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MR. MCLAUGHLIN: Issue one: The state of the disunion.

(The song "Highway to Hell," by AC/DC, is played over footage of the Ryder truck carrying the ballots on the highway.)

A million-plus ballots were trucked from south Florida this week to Tallahassee. The hell at the end of that highway is the jungle of 48 lawsuits to overturn the certified results of the Florida election.

KATHERINE HARRIS (secretary of state, R-FL): (From videotape.) Accordingly, on behalf of the State Elections Canvassing Commission, and in accordance with the laws of the state of Florida, I hereby declare Governor George W. Bush the winner of Florida's 25 electoral votes for the president of the United States.

MR. MCLAUGHLIN: That was a week ago, but almost four weeks ago was Election Day. So time is now of the essence for Vice President Gore. Ten days are left before the December 12th deadline for naming 25 electors to the Electoral College. Those 25 electors are key to who the next president will be. As things stand now, George W. Bush, with his certified 537 votes, will get those electors and will get the presidency.

And if the process is still stalled on December the 12th, the Republican-controlled Florida legislature has threatened to step in and may even step in, some believe, if the current Bush certification is reversed by the courts. So Gore wants ballots recounted by hand, and fast.

One other problem for Gore is the way that he has been describing those ballots. People see it as more Gore mendacity.

VICE PRESIDENT AL GORE (Democratic candidate for president): (From videotape.) This is America. When votes are cast, we count them. We don't arbitrarily set them aside because it's too difficult to count them.


VICE PRESIDENT GORE: (From videotape.) Many thousands of votes that were cast on Election Day have not yet been counted at all, not once.


VICE PRESIDENT GORE: (From videotape.) I think the law is so clear in Florida that the votes are going to have to be counted. And thousands of them, again, have not.

MR. MCLAUGHLIN: It's not just Gore misleading the public about these ballots, it's his team.

SENATOR JOSEPH LIEBERMAN (D-CT, Democratic candidate for vice president): (From videotape.) (In progress) -- all those votes have not been counted.

REPRESENTATIVE RICHARD GEPHARDT (D-MO, House minority leader): (From videotape.) Thousands of people's votes have not been counted.

SENATOR TOM DASCHLE (D-SD, Senate minority leader): (From videotape.) (In progress) -- never been a real count of 9,000 votes --

DAVID BOIES (attorney for the Gore campaign): (From videotape.) Ten thousand votes in Miami-Dade that have never been counted once.

MR. MCLAUGHLIN: Question: Are Gore and company falsifying the status of the contested Florida ballots by saying repeatedly that they are uncounted, Michael Barone?

MR. BARONE: Well, they're being deeply dishonest about this, John. The fact is, those votes have been counted once, they've been counted twice by machines. They didn't register a vote for president. That's not unusual.

The Gore team has been pointing to Miami-Dade County, where there are 10,750 ballots that allegedly did not cast a vote for president. That's 1.6 percent. That's normal. The national average from the 32 states and the District of Columbia that have provided figures on this is 1.9 percent. There's actually been a smaller, quote, "undervote."

And it's not the only bit of dishonesty in the Gore legal strategy. They filed a false affidavit in their case before the Florida Supreme Court on the Illinois case --

MR. MCLAUGHLIN: Who did the filing?

MR. BARONE: -- the Gore lawyers -- on the Illinois case, where the -- which they cited for the proposition that dimpled chads were counted -- dimpled chads were not counted. That false affidavit has since been retracted by the lawyer who made it.

So they have been basing their argument to the Florida Supreme Court, to the Broward, Miami-Dade, and Palm Beach canvassing boards on the basis of false information.

MR. MCLAUGHLIN: Eleanor Clift, what do you think about this word "uncounted," calling those optically scanned ballots twice uncounted?

