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Larry King Live Weekend

Florida Recount on Hold as U.S. Supreme Court Re-Enters Fray

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

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

ROGER COSSACK, GUEST HOST: Tonight, on LARRY KING LIVE: the Florida Supreme Court deliberates. The Florida legislature holds a historic session and the nation waits. We're live with the latest from the Bush and Gore legal teams tonight, 9:00 p.m. on CNN.

Hi, I'm Roger Cossack sitting in for LARRY KING LIVE, Larry's on vacation tonight. Joining us first from Tallahassee Florida is Ron Klain, spokesman fore the Gore legal team.

Ron, the last time I heard about you they were trying to hold you in contempt for releasing votes. What exactly happened, and are you in contempt?

RON KLAIN, GORE CAMPAIGN SENIOR LEGAL ADVISER: Well, no -- let's start offer with, no, I'm not, Roger.

We had gotten reports, as both campaigns have -- there have been press accounts of how the hand counts were going and when we did our briefing this afternoon we cited some of those numbers. The Republicans complained that that violated a part of Judge Lewis' order that said that recounts were not supposed to be released formally or informally.

We read that order as being directed as the canvassing boards and the election judges, not at the parties, not at the lawyers. After all, these counts are being conducted totally in full view of the public. They're public events, the press is reporting on them, you're reporting on them, anyone can do the counting.

Judge Lewis held a hearing this afternoon; the Republicans convened -- asked him to convene -- where he looked at this matter and concluded that we had not violated his order. Obviously, everyone on our team has tremendous respect for Judge Lewis and would never do anything contrary to his wishes or his order. So I think that whole matter is cleared up, hopefully.

COSSACK: Well, Ron, today was not a great day for your team. Just when it looked like you were on your way, the United States Supreme Court comes in and stops the count.

What are you going to do about it and, in light of the fact that you know what I know -- that it takes five votes to get an expedited hearing, takes five votes to reverse the Florida Supreme Court, how would you describe your chances? KLAIN: Well, what we're going to do about it is argue our case in the Supreme Court. We're filing our brief at 4:00 tomorrow and arguing Monday morning at 11:00 a.m.

But Roger, I think that, obviously I disagree with the Supreme Court's decision. I thought the dissenters had it right today when they four dissenters wrote that the irreparable harm here lies to democracy and the American people when you stop the counting of votes.

That's what this whole process is about; it's about counting the votes and finding the truth. I think that when the Supreme Court reads our briefs and hears our argument, they'll ultimately agree with that.

You know, what happened here was that the Florida Supreme Court applied Florida law to resolve a Florida election dispute. That is not a federal issue and I think that will be where the Supreme Court ultimately comes down in affirming the Florida Supreme Court's decision.

COSSACK: But Ron, you read what Justice Scalia wrote in a highly unusual stay -- you know, as a lawyer, that most of the time a stay is just two or three words; the stay is granted and a hearing schedule is put out. And this, Justice Scalia wrote an opinion and he articulated the fact that, at least what he seemed to say, was that five people probably believe that there is a federal constitutional question here. What are you going to do? How are you going to overcome that?

KLAIN: Well, I actually agree with one thing in Justice Scalia's opinion. What he said in his concurring opinion -- that he wrote, by the way, just for himself -- what he said in that opinion was that at stake was the question of the legitimacy of our next president, and I agree with that.

The question really is, which way enhances that legitimacy: burying these vote counts and trying to keep the votes from being counted, which has been the approach of the Bush campaign; or having a full, fair and accurate count of these votes so we can see which one of these two candidates got the most votes.

You know, sooner or later these votes are going to be counted. They're public results, they will be totalled, we will know. And I think the thing that most enhances the legitimacy of our next president, whether it's George Bush or Al Gore, is having those votes counted before the election, knowing that total and letting that be the way we pick our president.

COSSACK: Ron, I know you're optimistic and I appreciate your optimism but also one of the things that Justice Scalia wrote, at least in his opinion for him was he said, the counting of the votes is illegal. How do you respond to that?

KLAIN: Well, I think that we need to remember here -- and we will certainly be directing to the court the point -- that the counting of votes is proceeding under Florida law. You know, I understand some people may or may not like the way the votes are being counted -- different standards in all these different issues, but they are issues for the Florida courts to resolve under Florida law, Florida statutes.

That's what we think the Supreme Court of Florida did. It issued a very thoughtful, very careful opinion, applying Florida law. And we think, when the justices get into this matter, study it carefully, study the briefs, hear what I'm sure will be great arguments from both sides, they will agree with us that this was a state law decision by the Florida Supreme Court, and ultimately affirm that ruling.

COSSACK: All right, Ron Klain thank you very much for joining us from Tallahassee, Florida.

Let's now go to Governor Mark Racicot of Montana.

Governor, last night I spoke with you; it looked like your candidate Governor Bush -- excuse me -- yes, Governor Bush, was in a hopeless position, down for the count. Suddenly, in 24 hours, he's standing back and he's got at least five people on the United States Supreme Court who think he has a probable chance of winning.

How are you tonight, sir?

GOV. MARK RACICOT (R), MONTANA: Well, I don't know that I agreed with your assessment last night, although I think you've just accurately portrayed it. As a matter of fact, I think when we discussed it last night I thought that the United States Supreme Court would grant the stay and the petition and that we would hear fuller argument before the Supreme Court, I didn't know precisely when.

