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The Florida Recount: Election 2000 Goes Before Supreme CourtAired December 1, 2000 - 4:00 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: A historical day in election 2000. And our special coverage continues this hour.
Hello, everyone, from CNN Center in Atlanta, I'm Natalie Allen.
LOU WATERS, CNN ANCHOR: And I'm Lou Waters. Hello, again.
Here's what's happening: The nine members of the United States Supreme Court may now hold the key to what lies ahead in this battle over the ballots in Florida.
Here's where we are up to the minute: The high court heard oral arguments today in George W. Bush's bid to have hand recounts of the disputed ballots in Florida thrown out.
In an unusual move, the court released audio recordings of the hearing.
What's next is anybody's guess. No decision was expected immediately after today's hearing, but the high court can do as it wishes and issue a ruling at any time.
In Florida today, a circuit court judge has decided to impound ballots from three additional counties, Broward, Pinellas and Volusia. Hundreds of thousands of ballots from Miami-Dade County arrived in Tallahassee today. Ballots from Palm Beach County arrived yesterday, as you may know. A court hearing tomorrow will determine whether those ballots should be looked at again.
ALLEN: Many hearings still ahead in this election, one today had everybody riveted. Today's hearing before the U.S. Supreme Court is being described as calm and civil, if you could understand it all.
WATERS: Well, that's a change, isn't it?
CNN's Charles Bierbauer is at the Supreme Court in Washington. He joins us now with that story -- Charles.
CHARLES BIERBAUER, CNN SENIOR WASHINGTON CORRESPONDENT: Hello, Lou.
Well it's been quite an intriguing day at the U.S. Supreme Court, one that's unprecedented at least in terms of the kind of subject matter which this court had to deal with under unique circumstances of trying to sort out just who our next president is going to be. And then some of the technical advances, one of which was to actually let the nation listen in on the arguments before the U.S. Supreme Court, at least by way of an audio transmission, which began here on CNN shortly after the conclusion of those 90 minutes of arguments this morning.
We want to bring to you a couple of pieces of that -- of that transmission to give you some flavor but also some of the depth of the argument that took place inside the U.S. Supreme Court this morning.
Pick up with a piece of dialogue between Ted Olson, who was the attorney for George W. Bush and also Justice Ruth Bader Ginsburg -- excuse me, in a somewhat intricate piece of discussing the articles of the Constitution and federal statutes that might apply here.
It begins with Ted Olson.
(BEGIN VIDEO CLIP)
TED OLSON, BUSH CAMPAIGN ATTORNEY: Florida Supreme Court radically changed the legislative scheme because it thought it could do so under the Florida constitution.
By doing so, it acted inconsistently with Article II of the Constitution and inconsistently with Section 5 of Title 3 and it has brought about precisely the circumstances that Section 5 -- Section 3, Title 3, was designed to avoid.
RUTH BADER GINSBURG, ASSOCIATE JUSTICE OF THE UNITED STATES: If I had looked in the conclusion, the paragraph on page 37-A, with a summarized -- what they said -- there's nothing there about the Florida constitution, it's only about the Florida election code. They say they must construe the Florida election code as a whole and they point out the provisions in conflict. There's not one word in that paragraph that says anything about the Florida Constitution.
(END VIDEO CLIP)
BIERBAUER: Now this may seem on obtuse argument, but the important element for the U.S. Supreme Court is to discern whether this is a federal action here, whether there is a violation of the federal Constitution. That's the Article II that Mr. Olson is referring to.
Then they got into a lengthy discussion about just what Katherine Harris, the Florida secretary of state was or was not permitted to do with regard to accepting or denying those late hand counts out of several counties.
Again, this is Ted Olson being confronted by a number of the justices.
(BEGIN VIDEO CLIP)
JOHN PAUL STEVENS, ASSOCIATE JUSTICE OF THE UNITED STATES: I don't read their opinion that way, Mr. Olson. It seems to me that the portion of their opinion dealing with statutory construction ends with the conclusion that the secretary has discretion. The portion of the opinion employing the canons of construction does not place any limits upon the secretary's discretion.
OLSON: Well, yes, but -- I agree with that up to a point, but then it says -- but then it says that she must accept these returns that are after the deadline...
ANTONIN SCALIA, ASSOCIATE JUSTICE OF THE UNITED STATES: That was not on the basis of any canons of statutory construction. That was on the basis of the state's constitution.
OLSON: Well, that's right. So there was both going on. And what the court was bound and determined to do was to get to a consequence that the court determined was consistent with the will of the people, irrespective of what the statute said.
GINSBURG: Mr. Olson, would you agree that, when we read a state court decision, we should read it in the light most favorable to the integrity of the state supreme court? That if there are two possible readings, one that would impute to that court injudicial behavior, lack of integrity, indeed, dishonesty, and the other that would read the opinion to say we think this court is attempting to construe the state law but it may have been wrong, we might have interpreted it differently, but we are not the arbiters, they are?
