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MR. MCLAUGHLIN: Issue one: Judicial coup d'etat.

JAMES BAKER (former secretary of State, adviser to George W. Bush): (From videotape.) At Monday's oral argument before the Florida Supreme Court, Justice Harding asked a key question about Florida's electoral laws and standards. He said, "Is it right to change the rules in the middle of the game?"

MR. MCLAUGHLIN: Unusual or not, the Florida Supreme Court, with its seven (sic) Democrats out of seven justices, did change the rules in the middle of the game, say Republicans, and sweepingly so.

GOV. GEORGE W. BUSH (R-TX): (From videotape.) We believe the justices have used the bench to change Florida's election laws and usurp the authority of Florida's election officials.

The court had cloaked its ruling in legalistic language, but make no mistake; the court rewrote the law. It changed the rules, and it did so after the election was over.

MR. MCLAUGHLIN: George Bush may see this high court decision as a changing of the rules, but Al Gore sees it as an enforcing of them.

VICE PRESIDENT AL GORE: (From videotape.) The Florida Supreme Court has now spoken, and we will move forward now with a full, fair and accurate count of the ballots in question.

I don't know what those ballots will show. I don't know whether Governor Bush or I will prevail. But we do know that our democracy is the winner tonight.

MR. MCLAUGHLIN: Question: Governor Bush says that the Florida Supreme Court rewrote the law and the rules. Is that true? Or did the court clarify the law and the rules, and does the decision of the United States Supreme Court on last Friday shed any light on what the determination of that question is?

MR. BARONE: Well, obviously, the Florida court rewrote the rules in connivance with the Gore-Lieberman campaign plan to steal this election by refusing to count legally cast military ballots and by counting and inventing illegally cast dimpled chads as votes. The Florida Supreme Court gave them the go-ahead to do that.

But John, it's significant, you know -- the United States Supreme Court taking action here and indicating it'll hear oral argument. Look at a 1995 11th Circuit Court of opinion -- circuit that covers Florida -- unanimous opinion, including one very liberal judge, Rosemary Barkette (sp), who was attacked on confirmation hearings strongly by the Republicans. They overturned a state election, overturned a state supreme court on the grounds that the rules for counting absentee ballots changed after the election and changed to the benefit of one side. They said that violated the constitutional rights of other people. The Supreme court denied certiorari on that case, which means that no more than three justices thought that this unusual decision overturning a state court was so outrageous that it warranted Supreme Court review. I think that may turn out to be one of the keys if the Supreme Court acts on this.

MR. MCLAUGHLIN: So you think that action by the U.S. Supreme Court to accept the petition and review it and pronounce on it is good news for George Bush.

MR. BARONE: I think it's full of significance.

MS. CLIFT: Well, Michael, I know that you went to law school, but I didn't know you were on the Bush team, carrying forward the legal brief.

Look. The Florida Supreme Court issued a ruling that was well argued and well supported by law in Florida and law in the way these kinds of cases are handled in other states. But it was a pyrrhic victory for Al Gore because the court then came back and said that the hand-counting that they said should go forward, they were not willing to force Miami-Dade, one of the most populous Democratic counties, to continue with the counting.

And the way that Governor Bush trashed the Florida Supreme Court, he ought to be ashamed. I haven't heard that kind of language since George Wallace and Richard Nixon. And frankly, if the U.S. Supreme Court now hears this case -- seven judges on the Supreme Court were appointed by Republicans -- does that mean that I think they don't have the country's interest at heart and that they are tools of the Republican Party? No, I don't.

MR. MCLAUGHLIN: What do you think, Tony?

MR. BLANKLEY: Well, I don't think it's a coup d'etat. They have the local power to make the decision they did. I don't think it was a well argued decision by the counsel, and it wasn't well reasoned by the court. The court, in fact, in Florida was misinformed by one of the Gore counsel as to the Illinois precedent. They were told it did deal with dimpling. And in fact, we now know from election law specialists in Illinois the case didn't. Nonetheless, it was a good example of judicial meddling in the statutory scheme, and they could have decided to rationalize the statutes that seemed to be in the conflict. Instead, they decided to rewrite them.

