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Larry King Live

Will Florida's Courts Add Another Chapter to the Presidential Epic?

Aired December 7, 2000 - 9:00 p.m. ET

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

(BEGIN VIDEO CLIP)

CLERK: Hear ye, hear ye, hear ye! The Supreme Court of the great state of Florida is now in session.

(END VIDEO CLIP)

LARRY KING, HOST: Sound familiar? Tonight, showdown at the Florida Supreme Court. It's day 30 of the presidential waiting game. What's going on with all those absentee ballots?

Joining us in Tallahassee, Barry Richard, lead Florida counsel for the Bush campaign, and from the Gore, senior legal adviser Ron Klain. And then the plaintiff in that absentee ballot case in Seminole County, Harry Jacobs, and the man representing Katherine Harris, her attorney, Joe Klock. And then squaring off in the political ring from Washington, Democratic Congressman Robert Wexler of Florida in Tallahassee, Republican Congressman Asa Hutchinson of Arkansas.

All that plus legal experts and a political roundtable, next on LARRY KING LIVE.

We begin with Ron Klain, legal adviser to the Gore camp. He is with us from Tallahassee. Based on the arguments today and the questions from the Florida Supreme Court, Ron, how do you think you're going to make out when they announce supposedly tomorrow?

RON KLAIN, GORE LEGAL ADVISER: Well, I think that it's a mistake obviously for a lawyer to predict how a court is going to come out, but I thought we had a very good day today. I thought Mr. Boies did a great job presenting our case, and Larry, I think we're right obviously.

You know, we are asking the court to do something very important but straightforward: authorize a count of those 14,000 votes so that the people of America and the people of the state can know which candidate got the most votes.

KING: Do you think, Ron, if they were siding your way, they would have come out with the decision more quickly, like tonight, so counting can start faster? KLAIN: Well, again, I think guessing, that's always very hard. I think that this is a very important case. It's a very complicated case, and I think it's certainly understandable that this court wants to do a thoughtful and careful job of analyzing the briefs, the arguments, and reaching a very thoughtful opinion.

Last time when this issue was before the court, they issued a very thoughtful, lengthy opinion, and I wouldn't surprise me if they were doing the same thing now, Larry. So I don't think you can guess, based on the timeline, which way this court's going to come out.

KING: Can we say certainly they'll be a decision tomorrow?

KLAIN: Well, I don't think there's any certainty to it. It's obviously up to the Florida Supreme Court to decide when they'll rule. I think that again the last time they heard this case it took them two days. That would suggest possibly a decision tomorrow. But I think anything is just guesswork on the part of us lawyers, and our job is to write the case and present case, and then now it's up to the court to decide when and what they're going to decide, of course.

KING: With what you know of the Seminole County and the Martin County cases, and the idea that the Martin County judge will announce his decision at noon tomorrow, a written decision, the judge in Seminole a written decision -- didn't tell us when -- but he is going to talk with her. Does that surprise you?

KLAIN: Well, not really. I think that Judge Clark, Judge Lewis, the two judges in those cases, are very well-respected judges here in Tallahassee, and I think are going to do a very thoughtful job on that case, too, and you know, we'll see what they decide when they decide it.

KING: Is it over if they lose in the Supreme Court tomorrow, Ron? Is there any other avenue open to you?

KLAIN: Well, Larry, obviously, I think we're not going to lose in the Supreme Court tomorrow. We wouldn't have gone there. But I think that the Supreme Court of Florida certainly is the final arbiter on Florida law, and that's what we're focused on. And I think the most important thing is to let that court decide and we'll go from there.

I do think in the end what this is about for us is getting those 14,000 votes counted, and in one sense, it isn't over in this one -- at least in this one sense. You know, some day, historians, journalists will count those votes, and the American people will know who got the most votes. So the best thing for everyone is to have that count done before our next president is sworn in and not afterwards.

Until those votes are counted, there will always be a doubt, and wouldn't it be better if we resolved that doubt now before our next president is sworn in instead of later?

KING: Thanks, Ron. Ron Klain, legal adviser to the Gore camp. Now let's talk with Harry Jacobs, plaintiff in the Seminole County absentee ballot case, the gentlemen that bought -- that brought the case to court in Seminole County, a strong supporter of the Democratic Party. What led you to file this case, Harry?

HARRY JACOBS, PLAINTIFF IN SEMINOLE COUNTY CASE: I was a Democratic observer during the recount process when I came across some wrongdoing by the Republican Party. Apparently, the Republicans supervisor allowed several Republican operatives to come into her office, actually co-opt her office for purposes of getting out the Republican vote in Seminole County. I thought that was wrong, so I filed a protest. When no action was taken, it left me no choice but to file this complaint to contest the election itself.

KING: The critics who are saying that you're a pawn in the Gore camp and all of this, that he's running the show, you've checked with them on everything. True or not?

JACOBS: That's not true, not true at all. As a matter of fact, I sought assistance on several occasions and I was turned down each time.

