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Leon County Circuit Court Holds Hearing on Recount Procedures

Aired December 8, 2000 - 8:00 p.m. ET


WOLF BLITZER, CNN ANCHOR: Tonight, a December surprise in Tallahassee.


CRAIG WATERS, FLORIDA SUPREME COURT SPOKESMAN: By a vote of 4-3, the majority of the court has reversed the decision of the trial court in part.


BLITZER: Al Gore's appeal to Florida's Supreme Court succeeds. Tens of thousands of ballots all across the state are ordered recounted by hand.

Hours before, but quickly overshadowed, legal victories for Bush over absentee ballots.


BARRY RICHARD, BUSH CAMPAIGN ATTORNEY: Well, they both heard full trials, and the plaintiffs didn't prove their cases, so they lost.


BLITZER: The timelines, the deadlines, and how the road ahead could lead to the U.S. Supreme Court: all ahead on this special edition of "THE WORLD TODAY: The Florida Vote."

Good evening. I'm Wolf Blitzer reporting tonight from Washington on what has been a unique day in U.S. history.

Florida's Supreme Court threw Al Gore a desperately needed lifeline today, keeping his quest for the White House alive. Perhaps it was appropriate that the high court's split decision ordering a hand recount came in a 4-3 vote, reflecting the near tie in the presidential race and the very evenly divided American public.

We are waiting for a hearing in Florida's Leon County courthouse on just how and when this hand recount will be conducted. And when it happens, we will bring it to you live.

Today's Florida high court ruling means more than 40,000 ballots called "undervotes" must be recounted by hand. These are the ballots in which the counting machines did not pick up a presidential vote. In issuing the ruling, the Supreme Court said "time is of the essence." That's in reference to Tuesday's deadline for the state to pick its electoral delegation.

But Republicans, backed by Governor Bush, have taken a first step toward a U.S. Supreme Court appeal by filing an emergency petition asking the U.S. 11th Circuit Court of Appeals in Atlanta to stop the Florida hand count until the Supreme Court decides whether to hear the case.

For more on today's Florida high court ruling, we're joined by national correspondent Martin Savidge in Tallahassee.

Martin, I guess everyone agrees this was an extraordinary day.

MARTIN SAVIDGE, CNN CORRESPONDENT: Well, they go beyond saying it was extraordinary. Both sides admit tonight that they are absolutely stunned with the ruling that has now come down from the Florida Supreme Court.

Even the Democrats say that they were shocked, obviously happily so, but still amazed as to the scope now of the recount that has been ordered.

Most of the Democrats were believing that if they did in fact succeed and win in the Florida Supreme Court, then we were talking about a recount that would encompass about 14,000 ballots. Those are the disputed ballots that had been brought here to Tallahassee. No one had thought that they were going to order the recount of all the undervoted ballots within the state of Florida, and as you point out that is a number of over 43,000 ballots.

Now, it should be pointed out that when the Supreme Court was going over and reviewing what happened in the lower court -- that being in Judge Sauls' courtroom earlier in the week -- the justices in the majority noted that the lower court did not count or investigate the undervoted ballots, because, as the lower court said, there was no reasonable probability of a different result.

Now, this is where the majority in the Supreme Court today found difference with Judge Sauls. They said they believe with the election so close that those undervotes could make all the difference in the outcome and thereby must be counted.

Now we were told that the attorney that was leading the Democratic side of things, David Boies, had actually been making plans to leave. He, too, thought that the recount was only going to be about 9,000 to 14,000 ballots. He now has had to reschedule his plans to depart this city as have a lot of other people who thought that it was either going to be over or the recount was going to be very quick.

And one thing to keep in mind: They have 32 teams in place here to start the recount whenever it will start, however there are a lot of other counties that had no advance warning that this was going to be coming their way. Canvassing boards that may have already gone home for the day may not even know as yet what has fully come down from the Supreme Court, and now they have to pull all their teams together and start reviewing ballots.

It is a monumental task that is ahead of them tonight and over the weekend -- Wolf.

BLITZER: Marty, briefly walk us through the next steps, beginning with this hearing that's about to begin in Tallahassee before Circuit Court Judge Terry Lewis.

SAVIDGE: Well, the next step, first of all, is they've got to figure out what judge is actually going to take over this process. We know that Judge Sauls has now recused himself. He was the one that made the original lower-court ruling, and it was back into his lap that essentially the Florida Supreme Court had dumped all this to say, all right, now you've got to figure out how this recount is going to take place.

So the judge apparently, because of differences he has or may have, with the Florida Supreme Court, has recused himself. And so now the process begins of selecting a new judge. And then on top of that, they have to begin moving ballots away from the Supreme Courthouse here, probably over to the county library. That seems the likely place for the 9,000 ballots to be counted here.

And then as we mentioned, all the canvas election boards throughout the counties in the state of Florida have to begin pulling together their process of doing it.

It really is a great challenge they have.

BLITZER: All right, Marty Savidge in Tallahassee, thanks for joining us.

I want to go to Gary Tuchman. He's in that courtroom right now awaiting the start of this hearing designed to determine how and when to go through all those hand counts.

