supreme Court, the Gore campaign says there should be some uniform standards that the court should put forward and enunciate to those three south Florida counties. What's wrong with that idea of the court saying yes, dimpled chads or whatever can be considered to show the intent of the voter?

GOV. MARC RACICOT (R), MONTANA: Well, clearly those standards should have been established by the canvassing boards in the first place, uniform standards. It could applies across the board. Senator Harkin is just sadly, terribly misinformed about what it is that the Texas law provides. The fact is that there is provision in Texas law that allows for dimpled ballots when there is a clearly ascertainable intent manifested by the voter on a punch ballot. Then, in that particular instance, it can be counted.

It's not simply what he reflects it to be. He's terribly misinformed in that regard. And that's what we've been talking about from the very beginning, is having standards that apply from one county to the other county that are clearly definable and clearly allow for you to be able to ascertain what is that the voter intended. That's all we've asked for from the very beginning.

BLITZER: You know, governor, a lot of Democrats, a lot of Gore supporters have been complaining about what they describe as harsh rhetoric coming from you, from Karen Hughes, the communication director for Governor Bush. I want you to listen to this excerpt of what was said I believe on Saturday as you entered this legal debate. Listen to this.


KAREN HUGHES, COMMUNICATIONS DIRECTOR, BUSH CAMPAIGN: No one who was aspires to be commander-in-chief should seek to unfairly deny the votes of the men and women he would seek to command.



RACICOT: The man who would be their commander-in-chief is fighting to take away the votes from the people that he would command.


BLITZER: Are you suggesting there is some have insisted that you're questioning Al Gore's legitimacy if in fact he is sworn in as the next president of the United States?

RACICOT: We're talking about faithfulness to military men and women who serve around the world in time of peril and danger. And quite frankly, this campaign has never engage the kind of rhetorical hyperbole or the kind mean-spirited discussion that the other side has. I've heard discussion come from the other side describing people as commissars and crooks.

What we're talking about here is the alleged or supposed commander-in-chief talking about military ballots and not according the same discretion to have their ballots determined to be rightful as those that we're trying to discern and divine out of thin air from people we don't even know, anonymous ballots in four counties in Florida.

So, I don't think that that's ornery or mean-spirited. It does have a hard edge to it because it's the truth and that's what we want to seek to vindicate here is the truth.

BLITZER: Governor, let me ask you the same question I asked Senator Harkin. I know you're -- you've been talking to Governor Bush, your colleague, your fellow governor. How far will he go if the Florida Supreme Court rules against him and says those hand recounts can continue?

RACICOT: Well, it's very difficult. That's just a judgment that can't be made until such time as the landscape is determined by the Florida Supreme Court. But when Senator Harkin talks about how it is that now the military ballots ought to be counted, that's a hollow gesture. It's not possibly at this point in time because those ballots have been certified. So that's damage control at the very, very best, it really doesn't reflect what's possible under the circumstances.

BLITZER: All right, Governor Marc Racicot, thanks for joining us in special edition of THE WORLD TODAY.

And just ahead, the debates over dimples. Should intended ballots be counted in the Florida vote? Some perspective when we come back.



UNIDENTIFIED FEMALE: (UNINTELLIGIBLE), there's always problems. They should have counted those votes.


BLITZER: Welcome back. Earlier this hour, we heard a portion of an impromptu news conference by Florida Governor Jeb Bush. It was his first public comment since he recused himself from the recount controversy. The brother of George W. Bush spoke to reporters in Florida's Statehouse.


QUESTION: Have you talked to your brother?

GOV. JEB BUSH (R), FLORIDA: Today? No. No, I talked to him -- I talked to him last night, and I talk to him about every other day just to -- he called me actually. I didn't bother him. He called me, and he's in good spirits.

More patient than I thought he might be.

QUESTION: (OFF-MIKE) legislature...

QUESTION: Why did he call you?

J. BUSH: Just to check in. Just to check in.

QUESTION: ... should involve itself (OFF-MIKE) the issue of trying to seat electors? Should it take affirmative steps in that regard?

