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The Florida Recount: U.S. Supreme Court Enters the Fray

Aired November 24, 2000 - 4:00 p.m. ET


STEPHEN FRAZIER, CNN ANCHOR: It's official now. The United States Supreme Court will weigh in on the Florida recount controversy.

And as the clock winds down, the vice president wages a fight to keep the counting going.

It's 4:00 p.m. on the East Coast, 1:00 in the West. From CNN Center in Atlanta, this is CNN TODAY.

Good afternoon, everyone. I'm Stephen Frazier.

Some major developments to report in the Florida Recount: Just a short time ago, the United States Supreme Court agreed to hear one of the Bush camp's objections to this recount.

And that word came at the same time that a lower court was hearing an argument on the matter of military absentee ballots. Republicans wanted those figured into the final vote tally, even if they come with missing postmarks.

And all the while the hand count continues in Broward and Palm Beach counties.

CNN's Bob Franken has been following developments at the United States Supreme Court.

We've been talking with him. Let's go back to him now live from Washington.

Bob, hello again.


The case they decided to hear was the question about whether the Florida state Supreme Court violated federal law when it ruled that the hand recounts must continue and violated the Article 2 of the Constitution. The Republican George Bush campaign says that that particular article specifies that legislatures must set up the processes for elections in each particular state, and they're arguing that as a result the Florida state Supreme Court overstepped its bounds.

The justices decided not only to hear this case but to hear it on the expedited basis that was requested by the Republicans. Usually these things take months. There's going to be a hearing, an open court for the U.S. Supreme Court, next Friday, December 1st. They're moving that quickly. It is on a fast track.

Now between now and then the two sides have to file briefs. The questions, of course, are both legal questions and constitutional questions, and there's a feeling that the Supreme Court has finally decided it needs to get into this case, to put some order to it and perhaps come up with at least some indicators that could cause some finality to it -- Stephen.

FRAZIER: Bob, there's an awful lot of legal work going on here. Thanks for walking us all through that so carefully. Bob Franken at the United States Supreme Court.

Now the Bush campaign understandably has already said it's very pleased with the court's decision to hear one of its appeals. They made that plain to CNN's Tony Clark, in Austin, Texas, who joins us now with the latest from the campaign.

Tony, hello again.


As you can imagine, this was very good news for the Bush campaign, one senior aide saying they were heartened by the decision of the Supreme Court to hear this decision and adding that they felt they had a sound case all along, a case that could be taken to the U.S. Supreme Court.

You might remember earlier in the week when the Florida Supreme Court came down with its decision that at first Jim Baker, the Bush point man in Florida, and then Governor Bush himself came out very strongly against what the Florida state Supreme Court had done, indicating it had overreached its authority, that it was rewriting the law, changing the rules of the election after the election.

So word here, Stephen, everyone is very pleased, very hopeful about their case going before the Supreme Court, U.S. Supreme Court, that it will be heard very quickly and very optimistic about the outcome -- Stephen.

FRAZIER: Tony Clark in Austin, Texas, today. Tony, thank you.

Some strong words from the Democrats' No. 2 man today about a separate issue now, separate from court cases. He was speaking about recent Republican demonstrations in Miami.

Let's turn now to CNN's Chris Black, live in Washington, with some of Senator Joseph Lieberman's comments.

Chris, hello again.


Well first I'd like to tell you that the Gore campaign is taking this decision by the Supreme Court to hear the case in stride. They point out it does not stop the recounts going -- under way now in Broward and Palm Beach counties. It also does not stop a contest from taking place next week. In fact, they say many of the issues may be resolved before the court takes it up.

David Boies, who's the top lawyer for vice president Al Gore in Florida, in fact said he still believes that the U.S. Supreme Court will not reverse the Florida Supreme Court. He said this issue of federalism has been decided many, many times.

Now to Senator Lieberman. Senator Lieberman did come out just about an hour ago and expressed his deep disappointment with demonstrations that Democrats say have been orchestrated by Republicans in Miami-Dade County on Wednesday and today in Broward County. He said that -- he urged them to take to -- urged the organizers to stop.


SEN. JOSEPH LIEBERMAN (D-CT), VICE PRESIDENTIAL CANDIDATE: This is a time to honor the rule of law, not surrender to the rule of the mob. This is a time for patience and respect, not intimidation and violence. According to one network news report last evening, the demonstrators in Dade County were guided by, and I quote, "a Republican public relations officer," end quote.

These demonstrations are a disservice to our democracy, and there are now reports that these very same methods may be taken to Broward County for similar demonstrations and similar disruption.

Vice President Gore and I call on the demonstrators and all who may be organizing or encouraging them to stop these activities immediately. And I hope that Governor Bush and Secretary Cheney will join us in this call.


BLACK: Six Democratic members of Congress, five of them members of the black caucus, went further than that. They wrote today to Bill Lan Lee, the assistant attorney general for civil rights, and asked him to conduct a federal investigation into what they call the concerted effort to undermine the right to vote -- Stephen.

FRAZIER: Chris, I have a question for you. Are you able to hear me with all that noise behind you?

