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The Florida Vote: Florida Courts Listen to Democratic Challenges While the Legislature Prepares to Appoint ElectorsAired December 6, 2000 - 10:00 p.m. ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
ANNOUNCER: This is a CNN election 2000 SPECIAL REPORT: battling over ballots.
(BEGIN VIDEO CLIP)
GERALD RICHMAN, PLAINTIFF'S ATTORNEY: I don't think there's any question but that the law was violated in this case.
DARYL BRISTOW, BUSH CAMPAIGN ATTORNEY: This very nice supervisor was even-handed.
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ANNOUNCER: Parallel court cases that could change the winner in Florida -- and preparations for appeal that could make the history books.
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SEN. JOSEPH LIEBERMAN (D-CT), VICE PRESIDENTIAL CANDIDATE: The final arbiter, the Florida Supreme Court.
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ANNOUNCER: There is also action outside the courtrooms. Demonstrators on both sides make their opinions heard. And soon, Florida's lawmakers will too.
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STATE SEN. JOHN MCKAY (R), FLORIDA SENATE PRESIDENT: Earlier this afternoon, Speaker Feeney and I signed a proclamation calling for a special session.
STATE REP. LOIS FRANKEL (D), FLORIDA HOUSE MINORITY LEADER: The only thing missing from the proclamation today was the postmark from Austin, Texas.
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ANNOUNCER: And up in Washington: driving home a point. Inaugural preparations get under way, even before would have a winner. We welcome our viewers from the United States and around the world to this CNN election 2000 SPECIAL REPORT: "The Florida Vote." From New York, here is CNN senior analyst Jeff Greenfield.
JEFF GREENFIELD, CNN ANCHOR: If your appetite for political melodrama hasn't been fully fed yet, consider what may lie ahead. Just suppose a circuit court in Tallahassee throws out thousands of those absentee ballots, making Al Gore -- temporarily at least -- the leader in the Florida vote. The Bush camp appeals to the Florida state Supreme Court.
And just say that court says: Yes, those absentee ballots should be thrown out. Or maybe, after tomorrow's oral arguments, the court says: The Gore campaign was right. Those ballots out of Palm Beach and Miami-Dade counties need to be looked at. And it says that Al Gore should be declared the victor. "No way," says the Florida legislature, which announced today that it would meet Friday in special session: We're going to name a slate of electors -- presumably 25 Republicans.
And then what? Dueling electors? A fight in Congress next January? Now, the odds are this won't happen. But what were the odds that what's already happened would happen?
So let's look at why what happened today could conceivably lead to this bizarre tomorrow. Judges in two Leon County circuit courtrooms are dealing with suits alleging tampering with absentee- ballot applications in Seminole and Martin counties. We'll be going live to that Martin County case sometime during this next hour. Now, if those absentee ballots are thrown out, Gore could claim the statewide lead. Also in Tallahassee, attorneys for Gore and Bush filed briefs with the Florida Supreme Court today.
Tomorrow, the court will hear the Gore campaign's appeal of that Monday decision that rejected his election contest. And where there's a high-profile court case, there are demonstrators: in this case, demanding recounts -- or no recounts, depending on who was doing the protesting. And Florida lawmakers could get into the act. The Republican-controlled House and Senate plan a special session on Friday. The question: Will they ultimately pick their own slate of presidential electors?
Today's action moved between two courtrooms in Leon County. The first case, which recessed a few hours ago, deals with a challenge to some 15,000 absentee ballots that were cast in Seminole County. Elections supervisor Sandra Goard, whose testimony came in the form of a deposition that was read out loud, admitted that she let Republican Party officials fill in voter ID numbers on applications for absentee ballots, something she also said state law did not give her the authority to do.
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RICHMAN: The major facts in this case have been stipulated to and admitted: that there was wrongdoing. We have proven that there was intentional wrongdoing. And we've further proven that there was a cover-up. By the evidence that we got in today, they've shown that Sandra Goard, the election supervisor was not candid. She knew who the Republican operative was. She knew who the people were that were coming into her office.
If you put it all together, what you have got is a complete violation of public trust that goes to the very integrity of the election process.
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GREENFIELD: But lawyers for the canvassing board say that nothing illegal took place and that throwing out any votes would be unfair to the voters.
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TERRY YOUNG, SEMINOLE COUNTY CANVASSING BOARD ATTORNEY: There is nothing that will reflect that these absentee-ballot votes in question, the ones that came from the approximate 2,000 request forms, in which Mr. Leach corrected an error made by no one at the supervisor's office, made by no one in the voter's household, that these votes do not reflect the will of the people in Seminole County.
(END VIDEO CLIP)
GREENFIELD: Judge Nikki Clark will hear closing arguments in the case tomorrow: 1:00 p.m. Eastern Time. And CNN will cover it live. The second case was just down the hall. It involved some of the same lawyers. This time the court was looking at 10,000 votes in Martin County.
CNN's Bill Delaney is at the Leon County courthouse, with an update on that case -- Bill.
BILL DELANEY, CNN CORRESPONDENT: Well, thanks, Jeff.
We are in bit of a recess here. We expect to go at least until midnight. Judge Terry Lewis said that is what would happen. Now, this, as you said, is the Martin County case. It's similar and it's a bit different from the Seminole County case. What happened here: 300 to 400 -- not the nearly 2,000 absentee-ballot applications in the Seminole case -- but 300 to 400 voter IDs changed on absentee-ballot applications by a Republican official.
