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Special Event

Supreme Court Hears Bush Challenge to Manual Recounts

Aired December 11, 2000 - 4:00 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(BEGIN VIDEO CLIP)

THEODORE OLSON, BUSH CAMPAIGN ATTORNEY: This is very much a federal issue. What happens in Florida affects people all over the United States.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

DAVID BOIES, GORE CAMPAIGN ATTORNEY: I think that while it's an uphill battle with respect to somebody that has a point of view, I think they will make an effort to listen to the arguments and make a decision based on the arguments.

(END VIDEO CLIP)

STEPHEN FRAZIER, CNN ANCHOR: High drama in the highest court in the land. Lawyers for Al Gore and George W. Bush head back to the United States Supreme Court over what could be the final battle in the fight for the Oval Office.

NATALIE ALLEN, CNN ANCHOR: Outside the Supreme Court, protesters from both sides make their voices heard.

FRAZIER: And in Florida, the legislature, dominated by Republicans, leaves nothing to chance. Lawmakers move forward with their own plans on settling this dispute.

Good afternoon, everyone. From CNN Center in Atlanta, I'm Stephen Frazier.

ALLEN: And hello to you. I'm Natalie Allen.

We continue with our special coverage of the disputed presidential election. Well, this day could be a pivotal one for Al Gore and George W. Bush in their battle for the presidency. It seems like every day has been pivotal.

Checking today's developments, however, the latest legal showdown took place earlier today before the U.S. Supreme Court. Justices heard oral arguments for an hour and a half.

At issue: whether a hand count of thousands of ballots in Florida can resume. After the hearing, the court released an audiotape of the proceedings. Of course, there's no way to know when a decision will come down.

And that makes Bob Franken's job a little tougher there; he's at the United States Supreme Court on pins and needles with a lot of other people. He can tell us more about the arguments today -- Bob.

BOB FRANKEN, CNN CORRESPONDENT: So this is pins and needles. The fact is that the justices are expected to act quickly: never have acted on the same day, but this is not your typical kind of case. What the arguments seem to center around were the possibilities: Were the justices going to do, as there was some indication they would do when they granted the stay in Florida, are they going to rule for the Bush campaign that the Florida state Supreme Court was inappropriately acting and the recount should be stopped? That of course would probably mean that George W. Bush would win the presidency. Or were they going to rule in favor of the Gore campaign lawyers that the recount should resume and let the chips fall where they may, which would take us into what we now all call unchartered territory?

But there was a third possibility -- there is a third possibility, and that is one where they remand. Remember that word. That they send it back to Florida with instructions to in fact have a recount, a recount that would, in fact, be under their instructions to make sure that it met their standard of equality. That is to say that it was done the same way in every part of the state, since that's been main complaint of the Bush campaign attorneys -- that it has not been done that way and therefore violated the equal protection clause of the Constitution, the 14th Amendment

There seemed to be a lot of time spent on that discussion. There was one exchange, for instance, between Associate Justice David Souter and the Gore campaign lawyer David Boies.

(BEGIN VIDEO CLIP)

JUSTICE DAVID SOUTER: We can't send this thing back for more fact-finding. If we respond to this issue -- and we believe that the issue is at least sufficiently raised to require a response -- we've got to make the assumption, I think at this stage, that there may be such variation. And I think we would have a responsibility to tell the Florida courts what to do about it. On that assumption, what would you tell them to do about it?

BOIES: Well, I think that's a very hard question.

SOUTER: You'd tell them to count every vote.

(LAUGHTER)

BOIES: Your Honor...

SOUTER: You'd tell them to count every vote, Mr. Boies...

BOIES: I would tell them to count every vote.

(LAUGHTER)

SOUTER: Let me ask you...

(END VIDEO CLIP)

FRANKEN: A very hard question indeed. The justices made it clear that it presented quite a dilemma to them, but a more fundamental question, of course, is whether this even should be heard in the federal courts, whether this is a federal matter, a violation somehow in Florida of federal law or the U.S. Constitution.

It preoccupied any number of the justices who peppered questions to the Gore -- excuse me, the Bush lawyer Ted Olson.

(BEGIN VIDEO CLIP)

OLSON: There's a specific grant of authority to the circuit courts. There's no reference to appellate jurisdiction.

It may not be the most powerful argument we bring to this court.

JUSTICE ANTHONY KENNEDY: I think that's right.

(LAUGHTER)

OLSON: Because notwithstanding -- notwithstanding, well, the fact is that the Constitution may have been invoked.

KENNEDY: Well, this is serious because it indicates how unmoored, untethered the legislature is from the Constitution of its own state, and it makes every state law issue a federal question.

Can you use this theory and say that it creates some sort of presumption of validity that allows us to see whether this court or the executive has gone too far? Is that what you're arguing?

(END VIDEO CLIP)

FRANKEN: And of course, Natalie, you asked the question, when could we expect a ruling by the justices. The only thing to point out is that there is that deadline tomorrow: not cast in concrete apparently, but a deadline for the certification of the ballots and the electoral choices in Florida.