KING: Did that surprise you, since you're a big supporter of the Democrats, that they would turn you down when you sought assistance?

JACOBS: Not at all. I think in this particular case, the difficulty was with the American people understanding exactly what I was doing in this particular case. And what I was attempting to do really was not inconsistent with what Vice President Gore was attempting to do, which is to see that every individual, every individual's vote counted. In this particular case, I would have to qualify that to say that every individual's correct legal vote should count.

So I don't think our positions are inconsistent, but I do think that perhaps some people might find it difficult to understand that with the media perhaps putting an odd spin on it.

KING: Harry, as an observer, how well do you think your side did today in court?

JACOBS: Well, I -- I think I have a great attorney in Gerald Richman. I was very, very pleased with the job he did. I think we've got the facts on our side. I think we've got the law on our side. I think the difficulty with our case is crafting an appropriate remedy. I think Mr. Richman, through the statistician, gave our judge, Judge Clark, an opportunity to do something less than throw out the 15,000 ballots, and we'll just have to wait and see what Judge Clark decides to do.

KING: So you're confident you might win out in this whenever this verdict comes down?

JACOBS: You know, I -- I think that -- I think -- I would like to think that we have a very, very compelling case. In this particular case, there -- you know, there are -- let me start by saying there are a limited number of employees in the supervisor's office. They were working overtime because they found it difficult to meet daily requirements.

Along comes these two Republican operatives, the Republicans supervisor of elections holds a meeting. She calls in every member of her staff, and she says: We must treat these Republicans differently. We are going to allow them an opportunity not only to come in, but I'm going to put you to work. You're going to have to, you the staff, are going to have to segregate absentee ballot requests and absentee ballot materials, and provide them to these two Republican operatives, so where they could be contacting other voters, helping other voters -- whether they're Democrats, independents or others -- they took the time away from their normal daily responsibilities to go to work for these two Republican operatives, more or less to go to work for the Republican Party. I think this is wrong.

KING: All right, I'm running out of time. Gerald Richman, the attorney for Harry Jacobs, how well do you think you're going to come out in this?

GERALD RICHMAN, ATTORNEY FOR PLAINTIFF: We feel very good about the case. We -- I mean, right now we've got the law presented, we've got the facts. I think the facts are very compelling. I think the only thing that could be troubling the judge at all is the remedy, and that's the argument. The other side goes ahead and says, well, it's a draconian remedy and you can't do that. But the fact of the matter is that in the city of Miami case 40,000 ballots were thrown out.

And the problem is where do you draw the line. Where a party goes ahead and succeeds in doing what they've done, in violating the law, the practical effect of it is it's co-mingled. So either throw them all out or you don't throw any out, or you come up with a fair proportional amount. And even the fair proportional amount we proposed is only -- we lower it 1,500 votes. It's about the minimum that would be thrown out. So in either event...

KING: We'll learn soon enough.

RICHMAN: ... Vice President Gore would be helped.

KING: Harry Jacobs and Gerald Richman, thank you. Ron Klain earlier.

When we come back, Barry Richard. I'm Larry King. Don't go away.

(COMMERCIAL BREAK)

KING: We now welcome -- I guess we can call him the most familiar figure in all of this -- Barry Richard, the lead Florida trial counsel for the Bush campaign.

Happy anniversary to you and Alison (ph)! It's your fourth anniversary. I know everything about you, Barry.

BARRY RICHARD, BUSH CAMPAIGN ATTORNEY: Thank you.

KING: You don't look joyous. Are you happy tonight? RICHARD: No, no, I'm very happy, Larry. Alison is a wonderful wife. We've had a nice relaxing evening for a change.

KING: How did it go on your side do you think today, first in the Supreme Court?

RICHARD: Well, it was fine. I can say -- you know, there are some appellate arguments where the court clearly broadcasts where it's coming from, and you walk out of the argument, and all of the lawyers on both sides will feel that there was a very clear message. That's rare. And this was not one of those cases.

The court was active. They asked a lot of questions. I suspect that the lawyers on both sides are engaged in pretty much the same speculation, and none of us know where the court is going.

KING: They jumped on a case that was never mentioned in your briefs or the other briefs that the Supreme Court jumped on, which seemed to favor your side. Yet they asked both sides questions, and one that they asked you is why you didn't bring that case up. Why didn't you?

RICHARD: Well, actually, we had raised the issue, but we hadn't cited that particular case, which the Supreme Court cited. And I -- it's difficult for me to respond to that, because with all that I've had on my plate in the state litigation I've had to be uninvolved in the federal litigation. So I don't know what the strategic thinking was in how those briefs were prepared.

KING: Now, I know we don't like to read into it: Any reading into the fact that they did not make a decision today?

RICHARD: No. I believe that the court was going to make a decision. And by the way, Larry, they may have made a decision today. What that court usually does is immediately after the oral arguments they have a conference in which they discuss the case, and they vote, and they determine whether or not -- who's on majority or what kind of a unanimity they have. They may well have done that today.