The fact of the matter is that this is not over, however. It would be improvident to assume that. We know that this has been fraught with unpredictability and, as a consequence of that, I think anyone would be foolish to anticipate precisely what might occur in the future. Although, clearly by the court granting the petition and the stay it does require them to, according to their own rules, to believe in a probability of a ruling in favor of George W. Bush.

So we believe in our arguments, obviously. We're anxious to present them and we're very hopeful and believe, confidently, that the Supreme Court will rule correctly in favor of George W. Bush.

COSSACK: Governor Racicot, the Gore team had claimed that they had picked up 58 votes; they were on their way to pulling ahead. You know, I would suppose the ultimate nightmare from your side is that the United States Supreme Court gives you a victory and stops the count from going on and then somewhere down the line, either CNN or "The Washington Post" or "The New York Times" find out, and counts those ballots and it turns out that Vice President Gore wins.

Are you concerned about that, and what would that do to the presidency?

RACICOT: Well, I'll tell you plainly, Roger, that our concern from the beginning is that there's not a process here going on of counting votes. We subscribe to the same position that Mr. Klain articulates, and that is that every vote that was legitimately made ought to be counted.

What we have a concern with is the manufacture of votes or the casting of ballots by people who are looking at cards either executed or not -- executed partially -- by people they don't know and somehow trying to discern in a borderline, mystical way, whether or not they voted.

We have never had a complaint with counting all of the ballots. In fact I sat, as you know, down in Broward County for 3 1/2 days and I watched this process; and I can tell you plainly that there's no way that any two human beings would agree on precisely how it is that they went about trying to discern whether or not votes were cast. So that's not an issue here.

The bottom line here, I think, is the vindication of the principle of Florida law which the Supreme Court, on more than one occasion, a majority of them in this last episode, have tried to rewrite. That has been the issue from the very beginning; those have been the imperatives that we've tried to vindicate.

COSSACK: Do you believe that one of the main issues that the United States Supreme Court will be discussing is the standards, or lack thereof, of the Florida recount?

RACICOT: Well, it's hard to know precisely; although, if you want to take a cue from the concurring opinion of Justice Scalia today, perhaps it will be an issue. It is the central issue, in my judgment, from a factual perspective because, quite frankly, if you think that it's legitimate to lower the standards and try and discern out of thin air whether or not someone voted, then you may subscribe to the position that has been articulated by Mr. Klain tonight. That, in fact, the vice president has picked up votes.

From my perspective and, I believe the overwhelming share of Americans would agree, if you don't think that that process is appropriate, then you're not going to end up in a situation where you think these votes or these non-votes can somehow be determined to have been made. That then makes the issue, factually, very important to the determination of this case.

COSSACK: I bet that you can't wait for the Supreme Court to be hearing this case, Monday. Governor Racicot, will you be in Washington for the argument?

RACICOT: Well, I don't know yet if I'll have an assignment in that regard; but if I'm there, I'll look forward to seeing you and hopefully having a chance to talk.

COSSACK: I look forward to that, too, sir.

Joining us then will be Mark Racicot. Thank you very much, governor.

Let's take a break. When we come back, Barbara Olson and Michael Zeldin -- a little fireworks right here in Washington; stay with us.

(COMMERCIAL BREAK)

COSSACK: We're back with Michael Zeldin, former independent counsel; as well as Barbara Olson, a former federal prosecutor and a Bush supporter who has also helped out in Florida.

Michael, I want to turn right to you. Let me read to you something that Justice Scalia wrote in his stay today when he felt that it was necessary for him to answer the dissent.

He said: "It suffices to say that the issuance of the stay suggests that a majority of the court, while not deciding the issues presented, believes that the petitioner" -- and we know who the petitioner is, that's Governor Bush -- "has a substantial probability of success."

OK, now let me make you, as a lawyer for the Gore team -- doesn't that sound like -- well, it doesn't sound very good, does it?

MICHAEL ZELDIN, FORMER INDEPENDENT COUNSEL: It sounds like a judge who has yet to read the briefs in the case, because he says that without passing on the merits of the matter. And I think once the matter is fully briefed he, like Chief Judge Anderson in the 11th Circuit, when that matter was expressly briefed to them, rejected this sort of equal protection claim that is the back-door through which this case is going to be heard now.

So, no, I'm not concerned yet. Once this matter is briefed I think that we'll gets the votes that we need because I think this is a state law question, true blue. The Supreme Court of Florida set out its reasoning under state law of Florida, without respect to Florida constitutional principles, just as the Supreme Court asked them to do the last time around. And I remain confident.

COSSACK: But Barbara, you sit here as -- at least looking like a winner tonight from your side, but there is that issue that they haven't read the briefs yet and, of course, what Michael bring up -- the fact that, you know, maybe -- as he says, the back-door argument of the equal protection. We know what that means. We know that that's really the issue of, are there any standards on how to count the votes.

What do you think the Supreme Court's going to do about that?

BARBARA OLSON, FORMER FEDERAL PROSECUTOR: Well, I've always been right about the Supreme Court and I've never, ever about projected what the Supreme Court's going to do.

COSSACK: You know, that's a good lesson because I always predict and it turns out I'm always wrong; so go ahead.