BLACK: It's -- I can't hear you, Stephen, just barely.

FRAZIER: Well you heard Senator Lieberman talk about patience and respect. Those were sort of by-words of his own Senate career. He's a man known for that kind of respecting his opponents. Still, that notwithstanding, how much should we make of the fact that the campaign sent the vice presidential candidate to make this comment and call on the other campaign?

BLACK: What they typically do, Stephen, when they want to really drive a point home is to either run out the vice president himself or Joe Lieberman. And in this instance, it was deemed more appropriate to have the vice presidential candidate address this issue.

They basically -- it's their P.R. way to make sure we pay attention to the issue, and this is one thing they're very, very concerned of today and will be a part of the contest they file after the vote is certified Sunday night.

FRAZIER: Chris Black reporting a little bit on the public relations campaign under way.

Chris, thank you very much.

Now, separate from public relations, this election drama seems to be changing every minute now, new legal actions, court decisions, new vote counts, too.

Joining us from Washington, let's go back now to CNN legal analyst Roger Cossack. And from Orlando, with his perspective, Florida's former elections director David Cardwell, who's been helping us all through this with his insights.

Let's start with Roger.

Roger, I don't know where to start, actually.

ROGER COSSACK, CNN LEGAL ANALYST: Well, we start with the case going before the United States Supreme Court on an expedited basis in a matter that shows the emergency of this and it shows it will be argued before the Supreme Court next Friday.

I just -- I think I can succinctly now say exactly what the issues are. One is, did the -- did Florida's secretary of state -- did the Supreme Court err in holding that the secretary of state of Florida exceeded her discretion?

And the other one is whether or not, what would be the consequences of the Supreme Court finding that the decision of the Supreme Court of Florida did not comply with a federal law requiring states to resolve controversies regarding the appointment of electors before Election Day. Those are two federal questions.

So the question, No. 1, is, how do we get from the Florida Supreme Court to the United States Supreme Court is the United States Supreme Court has found that there are substantial issues of federal law that have been affected that violate the Constitution -- perhaps violates the Constitution. And, therefore, that's why they're going to hear it.

Earlier, we heard from David Boies, I might add, who said that he thought this was a good thing that the United States Supreme Court hears this case. However, in looking at his brief that they filed before the United States Supreme Court, one of the arguments that they made was that principles of federalism strongly counsel strongly against the United States Supreme Court getting involved in this issue, which of course the Supreme Court apparently did not buy and has decided that they do want to get involved with it.

FRAZIER: Roger, thanks. Stay with us if you would, please, while we turn now to David Cardwell.

Mr. Cardwell, in your experience as Florida's former elections director, were challenges like this, contests, the judicial cases, were they all swirling around other elections, or is this just something that we've never encountered before simply because of the importance of the presidential count?

DAVID CARDWELL, FORMER FLORIDA ELECTIONS DIRECTOR: Well they swirled around other cases, but they've always been local races. They'd be county wide or only a couple of counties. Typically, a contest like this they'd have been in the courts and been for county commissioner or sheriff or perhaps some other office at a local level. Florida has not experienced anything at the statewide level, and certainly nothing like this at the presidential election, at least not since the 1876 Tilden-Hayes election.

FRAZIER: I guess what I'm looking for is a sense from you whether these kinds of judicial remedies have been employed, whether people know where to turn in an episode like this because of some historical precedent.

CARDWELL: Well, again, it -- with races at the local level, we've had courts that have considered contests that were in the courts for up to two, three months after the election. And if the court found that the result of the election as originally announced was wrong, it would enter a judgment that ousted one person from office and put someone else in. That's much easier to do with, say, a county commissioner or a sheriff than it is with a presidential elector who has to vote on December 18th.

FRAZIER: Two or three months, I'm not sure whether I like that news or not. David Cardwell, thank you for joining us. Looks like you will be on a long retainer with us, anyway.


FRAZIER: Just ahead, we are going to turn now from the courts to the counts. We'll check in for live reports from Broward County and Palm Beach County.


FRAZIER: All right, here's the latest on the hand recounts now: Governor Bush has an official statewide lead of 930 votes in Florida. But six counties have revised their totals now, resulting in a net gain of 70 for Bush. Ongoing hand counts give Gore a net gain of 290 in Broward County. Bush has a net gain of 14 in Palm Beach County.

So the unofficial Bush lead for now is 724. The numbers released by canvassing boards though do not include about 1,400 disputed ballots in Broward County. And Palm Beach County must still review about 300,000 ballots, which are counted but not finalized. And as we've been telling you all day, as many as 6,000 of those are disputed ballots.

Based on the Florida Supreme Court's ruling, results must be submitted to the Florida secretary of state by 5:00 p.m. Eastern Time Sunday to be included in the official state total. So with that deadline looming, Broward County is almost finished with its recount at this hour. All it has to do now is decide the fate of a few thousand disputed ballots.

For more on that, let's turn back now to Susan Candiotti, who has been keeping an eye on that and other developments in Fort Lauderdale -- Susan, hello again.