Then the hard part starts -- sometimes the hard part, I would think -- of their drafting an opinion. And most of the courts that have been involved in this -- the United States Supreme Court, the 11th circuit and the Florida Supreme Court up to now -- have attempted to achieve unanimous decisions, because I think they believe it would be better for the country.

So their struggle might have been to attempt to achieve, if not unanimity, a strong majority, and then to write an opinion that would satisfy that kind of a majority.

KING: Now, the good lawyer has to be prepared, so it's fair to ask. If you lose tomorrow and they say, start counting immediately, and they set up a whole counting apparatus, where do you go?

RICHARD: The nature of this case, which has moved on many fronts at light speed, is such that we have always had to prepare for every contingency. So the answer is that we are prepared to file appeals and briefs not only in this case, but in the several other cases that are pending: not because we anticipate losing, but because, as I say -- and you know, we also anticipate the possibility of appeals either way.

KING: All right. So the only appeal of this court, the Supreme Court, is to United States Supreme Court, isn't it?

RICHARD: That's correct.

KING: Now, the other two cases, you argued in one of them, right?

RICHARD: Yes, I did.

KING: How do you -- how do you -- how can you keep up with two disparate cases like that?

RICHARD: It's not that difficult if you understand what the issues are and you've been immersed in it for so long. I know people have asked me whether I've walked into one courtroom and argued another case by mistake, because I've had days when I had four or five cases that I was involved in, and that hasn't happened yet. I suppose if this continued, it might be a risk.

And by the way, let me back up to one of your questions for a minute. There's also the possibility that we would end up back in the 11th circuit, which, as you know, has a case, and they did not render an opinion because they concluded that there was not a necessity to do so because Florida had certified its electors. If the Florida Supreme Court were to decertify the electors, it's possible that the 11th Circuit also would be revitalized.

KING: In Seminole County, it's obvious something -- somebody did something wrong, right? The question is severity?

RICHARD: No. Nobody did anything wrong. It's been made it's a constructed conspiracy. What happened in Seminole County -- first of all, we're not dealing with ballots. We're dealing with forms to request an absentee ballot. The forms, both parties mass mail those forms out. The difference was that the Democratic Party had the forms returned to the Democratic campaign, where they could make sure that the voter identification numbers and everything else were correct before they turned them into the supervisor. The Republicans had the return address directly to the supervisor. The supervisor discovered that a number of the Republican forms didn't have the necessary voter identification number, and so she made the forms available to persons with the Republican Party to fill in accurate numbers. That's the only thing that happened.

KING: And the law permits that?

RICHARD: Yes, it does permit that. As a matter of fact, the law, which is very clear, is that those -- first of all, it's not -- there's no law that prohibits it. And second, the law clearly provides that minor violations of statutory provisions are not sufficient to invalidate ballots.

We're not talking about anything here that affected the integrity of the ballots. Do you think that ballots should be invalidated because somebody put accurate information on a request for an absentee ballot form? That would be ridiculous.

KING: I thought there was a law that the legislature passed in '99 that only the person, a person designated by the person can do that.

RICHARD: Well, no. What the law says is that the voter has got to be the person who requests the ballot, which, by the way, you can do by telephone as well as in writing. All of these voters requested the ballots by signing. The secretary of state's office has indicated that that means the voter himself must sign the request. But that doesn't mean that another person can't assist by filling in a blank with accurate information.

And by the way, it had to be accurate information, because if the number were inaccurate, the request would have been invalidated.

KING: The loser in Seminole and Martin will no doubt appeal to the Florida Supreme Court, right?

RICHARD: I'm sure everybody is going to appeal to every court in existence, because that's what we've been doing for the last three or four weeks.

KING: As an attorney -- we've asked this before -- you obviously, you were never involved in anything like this. Has it taught you anything? Can it help you in future cases?

RICHARD: Well, I doubt that we're going to have another case similar to this again, but what it's probably done is every case after this is going to be a lot easier.

(LAUGHTER)

KING: Nothing will compare to this one.

RICHARD: That's correct.

KING: Happy anniversary, Barry.

RICHARD: Thank you, Larry.

KING: See you tomorrow night. Barry Richard, lead Florida trial counsel for the Richard campaign -- this is becoming "Barry Richard Live." When we come back, Joe Klock, the attorney for the Florida secretary of state. Don't go away.

(COMMERCIAL BREAK)

KING: Now, we'll spend a few moments with Joe Klock, the attorney for Florida secretary of state, Katherine Harris. He addressed the Florida Supreme Court as well today. How is she holding up under all of this, Joe?

JOE KLOCK, ATTORNEY FOR FLORIDA'S SECRETARY OF STATE: She is doing very well. She's strong. She's been under a lot of pressure, but everyone worked who's worked with her has been extremely impressed at how she remains focused on whatever the mission is and kind of ignores all of the -- the public relations problems in the outside.

You know, she's been criticized from both sides, but she stuck to her duties and remained relatively isolated through this entire process and done a very impressive job, I think.

KING: Kind of like a "no win," though, isn't it, Joe?