OLSON: But, that being said, I mean, these justices obviously have heard oral argument and they've read a great deal of briefs. And, indeed, the first opinion, nine-zero, was sent back to the Florida Supreme Court. It was vacated and the Florida Supreme Court was supposed to look at the federal issue. Instead, what we had was the Florida Supreme Court building on their previous opinion, I believe, that was vacated, and actually going further down the road. At first they only changed the date -- they took away the secretary of state's discretion. Now we have them going in, allowing partial manual recounts, which I don't believe the law allows. As a matter of fact, the law is very specific that all must be counted.

They also ordered counties to be manually recounted that had no plaintiff, no contest in those counties. So you've got much more stronger issues and issues that I think are much clearer.

COSSACK: Let me just follow up on that. By asking all of the counties to be recounted, doesn't that do away with that argument that Governor Bush was making that, oh, it dilutes the votes. If you only count a couple of counties then the ones that don't get counted see their votes are diluted? Weren't they trying to protect themselves from that argument by asking all the counties get recounted?

OLSON: Well, let's set aside that it was the Florida Supreme Court is the party in interest asking for those recounts. The problem is we're only counting under-votes, so we've got a third constitutional problem. We're not counting all of the ballots that people didn't vote on or that they voted twice. We're only counting under-votes. And so, once again, we have a real problem with the Florida Supreme Court going out and rewriting these election laws.

And these are a lot of the problems that the Supreme Court justices voiced in the previous argument that, I think, we didn't see resolved, they saw them emphasized.

COSSACK: Rewriting the election laws, I mean that's what's going to be the argument before the United States Supreme Court. The Bush team is going to say, look what they've done; this is something that Florida should take care are of. This is Florida law, but it goes to the legislature. The Constitution says it's the legislature that does this -- you, judges, stay out of the mix.

What are you going to do about that?

ZELDIN: Well, firstly in the 11th Circuit, in their briefs below, they always said that a statewide remedy is necessary to defeat the equal protection claim. And so they have argued exactly what the Florida Supreme Court granted them, statewide remedy. In a contest, you contest the under-votes, the challenged votes. The Supreme Court of Florida has done exactly what Bush-Cheney has asked them to do in their briefs underlying this.

And then I think, secondly, these matters that are before the Supreme Court of Florida are matters of interpretation of law. The standard is, give effect to the will of the voters. They didn't change that standard, they implemented that in a way that's practical.

COSSACK: Let me get to Barbara; that's going to be the argument: All we're trying to do here is give the voters the right to have their votes counted. OLSON: And, of course, the votes have been counted. It's the ballots without votes that were ordered to be counted.

And the problem with Mr. Zeldin's argument is Chief Justice Wells in the Florida Supreme Court laid out these problems. He wrote a very strong dissent; he saw his court going down the road and ignoring the United States Supreme Court's opinion and vacate and remand that they gave back. He saw those problems and for the very same reasons that I've just articulated he said that this was going to throw it in chaos, and that this was going to hurt our country.

So I think it's interesting that you have the chief justice of that Supreme Court, who no one can claim is a Republican sympathizer, finding problems and writing a very stinging dissent on his own court.

COSSACK: All right; and if you think that these arguments are tough, you can only imagine what it's going to be before the United States Supreme Court -- five to four just to get a stay -- you can imagine what's going to happen before the United States Supreme Court when the real argument goes on.

But let's take a break; when we come back, Jim Nicholson, the chairman of the Republican Party; Ed Rendell, the general chairman of the Democratic Party. More on LARRY KING LIVE; stay with us.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

DAVID BOIES, GORE CAMPAIGN ATTORNEY: Given the progress that was made today in just a few hours, I think we have some reason to be optimistic that if the court rules promptly after the argument that the count can go forward, the count could still be completed.

(END VIDEO CLIP)

COSSACK: We're back with Jim Nicholson and Ed Rendell.

Jim, I want to talk to you a little -- first of all I want to quote to you something that was written today by Justice Stevens in his dissent from the stay that was granted that stopped the hand count, as you know.

He said the following; he said: "As a mere fundamental matter, the Florida court's ruling reflects the basic principle inherent in our Constitution and our democracy, that every legal vote should be counted."

Now what the Republicans have done is gone to the United States Supreme Court and say, stop that count. Isn't there going to be political fallout from that?

JIM NICHOLSON, RNC CHAIRMAN: Well, Roger, what you should also read is the statement made by Justice Scalia today, who addressed what a legal vote is and raised the question about whether these votes or these ballots that don't have any marks on them are a legally cast vote. And they're probably not. There is no way that you can divine what the intent of this voter was if this ballot is not marked; and that's the whole issue.

We want all these votes counted; they have been counted and they've been recounted, in some cases a third or fourth time. But there are some of these ballots that have just not been sufficiently marked, and there's no standard to give anybody a reasonable chance of ascertaining that voter's intention.

COSSACK: Is it your position -- or your team's position -- that any vote that is kicked out by the voting machine is a vote that should not be counted?

NICHOLSON: There are no standards by which people can reasonably divine what the intent of that voter was when that machine kicks that ballot out because it wasn't properly voted; and therefore there's a real question about whether that is a legal vote. And the machine has counted, thus, all the legal and almost everybody got it right.

And everybody, when they went to vote in Florida, was given a little card with instructions about how to cast a vote, and if they had any questions they could get help from the local precinct voting officials. So they had ample opportunity to get it right but, as in every election all over America, some people get it wrong.

COSSACK: Ed Rendell, wasn't such a great day for Vice President Gore today. Your reaction to that, you have said that, perhaps this wasn't as bad as some might think it was.