You've been -- as you know, the recount has been going on all day long, started on Thanksgiving day, involving those 2,000 or so questionable ballots, because the other ballots were already recounted last week. And we can give you the latest update that we have. They've gone through about 684 of those so far. Of those, there's a net gain of 290 additional votes for Vice President Gore, 65 additional so far this day. As you can see, that process is going on even as we speak.

And you can see, the only Republican member of the panel, Judge Robert Rosenberg, who is part of the part of the Broward County canvassing board, looking through a magnifying glass at times, as he often does, as he examines each of these ballots, going over them to try to decide a voter's intent: looking for dimples, looking for other marks, trying to determine what a voter was thinking.

Then he and the two other Democratic members of the canvassing board take a vote. They decide whether this should be a ballot for Vice President Gore, for Governor Bush, or reject the ballot altogether. They hope to complete this by Sunday's Florida Supreme Court deadline. And they seem to be making a pretty good headway.

Let's listen for a couple of minutes to see what we can pick up.



ROBERT W. LEE, BROWARD COUNTY CANVASSING BOARD: The previous one? Wait, was this the previous, or was...

GUNZBURGER: Wait, let me look at the number -- 2 -- no, this was the previous card.

CANDIOTTI: Judge Rosenberg continues to examine ballots, as do the other members of the canvassing board. They plan on working until about 8:00 tonight. And one of the spectators in the courtroom this afternoon was Senator Bob Dole. He came here not only to address the Bush supporters who are outside the courthouse, but to see for himself how the process is going. And he says he doesn't like it.

(BEGIN VIDEO CLIP) BOB DOLE (R), FMR. PRESIDENTIAL CANDIDATE: They are not counting votes. They are casting votes. I mean, they are deciding somebody based on something meant to vote for someone. And they are actually casting votes upstairs, many on 2-1 votes for Gore. And while I was there, they counted 114 ballots. Gore picked up a net of, I think, nine or 10.


CANDIOTTI: Joining us now for a Democratic response is Congressman Peter Deutsch, who is from this area. We just heard Senator Bob Dole say -- and he watched some of the process this afternoon -- that they are not counting votes. In his words, "They are casting votes."

REP. PETER DEUTSCH (D), FLORIDA: Well, obviously, he wasn't looking very well. But let me make a real clear point, Susie. And I ask this directly to Governor Bush. You know, right now, we have a situation in Florida where paid out-of-state political operatives have come to Florida to disrupt and basically try to stop a fair and accurate count.

And I call on Governor Bush, for the good of the American people, to call off his paid operatives, send them home. And let's get a fair and accurate count in the state of Florida.

CANDIOTTI: Now, Congressman Deutsch, these people are standing outside the courthouse. Unlike Dade County -- Miami-Dade County -- they have not tried to enter this building. They would argue that they have the right to free speech here, and that many of them say: We are local -- although many indeed are from out of state. Don't they have a right to be here?

DEUTSCH: Absolutely. And I support them being here. And I encourage people to use -- to exercise their right of free speech. But let's be clear, Susan. What happened in Dade County is not what happened in Broward. I give a lot of credit to Sheriff Ken Jenne in Broward County and his deputies, who have done a great job and prevented them from stopping this count in Broward County.

What happened in Dade County was a violation of federal law. As you're aware, myself, along with eight of my colleagues, have asked the assistant attorney general in charge of the Voting Rights Act to investigate immediately what happened in Dade County, where a mob of out-of-town paid political operatives came into Florida and, unfortunately, were successful in stopping a fair and accurate count in our state.

CANDIOTTI: You are alleging that they are -- Bush supporters specifically stopped -- or are responsible for stopping a hand recount in Miami-Dade County?

DEUTSCH: That's exactly what happened in Miami-Dade. The supervisor of elections said that. He was forced to move to a different room based on this, which he then said he couldn't complete the process. So they were successful in their illegal activity to stop a fair and accurate count in Miami-Dade. Now, I cannot believe the American people would allow that to happen.

I don't believe any court in this country would allow that to happen. And let me be just clear. You know, Governor Bush has been -- you know, he ran on a campaign of being a uniter, not a divider. I call on him. I plead with him to use the words that he spoke of being a uniter, not a divider, and call off his paid mob in trying to disrupt the process in Broward County and throughout the state of Florida.

CANDIOTTI: Thank you for joining us, Congressman Deutsch.

Now, again, Vice President Gore continues to gain a number of votes because of this hand recount of the questionable ballots going on here in Broward County. The question is whether he can gain enough votes in Palm Beach County to jeopardize lead of Governor Bush. We will have to wait and see -- Stephen, back to you.

FRAZIER: Susan, thank you for your work during a long day that's part of a very long week. Thanks a lot.

And, as Susan said, Palm Beach County is making steady progress on its quest to recount all of its ballots. We have asked CNN's Mark Potter to join us now with the latest from there.

Mark, it looked a little quieter in Palm Beach County, didn't it?

MARK POTTER, CNN CORRESPONDENT: I was going to say that. It's a lot quieter here than what I could hear behind Susan. And we do have some protesters here, but it's a smaller crowd. And they are being kept away from the building. So you will be able to hear what I have to say a lot more clearly than my colleague, Susan Candiotti.