OLSON: I would like to answer that in two ways. In the first place, I don't mean to suggest, and I hope my words didn't, that there was a lack of integrity or any dishonesty by the Florida Supreme Court. What we're saying, that it was acting far outside the scope of its authority in connection with an exercise of power that is vested by the Constitution of the United States...
GINSBURG: But if it tells us -- if it tells us, "We see these two provisions in conflict, they need to be reconciled"?
OLSON: But under almost any other circumstances, yes, Justice Ginsburg, but in this context -- in this context we're talking about a federal right, a federal constitutional right, and the rights of individual citizens under the Constitution.
(END VIDEO CLIP)
BIERBAUER: The burden here would seem to be much greater on the Bush argument, because it is the Bush campaign that is asking this court to overturn the Supreme Court in Florida. And as Justice Ginsburg said more than once, this court owes great respect to the decision made by the Florida Supreme Court -- Lou, Natalie.
WATERS: I know it's difficult for you, Charles, with the exercise of First Amendment rights going on all around you, but you've had an opportunity to talk to a lot of these parties to these arguments before the Supreme Court today. Do you get any sense that there's pessimism or optimism on either side based upon the questions that were asked today? BIERBAUER: Well, Lawrence Tribe, who argued for Al Gore, came out afterwards and said this is now his, what, 29th argument before the Supreme Court, and he was grateful there were no bombshells, no hidden questions, nothing that might have tripped him up.
And by the same token, Ted Olson is an equally accomplished appellate attorney, arguing before the Supreme Court frequently. So they seem to be prepared and capable. Each comes out, I suppose, just like a prize fighter after a match and before the decision is granted thinking he has won the fight. No one here would presume to guess how the justices will come down on this. They certainly posed both sides of the questioning in the arguments, but they often do that as the devil's advocate, too -- Lou.
ALLEN: Could you tell, Charles, how the justices, from their questions, how they were responding to the Bush lawyers' arguments that the state Supreme Court acted outside the scope of its authority?
BIERBAUER: Well, it depends on whom you listen to. If you listen to the question posed by Justice O'Connor, she said, well, they changed the date. That's certainly dramatic, changed the date for the protracted period of counting ballots. But similarly, Justice Ginsburg said -- and this would seem to be more consistent with the Gore argument -- said that we must give respect to the Florida Supreme Court.
Justice Stevens was particularly cautious about shifting away from what the Florida court had done and questioned extensively with Mr. Olson over whether these were not just relatively minor changes and whether there might not be some circumstance, perhaps an act of God, under which the Florida state secretary would have to extend her margins and extend her deadlines.
Let's go from the other side of the argument now and listen to part of the dialogue that ensued when the attorney for Vice President Gore, Laurence Tribe, was before the court.
(BEGIN VIDEO CLIP)
LAURENCE TRIBE, GORE ATTORNEY: Perhaps if there were a due process issue in this case, and if someone had a protectable interest that was injured, that would be relevant. But the federal question that makes that relevant here would arise only if one forgot that 3USC section 5 is all carrot and no stick.
WILLIAM H. REHNQUIST, CHIEF JUSTICE OF THE UNITED STATES: No, I don't agree with you on that Mr. Tribe. It seems to me a federal question arises if the Florida Supreme Court, in its opinion, rather clearly says that we're using the Florida Constitution to reach the result we reach in construing the statute.
(END VIDEO CLIP)
BIERBAUER: So you see there is disagreement here, and on several occasions we heard justices say, I don't agree with you. Justice Scalia said, I don't read the statute that way in response to Laurence Tribe at one point.
Still, you have to expect that they are trying to extract from these two attorneys just every potential loophole that may exist, any flaw that may have been laid out in the briefs which have been brought to this court over the past week. And, indeed, in talking to many justices, or some of the justices here, I have heard them say that they derive much more from reading the legal briefs than they do from the arguments. So they had hundreds of pages of briefs to work through before they even got to arguments here.
But let me give you one more excerpt; again it's Laurence Tribe, the attorney for Al Gore.
(BEGIN VIDEO CLIP)
JUSTICE SANDRA DAY O'CONNOR, U.S. SUPREME COURT: Because of Article 2 which, after all, does give the legislature flannery (ph) power and must have wanted -- it must have wanted to have the laws in place so that it wasn't -- so that Florida wouldn't risk losing its electoral votes. I mean, the legislature had to want that by enacting laws and, perhaps, the Florida court has to be aware of the consequences to this state of changing the rules.
TRIBE: But Justice O'Connor, under Article 2, section 1 clause 2, the authority to regulate the manner of the choice of electors is vested in the state legislature. If the state legislature decides from the beginning to exercise that authority by instructing the various institutions -- certainly not just the courts, the attorney general, the secretary of state -- in very particular ways to exercise their roles in the process...