ED RENDELL, DNC GENERAL CHAIRMAN: Well, first I want to say, there is a standard given to us by the Florida legislature. It says that the canvassing boards in hands counts, which are also given to us by the Florida legislature, should try to ascertain the intention of the voter.

And look at the Miami-Dade report that we got, Roger. It's pretty obvious that they were doing a good job; 3,300 no votes, 80 for Governor Bush, 52 for Vice President Gore and 137 that were in dispute. So Jim, the only way we're going to ever find out whether these people didn't want to vote for president, like you say, or did try to vote and perforated a chad, is to look at the ballots. And what's wrong with that?

Now, Roger, the reason I think that this is going to be good for us in the long run: had the Supreme Court stayed out of this, no opinion, just refused the take the case and we won the recount of the votes, the Florida legislature, in my judgment, was ready to act and would have acted, would have sent a slate of electors up to Washington. It would have been chaos. We probably would have lost in Washington.

But if the Supreme Court takes argument, hears argument on Monday and we win the vote and they issue a strong opinion as to why every vote should count, then any member of the Florida legislature who, after the votes are counted and if Al Gore wins -- if any member of the Florida legislature wants to go against the opinion of the Supreme Court they do so at their own political peril because the people of Florida won't stand for that.

COSSACK: Ed, let me just tell you; as you well know, it takes five votes for the Supreme Court to hear this case on an expedited appeal.

RENDELL: Right.

COSSACK: And we saw one -- at least Justice Scalia wrote an opinion that sounds pretty much against you. What makes you think you're going to win this in the United States Supreme Court?

RENDELL: Because in the 11th Circuit, which was tending towards the Republican position -- when the 11th Circuit looked at this they declined to take this case and didn't believe there was a federal issue. When it's fully briefed, we believe we'll swing at least one or maybe even two of the justices who voted to take the case...

NICHOLSON: But the problem with Ed's argument there, Roger, is that -- it's two pronged; one, legal. Those are not legal votes; they were not properly cast. But he has a bigger problem and I defy Ed to keep a straight face and keep saying how badly they want to have all the votes counted when they turned loose in Florida a with whole army of lawyers to go to every county to try to disallow the votes of overseas military men and women serving us and protecting us and giving us the right to...

COSSACK: But, Jim, doesn't that open you up to the same argument as him -- saying but, look, you're trying to stop these votes from being counted, too.

NICHOLSON: The question is whether or not those are legally votes -- that were cast legally because the machine threw them out. They're trying to -- they did get a lot of the military votes uncounted throughout Florida.

The other thing that Ed has done and his team, is they've tried to get 15,000 votes thrown out yesterday and they got overruled, but now I understand they want to appeal it. Ed, do you plan to support that appeal?

COSSACK: All right, Ed, I've got about 10, 15 seconds.

RENDELL: We didn't support the lawsuit in the first place, Jim.

NICHOLSON: Well, are you going to ask your team not to appeal? Are you going ask them not to appeal?

RENDELL: It isn't our team. It is citizens. I know it's hard for you to grasp the concept that citizens can file suit.

And by the way, how about that Democratic Judge Nikki Clark, who you said was prejudiced, ruling in your favor?

NICHOLSON: I never said she was prejudiced.

RENDELL: You guys attack the courts only when they decide against you.

COSSACK: And I'm calling off the fight here. Right now I'm stopping this fight; that's all the time we have for this particular issue.

RENDELL: Count the votes, Roger, count the votes.

(CROSSTALK)

COSSACK: We're taking a break. When we come back, Governor John Engler of Michigan, Congressman Robert Wexler of Florida; more with LARRY KING LIVE when we come back, stay with us.

(BEGIN VIDEO CLIP)

JAMES BAKER, OBSERVER FOR BUSH CAMPAIGN: I really think it's sad that we seem to be deciding a national election for president of the United States in the -- in lawsuits and in courthouses after the election outcome has been certified. This is the first time, I think, in modern history that that has happened.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

COSSACK: Welcome back to LARRY KING LIVE. I'm Roger Cossack, sitting in for Larry who's got a well-deserved night off, but will be back Monday night. And one of his guests, and the star guest, will be first lady Hillary Clinton, the junior Senator from New York. So be sure not to miss that particular show.

Joining me now is Governor John Engler of Michigan. Governor Engler, there is an argument that people are making against the Republicans that say what the Republicans really want to do is run out that clock until December 12, no votes get counted December 12; Governor Bush will get the electoral votes and it will be all over.

Your response?

GOV. JOHN ENGLER (R), MICHIGAN: Well, it's actually quite the opposite. Let's go back to November the 7th. George Bush won on November the 7th on the votes that were counted; and all the votes that were cast properly were counted that night, then they were recounted again.

Al Gore's been in a process over -- now longer than a month, trying to find a way to count non-votes. And I sat in Broward County with Mark Racicot and a lot of other observers and they had were casting ballots of people who didn't vote. And this is what Mr. Gore has to do in order to try to win the election.

He's trying to find any mechanism, any court -- and he's been fortunate, the Florida Supreme Court, twice, has given him a go-ahead, but pretty much everybody else has turned him down. And I think the Supreme Court on Monday, hopefully, will close the door and we can move on; and Mr. Gore needs to give it up. It's got to be tough; 100 million votes by less than a thousand he loses the national presidential election. He gets history, but he doesn't get the presidency.

