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Gore Campaign Considers Legal Moves Against Upheld Deadline

Aired November 14, 2000 - 2:00 p.m. ET


LOU WATERS, CNN ANCHOR: Lawyers for the Gore campaign scramble to get an emergency stay now from Florida's supreme court. A lower court judge ruled about an hour ago that all the Florida counties must report their election results by 5:00 p.m., which is three hours from now. Election workers argue there's no way to complete the hand recount requested by the Gore campaign in such a short time, particularly in populous counties like Miami-Dade, which just started its manual recount today.

We begin with national correspondent Mike Boettcher, who joins us from Tallahassee.

Mike, where are we?

Going to Bill Hemmer.

Who are we going to?

Someone take it away.

BILL HEMMER, CNN CORRESPONDENT: You got it. Hang on one second. The news is still breaking here. We're on live right now.

Go ahead. Give us what we know. You were inside court an hour ago when that decision came down from that judge.

MIKE BOETTCHER, CNN CORRESPONDENT: Well, yes, and the judge ruled that the secretary of state does have the authority to carry through with this 5:00 mandate, that basically he didn't have the authority to overrule that passage in the law that said that the secretary of state shall ignore the ones that come in afterwards, although there is language in here which says that the secretary of state, Katherine Harris should consider these, that the counties should be able to go ahead and work on these hand recounts. But in the end, it's up to the secretary of state. So, it looks like a slam- dunk victory for the secretary of state.

HEMMER: What happens right now? There's an appeal that was threatened. Has that been carried out yet?

BOETTCHER: We don't know. I'm kind of in the 50-yard line area here because about 50 yards over there is the courthouse and about 50 yards over there is the supreme court. So, we're going over that direction. But the Democrats are definitely going to file an appeal with the supreme court. They're using a mechanism in the law which allows them to get an expedited hearing in the supreme court and bypass the circuit court of appeals here in Florida. But this is all in state court. And that should be happening -- Secretary of State Christopher, who is acting on behalf of Vice President Gore is going to be having a press conference here in about 30 minutes, so we shall know then exactly what their plans are.

And, again, Bill, -- Bill has been talking to people in the secretary of state's office, and. Bill, what do they think about this?

HEMMER: At this point they are absolutely stunned. You know, leading officials here in the state of Florida who are very closely connected with the legal battle that ensued last night, one attorney said when he walked out of court last night he thought they were going to be absolutely slammed by the judge today. But again the ruling came down an hour ago. And indeed, state officials here say they are surprised, pleasantly surprised, by what's happening. But indeed it was a shock for them as well.

Now, Mike, there's a question right now about times. It's 2:00 Eastern time here in Florida. There's a 5:00 deadline. If the state supreme court does not pick up this appeal, what happens then? Well, the state is saying the state's position is quite clear. They believe the official numbers will be then entered and certified by the state. And this thing will eventually move toward Friday and the absentee ballots. But then the question is what ballot number do you go with?

Well, the state numbers earlier today had George Bush up by about 1,000 votes over Al Gore statewide, with about 65 of 67 counties reporting. The state, though, yesterday, sent surrogates out to different parts of Florida trying to go to the state canvassing -- well, the local boards there, basically, to get an updated tally. In other words, when that 5:00 deadline approaches, there will be a surrogate from the secretary of state in the office of the canvassing commission to relay the very latest numbers.

Palm Beach, as you know, is not listed officially right now because of the lawsuit last week. Their numbers turned in were on election night. And as you well know, after the recount, Al Gore picked up a number of votes in Palm Beach throughout the county right there. So, given that, how does Palm Beach numbers change? And that's what we're waiting to hear right now.

And just like we're very much in unchartered waters right now, so too are the attorneys for the state, the canvassing commission itself, and the secretary of state. They're not quite sure what happens between now and 5:00. But they're trying to get ready. They're bracing right now.

BOETTCHER: And the question is about the overseas ballots. A lot of those ballots, most of those ballots have already been included in the vote total that is in the office of the director of elections now. The ones that were received after the election, those are the ones that are being held and will be counted Friday. The question is, how many of them are there? HEMMER: Indeed, it is quite possible a lot of the absentee ballots have already been figured into the vote total. But we don't know a solid answer to that.

BOETTCHER: Historical precedence. Historical precedent is it.

HEMMER: Indeed, OK. All right, Mike, listen, we'll be here. We'll be hunting around, let you know what we know.

Back to Lou now in Atlanta.

WATERS: OK, men. Since we last spoke there's been some new information gotten to us by our correspondent Jonathan Karl who is with the Gore campaign.

