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The Florida Recount: Judge Rules Hand Tallies Can Be Rejected By Secretary of State; Lawyers Seeking Palm Beach Revote Hold News Conference

Aired November 17, 2000 - 12:00 p.m. ET


FRANK SESNO, CNN ANCHOR: It has been 10 full days now since the election, but a court ruling handed down in Florida just a short time ago in favor of the Bush campaign swings the pendulum again. Forces allied with Texas Gov. George W. Bush hope it will be the determining factor that'll bring this to a close by this time tomorrow. But the Democrats have not dropped their court challenges.

CNN correspondents are covering all the legal bases. We're in several parts of the state and around the country. So here we go, the latest developments.

A Florida state judge ruled the results of vote recounts can be rejected by Secretary of State Katherine Harris. She plans to announcer a winner tomorrow after the midnight deadline to receive overseas absentee ballots. Meanwhile, in heavily Democratic Broward and Palm Beach Counties, they are still recounting despite the judge's ruling.

And we show you now a picture of West Palm Beach where that recounting goes on, the efforts continuing to what final conclusion is still up to the courts and still undetermined.

There's a lot of ground to cover from the courtrooms to the campaigns, so we begin with CNN national correspondent Mike Boettcher, who was in the room when the Tallahassee ruling was announced.

Mike, what does it mean? And now what?

MIKE BOETTCHER, CNN NATIONAL CORRESPONDENT: Well, Frank, lawyers for Vice President Al Gore had argued in court yesterday that the secretary of state of Florida, Katherine Harris, had abused the discretion of her power when she decided that she was going to go ahead and certify the election results with the state election canvassing board on Saturday without counting those hand-counted ballots. Now, the decision was read by the court administrator here, Terre Cass, shortly after 10:00 a.m.


TERRE CASS, COURT ADMINISTRATOR: On the limited evidence presented, it appears that the secretary has exercised her reasoned judgment to determine what relevant factors and criteria should be considered, applied them to the facts and circumstances pertinent to the individual counties involved and made her decision. My order requires nothing more. Accordingly, it is ordered and adjudged that the plaintiff's motion is denied. Thank you.


BOETTCHER: What could be the next step: the supreme court. And to do that, the Gore lawyers would have to go to the circuit court of appeals and file what is call a pass-through motion for an emergency hearing in the supreme court. But that hasn't been done. We have people monitoring that and waiting to see if that actually will be done. We've also waited to hear from a Democratic Party spokesman what the strategy will now be. We haven't heard anything about that.

One thing to make very clear here is this ruling does not affect the hand counts going on. It specifically, though, addresses the certification of this election on Saturday. And as far as I know, this is the only case in the court -- in the state of Florida that deals with this deadline. So where it stands right now is that Katherine Harris and the state canvass selection board can go ahead and certify on Saturday morning like they planned, unless some court intervenes, Frank.

SESNO: Mike Boettcher, thanks very much.

Now, for more on the decision by Judge Lewis, what this all shakes out, we go to our -- how it all shakes out -- our CNN legal analyst Greta Van Susteren, who joins us from West Palm Beach.

Hello, Greta.


SESNO: Greta, let's start with just one very important point before we get to the courts, if we can. We've heard reference by the secretary of state and others that the deadline for these absentee overseas ballots is noon tomorrow. But Florida laws says that the counties actually have seven days to report those results to the secretary of state. We understand the secretary of state has actually faxed -- making faxes and phone calls to the counties to say get them in. But is there anything under force of law or otherwise that requires those results in?

VAN SUSTEREN: I'm not sure that there is, Frank. You know, there are so many dueling statutes in this case and how people are interpreting the statutes. Some say "may," some say "shall," and it's very unclear. What I think is the intent of the legislature is to include the overseas ballots, so what I would expect, but I don't know. You know, right now we're at such a high level of uncertainty here, not only just a political question, but the legal questions, is that somehow those overseas ballots will have to be included in the count.

But the secretary of state certainly is eager to meet the deadline today to certify the state results.

SESNO: OK. Greta, what is next in the appeals process here?

VAN SUSTEREN: That's the big question. What people are expecting is that the big loser this morning up in Tallahassee in the circuit court, Leon County Circuit Court, was the Gore campaign. And what happened there, of course, is that the judge said that Katherine Harris, the secretary of state, did not abuse her discretion when she said that she would not consider any hand-count votes from any of the remaining counties.

Now, the Gore camp lost that today. We would expect that they would go to the Florida State Supreme Court, which would be probably the last word on that. It will be the last word if the Florida State Supreme Court will make the single decision if the case is presented to them, and it seems reasonable to expect it would. But the single decision is not do you agree with the...

SESNO: Greta, let me just jump in if I may. Greta, I'm sorry. Let me just jump in, if I may, take you all to West Palm Beach where we understand the recounters are at the microphone. Let's listen in.


UNIDENTIFIED MALE: Yes, I'll spell it for you.

GARY FARMER, PLAINTIFFS' ATTORNEY: Ed, we're going to have to look that one up.


UNIDENTIFIED MALE: Here's Chemerinsky. You guys are going to need this. Erwin with an E, C-H-E-M-E-R-I-N-S-K-Y from University of Southern California, professor of constitutional law.

FARMER: He'll be here any second. Well...

SESNO: What we've got under way in West Palm Beach is a group of individuals who are actually seeking a revote, we are told in that county. And just so you have the context here, let's go back to the microphone.


FARMER: ... Judge Labarga's even temperament, his willingness to consider all arguments and let everyone have their say. This is obviously a monumental decision that he faces. But as I said today in court, it's our goal today -- you know, we're in a little unique situation here as opposed to what you would consider an ordinary lawsuit in that we've gone to the end of the game and started there in the determination of whether the remedy which we seek can be awarded. And as I said to Judge Labarga today, we just hope that the judge does not foreclose the possibility of that remedy at this early juncture.

