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CNN Today

Will the Current Bush and Gore Legal Challenges be Successful?

Aired November 23, 2000 - 2:07 p.m. ET

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

NATALIE ALLEN, CNN ANCHOR: Well, from various circuit courts all the way to the U.S. Supreme Court, where, how will it all end? Joining us once again today from New York, our election law analyst, Ken Gross.

Ken, thanks so much for coming in on a holiday.

KEN GROSS, CNN ELECTION LAW ANALYST: Hi, Natalie.

ALLEN: Hi, there.

Let's talk first about the Gore campaign going back to the state Supreme Court. Has the state Supreme Court not washed its hands yet of this matter in Miami-Dade County?

GROSS: They probably wish they had washed their hands of it. They set a deadline of Sunday night or Monday morning, depending on whether the secretary of state's office is open for accepting -- for accepting the recounts. Miami went back and said: We can't get it done. And I think they are going to respect that decision. They have been ruling that these canvassing boards have a lot of discretion.

And if in Miami's discretion they couldn't do it, I think they are probably going to leave it alone.

ALLEN: So any chances they would move the deadline again?

GROSS: They might. I think that they really wanted all the three counties to be able to have time to do the counting. I think they're probably a little disappointed that Miami threw their hands up. I don't think they meant to say: You can't -- we are not going to give you enough time to do it. Therefore, don't submit it -- because the tenor of the opinion was to count as many votes and recount as many votes as they could.

So there is a possibility. It's just an uphill battle.

ALLEN: What about, too, Mr. Gross, the different standards now that we're seeing in Broward and Palm Beach County? Does that leave any argument for the Bush team?

GROSS: The Bush team also has an uphill battle in trying to change those standards or to have those rulings changed -- again, for the same reason: The courts have vested discretion in these canvassing board. If Broward wants to set a standard of one corner of the chad missing with a dimple, and Palm Beach wants to take the whole ballot into consideration, those are the kinds of judgments that the courts just have a very difficult time dictating.

And again, discretion of the canvassing board, I think, is where they are going to end up.

ALLEN: And, finally, let's talk -- speaking of discretion -- of the Bush team now appealing to U.S. Supreme Court, which has usually allowed for discretion left within the state boundaries. What do you think, Mr. Gross? Do you think this will be taken up by the U.S. Supreme Court?

GROSS: No, I don't. I -- we have been saying all along that these cases involve issues of state law. And the conservative justices, who you might think might be likely to want to help the Bush position in fact are the ones most likely, substantively, to rule that it's a matter of state law. So I'm afraid there's a few suits pending now that may turn out to be turkeys. They may not get relief in either the Supreme Court or the state court.

ALLEN: All right, we're having a lot of fun using that analogy today. And thank you for adding to it. Ken Gross, thanks. You'll see Ken again in about 50 minutes. He'll be a guest on "TALKBACK LIVE" if you want to hear more of the discussion. Thanks, Ken.

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