The Gore campaign -- of course, the legal advisers to the campaign are reviewing that circuit court decision this morning not to extend the deadline for voter certification. The Gore campaign apparently believes there may be an option other than appealing this ruling to the Florida supreme court. Members of the Gore legal team said Judge Lewis made it clear that the Florida secretary of state Katherine Harris has discretion to accept late returns from individual counties.

Therefore the Gore campaign may decide to wait until a county turns in -- returns it. If the secretary of state, Harris, the Florida secretary of state, rejects those returns, Gore's lawyers could then argue again before the same judge, Terry Lewis, that she abused her discretion. That's one thing apparently under advisement within the Gore campaign.

Let's check in with John King in Washington who's watching over this business.

Do we know that for sure that that is an active option being pursued by the Gore campaign?

JOHN KING, CNN CORRESPONDENT: Many options being pursued, Lou.

And we should try not to add to the confusion here, but what we're told is this. We will hear from former Secretary of State Warren Christopher in approximately 30 minutes outside of the state supreme court in Tallahassee. With him will be the attorney David Boies, the noted antitrust lawyer who handled the Justice Department case against Microsoft. Mr. Boies on hand if they decide to go ahead and file an appeal.

I spoke to a senior Gore adviser just moments ago who said while they view that as the most likely course of action, right now they are still considering their options and that all Mr. Christopher is prepared to say at this time is that they are considering appeal.

As you noted, one other alternative, and there are many, but one would be to let the 5:00 deadline come and pass, see if the secretary of state certifies the results, then see if any of those counties report additional results later and whether she accepts them or not. And if the answer is no, then make the case that she is abusing her discretion and refusing to count votes reported by the counties.

One of the reasons we can't give you a direct answer is, of course, some of the vice president's people are here in Washington. some are in Tallahassee. Some are in those other Florida counties where there is some turmoil over the hand recounts. The vice president himself here in Washington monitoring all this.

One of his other point men, Mr. Christopher, is the lead attorney. Another point man is the former Commerce Secretary Bill Daley who is also the chairman of the Gore presidential campaign. His job today was to travel up to Capitol Hill to reassure Democrats that the vice president is within his rights as he pursues these legal options. We're told the reaction from both the House and the Senate Democratic caucuses was quite supportive, so long as the vice president stays focused on a recount.

And in his public comments on Capitol Hill today, Mr. Daley trying to make the case that during the initial recanvassing, what we would consider the first recount in Florida, that in some counties they did resort to some hand counting of the votes. He says in those counties that tended to favor Governor Bush, so he doesn't understand why the Bush campaign would be so opposed to a broader hand recount now.


WILLIAM DALEY, CHAIRMAN, GORE CAMPAIGN: This misconception and mis-comments that are made all the time about four counties, the fact is that there are seven other counties that used a form of hand counts in their determination as to the votes. Six of those counties went for Governor Bush and, obviously, in their opinion, those were appropriately done.


KING: Now the gentleman you saw to Mr. Daley's right on you screen was the Senate Democratic leader, Tom Daschle. Again, as the legal battle unfolds, nobody can say with any certainty when it will end, even though that 5:00 deadline approaching tonight. Mr. Daley's job today not only to bring Democrats on Capitol Hill up to speed on the legal developments but to also urge them to hang in there and support the vice president for a legal battle he says could continue for several days if not longer -- Natalie.

ALLEN: All right, John King, thanks.

And now we want talk with our legal analyst Greta Van Susteren who is in Palm Beach County where so much is going on.

But Greta, let's first talk about this deadline. Everyone expects the Gore team to appeal. But what about this late word from the Gore campaign that they might go back to the judge if the secretary of state does not use her discretion to accept counties that file after today's 5:00 p.m. deadline.

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: You know, Natalie, it sounds like a good idea to wait to see whether or not these counties' votes coming in after the deadline, if there are additional votes for Gore, whether it would make a difference and then go back to the judge. But there's a part of the law that scares almost every lawyer. And that's when you go back to judge after the 5:00 p.m. deadline -- let's say in a day or two -- and the judge says, well, I would agree for you, but the fact that you didn't appeal, you've waived your right to bring it to me now.

I mean, there are all sorts of problems that are associated with it. It seems pretty silly to think that, if they didn't go to Supreme Court today, that that would somehow jeopardize them later. But it's always a possibility in this high-stakes game. What I think might be prudent for the lawyers to do if they want to pursue this further -- and it seems certainly that they do -- is they file a notice of appeal with the Florida Supreme Court and be willing to lose that, so they don't run the risk in a day or two -- if they want to have to go back into court -- that some judge doesn't say: Well, why didn't you appeal to the Florida Supreme Court? You sat on your hands. You waved your right. Too bad. Tough luck. You're out of luck.