The canvassing board does continue its count. They've been at it since early this morning. They are going to have to go perhaps until 10:00 or 11:00 tonight, they say.

They are only counting contested ballots -- here we see them -- and it's no small task. County officials say there are at least 6,000 contested ballots that they need to go through. It could be more than that. And so far, they've only counted about 500 of them.

No information released yet by the county on whether any of the candidates have gained votes as a result of that. That tally has not been given to us.

They say they're going to have to be here many hours to get this done, but they say they will make it by Sunday, but they're going to have to work hard.

Let's listen in to see what they're doing here.






All right, 78 of them. 205-c.


BURTON: OK. Votes for No. 3. Four, 5, 6, 7, plus 2.

ROBERTS: Seven and 2 is nine.

BURTON: That's 9.


BURTON: One vote.


BURTON: Seven plus -- 15.

ROBERTS: Seven plus 8...


BURTON: Whatever, it's 15. Candidate No. 7.


BURTON: Seven is two votes by pinhole method.

ROBERTS: Candidate No. 8.

BURTON: Eight is one vote.

ROBERTS: Candidate 9?

BURTON: Three votes.

ROBERTS: Candidate 10?

BURTON: Which vote is this? This is 11.

ROBERTS: Here's 10.

The count is one...

BURTON: The count is one vote. Eleven is two votes. You've got one overvote there or what?

ROBERTS: No, I have two -- two overvotes.

BURTON: Two overvotes. And that's the end of it.

I think these are undervotes.

It's 13?


Any Democrat objections?


Now Republican objections.


ROBERTS: That's 42.

BURTON: Seventy-eight.

ROBERTS: Seventy-eight.

BURTON: Bingo. It's a good bingo.


The end of this box? All right. Another one down.

Moving right along here.


BURTON: If you ever run out, just let us know, OK?


FRAZIER: All right. Now, as Judge Charles Burton takes a little break there for a sip of water, we're going to step away from Palm Beach County, where the count continues, and go up to Leon County now, where earlier we were showing you a hearing where a circuit court judge was hearing arguments on behalf of the Bush campaign to include in the tally certain absentee military ballots that had been filed and had been rejected by counters earlier because of various technical irregularities.

We have Kate Snow at the courtroom there, who's been able to tell us what that development was, the final outcome of that hearing.

Kate, nice to see you again.

FRED BARTLIT, BUSH CAMPAIGN ATTORNEY: ... said the right thing, Senator Graham said the right thing. Everybody said the right thing, but nothing was happening. So the reason we filed this action was to get some motion, and we got some motion, because...

KATE SNOW, CNN CORRESPONDENT: In response to all of this, no word yet on what he's going to do. Let's listen in now to Fred Bartlit. He's an attorney for George W. Bush.

QUESTION: Can you stand behind the mikes?

BARTLIT: OK. It's hard for me to do.

QUESTION: Sir, just continue.

BARTLIT: OK. What I was saying was that there were -- the purpose of this was to get motion. Everybody was saying the right thing, but we got to thinking maybe it was just lip service. You know, nobody wants to be tagged with being the person that kept soldiers and sailors and Marines and airmen and all those people from voting. Nobody wants to be tagged on that.

So we were worried that everybody was saying the right thing, but nothing was happening. We did not want to file this case. We didn't think we should have to file it. We felt if we did file it, we'd get motion. We filed it and we got motion.

And as I was saying a moment ago, in Clay County, there were 14 service people, overseas absentee ballots, whose ballots had been previously rejected as illegal, and now they've been accepted as legal. We now know that other counties are meeting, they're all taking another look at this, and we're encouraged.

You know, we don't want to take depositions, cross-examine people, have trials. We wanted to get people's attention, because we think that it would be way better to have the first certification be right rather than have it be infected because of all these problems we know about, and then turn around and start election contests all over the country -- all over the state. That wouldn't make any sense.

It was also very interesting to me, two more points that were interesting. There were no Gore people in this courtroom, because nobody wants to come to court and say, make any arguments saying that military people's ballots shouldn't be counted. Instead of coming to court and standing up and making their points, there's armies of Gore lawyers right now in all of these precincts, all of these counties arguing that the very kinds of ballots that are now being accepted ought to be rejected.

So the right hand is saying one thing and the left hand is doing something else, and it was that sort of thing that caused us to file this case.

We're pleased to see Clay County changing its votes. We're pleased to see other people meeting. The people in there, you heard, they sound like good people, they sound like straight arrows. And you know, straight arrows, once they understand the rules of the game, they're going to do the right thing.

You also heard on the telephone some of these people saying, judge, give us some guidance. It's a little disturbing to me that in important matters like military votes these real smart men and women that have been counting votes for years even as late as today are still looking for help, for guidance to determine what votes to count.

Seems to me that if it's so fuzzy that the experts in Florida on how to count votes still don't know how to do it that there's danger of servicemen's votes being lost, and we ought to do everything we can to stop it. It's just that simple.

QUESTION: You're not disappointed at all you asked for a declaratory judgment. The judge didn't issue a ruling, but basically said he didn't think he had the authority to do that. Are you a little put out at all by that, or do you think you've made your point merely by getting it aired, as you were saying?