COSSACK: All right, Congressman Wexler, you're from Florida and, in fact, served in that Florida legislature. Is the Florida legislature going to step in and elect their own slate of electors and end this problem?

REP. ROBERT WEXLER (D), FLORIDA: Well, Roger, I certainly hope not. It will be a tragedy for our democracy if this election is decided by anybody other than the people of the state of Florida as they cast their ballots.

If the United States Supreme Court decides this election, it's a travesty. If the Florida legislature decides it, it will be a disaster. It will create an illegitimate result; and with all due respect to the governor and to the Republican chairman, they seem to be arguing that, by its very nature, a hand count creates or manufactures votes. That's just not true. Each and every time there's a hand count in god knows how many states across this country, it's been held to be valid. And there are votes out there that have not been counted. And for anybody to suggest that Democrats are trying to manufacture votes does just not meet with reality. But all the votes in Florida need to be counted, and if Governor Bush wins then he will be the legitimate president.

COSSACK: Governor Engler...

ENGLER: Roger...

COSSACK: I'm sorry, go ahead, Governor Engler.

ENGLER: Well I was just going to say, Roger, you know, we have I think the closest election race in the country in Mike Rogers (ph) and Diane Byrof (ph) in the Lansing area. That's being recounted right now, but there's a very clear standard. A lot of those votes are punch-card ballots. But we don't count dimpled chads. We don't look at a ballot and say, how might they have voted if they had in fact voted in that race?

It's a straightforward process. That's not what exists in Florida. And the congressman is just flat out wrong. What Al Gore is looking for is more votes. He needs more votes to beat George Bush, and they can't find them except by voting the non votes of people who didn't vote in the presidential race.

I'm in Chicago tonight. A hundred ninety thousand Illinois citizens didn't vote in the presidential race. Now I don't know if they didn't...

WEXLER: Governor, with all due respect, the Florida Supreme Court, as is the Michigan Supreme Court in your state, is the final arbiter of Florida law. They laid out the standard for how we count ballots in Florida...

ENGLER: Congressman, Michigan... WEXLER: ... and really there's no one that can argue against that. The state court determines what...

ENGLER: I'll argue against it, Congressman. We let the voters decide because we actually make them cast their ballot and we don't delegate them to a canvassing board, a county judge or even a Supreme Court to fill in how they might have voted if they would have voted.

WEXLER: Well that...

ENGLER: In Michigan, if you didn't knock the chad out or if it isn't hanging by a corner or two sides, then it doesn't count, plain an simple...

WEXLER: Governor, that's great...

ENGLER: ... And people ought to be strong enough, even aged people in Florida, to punch the chad out.

WEXLER: Governor, and if the controversy was in Michigan, that would be the governing law. But the Florida legislature has adopted a different standard, and that is the standard that the Florida Supreme Court laid out in its decision yesterday. You can like it or not, but that's the Florida...

ENGLER: Which is no standard at all.

WEXLER: But that's the Florida law. And it isn't no standard.

ENGLER: Sure it is.

WEXLER: It says the intent and will of the Florida voter will be the thing that matters, and that's up to the people who are actually counting the ballot. It has worked for centuries -- you know, decades in the state of Florida. It will work again if the Bush people would stop trying to stop the hand count in Florida so we can get a final tabulation.

ENGLER: Roger, I saw in Broward County that intent being decided by two-to-one votes, two Democrat versus one Republican, voting, we vote two to one the intent of the voter was to vote for Bush or Gore -- I mean, mostly Gore in that case. And they picked up 500 extra votes.

If you put those ballots back in, counted them by any other standard -- it's so odd in the 67 counties of Florida they each have different standards. It's very simple what's going on.

COSSACK: Governor -- Governor, I wanted to give the congressman 10 seconds to respond, please. Go ahead.

WEXLER: And I suppose the two-one votes in Broward County which you call partisan are any different than the 5-4 partisan vote of the United States Supreme Court. The state of Florida has its laws, and the Florida Supreme Court said what it was, and there's no business for the United States Supreme Court to get into that question of state law.

COSSACK: All right, we're going to have to...

ENGLER: I'm proud of the United States Supreme Court. We ought not criticize them, Congressman.

COSSACK: All right, Governor, we're going to have to take a break. Congressman, we're going to have to take a break. Thank you for joining me.

We're going to have next up Congressman Peter Deutsch, Democrat of Florida, and Congressman Lincoln Diaz-Balart also of Florida when we return.

More on LARRY KING LIVE. Stay with us.

(COMMERCIAL BREAK)

COSSACK: Welcome back to LARRY KING LIVE, I'm Roger Cossack sitting in for Larry King who has a well-deserved night off.

Joining me now is Peter Deutsch, Democrat from Miami-Dade County in Florida, as well as Congressman Lincoln Diaz-Balart -- Balart, rather, who is also a Republican from Miami-Dade County.

Let's go right to you, Congressman Deutsch. How do you feel about the votes being stopped exactly in your county where they were just getting ready to go again?

REP. PETER DEUTSCH (D), FLORIDA: Well, you know, again, I think it's disturbing because literally Governor Bush from the day after the election until today has done everything possible to stop a fair and accurate count. And I've listened to the show up to this point, and I think some of the comments, particularly by Mr. Nicholson, are just totally off base.

This is not the first manual recount in Florida's history. We've had a number of them. And the reason that Florida has manual recounts along with a number of other states is they're more accurate. The computers cannot read partially detached chad, holes in the chads, you know, when there's dimples in the chads. The computer just can't read it.