The justices historically have been known on very, very infrequent occasion to act after one day, and to use a not so legal term here, "Time's awastin'."

ALLEN: Right. And Bob, we know that the justices can play devil's advocate and look for weaknesses on both sides, but was there any way to tell how the flexible middle might be leaning as far as the justices go?

FRANKEN: Well, the flexible middle asked a lot of questions about the federal jurisdiction, whether this belongs here, but I think the important thing to remember is that you're absolutely right about one's inability to pin down whether the questions in fact reflect what is going to be an ultimate conclusion.

The closest we've come to that is -- was the decision to actually provide a stay in Florida. That was, of course, what was decided on Friday -- excuse me, on Saturday. And that is a reflection of the fact that the justices, five of them, the majority, thought there was, to quote Antonin Scalia, "a substantial probability" that they would rule in favor of the Bush campaign lawyers.

Now, of course, we've had the arguments today, and now we'll have to find out whether those argument really swung votes one way or the another.

ALLEN: All right. We'll be in close contact with you. Bob Franken, outside the United States Supreme Court. Still noisy out there as well.

Now here's Stephen.

FRAZIER: More perspective now Natalie on how today's hearing went and what could lie ahead, so let's check in with CNN legal analyst Roger Cossack. Roger, thanks for joining us.

ROGER COSSACK, CNN LEGAL ANALYST: All right, Stephen.

FRAZIER: I was struck, as was Bob Franken in his earlier report there, by how much discussion there was of the fact that the people conducting these hand recounts were employing different standards for determining what makes a vote, county by county, and that was I guess an issue because it might violate the Constitution, the Equal Protection Clause.

But Roger, help us non-lawyers, as a practical matter, all across the United States counties use different standards. So why is that now an issue before this court?

COSSACK: Well, because this is now -- we're talking only about Florida, and perhaps the way hand counts are done across the United States at some time should be revisited. But right now, we're just talking about counting the counties within Florida, and apparently there's 67. And what the justices seem to be concerned about was that there could be 67 different standards. In fact, one question to David Boies was, in fact, county to county, maybe even table to table.

But remember, the Florida legislature says that you determine these votes by the intent of the voter. And I suppose that what is meant, therefore, is that the canvassing boards set up reasonable standards by which to try and determine the intent of the voter. And under the contest statute, there would be a judge, after all is said and done, that would review the standards to see if they were reasonable.

I'm not sure that consistency is really the problem here, although I must tell you that the justices seem to be quite concerned with the fact that there was inconsistency among the standards.

FRAZIER: I noticed that. I also noticed that they asked an awful of questions seeking some kind of remedy now. If this were to be sent back, they kept asking the lawyers, what standard would you recommend the counters use?

What do you make of that, that they kept asking about what to do next?

COSSACK: Well, I think what they were trying to do was highlight the difficulty in trying to come up with a consistent standard. They all agreed that the legislature has said the standard is the intent of the voters, and then they started talking about substandards. And I think the problem was is they kept asking, David Boies in particular, what would you -- what standard would you come up with? And he was very smart. I mean, he understood that that was kind of a trap, because no matter what standard you come up with, it's a standard that someone else could criticize.

OK, I'm going to be one chad, two chads, dimpled chads, whatever they may be.

So the notion is, is that it's very difficult. And I think the answer is that the standard is one that is reasonable under the circumstances and consistently used throughout. Whatever canvassing board is utilizing it, it's consistently used. The Palm Beach standard, for example, was one that was looked upon as a good standard. It doesn't have to be the same one for all, but I think it has to be consistent.

And I think the difficulty of course is trying to come up with one standard for different counties.

FRAZIER: Well, Roger, as you listen to those questions from the justices, did you get the sense that they really cared what the answer was or were they saying with their questions that it's impossible to create a standard that's uniform?

COSSACK: I think there was some rhetorical questioning going on there, the notion that it may be impossible at this time to set up one, because I think that -- remember, the Florida legislature has said the standard is to find out the intent of the voter. Well, how do you find out the intent of the voter? There are canvassing boards in local areas that we've, in a sense of a grassroots way, that we would hope would establish something that was consistent -- then be reviewed some time later on by a judge who would say it's good or reasonable or not. Look, if you come up with a standard that says, you know: I hold it up to the sky and I see whether or not sunshine falls on it, and I know that that's a message from above, you know, that's a little silly.

But if you could up with some consistency that says: We're going to count chads that are punched and not count ones that are dimpled, that we're going to stay that way all the way through. then that would be -- I would suppose -- reasonable. And if they had stayed that way with it and didn't change in the middle, that might pass constitutional muster.

FRAZIER: Roger Cossack, thanks for listening so closely during the arguments. Thanks for those insights today.

COSSACK: All right.

FRAZIER: Natalie.

ALLEN: Well, we continue to keep a close watch on both the Bush and Gore campaigns. CNN Patty Davis is keeping track of what's going on with the Gore campaign. She joins us from Washington -- Patty.