Gary, what do you see? What can you tell us?

GARY TUCHMAN, CNN CORRESPONDENT: Well, Wolf, all the big attorney guns are here right now. On the Gore side: David Boies, Dexter Douglass, Stephen Zack (ph), Mitchell Burger (ph), all very happy as they walked in.

A little more solemn on the other side of the room, with Ben Ginsberg and Barry Richard, George Terwilliger, Phil Beck. And we can tell you, Wolf, we have confirmed the judge who will be hearing this case now is Terry Lewis. He is the judge who just heard the Martin County absentee ballot application case.

Interestingly enough, after N. Sanders Sauls decided to recuse himself, next up on the computer -- and that's how they do it here, just a random pick of judges -- was Nikki Ann Clark. She was the judge who just did the Seminole County absentee ballot application case. She decided, though, she did not want to take the case. So the next person in the computer was Terry Lewis, and Terry Lewis will be the person who decides how, when, where counts take place in every county in the state of Florida, but hasn't finished manual counting. So Terry Lewis will have a lot of power and he'll be listening to lots of suggestions from the attorneys here on both sides in this courtroom right now -- Wolf.

BLITZER: All right, Gary Tuchman, once again in a courtroom in Tallahassee. We'll be back to you as soon as that hearing begins.

Let's continue. Today's ruling has narrowed Governor Bush's already slim lead by several hundred votes. Here's a look at where things stand right now.

Gore gains 215 votes from Palm Beach County and 168 from Miami- Dade for a total of 383 votes. That cuts Bush's lead to 154 before this new recount, and that recount must include at least 43,000 undervotes statewide. Four counties account for more than half of the known undervotes that have not yet been counted. They are Miami-Dade, Hillsborough, Duval, and Pinellas counties.

Bush's attorneys are expected to appeal today's state Supreme Court ruling all the way to the U.S. Supreme Court here in Washington. That's where we find CNN senior Washington correspondent Charles Bierbauer.

Charles, tell us how today's ruling by the Florida Supreme Court squares with Monday's U.S. Supreme Court ruling in which they vacated the earlier Florida Supreme Court decision.

CHARLES BIERBAUER, CNN CORRESPONDENT: Wolf, when the U.S. Supreme Court sent that ruling back to Florida on remand to reconsider, they said there was considerable uncertainty as to the precise grounds as for the Florida Supreme Court's decision, and they told the Florida Supreme Court particularly to pay attention to the U.S. Constitution and also to the grounds laid forth by the Florida legislature, saying that election laws are laid down by legislatures, not by courts, and in this case, not by the Florida Constitution.

Well, in reading through the opinion that came out from the Florida Supreme Court today, it's clear that the majority was cognizant of the oversight that this court here in Washington will have. The majority opinion says that the statutes that it refers to are "established by the legislature" -- that's one of the points the Supreme Court made -- "which govern our decision today. We consider these statutes cognizant of the federal grant of authority derived from the United States Constitution."

So you see threaded throughout the opinion enough references to the U.S. Constitution and to the ruling that was made here.

Now, in dissent, though, Chief Justice Wells very strongly says that "the legislature in Florida has not authorized the courts of Florida to order partial recounts." He goes onto say, "either in a limited number of counties or statewide." And he feels "this court's order," the Florida court, "to do so appears to me to be in conflict with the United States Supreme Court decision."

So both the ruling and the dissent refer back to the decision made here in Washington on Monday. That's the sort of thing that the justices here will have to take a look at if they do in fact take another hard look and grant another hearing. Or one possibility, I would point out, Wolf, is that when they get the briefs in hand, the justices here could read them, could read the ruling, would not necessarily have another full set of arguments, and could still rule on what they see in front of them -- Wolf.

BLITZER: Charles Bierbauer, reporting from the Supreme Court, thanks again for joining us.

I want to bring in David Cardwell, our CNN election law analyst, who's been helping us this past month understand Florida law.

First of all, David, I know there's a lot of questions that have not yet been answered, but this question is paramount. Can they recount these so-called "undervotes" by Tuesday, December 12th, the deadline for selecting the slate of electors?

DAVID CARDWELL, CNN ELECTION LAW ANALYST: Well, Wolf, I think it's fairly clear that here in Leon County they'll be able to do the 9,000. David Lane, the clerk of the circuit court, was on CNN earlier tonight and said they had already put a contingency plan in place for just such an eventuality, and they've got counting teams ready to go. And it should take only a few hours for them to get through the 9,000 votes, the 9,000 ballots.

But it will be a little slow getting started, because while the recounts we saw several days in West Palm Beach, in Broward County, Miami-Dade, those election workers, those counting teams were familiar with the voting system and with the ballots. Punchcards are not easy to look at and immediately figure out how to read them, so there may be some delay there.

But the bigger question is whether the other counties that, particularly those that use punchcard voting systems and had a significant number of undervotes, are going to be able to get their counts completed.

Most of them have gone home for the weekend. They don't -- they may not even be aware of the Florida Supreme Court decision and certainly may not be aware that they've got to convene their canvassing boards. And they can't really do anything until an order is issued by Judge Terry Lewis on how to proceed. So it may be Monday before they can even start.