MR. MCLAUGHLIN: David, let me move this a little bit forward, and you can bring your points that I know that you've been entertaining diligently in as I ask you the following questions. It's quite likely that this is not going to end with the certification by Katherine Harris on Sunday. And each of the two candidates have their own playbooks. They have a litigational playbook, they have a local political playbook and they have a federal political playbook.

Starting with Bush, on the litigational side we've already seen that his first challenge -- that is, to the Supreme Court of the United States to challenge the Florida Supreme Court -- that has already been acted upon by the U.S. Supreme Court. There is also a challenge of the Florida Supreme Court in the Circuit Court of Appeals in Atlanta simultaneously. And finally, the Bush people want to contest the election tallies in 14 counties, alleging military vote undercounted.

Can you speak to the three of those collectively and say what you think of the litigational strength in court that's been advanced by the Bush playbook?

MR. CORN: Well, clearly he's looking for judicial activism here. He wants federal courts to intervene where it helps him. And I doubt he'll be attacking the courts the way he's attacked the Florida State Supreme Court if they decide on his behalf. He wants to count military absentee ballots overseas and even give them a break -- maybe he wants to have them count twice as much as other people -- but not count ballots in Palm Beach that were maybe cast by policemen, ER technicians, who knows, fire fighters.

And so, I mean, I think, like the Gore campaign, I'll tell you there's hypocrisy on both sides, but it's not an ideologically coherent strategy.

MR. MCLAUGHLIN: Let me continue the Bush playbook and stretch it into state politics.

The Republican Florida legislature could reverse the Florida Supreme Court ruling if Bush loses the appeal to the U.S. Supreme Court, or he loses in the Sunday tally that Katherine Harris is going to give out, or if the 14 counties contested on military ballots do not offset that loss. Too complicated?


MR. MCLAUGHLIN: Do you want to try to handle that, Tony?

MR. BLANKLEY: Sure. Look, I think that there's no doubt that the state legislature is gearing up possibly to take exactly that action.


MR. BLANKLEY: I was meeting with a Republican governor this last weekend in Florida and they were talking about it then. And I think that it's a crossover from being a theoretical possibility to being highly talked about. Now, whether they're finally going to cross that -- almost rubicon -- and I think that you have to see it as a major step away from the way we normally resolve elections.

MR. MCLAUGHLIN: Eleanor, incorporate your answer into the federal political reach of the Bush playbook; the federal. Now, you know that the House of Representatives is controlled by the GOP, both before and after -- what? When do they take over -- January the --

MR. BARONE: January 3rd is the official date.

MR. MCLAUGHLIN: January 3rd, okay. In the new House of Representatives, the majority will still be Republican. And they can challenge the electors in January if the Florida GOP legislature fails to award the state to George Bush.

Secondly, we have Senator John Warner in a more immediate fashion on the federal level this coming Thursday, holding hearings on the military ballot.

MS. CLIFT: Look, Al Gore wears the "hairshirt" of being willing to do whatever it takes to win, but in fact it's the Republican Party that's going to make sure George W. Bush is president. And they do control the Florida legislature, they do control the House of Representatives, and I have total confidence that they're going to do whatever it takes --

MR. BARONE: John, Eleanor's -- I want to hear -- I'll let Eleanor finish.

MS. CLIFT: -- to make sure that George Bush is president.

MR. BARONE: John, the Florida -- I think that if Al Gore is counted in in Florida on dimpled ballots and exclusion of military ballots, I think that the Florida legislature will act. I think that that will cause great controversy among Democrats as one would expect. But the fact is the Florida Supreme Court went off and wholly rewrote the law. The dimpled chads were invented --

MR. CORN: (Off mike.)

MR. BARONE: Let me finish. That is vote fraud. The law authorizing the legislature to determine the electorates is a simple statement that is absolutely clear under the law. They can do this. With the Senate likely to be 50-50 with the defeat of Slade Gorton --

(Cross talk.)

MR. MCLAUGHLIN: Let him finish.

