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The Florida Vote: New Life in the Fight for the White House

Aired December 8, 2000 - 10:00 p.m. ET



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.


ANNOUNCER: The fight for the White House has new life.


WILLIAM DALEY, GORE CAMPAIGN SPOKESMAN: It is a victory for fairness and accountability in our democracy itself.

JAMES BAKER, BUSH CAMPAIGN OBSERVER: It is sad for Florida, it is sad for the nation, and it is sad for our democracy.


ANNOUNCER: A stunning court victory for Al Gore. Both campaigns legal teams rush back into action as Florida vote counters get ready to work overtime.

Also on the job, Florida's legislature.


STATE REP. LOIS FRANKEL (D), FLORIDA MINORITY LEADER: I move to waive the rules to adopt this special rule.


ANNOUNCER: On a night of confusion, the latest predictions for when it will all end.


SEN. ROBERT BENNETT (R), UTAH: It's Groundhog Day. We get up every morning and the day starts all over again.


ANNOUNCER: We welcome our viewers in the United States and around the world to this CNN election 2000 special report: "The Florida Vote."

From New York, here's CNN's senior analyst Jeff Greenfield.

JEFF GREENFIELD, HOST: So, what's new? Well, George W. Bush's lead in Florida is down to 154 votes. The chief justice of that state's Supreme Court says we are headed state for a constitutional crisis, the process of two dueling slates of Florida electors has become a whole lot more plausible, and the campaigns of Al Gore and George W. Bush are confronting a battleground turned upside down today by the Florida Supreme Court. What's new with you?

Well, in Florida, what's new -- in fact, what's still going on is a hearing that has been under way for more than two hours now. Judge Terry Lewis -- you recognize him from the Martin County case -- is listening as attorneys from the Bush and Gore campaigns argue about the standards and the procedures for counting disputed ballots.

The hand counts were ordered this afternoon by a 4-3 majority of the state Supreme Court. It was, to put it mildly, a significant victory for Al Gore. Part of the majority opinion said, and we quote:

"On this record there can be no question that there are legal votes within the 9,000 uncounted votes sufficient to place the results of this election ion doubt. We know this not only by evidence of statistical analysis but also by the actual experience of recounts conducted. Thousands of uncounted votes could obviously make the difference," unquote.

But, Florida's chief justice, Charles Wells, who was in the minority, issued a stinging dissent soon to be memorized by every Republican spokesman. We quote:

"I have a deep and abiding concern that the prolonging of the judicial process in this counting contest propels this country and the state into an unprecedented and unnecessary constitutional crisis. I have to conclude that there is a real and present likelihood that this constitutional crisis will do substantial damage to our country, our state and to this court as an institution."

The Bush campaign is appealing the Florida ruling to the United States Supreme Court. We'll hear about that in a moment. But in Tallahassee tonight, the question has been, just how quickly can and should manual recounts be started?

Judge Terry Lewis accepted the job of supervising the Florida state Supreme Court's order to count more than 43,000 so-called under votes. The four counties with the largest number of under votes -- that means no vote recorded for president -- include Miami-Dade, Hillsborough, Duval and Pinellas counties.

CNN's Bill Delaney joins us from the Florida capital with details from tonight's court action.

Pretty routine day, eh, Bill?

BILL DELANEY, CNN CORRESPONDENT: Pretty interesting day -- and night, Jeff. Around mid-afternoon, nobody could have guessed that there would still be lights burning in the Leon County Circuit Courthouse behind me, but the lights are very much burning, and courtroom 3D is still pretty active. There are a lot of lawyers in there again. There were a lot of lawyers in there earlier today when they made those decisions about the Seminole and Martin absentee ballot counts.

We thought everything was over in Leon County when that definitive decision came down earlier today not to count those -- to count those absentee ballots. Everyone here was winding down, and then that stunning Supreme Court decision, then Judge Leon -- Judge Sanders Sauls recusing himself, the judge who was overturned by the Florida Supreme Court, and now it goes, as you said, to Judge Terry Lewis, who at the moment is in recess. He's gone back into his chambers to try to decide what to do.

Now what does he have to decide? He has to decide how to manually recount 9,000 votes, disputed votes, undervotes from Miami- Dade County that are actually here in Leon County, and he has to come up with a methodology to count some 43,000 undervotes in dozens of counties all over Florida.

He's been charged with doing that, and he's been listening to Republican and Democratic lawyers for the past couple of hours presenting some ideas how they think he ought to do it. The standards question: Yes, we're hearing about chads of all kinds all over again, Jeff, the Democrats arguing for a very broad standard for counting ballots, for counting those undervotes, those ballots that the machine couldn't find any candidate on for president, that they now were going to count manually.

The Democrats say you've got to look at the intent, and the intent may be as much as a punch right through the card or it may be as little as just a scratch on the ballot.