BLITZER: Speaking of Judge Terry Lewis, stand by. We want to go to his courtroom and get some answers to some of these questions about the vote...

JUDGE TERRY LEWIS, LEON COUNTY CIRCUIT COURT: ... I intend to follow. I've read it, and I wanted to get some input from you before I make a decision on exactly how to proceed.

So I have no particular order, but probably the plaintiffs and the defendants and any interveners.

PHIL BECK, BUSH CAMPAIGN ATTORNEY: Your Honor, before we begin, we'd ask that this be transcribed. We're concerned that this is a proceeding that's fraught with peril constitutionally and otherwise, and we have pending in the Florida Supreme Court a petition for stay with Justice Kennedy of the United States Supreme Court. And consequently, it's important to us that we get a transcript in a very prompt way.

So we would hope that before the court begins a hearing where we're going to be resolving any issues, including any procedural issues, that we have a court reporter present who can transcribe it.

LEWIS: OK. My understanding is there is a court reporter who is watching on TV and will take down what's said. What I plan to do is talk with you all, go back, and I'll come back in a short while, and we'll go on the record and I'll tell you what I plan to do.

I expect we can have a court reporter by then, but given the (UNINTELLIGIBLE) circumstances I think I need to go ahead and get some input from you and then go forward. You will let me know if there's a stay entered. I would appreciate that.

Mr. Douglas.

DEXTER DOUGLASS, GORE CAMPAIGN ATTORNEY: We have filed a motion with the court in connection with this for the entry of an order, which -- in which, if you'd like to take this up, although I know it's on all the cameras in the world and will be transcribed correctly...


DOUGLASS: ... so they have to undertake an explanation of that.

LEWIS: Emergency motion for entry of order?

DOUGLASS: No, but motion -- if the court desires. I think a reading of the motion is probably sufficient to set forth what our main concern is, which is to begin the vote count as soon as possible in accordance with the Supreme Court...


DOUGLASS: ... opinion. And I know the court aims to carry out the court's orders, and we just have a motion for entry of an order, because we understand that a lot of the counties that are not going to do anything until they get an order. And we know the 9,000 here can begin as soon as the order is entered, because our supervisor of elections in Leon County was designated in the order in the court's opinion to work with the court as the court's agent.

So all we're trying to do with this is get it moving.


DOUGLASS: We've had a long, hard struggle, and I know Your Honor is familiar with a lot of it, because you watched it and been in it. That's all that we have to offer really is to get this going.



LEWIS: That's fine, Mr. Klock.

KLOCK: Your Honor, on behalf of the secretary of state, we object to (UNINTELLIGIBLE) on a number of grounds. We'll address additional grounds when the time comes. But this proposed order, Your Honor, contemplates something we don't think that the opinion of the Supreme Court does.

One of the things -- one of the things that is clear from the Supreme Court opinion is when they passed on the validity of the rejection of the 3,200 votes in Palm Beach County, they made it clear that that was appropriate because the canvassing board had decided that those votes were illegal.

Under the statutes, Your Honor, we object to any concept of this type of manual recount going forward, but the only basis in the statute, since a manual recount (UNINTELLIGIBLE) common law is the one that is set forth in 166, which requires a couple of things: a counting of all of the ballots, No. 1, and No. 2, the intent must be determined by the three-person canvassing board.

So the suggestion that these votes can be counted by the clerk of the court or even respectfully by Your Honor without adopting the standard that would be applied by the three-person canvassing board we would object to. That's contained in paragraph 1 of the order.

With respect to the other procedures again, Your Honor, we believe that the only basis -- we are delighted that the Supreme Court agreed with the secretary that you have to have a statewide recount of ballots. We object to the undercount without the overcount being made, and actually, Your Honor, without all ballots being counted. But also again with respect to paragraph 2, we have the same difficulty again, where apparently what they intend to do is to shift all the ballots -- I'm sorry -- the selected ballots from the 63 or 64 other counties up here to be counted by someone other than the local canvassing board or with the standard of the local canvassing boards. And we object to that as well, Your Honor.

LEWIS: OK. Well, without being too formal, what I'd like to do -- I assume everybody at this table has read the opinion and knows what's going to be required. It seems that there's two different things. One is the -- what we're going to do with the Dade County ballots that are here already. The other is the other 67 -- well, the other 66 counties in terms of -- it indicates a statewide relief, the under -- undercounted I guess is the way you describe it -- but they are to proceed.

What I'd like is your suggestions on how to best comply with the Supreme Court's directive. And... BECK: Your Honor, my name is Phil Beck. I wasn't in the Martin County case, but -- and I'd like to address Your Honor's concerns. I would say, Your Honor, you're being put in a position of a judge who's unfamiliar with the record in the case being asked to walk what we think is a constitutional tightrope. And you're also being asked to walk it very quickly.

And I think that the proposed order from the plaintiffs would really be a dangerous one for Your Honor to enter for reasons...

LEWIS: Well, let me stop you for a second. Don't worry about the proposed order by the plaintiffs.


LEWIS: Just tell me, Judge, this is how I think you ought to proceed.