MR. BARONE: With the Senate likely to be 50-50 with the defeat of Slade Gorton and the apparent victory of Maria Cantwell, that means that neither party can reject the electors because electors have to be rejected by both Houses.

MR. CLIFT: Hey, on oral arguments --

MR. CORN: This is a filibuster. This is a --

MR. CLIFT: On oral arguments in any courtroom --

MR. BARONE: Well, well, well, wait a minute, wait a minute, wait a minute --

MR. CLIFT: On oral arguments in any courtroom, the other side gets a turn.

MR. MCLAUGHLIN: On this very point: George -- let's see, Al Gore is sitting as Vice President after the new Senate convenes --

MR. BARONE: Between January 3rd and January 20th, we have a temporarily Democratic majority in the Senate, assuming that Washington --

MR. MCLAUGHLIN: Because of Al Gore.

MR. BARONE: If that Washington state result holds up.

MR. BLANKLEY: Because of the constitution.

MR. BARONE: Yes, that's right. Yeah.

MR. MCLAUGHLIN: Okay, but --

MR. BARONE: We have a Democratic Senate for 17 days.

MR. MCLAUGHLIN: -- but the certification of all the electoral votes by the Senate and the House occurs on January 6th --

MR. BARONE: That's right.

MR. MCLAUGHLIN: -- when Al Gore will be sitting as the decisive vote in the Senate.

MR. BARONE: That's correct, John. And that means that neither party -- if you reject electoral votes, it has to be done by both houses. In this case, neither party is in control of both houses, therefore, they can't be rejected.

MR. MCLAUGHLIN: Before I go to you -- and I will go to you --

MR. CORN: Okay.

MR. MCLAUGHLIN: -- I want to point out that Gore has a playbook too. Now this is what he can do on the federal level. He can -- on the state level, first of all; let's begin there. He can't do very much because he's trumped by a GOP governor, Jeb Bush, and he's trumped by a GOP-dominated legislature, so he has to focus on the Democratic counties that he's currently working on so hard, one of which is Palm Beach, one of which is Broward -- and they've got a lot of votes there to count -- and one of which is the stricken -- temporarily stricken Miami Broward (sic).

MS. CLIFT: Miami Dade.

MR. MCLAUGHLIN: Now, in Palm Beach they've changed the rules again. They can only count the dimpled ballots on the presidential level if they're also dimpled on the congressional and the local level. So that means not much there -- not much for Gore there.

MR. CORN: He's not doing very well in any of these counts.

MR. MCLAUGHLIN: Well, that's not -- he's doing very well in Broward.

MR. CORN: No --

MR. BARONE: There are some votes in Broward, but apparently not enough by itself to make a difference.

(Cross talk.)

MR. MCLAUGHLIN: No, but they could shrink Bush down to about 200 votes.

MR. CORN: John? John? John, on the question of --

MR. MCLAUGHLIN: But if he gets back into Miami Dade -- and you saw what Joe Lieberman did on Friday afternoon.

MR. CORN: Well, he's tried to, but the courts have not been sympathetic to getting back to Miami Dade. They may have to contest it after the vote is certified.

But on the question of dimpled votes, if you read -- it's -- if you read the decision of the Florida State Supreme Court, they don't say you have to count dimpled votes, and in fact --

MR. BARONE: Well, in fact, in the Illinois case they rely on, no dimpled votes were counted.

MR. CORN: -- they say you can determine the intent. And actually, in Texas, as we're talking, in the last week or two they were counting dimpled ballots.

MR. BARONE: Turns out Texas is the only state that counts dimpled ballots. No other state counts them.

MR. MCLAUGHLIN: On a litigational level --

MR. BARONE: No other state but Texas counts dimpled ballots.

MS. CLIFT: Well, and the fact that Texas counts them is pretty relevant!~

MR. MCLAUGHLIN: Let's get back to the litigational level with the Gore playbook. On the litigational level, he can, right up until December the 11th, which is a full two weeks from now, he can continue to contest Miami Dade, and he might actually get a decision from the local court.