O'CONNOR: Well it certainly did by enacting that date. Here is the certification date; how could it have been clearer?
(END VIDEO CLIP)
BIERBAUER: Very critical question here about whether the Florida state legislature or the Florida courts are in charge of this process -- whether it is a legislative process, with the lawmakers laying down the rules for conducting elections, or whether there is a judicial role. Some will say there is, some will say there should not be -- Lou, Natalie.
ALLEN: Well it was quite fascinating to be able to hear this proceeding take place in the Supreme Court. Did all the justices today take part in the questioning?
BIERBAUER: Well, very typically, Justice Clarence Thomas does not ask questions in court -- not that he never asks questions, but it is unusual, and he was the sole justice today who did not get involved in the dialogue. Justice Thomas is also one who has suggested that he gets more out of the briefs than he necessarily feels he has to be an active participant in the dialogue. So the one voice not heard, even though we heard all the others uniquely, was that of Clarence Thomas.
ALLEN: Well, it was nice to be able to put a voice with the faces. Thanks, Charles Bierbauer at the Supreme Court.
WATERS: It's been quite a day. And if you want to hear all of the arguments made today before the U.S. Supreme Court you can listen to the audio feed on our CNN Web site, that's at cnn.com. In addition to the oral arguments, cnn.com has profiles of all of the justices, the lawyers who argue the case and a message board for your opinions. That Web address, again, is cnn.com.
And there's apparently been a development in Tallahassee at the Florida Supreme Court. You see the wires being run there to the podium where Craig Waters, the Florida Supreme Court spokesman is about to step out to issue some kind of an announcement that may have to do with the Palm Beach butterfly ballot cases sent up to the court or a ruling on the Gore campaign's request to order immediate counting of the 14,000 disputed ballots from palm Beach and Miami-Dade Counties, those ballots that we saw arriving by a rental truck at the Leon County courthouse yesterday, and the Miami-Dade County ballots arrived at the court today. Craig Waters will step out there; as soon as that happens, we'll bring that to you live -- Natalie.
ALLEN: While the Florida recount hearing was going on inside the United States Supreme Court building, a large and noisy crowd of Bush and Gore supporters gathered outside. Some of them you can, perhaps, still hear behind Charles Bierbauer now. Here's some of what, though, went on this morning.
(BEGIN VIDEO CLIP)
CROWD: Al Gore has got to go! Hey hey! Ho ho! Al Gore has got to go...
CROWD: Every vote is counted! Twice! Every vote is counted! Twice! Every Vote is counted!
CROWD: Bush won! Bush won! Bush won! Bush won! Bush won! Bush won!
(END VIDEO CLIP)
ALLEN: Some of the protesters had a flair for the dramatic. One of them wore a Darth Vader costume and was carrying a sign that said: "Keep counting until the dark side wins." Hey, got to love the creativity of the American people.
Ahead here we will hear from attorneys with close ties to the Bush and Gore legal teams.
WATERS: Their perspective on how the two sides did as our special coverage of election 2000 continues.
WATERS: Both George W. Bush and Vice President Al Gore are represented by high-powered lawyers, of course. Attorney Theodore Olson argued Bush's case before the Supreme Court. For the past three years "The National Law Journal" has rated Olson as one of the country's 100 most influential lawyers. Attorney Laurence Tribe presented Al Gore's case. Tribe is the author of "American Constitutional Law," that legal textbook most often is used during the 20th century.
Two other attorneys providing input for the cases of Bush and Gore. Join us this afternoon; Attorney Douglas Kmiec is an informal adviser to the Bush team. Attorney Neal Katyal is a member of Gore's legal team and was in the Supreme Court hearing for the hearing this morning.
Gentleman, welcome. Have you anticipated the courts first question: Why are you here? Is this a federal case? And how do you think the answers were handled -- Mr. Kmiec?
DOUGLAS KMIEC, BUSH LEGAL ADVISER: I think that was a very appropriate question and I thought it was answered very forthrightly by Ted Olson, who said, fundamentally this is a question of the United States Constitution and its relationship to Florida law and its importance to determining the integrity of a national election, a presidential election.
I think anyone who listened to the hearing or was present really came away with a sense of confidence that however this comes out, this is a court that's going to determine this case on the basis of law, on the basis of close interpretation of the United States Constitution. This is not partisanship. This is not politics. This is what one would expect in a very noble way from the high court of the land.
WATERS: Well, as we know, there are many attorneys who claim this case should not have been brought before the United States Supreme Court. Mr. Katyal, do you agree with Mr. Kmiec?