KLOCK: Yes. She -- she said to me one night when we were sitting around that she didn't know how many years she was going to spend in public life, but she wanted to make sure she did it correctly. And I teased her about the fact that she probably intended to spend her time when she took the job going to cocktail parties and opening art museums. And it's been very different than that.

(LAUGHTER)

KING: What's the role, Joe, of the Florida secretary of state, if the Florida Supreme Court rules against Bush tomorrow and orders a count and the count comes in favor of Gore? Must she by law certify new electors?

KLOCK: It depends on how it comes down, but obviously, her job is not to advance either side, but to do what is proper. So if the Florida Supreme Court orders a different method of counting, and when you count them, there's a different winner, that's what she would have to do.

KING: Was it a troubled, tough decision not to let Palm Beach finish?

KLOCK: It was easy. The Florida Supreme Court in their decision said that if the office is open on Sunday we had to have the returns in by 5:00 p.m. that afternoon. If the office wasn't open on Sunday, it was 9:30 the next morning. There was no discretion, no leeway, and we told her she had no choice.

KING: And you know, so as legal adviser, you told her 5 o'clock is 5 o'clock?

KLOCK: 5 o'clock was 5 o'clock, not 5:01.

KING: Do you have any thoughts on the legislature getting involved, Joe?

KLOCK: Well, you know, that's not really -- that's not really our department. I guess there's two views of it. I mean, it's obviously -- you know, it's a Republican legislature, but of course, that's because the people voted in a Republican legislature. I mean, it's not as if a guerrilla team attacked the building and took it over.

I think that their view is, is that they have to be poised to do something if the contests aren't resolved. It's my hope that they will be resolved and that won't be necessary, because it's a little awkward.

KING: I know attorneys never guess how a court's going to rule. How did you think you did in the United States Supreme -- in the Florida Supreme Court today?

KLOCK: Well, you know, part of it, of course, is just surviving. I was extremely impressed -- I was really impressed with how prepared the court was, and also the fact that they were kind of nice about the fact that they apparently considered that they had been sort of sandbagged on this Blacker issue that really had not been briefed by the court. And I think that what they're doing now is not only considering their decision in terms of Florida law, but now considering this extra impact that the federal law would have. And I think that's probably what they're spending a lot of time dealing with.

KING: And you're not questioning their integrity in this at all, are you?

KLOCK: Oh, no, not at all. I was very proud of the court today. I thought they -- they looked good, and I think all Floridians felt good about it as well.

KING: Thanks, Joe, always good seeing you.

KLOCK: OK, sir. Take care.

KING: Joe Klock, the attorney for Florida's secretary of state, Katherine Harris.

When we come back, our nightly legal panel of Floyd Abrams, Viet Dinh and Roger Cossack jump in. Don't go away.

(COMMERCIAL BREAK)

KING: Let's welcome our legal eagles: Floyd Abrams in New York, the famed constitutional attorney, and in Washington, Viet Dinh, professor of law at Georgetown University Law Center, and Roger Cossack, the CNN legal analyst, co-host of "BURDEN OF PROOF" and pinch-hitter for Larry King on LARRY KING LIVE.

All right, Floyd, based -- first on the Florida Supreme Court, how did you make it? How did you think those arguments went today?

FLOYD ABRAMS, CONSTITUTIONAL ATTORNEY: Well, the court asked questions, you know, all over the place, tough questions of both counsels, all counsel. Just from listening alone, you'd really have a hard job trying to make even a guess as to who's going to win.

But I have to say that this is a situation in which Vice President Gore is the one who's got a -- a lot more hills to surmount. He's really got to do more to win. He's got to win on the law. He's got to win on the facts. He's got to show there's enough time to give them a remedy which will make everything OK. So I think he's still got to be said to be the underdog as we go into tomorrow.

KING: Viet Dinh, would you agree that that's true, and do you think we'll have a decision tomorrow?

VIET DINH, GEORGETOWN UNIVERSITY LAW CENTER: I do think that we will have decision tomorrow. The court was very conscientious today, and it seemed like they were very well-prepared. And they answered your question you posed to me last night, whether they read the briefs or not. It was very clear they read the briefs. They not only did that, but read a whole bunch of cases that were not even cited in the briefs.

And their question about McPherson v. Blacker I think posed the issue very well. They have pushed this boulder up the hill once before, and it came back down, almost ran them over in the process. And now they're trying to see whether it's worth the effort to roll it up again, or -- like Sisyphus, or simply to try to see what the impact of that hill is before they make their decision.

I think it is a very conscientious court. I think it is a court of high integrity, and they're simply trying to do their job the best way they can.

ROGER COSSACK, CNN LEGAL ANALYST: You know, Larry, if I just could jump in a second...

KING: Roger, you have said -- Roger, you have said...

COSSACK: Yes.

KING: ... that the deal is done. Do you think...

COSSACK: Yes.

KING: ... therefore that he's cooked, Gore's going to lose tomorrow?

