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CNN’s Kenneth Gross: The latest on Florida’s presidential balloting recount
(CNN) – The Florida Supreme Court ruled November 16 that Palm Beach County can proceed with a manual recount of ballots in the presidential election. However, Florida Secretary of State Katherine Harris told the high court that she has the authority to make decisions on allowing hand counts and that she will not include these counts when she certifies the totals on Saturday. Democrat Al Gore’s legal team challenged that decision before Leon County Circuit Court Judge Terry Lewis.
Kenneth Gross is CNN's election law analyst for the current election coverage. In 1977, Gross joined the Federal Elections Commission as a general attorney. In 1980, he was promoted to associate general counsel and was in charge of enforcement until 1986. Gross then joined the law firm of Skadden, Arps, Meagher & Flom, where he heads the firm's political law division.
Chat Moderator: Welcome to the Q&A chat room, Kenneth Gross.
Kenneth Gross: Thank you and hello. I look forward to answering your questions.
Chat Moderator: We are all getting confused as to who is suing whom and in which state. This is hard to understand, especially when you are living overseas. Can you tell us briefly who is suing whom and where?
Kenneth Gross: It is very difficult to follow living in the United States and, in fact, I was in Florida and it was even difficult onsite. So don't feel bad if you can't follow all the suits.
What is happening now is that the Gore people are challenging the secretary of state of Florida in her effort to stop the counting of the votes. And the secretary of state of Florida wants to certify the votes as they now stand -- which shows Bush ahead by 300 votes -- with the only exception being the absentee ballots, which are generally viewed to favor Bush.
There is also a case in federal court, brought by the Bush campaign, asking that the process be stopped on the grounds that the entire recounting process is unconstitutional because there are no uniform standards for counting and recounting.
Question from Gabby-US: Mr. Gross, what is the legal standard that will be used to review the Florida secretary of state's decision to refuse manual recount election returns from the counties? Is that standard easy or difficult to meet?
Kenneth Gross: Right now, that is the question at hand, which was argued before the court in Tallahassee this morning. The secretary of state argues that the only discretion that she has in allowing the recounted votes at this point is if there is fraud or a disaster such as a hurricane. The Gore people say that she has much more discretion; that ultimately what counts is the will of the voters, which can only be determined by recounting the votes, even though it will take several more days.
The court will have to decide which is correct. Based on the precedent in Florida, it is difficult to decide how the court will rule. Some believe that at the Florida Supreme Court level, based on prior cases, they have shown a willingness to make sure that every vote counts, even though the submission of the tallies may be beyond some of the strict statutory deadlines. If that is the case, that is good news for Al Gore. If the secretary of state of Florida wins -- who is generally viewed to be a Bush supporter and a Jeb Bush appointee -- then Bush will win.
Chat Moderator: What do scientists say about hand counts? Do you think they are legally viable? How difficult is it for counters to change the vote during recounting?
Kenneth Gross: Hand recounts, as well as machine recounts, are subject to error. There is no absolute, foolproof method of tabulating votes. Hand counting is generally considered more accurate, particularly when the method of voting -- as was the case in many of the counties in question -- is punch card voting.
What can happen when you punch card a ballot is that the piece of paper that is supposed to dislodge, doesn't totally dislodge. It hangs. The way that ballot is counted is to run it through a machine. If light shows through the hole, the vote counts; if it doesn't, then it doesn't. Machines sometimes push the hanging paper back into the hole and don't record a vote that should have been recorded. A hand count would pick up that vote. So, generally speaking, hand counts are viewed to be a more accurate method of counting, but not foolproof.
Chat Moderator: At this moment, Governor Bush leads by 300 votes. Is it correct that the officially certified results include the manual recount from several Republican lead districts? Shouldn’t the Florida secretary of state reject these manual counted results if she is to reject other manual recounts?
Kenneth Gross: It is true that the 300 vote lead for Bush includes some manual counting in counties where Bush won and also manual recounting in Volusia County, which Gore won, because they were submitted before the 5 p.m. deadline on Tuesday of this week. It is the secretary of state’s position that you could recount as much as you want, but you needed to get them in to her by Tuesday.
The big counties in question -- Palm Beach, Broward County, Miami Dade -- simply could not get the recount done in time. This is complicated by the fact that the recounts have been stopped because of legal questions as to whether ballots should be counted or not counted, such as a hanging chad: Should it be counted if it is attached on one corner, two corners, etc.?
Chat Moderator: In their petition requesting an extension of the Tuesday, 5 p.m. filing deadline, Broward and Palm Beach Counties have told Florida Secretary of State Katherine Harris that the vote situation there is so close that the outcome of their recount could affect the final vote count. Is an appeals court likely to uphold Harris' rejection of their petition if these ballots could be that crucial?
Kenneth Gross: That is in many ways the ultimate question in this whole battle. It goes back to the question of whether the Florida Supreme Court, when it finally hears this case, is willing to reject counted votes or recounted votes merely because the recount could not be accomplished before the 5 p.m. deadline on Tuesday.
Based on prior cases in Florida, many experts argue that their tendency will be to count the votes, even though they come in beyond the deadline. However, there is one case in which the court ruled that a statutory deadline should be a cutoff.
Question from Maggiejo: Did Ms. Harris have to inform the governor of Florida of her decision BEFORE she informed the public?
Kenneth Gross: In the court case that was argued this morning before Judge Lewis, the lawyers for Gore, I believe, suggested that she failed to follow procedure by not notifying the Board of Elections. But even the Gore lawyers suggested that that was a mere technicality and that they weren't basing their argument on that fact. I don't believe that her failure to meet such a notice requirement would cause the court to rule against the secretary of state.
Chat Moderator: In view of the events of this election, should state legislatures change their election laws so that elected or appointed state officials cannot serve as chairs or co-chairs of a candidate's campaign?
Kenneth Gross: That is an interesting proposition. Election administrators should be objective. And if they are associated with a campaign right before they are appointed to office, they are either going to have difficulty being objective or be viewed as being biased.
I believe that you could pass a law that there should be a cooling off period to avoid a conflict of interest or an appearance of a conflict of interest before someone becomes an election administrator. This would be a cooling off period between the time they serve on a campaign and become an election administrator, perhaps two years.
I wouldn't want to permanently disqualify someone from that position since some of the best administrators of elections are those that had experience working in campaigns.
Chat Moderator: Thank you for joining us today, Kenneth Gross.
Kenneth Gross: Thank you. I enjoyed the very excellent questions.
Kenneth Gross joined the Q&A/Law/Allpolitics Chat via telephone from CNN's Washington, D.C. bureau. CNN.com provided a typist for him. The above is an edited transcript of the chat, which took place on Thursday, November 16, 2000.
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