PATTY DAVIS, CNN CORRESPONDENT: Natalie, the vice president is said to be determined, resolute and resilient, as he awaits the U.S. Supreme Court ruling. He -- his running mate Joe Lieberman did an interview with a Connecticut radio station today, saying that if the Supreme Court does rule against the Gore campaign, that is probably the end of it, he said. That was a quote.

Aides say that Gore listened to the Supreme Court arguments, as we did all did, on television after they were over with. He was also briefed by William Daley, his campaign chairman. And, in fact, I just saw William Daley leave here at the Naval Observatory, where Gore is right now at his home. He was also briefed by Warren Christopher. The two of them were in the courtroom, along with three of Gore's four children, listening to those arguments. Gore spokesman, Mark Fabiani, said that he was optimistic about those arguments.

The campaign has expressed confidence throughout this entire process here. He said -- quote -- "I didn't hear any compelling reason why vote counting should stop. The best way to resolve this election dispute is count the votes, see who is ahead at that point, and then call it a day" -- Natalie.

ALLEN: Patty, and if Al Gore were in the position he had to decide whether to continue, who would he turn to make that decision?

DAVIS: He has been -- he has been closeted pretty much inside his home, his official residence here in Washington, with his closest -- his family, closest associates -- Bill Daley, of course -- as well as the Liebermans. And he would most likely turn to them as he was trying to make that very difficult decision. Of course, there might be some significant pressure on him to do that, to concede, if in fact -- by Democrats -- if in fact he does lose before the U.S. Supreme Court. Where else does he turn?

Natalie.

ALLEN: Patty Davis. Thank you, Patty -- now to Stephen.

FRAZIER: And the latest from the Bush campaign. So let's turn now to CNN national correspondent Tony Clark, who is growing barnacles there staying in Austin, Texas as long as he has.

Tony, good to see you again.

(CROSSTALK)

FRAZIER: Go ahead. TONY CLARK, CNN CORRESPONDENT: Yes?

FRAZIER: You go ahead.

CLARK: I was going to say, the governor is over at the mansion right now, where, usually when he's at the mansion in the afternoon, that often means he is working on transition issues. You know, this morning, he had his security briefing from the CIA, his intelligence briefing. He had a telephone call -- conference call -- with Dick Cheney, his running mate, and Andy Card, his prospective chief of staff.

And usually, they talk about transition as well. And he also talked to his legal team before the Supreme Court argument. But then he went to state capital. And he was at the state capital office throughout the Supreme Court hearing this morning. When he left the capital, Governor Bush said he had been briefed by his legal team. He said they are cautiously optimistic, and added that, if they are cautiously optimistic, so is he.

But unlike so many of us around the country who stay glued to the TV set during the replay of the audio from the Supreme Court hearing, the governor went over to the gym over at the University of Texas and worked out for awhile. He said that his mood is -- he described himself as being pretty calm in life. Aides say that he is very patient. Aides also say that he hasn't worked on a victory statement at this point, that he is just waiting.

And, in fact, he himself said the other day that the one thing that he has really learned during all this ballot battle is to be patient -- Stephen.

FRAZIER: I guess, Tony, that tells you an awful lot about what kind of a leader he might make then. With all this stress elsewhere, he could go to the gym.

And we lost Tony Clark. I guess that's the end of our signal from Austin.

ALLEN: He got digitized on us. Well, still ahead here...

FRAZIER: Got to put some more quarters in the machine.

ALLEN: Yes, we need to do that.

We'll talk techno-stocks. It's been a while. Bargain-hunters swooped in today to pick up cheap technology stocks in the market. Allan Chernoff will give us a report from New York -- coming next.

FRAZIER: And then we're going to head south to Tallahassee once again to see what's going on with the legislature there and the Florida Supreme Court. We'll have live reports from both of those -- coming up.

(COMMERCIAL BREAK)

FRAZIER: Well, the markets were affected by news today. Let's find out how.

ALLEN: Allan Chernoff joins us live now from the New York Stock Exchange with a look at today's stock-market action -- Allan, hello.

ALLAN CHERNOFF, CNN CORRESPONDENT: I'm Allan Chernoff on the floor of the New York Stock Exchange.

And, today, we did have investors buying into beaten-down technology shares, and also some of the financial stocks. The Nasdaq composite was the big beneficiary, climbing more than 93 points today. Chip stocks helped to push the index much higher. In fact, Intel climbed 3 1/2, saying it has built the world's smallest and fastest transistor. Other semiconductors followed, including Applied Materials and Broadcom.

And Microsoft added more than three points: gains from Intel and Microsoft, of course, helping the Dow industrials, since those two companies are in the Dow. The blue-chip index closed modestly higher, up nearly 13 points at 10725. With the next Fed policy meeting just eight days away, interest-sensitive financial stocks one bright spot: Many on Wall Street are optimistic that the Fed will soon lower interest rates -- Dow component J.P. Morgan, American Express and Citigroup all gaining there -- brokerages also higher -- Lehman Brothers and Goldman Sachs sharply higher on the Big Board.