BECK: This is how -- this is how we believe you ought to proceed, Your Honor. And let me just say as a preliminary, we have two key consideration that all of our views on the process flow from, and the first one is that these votes or these ballots need to be evaluated using a consistent standard, because if instead you let several people start evaluating ballots using a purely subjective standard that varies from person to person, you've guaranteed yourself several legal problems.

First of all, Statute 3 United States Code section 5, we'll have new standards being developed in the middle of an election, which would violate the statute.

LEWIS: Let me stop you for a second. Didn't the Supreme Court indicate exactly what standards apply?

BECK: Well, the Supreme Court said, look at the voter's intent, and what we had was a two-day trial, and much of the evidence went to how one would ascertain voter intent from indentations and dimples on a ballot. And so we have a wealth of evidence on that, Your Honor, and unfortunately Judge Sauls has recused himself. And so we're frankly going to need to educate you.

We're spending the evening pulling together all of the record cites and transcript references and testimony so that we hope we can present it to you -- we were hoping we could do it tomorrow in a concise presentation of what we think the evidence showed about how one would ascertain voter intent from dimples and impressions and imperfections on a ballot. What...

LEWIS: What's the legal standard in Florida for determining that?

BECK: Well, Your Honor, the only legal standard that was in place when the election began was based on regulations in Palm Beach County, one of the counties, and the legal standard that was in place in Palm Beach County was that a dimple or indentation is not as a matter of law evidence of voter intent. Now, if that's going to be changed, that's going to raise the legal problems that I refer to a moment ago.

LEWIS: Well, was that a statewide standard?

BECK: No, it was not, Your Honor. It was only -- that's why I say the only -- the only standard in place that we're aware of was that one regulation in Palm Beach County, which was already deviated from in Palm Beach County during this election.

So the truth is that there is not a legal standard in Florida for discerning voter intent from dimples and impressions. We think that the creation of one itself is going to raise very serious legal issues, and therefore, we think that it would be constitutionally impermissible to fashion a new standard in the middle of an election that would count dimples and impressions as votes, and we think that the court...

LEWIS: You're confusing me. I thought you said there was no standard, so how can I change it?

BECK: Well, to create a new one raises the same issues. If there is no standard, then what the standard is chads that have been punched through...

LEWIS: I think maybe it's a matter of semantics. I think the standard is what the Supreme Court says it is, because that's what I'm bound by.

BECK: Well...

LEWIS: What you're looking at is what criteria can be used by the people who counted to determine or to apply that standard.

BECK: And that's an excellent way to put it, and we have evidence in the case through fact and expert witnesses that bear on the criteria that ought to be employed, and we'll make our legal arguments later. But just in terms of the practicalities of what people ought to be doing if they're going to be looking at ballots, we think that Your Honor needs to not hear all the evidence over again, but at least be directed by the parties to the evidence that we both think is relevant on this issue so that Your Honor can fashion criteria that people will be able to use.

Otherwise, we're going to have people -- I don't know how many people, what Your Honor's going to order -- applying a purely subjective sense of the voter's intent.

There were canvassing board members, to just give an example of the testimony at trial, there were some canvassing board members who said that the only time that they could discern voter intent was if there was a ballot and there was a pattern of dimples or imperfections, indicating that somebody tried to vote but failed because they didn't follow the directions and they put the ballot on top of the machine instead of inserting it in the machine. And they said if -- this was, for example, Judge Burton from Palm Beach -- he said that if he could see a pattern like that, then he in his mind could -- felt comfortable saying that this voter intended to vote, but simply failed to punch the chad all the way through. He said that in his mind you could not ascertain...

BLITZER: Bush attorney Phil Beck arguing for a go=slow approach in the start of a manual recount statewide. We're going to continue to monitor this hearing. We're going take a quick break.

When we come back, more of this hearing from Leon County in Tallahassee.


BLITZER: Welcome back. We're monitoring a hearing in Leon County before Circuit Court Terry Lewis on how and when to resume the manual recount. Right now, Phil Beck, an attorney representing Governor George W. Bush is speaking.

I want to first bring in David Cardwell, our Florida election law analyst, a specialist. David, explain briefly the argument that's unfolding before Judge Lewis now between the Gore and Bush attorneys.

CARDWELL: Well, Wolf, the purpose of this hearing -- it was called a case management hearing -- was to try to get the parties back together again and talk about what needs to be done in light of the Florida Supreme Court opinion that was rendered late this afternoon.

It began with the Gore attorneys pointing out that they filed a motion to start the recount of at least the 9,000 votes or 9,000 ballots that are here in Tallahassee from Miami-Dade County, to start that recount immediately. The Bush legal team through Mr. Beck are opposing that motion because they're raising the issue that was raised in the trial before Judge Sauls, is what is the standard to be applied by the counters when they go through and look at these ballots.

So what they're arguing over now is what is that standard to determine the voter's intent. What is the criteria to be used?

This really goes to the heart of the matter, and that issue still hasn't been resolved. After two days of a trial and after a circuit court decision and a Supreme Court opinion, we're back to arguing about the same thing that we began the court hearing last weekend with.