BARTLIT: Well, I put out, you know -- if I got put out by judges' rulings, I would have quit a long time ago. No. No, the judge gave everybody a very fair hearing. He heard everybody. It was interesting to hear the good faith, it seemed to me, of some of the people in counties. It was refreshing to hear that.

I'm going to say one more time, the key to this thing, the whole reason we filed this case is that everybody was saying the right thing, but it didn't look to us at least, based on reports we had, that people were doing the right thing. Now it looks like people are doing the right thing. And that's -- you know, we're pleased about that.


QUESTION: Do you think you are encouraged? Can you just dismiss your...

BARTLIT: Well, you know, we need to know what's going on. Clay County was very specific. They wrote a letter. It describes exactly what they did. And we have dismissed it. We told all of these people, I said last Wednesday in court. If you just sit with us like human beings, we can work this out because we -- I don't know in my head right now, what went on in every county in the state. It's impossible. But there is time between and Sunday night for any lawyer or any nine million lawyers to know that. So we were trying to get people to focus and reconsider and they're doing it. And it seems to me this's the human way to do it. The right way to do.


BARTLIT: I can only hear one at a time. I'm sorry.

QUESTION: There was a statement by the various counties. Do you plan to contest any of the election rules?

BARTLIT: They're taking action. I mean, they've taken it.

QUESTION: All the counties are taking action?

BARTLIT: Well, they're starting to come in. Are they all? I don't know. I mean, things -- I'm sorry. You've got to let me talk.

QUESTION: OK, I'm sorry.

BARTLIT: Things are happening as we speak. It's very fluid and we've heard, I hear rumors, but I know that one county has changed its vote. I know others are meeting and I assume they're meeting in good faith and that's good. And beyond that, I don't know. And I certainly, I would never, never, never, never threaten to do anything. That's not our way. We're going to look at the facts, and you know, we'll see what the situation is.


QUESTION: What are the numbers right now on the overseas ballots that you believe should be counted? We know that Clay changed its...

BARTLIT: All I can say is hundreds. I can't say more than that. I don't want to overstate. I can't say more than that.

QUESTION: Do you support a -- the counties looking over the overseas absentees and voting Democratic as well?

BARTLIT: Yes, sir. Of course. Absolutely.

QUESTION: What about the judge saying potentially that there wasn't enough evidence offered by your team to give him leisure to rule? That's what he said at the end.

BARTLIT: Well, I said at the beginning, your honor, we're not going to put in evidence. And the reason is that there just plain, flat is not time to and we did ask, you know, to have the ballots turned over to us last Wednesday. We asked to have copies of them so we could have evidence and the -- several of the people who were there from the county, say, gosh, these are all locked up. We can't get at them.

So, it's very hard for me without ever having had my hands on any of these ballots, it's very hard for me to get the evidence. We knew that when we came in. You know, we do this -- we try cases all the time but we did believe that if we made a forthright presentation that people would be, you know, honest, decent people when they get the facts and they begin to move and you can hear people out there in the various counties saying, judge, give us some help and maybe these proceedings will give them some help.


QUESTION: What is it exactly that you would like the judge to do?

BARTLIT: What I'd like the judge to do would be to say, don't have a hard and fast rule of just tossing, and I say soldiers and I know it's men and women, but the tossing service people's ballots out because they don't have a postmark. Use the substantial compliance test. Consider the special circumstances of service people. Consider, you know, if something comes from the end of the world and gets there the day after the election, you're pretty sure that it was sent before the election. Use common sense.

But basically, what I wanted the court to do was say take another look at this. Review your results in light of everything that we've learned since last week when 60 percent of these military ballot were tossed. I guarantee that when this is over, 60 percent of these ballots are not going to be tossed.

As a result of this endeavor that we've been on, more servicemen and women will be able to vote than would have voted before and you know, if one more got to vote it would be a success. And if 14 get to vote, it's a success. And if 60 gets to vote. It's a success. Who cares how they vote. The fact is, if people get to vote that didn't get to the vote before, than it's a success.

QUESTION: Mr. Bartlit, doesn't you argument though, contradict what your own people are doing in south Florida with the ballots down there? In other words.

BARTLIT: My own people?

QUESTION: In other words, the argument has been that with regard to the south Florida ballot, the voters have the responsibility to know what they are doing, which hole they're punching, what kind of ballots they're using. But are you arguing here, just for clarity's sake, well, it's OK if the guys don't and the gals don't sign the ballots, it's OK if they don't date them. You have to look at substantial compliance.

BARTLIT: The south Florida thing is totally different. It has nothing to do with these issues. It has to do with, we all know, it has to do with what can you divine by looking at these dents? Can you figure out what the man and women wanted to do or can't you? And that's not the issue here. People know what they...

QUESTION: But you're not following the rules. And you're saying it's OK for one group not to follow the rules but it's not OK for the other group.

BARTLIT: No, I'm not. There's a whole series of rules about how the canvassing committees, canvassing groups look at ballots, look at these dimples and look at marks and decide whether or not to keep the vote or throw it out. All we say is those rules should be followed. That's all we're are saying.