For a closer look at what stocks moved today, have a look at cnnfn.com Click on "STREET SWEEP" and look at the "STREET SWEEP" "Shakers" list.

And we'll have much more CNN special coverage of the Supreme Court hearing in just a moment.

(COMMERCIAL BREAK)

ALLEN: And now we want to tell you about what's going on in Florida today. Florida lawmakers convened to talk about their state's presidential electors. Reports say the Republican-led legislature might delay a decision on appointing electors, presumably loyal to George W. Bush, until the Supreme Court rules on Florida's disputed ballots.

CNN's Martin Savidge is in Tallahassee with all the news from there -- Martin.

MARTIN SAVIDGE, CNN CORRESPONDENT: Natalie, here we are in the state of Florida, which these days may more appropriately be called the state of limbo, which is exactly where we are, as like you and the rest of the nation, they are anticipating some sort of ruling from the U.S. Supreme Court.

That's not to say that there is nothing going on here in Tallahassee. There actually has been action on two fronts.

Hearken back to last week -- it seems like a decade ago almost -- you may remember the cases that the Democrats brought against two counties where they were trying to get thousands of absentee ballots thrown out. Today, they were working on their appeals in that particular process.

And then there is the Florida legislature, which also has once again resumed the process of selecting a slate of 25 electors in favor of George W. Bush.

Let's for the moment right now with the Florida legislature and turn to CNN's Mike Boettcher, who's been following developments over there today.

Good afternoon to you, Mike.

MIKE BOETTCHER, CNN CORRESPONDENT: Well, Martin, both the Senate and the House ethics and elections committee within the hour have voted to endorse that resolution, concurrent resolution of both houses, which would name the electors for George W. Bush.

Now, the vote in the Senate was 4-3, along party lines, but in the house it was 5-2. Dwight Stansel, a Democrat from a district that voted for George W. Bush, voted with the Republicans. So, that vote was 5-2.

Now, this is the plan. Tomorrow, it will go to a full debate of the House, then on Wednesday, into the Senate where it will be considered and likely approved by the striking Republican majority there, as they have a striking majority in the House as well. The big question here right now is will the two houses of the Florida legislature vote to hold off until the Supreme Court acts?

And with me now is Van Poole, a former state senator and representative on the Republican side of the aisle here in Florida. You've been talking to the movers and shakers in the majority, the Republicans. Will they hold off or do they want to move ahead with this?

VAN POOLE, FORMER FLORIDA STATE SENATOR: Well, Mike, they feel like they have to move ahead because of the situation with the number of lawsuits that are still out there that are unresolved, and so regardless of the Supreme Court decision at this point, they must move forward. And that's why tomorrow they'll take up in the House the resolution, and then the next day the Senate.

BOETTCHER: Why wouldn't they wait? It seems like it would be politically easier for them to wait. What's driving them?

POOLE: Well, yes, but here again, their experts, their attorneys as well as the constitutional lawyers that they brought in here said that under Article II they have an obligation to do this and they can't abrogate that responsibility.

BOETTCHER: So they're going to move ahead no matter what then?

POOLE: Right.

BOETTCHER: Until there's -- is finality the keyword?

POOLE: That's -- exactly. It's got to be finality, and finality is a big area, because you have approximately 50 lawsuits that are still pending out there.

And they don't want to -- and they don't want to disenfranchise the 6 million voters.

BOETTCHER: Well, Van, thank you very much. The Democrats have argued long and hard in the legislature that there is a slate already out there, the one certified on the 14th, that the legislatures shouldn't be meeting, and they are strongly opposed to this. But they are so outnumbered here in the Florida House and Senate it's really falling on deaf ears. This is moving on. It was endorsed, as we said. It will be moved onto the full House tomorrow, then the full Senate for the final vote on Wednesday.

That is the schedule right now -- Marty.

SAVIDGE: Mike Boettcher, thank you very much.

Now we turn to the appeals of the two cases from Martin and Seminole counties, with thousands of absentee ballots at stake.

CNN's Susan Candiotti has been following developments there. She joins us now with an update.

Hello, Susan.

SUSAN CANDIOTTI, CNN CORRESPONDENT: Hello, Martin. We do know the seven Florida Supreme Court justices are at work this day. We don't know if they listened to the playback of those oral arguments from the U.S. Supreme Court, but we do know they have a lot of reading to do, because this is the stack of documents submitted today, part of that appeal involving Martin and Seminole counties. You've got the appellate briefs, you've got the respondents, you've got something from the secretary of state and attorneys representing Governor Bush. I'm going to hand off this big stack to my colleague Mike Miller so that I can continue to tell you more about this appeal.