ALLEN: So, as it stands right now, there is a 5:00 p.m. deadline for all counties to report. But as you told us earlier, there's an injunction right now in Palm Beach County that won't allow Palm Beach County to report.

VAN SUSTEREN: That's right. As you can hear, it's pretty active here. We have an ambulance going by. But let me tell you what's going on in the Palm Beach County courthouse, which is right behind me. The plaintiffs have asked to amend the request for their injunction.

They want to continue the recount here in Palm Beach. And the reason that they want to do that is because they -- the way they read Judge Lewis' order is that, in the event that a manual recount in this county shows that there would be votes that would change what the secretary of state does at 5:00 p.m. in terms of certifying Governor Bush the winner, they think they can go back into court and have their votes counted. So the intrigue goes on.

ALLEN: Does this put more pressure on Ms. Harris following this 5:00 p.m. deadline to make sure that Palm Beach is included in this statewide vote total?

VAN SUSTEREN: Its certainly does seem to put pressure on her. I mean, the pressure that's lifted from her is the 5:00 p.m. deadline. I mean, no one can really complain. She's been, in essence, ordered by a judge to certify the election at 5:00 p.m. Where the pressure will be build is if the manual recount goes on in this county, in Palm Beach County, and if the votes are such that Gore would become then the winner statewide. And they go back to secretary of state and say: Look, we need you to recertify this in light of the corrected vote count, and in light of Judge Lewis' order. She's in a tough spot. She going to probably have to do it.

ALLEN: All right, Greta, thanks so much. Now we're going to switch to John Zarrella. We have got to have more than one person apparently covering this county. He's in West Palm Beach City.

John, what's up?

JOHN ZARRELLA, CNN CORRESPONDENT: Well, you sure do need more than one person. We're outside of the Emergency Operations Center, where, of course, most people know there was supposed to be the start of recount of the entire county: 431,000 ballots. That did not happen this morning at 8:00 a.m.

What transpired was this: The secretary of state -- they had asked for opinions from the secretary of state and the attorney general of the state of Florida as to the legality of beginning this recount. The secretary of state's opinion came in and said: No, you are not authorized. You do not have the legal authority to recount the ballots, because it wasn't because of a technical glitch or something wrong with the counting machines or the software.

That's the only reason you can do a complete recount. Then the attorney general, Bob Butterworth, issued an opinion, said: Yes, you can do a recount. So now Palm Beach County is in court. And they are trying to get a judge to tell them what they can do or what they can't do. So if a judge comes back and says: You can't recount, then it renders this whole other issue of the 5:00 p.m. deadline for the county moot anyway, because they have to stick to the original numbers that came a couple of days ago.

So it's a mess -- literally. And there's also a Democratic Party filing in circuit court here where the Democrats are asking -- you said you didn't want to talk about chads anymore. We've got to do it one more time -- it's called the dimpled ballot or the pregnant chad. Well, the Democratic Party has gone to court asking a judge here to order the county to count those pregnant or dimpled ballots. And they are going to tell the judge that he has got to explain what that is, because they believe that those should be counted as legal ballots.

And they haven't been counted so far. They're not part of what's been counted. They're part of what's been thrown out. So it continues to be a -- just a legal quagmire here in Palm Beach County, and is continuing with all sorts of angles and twists and turns -- Natalie.

ALLEN: Thanks so much for helping us understand it, John Zarrella. We'll be in touch. Now here's Lou.

WATERS: There's another Florida county that has been in play here. That's Volusia County. That's the Daytona Beach area. That county had hoped to finish its hand recount ahead of this 5:00 p.m. deadline, which has now been set for today. But Volusia apparently will not be able to make that deadline.

We have CNN's Brian Cabell in DeLand, Florida to fill us in on what's happening there -- Brian.

BRIAN CABELL, CNN CORRESPONDENT: Well, Lou, the Volusia County officials are under the gun right now. They say they -- in some fashion or another -- they will make that deadline. They're not exactly sure how, though; 184,000 votes more or less have been counted so far. They just have a few more to go. But there is a lot of detail work, a lot of documentation, a lot of reconciling of all the numbers that has to be done.

Now, the tone has changed here considerably over the last 16 hours or so. Yesterday, Volusia County officials were telling us things were moving along very swiftly, very smoothly. They might not have to worry about a deadline extension. Today the tone is a little different. With me right now is Dave Byron. He is the Volusia County spokesman.

