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Bush Prevails in U.S. Supreme Court; Gore Campaign Studying Decision

Aired December 13, 2000 - 1:00 a.m. ET


ANNOUNCER: This is a CNN special report. The Supreme Court has spoken. The recount is off. But is there any way to restart it?


JAMES BAKER, OBSERVER FOR BUSH CAMPAIGN: I've just spoken to Governor Bush and Secretary Cheney. They are, of course, very pleased and gratified that seven justices of the United States Supreme Court agreed that there were constitutional problems with the recount ordered by the Florida Supreme Court.


ANNOUNCER: Al Gore will spend the night considering his options. Could Wednesday be the last day of Election 2000?

To our viewers in the U.S. and around the world, welcome to this CNN Election 2000 special report.

JOHN KING, CNN ANCHOR: Thank you for joining us. I'm John King reporting from Washington.

CATHERINE CALLAWAY, CNN ANCHOR: Hello, everyone. I'm Catherine Callaway at the CNN Center in Atlanta. This is a CNN Election 2000 special report, the Supreme Court decision.

Thirty-five days after Americans headed to the polls to elect a new president, a decision tonight by the nation's highest court may end five weeks of uncertainty over who will win the race for the White House. Here are the latest developments at this hour.

About three hours ago, the U.S. Supreme Court voted five to four to reverse the Florida Supreme Court's order for a manual ballot recount in Florida, all but closing the door on Al Gore's hope to become the 43rd president of the United States.

George Bush and Al Gore had muted reactions to the court's opinion. Bush adviser James Baker made a quick public statement in Florida. He said Bush and running mate Dick Cheney were, in his words, "gratified by the decision."

Al Gore got the news at the vice president's residence in Washington. A statement released by his adviser William Daley said Gore and running mate Joseph Lieberman are reviewing the Supreme Court ruling. Gore will, Daley said, address the court's decision tomorrow.

KING: Now for the very latest on this historic decision, we join CNN's senior Washington correspondent, Charles Bierbauer. He's been on a two-day vigil now outside the Supreme Court in Washington.

Charles, this historic decision late tonight. Give us the details.

CHARLES BIERBAUER, CNN CORRESPONDENT: Well, the vigil has ended. And perhaps that means the end of Vice President Gore's opportunities as well because the court was very strong in its decision, saying that the Florida Supreme Court had not deferred sufficiently to the Florida legislature, that it had violated federal constitutional issues, particularly the equal protection clause of the constitution when it said to count votes in different manners and different places, or as Justice Kennedy said during the arguments yesterday, even from table to table the votes were being counted differently.

And so the Supreme Court has reversed and remanded the decision of the Florida Supreme Court, which is to say that it could no longer continue with recounts down in Florida, at least not under the scheme that it had devised last week, and that it had to reconsider its order based on the ruling put forth this evening by the U.S. Supreme Court.

And that ruling says in part, "Because of the deadline for naming electors, which is provided in the constitution and in federal election laws," the ruling says, "because it is evident that any recount seeking to meet the December 12 date would be unconstitutional, we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed."

It would seem that within this order this evening, which represents a very split U.S. Supreme Court, there is the most narrow of opportunities for a further recount to be conducted. But the court said that it would have to be done with additional work, work which they may not be able to complete in terms of laying out a uniform accounting procedure for the state of Florida and putting in safeguards which do not now exist.

So those are the essential elements, the court divided five to four, the same five who granted a stay to halt the counting, the same five who are considered the more conservative parts of the court, Justices Rehnquist, the chief justice; along with Justices Scalia, Thomas, O'Connor, and Kennedy taking the position of the majority.

The four justices in the minority -- Justices Souter, Breyer, Ginsburg, and Stevens -- feeling that either this court should not have taken this case in the first place, that Florida should have been allowed to proceed, or in the cases of Justices Breyer in Souter, each suggesting that there was still a remedy that could be effected by the state of Florida. But, John, that is not the position of the majority.

KING: Charles, this a political debate that has divided the country now and divided the two campaigns, obviously, for more than a month. Seven justices agreed that the Florida Supreme Court's action was unconstitutional. But as you mentioned, that five-to-four split over the details here, do you recall a case -- obviously, we've never had one quite like this -- where the justices have been so open in airing their political differences in their opinions?

BIERBAUER: Well, this is an inescapably political issue. To say that they aired their political differences, they aired their ideological differences. That is to be sure.

One thing, which Chief Justice Rehnquist said in a concurring opinion, which was signed on to by Justices Scalia and Thomas, he said, "This inquiry does not imply a disrespect for state courts, but rather a respect for the constitutionally prescribed role of state legislatures."

George W. Bush's attorneys sought to find a federal case in this matter. And they brought it to the U.S. Supreme Court hoping that the court would see that there was an equal protection concern. And that's exactly what the majority of these justices found.

And even as we indicated, two of the justices in the minority, Souter and Breyer, had severe concerns, which they thought were remediable. But they too found that there was a violation here.