COSSACK: Yes, yes. I think that. I do think that. I agree with my colleagues that it's an uphill battle for Vice President Gore. I think the thing that today to me was a tip was when the court started asking questions about if we ordered a recount, can we just order a recount for those three counties, or don't we have to order a recount for the entire state, and if that's true, how do we get it done by December 12th.

And you can't get it done by December 12th if you're going to order a recount of the entire state, which may be the answer, considering it's an election for the president of the United States, not a local election. So I think there's some real problems here.

KING: Floyd Abrams, what about the Seminole and Martin County cases? ABRAMS: Tough cases. You know, Larry, I think that they are both cases in which wrongdoing has been shown, in which favoritism has been shown, maybe even illegality's been shown. But even so, I just don't think that either judge is going to go so far as to throw out thousands and thousands of votes of people who meant to vote for Governor Bush, because the Republican Party in Florida misbehaved.

So I think, you know, Vice President Gore has got a gripe, I think the Democrats have got a gripe, but I just don't think they're going to get any real relief.

KING: Viet, what would the remedy be then?

DINH: Well, if this is true, that it is a class 3 felony, that this provision is actually mandatory rather simply -- rather than simply prescriptive, then the remedy should be to sanction the public official involved, Ms. Goard, and the offending Republican Party officials. That seems to me rather clear. You don't throw out the votes simply because somebody along the process messed up the application when it is unbeknownst to the voter.

KING: And Roger, what do you make of those cases?

COSSACK: You know, Larry, there is a case that we've heard talked about through -- by the lawyers, the Beckstrom case, and let me just tell you sort of briefly what it stands for. It stands for the proposition that stuff happens, if you know what I mean, and when you have a major election where there's 5 or 6 million votes, there are going to be some things that happen that aren't necessarily the way you would have it happen. And unless you can show fraud or gross negligence or something of that level, the courts are going to say, you know what, that's just the way sometimes things happen.

KING: Thanks, guys. Abrams, Dinh and Cossack. They'll all be here tomorrow. Count on it.

Congressman Asa Hutchinson, Congressman Robert Wexler, next. Don't go away.

(COMMERCIAL BREAK)

KING: Let's talk a little politics with Congressman Asa Hutchinson, Republican of Arkansas. He's in Tallahassee. He was a Bush recount observer in Florida and Congressman Robert Wexler in Washington. He's a Democrat and he represents parts of Palm Beach and Broward Counties, the first ones involved in this. Nobody knows what a court's going to do, so we'll ask these gentlemen about politics.

Congressman Hutchinson, how well is this Congress going to work together?

REP. ASA HUTCHINSON (R), ARKANSAS: Well, I think it can be done. It's going take some leadership, but once we have a new president that's sure and the American people can support, then Congress will work together. It's a job that we've got to do. I know that at the rank and file level, we're reaching out right now. There's a lot of legislation we can work together. I think that if Governor Bush is president, which I hope that's the case, that he's committed to working in a bipartisan way.

I think there is a lot of intensity in America today because of this election, the closeness of it, but it's going to take some leadership in Washington to bring this together and bring our American people together as well.

KING: And more important for you, Congressman Hutchinson, what if Gore is the president? Will you work with him? Do you commit to working with him as you do with your own president from your party?

HUTCHINSON: Absolutely. I'll be there on Inauguration Day if that is the case. I will work with him. We'll work across the aisle and if he comes through this as the president, I would certainly support him in that. He'll be our country's president and I think that's got to be the attitude on both sides. And it's been a tough campaign but the election is over and the time for governing is upon us and we've got a real opportunity to do that.

KING: Congressman Wexler, do you say the same if it's President Bush?

REP. ROBERT WEXLER (D), FLORIDA: Well, if it's President Bush. of course I would work with him, and if the Republican leadership in the House takes a moderate, centrist point of view reflecting America's voters' wishes, we'll get things done.

But unfortunately, Mr. DeLay today, the Republican leader, already said they're going to take a hard right conservative agenda and that's what he thinks The American people want and that's wrong. But let's talk a little bit about President Bush. What we need to do to make sure that if in fact President Bush is the president, we've got make certain that all of the votes in Florida are counted, and if all the Florida votes are counted, there won't be an issue.

(CROSSTALK)

KING: Well, the court's going to decided that now. The courts -- that's now in the court's hands, and you don't know what they're going to do. No one knows what they're going to do. But it's in their hands.

(CROSSTALK)

WEXLER: No, no one knows what they're going to do, but there are two realities, Larry. One is we can count the votes before the next president is chosen therefore making a legitimate president or we can have them not counted and have them counted in January or February by "The Miami Herald" or "The Washington Post" or CNN and we'll know who won then and what if, Larry, we find out that the president who's in office didn't really get the most votes? That'll be a terrible travesty.

KING: Congressman Hutchinson, what did you make of the remarks of Congressman DeLay? HUTCHINSON: Well, there's a split in our conference right now, and DeLay represents a side that believes that we'd be better off holding it tight, not increasing the budget this year and waiting until if Governor Bush is president, waiting until he comes on board and he can sort it out himself. The other view is that we need to give President Bush a fresh start and need to get it down now.

