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The Florida Recount: President Will Emerge From Tangled Web of Legal Actions

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

DARYN KAGAN, CNN ANCHOR: If you're just joining us, to recap the major news of the day: A Florida judge, Terry Lewis, coming out about an hour and a half ago and, through a statement read by a court spokesperson, saying that the state of Florida does not have to do accept those manual hand recounts currently taking place in Broward and Palm Beach County and in other counties that might be considering doing it after the state -- that the secretary of state had used reasonable judgment and, if she believes it's the best thing for the state of Florida, can go ahead and certify the election results for tomorrow for the state of Florida.

This is, indeed, not a final setback, but a big blow for the Democrats and Al Gore and a big push, a big boon for the Republicans and George W. Bush. Just a few minutes ago we saw live, here on CNN, James Baker, the former secretary of state who has been working with the Bush camp.

Let's go ahead and, once again, listen to his remarks from Tallahassee.

(BEGIN VIDEO CLIP)

JAMES BAKER, OBSERVER FOR BUSH CAMPAIGN: Ladies and gentleman, I have just spoken with Governor Brush and Secretary Cheney. They are, understandably, pleased with Judge Lewis' opinion. The rule of law has prevailed. The court applied the rule of law objectively and fairly, upholding, as the judge's opinion states, the, quote, "reasoned judgment," closed quote, of the secretary of state and the state election commission's certification of results on November 15.

We now look forward to the prompt counting and reporting of the limited number of uncounted, overseas absentee ballots so that the process of achieving a final result to the election in Florida is not subject to further delays. Thank you very much.

(END VIDEO CLIP)

KAGAN: And that could take place as early as tomorrow. James Baker speaking for the Bush camp. The Gore camp, obviously, not as pleased, and we do expect to hear live from some spokesperson for the Gore camp sometime in the next hour -- Eileen O'Connor giving us that information earlier this hour. Meanwhile, we do expect the Gore camp to appeal this to the state Supreme Court in Florida; with more on that, let's bring back in our legal analyst Greta Van Susteren, who's covering the story, now, from West palm Beach to the south of Tallahassee where this took place today.

Greta, when we talked to you this morning, long before this decision came out, you said you expected this thing to end up and wind up and wrap up in Florida state Supreme Court. Why is that?

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: Well, I don't think it takes any amount of genius to come up to that conclusion because these have to have some finality and you always go to the final step in law, and that will be the Florida Supreme Court. So it was not any sort of great stroke of brilliance on my part. It's rather routine that, when you lose, you go up to the next higher court; and, of course, that's the Florida Supreme Court.

And this is not an insignificance defeat for the Gore campaign. This is an important hearing and it makes it much harder for them to win before the Florida Supreme Court. But that's where this is going to end up. But that's not the only legal spot -- we've got the 11th circuit in Atlanta. And we also have, here in West Palm Beach -- I'm joined here in West Palm Beach by CNN's Mark Potter, who's been covering the legal matter here.

What's going on here, Mark?

MARK POTTER, CNN CORRESPONDENT: Another case -- this is the one that Palm Beach County is looking very closely at; it's being discussed right now in the courthouse behind us. This is a matter before Judge Labarga, and the issue, simply stated, is does a judge have the right to call a new, county-wide presidential election simply because voters here say they were confused by the ballot?

It's not an insignificant number. Thousands of voters have said they were confused by this ballot and they're asking for a new election to remedy that problem. Now the judge has said that this is a complex issue; he's not going to rule from the bench like he did before. He's going to take some time and he's going to think about it. It's a very emotional issue, and he'll issue a written decision sometime next week.

This is all of the result of those lawsuits that we've been hearing about, filed by local residents who say that they want this new election. The argument that they are making is that they lost the vote. They lost the vote they intended to make. Either they double- punched the ballot or they voted mistakenly for Pat Buchanan when they intended to vote for Al Gore.