Is it political? It seems to divide along those ideological political lines or politically ideological lines, however you choose to characterize it. But it is a majority opinion. And it has to stand as that.

Justice Stevens, who wrote perhaps the most stinging dissent, suggested that the real loser is, of course, the process, and that it would take time for the wounds to heal. I'm paraphrasing his words.

No question, this is going to be one that will be thoroughly analyzed for time to come. Laurence Tribe, one of the attorneys for Vice President Gore, said it's just too early for the long-term analysis.


KING: All right, Senior Washington Correspondent Charles Bierbauer outside the Supreme Court early on this Wednesday morning. Thank you very much.


CALLAWAY: The Bush campaign didn't wait long to respond to tonight's ruling, saying it is pleased with the court's decision, but falling short of claiming victory. For more on the reaction, let's go now to CNN's senior political correspondent, Candy Crowley, who has been keeping watch at Austin, Texas.

Candy, what's the latest there?

CANDY CROWLEY, CNN CORRESPONDENT: Well, Catherine, privately those close to the legal team believe they did get a victory out of the U.S. Supreme Court. And privately, they believe that Al Gore has run out of legal options.

But publicly, when James Baker, the point man in Tallahassee, went to the podium, you heard none of any of that.


BAKER: Good evening, ladies and gentlemen. I've just spoken to Governor Bush and Secretary Cheney. They are, of course, very pleased and gratified that seven justices of the United States Supreme Court agreed that there were constitutional problems with the recount ordered by the Florida Supreme Court.

They wanted me to once again express their appreciation to the fine legal team and the hundreds of volunteers who have worked here in Florida on their behalf for the last 35 days. This has been a long and arduous process for everyone involved on both sides.

Thank you. And good evening.


CROWLEY: He was on and off in about a minute. No calls for a concession and no claim of victory, and purposely so. Basically, the Bush campaign knows that first of all perhaps there is something that Al Gore might do, perhaps go back to the Florida Supreme Court. That option is perhaps there.

But mostly, what the Bush team feels is that now is the time, as one put it, to be gracious, to back off the stage, to let Al Gore decide in his own time what he wants to do next. The Bushes pointed out, one aide, are no stranger to losses. They know how hard this is. They want to back off and let Al Gore decide to do whatever it is he's going to do.


KING: All right, Candy, and if the vice president does concede tomorrow, do we know what the plans are for the Bush campaign?

CROWLEY: You will see I think first of all a reaching out by the governor, who would then become the president-elect, and reaching out to those people who may feel frustrated and angry by this process.

They know that time for big celebration is gone, that what they need to do is show two things, first of all that he wants to be president of all the people, that the election phase is over, and second of all that he's ready to do so with perhaps at some point early on but not right away the naming of the senior staff and the cabinet and the like.

But they believe the first important message has to be one of graciousness and also has to be one that reaches out to the country and says this is about all of us and sort of beginning that healing process.

KING: All right, thanks. Candy Crowley in Austin. Thanks, Candy.


KING: Well, the Gore campaign is taking a little longer to react, at least in any detail, saying it wants time to carefully review the decision and will not address it, at least publicly, in any detailed way until tomorrow.

For more, let's bring in now CNN's Jonathan Karl, who's been tracking the reaction of the Gore campaign and fellow Democrats here in Washington.


JONATHAN KARL, CNN CORRESPONDENT: Well, John, no one on the Gore team pretending this is anything but a blow to the vice president. What they're looking at tonight is to see if it is indeed a fatal blow to his campaign.

The official word comes in the form of a written statement from Bill Daley, his campaign chairman. That statement reads, and I quote, "Al Gore and Joe Lieberman are now reviewing the five-four decision issued by the Supreme Court of the United States. The decision is both complex and lengthy.

"It will take time to completely analyze this opinion. We will address the court's decision in full detail at a time to be determined tomorrow."

Now if there was any question about what they will determine tomorrow, Ed Rendell, the general chairman of the Democratic Party, this is an ally of the vice president but also somebody known for his independence, came out in an interview with a Philadelphia TV station had this to say.


ED RENDELL, DEMOCRATIC PARTY GENERAL CHAIRMAN: I'm certain that he will act in the interests of the country. He has said that when this is over and the rule of law has been followed that Governor Bush will be his president too. And I think you'll hear from him very conciliatory words calling on the nation to get behind Governor Bush and to unite and to go forward in the best American tradition.


KARL: Rendell was then asked, "You're certain that now or within the next 24 hours we may be hearing a concession speech from the vice president?" His answer was, "Oh, no question."

But that statement by Ed Rendell prompted a hasty response from Joe Andrew, who is the chairman as opposed to the general chairman of the Democratic National Committee. Joe Andrew is the one responsible for the day to day operations of the DNC, Andrew saying that Ed Rendell was speaking for Ed Rendell, not speaking for the Democratic Party, said that the DNC would have no official statement on this until the vice president decides what he wants to do.