NEAL KATYAL, GORE ATTORNEY: Well, I agree with him on the tenor of the argument and the fact that the justices sounded enormously well-prepared. They were asking a lot of the right questions. But there is a deep question here about exactly what is at stake. And you know, I tend to think that the federal law here, the 3 USC-5 which is what the court asked about and the constitutional question about Article Two of the Constitution and whether the state legislature can set its own laws -- these aren't violated here. This is a really fairly easy case on the merits.
WATERS: What is USC-5.
KATYAL: Three USC-5 is a federal statute and that statute say that if a state follows the procedures it had laid down before the election -- a state legislature follows those procedures, then when Congress evaluates whether or not the electoral counts were -- the electors gave adequate votes, the Electoral College gave adequate votes, then those initial processes will be deemed conclusive.
It's a very technical issue. But it boils down to essentially to one simple question. Did the Florida Supreme Court somehow entirely rewrite the rules or not? And here, I think the answer is quite clear. All the state Supreme Court did was follow what courts do all the time. They interpreted a statute. WATERS: Mr. Kmiec, what do you think of the argument that because of the Supreme Court's noted support of states' right over the last 10 years and we had former clerk of the Supreme Court about an hour ago tell us that the Supreme Court would have to do an intellectual back flip, as he put it, to come out for your side of the case, what do you make of that argument?
KMIEC: Well, I think that's largely rhetoric. The fact of the matter is, and I think one thing that every justice there who spoke this morning manifested there is that this is a mixed question of federal-state law, and the key question is did the Florida Supreme Court in issuing its opinion that changed the certification date from November 14th to November 26th, that changed the statutory standard on when manual recounts are supposed to be done, where they just interpreting Florida law?
Were they just interpreting the Florida constitution? Did they understand that their interpretation, because this is a mixed question of state law and federal law, did they understand that their state interpretation is necessarily bounded by the United States Constitution as the higher law of the land?
And here's, I think, where the court is going to divide. There's a substantial sentiment expressed on the court this morning. Justice O'Connor, as Charles Bierbauer pointed out, said the change in the statute was dramatic and because it was so dramatic and because it has that effect on the manual recount standard and that manual recount standard is of course still in play in Florida in the contest provision and therefore, it's very much alive controversy -- because it's so dramatic, that seems to them, that is Justice O'Connor, the Chief Justice, Justice Scalia, that the Florida Court was basing its decision not on the proper authority. That it had forgotten that the state legislature is the determiner of the process here and not the Florida Supreme Court under the Florida Constitution.
WATERS: And -- go ahead, Mr. Katyal.
KATYAL: With all due respect to Professor Kmiec, I that think that the argument about it being a mixed question isn't the right question that the court is asking. The court's really saying, look, if there are two interpretations and one gives greater deference to the state court and one gives the state court the benefit of the doubt, then what are we to do?
And many justices including, Justices O'Connor, Ginsburg, and Kennedy were all troubled by that. That there is -- that the state court of Florida had acted reasonably here. And given that, even if it's a mixed question of federal and state law, the Supreme Court precedents are quite clear that in those circumstances it is the state court decision that should control and federal courts shouldn't get involved.
WATERS: Before we run out of time here, I'd like you to consider the quote by Justice Ginsburg today: "We owe the highest respect to the decision of states' court -- state courts." What did you make of that and the questions that were asked today or can anything be made of that to give you a sense how this is going to will go?
KMIEC: Well, I think it illustrates that Justice Ginsburg feels that perhaps this is a case where we should give the benefit of the doubt to state courts as to whether or not they got it right. But I will say that Justice Kennedy, who seems to me to with a bit -- he may be the swing justice in this, was very troubled by that because that suggested that there was no one, then, who could step forward and protect the integrity of the presidential election and the national interest if you just leave it up to the state Supreme Court to perhaps make a decision that is somewhat erroneous on this basis. You're not getting a true outcome that is true and compatible -- and compatible with the United States Constitution.
WATERS: Is that the way you see it, Mr. Katyal.
KATYAL: I see the following way. Justice Ginsburg hit the nail on the head and it's what a lot of the other justice were picking up. And what she said essentially is what in the world is the federal court doing here? We have a reasonable interpretation by the Florida state Supreme Court, and our precedents say it would be inappropriate for us to get involved. In other words, she's saying, why Mr. Bush, you who claim to trust the states and the people and not Washington, what are you doing bringing your case in Washington, D.C.? This is matter of Florida's election law and Florida's highest court should be able to interpret it because that's the rule that the Florida legislature itself set.
WATERS: Thank you both. It's been a very educational day. A historic day. Douglas Kmiec, Neal Katyal. We appreciate it very much.
KATYAL: Good to be with you.
KMIEC: Thank you.
WATERS: Natalie, what's next?
