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Saturday Morning News

Robert Bennett Discusses the Supreme Court's Involvement in the Florida Recount

Aired November 25, 2000 - 8:00 a.m. ET

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

KYRA PHILLIPS, CNN ANCHOR: Here's what's happening this morning. Hand recounts are set to resume this hour in Broward and Palm Beach Counties in Florida. Unofficial results so far show Vice President Al Gore chipping away at Governor George W. Bush's lead in the state by nearly 300 votes.

But it's impossible at this point to know how this drama will be resolved. What do we do now or what do we know is that next Friday the U.S. Supreme Court will hear arguments on the Florida Supreme Court's decision which sanctioned the hand recounts. The Florida high court has set a deadline of 5:00 p.m. tomorrow to have all the recounts finished and filed with the state for certification.

MILES O'BRIEN, CNN ANCHOR: The Supreme Court hearing may be the big enchilada, but there are a lot of other legal challenges on the docket this week as well, from both the Bush and the Gore campaigns.

CNN's Bill Hemmer is in Tallahassee. He's got the scorecard there and will keep us up to date on a lot of legal activity.

Bill, good morning to you, sir.

BILL HEMMER, CNN CORRESPONDENT: Miles, good morning to you again from Tallahassee.

Again, that deadline coming up quickly, tomorrow five o'clock when any amended votes have to be in to the Secretary of State's office here in Tallahassee. That's on Sunday. On Monday we do expect to enter into this contest period where it looks like it could be anybody's game come Monday.

More on that in a moment, but first, let's get down to Broward County, where, again, the counting's set to begin again this hour. Here's CNN's Susan Candiotti with us again live there. Susan, good morning .

SUSAN CANDIOTTI, CNN CORRESPONDENT: Good morning, Bill.

Right now you're taking a live look at the canvassing board here in Broward County. This panel worked from eight in the morning till 11 o'clock last night. At this hour they are getting ready to resume their work, but right now there's a lot of people milling around right now. The canvassing board members, we've seen at least two of them so far this morning.

The pace has been pretty much the same since they began considering these so-called under votes that began in earnest on Thanksgiving Day. The board's job as it sees it, to follow the Florida Supreme Court's guidelines to evaluate the entire ballot, to decide a voter's intent. If there is only a partially punctured ballot, many of these are being rejected outright if the canvassing board decides they can't tell for which candidate a voter was making a choice.

Now, for other ballots, the board uses what it calls a reasonable certainty to determine what a voter had in mind, for example, if the ballot has a dimple mark.

It's tedious work but no one, Republican or Democrat, is challenging the trustworthiness of the board members. Democrats call their work fair and accurate, but Republicans charge the process itself is an outrage.

Vice President Gore's supporters are very thankful for the process and encouraged by it because so far he's gotten a number of votes through this ballot counting process and so far in Broward County alone, the Vice President has a net gain of 369 votes. But will it be enough to overtake George Bush's lead?

Bill, back to you.

HEMMER: All right, Susan. Susan Candiotti in Broward County. Also, the action continues in a similar fashion in Palm Beach County. In West Palm this morning, here's Jeff Flock again.

Jeff, good morning.

JEFF FLOCK, CNN CORRESPONDENT: Well, we're having real fun now, Bill. As you perhaps can tell, or maybe I'm sure you can't tell because television often does not do it justice, it is raining like heck at the moment and this tent is not tremendously watertight. But there you go.

No one on the scene yet. I don't know if it's a result of the weather, although we're still about an hour from when they were anticipating getting underway back here again in West Palm and the work that needs to take place is a gargantuan task.

Here is what we best know about it. About, at this point, 243 precincts of 637 have been dealt with by the canvassing board. That leaves them a long way to go and a short time to get there.

Now, how are these votes going? You reported earlier the vote swing, very small vote swing. Even under the most favorable Democratic predictions, and I talked to Democratic attorneys yesterday here who said that they thought they made up about 25 votes -- these are ones that have not yet been reported -- 25 votes in the first 600 or so ballots that had been adjudicated and they've got, you know, who knows, maybe 5,000 or 6,000 more to go. But even under the most favorable predictions, the lead for Gore here might only be 200 or 300 votes at most.

Of course, that would be close if you combine that with what Broward is coming up with. So still the jury is out. But that's even the most favorable Democratic predictions. We don't have the good, hard numbers yet. The precincts that they do, they don't necessarily hand out and make available right at the outset. So we're still a little bit up in the air, as we said. Perhaps you can hear the thunder rolling. It's not a pretty day here in Palm Beach County.

HEMMER: Jeff, get yourself a better umbrella. We'll check in again shortly. Jeff Flock again live down there in Palm Beach. Jeff, thanks to you.

We've had some wacky and wild weather here in Tallahassee, too. Believe it or not, Miles and Kyra, we had a tornado watch here last night. I mean the weather has been as wild as this story.

Coming up shortly, George Terwilliger, Bush attorney, will talk about the U.S. Supreme Court or talk about the military ballot issue here in Tallahassee. And we'll talk about those protests in southeastern Florida. All that coming up shortly here in Tallahassee.