Their lawyers say that the judge does have the right to order a new election, not only because of the confusion of the ballot, but because it was illegally drafted. And they're saying that that may have cost Al Gore as many as 14,000 votes, according to their statistical analysis. They're saying the judge should make that decision; they used the line, "the buck stops here." Now, on and the other side, a question raised by the judge himself -- whether he actually has that power. This is a presidential election. It's special, the rules are governed by the Constitution, controlled by the U.S. Congress. His question: Does a judge, a local judge, have the power to intervene and call a new presidential election? He's joined in that by the lawyers for George W. Bush who say, indeed, he does not have that power, that this is a separation of power issue only to be determined by Congress, not by the judge.

And so it goes on and on and on; and I'll add one last thing. There was a very emotional moment. The judge got a little bit choked up during this hearing. He said he understood how important this matter is. He understands the sanctity of the vote because he, himself, a Cuban American, was brought to this country by his parents so that he would eventually have that right to the vote -- Greta.

VAN SUSTEREN: So you see, Daryn, I mean this is an incredible legal struggle that's going on. Even if the secretary of state does certify this election, it's theoretically possible that what Mark is talking about, which would happen after that certification, next week, could add still another wrench in the works. So the battle goes on.

KAGAN: Greta, one quick question to you, following up what's going to happen Tallahassee with the state Supreme Court. I guess where I was going with that: Why would it end at the state level and not go to the U.S. Supreme Court?

VAN SUSTEREN: Because -- the reason why, most people think, Daryn, that this will end in the Florida state Supreme Court is that typically -- and, once again, I underline the word "typically," because nothing is really particularly typical about this matter; and you can't ever predict what gets in the minds of judges and justices.

But, typically, elections are matters for the state, for the state court, for the high state court. And unless you can find a legal reason to get into the United States Supreme Court, you stay in the highest court of the state and you'd have to have some sort of constitutional challenge. And right now the issue before -- that we expect before the state Supreme Court here in Florida is simply the question, not whether you agree with the Secretary of State Katherine Harris.

That's not the issue. It's whether or not she was -- that she acted in an arbitrary and capricious manner when she made her decision. It's not whether you agree with her. It's just whether she used sound judgment. you can disagree will her judgment, but as long as she exercised some, then she is likely to prevail. And that's a matter that will stay probably -- and I underline "probably" -- in the state courts because that is not something, unless the Gore campaign can fashion it into a constitutional issue, it will stay here in the state of Florida.

KAGAN: Well, now, what are the Republicans doing in federal court and, now, federal appeals court here in Atlanta?

VAN SUSTEREN: Well, what they're trying to do in Atlanta is there are two hand counts still going on here in West Palm Beach and Broward County. They want to stop that. They asked a federal judge on Monday to prevent the hand count from going forward. They lost there.

So they have now gone to the United States Supreme Court. They claim a constitutional argument. That's why they're in the federal system. They claim that a hand count, in essence, dilutes the votes of others -- other's right to vote, right to have a voice in their government. So they're using a constitutional hook to go up through the federal system. That's why they're there in the federal court.

But one of the issues for the United States court of appeals is, is this any of our business? Do we even have the authority to stop the hand count, or is that a state matter? So you also have this sort of interesting legal thorn in terms of can the federal court tell the state court what to do in their elections?

KAGAN: Plenty to be written in many legal journals, I think, for months and many years to come.

Greta Van Susteren, Mark Potter, thank you very much -- Stephen.

STEPHEN FRAZIER, CNN ANCHOR: We've asked senior Washington correspondent Charles Bierbauer to take a look at the overall meaning of all of these events. They've been coming fast and furious and so, rather than staying at one particular courthouse, Charles has been looking at larger picture here, and we're awful grateful for that kind of oversight.

Charles, first of all, when you go to the Florida Supreme Court, is there any kind of leaning on the part of the judges that may give us some sense of how they're going to rule?