J. BUSH: Well, no. That's -- I think it depends on the circumstance of this ruling and how -- how all this plays out. They clearly have a responsibility under certain circumstances, or they have the right at least, granted to them by the United States Constitution. I mean, it's pretty clear that the legislature has a role in this, should it get to that. I hope it doesn't.

QUESTION: (OFF-MIKE) that there's going to be a push to get the dimpled ballots counted? J. BUSH: I don't know what a dimpled ballot is, to be honest with you. I'm not -- I frankly have not become an expert. I don't know what the difference between a pregnant ballot and a dimpled ballot is.

Are they the same?


Oh, good, that makes me -- that gives me some comfort that -- because...

QUESTION: What would -- what would be your response...

J. BUSH: ... I couldn't tell what -- dimple is the inverse of the pregnant ballot? Depends on which side you looked at it?

QUESTION: I guess the concern is that -- that there's enough of those out there that would possibly put Al Gore ahead of your brother.

J. BUSH: Well, again, I -- the process should be fair. If they create a criteria, I hope they adhere to it. I hope it's not to determine how many votes you need and then the change the rules to be able to get to the number that you need. That would be -- that would put -- put an asterisk on this election to the point where I think it would be a great disappointment for a lot of people.


J. BUSH: They have it in their power to do what's right, and I expect on something of this magnitude that the people that are counting these votes will do what's right. This is far bigger than one person. We're talking about our incredible country, and I'm just -- I'm confident that people will do the right thing.

Call me naive, you know, but I do believe that people in the end will do what's right.


BLITZER: Missing postmarks are not the only things that cause ballots to be thrown out. A lot of people didn't completely punch through their choice for president, but left an indentation. Of the Florida counties doing hand recounts, Broward officials will decide what to do with these so-called "dimpled ballots" after all others have been recounted. Palm Beach County is not counting dimpled ballots, and Miami-Dade officials are considering dimpled ballots on a case-by-case basis.

What counts as a vote may be decided by the courts. In the meantime, some perspective from our Brooks Jackson.


BROOKS JACKSON, CNN CORRESPONDENT (voice-over): Dimpled ballots: count 'em or not? They do in other states, including the great state of Texas.

Democrats are saying Florida ballots should be counted where punch cards merely show an indentation. Republicans say, no, that's not enough.

GOV. GEORGE W. BUSH (R-TX), PRESIDENTIAL CANDIDATE: But in George W. Bush's own state, indented ballots are counted and often.

TONY SIRVELLO, HARRIS COUNTY ELECTIONS ADMINISTRATOR: Since we introduced punch cards in Harris County in 1982, I've probably done approximately 50 recounts. At the beginning, some of those were electronic. In the last 15 years, most of those have been manual recounts, and in most of those manual recounts, we have counted what the media is calling "dimpled chads," what we call in Texas "indented chads."

JACKSON: Tony Sirvello supervises elections in Harris County, the largest in Texas, where punch-card ballots, like those in the disputed Florida counties, have been in use since 1982.

Just last year in Harris County, Houston voters produced a squeaky-close race for a City Council seat. Mark Goldberg was the apparent winner, but by only 26 votes. His opponent, Maryann Young, demanded a hand recount.

Texas law specifically allows for counting dimpled ballots, saying a punch card ballot may not be counted unless, among other things -- quote -- "an indentation on the chad is present and indicates a clearly ascertainable intent of the voter to vote."

The Houston hand count found 97 more votes for Young than the machine count had registered, including some ballots that were merely indented. But the recount also found 109 additional votes for Goldberg. So he won the recount by an even bigger margin than before.

It's not that hard for voters to merely dimple a ballot when they are trying to vote, as Kim Brace of Election Data Services showed us.

(on camera): How can this happen?

KIMBALL BRACE, ELECTION DATA SERVICES: Well, it's pretty simple for many voters to simply attempt to push in and record a vote and not push in all the way or push in part of the way. We've got a hanging chad right here. We've got a couple of chads that are partially off. Here's a pimple or a dimple.