Tell me what happened here in the last 12-16 hours or so. So the tone has changed here.

DAVE BYRON, VOLUSIA COUNTY SPOKESMAN: Well, obviously, you know, we're down now, I guess, to about three hours before we have to complete our certified results. There just are a lot of logistics, as you just said, a lot of details that have to come together. This process is taking a long time, and has taken a long time. I think we all got a little bit euphoric at the first part of count process, when the table counts went so smoothly and so forth.

But the canvassing board, really, within the last hour-and-a- half, just completed the ballots that they had to finally check. We now have people sitting in the canvassing board room. They have adding machines. And we are working on the numbers that we are going to send to Tallahassee.

CABELL: You will have something for secretary of state courier at 5:00 this afternoon?

BYRON: It is not an option, unless a court tells us otherwise that we will not provide certified results to Tallahassee. I have said consistently whatever deadline we have -- which right now is 5:00 this afternoon -- we'll meet that deadline.

CABELL: Could it be a mix of the recount numbers and the original numbers that you will have to turn in?

BYRON: Well, the canvassing board is working on the numbers. The totals that are being totaled up are the numbers from the recount. So you know, I've said, again, that when the -- we'll know the answer for sure when we get the certification results. But the numbers that the accounting staff here at the county are crunching, those are numbers from the -- that manual count.

CABELL: Are you going to court to appeal this latest decision?

BYRON: Yes, the canvassing board, just a few minutes ago, authorized the county attorney to file an appeal. And we are going to do that right now. Obviously, this is quite a last three hours we're going through here.

CABELL: Is there a sense of urgency, of real concern inside?

BYRON: I feel a lot of butterflies inside my stomach. And, obviously, this is a very, very critical, urgent situation.

CABELL: Byron, thank you very much.

Again, they are working. They have got less than three hours to go. They have counted about 184,000 votes. But again, the problem is all this documentation. They have to sign off on all these precinct numbers. It's going to awhile yet. But they will have something at 5:00 one way or another. Now, we don't have any of the latest numbers. The latest numbers we had were from last night: 140 precincts.

They showed a net gain last night -- after 140 precincts -- of 24 more votes for Vice President Gore. He had gained 24 votes. But together, he and Governor Bush had gained about 500 votes. So they have discovered some votes during this process. But once again, exactly what they will turn in at 5:00, they do not know. We'll know more within the next few hours.

Lou, back to you.

WATERS: OK, Brian Cabell in DeLand, Florida.

We have just gotten a two-minute warning that we're about to hear from Warren Christopher down in Tallahassee. While we wait for that, let's check in with Jeanne Meserve, who is with the Bush campaign in Austin.

Reaction there to the judge's ruling here today?

JEANNE MESERVE, CNN CORRESPONDENT: Lou, there's been absolutely none. We have been told that Mindy Tucker, a spokesperson for the campaign, will make a statement shortly in Tallahassee. I'm sure we will bring that to you. But as yet, no reaction here.

The staff has been sequestered in meetings and not talking to the press since this ruling came down, although we know this is the result that the Bush campaign wanted. They wanted to see the deadline hold and those hand recounts stopped, because they believe the recounts will further erode Mr. Bush's lead in Florida. The only public comment that has come from the campaign today -- the only comment for cameras -- has been from former Secretary of State James Baker.

He made a proposal to the Gore campaign earlier today. He said: You respect the 5:00 deadline. We will dismiss our lawsuits, and we'll allow those hand recounts to be included.


JAMES BAKER, BUSH CAMPAIGN OBSERVER: Many people around the country have urged both candidates to reach out to one another with a fair proposal to resolve this very divisive and unfortunate process. We are doing just that. We have had counts, we have had multiple...


WATERS: And we interrupt one secretary of state for another. Here's Warren Christopher in Tallahassee.


We're pleased by the decision of the circuit court that the secretary of state was wrong in setting a deadline of 5 p.m. today for ending the tabulation of votes. Under this decision, we now have a vehicle for the full, fair and accurate tabulation of the votes of the citizens of Florida.

The court has held, as you probably all know from looking at the decision, that the secretary of state cannot arbitrarily declare that she will not permit votes to be counted after 5 p.m. today.

The court holds that she must receive and be prepared to consider vote counts that are reported after that time. That was our principal objective in bringing the case, and indeed the court's opinion on this point is tantamount to the injunction that we sought.