MR. CORN: Well, it's interesting because Miami Dade did rule that there was reason to have a recount, because they did that test recount -- remember? -- of a couple of precincts in 1 percent, and found out there was reason to go ahead. And the question is, having determined that, can they now decide not to? So there's actually a legal case to be made --

MR. MCLAUGHLIN: All right, now on the federal level --

MR. CORN: I know Michael will say it's not, but --

MR. BARONE: (Inaudible.)

MR. MCLAUGHLIN: On the federal level, how does the Gore playbook play out? It seems to me the only thing he can do on the federal level, in view of the domination of both houses of Congress by the Republicans, the only thing he can do is the Beckel strategy. Now, Bob Beckel wants to turn three electoral college votes.

MR. CORN: Gore has said already he won't accept those people --


MR. BARONE: He won't accept them -- (inaudible).

MR. BLANKLEY: He'll accept every vote he can find!

MR. MCLAUGHLIN: Now, look --

MR. CORN: George Bush has come out and he slandered justices who have done their job. At least Al Gore said, "Listen, I don't want this stuff going out under my name."

MR. BLANKLEY: No, no, no, no. We should --

MR. CORN: Bush has not done anything -- (inaudible).

MR. MCLAUGHLIN: Here is what Gore can say. Gore can say, "Look, I am beating in the popular vote, my opponent, by 300,000 votes."

MS. CLIFT: Hear, hear! (Laughs.)

MR. MCLAUGHLIN: "I have a mandate to do something, and that something is to turn those three votes in the electoral --"

MR. CORN: He has said he's not going to do that.

MR. MCLAUGHLIN: I know he said that, but he has not played the 300,000 vote card.

MS. CLIFT: Gore -- Gore --

MR. MCLAUGHLIN: We haven't heard anything about that.

MS. CLIFT: Gore has one more legal card --

MR. MCLAUGHLIN: All right, I want to hear Eleanor.


MS. CLIFT: Gore has one more legal card here to play. And if he can get a quick ruling on Miami Dade, and if he can get some sort of a master in there to count some of the disputed ballots. But it's very hard, if he doesn't have a clear count by Sunday; to win an election based on the fact that people intended to vote for you is very tough.

MR. BARONE: And the clock is running against him in Miami Dade.

MR. MCLAUGHLIN: Quick point -- the clock is running against us too.

MR. BLANKLEY: I was going to say that Gore can't tell electors how to vote. So the fact that he may have made a PR statement that he won't accept them doesn't mean he won't be the beneficiary of them. After his own operatives have --

(Cross talk.)

MR. MCLAUGHLIN: Now we have to get out. We're at exit question point. In the Florida election, are we witnessing the O.J. Simpsonization of presidential politics? Can you cope with that? I'm going to start with you. I'll give you a little time.

MR. BARONE: Well, yeah, I think we have. I think when we got the O.J. Simpsonization was when we had Jesse Jackson down there, probably paid for by the Democratic Party, suggesting this was Selma, 1965 -- an untrue statement -- and sowing the seeds of illegitimizing the election for black Americans if Bush should come in there. The Democrats that are giving us these pious statements now are the people that wanted to benefit by Jesse Jackson's demagoguery here and by planting the seeds of illegitimacy. So it bodes very ill for them.

MS. CLIFT: No. Michael, if anybody is irresponsible in terms of demagogic language, it's Michael Barone.

And both of these candidates are doing whatever they can within the law, and it's being litigated out, and I don't blame them. There's a lot at stake here. They deserve to do it.

MR. MCLAUGHLIN: Do you want to go --

MR. BLANKLEY: Well, yeah, let me address your question. O.J. Simpson stood for voter nullification and using outside-of-the-courtroom tactics in order to affect the jury decision. And that, unfortunately, is what's happening to a certain extent on both sides -- started, though, by Gore -- where they're now trying to get voter nullification,and they're trying to use spin to drive the counting votes --

MR. CORN: (Inaudible.)

MR. MCLAUGHLIN: I think you're putting certain pieces together, but there's more to this Simpsonization.

MR. CORN: And the Bush team has been trying to nullify and de- -- (struggles with the next word) --

MS. CLIFT: De-legitimize.