And if you spent time to actually look at the cards, when there's a whole in that chad, you're darned sure well know that person wanted to vote for that candidate. And it's not rocket science, it's not brain surgery, it's just physically looking at the ballots. And when you look at them -- and I sat there every day in Broward County when we counted the 588,000 votes in Broward County, you know, it's not a constitutional debate. People just look at them and say, that's a vote.

COSSACK: Congressman Diaz-Balart, it's your area just as well as it is Congressman Deutsch's, and now the argument might be that some of your constituents will not have their votes counted. How will you respond to that? REP. LINCOLN DIAZ-BALART (R), FLORIDA: I hope, Roger, that the Supreme Court of the United States brings a conclusiveness to this by Tuesday, which is obviously a very important day for Florida's electors to make certain that they are counted on January 6th.

The Florida Supreme Court rewrote once again Florida law and violated the United States Constitution and federal law in its decision of yesterday. And that's why I think it was appropriate for the U.S. Supreme Court to hear this case.

For example, Florida law is clear. If you're going to have a manual recount, it has to be a manual recount of the entire county. Again, the Florida Supreme Court said yesterday, no, we're going to only count the votes where voters voted for no one for president.

In addition, there's this very disturbing issue, as was pointed out clearly by Justice Wells in his dissent, of no standards, of creating a situation that is fraught with equal protection concerns...

COSSACK: But, wait, but, Congressman...

DIAZ-BALART: ... and if I may, Roger...

COSSACK: But, Congressman...

DIAZ-BALART: And if I may, Roger...

COSSACK: ... let me interest you just one second. It's the Florida legislature's standard. I don't want to be taking a position on this, but their standard is that it is the intent of the voter which is the standard for the state of Florida. That's the Florida legislature standard.

DIAZ-BALART: The Florida legislature also says that the intent has to clearly be read. The Florida legislature also says that in manual recounts they have to be the entire county. And the Florida Supreme Court now has changed that law. The Florida legislature also says that you have to finish the process within seven days. They twice now, the Florida Supreme Court, has rewrote -- rewritten Florida law.

But I'd like to get to one point if I may very briefly, Roger, with regard to this equal protection issue. In addition to that, the equal protection issue is compounded with a Voting Rights Act component which is very, very serious.

Here in Miami-Dade County, they began, the canvassing board, began a manual recount of all votes because, as I said, the Florida law requires that when there's a manual recount it cannot be of only these so-called undervotes. They have to be of the full county. After they had counted 20 percent of voters here in Miami-Dade County, they had only counted five -- they had given Governor -- Vice President Gore 168 extra votes from that partial manual recount.

It was an overwhelmingly Democrat areas. Only five of the 200 approximately majority-Hispanic precincts, and Hispanics being a protected class under the Voting Rights Act in Dade County, were counted during that partial manual recount. Then it was stopped. And then they went to this so-called only counting a vote of only the overvotes. That's a significant equal protection and a Voting Rights Act issue.

(CROSSTALK)

COSSACK: All right, let me give Congressman Deutsch a chance to respond to that.

DEUTSCH: First is that having been and looked at ballots for several weeks actually in Broward County, not one additional vote of the 588,000 Broward County came from anything but the so-called undervote, a ballot that had not been counted. So, Lincoln, I totally disagree with you. There's no equal protection issue at all, because what the Dade County Canvassing Board originally did when they made the legal decision, as opposed to the illegal decision to stop the recount, was an efficient thing to literally save thousands of person hours.

The second thing I strongly disagree with you on is your interpretation of Florida law. The Supreme Court of Florida, which is the ultimate determiner of Florida law, you know, literally they read the statute. And the statute allows the recount of the undervotes to get to what the manipulation, what the problem was in the county.

The third thing I also strongly...

DIAZ-BALART: No, Peter, no.

DEUTSCH: Lincoln, let me just finish on this third point.

The third point is you're talking about the December 12th date. As you and I both know, in 1960, Hawaii sent their electors to Congress on December 24th. I mean, people have become fixated on this December 12th date, which is really irrelevant.

COSSACK: All right, let me give -- let me give the congressman a chance to respond.

Go ahead, Congressman.

DIAZ-BALART: If I may respond to one point, Florida law is very clear. Chapter 102.166, if you're going to have a manual recount you have to count the entire county. You can't count only the Democrat areas and not the Hispanic areas in Miami-Dade County, which is what they tried to do and which the Florida Supreme Court now validated in that illegal order of yesterday. You can't violate federal law, equal protection rights under the Constitution or the federal voting rights act.

DEUTSCH: Right, and the equal protection issue, Lincoln, is in terms of the additional votes. And there were no additional votes, at least in Broward, where I was at, and I doubt there were any in Miami- Dade that came from anything...

DIAZ-BALART: I was present in Miami-Dade, Peter. I was present in Miami-Dade...

DEUTSCH: ... that came from anything...

DIAZ-BALART: Peter, I was present in Miami-Dade...

DEUTSCH: ... Right, but, Lincoln, let me finish...

COSSACK: Gentlemen, let me just say this...

DEUTSCH: ... from anything but the undercount.

COSSACK: ... say this: It's not often that a mere television lawyer gets to cut off a couple congressmen, but I'm going to it now.

Thank you both for joining us.

Next up, Pam Iorio, who's the supervisor of elections for Hillsborough County, who was all set and ready to go today when they stopped her.