Meanwhile, Democratic reaction on this privately almost to a person, the people I've spoken to up on the Hill think that this is if not the end of the road right at the end of the road for the vice president. But many Democrats saying that they will be reasonable about this, give the vice president time to digest this opinion, read the decision, and make his own conclusions before they come out and act.

Robert Torricelli, a Democratic senator from New Jersey, was on CNN here just a little while ago stopping just short of calling on the vice president to concede, concluding that this was a defeat for the vice president and concluding that no more vote counting will happen, that there will be no more counting of votes in Florida.


KING: Jonathan, I spoke to a Democrat earlier tonight who had spoken to Bill Daley. And Bill Daley's view, according to this Democrat, was that he would do whatever the vice president asked him to do but that he believed the very high hurdle in the courts in Florida then perhaps the U.S. Supreme Court again and that there would be, as you report, this avalanche of Democrats coming out to criticize the vice president if he stays in and fights.

First, I guess, any sense of how much weight Bill Daley's view would carry in those discussions? And any talks that the vice president is looking ahead to 2004 and his own political viability, how the American people will view him as he makes this momentous decision?

KARL: Well, certainly Democrats expect that Bill Daley will be listened to by the vice president. The vice president has been the fighter in all this. He has set the tone.

He has very much kept his own counsel. But when it comes time tomorrow to going over this, looking at the political implications as well as the legal implications, it's certain Bill Daley's view will carry a lot of weight.

As for the political implications of the year 2004, I've heard nothing directly from the vice president. But you certainly hear a lot of talk -- you have over the last several weeks -- from his top aides and from his advisers. One put it, "We want to be sure there is no hangover from this process. We want to see the vice president emerge from this a better candidate if he were to lose."

And I asked one of his top aides, "Is he worse off because of this bitter process? Is Al Gore worse off because of what's happened over the last 35 days?" And what that adviser said is, "No, in fact, he's better off because" -- and this certainly can be chalked up in part to spin.

But there is a point here, this adviser saying that if Al Gore had simply lost, lost narrowly, but simply lost on Election Day, that the immediate discussion would have been how could have the vice president have lost coming as being the sitting vice president during a period of unprecedented peace and prosperity in the United States? How could he have blown this?

Instead, the discussion was on the recount, was on the suspicions among many Democrats that this election was if not stolen from the vice president, would have been legitimately won by the vice president if they had actually gotten around to finishing that recount in Florida. So the spin from this adviser and the view of many of those among Gore's inner circle is that simply the vice president emerges from this in defeat but a better candidate for the year 2004.

KING: All right, Jonathan Karl, thank you very much.

Joining me here now in Washington is the Republican National Committee chairman, Jim Nicholson. You speak with one voice, two chairmen of the Democratic Party tonight offering different opinions.

Is this over in your view?

JIM NICHOLSON, CHAIRMAN, REPUBLICAN NATIONAL COMMITTEE: I think it's still a little too soon to say, John. I think we need to digest this pretty long and complex legal opinion.

I've been there before. We've had our ups and downs in the last five weeks. Five weeks ago tonight, I was on a hotel stage here in Washington, and we were having celebration. And it was abruptly cut short.

So we still need to wait and see and digest this. It feels good. It's very gratifying. I think that seven justices of the Supreme Court found that the equal protection clause of the constitution was not being followed in Florida in the way they were counting these votes.

KING: I know there is a fight between the two campaigns over who went to court first, who sued the most. Let's steer clear of that. I want to discuss specifically, as the chairman of the party, let's assume for the sake of argument that it is President-elect Bush sometime tomorrow.

Does it concern you that he will take office after this more- than-a-month-long fight with the United States Supreme Court in addition to the two campaigns, the partisans on both sides, but the Florida Supreme Court divided, the U.S. Supreme Court divided? What does that tell the nation? And how does it affect his ability to govern, especially when you overlap the fact that the Congress is divided as well?

NICHOLSON: The country is very narrowly divided, which throws up a challenge to our new leader. But Governor Bush has shown that he is a healer, he is a unifier.

He did that in Texas. And he will bring that unique skill and personality, affability, ability to reach out to Washington. And I think you'll see that kick in right away. KING: Some Democrats have raised the question that they would never view him, Governor Bush, as a legitimate president if in their view all the votes were not counted. Do you expect that to be a continuing theme if indeed this is the end of the process or near the end of the process and it is Governor Bush who is sworn in as president a month from now?

NICHOLSON: No, I wouldn't expect that to persist. Mature leaders are not going to act like that.

I think a lot is going to depend on what both the winner and the loser say when this dust finally does settle and then what the other leaders in the respective parties have to say. No one should gloat. I mean, this is a very tight, close election.

But what the election also said was that the people in the party, I mean in the country, by consensus they want education improved. The election showed that they want Social Security reform. They want a tax cut.

So there is a great amount of agreement on the important issues to the people. And that's Governor Bush's agenda. And I think you're going to see a healing and people coming together to get things done for the people in this country.