JACKSON (voice-over): Dimples were counted by the Massachusetts Supreme Judicial Court in a 1996 Democratic primary recount for Congress. Generally, state courts count ballots where voter intent is clear. Governor Bush's lawyers plead ignorance of Texas law.

MICHAEL CARVIN, BUSH CAMPAIGN ATTORNEY: I really don't know what Texas law is.

JACKSON (on camera): Well, we know. Texas election law allows dimpled chads to be counted or any ballot where the intent of the voter is -- quote -- "clearly ascertainable." So dimpled chads? Texas election officials count them.

Brooks Jackson, CNN, Washington.


BLITZER: Joining us now, our two guests, David Cardwell, a former Florida state elections director, and Ken Gross, CNN elections law analyst and a former Federal Elections Commission official.

First to you, David, the whole issue of three counties having different standards, these South Florida counties, to deal with these dimpled ballots -- how extraordinary is it that what may count as a legitimate ballot in Broward County is not going to be counted in Palm Beach County?

DAVID CARDWELL, FORMER FLORIDA STATE ELECTIONS DIRECTOR: Well, Florida has a very decentralized election system, so we rely upon our counties to carry out our elections and the local canvassing boards. And historically in this state, we've left it to the local canvassing boards, the ones who are closest to the voters, to determine the voters' intent.

Now, in the past, election contests have been typically restricted to one county where there may be a county commission race or a city council race or something such as that, or a sheriff's race, where the entire returns would be decided in one county. What's very unusual about what's going on now is that we have three counties right next to each other that are counting ballots at the same time that could be applying different standards, though each may be saying we're doing the best we can to determine the intent of the voter.

BLITZER: Ken Gross, do Republican supporters of George W. Bush have a case when they say at least in Texas it's a statewide standard that was put into law? In Florida, it's all over the place, and as a result it shouldn't be considered?

KENNETH GROSS, FORMER FEC OFFICIAL: Well, I think that the law can permit a certain amount of discretion at the local level that actually would have differing results in differing counties. Otherwise, you would be saying that their claims that the 14th Amendment is basically coming into play, that the equal protection of the voters is being violated, and that's unconstitutional.

That argument was made in the federal court and was rejected. So mere discretion that results in some differing views I don't think is per se illegal under Florida law.

BLITZER: David Cardwell, if the Republican side, the Bush campaign should lose in the Florida Supreme Court, what do you anticipate would be their next most logical step if they decide to pursue this legal battle?

CARDWELL: Well, there is a case still pending in the 11th Circuit, and the 11th Circuit has indicated they will hear that case, but they have not said a schedule yet.

BLITZER: That's the federal courts.

CARDWELL: That's a federal court, correct. And they have raised federal constitutional issues there. I think the 11th Circuit is going to wait and see what the Florida Supreme Court does first, because federal courts are very, very reluctant to intervene into a state election process.

Even though this is a federal election, it's governed by state election law. It's a state process, and it typically stays in state courts.

So the 11th Circuit will probably wait, but that is an avenue they could go to depending on the outcome of the Florida Supreme Court decision.

BLITZER: And Ken Gross, you've looked at election laws all over the country. How extraordinary, if at all, is what's going in Florida, the discretion given to all of these counties, 67 counties in effect, when compared to other states?

GROSS: Well, actually, other states that have had the dreaded task of actually dealing with chads -- such as Massachusetts and Illinois, Indiana, Texas and other states -- have taken an approach that would allow some discretion in the local officials. It hasn't come in such a stark way in this case where you have different officials from different counties taking different judgments. But it's certainly -- the law, the standard -- has been try to divine the intent of the voter even though it may involve actually counting a mere dimple or chad.

Indiana said no, Illinois said yes, Massachusetts says yes, Texas says yes. So in many jurisdictions around the country, it is permitted.

BLITZER: Ken Gross, David Cardwell, thanks once again for joining us on this special edition of THE WORLD TODAY. And when we come back, Greta Van Susteren will join us with more on the Florida recount. Stay with us.



UNIDENTIFIED MALE: Well, whoever the commander in chief in January will -- he's still the commander in chief, and we'll proceed as we always do.