We'll find out what she was going to do when they stopped her.

Stay with us.

(COMMERCIAL BREAK)

COSSACK: We are back with more of LARRY KING LIVE.

I'm Roger Cossack sitting in for Larry, Larry King, tonight.

And joining me now is Pam Iorio, the supervisor of elections for Hillsborough County.

Pam, you were ready to go, open for business, you had the shop all cleaned up, ready to open the door and then in come the customers when suddenly they told you you had to shut the door and hang the closed sign. What happened?

PAM IORIO, HILLSBOROUGH COUNTY ELECTIONS SUPERVISOR: Well, it was quite the day. We learned of course yesterday that we were to conduct a manual recount of the undervotes, assembled at 8:00 this morning, our canvassing board started our business, our first job. And in Hillsborough County we had 5,500 undervotes. And first we had to separate those undervotes out from the other 369,000 ballots.

We were in the process of doing that, and we were right on the verge of starting the manual recount. I'd just finished giving instructions to the staff. I was actually, literally, handing them the box of the first precinct to hand count when we received word that the Supreme Court had told us to stop.

COSSACK: Pam, how long do you think it would have taken you to finish hand counting the undervotes that you had?

IORIO: I don't think it would have been a problem at all to meet that 2:00 p.m. deadline. It only took us four hours to run all the cards through the machine and separate out the 5,500. We had our counting teams in place. Our standards had been adopted that morning and were very clear, and we were ready to go. We would not have had any problem adhering to the 2:00 p.m. Sunday deadline.

COSSACK: All right now, Pam, we all hear about the standards and, you know, that there's different standards. What standards had you adopted and how did you come to these standards?

IORIO: Well, our canvassing board adopted a standard that a hanging chad had to be hanging by two corners in order to be considered voter intent to vote for that individual. Or if it was perforated by one corner, it would have to go to the canvassing board for a determination. We did not get into the dimple, soft-indent issue. We just did not feel comfortable. And as election supervisor, I simply did not feel comfortable saying that is the voter intent to vote for a particular candidate if you just look at a soft impression.

COSSACK: All right, so it was your theory or it was your idea that what you guys came to, at least with your board was, you said, look, there has to be at least some kind of total perforation of the ballot, whether it be one or two chads. But dimples were not going to make it?

IORIO: That's right. And I think that's a reasonable standard. I do think that across the state of Florida in punch-card counties there should be some standardization. Whether there will be that in the future, I'm not sure that will even be an issue because we're going to all get rid of punch cards in the state of Florida after this election.

COSSACK: OK, and I suppose if you never see another punch-card ballot it will be too soon?

IORIO: That's right.

COSSACK: All right, now why is it so important to count the under ballots and the undervotes?

IORIO: Well, you know, the undervotes are being targeted presumably because -- I mean, obviously some people simply don't want to vote for president, and some people don't -- skip a lot of races when they go the polls. But there could be the opportunity that the undervote is really a hanging chad, and the hole has closed up. You know, really, one way to have resolved this a long time ago without getting into this whole manual recount mess would have been a requirement that every punch card county run their punch cards, all of them, through their card reader six or seven times.

You know, there is the law of diminishing chad, and I think people who work with punch cards will tell that after a while the punch cards stabilize -- I mean, the chads stabilize. They fall off, they're done falling off, and that's it. You're going to have a pretty clean ballot after that.

If all the... COSSACK: You know, Pam, I just want to tell you one thing. I've been a lawyer for a long time and I -- and done a lot of stuff. But this is the first time I've heard of the law of diminishing chads. But I promise you that may be the best law I've ever heard. That's all the time we have for now.

Thank you very much for joining us.

IORIO: Thank you.

COSSACK: When we come back, Hal Bruno, former political analyst for -- director, rather, for ABC news; Richard Shenkman, presidential historian; and Bill Hemmer, our own Bill Hemmer, CNN anchor.

Stay with us. More on LARRY KING LIVE.

(COMMERCIAL BREAK)

COSSACK: We're back with more LARRY KING LIVE. I'm Roger Cossack sitting in for Larry King.

Tonight, joining me is Hal Bruno, former political director from ABC; Richard Shenkman, presidential historian; and our own Bill Hemmer, CNN anchor who's been down doing triple duty in Tallahassee and all over the state of Florida.

Let's go first to Hal Bruno.

Hal, we talked last night. In 24 hours, the story changes dramatically. Is there coming a time when the American people now are just saying, you know, enough of this. Enough of this, we just want it over. We don't really care anymore.

HAL BRUNO, FORMER ABC NEWS DIRECTOR: Well, I think they do care. And I think they've said long ago enough is enough. It's about time to get it over with. But they're very patient, and I think they have a great understanding of what's going on, although I have to admit that today was astounding. I can't recall hardly a day like this in the 50 years that I've been a news man.

What was so interesting was the Supreme Court stopping the count. That to me was the most significant thing. I mean, the fact that they accepted the Bush case, that we knew was going to happen. But when they stopped the count by that 5-4 vote, that was a very ominous warning.

COSSACK: Let me just follow up with that for a second. Will there be political fallout from stopping the count? Because I -- I must say that the notion of having the counts begin and then suddenly saying you can't count votes anymore I thought was unusual.