KING: You speak of healing. How important would it be then in your view for a President-elect Bush, if that's the way this turns out, put Democrats in the cabinet?

NICHOLSON: I think it would be important. I think it will show that he practices what he preaches, which is that he is a guy that's able and willing to reach out to the other party, not worry so much about the credit, but get things done as he did in Texas.

I think you'll see a lot of that. I think you'll see a lot of consultation with Democrats on the important policy issues of the day.

KING: Will he not, though, if it is a President-elect Bush, face pretty quick pressure from the right to push for a ban on late-term abortions, overturn Clinton administration regulations on fetal tissue research, push for that big tax cut, a tax cut that the Democrats say is way too much money and way too risky in this economy?

NICHOLSON: You know, that's a test of a leader. And he's really proven that he's up to that. He's gotten elected I think. And the people see in him the kind of man that can do that.

You not only have to lead your own party. But then you have to reach across and bring enough of the other party and the independents in our country together to get things done.

KING: Your sense of what the reaction would be first in the Republican Party but also in the country if the vice president came up tomorrow and said he wants to fight some more?

NICHOLSON: Well, I think there would be disappointment. But I don't think anybody tonight is overly euphoric about this. We want to make sure this is final and settled.

The country wants that finality, deserves it after five weeks. But I haven't heard a Republican tonight call for a concession from Vice President Gore. I've heard the party chairman of the Democrat Party do that.

And I was on radio earlier tonight with Paul Begala, who said that this is over and that he respects his Supreme Court. It was disappointing to him, but it was over.

So I think it's important that we Republicans not gloat about this. This is a tough call for the vice president. He's a fighter. And it's been that kind of an election.

KING: Some Democrats say, "Don't embrace Governor Bush. Obviously, respect him as the president. But count the votes. Al Gore will still have won the national popular vote."

Add in the Ralph Nader votes, and some argue that we may inaugurate a Republican president, but the left of center actually won on Election Day, and keep up that fight for two more years, see if we can retake the Congress and then build from there for 2004. Do you expect a continued partisan fight like that as we have had in that more than a month since the election in the next two to four years?

NICHOLSON: I hope not. It's not what the country wants. And it's not the popular vote, by the way. It's the electoral vote that counts in this thing. And even the popular vote, given that there were 100 million votes cast, was very close.

And I think Governor Bush has that unique ability to bring people together. And he's going to be challenged, no question about it both within and without the party. But the agenda, the things that the people want, has been made quite clear in this election.

And both sides know that. They want a better education for America's children. They want Social Security reform.

They want a tax cut of some measure. They want to do away with the marital tax penalty. They want relief from the estate tax. So there's a real commonality there in both parties that will help Governor Bush.

KING: All right, Jim Nicholson, chairman of the Republican National Committee, we thank you for staying up with us until the early morning hours on Wednesday. We hope to have Joe Andrew, the chairman of the Democratic National Committee, with us later in this hour for his reaction as well.


CALLAWAY: And much more ahead in our special coverage of the U.S. Supreme Court decision, in-depth analysis from CNN National Correspondent Martin Savidge and election analyst David Cardwell live from Tallahassee. Plus, CNN Legal Analyst Roger Cossack will provide some insight on the court action. And you can read the U.S. Supreme Court's decision. It is available, along with all of the evening's latest developments, by logging on to

And we'll be right back.


UNIDENTIFIED MALE: They're milking this to no extent. I think it's going to go to the Congress. And Congress is going to have to make a selection. And Congress is going to go for Bush. So it's going to be an ugly situation for Bush for the next four years.



UNIDENTIFIED MALE: I hope that people will respect the decision of the U.S. Supreme Court, recognize the caliber and the integrity of the institution and not criticize it and come out with all kinds of allegations that they're being political, et cetera.



CALLAWAY: And welcome back to this CNN special report on the U.S. Supreme Court's decision issued a little more than three hours ago. With no time remaining in the so-called safe harbor window for appointing electors, the complex five-to-four decision effectively ends the statewide recount of undervotes on which Vice President Gore had pinned his hopes of winning the presidential election.

The justices decided seven votes to two that the Florida Supreme Court's ruling had serious equal protection problems. The vice president says he will respond to the ruling Wednesday.

And depending on what Al Gore decides, Florida's Supreme Court justices may find themselves in a very intense spotlight on Wednesday. CNN's Martin Savidge is in Tallahassee covering the court. And with him is CNN election law analyst and former Florida State Elections Director David Cardwell.

Marty, we finally got the decision from the Supreme Court. Any reaction from Gore officials in Tallahassee?

MARTIN SAVIDGE, CNN CORRESPONDENT: Well, their decision tonight is essentially they are going to be all night looking at this ruling is that has come down from the U.S. Supreme Court and studying it very carefully to see if there is even the least bit of glimmer of hope for them. They're also going to be looking to the Florida Supreme Court to see how they are going to respond to this order, also hoping to see that there might be something there.