ALLEN: Well, there are two questions before the Florida state Supreme Court. Yet again, one involves the butterfly ballots in Palm Beach County. The other, the Gore team wanting a recount of some of the ballots to start immediately. We have been told that Craig Waters, the spokesman for the court is to step out into this lectern at any moment and we'll hear what he has to say when that happens. We'll provide live coverage. We'll take a quick break for now.
ALLEN: Well, we all know the big battle today over the Florida vote is taking place in Washington, but George W. Bush is waiting things out in Texas as he has been all along.
CNN's Jeanne Meserve is there with the latest reaction from the Bush camp about today's develops -- Jeanne.
JEANNE MESERVE, CNN CORRESPONDENT: Natalie, Governor Bush arrived here back at the mansion just about a half hour ago. Traveling with him from his ranch in Crawford, Texas were Dick Cheney his running mate and head of his transition effort and also Andrew Card, his pick to be White House chief-of-staff in a possible Bush administration.
The three of them will be meeting this afternoon with Clay Johnson, who is executive director of the transition effort and an old friend of Governor Bush's. We are told that en route to Austin, Governor Bush did speak with Theodore Olson, the attorney who represented the Bush campaign before the U.S. Supreme Court today. He thanked Ted Olson and his team for their long hours and hard work. Olson told the governor that they had presented a strong case.
But he did not predict an outcome -- no prediction from the Bush campaign, though, of course, what they want is a victory. Bush was at his ranch. He doesn't have cable or satellite there. He did not listen to the proceedings as they were replayed on television. He was briefed by some of his staff, however. The governor spent his day dealing with transition matters with Mr. Cheney -- also with Mr. Card. He will come up. And after this meeting here today on transition at the governor's mansion, he'll be hosting a Christmas back party.
Tomorrow, it's back down with the ranch, where he will meet with the top dogs in Congress: Trent Lott and Dennis Hastert. So, for the Bush campaign, they continue on despite the state of limbo that this presidential election is suspended in -- Natalie.
ALLEN: It's nice that they can pause and have a Christmas celebration in the midst of all of this angst -- Jeanne Meserve in Austin.
Now to Lou.
WATERS: And the vice president, meanwhile, is keeping tabs on the Florida vote from Washington.
CNN's Eileen O'Connor is in Washington -- good place to be for reporting this aspect of the story.
Eileen, what is going on there?
EILEEN O'CONNOR, CNN CORRESPONDENT: Well, Lou, the vice president stayed at his residence at the Naval Observatory. And he does have cable. And he also has e-mail and lots of phone lines. And his aides say the has obviously been in touch with his aides and with the lawyers. He is always in touch with everyone very much so in this case.
But they are not saying either way how they feel about the arguments. They say that you could hear tough questioning of both sides, although, they do say they were encouraged by the fact that the justices were asking why this was before them as a federal issue, when, as Justice Ginsburg said: We should say that the state Supreme Court has the supreme authority over interpreting state law.
So I do believe they were at least encouraged by that. Now, it's wrong to say that this is a small case for them. Although, it was brought by the Bush camp, the Gore campaign knows that a victory here would certainly help them in the public-relations area. And it would extend the patience of the people about all of the legal wrangling going on in Florida -- Lou.
WATERS: And while that Supreme Court considers the efficacy of that Supreme Court ruling in Florida, there has been more state court action today. Is the Gore campaign telling you any -- any developments on their end?
O'CONNOR: Well, they did have that procedural hearing, Lou. And, you know, the Gore campaign is very upset with the fact that the Bush campaign has put forward so many witnesses: over 90. And the Gore campaign has put forward only two witnesses. They are saying that these are delaying tactics, that all they want to do is count the ballots, count the votes that are on those ballots -- from Miami-Dade, in particular, that were never -- never went through that manual recount.
And they say that, in this case, justice delayed is justice denied. They do have that December 12 deadline by which the electors from the state of Florida will be sent forward. And so they see that as a very big deadline. Also, in the court of public opinion, they are encouraged by recent polls that say that people are willing to wait. But they know that it would be better if people starting seeing some counting being done.
And so they would like to get that court action through -- Lou.
WATERS: All right, Eileen O'Connor, keeping track of the vice president and his aides and his campaign.
And again, we are expecting, momentarily now, we understand, within the next five minutes, Craig Waters of the Florida Supreme Court to step out here the court building to make an announcement. Whatever it is, we'll have it live. We will take a break. We'll be right back.
WATERS: Here is Craig Waters -- the Supreme Court of Florida.
(JOINED IN PROGRESS)
CRAIG WATERS, FLORIDA SUPREME COURT SPOKESMAN: First, I want to tell you that at this point in time the questions regarding the balloting methods used in Palm Beach County remain pending in this court. There has been no decision as of yet as to whether the court will accept those cases.