MS. CLIFT: John, with all due respect to you and your judicial-looking suit, if there's any mendacity, it's on the Republican side. The notion that these ballots have been counted and counted and counted, as Bush repeated ad nauseam, is untrue. The machine does spit out ballots, the so-called "undervote." And in any closely contested contest, the challenger has the right to ask for a manual recount. They're recounting the votes that way in the state of Washington now to determine the winner there. The Republicans have done a great job demonizing handcounting, but it is a time-honored way to check elections.

And if we're talking about, again, mendacity, the Bush folks had the gall to propose in their Supreme Court brief that Al Gore isn't really a candidate because it should be the electors who should be bringing a suit. Well, by that reasoning, the electors should be bringing the Bush suit, as well. I mean, it's nonsense.

MR. MCLAUGHLIN: Tony, let me ask you: Is it proper to call a ballot which has been optically scanned like all the other ballots, not once but twice, and because the hole has not been properly punched -- whether by deliberate choice, as we know people do, they choose not to vote for the president, or by voter error -- is it proper to call that ballot uncounted?

MR. BLANKLEY: No. I will rely on Eleanor's words herself. She said "recount," which implies a count. And what they want is a recount, conceding, therefore, they already had their count. Now, what's interesting is that because of the strategies of Bush and Gore, given there are about 100,000 of these ballots that got counted without a tabulation for the president, Gore's strategy has been from the beginning to try to recount his share. The Bush team has chosen, because they won, not to recount their share. Should the Florida courts allow a recount only in the area where Gore is looking, you will get a different result, but it still will not measure the actual vote in the state of Florida.

MR. MCLAUGHLIN: Do you want to comment on this use of the word? Is it not Clintonian to call those ballots uncounted?

MR. O'DONNELL: Oh, cut it out. It's a perfectly fair interpretation of that situation. And it's perfectly reasonable to argue about that semantic choice, but it's just a semantic choice. And it all turns on -- the whole discussion turns on a falsity, which is that we count every vote. We don't.


MR. O'DONNELL: We have never counted every vote in any election anywhere in this country. We don't have the technology to do it.

MR. MCLAUGHLIN: With all due respect to you, I have to tell you that the use of the word "uncounted" to describe those ballots is the soul of duplicity and mischief. And it is telling the American people something which is patently false.

Now, I want to put this on the screen, and you tell me what it meant. This is the machine-rejected ballots due to voter choice or error. In the nation we've got 2 (million) to 3 million. In Florida we've got 180,000. I think you touched on that earlier with your description. What are we saying on that screen?

MR. BARONE: Well, what we're saying there, Florida, that has about 7 percent of the nation's population, is sitting there with what looks to me to be something in the vicinity of 7 percent of those ballots. In other words, there's nothing abnormal or rotten in the state of Florida. There's no anomaly that --

MR. MCLAUGHLIN: All right. Let me try --

MR. O'DONNELL: And there's nothing rotten in the lawyering done by the Gore team or the Bush team. The lawyering on both sides has been --

MR. BARONE: It's a rotten disservice to the English language to go up there and call a ballot uncounted which has been counted once and counted twice.

MS. CLIFT: No, it's standard procedure --

MR. : Well, I think it's --

MR. BARONE: Yeah, standard procedure in the Clinton administration when we have to --

MS. CLIFT: Excuse me. Excuse me.


MS. CLIFT: If the machine spits it out, it has not been counted. And when --

(Cross talk.)

MS. CLIFT: Excuse me.

MR. MCLAUGHLIN: Let her go. Let her talk.

MS. CLIFT: And when it happens in other places and the margins are so great, it doesn't matter, but when there's a close election, you go in and count them by hand. It's been done in Texas, it's been done in Washington, and they should --

MR. BARONE: It has been counted. Many of those ballots --

MS. CLIFT: Excuse me.

MR. MCLAUGHLIN: Let Eleanor finish.

MS. CLIFT: -- they should have counted the whole state of Florida from the beginning.

MR. BARONE: Many of those ballots cast votes for other offices and so forth. They have been counted.

MR. MCLAUGHLIN: Not to get --

MR. BARONE: They know the total number of votes cast.