Now the Republicans arguing for a much more narrow standard. Republicans arguing very much for the kind of standard they used Palm Beach County when they did their recount, saying there has to be a punch through or a very definitively hanging chad. And if you can't get to that and Judge Terry Lewis insists on counting dimples, the Republicans said, well then it better be more than just a scratch.

Democrats arguing most fundamentally, let's get started right away. Republicans arguing, well, let's get started on the weekend somewhere.

In any event, Judge Terry Lewis now expected to come back. We don't know when, but presumably within the hour or two to decide how this is going to be done, to decide how 64,000 -- rather 43,000 votes are going to be counted all over Florida -- Jeff.

GREENFIELD: OK, Bill, and if Judge Lewis tells us, Bill Delaney and CNN will tell you folks.

So now that we've considered the fallout, here's a closer look at the explosion. CNN's Susan Candiotti has details of the Florida Supreme Court ruling that revived Al Gore's chances for the presidency.


SUSAN CANDIOTTI, CNN CORRESPONDENT (voice-over): The announcement came quickly, less than a day after oral arguments.

WATERS: By a vote of 4-3, the majority of the court has reversed the decision of the trial court in part. It has further ordered that the circuit court of the second judicial circuit here in Tallahassee shall immediately begin a manual recount of the approximately 90,000 Miami-Dade ballots that registered undervotes.

CANDIOTTI: A court spokesman barely got out the words manual recount when a bipartisan group of onlookers jeered and cheered.

UNIDENTIFIED FEMALE: Our democracy is really -- can only work if we don't disenfranchise people by refusing to count their votes.

CANDIOTTI (on camera): Ma'am, what are you doing?

UNIDENTIFIED FEMALE: Scratching them out.

CANDIOTTI: Why is that?

UNIDENTIFIED FEMALE: Because they disappointed me.

CANDIOTTI (voice-over): By a one-vote margin, the seven Supreme Court justices split their decision. For the majority, Justices Anstead, Pariente, Lewis and Quince wrote, "The clear message is that every citizen's vote be counted whenever possible, whether in an election for a local commissioner or an election for president of the United States.

Three justices dissented. Chief Justice Wells among them wrote, "I conclude that this contest simply must end."

Gore campaign manager William Daley:

DALEY: This decision is not just a victory for Al Gore and his millions of supporters, it is a victory for fairness and accountability in our democracy itself.

CANDIOTTI: The Bush campaign decried more counting.

BAKER: We think this ruling is inconsistent with Florida law, with federal law and with the United States Constitution. Therefore, we have no alternative other than to appeal once again to the Supreme Court of the United States.

CANDIOTTI: The judge whose decision was reversed has recused himself. Another judge will oversee the counting of the contested ballots.

(on camera): So now the race for president moves on to a new phase in an election that has had more than its share of unprecedented developments.

Susan Candiotti, CNN, Tallahassee, Florida.


GREENFIELD: Judge Sauls did not explain why he recused himself, that is stepped away from this case, but here's one semi-educated guess: this story that appeared on the front page of today's "New York Times," which detailed in an interview with Judge Sauls's wife the bitter personal and political disputes that have erupted between Judge Sauls and the Florida state Supreme Court.

This article indicated that the state Supreme Court had accepted Judge Sauls's resignation as an administrator of his circuit court after some controversies had arisen about the conduct of that court. Judge Sauls's wife expressed some very strong feelings about how she and her husband felt about that Supreme Court. And as far as we can tell, that's the one intervening event that might explain this recusal. Perhaps we'll find out more tomorrow.

Now earlier this afternoon, and now largely forgotten, the Bush campaign won a pair of what seemed like significant legal victories. Judges ruled thousands of absentee ballots from Seminole and Martin counties should not be thrown out. The judges said despite irregularities in the ballot application forms, neither the sanctity nor the integrity of the election had been compromised.

Florida Democrats are appealing.

Now Bush campaign attorneys have already made a federal case, I think two, out of the Florida Supreme Court ruling.

CNN's Charles Zewe is in Atlanta, where emergency petitions have been filed with the United States 11th Circuit Court of appeals, and our senior Washington correspondent Charles Bierbauer is at the United States Supreme Court in Washington.

Charles Bierbauer, let's start with you. What's up?

CHARLES BIERBAUER, CNN SENIOR WASHINGTON CORRESPONDENT: Jeff, the Bush campaign has asked Justice Anthony Kennedy to put a stop to the recounts pending further action by the U.S. Supreme Court. This is a writ for a stay of enforcement of the ruling by the Florida Supreme Court today.

The papers filed here just this evening say that failure to stop this would have a material harm on the electoral process. The Bush petition makes three points very briefly.