Now, in a nutshell you will recall that the appellants want to reverse a Florida -- a lower-court ruling and throw out approximately 25,000 absentee ballots, ballots on which Republicans were allowed to make numerical adjustments. Now, Republicans say that these ballots should be thrown out because a rather -- or rather Democrats argue that these ballots should be thrown out, although we must note that Vice President Gore is not a party to this particular appeal, though if he wins the appeal he would certainly benefit from it.

Now, again, the argument on behalf of the (UNINTELLIGIBLE) is that by accepting these absentee ballots, that's a violation of equal protection under Florida laws, because, these appellants argue, the Republican were given an unfair advantage by allowing to make those adjustments to the absentee ballots. That's why they want them thrown out.

Republicans are arguing in their appellate brief that there was no unfair treatment, that there was no intentional wrongdoing on the part of the supervisor of elections, who were Republicans in both these counties, and that more importantly the sanctity of the ballot itself was not affected, that these voters should not be disenfranchised by throwing out all those absentee ballots.

What happens next? Well, that's up to the Florida Supreme Court. After reading these briefs, it could agree to set oral arguments or decide to reject this appeal -- Martin.

SAVIDGE: All right, Susan, one real quick question before you go regarding the U.S. Supreme Court. If in fact a ruling comes down and says that a recount should resume, how quickly could the process begin here in the state of Florida?

CANDIOTTI: Well, according to the election's officials here in Leon County anyway, they believe they could get things started right away. It is their understanding, their estimation that they only have about five hours of work more to go in counting those 9,000 undervotes from Miami-Dade County.

Democrats also suggest that it would only take another 15 to 20 hours to complete the count of all the undervotes throughout the rest of Florida's counties.

There is no word, of course, on how quickly it could actually begin, but the authorities here think it won't take that much longer, if they win the appeal.

SAVIDGE: And that remains to be seen. Susan Candiotti, thank you very much.

So here it is: Florida finds itself in a very ironic position, waiting to hear from the U.S. Supreme Court -- from Washington, D.C. essentially -- the outcome of an election that took place in their own state.

Let's go back to Stephen and Natalie in Atlanta.

FRAZIER: Martin, thank you. We are going to take a short break here. When we come back, we'll walk you through the developments, as Martin said, that happened at the U.S. Supreme Court today.

ALLEN: Stay with us. Our election law analyst, Ken Gross, will give us some insight into how things played out for each side in front of the Supreme Court. We're right back.

(COMMERCIAL BREAK)

ALLEN: Well, joining us now from Washington, CNN election law analyst Ken Gross, who I saw on CNN very late last night. So, Ken, I don't know if you spent the night at the Washington bureau, but thanks for being back here today.

KENNETH GROSS, CNN ELECTION LAW ANALYST: I feel like it.

ALLEN: Well, I am sure you were riveted this morning to the Supreme Court.

GROSS: I was. ALLEN: So let's talk about that and the two questions that they seemed to focus on, and first is the federal question. What struck out in your mind as far as the arguments about whether the U.S. Supreme Court should be involved in this?

GROSS: Well, I think that, you know, we have listened with special care to the questions of Justices Kennedy and O'Connor, because they are regarded as sort of the swing votes, and the federal question came up in their questioning as much as anybody else's, perhaps even more, and I think that they both are convinced at some level there is a federal question here.

Justice O'Connor said, don't we have to give special deference to the state legislature because of the federal question? And Justice Kennedy kept saying, well, if the legislature can't change the law, then how is it that the Supreme Court can change the law in -- after the date of the election? And that also is another reference to the federal question. So both of them certainly are concerned about the fact that there is a federal question and addressed it.

ALLEN: What if this court comes back and says they don't want to address this and make a ruling? What would happen back in Florida at that point?

GROSS: Well, that would be music to Vice President Gore's ears. I mean, his whole case is premised in large part on the idea that there is no federal question. And in fact, that would leave the final result with the Florida Supreme Court, which of course, went the way of Vice President Gore. And that would start the counting again presumably and then he would have to wait to see how the count goes. Just because they start counting, doesn't mean necessarily he will win.

There is also another federal question. There is this equal protection question, this question about whether every voter in Florida has been treated equally because of the counting of the ballots in one county, counting dimples and the other one not counting dimples, and I heard many of the justices concerned about that issue as well, which could result in sending it back to the state of Florida for more counting under a uniform standard.

ALLEN: Did it sound like the justices were willing to give, pronounce the standard for all of Florida counters to use?

GROSS: It's possible or, you know, direct that the circuit court who -- Judge Lewis has that now, direct that the circuit court set a specific standard, not just the will or the intent of the voter and leave it up to local judges in each county to make the decision. That would be one way in which they possibly could get a vote that wouldn't show a great division in the court, which we are seeing 5-4, based on the state granting and not a lot of movement from that based on the questioning of the justices.

Perhaps that's one way in which we could have some, maybe not a unanimous opinion, but perhaps seven justices. And I think Chief Justice Rehnquist would prefer a result like that as the chief justice of the court, if there was a way in which several justices could all come together. Now, that wouldn't resolve it. That wouldn't end it. But it would say, send it back with some sort of uniform standard. It's a possibility, I heard some back and forth among the justices, perhaps Justice Souter and Breyer bringing along Justices Kennedy and O'Connor on that.