Now, the plaintiffs in this case, the Democrats, say that was illegal. It was intentional misconduct. It was, in fact, a conspiracy by -- between Republican officials and the Republican election supervisor in Martin County, to give an advantage to Republican voters. Now, the defendants in the case, the Republicans say, essentially, that's nonsense. They say you can't throw out 10,000 votes because 300 or 400 voter IDs were changed.
Because, let's remember: They can't find in either Seminole or Martin County -- they are way back to the original ballot applications that were changed. So they say you have throw out all ballots applications -- all the ballots -- 15,000 in Seminole County, 10,000 in Martin -- because you can't figure out which ones were actually changed: the 2,000 in Seminole and just a couple of hundred here in Martin. Now, this case, as I said, is expected to go until midnight. CNN's Gary Tuchman has been doing yeoman's work in the courtroom itself since very early this morning. And it might be worthwhile checking in with Gary to get a sense of what is actually going on in that Leon County courtroom on the third floor just above me here -- Gary.
GARY TUCHMAN, CNN CORRESPONDENT: Well, that's right, Bill.
Right now, I sit in the jury box, waiting for case to begin again. And I can you, if they set up five or six cots in here, I could guarantee you that it would be very easy for the lawyers to fall asleep in seconds. There is a very apparent lack of energy in this room, because four of the attorneys -- one of attorneys for George W. Bush, Daryl Bristow, an attorney for the secretary of state, Katherine Harris, an attorney for the Florida Republican Party, and an attorney for the absentee voters, interveners in this case -- they have all been here arguing in both these cases since 7:00 Eastern Time this morning.
So are you talking about over 15 hours now they've been involved in arguments in these two different cases. There has been a lunch break. There have been a few breaks here and there for the restroom and for coffee and walking around. But it's been non-stop arguing. And it's frankly hard for a lot of these attorneys to be sharp. So what we've noticed for the -- especially the last hour or two, since this Martin County case began, is a lot of yawning, a lot of people rubbing their eyes. And the fact is: People really aren't doing their best legal work in this situation.
But this is a unique situation that none of these people -- obviously, we've never gone through this as journalists. And the American public has never seen this. But these attorneys -- some of the most seasoned attorneys in the United States -- have also never been through it before. And, Bill, they probably won't ever go through it again in their lifetime. So it's certainly a novelty for them. But they're very tired while they are dealing with it.
Bill, back to you.
DELANEY: Thanks, Gary. Indeed, a long strange day here.
Jeff, just before we go back to you, I might mention there's another difference from the Seminole County case here. In Seminole County, it was never alleged that those ballots applications on which the voter IDs were changed were taken out of the supervisor of elections' office. Here in Martin County, those 300 or 400 ballot applications that were fixed were indeed taken to the Republican -- the Republican Committee's offices in Martin County. They were taken overnight and into the next day to be changed -- so another wrinkle in this case here in Martin County.
Now, when they leave recess and go back into the trial phase of all this, Jeff, CNN will dip in live at some point in the next hour as we follow these proceedings -- which, as I said, Judge Terry Lewis of the Leon Circuit Court says he will keep going until midnight, and then will plan to resume at 7:00 in the morning -- Jeff. GREENFIELD: Thank you, Bill. Thank you, Gary Tuchman. Perhaps we need to get some caffeine shipped down to that courthouse where Gary is covering it, before the entire courtroom falls asleep on midnight.
Well, on another front: Vice President Gore's team is still fighting to get 14,000 disputed ballots hand counted. The arena for that match: the Florida state Supreme Court. It will hear oral arguments tomorrow.
CNN's Susan Candiotti previews what could be Gore's final attempt to take the lead in election 2000.
CROWD: The whole world is watching! The whole world is watching!
SUSAN CANDIOTTI, CNN CORRESPONDENT (voice-over): Pro-Gore demonstrators marched briefly in front of the Florida Supreme Court the day before what may be the election's final legal showdown: attorneys battling to maintain Governor Bush's lead and those on the front lines for the vice president delivering written arguments that could hold the key to victory.
JEREMY BASH, GORE CAMPAIGN ATTORNEY: We didn't sleep last night. We wrote a very good brief. We want those votes counted.
CANDIOTTI: Counting what they claim are 14,000 uncounted votes, a core of Gore's argument. At the request of the high court, those key ballots from Miami-Dade and Palm Beach counties, segregated from the million shipped to Tallahassee last week, were transferred to the Supreme Court from the county court pending the outcome of oral arguments.
In a 50-page brief, Gore's team tried to convince the seven justices his appeal is justified.
DOUG HATTAWAY, GORE CAMPAIGN SPOKESMAN: The lower court ignored the most important piece of evidence, which is all those votes on the ballots here in Tallahassee that have not been looked at yet. You need to count the votes to determine who won the election, and that hasn't happened yet.
CANDIOTTI: The Bush team contends the recounts are legally complete, a ruling upheld by Judge Sanders Sauls.
GEORGE TERWILLIGER, BUSH CAMPAIGN ATTORNEY: You do not resort to the ballots first in order to determine whether there's some error in the election.