BLITZER: All right, David, stand by. I want to go back to that hearing and listen to Phil Beck explain his side of the story.


BECK: But they didn't actually come up with votes for Gore and Bush. They didn't keep records of that. They just came up with 17 undervotes.

So what we have is a situation where on election night, seven votes that are now in the stack of undervotes were already counted for somebody, whether it was Al Gore or George Bush. And so now, in my hypothetical precinct -- and I hope Your Honor is following this -- we've got a problem where seven votes are going to be counted twice. And I know Mr. Boies says let's count every vote once, but not even he says we should count them twice.

So -- and it's not anybody's fault. It's certainly not Mr. Boies' fault. And -- and it's not really -- we're not faulting the people from Miami-Dade. It's just a problem that was discovered when they segregated the votes out again.

So we've got this mess on our hands in Miami-Dade. We don't think it's ever going to be possible, frankly, to get an accurate count of undervotes and be confident that you're not counting votes that have already been counted for Al Gore once before.

Now, so we've got Miami-Dade, that's a problem we're going to have to deal with. What we've got also, though, is...

LEWIS: You're not telling me what you want me to do. You're telling me why I can't do it.

BECK: No. I'm telling you what I think you ought to do, Judge, with the other counties, and that is tell these counties that job No. 1 is to segregate the undervotes in a way where they keep records, accurate records, this time around, of how many votes are being recorded for Bush and how many are being recorded for Gore and how many are being recorded as undervotes.

Instead of just giving us a new stack of undervotes, what they should do is basically take the votes, the ballots, run them through the machine again, get a new tally -- it doesn't mean the new tally is going to be binding on the court or anyone else -- but to get a new tally, so that we know when we get the stack of undervotes, if it's different from what we got on November 8th, we'll at least know how many the machine thinks voted for Gore and how many the machine thinks voted for Bush. And we'll have three sets of numbers that add up to the number of people who voted. And then, we'll have some -- some records that we can figure out the significance of later.

But if we let the counties go forward and just segregate out the undervotes without keeping those kinds of records, then we're going to have a horrible mess on our hands and we're going never be able to feel confident that votes are not being counted twice.

LEWIS: Let me see I -- I'm not quite sure I understand you. When they did the vote, didn't they already segregate out?

BECK: No. What happens is they run a -- they run the ballots through the machine...


BECK: And the machine does not -- the machine just takes the ballots in the order in which -- in which they're put in, and they stay in that order. But the machine counts how many of them are for Gore, how many of them are for Bush, how many of them are for more than one candidate, which is an overvote, and how many of them are for nobody, which is an undervote, and it spits out the numbers.

Now -- but they don't, unless they've already done a manual recount where they've segregated them out, there's no reason for them to put them in different stacks. So they've never done that.


BECK: Now, what -- I understand this to be the case in Miami- Dade, that they have software that I'm not sure the other counties even have at this stage, but they were able to run the cards through and do a sorting. And that's the first time it was ever done, because Judge Sauls ordered them to segregate the undervotes and send them up here.

Now, I don't believe that any of the other counties ever had any reason to do such a sorting.


BECK: If they've done such a sorting already back on November 8th, great, then they should keep the ballots exactly as they were, on November 7th or 8th, the last time that they were -- they were looked at. But we believe that in the vast majority of counties no such sorting has been done. And we're concerned that counties are jumping the gun and beginning to do the sorting, and they're going to do it in a way that doesn't create a new tally for Gore, for Bush, for Nader, Buchanan, and the rest of the candidates, and therefore, we'll never be able to figure out how many of these votes are being counted twice.

LEWIS: When they sort them, how do they tell the ones that were undervoted?

BECK: I'm sorry.

LEWIS: When they do the sorting, how do they tell which ones were undervotes?

BECK: Well, I'm not sure how the machine -- I mean, the machine can tell which ones are undervotes. I'm not sure how it physically separates them out. That's a question that I don't know the answer to.

The way -- the way the machine works, if that's what you're asking, is when you punch a chad out, then what happens is light shines through the ballot, and when light shines through the Al Gore hole, it's counted as a vote for Al Gore. When the light shines through the George Bush hole, it's counted as a vote for George Bush. And the machine keeps track of how many -- how many times the light shines through for Al Gore and how many times it shines through for George Bush.

But it doesn't spit out the Al Gore votes onto one side, the George Bush on the one side, because after all, there's a whole bunch of races that they're counting for. So somehow or another Miami did it, but in the process, they didn't -- I don't believe they kept records of what the machine said about the number of Al Gore and George Bush and Pat Buchanan and Ralph Nader votes. And so we're faced with this problem in some of the precincts, where there are now more over -- undervotes than there were on election night, which means that these new undervotes were already counted for somebody before, the first time they went through the machine, and now they're going to be counted for somebody a second time. And people are going to have their votes counted twice, which...

BLITZER: Bush attorney Phil Beck explaining the complexities of counting the so-called "undervotes," those votes that didn't register for any presidential candidate. We're going to continue monitoring this hearing in Leon County. Right now, we want to take a quick break. We'll be right back.