I think that we certainly want to hold the line on the budget and I think that there are some other issues that are out there we have to be careful about such as the school construction money, making sure we maintain local control, but we need to negotiate. We need to work with the president. We get the job done now and I believe we have an opportunity do that and I think that our leadership will be moving in that direction.

KING: Congressman Wexler.

(CROSSTALK)

WEXLER: Unfortunately, Larry neither side, Democrats or Republicans at this point in time should be saying, my way or the highway and that's unfortunately what the Republican leadership, Mr. DeLay said today in Washington. It's our way or no way and that's exactly what got us into this mess in this first place, and I would hope maybe there'll be an uprisings of moderate Republicans that say, no let's do this in a moderate way, pay down the nation's debt, do something good for public schools but that's not what heard from the Republican leadership today.

KING: Congressman Hutchinson, would you agree that we are in a moderate mode?

HUTCHINSON: Well, I'm not sure I would characterize it that way. i think that we're in a mood to work together. I think the American people expect the Congress of the United States to work with the president when we have a divided government like this and resolve our differences. We won't agree on everything, but let's get the common ground and get it done. And so I think that's the mood we're in today.

In reference to Congressman DeLay, I don't think what he said was threatening. I that think that what he said was that he wants to take a very conservative position on this. I don't believe that means we're not going negotiate, we're not going to try to work this out together. At least -- and that's what I think that we need to do and that's what the American people expect us to do.

KING: And you hope they do, right Congressman Wexler?

WEXLER: Oh, I hope they do, but I think most objective people would say that Mr. DeLay -- he's a very shrewd politician. He doesn't just say things for the point of saying them. He sends messages and the message that he sent to his party and his followers is this is going to be a hard right, Republican Congress so long as Tom DeLay has got a meaningful role and that's what America needs nor should they accept it. KING: Congressman Asa Hutchinson, Congressman Robert Wexler. When we come back, two members of the state legislature of Florida. They're in session tomorrow. Don't go away.

(COMMERCIAL BREAK)

KING: We now welcome both in Tallahassee Lois Frankel, Democrat, Florida state representative and house minority leader, and Johnnie Byrd Republican Florida state representative, co-chair of the select joint committee to appoint presidential election. Let's start with Johnnie Byrd.

Johnnie, if the court goes against Bush tomorrow and orders a recount and the count goes for Gore, are you going as a legislature appoint electors against the courts?

JOHNNIE BYRD (R), FLORIDA STATE REPRESENTATIVE: Well, Larry, I think the real issue is this litigation has gone on for four weeks and we have a litigious loser who will litigate forever, it seems. So, we've got to exercise our constitutional duty and responsibility to lend some finality to this election.

KING: But what, Johnnie, what if the court does overrule tomorrow and overrule the circuit judge? What if there is a recount and what if Gore wins on the recount? Are you saying that he didn't win?

BYRD: Well, I think you can count these votes forever. The real question is, why did the recount stop in Miami-Dade and I think the reason that it stopped is that the vote trend was going toward Bush. So, we can count and count forever and litigate forever but to make sure that Floridians are represented in the Electoral College, we need to put some finality to it.

KING: Lois, do you have a constitutional crisis and are you right in meeting?

LOIS FRANKEL (D), FLORIDA HOUSE MINORITY LEADER: Well, my good friend Johnnie Byrd didn't answer your question. We've had an election. Six million Floridians went the to polls and we're just waiting for the election process to play itself out. There have been electors sent up to Washington and unless Al Gore should get his recount and win, George Bush will be the winner of this election. So, for the Florida legislature to go into session and to really superimpose its will on the people or instead of the people I think would be wrong.

KING: Johnnie, you were in court, today, right? Obviously, its attending -- someone's going to win, someone's going to lose? Aren't we a nation of laws?

BYRD: We are a nation of laws, not of men. I agree with that, but I think you heard the lawyers tonight say that the appeals will go on and on and on, and I think finality is what the American people are yearning for. Bush has won every election in Florida, first count, second count, third count, multiple counts. It's time to make sure we have electors representing the 15 million Floridians.

KING: Lois, what would happen do you think if the -- somebody, "The Washington Post," "The Miami Herald," CNN counted all the ballots, did statewide under the Freedom of Information Act, and found out that Gore won after Bush is president?

FRANKEL: Well, look I think it would cause a lot of frustration and anger if we found out that the person who really got the popular vote in Florida did not win the election. So, I mean I think it's better that we find out who won before and let's live with the results.

KING: Johnnie, if appeal is a legal process, why can't people appeal? I mean, if we're a nation of laws and law allows appeal, why aren't you allowed to appeal?

BYRD: Well, the law we are dealing with is the question of whether Florida's electoral votes will be given compulsivity or be recognized by the Electoral College, and the law says two things. One, if the appeals are going on next Monday and second if the rules were changed in the middle of the game like the Supreme Court of Florida obviously did, then our votes aren't conclusive. That means that we are at risk and so we need a safety net to make sure that Florida's voters are represented in the Electoral College and have a say in the president of the United States.