It says that the Supreme Court here in Washington should consider whether the Florida Supreme Court erred in establishing what it calls "new standards" for resolving presidential election contests.

Two, whether the Florida Supreme Court erred in establishing post-election judicially created standards that threaten to overturn the certified results, meaning the Bush certification. And, three, whether the use of arbitrary, standardless and selective manual recounts is a violation of the equal protection or due process clause of the 14th Amendment of the U.S. Constitution, all federal cases -- federal issues which the Bush folks would like this court to consider. We expect that the Gore attorneys will file something, a response, in the morning.

No further action is expected tonight. Justice Kennedy could act alone but more likely is to act in concert with the entire Supreme Court as to whether or not he grants this stay pending further action by the court here -- Jeff.

GREENFIELD: Thank you, Charles.

We're going to have 24-hour food service at these courts if these applications keep going.

Speaking of which, Charles Zewe, what's up in Atlanta?

CHARLES ZEWE, CNN CORRESPONDENT: Well, it's been a late night here in Atlanta. The clerks just went home, Jeff, about 10 or 12 minutes ago after waiting for the fax machines to keep rolling in these emergency petitions. There are two emergency petitions being placed before the 11th Circuit Court of Appeals tonight, more or less tracking the positions that you just heard Charles Bierbauer talk about that -- being placed before the U.S. Supreme Court.

In the first action, an attorney for three Brevard County voters asked the court to issue an emergency injunction stopping all recounts in Florida until the high court, the Supreme Court, can consider this case.

In the second action, which is being faxed into the court during the night hours, the Bush lawyers, the bush campaign, is asking for an emergency rehearing of a case that the court set aside earlier in the week. In that case, made again many of the same arguments that the voter recounts are a violation of the equal protection clause of the United States Constitution because it makes those recounted votes somehow more equal than everybody else's votes in Florida. And that, both cases here contended, was illegal and unfair.

They also attacked the standards, that there are no standards in these recounts. How many times have we heard the word "standardless recounts" in this whole process? Those are the claims that are being made before the 11th Circuit Court of Appeals. What will the court do? We understand from the clerk of the court tonight that the judges here, all 12 judges of the appeals court, will consider the case in the morning. They will talk among themselves. The court didn't say whether they would have a conference call or how they would consider the case, and when and if they will do anything. He says they will be dealing with this tomorrow, and we should hear something perhaps by mid-morning about whether this appeals court will step in and issue an injunction and stop the recounts in Florida or grant the Bush campaign a re-hearing on the entire issue that this court set aside as having demonstrated no irreparable harm earlier in the week -- Jeff. GREENFIELD: Charles Zewe doing overtime work in Atlanta at the 11th Circuit Court of Appeals. And he'll be there very early in the morning.

Now looming over all these court battles, the Florida legislature. It may well have the last word about who gets the state's decisive 25 electoral votes. The Republican-controlled legislature is in special session and says it may step in and name the electors.

CNN's national correspondent Mike Boettcher tells us about today's activities in the Florida House and Senate.


UNIDENTIFIED FEMALE: One hundred sixteen members voting, a quorum is present, Mr. Speaker.

MIKE BOETTCHER, CNN CORRESPONDENT: With those few words, the Florida legislature embarked on a history-making special session. Its sole purpose: consider a Republican-sponsored resolution that would likely assign all 25 Florida presidential electors to Governor Bush.

UNIDENTIFIED MALE: ... that the legislature is convened for the sole and exclusive purpose of exercising its power.

BOETTCHER: Republican House Speaker Tom Feeney told the full chamber that the U.S. Constitution gave them the right to take the action.

STATE REP. TOM FEENEY (R), FLORIDA HOUSE SPEAKER: To the American people, I must say the only reason we are here today is because of our duty as outlined in the United States Constitution.

BOETTCHER: Democrats politely disagreed.

FRANKEL: Well, you know I have a vigorous disagreement with the necessity and the legality of this legislature.

UNIDENTIFIED FEMALE: Quorum call, quorum call, all senators indicate your presence.

BOETTCHER: But in the usually more sedate Florida Senate, the debate was uncharacteristically heated, Democrats accusing Republicans of following a partisan script.

TOM ROSSIN (D), FLORIDA SEN. MAJORITY LEADER: I believe from the very beginning that the script had been written long ago.

UNIDENTIFIED MALE: First, this was not scripted a long time ago.

Second, this was not instigated by the House.

BOETTCHER: The ruling of the Florida Supreme Court came after both chambers of the legislature had adjourned for the weekend. Republicans who stayed behind were stunned. Democrats cheered. STATE REP. DANIEL WEBSTER (R), FLORIDA: We said all along December 12th is the date. And if we they can get all these recounts done, all the hearings, all the court cases, all the litigation and so forth done in time, then there's finality. If not, the legislature's going to have to act.