MR. CORN: -- de-legitimize -- it's hard to say --

(Cross talk.)

MR. BARONE: Bush does that, too.

MR. CORN: -- the whole judicial system when it works against them, and they've bussed in -- talk about demagogues! -- they've bussed in guys who actually were kicking and beating up Democratic officials, and they had to be protected by the police. Come on!

(Cross talk.)

MR. MCLAUGHLIN: All right. I will have to give you the --

MR. BLANKLEY: The Democrats have been bussing in demonstrators since you and I were children.

MR. CORN: There's been no violence from the Democratic side --

MR. MCLAUGHLIN: Excuse me. It's clear that I have to give the full answer to my own question. (Chuckles from the group.) This election has been O.J. Simpsonized by reason of the fact that, number one, we need the "Dream Team" of lawyers. That will be decisive. Number two, we will destroy the credibility of the opposition in whatever way at our disposal. Forget honesty. Forget truth. The name of the game is the game. Number three, we will spin the press. And number four, the debate will be decided by lawyers. That's what we're getting out of this political event today.

When we come back: Why do we strain to show the intent of the civilian voters on dimpled ballots but disqualify the ballots of our servicemen and -women over pettifogging technicalities?


MR. MCLAUGHLIN: Issue two: Absentee ambush.

GOV. GEORGE W. BUSH (R-TX): (From videotape.) If Vice President Gore is seeking some common ground, I propose a good place to start. He should join me in calling upon all appropriate authorities in Florida to make sure that overseas military ballots that were signed and received on time count in this election.

MR. MCLAUGHLIN: George Bush lays down the gauntlet to Al Gore this week over the contentious matter of disqualified military ballots. Three thousand, seven hundred-plus overseas absentee Florida ballots were received after Election Day, November 7th. Almost half, 1,527, were rejected, and most of the rejects are U.S. servicemen and servicewomen.

Now, get this. Democrat lawyers, working for Al Gore, put together a five-page, single-spaced memo of tips on how to invalidate those overseas military ballots. The lawyers swarmed over county canvassing boards last week to systematically disallow these military absentees on a range of technicalities. One of the main pretexts for disqualification, no postmark, notably from military personnel stationed on ships at sea, submarines and foreign soil.

The atmosphere became so poisoned that Florida's Democrat attorney general, Bob Butterworth, finally weighed in urging the postmark be waived as long as, quote, "the ballot is signed and dated." Butterworth's seeming concession, say Republicans, was a snare and an illusion. Among other points, most absentee ballots are county issued and have no line or space designated for a date.

Outrage over the legalistic nitpicking denying military ballots is bipartisan. "I don't care when it's dated, whether it's witnessed or anything else, if it is from someone serving this country and they made the effort to vote, count it; and salute them when you do it." So says Senator Zell Miller, Georgia Democrat, an ex-Marine.

GEN. COLIN POWELL (RET.) (Former Joint Chiefs chairman): (From videotape.) We shouldn't disenfranchise our GIs if there is anything we can do to avoid that.

GEN. NORMAN SCHWARZKOPF (RET.) (Former head of U.S. Central Command/Mideast): (From videotape.) It's not fair. It's a sad day for this country when our military people on the front lines don't get their ballot counted in their selection of the commander in chief.

MR. MCLAUGHLIN: Question: The court battle rages on over the military overseas absentee ballots. Why has the Democratic challenge to overseas ballots been perceived and is being perceived as anti-military? David Corn.

MR. CORN: The Republicans have done a good spin job here in saying that this is just about getting military ballots. It's about other overseas ballots as well. And now I guess we're saying that these guys overseas don't have to date -- they could send them in after the election day. That's what Zell Miller, your favorite Democrat, just said. So we don't want to follow the rules with these ballots because they're the military --

MR. BARONE: Just a minute.

MR. CORN: No, no, no. We don't follow the rules --

MR. BLANKLEY: Let me --

MR. CORN: -- but we short-change the civilian ballots.

MR. BARONE: Just a minute.