BLITZER: You're looking at a live picture of the Florida Supreme Court in Tallahassee. There's the podium. We're standing by.

If there's any sort of indication, any sort of announcement whatsoever, of course, CNN will bring that to you live.

In the meantime, let's go live to CNN's legal analyst Greta Van Susteren. She's not in Tallahassee. She's back in Washington tonight.

Greta, good to have you back.

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: Thank you, Wolf, and it's very nice and warm here in the studio in Washington, D.C. But we're going to go to Tallahassee tonight. We're going to talk to Ben Ginsberg, who's one of the senior attorneys for the Bush-Cheney campaign.

Ben, thanks for joining me this evening.

BEN GINSBERG, ATTORNEY FOR BUSH CAMPAIGN: Thanks Greta; glad you're warm.

VAN SUSTEREN: Ben, let me get right to the point: Does the Supreme Court have the authority to set standards as the case now stands? Let me back up for a second -- when I talk about standards, I mean standards for determining a voter's intent when looking at those ballots.

GINSBERG: Well, one never wants to tell a state Supreme Court what powers they do or don't have. Generally, what you describe is left to a legislature in a state, though, Greta.

VAN SUSTEREN: Does the Bush-Cheney campaign oppose the Supreme Court making a pronouncement as to what standards each county should use when looking at those ballots during a hand recount, assuming a hand recount goes forward?

GINSBERG: Well, the Bush-Cheney campaign is firmly behind the Florida statutes in conducting elections according to the standards that were set out before the election.

VAN SUSTEREN: But if you're talking about standards, Ben, you have two problems: one is that the Florida law seems to give the authority to the counties to discern what the intent is, which doesn't give much guidance to the counties, and basically opens the door for the counties to do exactly what they want. Plus you've been hit in the briefs by the Gore campaign with the Texas law, which seems to adopt a standard that includes a dimple which, of course, is a standard that your campaign seems to oppose.

How do you deal with that?

GINSBERG: Well, first of all, I'm not sure what happens in Texas is applicable to Florida in any event. But the citations of Texas law that have been supplied by the Gore campaign are really, frankly, not accurate. The clearly ascertainable standard is one that isn't present in Florida law in the least; and what you've seen is the sort of random and discretionary decisions by county officials here in Florida.

So that, frankly, takes it into a different realm. One of the things that's true under Texas law that hasn't been examined at all in any of the three Florida county recounts is what an indentation means in the context of the whole ballot. In other words, if the presidential race has an indentation on it, but the voter has stamped out and successfully knocked out the chad for all of the other races, in the Florida recount, that hasn't been looked at, at all.

In Texas they're going look at that the whole ballot; and Greta, that's an important point, because if you want to say that an indentation on a ballot meets the intent of the voter, don't you have to look at the whole ballot and see whether the voter has successfully completed knocking out the chad for other races? And furthermore, in none of the Florida counties have any of the county officials looked at dimples in the context of an over-vote. In other words, if somebody knocked out Al Gore and also did an indentation in George Bush, that hasn't been examined.

VAN SUSTEREN: All right, Ben, you spoke a little bit to the issue about the random nature, about the fact that different counties can have different standards in looking at these. Would the Bush- Cheney campaign be opposed to the Florida Supreme Court adopting what is essentially the standard in the state of Texas?

GINSBERG: Well, I don't think it's worthwhile, necessarily, speculating on that. I would revert, however, to the principles that the rules of an election should be set before an election contest, before an election date, and not changed after an election.

VAN SUSTEREN: But the problem we have then...

GINSBERG: So if you're talking about something...

VAN SUSTEREN: Let me interrupt you for one second. The problem we, the American people have, is that the Florida legislature hasn't set the guidelines other than, the law says to look at the intent of the voter, which is rather amorphous at this point. And that's why I ask whether...

GINSBERG: Greta, I couldn't disagree with that assumption more. The Florida legislature has set out a complete statutory scheme. What's happened here is that there's been an election night tally, Governor Bush won...

GINSBERG: We're back to that...

GINSBERG: And now -- you're absolutely right we're back to that, Greta, because the truth of the matter is this is a -- Greta, this is a matter -- the argument you're making is the Gore campaign changing the rules of the election after the election because they don't have enough votes to win otherwise.