FRANKEL: It seems to me more than ever that this legislature should pull back, step back and say, look, we had a lawful election. Six million people went to the polls. Let's see who the voters chose. Legislators, stay out of this.

BOETTCHER: Senate Democrats say the Supreme Court ruling reaffirms their decision to call a special session. Democrats say they will fight it in debate. And look for the rhetoric to heat up on Monday.

Mike Boettcher, CNN, Tallahassee.


GREENFIELD: Thank you, Mike.

With all the talk you've heard that this story is something out of a bad movie, here's one possible title: "The Incredible Shrinking Plurality."

For Governor Bush it has the makings of a horror movie, and here's why.

The day after the election, officials said that Bush took Florida by 1,725 votes. After the first recount and the overseas ballots were sent in, the lead shrunk to 930 votes. Then those hands counts began. By the time the states certified the totals almost two weeks ago, the Bush lead was down to 537 votes. And now, with today's Supreme Court ruling, Bush's lead stands at 154 votes -- and that's before, before, all those undervotes are looked at.

Ahead on this CNN special report, two law professors look at the legal complexities of this. And I promise you, we've checked, they will speak English.

And later, taking stock: The Bush and Gore camps react to today's major decision in Tallahassee.

And later, in this blizzard of news, we're in desperate need for clear-eyed, level-headed legal analysis, and it will come anytime soon.



BENNETT: It's Groundhog Day. We get up every morning and the day starts all over again. I congratulate Vice President Gore and his team and their persistence. This demonstrates that they were wise to press forward in spite of the fact that there were many calling on them not to.


GREENFIELD: In this blizzard of news, we're in desperate need for clear-eyed, level-headed legal analysis, and here it comes. From the University of California Berkeley, we're joined by John Yoo. He once clerked for U.S. Supreme Court Justice Clarence Thomas. From Boston, Heather Gerkin of Harvard Law School. She is a former law clerk for Justice David Stouter -- Souter, I'm sorry.

John and Heather, let me start with you, John. December 12th, here's what confuses me. We hear that without December 12th, electors picked by then, they will not be immune from a challenge. Suppose Florida takes until December 15th to pick a slate of electors with finality. Who's going to challenge them and why?

JOHN YOO, UNIVERSITY OF CALIFORNIA BERKELEY: Well, there will be two slates of electors in Washington. The one slate is the one that Governor Jeb Bush has already sent forward. The second slate would be the one chosen on December 15th. It's unclear which one is the correct one. Under federal law, if any of them had been finished by December 12th, then that one would be assumed to be valid. But once you're after December 12th, federal law doesn't say that either of them are valid and actually requires Congress to choose between the two to pick which one will be counted as the electoral votes of Florida.

GREENFIELD: But, John, in 1960, Hawaii sent in a second slate of electors on December 28th, and nobody challenged them.

YOO: Right, well this was because, first of all, those electoral votes didn't matter. And second of all, Vice President Nixon, who, oddly enough, is the only one who seems to be looking good in all this these days, decided to count them for Kennedy without having any kind of discussion or challenge. But he also said he didn't want to make a precedent of it either.

GREENFIELD: Now, Heather Gerkin, so is John right that December -- if December 12th comes and goes and this process is still entangled in the courts, that Florida does risk some kind of challenge to its electors, or is it simply a question of the Congress choosing between two slates?

HEATHER GERKIN, HARVARD LAW SCHOOL: It's really a question of Congress choosing between two slates. Without question, Florida is going to have one set or another of its electors counted, but Congress is going to have to decide which of the two.

But here's what gets really interesting about it. The way the statute works, if there's a challenge, the House of Representatives and the Senate have to agree on which slate of electors to bring in. And it turns out that if they split, for example if the Senate goes with the Democrats and the House goes with the Republicans, as many expect, then the tiebreaker, the vote there is cast by the executive of the state of Florida, and that is Jeb Bush. It's a great Hollywood ending to this story. GREENFIELD: So, John, in that case, it seems to me, at least as of now, and we're writing this on sand, that no matter what happens, even if somehow Gore wins the recount and the court orders a certification of Gore electors, ultimately George W. Bush is going win those electoral votes, right?

YOO: Given the way that the House and Senate are currently made up and assuming they vote along partisan lines, that's quite right. The only way that Al Gore could be sure to win the electoral votes from Florida is if all the legal appeals and recounts and everything conclude by December 12th, and that set of electors is then sent forth from Florida. Other than that, it all gets thrown into the procedures which Heather just discussed.

And under those procedures, if the House and Senate can't come to a conclusion, then, as Heather said, the slate that was signed by Jeb Bush is the one that will prevail.