But it could be in later today, actually, I was going to say this morning. Later today, they may decide there is no hope that simply exists.

David Cardwell joins me now, our election analyst down here. David, one of the things we were looking at as we went through this order, page 12. And we go back to specifically the original remand when it came back down here to the Florida Supreme Court, they were asked to clarify their decision.

They did that yesterday, ironically after the oral arguments in the U.S. Supreme Court. And they cited over and over again 3 U.S.C. Section 5, this is the safe harbor clause.


SAVIDGE: Did it come back and haunt them tonight in the ruling that came out?

CARDWELL: Marty, it looks like in page 12 of the Supreme Court's opinion that the Florida Supreme Court fell into a trap because in responding to the remand, the Florida Supreme Court said, "Of course we took 3USC Section Five, the safe harbor provision, into account. And of course we know that it says that December 12 is the critical date."

Well, then what happened is the U.S. Supreme Court said, "Aha, then the recount that you ordered had to be done by the time of safe harbor. Today is December 12. You're too late. You can't do the recount."

SAVIDGE: Yes, right down on them. What does the Florida Supreme Court do now? It does come back to them. But what do they do?

CARDWELL: Well, it's been remanded to them to do the recount by December 12. Well, there's no way that can happen. So right now, they're sort of in limbo. They're going to have to issue some kind of order that says, "We've received this from the U.S. Supreme Court. And it says that the recount that we ordered before is unconstitutional, and there's nothing we can do now," and that, "We cannot comply in any way with the requirements of the U.S. Supreme Court. Therefore, case ended, case decided."

SAVIDGE: No way you see that they could push forward and try to have a recount?

CARDWELL: If they did so, I think they're going to run right smack into this opinion again and they get slapped down again. I think this is over.

SAVIDGE: Now what does the order say regarding to what is the slate of electors that currently stands now? The Florida legislature still pushing ahead at nominating their own slate of electors. Where do things stand regarding the electors from this state?

CARDWELL: Good question. That's where we're still kind of in a legal limbo because the Florida Supreme Court decision on which the original certification that was signed by Governor Bush -- and I mean Jeb Bush, not George W. -- but by Governor Jeb Bush and sent to the archives of the United States was based upon the order of the Florida Supreme Court that was vacated by the U.S. Supreme Court.

And they have not yet ruled on that. The Florida Supreme Court has tried to clarify that. They haven't ruled on it. So we don't know if that's a valid slate.

The Florida legislature is meeting now. The House passed a resolution today. The Senate is expected to do so either tomorrow or the next day. And that could be another slate with the same individuals on it.

Right at this point, we're not quite sure which slate it is that's going up to Washington and actually be decided to be the slate to vote on December 18. But one thing we know from this U.S. Supreme Court decision, there will not be a Gore slate competing with it.

SAVIDGE: Now the Democrats have already said when the Florida legislature is done, they're going to challenge that. And where else? In court. Still more legal proceedings?

CARDWELL: That's right, possible. They say they're going to file a suit. It's obviously going to have a federal question, at least initially, may be up to the U.S. Supreme Court to decide whether it's there. But we may not have seen the end of the legal contest.

And if there's a challenge then to the slate of electors chosen by the legislature, we may yet find this thrown into Congress on January 5.

SAVIDGE: Well, that is something that most of the people in the United States would not like to contemplate. Certainly, Congress wouldn't want to contemplate that.

So tonight, the Democrats, like the vice president, mulling over this decision, trying to see what if anything the Florida Supreme Court may do. Ironically, it has turned very cold, very windy down here in Tallahassee.

Although, for the Democrats and for the vice president and his team down here, the cold has nothing to do with the temperature. It is a chill that has been born on the wings of a decision from the U.S. Supreme Court.


CALLAWAY: All right, Marty. Thank you, Marty Savidge and David Cardwell.

Our election special will continue in just a minute. We'll be speaking with Roger Cossack. So stay with us.


UNIDENTIFIED MALE: I think it's really kind of disappointing that for them to send it back to Florida when the United States Supreme Court was the ones who ordered for them to stop the recounts in Florida. (END VIDEO CLIP)


UNIDENTIFIED MALE: All modern democracies basically have runoff elections when there's no clear margin of victory. So the whole thing is idiotic.



CALLAWAY: Recapping now the late developments for those just joining in. The U.S. Supreme Court has issued a ruling in George W. Bush's appeal of the Florida recount. The court reversed the state Supreme Court's order for a statewide recount of undervotes. Members of Al Gore's legal team say that the lengthy and complex ruling is not encouraging for their side. Gore and his running mate Joe Lieberman are reviewing the decision and are expected to respond to it sometime tomorrow.

Meanwhile, shortly after midnight Eastern time, Democratic Senator Robert Torricelli of New Jersey talked with the CNN anchor team.


SEN. ROBERT TORRICELLI (D-NJ): On a human basis, I think all of us have to feel some compassion. He fought long and hard for the presidency. He has served his country with great distinction for a number of years. But it is clear that the electoral situation now for him has become legally extremely difficult.