QUESTION: And not to badger you, sir, but are you not saying that you should not take into effect the fact that some votes, some ballots are not signed and dated?

BARTLIT: I'm saying that if the circumstances surrounding the submission of a ballot by a servicemen are such that a reasonable person would say they did the right thing, that's what his intent was, then they should be counted. That's all. It's common sense.

QUESTION: Mr. Bartlit, what about the circumstances


BARTLIT: I'm sorry. I can't hear you.

QUESTION: I said that lawyers for Okaloosa County, one of the largest Air Force bases in the world... FRAZIER: Well, what we've been hearing there is an attorney brought in by the Bush campaign from Chicago, Fred Bartlit, to argue the Bush's case that the results in 14 Florida counties should be contested because of military absentee ballots were thrown out by counters because they didn't bear the right technical marks, they didn't have the right kind of postmark or they weren't hand dated by the voter properly or they didn't bear the proper signature.

Mr. Bartlit argued before Leon County Circuit Court Judge L. Ralph Smith that common sense should be employed to determine whether those votes are legal and legitimate. And he was making that case as we watched him earlier in the day, but apparently did not persuade the judge that there should be any kind of judicial remedy.

Instead, what appears to be happening is that the counties one- by-one are coming to terms with the Bush campaign and are restoring to the count some votes as a result of the kind of arguments that Mr. Bartlit was making in the court. We may return to our Kate Snow to help explain exactly what happened near the end of that hearing, but first let's turn to Tallahassee where there remarks being made now by Jackie Winchester, former election's official in Florida who is joined by Tom Feeney, the speaker of the Florida House and by David Boies, the lead attorney for the Bush campaign. They're standing, flanking here now, and Mrs. Winchester is speaking. Let's listen to what she has to say.

JACKIE WINCHESTER, FORMER PALM BEACH ELECTION SUPERVISOR: There was a huge drop-off in the race for president in 1996, which again may indicate that problem. These ballots were not examined as these are being done today because none of the races were close that year. So, I think that when you look at the whole picture of this, I think it's very clear that those are votes for both Bush and Gore, and they should be counted.

WILLIAM ROUVEROL, VOTOMATIC INVENTOR: Good afternoon. My name is William Rouveral, and I'm a retired professor of mechanical engineering from the University of California. Professor Joseph Harris is the inventor of the Votomatic, not me. He was sent to me by a colleague and because I'd had a fair amount of experience with inventions and patents, and this started a collaboration that lasted about four or five years during the early '60s.

I guess, really I am here because I'm the oldest living person that was involved with the early years of the Votematic. Joe died in 1985. We -- while we were working on the development, we spent a great deal of time working with the stylus, working with the various configurations of the IBM Portapunch, which is the device developed by IBM, and which was -- which inspired Joe together with the computer revolution, convinced Joe that it was at that time possible to mechanize the voting procedure and greatly reduce its cost by utilizing the Portapuncha as a basis and using the IBM card counter, which could count -- I think at that time in the early '60s, could count 600 IBM cards a minute.

During the days when we worked with it, we found that nothing was as good as the soft plastic that IBM had used in the Portapunch. So, we stayed with that in the early designs of the Votomatic and those Votomatics that I designed, and with Joe's assistance, became the standard Votomatic that was used and has been used now for 35 years and is now used in 37 percent of the counties in the country.

FRAZIER: All right. Now we're getting down to the very mechanics of how votes have been cast here now in this long and twisting road where we cast ballots, we challenge ballots. We go to judicial remedies and others. We're going back now to the actual machine by which these votes were cast and Bill Schneider, who's with us now from Washington to talk about this.

It seems to be almost a civics lesson that never ends. Even getting down to the nature of the machinery by which we actually pick a president. And I don't mean the electoral machinery, I mean the technology, Bill.

WILLIAM SCHNEIDER, CNN SENIOR POLITICAL ANALYST: The technology, the constitutional machinery, the judicial procedure. Everything is now at issue, including the technology. These machines, portapunches, plastic styluses -- it's all up for discussion.

FRAZIER: It seems a lot of people have been saying that this may put an end to the Votomatic, as wonderful a machine as it was for so long, because of this kind of inconsistency and that this may be what pushes us toward new technology once and for all.

SCHNEIDER: Well, I think that might be well considered by the new Congress. Look, purportedly, we have a big budget surplus in the country, a couple of trillion dollars, and I think it might be wise for Congress to consider at least granting states localities some funds so that they can modernize their voting equipment. What we've heard from several people in around the country, including canvassers and supervisors in places in Florida, was that they did not modernize their voting equipment because the voters said, well, we have scarce resources and we'd rather use it on schools and roads and other things.

So, now that we have a surplus, I think there might be some move afoot to try to use some of that money to modernize our voting equipment and to at least try to get some basic standards around the country.

FRAZIER: Bill, in your experience, how many voters follow all of the instructions when they cast their ballots and look at the ballot and try to knock off pieces of paper that might be hanging around? I understand some jurisdictions they're instructed that they have to do that. I don't think I was.