We call now on the four counties to move ahead with their hand counts in accordance with this decision. These hand counts must, under the ruling by the circuit court, be considered by the secretary of state. And we certainly hope that she'll conclude that the lawful votes of the citizens of Florida should be included in any final tabulation.

The counties that are hand counting the votes have been working diligently to complete their onerous task. The principle delays in their efforts have been caused by uncertainties created by a series of improper pronouncements and opinions of the secretary of state's office. Several of those actions are under review, as you know, by the Florida courts at the present time.

In conclusion, let me reiterate that the most important thing now is for the counties whose manual counts are in process to continue and to complete their work.

Now, I'd like to introduce the newest member of our team on this point, David Boies.


I don't have anything to add to what Mr. Christopher has already said, but I'd be happy to respond to any questions that anyone has.

QUESTION: Mr. Boies, I'm curious about the secretary's reading of this ruling, because what it seems to say on the face of it is that it is the secretary of state's discretion as to whether she wants to take those results. She can take in the machine counts thus far, and if she deems that's the end of it, save for the overseas absentee ballots, then that's the end of it.

BOIES: Well, except that the court says two things: First, the court says that the secretary of state has acted arbitrarily and has abdicated her responsibility by saying that she would not consider the returns filed after 5:00 p.m. The second thing the court says is that when these new returns come in, when the final count is actually made, the secretary of state cannot arbitrarily refuse to accept it.

And indeed the court, on page 6 of the opinion, goes through and identifies the kinds of considerations that the secretary of state has to take into account: How late was the recount? What were the reasons for the recount? When was the recount asked for?

And I think if you think about those questions, you will see that each one of those questions is one that, if you answer them in the context of, "This is the reason that is either for or against considering the votes," they weigh heavily in favor of considering the votes.


QUESTION: That being the case, is the Gore campaign not going to join in any potential appeal to this decision, if you like it as much as you said you do?

BOIES: As you may know, Volusia County has already made an appeal. We're a party, and we'll make our views known at the time that Volusia County's appeal is heard.

But in terms of what we're doing, what we're doing is asking the counties now that they have been -- the veil has been lifted, they've been told go ahead and finish the recount as fast as you can.

And indeed, one of the things that I think we would emphasize to the county is that the court says that a factor in determining whether or not the recount is going to be accepted is how diligently the counties go forward.

Now, I think the county has been going forward very diligently so far, absent the interference from the secretary of state. But the issue now is that they need to really turn to that and get it completed as quickly as possible.

QUESTION: The secretary of state of Florida considered this opinion a victory for their side. And judging by her past comments, plans to go ahead and certify the election results. They have representatives out in these counties.

BOIES: I assume she's not going to appeal then.

QUESTION: No, what I'm asking is if she does, you know -- it's still at her discretion. Do you feel like you're going to have to go to court further, as a separate action from this appeal, to consider the issue of the late returns filed, the manual recounts?

BOIES: We would all hope that the secretary of state, having received this guidance from the court, would do the right thing. We would all hope that she would.

Some years ago, the Republican Party sued to get a special election held and the Supreme Court of Florida ruled that they were entitled to have a special election, but said, "We're not going to order it because we're confident that the governor, who had the ability to call that special election, once the governor sees the court's opinion, will do the right thing." And I think that we all hope that the secretary of state will do the right thing.

Now, if the secretary of state arbitrarily refuses to accept the amended returns based on the recount, and violates what this court has ruled is her duty, which is to accept those results unless she has a good reason not to, then we may be back in court. But we all hope -- we all hope -- that what is going to happen here is that the will of the people is going to be heard.

The Supreme Court of Florida has said many times that the purpose of an election is to let the people vote and let those votes be counted and to determine who voted for whom and let the winner win.

All we're asking right now is that those votes be counted and that we know.

Once they're known, then the secretary of state can take whatever action she wants to take, the courts can take whatever action they want to take.

QUESTION: The secretary of state may not think she is acting arbitrarily if she decides not to count the votes, and then you talk about more legal recourse. Well, what is that legal recourse if she is sticking so firmly to the statute, which is exactly what the judge said?

BOIES: Well, except what the judge said is that, under the statute, she could not simply say it ends at 5 p.m. He said that was arbitrary. And, in fact, he said it was an abdication of her responsibility.

Now, I don't know how many public officials are used to having courts declare that they have abdicated their responsibility, but usually when that happens they don't declare victory over it.


QUESTION: ... by your involvement in this case?

BOIES: I'm sorry?

QUESTION: What should we read by your involvement in this case? And how would you compare this case to the Microsoft case that you handled?

BOIES: I don't think there's any comparison.