CANDIOTTI: In its brief, Republicans argue counting the 14,000 under-votes by December 12 would be, quote, "all but entirely unfeasible," adding, "the best exercise of this court's discretion would be to decline this appeal and bring an end to the many weeks of election discord and uncertainty." Democrats counter-argued, Americans must be assured Florida certified the rightful winner, quote: "This case does not involve a dispute over election technicalities or formalities, it involves the most fundamental question an election can pose: Which candidate got more votes?"
(on camera): In the morning, each side will have a half hour to make its case -- the televised hearing scheduled to last one hour. Then the justices will issue a ruling that could lead to a concession speech or lead to more recounts.
Susan Candiotti, CNN, Tallahassee, Florida.
GREENFIELD: CNN will be there when the Florida Supreme Court convenes. Join us for live coverage of the oral arguments; they begin at 10:00 a.m. Eastern, 7:00 a.m. Pacific time.
Now there was a win, of sorts, for the vice president from the 11th circuit court of appeals -- that's a federal court -- in Atlanta today. That federal appeals court rejected a Bush appeal that had challenged the validity of manual recounts in Florida. The court said there was no evidence of harm to Bush, in their words, at this time. The judges did not rule on the merits of the case -- that leaves the door open to court action in the future.
Well, you may be eligible for a LLB, a law degree, by the time this program gets finished; so when we come back we're going to look again at these courtroom battles -- this time from two observers who've each had one of the best seats in the house.
GREENFIELD: And in a few moments we'll be going back to Martin County -- rather, to Leon County where the trial is about to resume in that case of the absentee ballots. There's a live shot -- Judge Terry Lewis hearing the case that alleges that there was something amiss in how Martin County officials handled absentee ballot applications. We'll be going there in just a few moments.
But first we are joined by two legal scholars with firsthand knowledge of the courts at the highest possible level. They were both law clerks to two sitting United States Supreme Court justices.
In our Boston bureau is Heather Gerkin, she's an assistant law professor at Harvard; she clerked for Justice David Souter. And in our Washington bureau, attorney Bradford Berenson; he once clerked for Justice Anthony Kennedy.
Mr. Berenson, I have a feeling a lot of our viewers -- and I'm one of them -- are confused about something, and I'm taking this down to the Seminole County case. If, in fact, the plaintiffs can prove that a Republican canvassing board member or a Republican election official invited Republican officials to fix Republican ballot applications but didn't invite Democrats in to fix democratic ballot applications, doesn't that strongly suggest that there was a tilting of the playing field going on, even if the ballots themselves weren't marked up?
BRADFORD BERENSON, FORMER U.S. SUPREME COURT CLERK: No, I don't think it suggests that there was a tilting of the playing field for the simple reason that the only purpose of the Republican people going in and filling out by hand those voter identification numbers on the ballot request cards was that there had been a previous computer error which prevented those numbers from being printed on the Republican ballots, even while they had been printed on the democratic ballots.
So the purpose was really just to level up the playing field to give the voters from both parties the opportunity to obtain absentee ballots on roughly the same terms.
GREENFIELD: So if -- but if there were democratic ballot applications sent back and they, too, were missing an important number and the official didn't let the Democrats say, you know, you might want to come in and check these applications, too. From your point of view, that's OK?
BERENSON: Well, as I understand the facts, the Republicans made a request, having been alerted by a media report that there was this problem, to go in and try to fix it, since the problem affected, primarily, the Republican ballot request forms. The supervisor of elections there granted that request, let them come in, make this correction on the request forms and there was no similar request from the democratic people.
So I don't think it's a situation where there was unequal treatment. What you had at the end of the day were application forms from both parties that had properly filled-in numbers put on them so that the voters from each party could receive and vote the ballots as they did.
GREENFIELD: Ms. Gerkin, the other part of this that seems to really be bedeviling -- even partisan Democrats who are saying that something was amiss in how this was handled is, if the remedy is to throw out thousands of ballots that were, you know, legally cast -- nobody suggesting that the Republicans went in and marked up the ballots like in the bad old days of big-city politics. That remedy seems pretty far out, doesn't it?
HEATHER GERKIN, FORMER U.S. SUPREME COURT CLERK: It does seem pretty far out, and that's exactly the problem for the Democrats. Their whole theory -- all the cases that they've brought so far have been about the intent of the voter. And there's no question here that what the Republican Party did with these ballots had nothing to do with the intent of voter. It was a mistake, it was probably unfair, it was certainly illegal, but it's not clear that it had anything to do with what the voters wanted to do. And it's an awfully harsh remedy to kick out all of these votes for something that was entirely out of the voter's control at the time that they sent in their ballots.
GREENFIELD: OK, now, Ms. Gerkin, pick up on the case that's going to be resumed tomorrow -- the Florida state Supreme Court case. And again, from the perspective of a layperson or even somebody who never bothered to take the bar exam after his legal education -- at first blush it sounds sort of plausible, the Gore argument, that says, well, you know, how can you decide that there weren't enough ballots to change the outcome of the election when you, Judge Sauls, never looked at any of these disputed ballots?
GERKIN: I mean, that's exactly what the Gore argument is, and Judge Sauls felt that there was enough expert testimony on both sides that he was able to make that decision without looking at the ballots. So the Gore camp has a really tough argument here because district judges, traditionally, get a lot of deference when they make a factual finding like Judge Sauls did. So it's going to be very difficult for the Gore camp to persuade the state Supreme Court to second-guess that judgment.