SCHNEIDER: Well, I've voted in various places around the country and I must say I've always found the instructions somewhat confusing. But they usually say you must make a complete perforation. There must be a hole in the ballot. Inspect your ballot before you turn it in. And Now, clearly, some of these ballots were rather confusing, particularly given the layout of some of them. It varies from one locality to another, as we now know in Florida. FRAZIER: Well, thank you, Bill, for those insights into the machinery of voting. We want to take things back now to Tallahassee and check in with Kate Snow, who was present in the hearing in Leon County Circuit Court where the contest of military absentee ballots was under way.

Kate, I know you were present and I want to fill you in on something. We were not able to hear you at the beginning of your remarks because attorney Fred Bartlit was at the microphone and he was talking over you. So, let's step back a little bit and just fill in exactly what's happening there.

SNOW: Right, I understand that now, Stephen, and we apologize for those audio difficulties. Let me tell who that was and what we're doing here. That was Fred Bartlit, the attorney -- one attorney for George W. Bush who appeared here.

You called it a contest, Stephen, well, they would dispute that term. They say they're not contesting the results in these 13 counties -- it's now 13. It was 14. They've lost one of the counties. But they're saying that they're not contesting the results, but rather they're asking for some clarification. And what they specifically asked the judge in this court in Leon County Circuit Court to do today, they asked that that judge order the attorneys involved in the suit to immediately start counting some of those military overseas ballots that they believe were wrongly not counted.

They say that there are some -- the Bush campaign says that there are some 500 such ballots that would fall into that area, in a gray area, if you will, that have not been counted and they believe that that's in error. Let me tell you why. They made a four-pronged argument before the court today.

Their argument before the judge is number one, the postmark issue. They believe that Florida law says that you do not need to have a postmark on an overseas ballot coming in from overseas, absentee ballots. You do not need to have postmark in order for it to be valid.

Number two, they believe that if it's not dated, that should not be a problem either. It gets complicated but one of the reasons is because the form apparently does not have a space, if you're overseas and you're a military man or women, there's no space for you to fill in the date. So, how would you know to put the date on your ballot.

Number three, they believe the signatures shouldn't be overly analyzed if it doesn't quite match up to signatures of a person who had signed a voter roll a year ago. That shouldn't -- that's a technicality, they say, and that shouldn't count against those ballots.

And number four, if no record of request for an overseas ballots was made, some counties have decided to throw away those ballots or not count those records if there's no record that the person -- the military person asked for the ballot ahead of time within the right window of opportunity. The Bush campaign and the Bush lawyers saying that that's not an adequate reason. It gets a little complex, here, but if you follow with me, on the actual ballot itself when they send it in, they sign something that says, yes, indeed, I did request a ballot at one point in time.

So, the Bush campaign saying that's enough to prove that they did make the request even if the county can't find a record of it. Those complex reasons offered today by the Bush team, asking them to try to essentially include hundreds of ballots that they believe are wrongly not included.

Now, let me tell you that the Gore campaign did not have anyone in court today. That's because they are not party to this suit in Leon County Circuit Court. They have been named -- suggested as being a party but they are not officially a party, so they sent no lawyers here today. Just the counties sent lawyers.

As I mentioned a minute ago, there were 14 counties named originally. It's now been reduced to 13 counties. We have a list of those, if we can go to it. But in any case, trust me, there are 13 counties named. Some of them were here, some of them weren't here. Some of them were on a phone in the judges -- in the courtroom over speaker phone. Now the judge expressed some dismay at that. At the very beginning of this hearing, he said, how can I start this hearing if there aren't -- if all of the parties aren't here in the courtroom?

The counties that were here argued that they've done their best to include every military man and woman as best they could determine. Any legitimate ballot, they said, was included.

The lawyer for Pasco and Leon County said that, for instance, they couldn't accept 20 write-in ballots from overseas because of that same thing that I just mentioned. People hadn't requested an overseas and an absentee ballot in the first place and they couldn't prove that these people were legitimate. What if they didn't request an overseas ballot and just at the last minute decided to fill something in. Maybe they could have voted twice.

I mean, there were a lot of questions being raised about the validity of those ballots. So that was the arguments from some of the counties. One county, I want to note, Stephen, at one point that was on the speaker phone said -- you could hear just a voice in the background saying, excuse me, judge. We need clarification. We need some guidance and you heard that referred to by the Bush attorney here as well. That some of these counties feel they just don't know what they're supposed to be counting.

Now to that, the judge said, I'm sorry, but I'm not here to issue that kind of an order. I'm not here to explain the law. I cannot issue what's called an advisory opinion. What I can rule on is what's put in front of me, which is whether I should order the counties to begin counting these military ballots.

I know it's very complex and very confusing, Stephen, but after all of this, after a couple of hours of lots and back and forth, the judge said, look I'm going to go back to my chambers. I'm going to think about all of this. I'm going to try to come up with a decision. There didn't seem to be any urgency in what he said and he did suggest at the very last minute that perhaps the Bush team would like to file some more legal papers tomorrow morning -- Stephen.

