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Election 2000: U.S. Supreme Court Hears Bush Recount Challenge; Questioning Suggests Unanimity Unlikely

Aired December 1, 2000 - 1:41 p.m. ET

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

FRANK SESNO, CNN ANCHOR: Ken Gross joins me now, as promised.

Ken, we sat and listened to this thing together. You have some thoughts, as to exactly how you felt this thing was breaking down a little bit that I'd like to hear you talk about?

KEN GROSS, CNN ELECTION LAW ANALYST: Well, there was some thought that, perhaps, this court would try and get a unanimous opinion, since in the case involving President Nixon there was one, and in the case involving President Clinton there was a unanimous opinion. But from what I heard, I don't think there is much possibility of that. I heard a divided court, unless procedurally, somehow, they decide that there is no remedy to fashion here, and they all dive, basically.

But I heard Justice Rehnquist and Justice Scalia express some very large concerns about the way the Florida Supreme Court fashioned its opinion. They said it was based on the Florida Constitution, not the legislative statute passed by the Florida Legislature, and therefore, they're looking to the federal Constitution to say: We do have authority to step in.

SESNO: Broadly speaking, Ken, what impact does any of this in Washington have to do with the courts in Florida that are trying to put their arms around whether there should be more counting, under the guise of a special master or anything else in those courtrooms of these disputed ballots?

GROSS: Well, it's somewhat indirect, although the Bush people, in their brief, argued that if the U.S. Supreme Court steps in and says that the date should have been November 14th, that the Florida Legislature acted outside of its dictates, that would undercut a large part of the contest phase of this by saying that what happened in Miami-Dade, as far as the recounting of the 10,000 ballots and the intimidation, all that happened after that date. They're saying that case should fall apart, if you take to the logical conclusion that the cutoff was November 14th.

Now the other justices, in fact, the majority of the justices, seem to want to give -- give the authority to the Florida Legislature, and uphold -- excuse me, to the Florida courts, and let the Florida court uphold it and give it credence to the state court.

SESNO: It's not over.

It's certainly not over.

SESNO: Ken Gross, thanks, as always. It has been a remarkable day and there is more to come of course.

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