QUESTION: The recount is going forward, but it's our understanding that they, themselves, are now tied up in court to one degree or another. Can you tell us what's happening from your -- where is that matter now? Is that at the supreme court, the... BOIES: It's changing literally hour by hour, and I'm not entirely up to date. What I do understand is, first, Palm Beach County had filed a petition, and I am told, although I don't have this on anything other than about third-level hearsay, that Broward County had indicated that it might join that.

I think that what the counties are looking for and have been looking for is guidance. And what we would hope is that this court opinion, and particularly if both we think this a good step forward and the secretary of state thinks it's a good step forward, hopefully the counties would join in and say, "OK, we're going to do what the court has said. We're going to file the returns that we have at the end of today the way they are, we're going to go ahead with the recount, and when we have the recount finished, we're then going to file the amended returns."

QUESTION: Are you premising those counties' actions on their request for clarification about how they can go forward with the recount?

BOIES: I don't know the answer to that. I'm not even sure that all those counties have joined. What I think is that, to the extent our views are made known to the Florida court of appeals, it is likely to be because of the Volusia County appeal, which an action we're already a party in.


QUESTION: If the secretary of state says that she is going to stand firm on this deadline and ignore the manual recounts if they go past that, what court do you seek recourse in?

BOIES: Well, if she -- this is a mandatory injunction. This is an injunction issued by a Florida circuit court, telling her that she can't just stand firm and say, "I'm not going to think about this after 5 p.m."

She violates that, she violates a court order. I don't think there's any chance in the world she's going to do that.

QUESTION: Mr. Boies, doesn't...


QUESTION: Does it not give her discretion? Does it not give her discretion?

QUESTION: Let me ask you this, sir? Secretary Baker came out here this morning and offered what he termed a reasonable compromise for the situation that's going on right now. That was summarily rejected by the Gore campaign.

Your attorney has just suggested that what the Gore campaign sees happening is potentially litigation down the road over these manual ballots.

When does the Gore campaign see an end to all this? And why don't you offer a compromise of your own?

CHRISTOPHER: Well, we see an end to all this in a matter of days and not weeks. We think this can be completed expeditiously.

You now, when I saw Secretary Baker this morning, it reminded me of something that my grandmother once said when somebody had made an offer to me. She said, you know, "That's like offering you sleeves from his vest." There was really nothing in that proposal that was new.

And we have a situation now quite different than what Secretary Baker said this morning. We have the secretary of state under a strong court injunction to consider these -- to exercise her discretion, but not arbitrarily -- after the votes come in, even if after 5 p.m. today.

QUESTION: But, Mr. Christopher, do you not see a yearning on the country of the two campaigns to come together and resolve this, not in the courts, but politically?

CHRISTOPHER: I see a yearning in the country for the votes to be correctly counted, and I think we're going down that path. That's what I see the country most interested in.

BOIES: There was a question back here that cut off.

QUESTION: Discretion is not subjective. Arbitrary is subjective. So does this not hamper discretion?

BOIES: I would think that both arbitrary and discretion have both objective and subjective qualities to them. The court obviously thought it could make an objective determination that she had acted arbitrarily.

In the law, when somebody has discretion, they have to exercise that discretion reasonably. If they exercise that discretion reasonably, then they're upheld. If they exercise that discretion arbitrarily, they're not. And it's up to a court to decide that.

But in response to the question that was back here, all that this campaign is attempting to do is to get the votes counted. Nobody's trying to litigate this issue. If they'd just let the votes get counted instead of going into federal court, which is what the Republicans did down south and tried to get an injunction to stop the votes being counted, or instead of having the secretary of state trying to arbitrarily and prematurely stop the vote count, there wouldn't be any litigation.

The only litigation that's right here is litigation that's necessary because either the Republican Party has brought it to stop the vote count or because it's been necessary in order to permit the vote count to go forward. All we're seeking is to have the votes counted and counted properly as Florida law specifies. Florida law specifically provides for a manual recount.

Until yesterday, nobody doubted that. All of you were reporting that everybody had a right to a manual recount if they demanded it, and that was the law, it's still the law, and that's what this court has ruled is the law.


QUESTION: Are you suing Broward County? Are you suing Broward County? And are you trying to change the standards on which these recounts will be judged? And how do you jibe that with previous statements you want locals to handle it?

BOIES: Yes, yes, no.


QUESTION: If you're not interested in litigation, either side, Secretary Christopher or either one of you, tell me when the last time the two campaigns have talked about this outside of a courtroom? Is there any discussions that are happening outside of a court?