The standards about which we spoke today, the legal standards in Florida law and other states dealing with election contests, really focus greatly on the level of proof and the level of the evidence and the quality of the evidence, and that evidence has not yet been heard. And I think Judge Labarga, to really appreciate the legal issues, has to appreciate how strong the evidence is as to the illegality of this ballot and how many people's votes were adversely affected. And of course we all know how that has impacted the entire country.

So it's my understanding that we'll have a ruling from Judge Labarga possibly on Monday. I got the sense that we'd receive it on Monday. For those of you who were not in the courtroom, he announced that he will have copies of the order available at the court administrator's office, much to the administrator's chagrin, in piles: one for lawyers, one for public and one for the press. So you'll be able to pick those up.

Other than that, I'll take questions now if anybody has questions.


QUESTION: (OFF-MIKE) if the secretary of state certifies the results of the elections and if the overseas ballots give it to Gore?

FARMER: I'm sorry, could you repeat that please.

QUESTION: Will you go further if the election ends up in Gore's favor after it's certified?

FARMER: Well, if the election ends up in Gore's favor, it really moots our lawsuit because under any statistical analysis whatsoever, there is no way that George W. Bush would increase his vote count on a revote or even a statistical reapportionment of the votes that have already been cast. The only thing that would happen with a revote or a reassignment, if you will, of the votes already cast would be a net increase for Al Gore.

So if Gore carries the absentee ballots or if the manual recount is ultimately considered by Secretary of State Harris, which we are still very hopeful and believe will happen -- we believe that Judge Lewis's ruling today will be overturned and that Secretary of State Harris will consider the results of the manual recounts -- then, yes, that is going to essentially moot our lawsuit and obviate the need for another election.


QUESTION: You talk about this being an illegal election. What's the evidence that, in brief, that you have that shows this to be an illegal ballot?

FARMER: The ballot itself?


FARMER: Well, our paperwork filed really lays it out, I think, in great detail. But very briefly, the form of the ballot, the use of the butterfly format, left, right, left, right, violates a number of statutes. I've heard argument made that some of the older statutes that we have that refer to paper ballots do not apply. In fact, the statutory framework for the electrical/mechanical tabulating systems, which is what we use here in Palm Beach County, specifically references the paper ballots and that the ballots utilized even for the electrical/mechanical tabulating machines should resemble as closely as possible that format.

In addition, the order in which the candidates were listed violates the statutes; the fact that the instructions given out with the ballot clearly directed the voter, one, to vote for candidates plural, not candidate or ticket, if you will. With a presidential election, it's the only election where you've got two people's names but it's really just one vote. In addition...

SESNO: You've been listening to citizens gathered in West Palm Beach talking about their efforts to argue the case that Palm Beach County should go back and revote. Considered something of a long-shot case, but one of many citizens groups we are hearing from and many legal actions that are under way. Hearing there as well that should Al Gore go up on top, the case is mooted because, in Palm Beach County anyway, statistically, that is a Democratic stronghold. Meanwhile, the counting there, the recounting itself goes on in a separate action.

We also want to explain these numbers that you're seeing at the bottom of your screen right now. You're seeing "Bush Leads Gore By 302 Including Overseas Ballots." That's the overseas ballots in two of 67 counties.

Now, remember, this is just a snapshot. We're getting only the first reports now via the Associated press of what the counties are bringing in and counting in these last overseas, absentee ballots. Can't tell you where those come from or the significance of those. They're only the first results. They'll continue to trickle in via the AP throughout the day.

The secretary of state wants to certify those absentee, overseas ballots, and thus the results of the state of Florida, tomorrow. We should tell you this, though: According to Florida state law, as we understand it, the counties actually have seven days to get their results from those absentee ballots to Tallahassee. If they all don't do that, there's some question as to whether the secretary of state can certify the entire state.

So just another piece of uncertainty in a tidal wave of uncertainty.

Greta Van Susteren, back to you.

If you followed that, you're probably better than the rest of us. But anyway...

VAN SUSTEREN: It is a tidal wave of uncertainty. It's a good description.

SESNO: Back to the courts now, Greta, in terms of the appeals and where the argument stands. Can you just recap that for us? VAN SUSTEREN: OK, here's where we are. We have the 11th Circuit, the United States Court of Appeals. We have a Bush -- and I call it a Bush; I'm just going to use Bush and Gore since it's easier to remember -- we have a Bush request for a stop sign, an injunction to stop the manual hand counts that's going on here in Florida, in Palm Beach County and Broward.

We have in the Florida Supreme Court currently nothing, but we expect that the losing party this morning, the Gore party, that they will go to the Florida Supreme Court and ask the Florida Supreme Court to reverse the trial court in Tallahassee, Leon County Circuit Court this morning, reverse that judge when that judge said that the secretary of state did not abuse her discretion when she said she would not consider any results of any manual hand counts.

Then we have here next to me in the West Palm Beach Circuit Court here, we have citizen suits; citizen suits complaining about that butterfly ballot. And the argument that was held this morning was simply on the issue that even if the judge does think there's something wrong with this butterfly ballot, does he have the power to throw out the election and order a new election in Palm Beach County? We expect that decision, a written decision, to occur next week.

And then we have a spouting of other actions that we hear are being followed around the country -- or around the state, but those are the main actions where we should be focusing our attention.

SESNO: All right, Greta, and we'll be back to you, of course, at the bottom of the hour, hear more from you and your partner, Roger Cossack. Coming up, "BURDEN OF PROOF" right after this program, NEWSDAY.



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