GREENFIELD: OK, Mr. Berenson, I want to turn to another area in the time we have left. You know, people sometimes think of lawyers and scholars as totally detached from the grubby world of politics, and yet it seems awfully coincidental that there are a whole bunch of constitutional scholars who told the Florida legislature, you can go ahead and hold that special session; and by some curious coincidence, they all seem to support George Bush. And whole bunch of other scholars say, you shouldn't do that, and by some curious coincidence they all seem to support Al Gore.
Is it just folly to assume that we can get some dispassionate, principled folk to decide what's right or wrong without reference to politics?
BERENSON: Well, you know, I'm not sure that the assumption that there is a dispassionate analysis to be had and, if it were simply dispassionate it would show us the correct result is really true. That's like saying that, you know, why aren't all smart people in the country of one party or one set of beliefs than another.
The fact is that people disagree. These are complicated questions, particularly in this area where there really is very little if any legal precedent and the brightest legal minds in the country, some of them come down on one side and some of them come down on the other. It's not for lack of objectivity or detachment or dispassion, at least not in all cases, it's just that these are close questions with no clear answers.
GREENFIELD: Mr. Gerkin, in the sort time we have left, do you know of any Gore supporter who supports the Florida legislature or any Bush supporter who opposes what the Florida legislature means to do?
GERKIN: I guess I don't, although I think that you should remember that jurisprudential philosophy often aligns with political philosophy simply because they begin from the same premises. But I have to say, I mean, Brad and I have been on this show together and we've agreed on a lot of things, although I suspect we're on opposite sides of he political spectrum. So there is some room for agreement. I mean, we shouldn't just give up on legal scholars for this reason. GREENFIELD: Well, on that optimistic note I appreciate that, Mrs. Gerkin. Than you for joining us. Mr. Berenson, thank you for joining us. Right now, speaking of courts, we're going to go back to Leon County where the case involving Martin County's absentee ballots -- this is like a geography lesson, Bill -- is in progress and Bill Delaney, bring us up to date on what's going on?
BILL DELANEY, CNN CORRESPONDENT: Well, what's happening, Jeff, is as you said we're out of recess. Judge Terry Lewis again listening to Democratic and Republican attorneys argue over whether there was intentional misconduct by Republican officials in Martin County intentionally in a conspiracy is the word the Democratic plaintiffs have been using, tried to create a situation that would give advantage to Republican voters.
How? By allowing Republican operatives to fix three to 400 wrong ID numbers on absentee ballot applications. No allegations here that -- or in Seminole County, the other case along with this in Leon County -- that actual absentee ballots were tampered with, but that the applications were fixed because voter ID numbers were wrong by Republican officials.
Now, one of the Republican officials involved in this is Charles Kane. He's on the stand right now. He's being grilled by plaintiff's attorney, Democratic attorney Gary Coleman. Let's listen.
GARY COLEMAN, PLAINTIFF'S ATTORNEY: ... so you knew there was a problem, right?
CHARLES KANE, MARTIN COUNTY GOP OFFICIAL: He knew that there was a problem and I called him -- frankly, I called him a little bit in annoyance because I had to correct a problem. I was going to have to stay there very late in order to correct a problem that had been caused by the Republican Party of Florida, and I called him and said I've got these. I'm going have to put the numbers on them. I probably told him I'm going to use my -- my database to get the numbers and he told me, they're doing the same thing in another county.
COLEMAN: Is it your testimony, Mr. Kane, that Mr. Schnick told you that when you say they were doing the same thing, did Mr. Schnick tell you that cards had been taken out of another county, Seminole County...
KANE: No, sir.
COLEMAN: ...and at that point, without the voters knowing about it, they had been altered? Is that what Mr. Schnick told you.
KANE: No, sir. Mr. Schnick told me there had been a similar problem in another county period. That was about all there was to it
COLEMAN: But he didn't tell you that the lady there in charge had absolutely forbidden Republicans from walking out of that office with those cards? He didn't tell that you?
KANE: I don't recall him -- I don't recall him telling me that at all. He -- no, sir I don't recall him telling me that.
COLEMAN: Let's put it this way. If Mr. Schnick had told you point blank you can't take those cards out. You'd better get them back as quickly as possible. They're public records. Is it fair to say that you would you have in fact get them back to the office?
KANE: Well, I probably would. I probably tried to solve the problem some other way.
COLEMAN: In any event the way you solved the problem is not actually by talking to voters and getting their identification number. The way you solved problem was using your database, isn't that right?
KANE: I think we did both ways. There were number of people called and some of them were reached. I don't know how many were reached. When I got back I was told that too many answering machines, people not home. We've got to get them on. You've got the numbers on the database. Can we get the numbers from the database? That's when I went to the computer.
COLEMAN: In fact, Mr. Hauck told you that you all were on a short leash because you get them back next morning.
KANE: I was told I had to get them back the next morning.
COLEMAN: Mr. Hauck told you that he had been trying to get hold of voters, but he could only get hold of voice mail and answering machines and he couldn't get a hold of any voters, correct?
KANE: That's my understanding, yes.