KING: Only if those electors are pledged to Bush?

BYRD: Our duty is to make sure the electors -- a slate of electors go to the Electoral College and right now, there is one slate of electors.

(CROSSTALK)

KING: And most they be pledged to the person who won the vote? What I'm trying to get at here is if the court says vote more and Gore wins the vote more, why would you send electors for Bush?

BYRD: Well, the real problem is that all this will never be resolved by the courts, it appears and on Monday at midnight our votes are at risk and I think we need a safety net to make sure Florida is represented. So it's over at midnight Monday unless we do something.

KING: So Lois you're going to override the court?

FRANKEL: Listen, Larry. You know what, we're going to create one big more mess and one more big lawsuit because I don't believe that what we're going to be doing is lawful and we're going to find ourselves back into court, in some court, the federal court, the Supreme Court.

This is not going conclude things. This thing is going just mess things up some more, but I want the to say something that I think is most important. Our foremothers or forefathers went through lots of struggles and hardship to get us the precious right to vote, and I think it would be a real tragedy for this state legislature now after a lawful election to step in and step around the voters and say, listen, we don't really care what the real result was. We're going to do it our way, and our way is going to be for George Bush.

KING: Johnnie, there won't be any -- Johnnie, go. I'm sorry.

(CROSSTALK)

BYRD: I think you see a pattern here. It's if you can't win at the ballot box, litigate, litigate, litigate and if you can't win through litigation, then try to keep the electoral votes from going to the Electoral College. It's a twofold strategy and somebody has to foil that and make sure Florida is represented.

KING: Two sides well presented. Lois Frankel and Johnnie Byrd. When we come back our panel.

FRANKEL: Thank you, Larry.

KING: Thank you both. Daniel Schorr, Norman Ornstein and Tim Padgett. Don't go away.

(COMMERCIAL BREAK)

KING: Let's meet our panel. In Washington, Daniel Schorr, senior news analyst National Public Radio, been observing elections for a long time; Norm Ornstein, resident scholar American Enterprise Institute also in Washington and in Tallahassee, Tim Padgett, Miami bureau chief, "Time Magazine."

Daniel, are we going to have closure tomorrow?

DANIEL SCHORR, NATIONAL PUBLIC RADIO: There's every indication that we will have the first step in closure tomorrow. At least we'll close one part of it tomorrow, I think. It looks as though the Supreme Court in Florida is ready to come out with its verdict. I listened to them very carefully all day today.

I thought one of the most important things that was said by Justice Wells, chief justice. First crack out of the box, he said something about, I now understand that the powers of the legislature are plenary. Now, plenary means complete, utter and comprehensive, and I think having discovered from that case we didn't know about that the legislature has plenary powers -- I think that they're beginning to plan their own exit strategy.

KING: Norm Ornstein, how do you see it?

NORM ORNSTEIN, AMERICAN ENTERPRISE INSTITUTE: That's probably right, Larry, but I think, you know, you've still got a maybe 15 or 20 percent chance that one of these courts could rule in a way that would give Gore an opportunity to continue this for a while longer. It should and probably would have to be the Supreme Court to start with.

If he loses with the Supreme Court, it becomes much, much harder even to hang on and keep his Democrats together, but there's a chance here that this could go on. And if it goes on after this point, as you can tell from listening to the Florida legislators, you know, we're going to be in for another siege.

KING: Now, Harry Jacobs even -- that's not Gore, right, Tim Padgett? So if he loses in Seminole County, he can appeal, right?

TIM PADGETT, "TIME" MAGAZINE: Right, yes.

KING: And if he wins on appeal -- what if he wins and Gore concedes? The concession don't mean anything, right, if they throw out the ballots?

PADGETT: Well, if Martin and Seminole County cases go to appeals, there's a chance that the Gore campaign could say, hey, wait, let's wait and see what they do, but I think that they're realizing now that that politically would not be a very smart move because all along they've tried to distance themselves from the Seminole and Martin County cases because the message of those cases is anathema to the whole let's count every vote mantra that the Gore's have been hailing over the past few weeks.

KING: So, Tim, to you does it look like it's over?

PADGETT: Well, I think you have to admit that the tone of the Supreme Court -- the Florida Supreme Court that we heard today was much different than the tone we heard a couple weeks ago. I think the court was feeling a little whacked by the U.S. Supreme Court and their tone was almost as if they were saying to Boies and the Democrats, look, we sort of went out on a limb for you guys a couple of weeks ago, but we're feeling a little bruised right now and we're going to be much more cautious this time. And the fact is you guys are asking for quite a lot, and your case is very baroque and very complicated.

And I have my doubts that they'll be coming out on Gore's side tomorrow...

KING: Daniel Schorr, would you say...

PADGETT: ... if they rule tomorrow.

KING: Would you say if they rule tomorrow and they rule in Gore's favor, it would be a major surprise?