CALLAWAY: That was Senator Robert Torricelli, Democrat of New Jersey, speaking with CNN shortly after midnight time Eastern time.


KING: We heard just moments ago from the Republican National Committee chairman. Let's bring in Joseph Andrew. He's the national chairman of the Democratic National Committee.

Mr. Andrew joins us tonight from his home in suburban Washington, Bethesda, Maryland.

Mr. Chairman, you just heard one of your own senators there, Democratic senator from New Jersey, saying the situation quite bleak for the vice president. Do you agree? And do you expect Mr. Gore to bow out in the morning?

JOSEPH ANDREW, NATIONAL CHAIRMAN, DEMOCRATIC NATIONAL COMMITTEE: Well, bleak doesn't mean that it's over. And a clear position of Democrats all across this country and the position of the Democratic Party is that we should continue to fight for the principle that every vote counts and every vote should be counted.

John, those votes haven't been counted yet. We certainly will look till tomorrow at what the vice president wants to do. We think there's a very important principle here that needs to be stood up for and fought for. We're going to support the vice president no matter what he decides to do.

KING: Should the vice president in your view then fight for that principle, go back into the Florida Supreme Court, push for another recount even if there are Democrats publicly saying he should get out, even if public opinion swings wildly against that, even if, Mr. Chairman, public opinion then starts to swing not only against the vice president but against the Democratic Party?

ANDREW: This is not about public opinion. It's about a principle. It's about making sure that votes count and that we count those votes.

I think he has every right to do that. And I certainly would be extremely supportive if he chooses to do that.

You know, there's more than 20,000 Democratic elected officials across this country. There's only been a half dozen of them that we've heard anything that can even be arguably called a call for a concession this evening. And that's before really a single one of them have actually read this opinion and probably understand it's full import as well.

We've got a unified party, a unified party with more than 20,000 Democratic elected officials that are going to hold on, going to wait and see, going to understand what the whole complexities of this situation are before they make any comment.

KING: Well, among those who said he thought time was running short was your partner, the general chairman of the party, Ed Rendell, the former mayor of Philadelphia. Was he a renegade tonight? Is he off message, as we say here in Washington?

ANDREW: Well, I've got a lot of respect for Ed Rendell, as people do across this country. And he certainly can speak for himself.

The charter of our party for 154 years has made it clear that only the national chair can set the policies and positions of the party. The position of our party is very clear. It was unanimously supported by the executive committee of our party that we're going to support Al Gore to continue to fight to make sure that all those votes are counted.

We're going to support him in whatever decision that he makes in this process. So clearly, the party's position is that if he chooses to fight on, he ought to fight on. Even if he chooses not to fight on, our party will fight on to make sure that we can find out what those votes that haven't been counted are counted.

We're going to pursue this to the end and make sure that Americans recognize that Americans won this election. He won it not just nationally. But he won it in the state of Florida.

KING: Well, what happens, sir, with all due respect, if those votes are not counted, or at least not counted as part of an official process? Obviously, there is the Freedom of Information Act. There is public access to those records post-election. But if the vice president either decided to bow out tomorrow or even if he fought on longer but lost again in the courts and those votes were not counted as part of any official proceeding, and a little more than a month from now, George W. Bush takes the oath of office as the president of the United States? Would Democrats carry out their threats, as has been said by many in recent days, to never view him as a legitimate president?

ANDREW: Well, John, there's about three hypotheticals in that question. But let me try to answer it anyway.

You know, these aren't threats. I mean, the reality of it is that there will be questions about the legitimacy of his presidency. We don't have to make those questions. They're being made by people on the streets, as they sit around their kitchen tables, as they walk into barber shops all across this country.

Those are questions that are legitimate. And they need to be answered. And they can only be answered by understanding first who actually won in the state of Florida.

If George W. Bush won in the state of Florida, then clearly he won't have to worry about these things. But this is a simple factual matter, and one that's eventually going to be determined. It would be nice if it could be determined quickly and it could be part of this constitutional process that we're going through.

KING: When this campaign began, most Democrats would have said this was Al Gore's one shot. He was the vice president running at a time of remarkable economic prosperity. If he lost this election, that would be it. He would be a pariah in the party.

If this goes in Governor Bush's favor, whether as early as tomorrow or at the end of a court process, do you see the vice president who could continue to run for president, perhaps take a year or two off? But do you see him running again if he is denied this time?

ANDREW: He certainly absolutely would have that option. You know, our party was obviously tremendously united behind Al Gore. Only one other person who's ever run for history in the 225-year history of our country got more votes than Al Gore did on Election Day.

And since Election Day, Democrats have really united behind him because he's been fighting for a principle that all of us learned in our fourth grade civics class, that in democracy, every vote counts, and you've got to count every vote. I think people will be very supportive of him no matter what he chooses to do.