BLITZER: A dramatic day in Florida, where the state Supreme Court has ordered the resumption of manual recounts in almost the entire state. I want to go to Charles Zewe as we monitor this courtroom hearing in Leon County.

Charles Zewe standing by in Atlanta, just outside the 11th Circuit Court of Appeals, the U.S. Court of Appeals. Charles, I take it there's been some legal activity going on right around the corner from where you are.

CHARLES ZEWE, CNN CORRESPONDENT: That's right, Wolf. Here at the 11th U.S. Circuit Court of Appeals, James Bopp Jr. (ph), an attorney for three Republicans from Brevard County in Central Florida has filed an emergency motion for an injunction to stop any sort of recount from taking place in Florida tonight. The appeals court has ordered the respondents in the case -- the canvassing boards of Volusia, Palm Beach, Miami-Dade and Brevard counties -- to respond by fax by 7:00 a.m. Eastern Time tomorrow morning.

At that point, all 12 judges, we're told by the clerk's office, of the 11th Circuit Court of Appeal will decide in a conference call probably what they will do: whether they will grant a temporary injunction or whether they will decide not to do anything in this case.

Bopp on behalf of the three Republicans, a suit in which Governor George W. Bush intervened as an intervener, claims that, again repeating claims of a suit that the court set aside or turned aside earlier in the week, claims that the recount is a dilution of voters' interests and is unconstitutional and unfair.

Now, what happens from here on out? The court's -- clerk's office is working late. They tell us that they expect the Bush attorneys sometime within the next hour or so or sometime tonight to file a request for a rehearing in the case that the court turned aside earlier in the week. The Bush attorneys say they were not part of Bopp's motion tonight, emergency motion for an injunction here. They say they may, however, ask on their own for an emergency injunction.

It gets a little confusing, but the bottom line is that Republicans have gone to the 11th Circuit Court of Appeals and asked the federal court to step in and stop these recounts until the U.S. Supreme Court decides whether it will hear the entire case -- Wolf.

BLITZER: Charles Zewe, reporting from Atlanta, outside the U.S. 11th Circuit Court of Appeals. Thank you very much.

And as we continue to monitor this hearing before Judge Terry Lewis in Leon County, the circuit court there, I want to go to our CNN legal analyst, Greta Van Susteren, who's monitoring it along with us.

Greta, as you take a look at these preliminary activities before Judge Lewis, how to resume, when to resume this manual recount knowing there's a Tuesday deadline for the state to put together its slate of electors, it doesn't look like there's a whole lot of time to do the job.

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: No, it doesn't, and the Gore campaign would much prefer a judge who sort of cracks the whip in the courtroom. If this judge doesn't crack the whip fast, it's not going to help the Gore campaign very much, and of course, The bush people would like to drag it out.

I want to point out one other thing: The Florida Supreme Court in issuing its order today said the circuit court shall commence a tabulation of the Miami-Dade ballots immediately. So the judge is under some pressure. He in essence has been ordered to begin it immediately. So this hearing may drag onto the evening hours, but they're going to have to get this started, because otherwise they're not obeying the Florida Supreme Court.

BLITZER: But Greta, as we watch Phil Beck, an attorney for Governor Bush, make his case that it's simply impossible to glean the intention of voters even after the Florida Supreme Court came down with its ruling today. And in that ruling, the majority, the four justices, said they have to look at those undervotes, the votes that did not register for either Gore or Bush or any other presidential candidate, by looking at the Florida statute that says there must be -- quote -- "a clear indication of the intent of the voter."

But as Phil Beck is pointing out, it's very hard to determine with those dimpled and pregnant chads.

VAN SUSTEREN: You know, I've always been confused by that argument, Wolf, and there's been a lot of debate about whether the standards are different: one dimple, two dimples, three dimples, and should it be precise. But I've got to tell you, every day in the week in courthouses across the country, juries are determining the intent of people.

It's not so unusual to have someone to determine the intent. We have that intent to kill, intent to do bodily injury. I mean, people oftentimes act to determine intent. This is not such a, you know, amorphous concept. And what it is, is the law just gives some people the authority to make the determination based on their best judgment.

So I think it's shrewd of the Republicans to do this. I would do this if I were their lawyers. But I'm not -- I'm convinced that this isn't taking us down some path that the law doesn't require. It just says to determine the intent of the voter, no more.

BLITZER: Some are already criticizing the Florida Supreme Court justices by not getting into more specifics by explaining in greater detail how they should -- how they believe the court representatives should determine the intent of the Florida voter.

VAN SUSTEREN: And that's curious as well, because remember there's been a lot of criticism about this being an activist court, they're merely to restate the law. That's the law, and to do more would be creating law.

BLITZER: All right, Greta Van Susteren, our CNN legal analyst, thanks for joining us. I want to go back to the hearing now. Phil Beck, an attorney for Governor Bush, continues to make his case.


BECK: ... undervotes. Those are votes -- those are ballots where nobody punched through the chad for any presidential candidate.

The Supreme Court elsewhere talks about counting all the non- votes. The non-votes is a broader category that also includes the ballots where people punched through for two candidates. There, there's 175,660 of those non-votes. So we have to sort that through. We think also that it is...