GREENFIELD: OK, now, Heather, before we get -- we may be getting a little ahead of ourselves here with this constitutional melodrama that thrills all of us folks who plunged into the Constitution many years ago, but what are -- in terms of the procedures going on right now, the appeals, didn't the U.S. Supreme Court wag its finger pretty heavily at the Florida Supreme Court in its last per curiam decision? And doesn't that suggest that a one-vote decision by the Florida Supreme Court is very vulnerable to reversal by the U.S. Supreme Court?

GERKIN: I certainly think that the Florida state Supreme Court decision is going to be vulnerable to reversal. The Supreme Court didn't exactly tell Florida what it really thought about the issue, it essentially ducked the question. But it did certainly say that the issue was a serious one and a matter of concern. And you could tell that the justices writing this majority decision were well aware of this problem and did everything that they could to argue that this is purely a state law question, which is their effort to insulate this from appeal with the United States Supreme Court.

GREENFIELD: Now, John, I would never ask a Supreme Court clerk to violate any confidence in terms of specific cases, but as a more general question, if the hand counts go on, recounts go on, and Al Gore is in the lead, would the justices, do you think, at least be aware of the fact that if they reversed at that point they'd be reversing a Florida Supreme Court decision where the recount was different? In other words, would they be aware of the reality on the ground in Florida before they render their decision?

YOO: Oh, of course. I mean, most of the justices, I think, watch television. They're certainly aware of the political events that occur all around them. I think you can see that in the decision they already issued in this case, where they tried to craft a decision that did seem to take account of the politics that were going on and tried to protect the idea of having unanimity.

So I think it's quite clear they are very conscious of it. The issue, though, is whether they're going to allow that to interfere with what they think is the right legal outcome in this case.

GREENFIELD: And, Heather, last question to you. If they were to decide to reverse the Florida Supreme Court decision, would that be a case where they were letting, in effect, the political institutions of Florida decide, or would it be a case of, to use that dreaded word, judicial activism on the federal been to overturn a state decision about a state election?

GERKIN: I think we should be very careful about throwing around the term judicial activism. I think this is a hard question on which reasonable minds can disagree. I mean, I guess the one note of optimism is that the majority of this court, the state Supreme Court, said we are talking about the structure of a democratic society. And because of this decision today, in fact, we are all now talking about the structure of a democratic society. And maybe that's not such a bad thing.

GREENFIELD: OK, Heather Gerkin and John Yoo, I promised you folks out there in television land clarity. If you didn't believe me before, you should believe me now.

Thank you both for joining us.

And straight ahead, reaction from both sides to today's Florida Supreme Court ruling.


DALEY: It is a victory for fairness and accountability in our democracy itself.

BAKER: It is very sad. It is sad for Florida, it is sad for the nation, and it is sad for our democracy.


GREENFIELD: We'll also see how the Gore and the Bush camps are scrambling to rethink strategy, when this CNN special report continues.



UNIDENTIFIED MALE: The Florida Supreme Court made a good decision, I think. The votes of the people should be counted, and just because the machine can't read the vote doesn't make it any less real a vote.



UNIDENTIFIED MALE: Ridiculous that they would come down with that decision at this late date. And as far as I was concerned, the election was over a month ago. (END VIDEO CLIP)

GREENFIELD: That's what we all thought. Well, today's ruling by the Florida Supreme Court was a much needed balm for the Gore camp. At least temporarily, it took the momentum away from the Bush camp's battle for the White House. We've got reactions from both campaigns, and we begin in the Al Gore camp, CNN's Jonathan Karl.


WATERS: Because time is of the essence, the recount shall commence immediately.

JONATHAN KARL, CNN CORRESPONDENT (voice-over): With those words, a new lease on life for Al Gore.

WILLIAM DALEY, GORE CAMPAIGN CHAIRMAN: This decision is not just a victory for Al Gore and his millions of supporters. It is a victory for fairness and accountability in our democracy itself.

KARL: The Florida Supreme Court went beyond Gore's request for a manual recount in two Florida counties, instead ordering a recount of the undervote in every Florida county. That complicates things for the Gore team, raising the question of whether there's enough time to get it all done.

DALEY: Let the count begin not just of the votes yet to be counted in Miami-Dade, but as the court wisely ruled, in every Florida county where undervotes have yet to be counted. Then Florida and America will know with certainty who has really won the presidency.

KARL: As Daley walked back into the vice president's residence, Gore and running mate Joe Lieberman and their wives could be heard letting out a cheer. But the Gore team has little time to celebrate. The vice president's lawyers are busy preparing for a series legal battles that lie ahead including fending off a Bush appeal to the U.S. Supreme Court.

As the battle goes forward, the vice president is counting on his victory to earn him continued Democratic support. In a joint statement, Democratic Congressional leaders Tom Daschle and Dick Gephardt said, quote: "We will continue to support the vice president while these votes are being counted."