But now back to you in Atlanta, Miles, Kyra?

O'BRIEN: All right, thank you very much, Bill.

Some people, even constitutional scholars, are a bit surprised to see the Supreme Court agree to hear the Bush appeal to stop hand recounts in Florida.

Joining us to examine the possibilities of what the Supreme Court might or might not do, risky territory no matter when, is constitutional scholar Robert Bennett of the Northwestern University Law School in Chicago. And we'll be taking a few of your e-mail calls or e-mail messages throughout this.

Let me begin, professor, though, by just asking you are you surprised that the Supreme Court decided to have this hearing a week from, or a little less than a week from now?

ROBERT BENNETT, NORTHWESTERN UNIVERSITY: Yes. I'm surprised along, I think, with most Supreme Court watchers.

O'BRIEN: And why is that?

BENNETT: Well, it's a hornet's nest and the court likes to stay out of political controversies. So I suppose that's the basic reason. But also, I would have thought that the court would be inclined to enter in only if it could achieve some unanimity, that is, if we could get a unanimous decision and that might quiet the waters.

But I think it's very unlikely that we'll see a unanimous decision on this issue, if the court, in fact, joins the issue.

O'BRIEN: And the precedent that you're referring to here that makes you surprised is the fact that historically the U.S. Supreme Court has been reluctant to get involved in an area that the Founding Fathers had left to the states. However, if you look at the narrow questions which the court is asking in its decision to allow the hearing, it's very specific as to the point where federal law meets the state election laws, correct?

BENNETT: Yes, that's right. I think there are likely to be two jurisprudential issues in play here. One is literalism in statutory interpretation or following the plain meaning. This would be the deadlines in the Florida statute. And the second is the one you mentioned, deference to the states. The ironic thing here is that the same justices who are given to literalism in interpretation of statutes are also given to extreme deference to the states and that's, I think, what makes this very difficult to call.

O'BRIEN: And there's not a lot of precedent here for the justices to work with, not a lot of previous interpretation of these particular portions of the constitution, correct?

BENNETT: Well, that's certainly right. It's also the case that the Supreme Court of states gets to decide questions of state law as an ordinary matter and it's only because of the claim by the Bush people that the Supreme Court of Florida "changed the law here" that there is the hook that the Supreme Court is apparently interested in grabbing onto to examine this question of the clash of literalism and of prerogatives of states.

O'BRIEN: All right, let's check out an e-mail. This one comes from T. Scott. I'm not sure where he or she is. "If the integrity of the U.S. Supreme Court is to be retained, it must rule in favor of the will of the people. A bit enigmatic statement, but nevertheless, how much of the court's credibility is on the line here?

BENNETT: Well, I think a lot of the court's credibility is on the line, which is a large part of why I'm puzzled by their having taken this. As I said earlier, I think that credibility could be actually bolstered by a unanimous decision but I think it's hard to imagine that there will be a unanimous decision.

O'BRIEN: All right...

BENNETT: Just what it means to defer to the will of the people here is exactly what's at issue, unfortunately.

O'BRIEN: Well, and as I understand it, it only takes four members of the court, four of nine, to vote in favor to allow a hearing, isn't that correct?

BENNETT: That is correct.

O'BRIEN: So there's little, I mean, many people in the Bush camp were interpreting this as the fact that the Bush case had some merit. Would that be presumptuous?

BENNETT: Well, I think we've got to assume that at least four members of the court thought that there was at least some initial plausibility to the Bush case, yes. O'BRIEN: All right, let's go back to the e-mail here. I know constitutional law is your area here, but this, to the extent that it relates to the relationship between the way the states hold their elections and the federal government, this question is relevant. It comes from Robert Wilson in Holland (ph), Michigan. "Do you think that after all this is over, before the next presidential election, that there will be a voting process or ballot that will be more generic throughout all the states?"

Now, that goes, in a sense, that goes to the heart of what the framers of the constitution were doing when they left the elections to the states, correct?

BENNETT: Yes, and I'm no expert on this, but, that is, I think this is a question of politics fully as much as federal-state relations. But I would say we've probably found a pretty good use for a portion of that surplus. I wouldn't be surprised if we had a federal program of grants to the states to advance election machinery in lots of different ways.

O'BRIEN: Well, what about in the case of electing a president and a vice president? What about a just outright federal election? That is out of the question according to the constitution, isn't it?

BENNETT: Without a constitutional amendment. I expect that there will be a move to amend the constitution as well. That's going to be a long, uphill battle. But that's certainly going to be an issue that's bandied about a good deal.

O'BRIEN: And when that battle begins, of course, the Electoral College will come into play. Do you see a move toward eliminating that as well? Would that be sure...

BENNETT: Oh, yes. That's precisely what will be the focal point of the debate.

O'BRIEN: OK. Robert Bennett, who is looking at things legal and in the constitution for us from Northwestern University in Chicago. Thanks for being with us on CNN SATURDAY MORNING.

BENNETT: My pleasure.

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