MR. BLANKLEY: There's a difference. These are ballots that have been executed flawlessly by the voter soldiers, and then the --

MR. CORN: Not soldiers! That's the problem!

MR. MCLAUGHLIN: Let him finish.

MR. BLANKLEY: And then the military fails to stamp it, and it's thrown out; this compared to the votes in Florida by people who are incapable of casting a ballot.

MR. CORN: Or by a bad ballot design. Come on!

MR. MCLAUGHLIN: I want to hear Michael.

MR. BARONE: John, we had the situation on last Saturday night in Duval County, Florida, where Democratic lawyers representing Al Gore and Joe Lieberman thrust their fists in the air in victory when they excluded 44 military ballots simply for lack of a postmark which the military -- that is the true voice of the Democratic Party today, John.


MR. BARONE: They don't want --

MS. CLIFT: Whoa, whoa, whoa, whoa, whoa, whoa.

MR. BARONE: -- the military to vote. They were paid by the Democratic Party --

MS. CLIFT: Michael! Cool it.

MR. BARONE: -- and they were working for the Democratic Party and under Democratic Party objectives.

MS. CLIFT: Cool it, Michael. We get the point. Okay?

This has been an incredible public relations victory for the Republicans. Katherine Harris put out the memo that said you don't count them unless they are postmarked. The Democratic attorney general said count them even if they don't have postmarks. The counties didn't react, and so now Bush goes to court over it.

But, you know, the same rules that apply to military people; older people, first-time voters, don't they get the benefit of the doubt? It seems to me --

MR. MCLAUGHLIN: Do you think there is a larger --

MS. CLIFT: -- there could be an equal standard here.

MR. MCLAUGHLIN: There is a larger question here that's perceived acutely by the military themselves that they feel that they're held to a different standard of conduct than are civilians. For example, in the area of sexual misconduct, senior officers and junior officers are held to it and are booted out quite freely, whereas they look at the commander in chief, and they see his sexual history --

MS. CLIFT: Oh, John, what a stretch!~ What a stretch!

MR. MCLAUGHLIN: I don't think this is a stretch. (Cross talk.) And now they feel that they're being held to a different standard even in the way they cast ballots --

MR. BARONE: John, the point here is that they're being held to a very different standard --

(Cross talk.)

MR. CORN: They don't want to be held to any standard.

MS. CLIFT: The Bush people -- excuse me. The Bush people want to waive all rules. If it comes in on a bubble gum wrapper, as long as it says "Bush," it's okay. (Chuckles.)

MR. CORN: All overseas people --

MR. BARONE: They're being held to a very different standard than Democratic voters in Broward County, who are being -- the Democratic chad -- the dimpled chads are being voted. The Republican dimpled chads are not being voted on the same facts, circumstances. (Cross talk.) This is election theft in Broward -- vote theft in Broward County.

MS. CLIFT: A lot of those --

MR. MCLAUGHLIN: We've got to get out. We've got to get out.,

MR. BLANKLEY: Let me give you another --

MR. MCLAUGHLIN: We're out of time. We'll be right back with predictions.


MR. MCLAUGHLIN: Forced prediction: Who will be certified as the Florida presidential winner on Sunday, and by what vote margin? I ask you, Michael Barone.

MR. BARONE: Bush, 225.


MS. CLIFT: Bush, under 200 votes.


MR. BLANKLEY: Well, it could be Bush's, as low as, you know, 10 or 20 votes.

MR. MCLAUGHLIN: But definitely Bush?

MR. BLANKLEY: No, not definitely Bush. But I think it's going to get that --

MR. MCLAUGHLIN: But your prediction is Bush.

MR. BLANKLEY: My prediction is Bush, but it's going to be very close.

MR. MCLAUGHLIN: What about you, Corn?

MR. CORN: I have no doubt that Katherine Harris will find a way to certify George W. Bush, and like a bad James Bond movie, it's going to end with 007. (Laughter.)

MR. MCLAUGHLIN: How many votes?

MR. CORN: I said 007.

MR. MCLAUGHLIN: O-O-7. The answer is Bush by 112.

Next week: The beginning of the end of the endgame. Bye-bye!