FRAZIER: Kate, that was a brilliant explanation of what happened in there and as you may know, we were seeing some of that earlier in the day. We saw the judge. We say the lawyers working. We saw all of the defendants sent up to represent various election supervisors and if I'm hearing you correctly, what the judge basically said is he's not going to pull the trigger right now. That we don't have a resolution of that case just yet.

SNOW: That is right. He said, I will look this over. I will make my decision and I believe he said I will make a written order. But no guidance as to when that could happen and of course time is of the essence here. We're looking at a deadline of 5:00 on Monday for state certification of all these counties results from all these counties. Not just these 13 but 67 counties. So the Bush team would like him to do something soon. I did not get the sense that that's going to happen -- Stephen.

FRAZIER: All right, Kate. Thank you for that. Let's turn for a minute for some insight from Ken Gross, who's been advising us all through this on what this might mean. Fourteen counties, actually 13 now, Mr. Gross, which are still up in the air, all pending a judge's ruling or some next step by a judge to add to the 67 we don't know about. Where are we right now?

KENNETH GROSS, FORMER FEC OFFICIAL: Well, of course, we have to wait to hear from this judge. This judge has not issued an order yet.

I've reviewed these absentee ballot regulations under Florida law, and there's actually another set of rules under federal law. They are extremely complex, and there's lots of ways to trip up in a technical way. And I think what the Bush campaign is arguing -- and they're on the side of the angels here, because you want to include, of course, the votes of the military people abroad if you can -- is not to be so technical. If it's signed on this line as opposed to that line or there isn't exact compliance with the rule, exercise discretion, canvassing board.

The only irony of it is, is that that's exactly the kinds of issues that have come up regarding the chads, is to exercise discretion. There is almost no way in which a court can rule with sufficient specificity to anticipate all the little technical defects or issues that are going to arise in reviewing these ballots, whether they're chads or whether they're absentee ballots. And that's exactly what this judge is confronted with.

FRAZIER: Well, you know, your comments, Mr. Gross, bring up two points. One is that the language used by attorney Fred Bartlit in his opening remarks was very carefully selected. In fact, I'm not sure he said exercise discretion. I think they want to save that for something they can attack. They don't like discretion. He said exercise common sense in understanding what these servicemen, airmen, sailors are up against in throwing ballots into a mailbag and just hoping for the best, that it'll get there. So "common sense" seemed to be his watchword there.

GROSS: Well, what it is, is don't necessarily follow the exact letter of the law. The exact letter of the law may say, you need a signature, you need a postmark, you need a date on it, it has to be in a sealed envelope with an outer envelope. Don't adhere to the letter of the law to the extent that you're throwing away votes that you can tell, because they wouldn't be here at the time that they arrived, must have been voted on either on or before November 7th.

So we can call it different things, but I think we're getting down to the same result here.

FRAZIER: Now even short of a judicial remedy, I got the sense from the comments made by Fred Bartlit near the end there that there's sort of an out-of-court settlement happening, at least with Clay County, where 14 votes that had been discounted and rejected because of those technicalities you cite, were put back into the tally. So is there some wheeling and dealing going on sort of the judge's ruling?

GROSS: Well, I think this is a very smart move by the Bush campaign for that very reason. They're not going to have -- they're not going to have to litigate these issues in all these counties. Just bringing this action in Leon County I think is enough to spur on a review of these ballots, which can make a big difference for the Bush campaign because we're talking about such close numbers. And the Gore campaign doesn't want to go anywhere near this.

So they're going to let -- leave it alone, and the Bush campaign, I think, is going to get the desired results without having to pursue this litigation much further.

FRAZIER: Exactly. Walk softly and carry a big legal stick, I guess.


Ken Gross, thanks very much for joining us and with those insights.

And here we take a short break and we'll be back with more on the Florida recount after this.


FRAZIER: It's been an hour for very technical discussions of elections procedures, but we have now this human element to the story. We want to let you know that Republican vice presidential candidate Dick Cheney is out of the hospital now. He was released today from George Washington University Medical Center, where he'd been treated for a mild heart attack.

You'll recall doctors performed an angioplasty to open a blocked artery, which was discovered on Wednesday.

(BEGIN VIDEO CLIP) DICK CHENEY (R), VICE PRESIDENTIAL CANDIDATE: I woke up at about 3:30 in the morning. I had a sensation that there was perhaps something going on there. Sometimes it's confused with indigestion, sometimes with other types of discomfort. It lasted long enough, it was steady enough -- it didn't change when I breathed deeply or moved around -- so I became increasingly convinced that it might be cardiac- related. I got my wife up, got the agents to drive us to the hospital, and we were here with less than an hour from the onset of the first sensation.


FRAZIER: As we've been wildly reporting, this is Secretary Cheney's fourth heart attack. As he said today, he may have to modify his health regimen, but he says there are no, repeat, no restrictions, he says, on his professional activities.

There'll be much more on this and all of the other elements of the recount coming up next on a special edition of "INSIDE POLITICS." Judy Woodruff is handling that. So stand for her.

Thank you for joining us here today. I'm Stephen Frazier. Have a great weekend, everybody.



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