We have had another certification from the 1st District Court of Appeal in the case of Matt Butler v. Katherine Harris. It involves the constitutionality of Florida's hand recount statute. That matter is pending before the court and the court has now entered a scheduling order in that case requiring that all parties file briefs no later than 3 p.m. December 4, and they should include why this court should exercise its discretion under Article V, Section 3B5 of the Florida constitution.
Finally, in the case of Albert Gore Jr. v. Katherine Harris and George W. Bush, which was filed yesterday, the court has entered the following order, and I'll read it to you: "The petition for writ of mandamus or other writ, or in the alternative, review of trial court rulings, has been considered by the court. The petition is dismissed without prejudice."
WATERS: All right. That is Craig Waters with the Supreme Court. Thank goodness we have Greta Van Susteren in Washington, our legal analyst.
First, let's take care of the last business, Greta. The Gore suit versus Katherine Harris and George W. Bush, what was it? And it's been dismissed. But what was it?
GRETA VAN SUSTEREN, CNN LEGAL ANALYST: That one, Leon, was out of Tallahassee. You know there's a contest proceeding going forward in Tallahassee, and the judge earlier this week set a scheduling order that includes an important hearing tomorrow. And the Gore people thought that was just much too slow. The hearing was set on Tuesday for tomorrow. And what they were seeking to do was to speed it up, to have the scheduling occur much faster, so they could have a trial on the contest, as well as having the hand count begin immediately.
So, indeed, this is a setback for the Gore campaign, who is racing against the clock, trying to get this recount done and certainly trying to beat that December 12 deadline. But tomorrow is a very important hearing. And perhaps the Florida Supreme Court wanted to defer to the lower court to see exactly what happens tomorrow.
WATERS: And do you have enough information to know what this other lawsuit just filed against Katherine Harris might be?
VAN SUSTEREN: Well the other one is one where a voter had challenged the constitutionality of the hand-counts statute. And that, of course, is pending before the Florida Supreme Court. What is sort of interesting is that they do have a scheduling order. They said that the briefs are due on December 4 at 3:00 p.m.. So that one is moving forward quite quickly. What is also sort of interesting is that the court also issued in that order a notice that they want to know: Why should we hear this?
So, obviously there, they are watching the clock. But they want to know if this is even a matter for them to consider.
WATERS: And so the ballot cases remain pending. That would be the butterfly-ballot cases -- there are two of those from West Palm Beach -- and the counting of undervotes.
VAN SUSTEREN: That is right. But I think that the headline news there was the last one that was announced by Craig Waters, who is the spokesperson for the Florida Supreme Court. And that is that Al Gore will not have the contest proceeding speeded up by the Florida Supreme Court. And the hand count will not be begin. If indeed there is a hand count, it will not begin immediately.
But I think that my attention certainly -- watching this as a legal analyst -- is going to be on tomorrow: a very, very important hearing tomorrow in Leon County, where both sides are going to be battling the issue about whether or not, you know, there should be a hand count go forward, and if so, to what extend and what standards? Big hearing tomorrow.
WATERS: All right, Greta. And we will be covering that all day live here on CNN.
It should be pointed out, it's the judge in that Leon County circuit courtroom, Judge N. Sanders Sauls, who had declined that order speeding up the schedule to allow for those recounts while his court was considering the evidence and the witnesses. That's why it was passed up to the Supreme Court of Florida. That motion now has been dismissed, so there you are -- Natalie.
ALLEN: Well, let's talk more about this with CNN's Florida elections expert David Cardwell.
Hello to you, David.
DAVID CARDWELL, CNN ELECTION LAW ANALYST: Hi, Natalie.
ALLEN: Hi there. Any surprise that the Florida Supreme Court has -- has dismissed this request by the Gore team?
CARDWELL: Well, I wouldn't say it was a surprise. That was always a possibility. The fact that they did it late on the afternoon of the day before the case went to trial, when we heard that they might announce something, we speculated it may actually take some positive action by making the announcement just before the trial begins tomorrow.
But in addition to not accepting the case in and bringing it up to the Supreme Court, they also did not grant the request of the Gore campaign that instructions be given to Judge Sauls on either beginning the recount immediately and also on what standard was to be applied. So, that's going to be fought out tomorrow in the trial court before Judge Sauls beginning at 9:00 a.m.
ALLEN: And is it anyone's guess how long -- how long might it be before there's a decision with tomorrow's hearing? I know that the Gore folks had said that it would take 10 days to count all of these ballots just from Miami-Dade County, I believe.
CARDWELL: Well, it will take a while. The ballots are now here, as we know. We've seen the trucks arrive and the ballots being unloaded.
The hearing tomorrow before Judge Sauls is going to take a long time. There are a lot of legal issues to work through. There are some factual issues also, but there has to be some fundamental decisions made as to whether or not the Gore campaign is entitled to a count or recount, depending on your point of view, and those issues are going to be argued strenuously tomorrow, because to the Bush lawyers, counting the ballots amounts to granting the relief. To the Gore lawyers, they want the ballots counted so they can use that as evidence.