ALLEN: All right, well, we wait and wait. Ken Gross, you can't go home yet, because we hear -- could hear something later today. Thanks, Ken.

GROSS: Bye, Natalie.

ALLEN: Bye-bye.

FRAZIER: We also get word that we are going to hear something from Tallahassee pretty soon. As Mike Boettcher mentioned a moment ago, the legislature in Tallahassee has been active. We hear now that the speaker of the Florida House, Tom Feeney is going to speak publicly in about five minutes. We're going to take a short break and come back after that.

ALLEN: We'll be right back.

(COMMERCIAL BREAK)

FRAZIER: All right, we take you now to Tallahassee so that speaker of the Florida House, Tom Feeney can speak about the actions they have undertaken there to go ahead and create possibly a new slate of electors. Let's listen in.

TOM FEENEY (R), FLORIDA HOUSE SPEAKER: I've been asked by a number of you to comment on, you know, our time frame, and I thought I'd come down, mostly just to take a few questions.

I will share with you, you know, briefly that our intent right now would be to move forward under the schedule and the rule that we have adopted unanimously in the Florida House, which would call us into session at 10 tomorrow morning.

It would be my great hope that we are given some specific advice from the United States Supreme Court, based on their oral arguments today. It would be rather extraordinary to have such a quick decision from the United States Supreme Court, but these are extraordinary times, and I know that they are well-aware of the deadlines.

My intention would be that if we haven't heard anything as of 10 tomorrow morning, that we would proceed as planned; that if we did hear something in the middle of our session, my hope would be to take a short recess so that I could, if possible, get my hands on a copy of whatever decision was rendered. And then, I've tried to advise our attorneys, Professor Ilhig (ph) and Professor Freed (ph), that we would like to have them available so that I could get their advice and input.

But at this point, you know, our preference would be to move ahead. I do want to thank again at this time the House select committee, which performed its duties very admirably today. A lot of people were watching what was happening in Washington at the Supreme Court, but I can tell you that we had testimony both from proponents of the legislature acting to preserve their electors, some of the experts invited at the request of the Democrats who suggested that that wasn't necessary or appropriate. We had quite a bit of public testimony.

And when it was all said and done, we had a 5-2 vote to proceed, which I'm very, very pleased with.

I think there's an opportunity, the more we have discussion about what our absolute constitutional duties are, one by one, we're starting to pick up Democratic members of the Florida House.

And while I don't hope that this discussion continues for another month or two, my guess is if it did, we'd pick up even more than the two or three votes that we feel we have now.

So, with that, I'd be happy to take a few questions.

QUESTION: Speaker, what would the United States Supreme Court have to say to you to stop the certification process you're about to undertake tomorrow?

FEENEY: Well, I obviously can't deal with all the hypotheticals. There's one theory that some of our advisers have, which is that given the importance of the time constraints here, that they could act very quickly, and they could give us a decision either upholding or reversing or vacating the decision of the Florida Supreme Court, but they could not -- they might not say anything further, except that the opinion is to follow.

In that instance, I don't think I would have been given a whole lot of advice, and absent they actually tell us to stop, I think we would proceed.

So, you know, I would tell you that it would have to be fairly specific that they were coming to a final determination of all contests and controversies, either on behalf of Vice President Gore's efforts or on behalf of Governor Bush's efforts, for me to be convinced that the appropriate thing to do would be to stop.

QUESTION: If they told you to stop while they resumed counting the rest of these votes, would you obey that order?

FEENEY: Absolutely. If the United States Supreme Court gives us specific instructions, there's never been a question. As a matter of fact, in our brief, page 3, we state very clearly that whatever the United States Supreme Court says is our role under Article II, that we will absolutely abide by their decision.

Yes, sir?

QUESTION: Would you pull back even with the Martin and Seminole County cases still active in the appellate process? FEENEY: Well, again, my answer that I just gave suggested that we would want the -- before I would just stop, we would want the United States Supreme Court to finally determine, this is the language of Title 3, all controversies and contests.

And I think that those would amount to controversies. So as long as there were any controversy or contest still pending -- many of them, by the way, are not before the United States Supreme Court, as I understand it -- our intention would be to proceed under the special rule that's been unanimously adopted by all 120 members of the House, or at least the 118 of us that were present the other day.

QUESTION: If the U.S. Supreme Court upheld the Florida Supreme Court's ruling and basically allowed the recount to continue, would that not send a message to this legislative body?

FEENEY: Well, it may send a message. I don't know that the message would be that we didn't have the authority under Article II to act unless they said so. And at that point, I'd probably get with my constitutional advisers, who are better prepared than I to deal with those sorts of issues when they occur.

But, you know, if they say that the Florida Supreme Court has acted perfectly appropriately, and they ratify that decision, then we'd probably have to take a short break and think about where we were and how to proceed at that point.