COLEMAN: And you and Mr. Hauck together sat down and used a computer base to in fact change these numbers, correct?
KANE: I got the -- I ran the names through the computer, got the numbers, and gave the numbers to him, and he put the numbers on the document.
COLEMAN: All right. And what I want to get at, Mr. Hauck -- Mr. Kane is exactly that. There you are with that old computer. There's Mr. Hauck writing these numbers down. There wasn't anybody else around, was there?
KANE: Most of the time there wasn't. There were other people coming in and out.
COLEMAN: But as far as the two of you changes numbers on this one particular day, it was you and the computer, and Mr. Kane and his handwriting, correct?
COLEMAN: Mr. Hauck and his writing, right?
KANE: Yes, I believe that's the case.
COLEMAN: All right, now let me show you what the -- we've got a blow-up here and I'm going to hand you a copy of Exhibit Number Two. These are from the documents you've got in front of you which, your honor, we did mark and moved into evidence as Exhibit Number Two, or the blow-up. Looking at these four groups here that are called group one rider, group two rider, group three rider and group four rider. First of all can you help us and can you help his honor and identify if you can, Mr. Hauck's handwriting?
KANE: I don't think I can.
COLEMAN: So, as far as these four riders up there, whoever they are you couldn't help us as to whether Mr. Hauck is one of them. Is that a fair statement?
KANE: No, I -- these could have been put on by some of the voters who were contacted by phone.
COLEMAN: All right.
UNIDENTIFIED ATTORNEY: You honor, I have an objection. This is clearly covered in paragraph 16 of the stipulation and to the extent that it's not covered, we object on the relevance grounds as to who it is that made these changes. We have stipulated Hauck came and other unidentified Republican Party representatives changed a number of absentee ballot request forms by correcting voter registration numbers.
COLEMAN: The stipulation included the following that notwithstanding Mr. Hauck's testimony that it happened on one occasion, notwithstanding the testimony of Mr. Kane that it happened on one occasion, and notwithstanding the testimony of Ms. Robbins it happened on one occasion. They want to stipulate that notwithstanding the testimony of those three people, that it happened on numerous occasions and the people who made the changes have not yet been identified by either Mr. Hauck or Mr. Kane that global stipulation we would accept.
BARRY RICHARD, BUSH CAMPAIGN ATTORNEY: So really, the only difference is we need to stipulate that it happened on more than one occasion?
UNIDENTIFIED ATTORNEY: Your honor, I think we stipulated to the operative fact that it happened.
LEWIS: OK, but he wants to show that it happened on more than one occasion. Will you stipulate to that?
DELANEY: Listening to the plaintiff's attorney Gary Coleman, a Democratic attorney grilling Charles Kane. Charles Kane a -- active in the Bush campaign in Martin County, Florida, a former FBI and CIA agent. And he was there at Republican Party headquarters in Martin County when three to 400 absentee ballot applications had voter IDs that had been sent out erroneously, changed. Now the Mr. Hauck, the Thomas Hauck that was referred to in this examination of Mr. Kane is a Republican Party executive committee member. He's one who got the three or 400 absentee ballot applications with erroneous voter ID numbers from the elections supervisor in Martin County, took them to Republican Party headquarters overnight to fix them in the company of Charles Kane, who was just on the witness stand and apparently with a few other Republicans present.
Democrats plaintiffs alleging there was a conspiracy to create an advantage for Republican voters to fix their ballots so that they could vote. Republicans saying that's nonsense. Ultimately, Republicans voted on perfectly valid ballots and they say it's ridiculous to throw out 10,000 valid ballots because some three to 400 were changed. Back to you, Jeff.
GREENFIELD: Thank you, Bill. By the way, that judge in the Martin County case is Terry Lewis who is the author of a mystery novel called "Conflict of Interest." It features, I am told, an alcoholic lawyer. A few more 16-hour days we may see in real life a lot more alcoholic lawyers. When we come back later in the broadcast, we're going to be talking about politics with two first-rate political journalists. Also, we'll be talking about what the Florida legislature may do that may turn this whole case inside out yet once again. Please stay with us.
GREENFIELD: Now to a potentially decisive and, perhaps, divisive move beyond the courtroom: Republican leaders of the Florida legislature say that they will begin a special session on Friday with a goal of appointing 25 Florida electors if it appears the slate that has already been certified could be tied up in court. The announcement brought a harsh response from democratic lawmakers.
Here is CNN national correspondent Mike Boettcher with details.
MIKE BOETTCHER, CNN NATIONAL CORRESPONDENT (voice-over): While Gore and Bush supporters demonstrated outside Florida's capitol, arguing, respectively, for more recounts and no recounts, inside the state capitol legislative Republicans were formulating their plans for their own count: a special session of the Republican-dominated Senate and House to name their own slate of presidential electors, ones that would vote for George W. Bush.
JOHN MCKAY (R), FLORIDA SENATE PRESIDENT: We must be prudent and timely in our actions and our behavior. We're not trying to preempt, prejudge or predict the election outcome. We are protecting Florida's 25 electoral votes and over 6 million voters.
BOETTCHER: Tuesday, Republican legislative leaders set the stage for the special session announcement during a caucus of House Republicans, telling them that continuing Gore-sponsored court actions put the current slate of Florida's 25 Bush electors in doubt and the legislature had to act; and could act with powers given to it by the U.S. Constitution.