ALLEN: David Cardwell in Tallahassee. Thanks, David. We'll be talking with you during our live coverage tomorrow of that hearing.
And we'll take a break. We'll have more right after this.
WATERS: And we're headed back to Tallahassee, where CNN's Mark Potter is following the ballots and Judge Sanders Sauls -- Mark.
MARK POTTER, CNN CORRESPONDENT: Well, Lou, those ballots arrived here at midafternoon. They came in a mental truck. They were escorted by police cars. Together they drove up the long drive up the Florida peninsula, bringing 654,000 ballots in 82 boxes to the Leon County Courthouse.
Once inside the building, the ballot boxes were counted and certified one by one, and once the officials signed off on the delivery, they were taken out, as you can see here. They were secured in a vault at the supervisor of elections office. Yesterday, 462,000 ballots were brought here from Palm Beach County.
Now, we do not know if any of these ballots will actually be counted again. That's to be the subject of a hearing tomorrow before Judge N. Sanders Sauls. Vice President Gore is contesting the election and asking that at least some of those ballots from Miami- Dade County and Palm Beach County be recounted.
And now this afternoon in a pretrial hearing on that matter, Judge Sauls said that ballots in four other Florida counties need to be impounded until the court can decide whether they also need to be recounted. Three of those counties, picked by the attorneys for Governor Bush, are Broward, Pinellas and Volusia. A fourth county was added to that list late in the hearing. That's Nassau County. That's one of the counties selected by the attorneys for Vice President Gore.
Now, the judge said that he hopes to complete this trial -- he's calling it a trial -- within a 12-hour period. He's asking the lawyers to control their witnesses and their evidence as tightly as they can. He said they need to get the fluff off, in his words.
And lastly, another lawsuit has been filed here in the Leon County Courthouse. This one comes from Martin County, which is near Orlando. It's supported by the Democrats. It asks that 10,000 absentee ballots there be thrown out because of alleged improprieties by election officials and Republican Party members in the handling of absentee ballot applications. And the parties accused in that lawsuit, we must stress, deny strongly any wrongdoing. A hearing on that matter is under way in this courthouse right now.
Lou, back to you. WATERS: So, Mark, we have 1.1 million ballots down in the vault. Judge Sauls looking -- apparently 90-some witnesses that the Republican attorneys want to bring before the court. Is the judge still thinking to get this done in one day?
POTTER: The judge says he can get it done in 12-hour period -- however you define that -- but that 90-member witness list has been shrunk considerably now by the defendants. They're saying that they've got that down to maybe less than 20 now, strongly urged by the judge to do that. And the judge said one witness per topic is the way we're going to do.
He says he's indicated that he's going to try to control this more strongly than it looked like earlier today, but he hasn't defined exactly how he's going to do that. We'll just have to wait and watch with everybody else tomorrow.
WATERS: And that's exactly what we'll do. Mark Potter, down there, keeping watch in Tallahassee. And again, we remind you that the Judge Sauls hearing tomorrow will be broadcast live by CNN. It gets under way at 9:00 in the morning. So you have something to do all day tomorrow.
We'll take a break. We'll continue with our coverage in a moment.
ALLEN: Well, now that the Supreme Court hearing is over and the audio version has been released, what are the candidate's camps saying? Is either side claiming their lawyer presented a stronger argument?
CNN senior political analyst William Schneider has spoken with members of both campaigns and is live in Washington with their opinions -- Bill.
WILLIAM SCHNEIDER, CNN SENIOR POLITICAL ANALYST: Natalie, well, I think both campaigns believe that they made the stronger argument, but they both got tough questions from the Supreme Court. So it's hard to tell from those questions which way it's going to turn out; they're just making those claims. We won't know for several days how the court is going to rule on this.
ALLEN: And what are the political implications of this Supreme Court decision?
SCHNEIDER: Well, it's really a very narrow case. It's, essential, whether the initial count or the subsequent count, that was allowed by the Florida Supreme Court, will be the one that matters. But, because this is the United States Supreme Court, it has much bigger political implications. If the court rules, for instance, in Al Gores favor, there will be big headlines, that say "Supreme Court Rules for Al Gore," and the political impact of that will be tremendous because it look like the court is saying that the Gore procedure to recount the ballots by hand is allowable, that it's alliance -- it's dependence on the Florida Supreme Court was the right way to go, and it will look like the Gore campaign has had its case substantiated.
That's just because the Supreme Court has so much standing and legitimacy in the American political system.
ALLEN: What are the narrowest and the widest decisions you can expect the Supreme Court might make?
SCHNEIDER: Well, I suppose the narrowest thing they could do would just simply be to say -- obviously they could just throw the case out and say it's moot, that George Bush was ahead in Florida by the 930 votes of the first count or the 537 votes of the second count and, therefore, the case is moot and the Supreme Court can just decide not to rule.