QUESTION: What is the value in moving ahead? Why not just wait until the court has decided?

FEENEY: Well, you know, again, for at least -- I think we're going on two weeks now -- the best advice that we could get is that (a) we have a duty to act under the United States Constitution and (b) prudence requires us to act sooner rather than later.

And the bottom line is that if the United States Supreme Court overturns any action that we undertake, you know, that would be I think a final determination of all of the controversy surrounding this case. But unless and until the United States Supreme Court guarantees us that Florida's electors are protected, then I think it is our duty, based on the best advice we could get, to move forward. And it's been suggested that we should act sooner rather than later.

QUESTION: You said you thought you might have three Democrats who switch over. You've got Dwight Stansel and you've got Will Kendrick. Could you identify who else might switch over? And are you fearful of which Republicans might cross?

FEENEY: No. I'm not going to out anybody. I would just suggest that I think that there are a number of Democrats that, given their druthers, would rather not be here, but if they were completely free to vote their conscience, I think would be prepared to vote with us.

I should tell you that I haven't asked personally any Democrat to vote with us on this issue. This is not something that I've suggested that, you know, we would be asking members to do if they felt (a) it wasn't their duty; and (b) it wasn't the right thing on their conscience to do; and (c) wasn't something they could go back and explain to their voters.

And I'm delighted by Representative Stansel, I think he's a man of huge principle that I admire, I'm delighted by, you know, several others that told me that, if they have to vote, that they're considering voting to uphold what they believe is their duty under Article II. This is not an easy vote for any of us, but it is particularly not easy for somebody in that situation.

QUESTION: Given the fact that the Senate is not going to vote at the earliest until the 13th, you've already lost your safe harbor. Under what rationale, then, does the House need to act sooner? I don't understand your explanation to the earlier question. Once you lose the safe harbor, you've lost it, it doesn't matter whether the House votes on the 13th, the 14th or the 15th.

FEENEY: Well, we disagree with your suggestion about the safe harbor. The safe harbor, according to the best constitutional advice we've been able to get, relates to what happens if you select your electors by the election process. What Title III, Section 2 says is that if you have an election contest which fails to select your electors for you, which is the situation we're in, then the legislature can pick them. And we think that that is in essence a separate safe harbor.

We think at this point we would be selecting electors and under Title III that federal law guarantees us Congress would count. So we would have incontestable and incontrovertible electors at that point. And we would have guaranteed the people of Florida that we'll be represented in the Electoral College process.

FRAZIER: We have been listening to the comments of the speaker of the Florida House, Tom Feeney, who is important to us not only because he has the leadership post, but because he has assumed a leadership roll in the move to create a new slate of electors to vote in this presidential election. He was explaining the statutory and constitutional guidelines that Florida lawmakers have been using in their efforts to go ahead and pick a new slate following their duty to act under the Constitution, and following what he has been described as advice that said prudence dictates that the legislature acts sooner rather than later.

For a little bit more on this, let's turn now to Martin Savidge, who's been listening closely and who is a little bit closer to the action in Tallahassee -- Martin.

SAVIDGE: Well, Stephen, essentially what we heard from Tom Feeney was -- at least when it comes to the House here at the Florida legislature -- it's steady as she goes. They don't believe that anything that they have heard or haven't heard from the U.S. Supreme Court has changed their plans to go ahead and select a slate of electors.

It should be pointed out that they are not necessarily going to pick a new slate, meaning that there will be new names here and new faces. In fact, what is expected is that that they will simply affirm the same list of electors that they believe was correctly chosen by the people of Florida on the general election of November 7 and then certified by the state of Florida -- in other words, the electors in favor of George W. Bush.

Incidentally, if you are wondering: Who these electors? What do they look like? You were just looking at one of the electors. Tom Feeney is one of those who is an elector, as is the president of the Florida Senate here. That is John McKay. So they are both actively involved in sort of nominating themselves here in this process. One of things also to keep in mind is that the House side has always been very aggressive when it came to calling the special legislature and also moving forward on this entire process.

The House has been much more aggressive in this particular matter than the Senate has. And so it's possible that if there is going to be any delay to this process, as they await for some definitive ruling from the U.S. Supreme Court, then it would be coming from the Senate. The Senate is really not anxious to rule on this matter. It is very contentious in the state of Florida. And they have to continue living here long after all of this is settled one way or another -- Stephen.

FRAZIER: Martin, thank you for making that distinction when you say they are going to affirm the electors already certified. That is to protect them from being replaced should all of the activities in the Supreme Court and Florida Supreme Court result in a selection -- in a creation of a slate of Gore electors. Is that right?

SAVIDGE: Well, that's right. But then, of course, then you have got a whole can of worms there, because you have got essentially two slates of electors here. And that opens up the debate of which one is the proper one to represent the state of Florida in the Electoral College.

FRAZIER: You better stick around and help clear that up, if that should happen. Martin Savidge, thank you very much.

More on our coverage of election 2000 after this short break.