CHARLES BIERBAUER, CNN SENIOR WASHINGTON CORRESPONDENT: Well, if you look at it on paper and read their biographies, you note that they've all, with one exception, been appointed by Democratic governors. And the exception was the concurrence of Governor-elect Bush, Jeb Bush with the outgoing Governor Chiles, in selecting the last.

But just because they're all Democrats doesn't mean that they have a political leaning. Almost any judge or justice will tell you that he tries to leave the politics at the courtroom door. This is a court -- the Florida Supreme Court -- that is known for its knowledge, its experience and it's eminent fairness for the most part, that would suggest that you should not look at their political affiliations, and that's an important consideration.

It's also important to note that, though the Florida Supreme Court has now ruled twice with regard to the hand counting process and allowing it to go forward, it has not yet ruled with regard to the Florida secretary of state's need, necessity or compulsion or compliance with accepting those late recounts. And the step that has taken place today in the circuit court, in Judge Lewis' court today was to say that, while he, in the first place, had given Ms. Harris discretion to decide whether to accept these ballots, all he said was that she could not be arbitrary.

And his ruling today very much comes down on the side of saying, she has exercised her discretion, she was not arbitrary, she's used reasoned judgment -- as we've heard James Baker point out -- and that he sees nothing further for him to do.

So this has narrowed the options in a very important step here starting to limit the possibilities -- Stephen?

FRAZIER: You also heard, though, just a minute ago, Mark Potter there with Greta Van Susteren, Charles, talking about of what almost sounds like a civil rights case here: Voters claiming that they were deprived of their vote, their civil right to cast a vote because of the confusion they felt over the design of the ballot there.

And that seems to be coming in completely out of the left field at the last minute, but with something that would almost supersede all of this.

BIERBAUER: Well it's not out of left field. These several cases filed by voters in Palm Beach County have been before Judge Labarga. In fact, he was the sixth judge to be faced with this dilemma, five of the judges down there recused themselves.

What is particularly curious about Judge Labarga's decision to wait until next week to rule as to whether he even has the power to order a revote in Palm Beach County is a protraction of this process which, in every other court, is moving towards a conclusion. That is a complication; were he to say next week, yes, I've got the power, now I'm going to think about it even father as to whether I will or will not order a revote is certainly a complication.

But it would be my sense -- though not a legal one -- but my sense that the Supreme Court in the state of Florida is going to rule before that and that could be the much more conclusive measure, even if Judge Labarga says, yes, that butterfly ballot was a real problem and these people might be entitled to a civil rights claim. I'm not sure that they would get it at that point.

FRAZIER: Charles, I'm interested in the mood within the beltway. We often fault people who just cover Washington for getting a little bit too inside the beltway -- now we've got an issue where the entire nation is engaged. But what's it like within the beltway where the entire apparatus is devoted to this kind of minutia? They must be loving this.

BIERBAUER: Well, this is a civics lesson for the whole country. I teach a college course on media and government and we've certainly been focusing on this over the last couple of weeks, apart from what we intended to do; and my son in grade school has been attentive to it.

So inside, outside the beltway -- one thing that is concerned here in Washington is that there's a transition that's supposed to take place to the new administration. And that is, essentially, on hold. The facilities are ready for someone to move in -- a turn-key operation, but there's no one to hand the key to. Certainly everyone here is watching; I have to presume that the nine justices who sit at the U.S. Supreme Court are watching, possibly in the hope that they won't have to get involved in this.

And you know, when courts rule, they file concurring and dissenting opinions, and I'd like to file a concurring one with Greta Van Susteren here. Because the sense is that, very much, the Supreme Court would be reluctant to take on this case. And, as Bob Franken has been reporting from Atlanta, what is happening in Florida may make it easier for the 11th circuit court of appeals to say, this is not in our hands, it's being dealt with just fine in Florida, where the general sense is, these elections should be leveled on the state level.

FRAZIER: Charles Bierbauer, giving us the big picture from Washington; Charles, thanks for joining us this morning.

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