However, Republican leaders acknowledge the risks of making history.
TOM FEENEY (R), FLORIDA HOUSE SPEAKER: I'm concerned that the wonderful institution of the Florida House and the legislature in general, will suffer a short-term black eye. But I will tell you that, as I have said, that fundamentally I believe that when I took my oath to uphold the United States Constitution, I did so without qualification.
BOETTCHER: Democrats in Florida's legislature accused their Republican counterparts of trying to hand Governor Bush the election illegally.
LOIS FRANKEL (D), FLORIDA HOUSE MINORITY LEADER: It's a long- time black eye because, I'll tell you, I don't think the history book will treat us kindly.
BOETTCHER (on camera): The special session will convene Friday, and Republican leaders hope that by midweek they can pass a resolution naming 25 Bush electors to represent Florida in the Electoral College. They hope even more that Vice President Gore will concede before they have to take that controversial step.
Mike Boettcher, CNN, Tallahassee.
GREENFIELD: And now to the men with the most at stake in this contested election: George W. Bush says that he is fixing his focus, not on the legal challenges, but on those who might serve with him if he takes the White House.
(BEGIN VIDEO CLIP)
BUSH: It seems like all the different court suits are working their way to finality and I hope we can get this over with quickly and there's a lot of work to be done.
(END VIDEO CLIP)
GREENFIELD: He made that comment during a meeting with Condoleeza Rice in Austin. The Stanford University administrator is said to be favored by Bush for the post of national security adviser.
In northern Virginia the Bush transition team has taken over office spaces because the General Service Administration has refused to release the official transition office in Washington until the election is settled. In northern Virginia the resumes are sorted for a possible Bush administration position. The Texas governor says the senior White House positions have already been decided.
(BEGIN VIDEO CLIP)
BUSH: I'm spending a lot of time thinking about the cabinet. I am -- I can tell you this: that when it comes to a White House staff, I've pretty well made up my mind on who should serve. Hopefully there will be an appropriate moment to share that information with the people.
(END VIDEO CLIP)
GREENFIELD: In the West Wing -- not the TV show, the real West Wing -- Al Gore worked behind closed doors today. The vice president did not comment to reporters when he left the White House. Aide say he's working on his transition activities discretely and in private.
A radio station critical of Gore's election contest sent a message suggesting he give up. A costumed woman outside the vice presidential residence announced, I'm a fat lady and I'm singing.
Well, still ahead, some insight from two online editors and we'll go outside Tallahassee's courtrooms, where partisans delivered their own arguments.
GREENFIELD: So what are the next chapters in this political melodrama? Joining us here in New York, Rick Stengel. He's the editor of time.com, and he was the chief speech writer for Democratic presidential candidate Bill Bradley. And joining us from our Washington bureau, Jonah Goldberg. He is a syndicated columnist. He is editor of "National Review Online."
Jonah, let me offer you a hypothesis, and I could be wrong about this, that no matter what these courts would decide, if they decided in favor of the Gore position, if the Seminole County and Martin County trials ended in findings that it was outrageous violation of law, if the Florida state Supreme Court said Judge Sauls was dead wrong, that under those circumstances there is no way that the Florida legislature would not step in and pick those Bush electors? Would you agree with that?
JONAH GOLDBERG, "NATIONAL REVIEW" ONLINE: No, I'm think that's absolutely right. And whether it's fair or not or right or not -- I mean, I personally think it's -- you know, I think George Bush, you know, should be the next guy to go into the Oval Office, but I think it's perfectly reasonable to take another position if you're a Democrat, but that puts Gore in an odd on situation.
Right now there are at least four institutions -- there's the U.S. Supreme Court, the Florida Supreme Court -- actually five institutions -- the district court which said they could still decide hand recounts were illegal and unconstitutional and the Florida legislature. Any one of those five institutions and certainly at least two of them, the U.S. Congress and the Florida legislature, could decide to make Bush president no matter what.
And so that really puts Gore in the position of deciding whether he wants to win -- whether he wants to lose ugly or lose uglier. I mean, because he's going to lose no matter what, according to that scenario and if that's the case, he needs to sort of decide how's he's going to get out of this thing looking the best. And he can very easily hurt Bush in the process, but he can't win himself.
GREENFIELD: But it also does suggest, though, that if in fact the reason why Gore is bound to lose the is simple fact that there are more Republicans in the legislature and in the House of Representatives than Democrats, that doesn't make the argument from justices -- it makes the argument from political power?
GOLDBERG: I understand that, but at the same time it's not -- you know, it's not a matter of justice or almighty providence that all the justices in the Florida Supreme Court are Democrats. I mean, we live in a political context. We live in a -- you know, Florida is state that happened to, you know, legitimately elect a lot more legislators who are Republican and the idea that somehow they are not a rightful vehicle or voice for the expression of the popular will -- you're going to be damned if you do, damned if you don't no matter how that slices and you can cut that any way you want. It doesn't mean necessarily that picking electors this way, which seems to be a little bit more constitutional, isn't legitimate.
GREENFIELD: Rick Stengel, it does seem a kind of a -- if you're a conservative Republican that is worried about the exercise of judicial power, there does seem to be something curious about the fact that Al Gore's one remaining hope is that somewhere there's a court in Florida that will in effect give him the victory that the political process denied him or ended up in a stalemate? No?