(COMMERCIAL BREAK)

ALLEN: The big players coming up on INSIDE POLITICS. Another big player, in our minds at least, CNN's Bob Franken. He's posted outside the United States Supreme Court with the latest on developments from there today -- Bob.

BOB FRANKEN, CNN CORRESPONDENT: Well, the latest is, is that the justices now have this case. They are considering whether they want to follow the inclination they seem to feel when they put a stay on the recount in Florida. By a majority, they decided that there was a probability that the Bush campaign arguments would prevail and the recount would be over. If that is the case, of course, the election in all probability will be over, notwithstanding what we heard from the Florida House speaker just a moment ago.

Other possibilities exist however. Gore could somehow turn this around and the Gore campaign could win the -- the fight here before the Supreme Court, which would mean we'd continue into this unchartered territory that could include finally Congress deciding who would be elected president.

The third possibility that was discussed at length by the justices was some sort of recount with rules established by the U.S. Supreme Court which would come up with satisfying them, that they were equally applied across the state. Of course, the justices made it very clear they had absolutely no idea how they would do that, but that was certainly discussed -- Natalie.

ALLEN: All right, Bob Franken. Thanks, Bob.

FRAZIER: We need to find out who how all of these arguments in front of the Supreme Court are affecting the court of public opinion.

ALLEN: And we will do that by talking with CNN's Bill Schneider right after this.

(COMMERCIAL BREAK)

ALLEN: Two big questions to consider today: What are the options before the high court, and what would be the fallout of any particular verdict?

We want to turn to our senior political analyst Bill Schneider.

And Bill, we also our just told that Al Gore has left home to go to the White House and perhaps do some paperwork. How he could do any paperwork in times like this, that's amazing.

WILLIAM SCHNEIDER, CNN SENIOR POLITICAL ANALYST: Well, he's still the vice president.

ALLEN: That's absolutely true. We appreciate the fact that he's working on a workday.

SCHNEIDER: And he may have a final duty as vice president -- he presides over the Senate -- if it goes to Congress and will cast a vote over who becomes the next president if it goes that far.

ALLEN: Absolutely. It could be his biggest moment yet as vice president after so many years.

What about that option? And some were talking about that and whether this Supreme Court wanted to leave it up to Congress. Or did they feel like they had some sort of duty to the United States to keep this country from going to unchartered territory?

SCHNEIDER: I think the court recognizes just in the political situation that they have some responsibility to speak for the whole of the American people, to be the voice of the Constitution. That's my guess as to why they took this case, which they didn't have to take in the first place. They saw the confusion and chaos out there, they wanted to resolve it. And certainly, you ask what's the view of the court of public opinion. Public opinion wants closure. They want this case resolved.

They can live with either candidate as president, though I should point out that Bush has been gaining support and Gore has been losing it. But still, people want this case resolved and they look to the Supreme Court to do that.

ALLEN: That -- poll show the people would rather have the Supreme Court help make the decision rather than Congress. Do we know that?

SCHNEIDER: Rather than Congress, rather than the Florida Supreme Court, rather than the Florida legislature. The only institution that is well-positioned to bring this matter to a close, in the public's view -- that has the legitimacy to do that -- is the Supreme Court of the United States: not a politicians or a legislator.

ALLEN: And we may very well find that out today, as we've been saying. That could happen. What was -- what were your impressions listening today to the Supreme Court? What stood out in your mind as interesting questions posed by the justices?

SCHNEIDER: Well, the one -- the discussion that I think most people were interested in was the justices inquiring whether they could find a standard that could be uniformly opposed -- imposed on the state of Florida, which would enable the state to recount the ballot using one standard for the entire state.

Now, a lot people's -- caught their breath and said, oh, my god, they're going to send it back for a recount. Well, they could do that.

You see the problem with the Supreme Court is they had a 5-4 majority to stay the recount on Saturday. It's a very narrow majority and the opinions expressed were very political and very partisan. And the court would like to find greater unanimity on this issue.

Perhaps the only way they can do that is to send it back to Florida; say, recount all those ballots, but we have to do it with uniform standard so that every county counts them in exactly the same way.

If that's the case, fasten your seat belts, because then the legislature will probably affirm the Gore electors, the count could -- sorry, the Bush electors. The count could end up with a Gore slate of electors. Then both of them could go to Congress and Congress would have to make the final decision, with Gore presiding over the evenly divided Senate.

How about that!

ALLEN: How about that. Well, we'll leave it there, Bill. Thanks so much.

SCHNEIDER: Sure.

ALLEN: Nobody has to fasten their seat belt yet, but stay in your seats, because you never know when this is going to come down today.

FRAZIER: I'll keep mine strapped on.

ALLEN: If it happens today.

FRAZIER: It may indeed.

But that will do it for us on this special report on election 2000 and the Supreme Court. Thank you for joining us. I'm Stephen Frazier at CNN Center in Atlanta.

ALLEN: And I'm Natalie Allen. A special 90-minute INSIDE POLITICS is next.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com

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