LEWIS: What did the Supreme Court say that I should do about non-votes?

BECK: Well, I haven't been able to figure that out, frankly, Your Honor. I just know that they refer to non-votes on page 39, and non-votes, to those who sat through the trial is a broader category, and those may have to be examined as well to see if you can discern voter intent from the non-votes.

There are also those in this litigation that if you're going to start counting dimples as votes, then perhaps you need to look at all the ballots, because if somebody punched through successfully for George Bush but then dimpled one for Al Gore, then if that dimple counts as a vote on the other ballots, it ought to count as a vote on all the ballots, and that would create an overvote situation. So there's that problem as well.

But focusing just now on the undervotes, we think that you need to look at all of the undervotes in Miami-Dade County, including the 20 percent that were already looked at by the canvassing board. And the reason for that, Your Honor, is that it now becomes a judicial function, or whoever is going to look at it needs to look at all of them to make sure that they were all -- that they all are treated under the same standard, using the same factors.

We have a real serious problem in Miami-Dade County where we had a canvassing board that applied very, very loose approach of divining voter intent, and they only went through 20 percent of the precincts, and the 20 percent of the precincts happened to be overwhelmingly Democratic. That's just the sequence that they did them in.

Now -- and they came up with a number of votes that they divined, and Al Gore picked up a whole bunch of votes. And now, unless Your Honor looks at that again, we're going to start looking at the other 80 percent, and someone is going to be using a different than was used for the 20 percent that's heavily Democratic. The remaining 80 percent, according to the votes -- the regular votes that came, was actually 52 percent Bush, 48 percent for Gore.

So if someone is going to use a real meaningful standard for the Republican parts of that county, then those voters, including a lot of Hispanic voters who tended to vote Republican in this last election, are going to have their votes evaluated under a standard that's different than was used for the Democrats.

That creates big problems under the Voting Rights Act for a protected group like Hispanic Americans, the Equal Protection Clause for everybody, as well as 3 U.S. Code Section 5.

So we believe that the court is required to include that 20 percent of the Miami vote so that all the votes are counted in the same way.

We also believe that Broward, which underwent a manual recount, those votes also need to be examined by whoever the court determines should do the examining under -- using the factors that the court identifies as appropriate.

What we had in Broward was testimony in this record that they used different standards at different times during the manual count, and that the standards were much, much looser than, say, the ones that were attempted to be applied in Palm Beach.

So Broward is a very heavily Democratic county, voted heavily for Al Gore. It picked up hundreds of votes in this process in front of the canvassing board using a standard...

BLITZER: Bush attorney Phil Beck making the case for some precision in trying to determine the so-called "undervotes," those votes that did not register for any of the presidential candidates.

We're going to continue to monitor this hearing in Leon County before the circuit court judge, Terry Lewis, but right now we're going to take another quick break.


BLITZER: Welcome back to our continuing coverage. We're continuing to monitor that hearing before Judge Terry Lewis in Leon County Circuit Court. But for now, I want to bring in two Florida state legislators who have been also monitoring all of these dramatic developments, the Democratic representative, Bob Henriquez. He joins us from Tallahassee as does the representative Mike Fasano, who's a Republican.

I want to begin with you, Representative Fasano. Your -- the Florida legislature, which is Republican-dominated, is scheduled to resume its special session on Monday. How does what the Supreme Court of Florida decided to do, to allow those manual recounts go forward, affect what you think the Republican majority will eventually do in the legislature?

REP. MIKE FASANO (R), FLORIDA REPRESENTATIVE: I don't think it has any impact on what we need to do as far as abiding by our Constitution, and that is selecting 25 electors based on the law that was intact on November 7th and the election results from that evening.

I think what the Supreme Court did today was once again overstep their bounds and create new law, and as Judge Wells clearly said it in his dissenting opinion, that this is unprecedented and could cause a constitutional crisis.

BLITZER: Representative Henriquez, you're the Democrat. Do you think that what the Supreme Court of Florida has done today is going to slow down the Republican majority in the Florida legislature?

I'm sorry. We're having some trouble hearing Representative Henriquez. We're going to fix that. I want to get to Representative Fasano just for one more question.

Representative Fasano, will there be a separate slate of Florida electors that will go to the electoral college if there's some question as to who has won the Florida vote by next Tuesday?

FASANO: Well, Wolf we want finality but I don't think finality's going to come by the 12th of next week, and the legislature, an elected body has a constitutional obligation to follow the law that was in place on November 7th. The U.S. Supreme Court has made that clear. Our Constitution has made that clear, and three justices on the Florida Supreme Court made that clear tonight, and I believe that we are going to do our constitutional duty and select 25 electors so we are represented on December 18th in the electoral process.

BLITZER: All right, I think we fixed the audio problems with Representative Henriquez. What do you say about that, Representative Henriquez?