KING: All right, Joe Andrew, chairman of the Democratic National Committee. We need to stop there. We thank you very much for your time tonight...

ANDREW: Thanks a lot.

KING: ... for staying up early this morning with us.


CALLAWAY: Thanks, John.

A complex decision from the Supreme Court tonight. And to help us straighten it all out, coming up, we will speak with CNN's legal analyst Roger Cossack. And we will also speak with Election Law Analyst Ken Gross. It's all ahead. Stay with us.


UNIDENTIFIED FEMALE: Yes, we have to go by what the Supreme Court goes by. You know, I think we have a good constitution I think with checks and balances.


UNIDENTIFIED MALE: Well, I'm actually kind of surprised that they actually reversed the Florida Supreme Court since this court seemed to have in the past taken a sort of hands off approach to the states' rule.



KING: I'm John King in Washington back with more of our special coverage on last night's Supreme Court decision sending the case Gore versus Bush back to the Florida Supreme Court.

Joining us now, CNN Election Analyst Ken Gross, election law attorney.

This, a legal document the Supreme Court issued tonight. But your reading of it also a very political document, isn't it?

KEN GROSS, CNN ELECTION LAW ANALYST: Well, it's a very interesting document. It's hard to work your way through it because there are so many different opinions here.

But what it is to me is a reflection of a deep division in this court. I think that the chief justice may have tried to put what's called a per curium decision together, which makes it look like a decision by the court. But what it is is a five-four split among these justices.

And very strong language. For example, Justice Stevens says, "We may never know who the winner of this election is. But we know who the loser is. And the loser is the confidence potentially of the people in the court as an impartial arbiter of these issues. That's strong words. KING: And from Justice Stevens as well?

GROSS: That was Justice Stevens...

KING: Justice Breyer (INAUDIBLE)...

GROSS: ... Justice Breyer, yeah, he also. He said that this split decision runs the risk of the people losing confidence in the court.

And when you look at the words of the decision and you look at the divisiveness, you know that this was no -- this was not what I think the court wanted to do in a case like this.

KING: In the first U.S. Supreme Court ruling, they sent the case back to Florida with a bit of a road map. Show us how you made your first decision. Justify it in Florida law, legislature, or through the constitution. Give us -- they gave them a road map.


KING: Any such road map here? And can you see a way out of this for the vice president?

GROSS: You know, I hate to shut the window entirely because this is such a complex situation. But I don't see a road map. What the justices in the per curium opinion, which is the majority of the court, are saying here is that December 12, today, or what was yesterday in the east coast, was over. And there's no more room for maneuvering because that was the safe harbor deadline under the federal statute.

KING: Let's step back from this election for a minute and think about the court in the year or two ahead under a -- seemingly tonight anyway under a President Bush. Do you get the sense of five-four decision on the stay, two very diverse opinions, one against the other, the decisions, the dissents you've mentioned tonight, a deeply divided court. How does this carry out in your view as the court now handles cases in the year or two ahead?

GROSS: Well, I think the court is not undermined because most of the issues that come before the court are rather routine. They're going to be decided in provisions under the interstate commerce clause and other provisions under the constitution.

And I don't think any of that is at risk. But it is interesting to note that this next president, who appears to be Bush at this point, very much so based on this opinion, that these justices are playing a role in large part at who may be their successors.

And whoever are their successors may be on the court in the year 2030 or 2035. So the implications of all this are extraordinary.

KING: And very quickly, any sense that if the vice president -- and a big if -- went back to the Florida Supreme Court and this case came back to the U.S. Supreme Court, any sense that those five justices who have been firm now twice in saying they think this process has gone too far, any sense that they would move?

GROSS: No, I think they would stand behind their opinion from what I'm reading here in this document tonight.

KING: All right, Kenneth Gross, thank you very much. Kenneth Gross, CNN election law analyst here in Washington.

Back to you now, Catherine.

CALLAWAY: And coming up, we will go through the fine print of this lengthy U.S. Supreme Court decision with CNN legal analyst Roger Cossack. So stay with us.


CALLAWAY: Joining us now is CNN's legal analyst Roger Cossack, who is in Washington to help us go through the fine print of this decision the Supreme Court issued tonight.

Roger, if the Bush campaign was looking for clarity in this decision, do you think they received it?

ROGER COSSACK, CNN LEGAL ANALYST: Well, Catherine, there is no real clarity in this opinion. Let me say that this is one of the most difficult opinions I've ever read. And I think the reason for it is because there is so much differing opinion on what should happen and how this should be implemented, or not implemented as the case could be.

I think if you look if the Bush campaign gets anything from this opinion is they get a win. And perhaps that's the clearest thing they could ask for. But in terms of what the law is, lawyers will not be able to cite this case in the future for any one specific holding I suppose with any great certainty.

CALLAWAY: Can you go through some of the more important decisions that were made in the order?