The Democratic leaders had also prepared a statement to release if Gore had lot of, a sign that many Democrats didn't expect him to win.


KARL: Now there's the job of monitoring a recount much more extensive than previously anticipated. To get that work done, the Gore team has chartered two separate planes to fly more than 100 Democratic activists from Washington down Florida -- Jeff.

GREENFIELD: Jonathan, as we've been discussing in the moments before you joined us, it's very hard to see an end game even after this decision today where Al Gore wins before between the Florida legislature and a Republican majority in the House of Representatives and a Florida governor who is, you know, Republican and the candidates' brother. Even with this decision what does the gore campaign think is the road to ultimately the White House?

KARL: Well, the Gore campaign even before this decision came down had separate legal teams working on these other constitutional hurdles that they must go over now the that they've won. I mean, they've got this -- they've got the question of the Bush appeal to the Supreme Court, should the Supreme Court take that up.

They've got the question of Florida's Republican legislature sending their own batch electors and finally that battle you alluded to in Congress. So, the Gore team has had a legal strategy in place. They've had Walter Dellinger, the former U.S. solicitor general, developing that strategy, but they've been very reluctant, even privately, to talk about it partly because they know it's a very steep climb.

Even after this victory, still the odds you could say, are against Al Gore becoming president, but they know that at least what this does is it helps them live to fight another day.

GREENFIELD: Thank you, Jonathan. Speaking of hills that got a little steeper, the Bush campaign in Texas must be seeing a slightly higher incline now. We'll find out how it reacted to the blow from Florida's high court.

Here is CNN's senior political correspondent, Candy Crowley.


CANDY CROWLEY, CNN CORRESPONDENT (voice-over): Legally and politically, the Florida Supreme Court knocked the wind out of the Bush campaign. It now seeks oxygen from the nation's highest court.

BAKER: We think this ruling is inconsistent with Florida law, with federal law, and with the United States Constitution. Therefore, we have no alternative other than appeal once again to the Supreme Court of the United States for relief.

CROWLEY: The ruling out of Tallahassee brought disbelief from the Bush political team. "I am," said one top adviser, "all out of reactions." And from the Bush legal team, there was a kind of seething disappointment.

BAKER: This is what happens when, for the first time in modern history, a candidate resorts to lawsuits to try to overturn the outcome of an election for president. It is very sad. It is sad for Florida. It is sad for the nation. And it is sad for our democracy.

CROWLEY: The Bush team found hope and ammunition in the 4-3 split on the Florida court and in the minority dissent written by Chief Justice Charles Wells, who said he believes the court ruling cannot withstand the scrutiny which will certainly immediately follow under the United States Constitution.

Wells also wrote that the recount ordered by the high court has no foundation in the law of Florida as it existed on November 7, 2000 or at anytime until the issuance of this opinion. Wells also warned his that the prolonged judicial process will provoke a constitutional crisis.

"There is a real and present likelihood that this constitutional crisis will do substantial damage to our country, our state and to this court as an institution."

The Florida Supreme Court has not been a productive arena for the Bush team, and though privately there are questions about the political bent of the Democrat-packed court, publicly, Bush lawyers steer clear.

BAKER: I do not suggest that it is politically based, and I do not criticize it on political grounds. I think it is very vulnerable on legal grounds for the reasons I've just outlined.

CROWLEY: One source on the Bush legal team said of the order to begin a recount, "Legally, we are horrified. Process-wise, this is the beginning of chaos."


CROWLEY: Seeking to show that the court decision should not and cannot be carried out, Bush supporters are already telling stories of some counties which began to recount and were ordered to stop because of lack of guidelines and of one county that said its undervotes were commingled in a pile of 285,000 ballots -- Jeff.

GREENFIELD: Candy, I have to believe that down the road, the Bush campaign believers it will ultimately win because of the Florida legislature, the Republican majority in the House, the Florida governor, but it must be their ultimate nightmare that at some point in the next 48 hours somebody's going come out of Florida with a vote count that shows Al Gore in the lead. Is that, do you think, their principal political fear right now?

CROWLEY: Absolutely, it has to be and it's a political fear, as you pointed out, as opposed to a legal fear because they are, you know, in other courts. I mean, it's one of the reasons they want to stop this recount before it starts.

What's happened here is that throughout all of this, the talk was never of should George Bush concede because he was always leading. He also had, you know, when you showed those ballots, all along, the key thing was he was in the plus column. Once it becomes in the negative column it gets very, very difficult.

GREENFIELD: Thank you, Candy. I was going say take the rest of the night off, but I'm not sure I can even say that given the hours you've been working here. Well, next up, speaking of the future, the growing possibility of an unwanted mission for Congress.


SEN. TIM HUTCHINSON (R), ARKANSAS: It's a step closer to it and that's what's being called the doomsday scenario.