VAN SUSTEREN: And Ben, I'll let you have the last word this evening.

We're going take a break; and when we come back we're going to talk to a former Florida Supreme Court justice who's going to take us behind the closed doors and tell us, how they decide these cases? Stay with us.

(COMMERCIAL BREAK) VAN SUSTEREN: Welcome back, we are now joined in Tallahassee by former justice of the Florida Supreme Court Ben Overton.

Justice Overton, thank you for joining me this evening. I know you can't talk about the specifics of this case and you are not involved in the deciding of this case, but take me behind closed doors.

After the oral arguments we saw yesterday, the justices retreat behind closed doors. Do they begin debating, voting, what's the procedure?

BEN OVERTON, FORMER FLORIDA SUPREME COURT JUSTICE: Well, first of all, on the Florida Supreme Court the case has been preassigned to a justice on a blind assignment basis. And that justice will immediately start off the discussion as to what his view is, as to what the result ought to be and what ought to be in the opinion. And then, in order of seniority, each justice will express his or her views. The chief justice will be last. It is only the seven justices of the Supreme Court in the room. There are no staff present.

VAN SUSTEREN: Who keeps track of the vote? Who keeps track of the vote?

OVERTON: The chief justice and I think the other six.

VAN SUSTEREN: Justice, does it ever happen that the justices get annoyed with each other and each other's viewpoints and argue and it gets hot under the collar?

OVERTON: Well, this court has had an old rule that you can disagree up to the point of being disagreeable. And it pretty well is applied. It's a good, collegial court.

VAN SUSTEREN: What's the best think about sitting on the Florida Supreme Court and even taking a case like this? Is there anything that's fun about it or interesting or intriguing?

OVERTON: Well, one of the things about this is that the total focus, their total focus, has been on this particular case. They will talk about what ought to be in an opinion. And also, they will talk if somebody is going to dissent, what he thinks he is going to say or she is going to say in the dissent. Then they will adjourn to their chambers and write what they propose and what is in the majority opinion and what is in a dissenting or a concurring opinion.

VAN SUSTEREN: As a practical matter, does it ever happen that justices have made up their mind before hearing the arguments, after just reading the briefs?

OVERTON: I don't think so in this case at all. I think you could see that they were prepared. They have thoughts, of course, when they walked into that courtroom. I think everybody could conclude that they knew what were in the briefs when they walked into that courtroom. I think one of the things that a lot of people were kind of surprised about, apparently, is that they will continually discuss what should be in the opinion and what is in the opinion or in the draft opinions. If there is an opinion written, they will be going over it probably line by line in the court conference.

VAN SUSTEREN: All right, Justice Overton. former justice of the Florida Supreme Court, thank you for joining us this evening.

Wolf, back to you.

BLITZER: Greta, thanks very much. When we come back, a subject close to my heart: digging out of my old home town of Buffalo, New York, after a surprise snowstorm.


BLITZER: Holiday travelers brace yourselves. Experts are warning delays are inevitable, with full flights and crowded airports around the country. Flights are still backed up at Charlotte/Douglas International Airport after a security alert prompted a two-hour shutdown this morning. The cause turned out to be a toy gun packed in a carry-on bag. The air transport association says 20 million passengers will be flying around this Thanksgiving holiday weekend. That tops even last year's record season.

A mixed day on Wall Street, at the closing bell, the Dow industrials were up 31 points to end at 10,494. The Nasdaq composite fell four points to 2,871 after trading up nearly 50 points. Year-to- date, the Dow is down eight percent, the Nasdaq is off nearly 30 percent.

We will be right back.


BLITZER: Welcome back.

This note, the Florida Supreme Court is still in business at this hour. You're looking at a live picture, the podium from the front door. We're standing by, of course. CNN will bring any word, any announcement whatsoever that comes from the Florida Supreme Court this evening. You can be assured we will bring that to you live.

For now, thanks very much for watching. I'm Wolf Blitzer in Washington. "LARRY KING LIVE" is next.



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