COSSACK: Sure. I think that the first thing, if I can attempt at least to break down this highly confusing opinion, there are nine justices in the United States Supreme Court. Seven of them found that the Florida Supreme Court violated the constitution in one way or the other. Five of them found that there was really no way for the Florida Supreme Court to remedy that violation of the constitution.

In other words, what they said was the violation was this what we've said time and time again, the safe harbor provision of the constitution, which states can sign up for if they wish. The Florida Supreme Court said that the legislature had signed up for that.

The majority feels that that action of becoming involved with the constitutional safe harbor provision means that there are certain things that cannot be changed. One of those things that cannot be changed is that the electors have to be done and finished by December 12. The United States Supreme Court was highly critical of the Florida Supreme Court. They said that what they tried to do in their decisions that we've become familiar with over the past, their seven- nothing opinion which allowed, Catherine, which will override what Katherine Harris, the secretary of state, extended the date for a week, and a four-three opinion. They said left open-ended parts, which meant that things could not be -- votes could not be completed and tallied by December 12.

They felt that -- these five felt that the December 12 date was in cement and could not be moved. That is why Governor Bush is a winner tonight and Vice President Gore is a loser tonight because they feel that the remedy, if there is any available, has to be done by December 12. It's almost constitutionally mandated, if you will. And it can't be done.

The other four had differing viewpoints. But there was only four of them. And there was five of the ones that said that December 12 is the cutoff date. That's pretty much what this opinion stands for.

CALLAWAY: Will there be belief by some that the Gore campaign just ran out of time according to this decision?

COSSACK: It's not a question so much of running out of time. The majority takes the position, again I want to say, that December 12 was the date so that this date had been coming for some period of time, and that perhaps they should have tried to start the recount sooner. Perhaps a whole lot of things should have been done sooner.

But when the date of December 12 came and the counts weren't counted and there was no way to get them counted and there was no plan in place to guarantee a fair -- what the Supreme Court wanted, was concerned about, a fair way to count, that whole equal protection argument, those five members of the Supreme Court felt that this just had to fail and that Vice President Gore's lawsuit had to fail.

CALLAWAY: Much more to talk about. But we will be back with Roger Cossack in just a moment. Stay with us.


CALLAWAY: If you're just joining us, the U.S. Supreme Court has reversed the Florida State Supreme Court's order for a statewide recount. And joining us now is Roger Cossack, CNN legal analyst.

Do the Democrats have any legal recourse at all, Roger?

COSSACK: Catherine, I think not. What the majority has held is what I've indicated, that Florida has signed up for the safe harbor provisions. The safe harbor provisions say that things must be done by this date. And therefore, there's no wiggle room to do that.

Now I suppose one could imagine that the Florida Supreme Court could go back down and say that's not true. But I don't think that really means anything. I think once the United States Supreme Court has made the finding, I think then the Florida Supreme Court is bound to what the United States Supreme Court has done. So I don't think there's anything that can be done.

CALLAWAY: And do you think because of this U.S. Supreme Court decision that there will be any changes in Florida's election laws?

COSSACK: Well, it's hard to say whether there's going to be any changes in the election law. What there may be is some changes in the way people vote, not only in Florida but in the rest of this country.

One of the problems that came because of this is that we've now learned that there is voting equipment that is old and outdated and causes a lot of problems, that punch cards don't always get punched, and optical scanners don't work the way they should either, and that we need to update the way people vote in this country.

And I think that what, if anything, that's come from this is the fact that we might see money that was never going to be spent to update the voting system now spent nationwide to update the voting system now. Voting is the province of the states. The federal government should have nothing to do with it. That's part of what's so unusual about this decision tonight.

But I think that the federal government perhaps, the way they do with roads where they say we'll give the states money if the states promise to keep the speed limit at a certain rate, I think that perhaps they'll do that with voting. It's clear that the voting method has to be updated in this country.

CALLAWAY: All right, Roger Cossack, I know you're glad to be inside now...

COSSACK: I sure am.

CALLAWAY: ... after being out there in the freezing weather. Thanks for joining us.

COSSACK: All right.


KING: Well, Catherine, as we wrap up tonight, we should tell our viewers we are looking for sometime before noon Wednesday here in Washington for the vice president himself to react to the Supreme Court ruling. We're told he's on the phone with his legal team late into the night, Senator Lieberman as well, weighing their options.

However, mounting pressure from Democrats both publicly and privately saying it's time for the vice president to bow out. One of the vice president's closest political advisers telling me earlier this evening just a short time ago that we would love to stay in and fight, but in his words, quote, "I can't see any way we win now."

That the calculus as the vice president weighs his options, a very momentous decision. He is in isolation with his family tonight at his official residence here in Washington, the Gore campaign promising we will get an official and detailed reaction to the Supreme Court ruling sometime Wednesday here in Washington. Thanks for joining us for this CNN special report on the Florida vote and Tuesday's historic decision from the U.S. Supreme Court. I'm John King in Washington.

CALLAWAY: And I'm Catherine Callaway at the CNN Center in Atlanta. Stay with us. More news for you in just a moment.



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