BRUNO: I think people are puzzled by that. Most people would say, well, you know, why not let the count happen? And I don't think most of us really grasp the fine points of the law and so on. And I think the average person says, come on, let them count. COSSACK: All right, let's go to Richard Shenkman. Richard, you're a presidential historian. If there's ever a time that we need a little historical perspective it's now. This is a time in our constitutional history that's unprecedented?

RICHARD SHENKMAN, PRESIDENTIAL HISTORIAN: It's unprecedented. And, of course, this afternoon, preparing for this, I was trying to figure out, you know, how can I put events in perspective? One thing we should keep in mind: The Supreme Court coming into this, it seems, especially with this 5-4 vote today, it seems that it's unprecedented for them to be political, inserting themselves where it's not going to be unanimous.

We have this idea that, you know, because of that Nixon decision in Watergate being 8-0 that they always have to be unanimous when they get involved in politics.

The long history of the Supreme Court is that most of the time they are political. Through the 19th century it was a haven of politics. And Americans understood that. And the last couple of decades we've had this idea that it's not political.

COSSACK: But the notion that it's political, doesn't that erode our confidence in the judicial system, which we would hope would not be political?

SHENKMAN: Yes, it does.

BRUNO: Well...

SHENKMAN: It does to a certain extent.

BRUNO: Well, I was going to say, though...

SHENKMAN: It's just a myth. That sound you hear in the background is a myth that's kind of dissolving.

BRUNO: Yes, I think that's true.

COSSACK: But the notion that the Supreme Court is an extension of one or other of the parties is just something, I think, that is quite unsettling to most of us.

BRUNO: The Supreme Court may be remote and it may be on a higher pedestal, but it's not isolated. It is a part of American life. And politics is the natural form of American life. Everything is involved in politics.

COSSACK: All right, let me just take a vote -- take a vote? Let me just take a break.

BRUNO: By all means, Roger.

COSSACK: I need a vote.

Let me just take a break for a second. When we come back, more with Hal Bruno, Richard Shenkman and our own Bill Hemmer.

And I'm going to start with you, Bill, so stay with us.

(COMMERCIAL BREAK)

COSSACK: Welcome back to LARRY KING LIVE. I'm Roger Cossack sitting in for Larry King.

Joining us now is our own Bill Hemmer.

Bill, are you now a resident of Florida? I mean, do you vote in Florida?

BILL HEMMER, CNN ANCHOR: I'm soon to get my own voter registration, card, Roger.

COSSACK: All right, Bill, you're covering this story. It moves like nothing I've ever seen. Describe the mood of Florida. Describe the mood of the political parties today. It must be like a roller coaster.

HEMMER: Three thoughts on that, Roger.

On Thursday morning, I made the prediction here that on this time Saturday night we're either going to be, A, making plans to go home or, B, we're headed for Pluto. And clearly we are headed for Pluto. But I never thought Pluto was going to would look like this, I mean, the way we're going toward the U.S. Supreme Court on Monday morning.

I think it's also very indicative of two other things here. The campaign workers down here on both sides, the Bush and Gore team, go up and down on this roller coaster the same way we do when we ride this story, listening for every decision. And sometimes they're very elated -- you can see that -- because they believe things are going their way. But as soon as another court comes in and, wow, smacks them and sends them in the other direction, they almost walk away with their, you know, their tails between they are legs. And that's quite evident as well.

The other thought, Roger, is if you think back right now in just the past 30 hours, Martin and Seminole County happened just about 3:00 yesterday afternoon here in Tallahassee. They're way off the chart right now. Think of where we have gone since 3:00 yesterday afternoon, straight into the U.S. Supreme Court, the highest court in America for oral arguments on Monday morning. It is real.

I heard Hal Bruno say it's astounding in the past day today, but indeed it has. And, I mean, the times that we've been down here, Roger, in the past 32 days, the number of days we thought we knew which way it was going to go later in the day, boy, we were wrong again today.

COSSACK: I have given up the prediction business, Bill. I have learned my lesson, particularly off this one. HEMMER: Yes, I think -- that's a good prediction.

COSSACK: All right. Hal Bruno, let's get back to the Supreme Court as an extension of political parties. I mean, I must tell you, as a lawyer, I find that, perhaps naively, something that makes me uncomfortable. I've always believed that judges have to put aside their own personal feelings and rule strictly on the law.

BRUNO: Roger, presidents appoint Supreme Court justices and it's a political process. In an election campaign, who's likely to get appointed to the Supreme Court is a critical issue. Many people cast their vote because they're afraid that one party or the other might make Supreme Court appointments that don't fit their political ideology. So, you know, politics is as American as apple pie.

COSSACK: All right, but, Richard, if that's the case then can we depend on the United States Supreme Court, and will they have the consent of the governed?

SHENKMAN: Look, we depended on the U.S. Supreme Court for 200 years. But let me run through a little list here, just to give you an idea of how political the institution has been...

COSSACK: We've got about 15 seconds here to run through that list.

SHENKMAN: I'll run through it quick.

John Quincy Adams wanted to put Van Buren on the Supreme Court to get rid of a political enemy.

Tyler wanted to put Buchanan on the court in exchange for votes from Pennsylvania.

Lincoln puts his campaign manager, David Davis, on the Supreme Court. It goes on and on and on.

COSSACK: All right, I'm afraid that's all the time we have for tonight. That's all. Thanks to our guests. Thank you for watching.

Larry King will be back Monday night with Senator Hillary Clinton. What a show that will be. I'm Roger Cossack sitting in for Larry saying good night, and Larry will see you Monday night.

Good night.

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