SCHORR: You really want a prediction from me. Well, all right. I think -- I think it's very likely at this point, first of all, that it will not be a unanimous decision this time as it was last time. You can see certain cleavage going through the justices that asked their questions today, and secondly, I think they decided they have nowhere to go.

The emphasis they put on the fact that even if we wanted to, there's no time left to give you any kind of remedy by counting the ballots of the three counties or all the counties, and then they're stuck somewhere between the U.S. Supreme Court up there and the circuit court down here. And I have a feeling that all they want is to get rid of this thing, and the only way they can get rid of it is to bring closure, and closure means they've got to turn down the vice president. KING: We'll get Norm Ornstein's further thoughts and take a break and come back with more. Don't go away.

(COMMERCIAL BREAK)

KING: Norm Ornstein, will you be -- surprised a good word if they go for Gore tomorrow?

ORNSTEIN: I'll be a little surprised with it. He didn't have a banner day today. I think for the first time ever the number of voters in Florida was exceeded by the number of lawyers arguing cases involving the voters in Florida, and maybe we will never have that again.

But we're getting probably close to the end of the litigation point. And this is Gore's last best hope, and as virtually everybody has said, you've got to view it as an uphill battle.

But predicting what courts will do, even on the basis of oral arguments, as we saw with the last time the Supreme Court of the United States met, is very risky business.

This is a court, despite its skepticism, that has always been extremely activist in counting votes, and you can't rule it out at this point entirely.

KING: Tim Padgett, a lot of people are saying, what's going to happen when "TIME" magazine, "The Miami Herald," CNN, "The Washington Post" count all these votes? What's going to happen if you have one president sitting and we learn another president won a state that would have won it for him?

PADGETT: Well, as Lois Frankel just said a few minutes ago on this show, it's going to be very, very uncomfortable, not only on Capitol Hill, but there's going to be, I think, a large measure of discomfort around the country. It's just going to sort of settle in people's guts, and I think it's going make it just very difficult for the country to rally around whoever is the president. And that's -- you know, the president of the United States in this country relies a lot on his ability to galvanize the American public, and if we've got that pit in our stomach, it will make his job almost futile.

KING: Daniel Schorr, what do you make of the legislature getting involved?

SCHORR: Well, I think -- it's a lot of people around the country don't like the idea. These are not voters. The idea of taking away the vote from people who voted and say, never mind how you voted, we're not going to try to find out, we'll make up your minds for you, although it appears they may be able to do that under the statutes of Florida, but the sense that this is a democracy and that we've moved away from our founding fathers ideas that they had to have aristocrats sitting there, telling people what was best for them -- it really is a throwback to a very bad time.

KING: Daniel Ornstein, every member of the Senate and the House that we've interviewed this week is all saying things are going to work out, they'll work together. Think so?

ORNSTEIN: Yes, I do think so, although it's going to be tough, and frankly, Larry, it would have been tough even if we had a clean victory on November the 7th. We've got the smallest partisan margin in the House and Senate in 70 years. We've got a lot of partisan acrimony, as you can see from the Wexler-Hutchinson DeLay exchange -- indirectly DeLay -- a little bit before, leaders who are having trouble keeping their own troops together. So it will be tough.

But the country wants to rally behind a president,and I do think that even if we get these vote results afterwards and they suggest a different outcome, most Americans aren't going to want to focus on it. They're -- it'll be that uncomfortable sort of bad bit of news about a family member. You don't want to hear it, because it's too difficult to contemplate.

So we'll find some rallying. The good news for the next president is that he'll exceed expectations, because we're setting the expectations so low that he can't help but exceed them.

KING: Tim Padgett, I was with President Bush last Saturday at a cancer conference in Washington, and he felt sorriest, he told me, for Jeb Bush, that Jeb is in a "no win" here. Where does he go from here, do you think, your governor?

PADGETT: Well, he's got two years to rebuild after this. It's really -- it's a sad state of affairs for him, because I think one of the reasons he got into this situation was because, as many of us have written about, he came out with this affirmative action reform last spring, which was really trying to reform affirmative action without ending it. But the mistake he made -- because sometimes he does have a rather imperious habit of doing things, he did not consult the black leadership in this state. They were infuriated, and as a result, they turned out one of the most massive black turnouts we've ever had in this state that probably made this the divisive cliffhanger that it is right now.

KING: He's got rebuilding to do.

PADGETT: He's got a lot of retaking of stock to do about how he governs.

KING: Thank you all very much. We'll be talking to you all again, Daniel Schorr, Norm Ornstein and Tim Padgett.

Stay tuned now: Jeff Greenfield will host another special report. He is based in New York. And we'll be back tomorrow night as it all winds down. Could have a lot more news breaking tomorrow.

Stay with CNN during the day. We could have decisions coming in the Seminole case, the Martin County case, and from the Florida Supreme Court.

For all of our guests tonight, for everyone at CNN, thanks for joining us. Stay tuned for Jeff, and good night.

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