That seems very unlikely -- because they've already accepted the case they're bound to issue a ruling. They could also decide on very narrow grounds, very legalistic grounds, that this is permissible, but there are no wider implications about the contest over the certification of the Florida vote.
The bigger grounds would be to establish the principle whether the legislature of Florida or the Supreme Court of Florida is the ultimate arbiter of how that state votes. Gore wants the Supreme Court of Florida to be the arbiter; Bush is depending on the legislature. And, really, the court has to decide which one sets rules. Once they decide that and announce that decision, the political implications, I think, will be clear.
ALLEN: What political role, in the big picture, will this court play?
SCHNEIDER: Well, you know, Natalie, the United States Supreme Court is by my way of thinking, the only institution involved in this which is above the fray, or at least supposed to be. People like to think of the Supreme Court as above partisanship, above narrow political calculations. They're appointed by presidents, of course, confirmed by the Senate; they're appointed for life.
But if the court chooses, it can play the role as the voice of the Constitution and, for that matter, the voice of the American electorate taken a whole. Voters are very divided in this, but the court has to speak for the country and the Constitution. So if they decide by a strong majority, or even a unanimous majority in one direction, I think that will be accepted as a final arbitration.
The other possibility, of course, is the court can have a very narrow split decision, five to four, with bitter partisanship on both sides of that decision. We've seen that in some court cases in the past; and what that will mean will be very dangerous because that means the Supreme Court of the United States has as sharp a partisan division as Congress, as the Florida authorities, and as the candidates. And that would not help matters at all.
ALLEN: Right; it could make a messy situation even messier. SCHNEIDER: That's right. We want to see a court that's unanimous or virtually unanimous and that makes a strong decision because it is the voice of the Constitution in this.
ALLEN: And do you think most Americans think this court is impartial?
SCHNEIDER: Well, they think once you have a Supreme Court that they decide on the law. I mean, many court cases are controversial, but I think most people accept the legitimacy of the Supreme Court as the voice of the Constitution. You know, in this country, we don't have a king or a queen. It's the Constitution, a document, that's sovereign; and the court is acting here as the voice of that Constitution.
So I believe the court, I hope the court, acknowledges, recognizes its special role in this contest. I believe that's why they accepted the case in the first place. There simply is no one else -- no one else in Florida or in Washington who can speak for the whole American people the way the court can. The president can't do that, I mean, because Republicans would simply not accept what President Clinton has to say as authoritative. Only the court can do that.
ALLEN: Wait and see; Bill Schneider, thanks, we'll hear from you again, coming up on "INSIDE POLITICS."
WATERS: And again, just moments ago, the Supreme Court of Florida dismissed the Al Gore lawsuit to the speed up the process over those disputed ballots in Tallahassee. We're getting reaction already.
Here is Eileen O'Connor in Washington.
O'CONNOR: Well, the Gore campaign, Lou, is saying that this obviously is a disappointment, but they're not quite characterizing it as any kind of setback. They say they knew it was an unusual request, that it is butting up against this hearing tomorrow, Saturday, under Judge Sauls in the circuit court. So they felt it was an issue of timing and they note that this decision was made without prejudice.
And they also note that they can get, they believe, the votes counted in time for that December 12 deadline set by the Florida state Supreme Court and by the law to get those electors appointed. They believe, if they have enough counters, they will be able to get the votes counted, and that's what's important.
They were also very encouraged by, they said, comments by Judge Sauls in that procedural hearing today. They believe he really understands the timetables and that he's trying to stack up witnesses out in the hallway, speed things along, get it consolidated under one or two lawyers. So they say that they believe that he knows and wants and will hurry this process along -- Lou.
WATERS: So, yes -- we talked to Mark Potter just a little bit ago, and the judge indicated that possibly 12 hours -- rather, that's one day, or one day and part of the next -- that is encouraging to the Gore people, correct?
O'CONNOR: It is encouraging. You know, what their problem is is they believe that the Bush campaign has, they say -- is delaying and trying to put forward delaying tactics with 95 witnesses. And they are going to argue tomorrow, look, all we want is to get the votes on those ballots counted; that they believe there were problems with the voting machines and only by a manual recount, looking at those ballots, will you be able to discern voter intent -- Lou.
WATERS: I think you'd be good at that, Eileen. You have the move down there.
O'CONNOR: I need my glasses, though.
WATERS: Eileen O'Connor in Washington.
ALLEN: That'll do it for now. We've got much more ahead and a big day tomorrow.
WATERS: I bet that we do.
ALLEN: So keep it right there. I'm Natalie Allen.
WATERS: I'm Lou Waters. "INSIDE POLITICS" is next. Enjoy your weekend when you're not watching Judge Sauls.
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