UNIDENTIFIED CONGRESSMAN: It'd be a mistake to have it decided in the House and the Senate. It could be decided by the voters.


GREENFIELD: Is Congress ready to act if that is where the presidential decision lands? Which party has the most to fear? Well, you'll hear in a moment when this CNN special report continues.


GREENFIELD: I'm Jeff Greenfield. Welcome back to our special report on a day that, to put it mildly, brought some more news about this battle for the presidency. In fact, it sent both campaign's lawyers scrambling once again for the courts.

Tonight, Bush lawyers filed an emergency petition with the United States Supreme Court asking for a stay of today's Florida Supreme Court ruling. They want the high court to bar any hand counts until the court reviews the appeal.

Shortly before that, Bush attorneys filed a petition with the U.S. 11th Circuit Court of Appeals in Atlanta. They want an emergency rehearing on its request for injunction that would bar any manual counts of the Florida presidential ballot.

And in the meantime, a hearing is underway at this moment to decide the procedures and standards that should be followed in recounting more than 43,000 undervotes in Florida. Those hand counts were ordered this afternoon in a 4-3 ruling of Florida's state Supreme Court.

Well, as you might imagine, Capitol Hill took note about the Florida Supreme Court ruling, and as CNN correspondent -- congressional correspondent, actually, Chris Black tells us, Congress could actually get thrown right into the middle of the presidential selection process.


CHRIS BLACK, CNN CORRESPONDENT (voice-over): The Florida Supreme Court has made more likely the scenario Democrats and Republicans most dread: Congress picking the next president.

HUTCHINSON: It's a step closer to it now, and that's what's being called the doomsday scenario.

BLACK: For the past month, both parties have been researching the historical and legal precedents for a presidential race being decided by Congress for the fourth time in history.

SEN. BOB BENNETT (R), UTAH: We have been given by the Florida Supreme Court a situation that's fraught with difficulty, no matter who comes out now.

UNIDENTIFIED CONGRESSMAN: It would be a mistake to have it decided in the house and Senate. It could be decide by the voters in Florida.

BLACK: Most fearful are Democrats who stand for reelection in 2002 for areas that went heavily for George W. Bush. Places like Montana, the Dakotas, Texas, Mississippi, Louisiana and Georgia.

REP. CAL DOOLEY (D), CALIFORNIA: Well, I'm hopeful that we will see a decision that is clear and decisive as this recount moves forward that will preclude the next president being determined on the floor of Congress.

BLACK: One aide to a Democrat from a state Bush carried calls that quote: "Our worst nightmare. A choice between the Democratic Party and Republican constituents." Southern Democrats in particular are worried. Unwilling to vote for Bush, fearing a backlash from African-American voters. One Republican senator predicts Congress can count on an unlikely savior: the U.S. Supreme Court.

SEN. PHIL GRAMM (R), TEXAS: I guess in the end while people thought we might settle the issue today, in the end this was going to end up here in Washington across the street at the Supreme Court and I think that's where it'll end next week.

BLACK (on camera): Neither Democrats nor Republicans want to deal with this. But House Republican Whip Tom DeLay is saying, quote: "This judicial aggression must not stand," meaning Congress may not be able to avoid choosing the 43rd president of the United States.

Chris Black, CNN, Capitol Hill.


GREENFIELD: When we come back, we'll explore our latest journey in the political fourth dimension with Michelle Cottle of "The New Republic" and Christopher Caldwell of "The Weekly Standard." Can you tell which is which? I can. See you in a minute.


GREENFIELD: From our Washington bureau we are joined by Michelle Cottle of "The New Republic" and by Christopher Caldwell of "The Weekly Standard.

Michelle, we were all sitting around, I think, at 3:00 today, waiting for the last of about a hundred shoes to drop, wondering how Al Gore was going concede. Just as matter of taking the temperature of Washington, what did the Supreme Court opinion do to the political community down there? MICHELLE COTTLE, "THE NEW REPUBLIC": Well, talking to people on the Hill, some of my colleagues called over there and there was apparently a scream that went up through some of the staff offices. Everybody has just been blown away that. I mean, it is Al Gore as Rasputin. He just will not go down. And now, you know, it looks like this is headed up our way, and the House and the Senate are going to have to get their hands dirty like everybody else with this mess.

GREENFIELD: But let me just pursue the questions I raised with a couple of earlier folks. What's the scenario, even with this decision, for Al Gore to win the White House. If the House and Senate were to rule on the electors and they split and it goes back to Florida and that's Jeb Bush, I mean, how does any Democrat see Al Gore occupying the White House next January, even after this?