CHRISTOPHER: No. I ran into Mr. Baker at breakfast this morning, and we greeted each other at breakfast. But beyond that, there's nothing that I know of.

Thank you very much.

UNIDENTIFIED MALE: Thank you, everybody, and that was the last question.

WATERS: All right. Secretary -- former Secretary of State Warren Christopher with the newest member of the Gore campaign's legal team. That would be David Boies, whose name you may remember -- there was some allusion to it in the news conference there to the Microsoft case; he took part in the government's case against Microsoft -- who essentially said it's all about getting the votes counted. That's what the litigation at this stage is all about, according to Mr. Boies.

What had earlier been characterized as a victory for Republican George W. Bush apparently is in the eyes of the beholder, Greta Van Susteren, as to how this judge's ruling is being interpreted.

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: That's right, Lou. You know, we lawyers always claim we won, no matter what. But let me tell you, I think I might see light at the end of the tunnel, based on the judge's order.

Here's what has to happen. First of all, the Democrats want the manual count to go forward. That's dependent, of course, though, on what happens here in Palm Beach County. In the event that the manual count does go forward -- and right now it's at stop -- but in the event it does go forward, if Gore prevails, he will then go back to the secretary of state and ask that she reconsider and recertify the vote for the state of Florida. If she declines to do that, then the Gore campaign says they are going to go to court.

Of course, if there's a manual recount and Governor Bush wins, that will end it as well.

Here's how it could explode on us, though. The first thing is that the secretary of state refuses a recertification or to consider a manual recount in the event that one is done and Gore prevails. That could cause more litigation. Or if after there is a manual recount and Vice President Gore is the winner then, what if then Governor Bush tries to get some of the counties here in Florida that are predominantly Republican counties recounted. Of course, there are deadlines as to when that can be done.

But much depends, at this point, will Palm Beach County have a manual recount or not? Right now, the Palm Beach canvassing commission has got the recounts suspended, the manual recounts suspended, and they are going to the state Supreme Court in Florida for an advisory opinion, a declaration, to find out whether or not it's proper for them to do a manual recount.

Remember, they have two opinions: one from the secretary of state, which says that they cannot do a manual recount, and one from the attorney general of the state, Mr. Butterworth, who says that they can do a recount.

So right now, I think we should keep our eyes on if they do go to the Florida Supreme Court, which is expected, and secondly, what's that Florida Supreme Court going to say. Will there be a recount here or not?

WATERS: So -- so Palm Beach County is a trouble spot in all of this because of the injunction prohibiting the certification or prohibiting a recount? And...

VAN SUSTEREN: Well, no, it's -- it's not prohibiting the recount. What the injunction here -- and there's a discussion going on right now. The lawyers for who -- for the citizens who have brought the lawsuit here is that there is an injunction against Palm Beach County certifying its county to go to the secretary of state so she can certify the state. That's what the injunction is.

But as a more important side issue, at least a significant one, is whether there will actually be a manual recount of the entire Palm Beach County. That's what's being held in suspension and that is the advisory opinion that is wanted from the Florida Supreme Court. Is it lawful and correct to have a manual recount for the entire county or not?

WATERS: And as you understand it, manual recounts that already are under way and may not be completed by the 5:00 p.m. deadline today, the Gore campaign seems to be suggesting that those manual recounts must be considered by the secretary of state.

VAN SUSTEREN: That's right, and that's because of Judge Lewis' decision, which said the secretary of state after 5:00 p.m. may consider the manual recount votes later. Now, we don't know what those tallies are going to be. We don't know that if Vice President Gore is going to get more votes or Governor Bush will get more votes. We simply don't know. But we may have litigation if there are more votes on behalf of Vice President Gore that would put him over the top to win the state of Florida, and if they then go back to the secretary of Florida and said, "Hey, look, we've done the manual recount in these counties, the votes -- we want you to consider these votes, and Vice President Gore now is the winner," and she says, "No, you're out of luck, I'm not going to do that."

Then they go back into the court to find out is it an abuse of discretion for her not to reconsider her decision on who to certify as the winner here in Florida.

WATERS: Is there any legal urgency about the Florida Supreme Court business, for instance?

VAN SUSTEREN: Well, I don't know if there is any legal urgency on the same particular rule, but there certainly is a lot of pressure on the Florida Supreme Court: I mean, not just from the people here in Palm Beach County or Broward or Volusia or the other counties that are predominantly involved in this, but there's pressure statewide and also across the country, because everybody is waiting to see what will happen, and we're also just waiting to see how -- you know, which direction to follow. And it really, the ball is in the court of the Florida Supreme Court to say whether the recount should go on in Palm Beach County.