RICK STENGEL, TIME.COM: Yes, absolutely. And in fact, from Gore's perspective, I think it would actually behoove him to say, look, I don't want to win by winning the Seminole County case and the Martin County case. My whole issue here is let every vote count and here I am disavowing all kinds of votes that were actually legitimate.
I mean, there's hypocrisy on both sides and in this case the Gore hypocrisy ought to be, let, you know, we shouldn't count those. At the same time, I agree with your point, you know, that the Republicans, you know, wish that the judiciary didn't exist at all and, you know, legislatures always made decisions about everything. So, the fact they're crying out for the big brother judiciary to help them must actually wound them little bit.
GREENFIELD: And it also seems to me, Rick, that you could you make the argument, and I've actually heard some Democrats say this, privately, if the best Al Gore could do after eight years of peace and prosperity running against, you know, an inexperienced, outside governor was a tie, maybe he doesn't deserve the White House?
STENGEL: Well, yes, I mean, a lot of people say it shouldn't have been this close. I, on the other hand, think that -- thought that Bush was going to whip him and the fact that is was this close was evidence that he ran a pretty good campaign and that the Bush campaign wasn't so great after all.
But, you know, and I know you're fond of using screenwriters' analogies, I mean maybe the worst thing that could even happen to him turns out to be the best thing because he -- if the Florida Supreme Court says, Al, you're out of here. You know, he can come and give a wonderful speech saying how much believes in America and let's unite and he'll be sitting pretty in a way he hasn't been all along.
GREENFIELD: Jonah, let's take the point that I think most Republicans would argue that whatever happened in Florida, if people voted the wrong way, if there were accidents, that happens in every campaign. When you get past the joy that a Republican will feel that Al Gore is not going be president, do you think there is anything that giving anyone -- if I may put it this way, your side of the divide since you work for "The National Review" -- any pause that, well, you know, if Al Gore won because a whole bunch of people showed up at polls and either machines didn't work quite right or they didn't quite know what to do or there were delays on getting them on the rolls, that that's not quite the same kind of victory that say Ronald Reagan had in 1980 or the GOP Congress had in 1994. Any second thoughts or regrets about that?
GOLDBERG: Oh, I think absolutely. I mean, you talk to conservatives away from television cameras, and, you know, one of things that almost everybody agrees upon is that this debacle or whatever it is has in some ways eclipsed how bad this election really was for conservatives and for Republicans. It was not, you know, if you look at the actual election returns and look at where the mood of the country is going, it is almost operationally Democratic in a lot of ways, and that's -- and that's very worrisome.
You know, it's funny, a lot of people were saying, well, there's no way that God would permit Hillary Clinton and Al Gore both to be elected and it sort of looks like there's this, you know, miraculous invention to keep -- make sure that becomes true. And -- but generally, I think this a bitter, terrible way to win it. But that doesn't mean -- I think -- one of things that this has done turned a lot of conservatives into Republicans. It's made everybody sort of on the same team, but I think that once Bush gets in, there are a lot of people who are going to revert back to form and start criticizing some of his appointment and a lot of that. This thing may hurt on the conservative side, too.
GREENFIELD: And you know -- Rick Stengel, we're down to about 15 seconds. If it hurts to win this way for Republicans, for Democrats it must hurt even more to lose this way, no?
STENGEL: I guess the feeling is that among Democrats is that a lot more people came out the voting booths in Florida on November 7th thinking they voted for Al Gore and we're -- that they're losing an election that they actually won. You know, what's legal is not always fair, and in this case what legal might be George Bush winning but it may not be fair.
GREENFIELD: Rick Stengel, Jonah Goldberg, thank very much for a bit of departure from our endless focus on courtrooms, but courtroom are where the action is and speaking of courtrooms, when come back, we're going to go back to that courtroom where the Martin County absentee ballot case is even now being tried. Stay with us.
(COMMERCIAL BREAK) GREENFIELD: Now, the Electoral College has yet to hammer out who will be the president, but at least we know there will be a platform for swearing him in on January 20. Construction began today on a capitol terrace with democratic Senator Christopher Dodd of Connecticut and Republican Senator Mitch McConnell of Kentucky driving the ceremonial first nails. Who says there's no such thing as bipartisan unity on a platform.
Now we're going back to Tallahassee to Bill Delaney who will bring us up to date on what's going on in that trial involving the absentee ballots from Martin County -- Bill.
DELANEY: Right, Jeff; we're between witnesses. We heard from Charles Kane, a Republican official in Martin County, who was there when either 300, 400, or 500 -- the numbers are all over the place -- ballot applications -- absentee ballot applications -- voter ID numbers where changed on them by Republican officials. We've heard from two Republican officials, Charles Kane and, earlier, Thomas Hauck.
Now, why don't we dip in and hear what's happening live in the Leon County courthouse here in Tallahassee, Florida.
UNIDENTIFIED MALE: Raise your right-hand the clerk will (OFF- MIKE)
UNIDENTIFIED MALE: Do you solemnly swear (OFF-MIKE) give will be the whole truth and nothing but the truth, so help you God?
TODD SCHNICK, POLITICAL DIRECTOR, FLORIDA GOP: I do.