COTTLE: Well, I'm not even sure it's so much -- I mean, there's always the possibility that people will become so outraged that they push this issue and somehow the Republicans decide it's just not worth it, but even more than that, the political partisans on the Democratic side want this to be as ugly as possible so that the Republicans will pay for this down the road so if George Bush is going to be in the White House, they want it to come down the Florida state legislators and the House and Senate in Washington having to get their hands really, really sullied with partisanship on this.

GREENFIELD: Now, Christopher Caldwell, I'm guessing here. and I admit this and you're down there and probably have talked to many more people than I have, that the worst nightmare of the Republicans right now is not an Al Gore presidency, but a headline sometime in the next two or three days, Gore now leading in Florida.

CHRISTOPHER CALDWELL, "THE WEEKLY STANDARD": Yes, and I think that's why Bush's lawyers asked about 20 minutes ago, they asked the Florida Supreme Court to bar any sort of partial counts coming out of individual counties, which makes a lot of sense since I don't think the Bush people want the canvassing boards in the Gore counties to have an idea of how many votes they have to make up.

GREENFIELD: But you see, in a political sense, Christopher, it seems to me that's a real problem for Bush because up to now my own sense is they've been working the sore loser angle pretty well. They keep talking about all the counts that have show them leading but if they are seen in the position of demanding that nobody count ballots that the Supreme Court of Florida has said be counted, doesn't that make their position a little bit weaker than it has been?

CALDWELL: A little bit weaker? I think this is a crushing blow for the Bush side and much more serious than it's been taken thus far. I can see a clear road from here to the White House for Al Gore.

GREENFIELD: Please describe it for me.

CALDWELL: All right. The Florida Supreme Court's decision implicated very few of the federal statutes the interpretation of which the U.S. Supreme Court had objected to in vacating the Florida court's decision last week. It may survive a Supreme Court challenge. If so, you get this recount and you get a Gore set of electors most likely.

The Republican legislative remedy, if it doesn't come through until after the 12th could be vulnerable to a U.S. Supreme Court challenge under exactly the same terms that the U.S. Supreme Court nullified Gore's requests. That is, it could find -- the Constitution holds that the legislature has a right to determine the manner in which electors are selected. It doesn't have the right to change the rules after the election, to go from popular vote to legislative vote. It could be in real trouble there.

GREENFIELD: Michelle Cottle, in -- conversely, has the Gore campaign not got itself into a position where it feels that in a political sense it is out of the sore loser, or at least potentially, out of the sore loser shadow that seems to have convinced most Americans that it was long past time for Al Gore to concede? In other words, does it give him a second chance with public opinion as well as their own party?

COTTLE: Well, all along what people were saying was that what Al Gore needed with these court challenges was a really clear win. And he got this today. This was huge. Not only are they calling for the recounts that Gore had asked for, they're calling for them all over Florida. And it's looking like what they want is what the Gore campaign has been saying all along that it wants, which is every vote to be counted and just to kind of be sure once and for all who won this.

And it's very hard for the Bush people to come out and say why this is a bad thing, I mean, in terms of kind of, well, no, we don't want the votes to be counted. But, you know, this is getting really, really tense here, so...

GREENFIELD: I can't imagine Washington being tense. But, Christopher, we're down to our final minute. So give us -- take us, give us a temperature-taking from the Republican, or conservative, side of things.

All along since November 7th, it seems the Republicans -- and we've talked about this -- have been in far greater sense of indignation that unfair things were being done by the Gore campaign. If they were angry before this decision, where is the Republican base right now, do you suppose?

CALDWELL: Oh, I think they are just as fired up, if not more so. But I think the country is also closer to the Republicans on this issue. I think muddying it up, even should Gore wind up on top, seeing it into the Congress and Senate, I think that will be a political liability for the Gore camp more than for the Bush camp.

GREENFIELD: OK, Michelle Cottle of "The New Republic" and Christopher Caldwell of "The Weekly Standard," I thought I was going to be saying sayonara to you folks, but I have a feeling, you know, we may be singing the "12 Days of Christmas" on one of these special reports.

And I will be back with some final, or perhaps not-so final, thoughts in just a moment.


GREENFIELD: Finally -- you know it's time folks like me stop using that word at the end of these programs: final words, final thoughts. The fact is, there is as of yet no way to know what the final act is in this drama or melodrama or tragedy or farce. In fact, it's a little like all those reassuring words we heard back during the Vietnam era: The end is in sight. It's only a matter of days. There's light at the end of the tunnel.

You know, so far every prospect of finality has proven false. And today, when most of us were assuming we would see the endgame, we found ourselves instead contemplating a struggle that could well extend beyond the new year. It's like that new age adage, every time a door closes, another door opens. Those are supposed to be words of comfort. They don't really sound all that comforting tonight.

And that is it for our special report on election 2000: "The Florida Vote."

I'm Jeff Greenfield.

"THE SPIN ROOM" is ready to rumble.



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