WATERS: All right, Greta Van Susteren, who's in West Palm Beach keeping us posted as this legal roller coaster continues on its wild ride -- Natalie.

NATALIE ALLEN, CNN ANCHOR: Let's here from our senior Washington correspondent, John King, who is with the Gore campaign in Washington -- John.

JOHN KING, CNN CORRESPONDENT: Well, Natalie, this is as much of a political calculation as a legal calculation. Remember, right now, we have lawyers fighting, the Gore campaign saying they're being treated unfairly. Their calculation here is that while they didn't get an injunction from this Judge Lewis this morning, that he was sympathetic, and that in his ruling he did not have the authority to order the secretary of state to extend the deadline, but if you keep reading, that it would be arbitrary for her not to consider results filed later by those counties.

So the Gore calculation is this: that she will certify the results today and that Al Gore will lose the state of Florida. But they're hoping at least three of those four counties go ahead: Miami- Dade, Volusia and Palm Beach County. More than a million votes cast in those three counties. They are hoping those hand recounts continue. The vice president makes up more than the 388 or 400 or so votes he is behind now. And then those counties come back to the secretary of state and try to file their results.

If the secretary of state says no then, it will not just be the Gore campaign complaining they think. They think they will be able to go back to a judge and have a Florida judge saying the Florida secretary of state is acting inappropriately. That takes the politicians out of it. That, they believe, is the stronger position to be in, in the court of public opinion, which is very important now here as this drags on, because the fear of the Gore campaign, even as they argue they are right on the facts and right under the law, is that the public will grow tired of all this and want an end to this.

So what they're trying to do is have a process unfold in which they hope the vice president will pull ahead, they hope then the secretary of state will accept those results, and if she does not, they will go back to a state court judge and say, you say she should consider these results, it is your duty as a judge now to tell her to consider these results. Very complicated here, but every legal step along the way, politics factored in as well -- Natalie.

ALLEN: Sure. And does the Gore team feel like that these hand recounts will take place in Dade and Palm Beach Counties?

KING: Well, in Miami-Dade County, a decision just in the last short time to start with a partial recount. What most of the counties do when they do this is they count a limited number of precincts first and then they see if there is a discrepancy between the results initially reported in those precincts and the results reported through the manual recount, and if there is enough of a discrepancy, then they go forward with the broader hand recount. So, a partial process to begin in Miami-Dade county. Of course, as Greta was mentioning, a legal controversy over whether to do the process in Palm Beach County at all. Volusia County coming to near the conclusion of its process.

Again, add it all up, the vice president hoping for enough votes to pull ahead, hoping to create a political environment -- remember, yesterday they came out playing hardball, saying Secretary of State Katherine Harris was a close associate of Governor Jeb Bush, went to New Hampshire and campaigned for Governor George W. Bush, trying to create the environment in the court of public opinion, again, that this is a Republican appointee trying to rush this election to judgment. So, every legal step along the way, the public political argument factored in as well.

ALLEN: And does the Gore campaign have a certain day they would like to see these hand recounts completed?

KING: Well, certainly they think it would be cleaner, if you will, if all of them were completed in time for this coming weekend. It is Friday when you must count those overseas absentee ballots, so then by Saturday you would have the final certification of the election under normal procedures. But because of all the delays, because of all the fits and starts over whether to conduct these recounts, whether the counties have the authority to have the recounts, the legal fights in the county courts over how to proceed with the recounts, nobody is certain you can have it done. Again, it's more than a million votes, I believe, if you just do the three counties of Volusia, Miami-Dade, and Palm Beach.

Now, Volusia is almost completed, so hard to say if they could get it done by Friday, but at least in public, you heard former secretary of state, Mr. Christopher say, we believe this could be done in a matter of days, the last thing they want to do is send a signal that this will go on for week's more. So, they hope to have it done by the end of this week, if not, by early to middle of next week.

ALLEN: John King in Washington.

Thanks, John, and now over to Lou.

WATERS: There is one thing we can be sure of in this story is another development anytime soon. We are expecting the first reaction from the Bush campaign to the circuit court judge's ruling down there in Tallahassee. Mindy Tucker, the Bush campaign's press secretary will be stepping before the cameras very soon. Within the -- within a half hour or so we are also expecting the Florida secretary of state, Katherine Harris, who is at the center of this decision by the judge this morning, also expected to step before cameras in Tallahassee.

We're continuing to cover the election story. Who will be the next president of the United States? It seems like we're getting closer to knowing the answer. We'll be right back.



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