UNIDENTIFIED LAWYER: May I proceed your honor?
JUDGE TERRY LEWIS: Yes sir.
UNIDENTIFIED LAWYER: State your name, please, sir.
SCHNICK: My name is Todd Schnick.
UNIDENTIFIED LAWYER: And how are you employed?
SCHNICK: I'm the political director of the Republican Party of Florida.
UNIDENTIFIED LAWYER: Now, you are responsible for this program involving the mailing out of absentee ballot request forms during the November 2000 election, is that correct?
UNIDENTIFIED LAWYER: And you oversaw the entire program statewide?
UNIDENTIFIED LAWYER: And you worked with some kind of vendor who prepared these forms for you, and you oversaw them?
UNIDENTIFIED LAWYER: Now you knew in preparing these -- in running this program that these forms, once they were returned to the supervisors must include certain information?
SCHNICK: I had a basic understanding of the requirements, yes.
UNIDENTIFIED LAWYER: In fact, you even had a meeting with Mr. Roberts (ph) over at the secretary of state's office at the division of elections so he could approve what you were doing?
SCHNICK: I wanted him to take a look at what we had done, yes.
UNIDENTIFIED LAWYER: And you knew, for example, that the vote must disclose his voter ID number when that form is submitted?
SCHNICK: I had that basic understanding of the requirements, yes.
UNIDENTIFIED LAWYER: And you knew that the voter must disclose that employee -- that voter ID number accurately when the voter submitted that card as a request?
UNIDENTIFIED LAWYER: And you knew that if the card did not have all the information and it wasn't accurately -- that it could be rejected as a request by the supervisor of election in that county?
SCHNICK: I understood that that could delay the processing, yes.
UNIDENTIFIED LAWYER: And it could be rejected? You knew that, didn't you, sir?
SCHNICK: It was my understanding that possibly was a...
UNIDENTIFIED LAWYER: Possibly was a -- a grounds for rejections, sir?
SCHNICK: For a delay in processing, yes.
UNIDENTIFIED LAWYER: For rejection, sir -- would you answer my question?
UNIDENTIFIED LAWYER: Now, on this form -- were you involved in preparing the actual form?
SCHNICK: No, I was not.
UNIDENTIFIED LAWYER: OK -- when I say preparing, I mean in the verbiage and all that.
SCHNICK: I was a part of a team, yes.
UNIDENTIFIED LAWYER: And on there, on the face -- on one side of it you had a -- some verbiage that was purportedly authored by Jeb Bush, the governor of Florida.
UNIDENTIFIED LAWYER: And he encouraged Republicans to get out and vote, and to vote absentee ballot?
UNIDENTIFIED LAWYER: And there were instructions on that form, were there not, in terms of what you had to do?
SCHNICK: There were some instructions, yes.
UNIDENTIFIED LAWYER: And the instructions included instruction that specifically told the voter that he needed to verify all of the information on the form?
SCHNICK: Well -- upon reflection right now, my understanding was the voter was required to put the last four digits of their Social Security number and their signature, is what I can recollect.
DELANEY: Democratic plaintiffs here in Tallahassee, at the Leon County courthouse, continuing into the night to try to establish that, in Martin County there was a Republican conspiracy -- nothing less than a conspiracy -- to try to give an advantage to Republican voters by fixing their absentee ballot applications.
Republican defendants responding, no conspiracy. They were just trying to help voters vote. We're expected to go about another hour here at the Leon County courthouse, until about midnight, and then they will break overnight and start all over again, Jeff, at 7:00 in the morning.
Back to you.
GREENFIELD: Thank you, Bill.
You were expecting, maybe, a courtroom confession?
Well, finally, there is something remarkably appropriate about that official transition office in Washington D.C., that sits empty now. These were the offices the government had set up to deal with the Y2K crisis -- you remember, when January 1, 2000 rolled around, all of our computers would suffer nervous breakdowns -- they'd think it was the year 1900. The electric grid would collapse, airplanes would plunge from the sky, waterlines would shut down, chaos would reign upon the land.
Well, it didn't happen, of course; but, you know, maybe we all relaxed too soon. Maybe the Y2K crisis hit on Election Day 2000, when the system thought it was 1800 -- you know, the deadlocked Thomas Jefferson-Aaron Burr race. Or 1824, or 1876 when our political machinery jammed and political chaos did descend upon the land.
One thing we know to a moral certainty, I think: When 100 million voters produce a race that comes down to less than 1,000 votes in one state, our machinery can't handle it, whether we're talking about our voting machines, our constitutional machinery or, for that matter, the media machinery that made all those wacky Florida predictions.
Well, that is it for this special report on election 2000. I'm Jeff Greenfield; join me again tomorrow night at 10:00 Eastern for the latest news and, we hope, insight on this battle over the Florida vote.
Speaking of insight, "THE SPIN ROOM" is ready to take off. Bill Press and Tucker Carlson are in Washington with a preview.
BILL PRESS, CO-HOST, CNN "THE SPIN ROOM": Thank you Jeff. Our promise is we will not stop spinning tonight as long as the lawyers are spinning in the courtroom.
TUCKER CARLSON, CO-HOST, CNN "THE SPIN ROOM": And there is nothing absentee about us; we're right here, we'll be back in two minutes with "THE SPIN ROOM."
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