REP. BOB HENRIQUEZ (D), FLORIDA REPRESENTATIVE: Well, I think it's obvious that we're being very selective when we start saying, well, three dissented. I mean, four didn't dissent so that means that 4-3 wins. I mean, this has become such an interesting position. We're 180 degrees from where we were yesterday and all of a sudden now the Gore team, they're done with their legal challenges and now we've started a whole new round of Bush challenges. You know, the court was good today when the Martin County and the Seminole County decision came down. The court was bad when they made the decision this afternoon. We need to just go ahead and count these votes. Finality will come when these votes are counted. Come Tuesday, we'll have a winner everybody can agree on and we'll be done with it. We shouldn't muddy the waters by having a legislative session and ending up throwing this thing into Congress or God knows where.

BLITZER: But Representative Henriquez, politically speaking, the Democrats are in the minority in the Senate and the House in Tallahassee. What, if anything, can you do to prevent the Republican majority from selecting that slate of electors?

HENRIQUEZ: Well, I don't know if there's a way we can prevent it. I would hope that if we walk to the floor of the House on Tuesday and that this counting of ballots that previously have not been counted shows that Al Gore is now leading, but at that point we can appeal to our colleagues on the other side of the aisle and say listen, a number of you have already said that the purpose of this, and this is what everyone has been saying, this is not about who wins or who loses, but this is about process or this is about our constitutional right, if at that point Gore is ahead, then if we have to go through this process, which again, we don't think is something we should be doing in the first place, but I think it's perfectly legitimate at that point that we send a slate of electors for Gore and recertify this election and Al Gore would be the next president.

BLITZER: Representative Henriquez, thanks for joining us as we want to give thanks to Representative Fasano as well.

FASANO: Thank you.

BLITZER: I now want to bring in two members of the U.S. Congress from Florida, who are also closely watching all of these activities. The Democratic Congresswoman Corrine Brown, she represents parts of Duval County, that Jacksonville, Florida and Representative John Mica, he's a Republican. He's joining us from New York.

And I want to begin with you, Congressman Mica. The House -- the House majority whip, Tom DeLay had some tough words earlier today about what the Florida Supreme Court did. Let me read them to you. "The Florida Supreme Court has squandered its credibility and violated the trust of the people of Florida in an attempt to manipulate the results of a fair and free election. This judicial aggression must not stand."

Tough words from Tom DeLay. Do you think those kinds of words are appropriate by your leader right now?

REP. JOHN MICA (R), FLORIDA: Well, I thing that he's concerned that the Florida Supreme Court has overstepped its bounds in the same fashion that chief justice of the state Supreme Court, Charles Wells, enumerated and outlined all of the things that have been ignored, ignoring the law, ignoring the Supreme Court, ignoring the Constitution, and I think there will be challenges to this. so I think our leader is correct.

BLITZER: Corrine Brown, this could wind up in the lap of the U.S. Congress if the Florida legislature decides to send a separate slate of electors irrespective of what happens with the judicial process, even if Vice President Gore winds up the winner in Florida. Potentially an enormous problem, do you think it's going to get to that level?

REP. CORRINE BROWN (D), FLORIDA: I don't know, but let me tell you I'm extremely please with the ruling today of the Supreme Court. I represent Duval County where 27,000 ballots were thrown out -- 6,000 of them undercounted and those ballots, the machine did not pick up and this exists throughout Florida. So I am very pleased that African-Americans who have died for the right to vote will now have an opportunity for their votes to count.

BLITZER: Congressman Mica, as we watch Phil Beck, an attorney for Governor Bush, continue to make his case before Circuit Court Judge Terry Lewis, what's wrong with the argument that Congresswoman Brown is making, that why not, as the Florida Supreme Court in their 4-3 decision concluded, why not allow those undervotes, those votes that didn't register any preference, to be recounted?

MICA: Well, I think Attorney Beck has pointed this out. We now have chaos with the ballots, some of the ballots are mixed together. We have instances where we don't know what counts have taken place where. We're going to include -- and in fact, we don't even know what counties will be included. I heard 17. It may be beyond that in the state and there's no basis for this -- legal basis for proceeding. So I think the Supreme Court may end up taking action or this may end up, again, being resolved by the legislature appointing electors or by the Congress ending up with this whole chaotic mess that's been created by this decision.

BLITZER: Congresswoman Brown, we only have a few seconds left. Your -- Duval County, you say there's 6,000 undervotes there. Have you heard from and election supervisors of officials there when or how they're going to begin that vote recount in Duval County?

BROWN: I think they're meeting as we're speaking now, coming up with the procedures as how they're going to count these votes that, by the way, have never been counted. The equipment clearly is not working in the inner cities throughout Florida, more African-American votes thrown out. This is a great day for democracy. This is what makes America great. I am just very pleased with the ruling of the Supreme Court, once again, and I'm looking forward to the end. Clearly, every vote needs to counted. Too many people have died to give us the right to vote and the right to have a fair and accurate count.

BLITZER: All right, Congresswoman Corrine Brown and Congressman John Mica, thanks for joining us for our counting coverage of this hearing that is now continuing in Tallahassee before Circuit Court Judge Terry Lewis. We are going to be monitoring this hearing as this evening goes, but for now, thanks very much for watching. I'm Wolf Blitzer in Washington. LARRY KING LIVE is next. TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT


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