MR. MCLAUGHLIN: Not to get didactic about this, but the word "count"--

MR. BARONE: (Laughs.)

MR. MCLAUGHLIN: -- has a double entendre. It can mean "add to a list so that you get an addition" or it can mean, as in the -- as we're using it here -- passing it through the machine as all other votes --

MR. BARONE: But the Gore camp --

MR. MCLAUGHLIN: -- but the machine does not register it. And that's -- you're playing with words in your mischievous --

MS. CLIFT: Well, I'm not playing with words.

MR. MCLAUGHLIN: -- in your mischievous Clintonian way.

MS. CLIFT: No, no, no I'm not.

MR. MCLAUGHLIN: Yes you are.

MS. CLIFT: There are --

MR. BARONE: John, John, George Orwell told us about this a long time ago in a book called "1980."

MR. MCLAUGHLIN: All right, let's go on. I want to go on to point out to a real boo-boo, and that's the contest period -- put this up on the screen, please -- the contest period that exists now; November 26th to December the 12th.

The Democrats have about 10 days left because they started last Sunday with the contest period. Now, if there had been no Boies litigation; if he had been agreeable to "Lady Katherine," if -- and when Lady Katherine said -- or Crocket (sp), her lawyer said, look, you should certify your ballots on November the 14th -- or he said it -- on November the 18th he actually said it -- then you could go right into the contest period and you would have 29 days.

So when the Democrats are saying, as they are, that it is the Republicans who are trying to expand the period right now -- or contract it, whatever -- that it's really they who have contracted the period for themselves.

MR. BARONE: Yeah, but look, this is the result, as I understand it, of a dispute within the Gore camp as to an early strategy; some of the lawyers arguing to prolong the protest period; some of the professional vote recounters in the Gore team saying, get past the protest period and get into the contest period where you have another -- second shot.

So this was a strategic misjudgment by Mr. Boies and his --

MR. O'DONNELL: But the problem with getting into the contest period, though, is that the burden of proof shifts. And so it was a very --

MR. BLANKLEY: It was a -- (inaudible) -- hearing.

(Cross talk.)

MR. O'DONNELL: It was a very reasonable calculation for the Gore lawyers to say, let's take our shot in the protest period because you don't ever want to be the one who's contesting.

MR. MCLAUGHLIN: Let me move this in a new and exciting direction. And that is this: Gore, the Democrats feel, broadly speaking, is toast. Yet they continue to support him. The reason why they continue to support him, I hear from my sources -- granted they're not as good as yours because I know that you have direct lines into all Democrats headquarters -- my feeling, or what I hear, on the basis of what I've heard, is that they believe that they want to make the situation as bloody for Bush as possible because they're thinking of 2002; 2004. Knowing he's toast, they're extending it with that in mind --

MR. BARONE: The congressional --

MR. MCLAUGHLIN: -- extending their support.

MR. BARONE: The congressional parties are always thinking two years ahead. And for each side in the Congress, this has been an undesirable presidency to win because the winner -- the party that wins this presidency loses the House of Representatives in two years. And so each side has been (faking ?) --

MR. MCLAUGHLIN: Well is the reason why -- are they supporting Gore with that in mind --

MR. BARONE: Well, they want -- each --

MR. MCLAUGHLIN: -- to the point where the diminishing returns --

MR. BARONE: Whichever side is the losing side wants it to be perceived as a stolen election so that they can use that two years later.

MR. BLANKLEY: But there are some other reasons. Some Democrats want to be seen to be supporting the party so that after Gore loses they can gain the support of the party when they run for President in 2004.

MR. MCLAUGHLIN: Exit question: Without a complete manual recount of every county in Florida, will the real winner of this election ever be known?

Michael Barone.

MR. BARONE: Yes, I think it will, John, because the fact is if you don't count dimpled chad votes, as you shouldn't count them, it's pretty clear that George W. Bush is about 1,000 votes ahead.

MORE x x x ahead.


MS. CLIFT: The courts will give this some sort of closure, but I suspect the history books a hundred and two hundred years from now will be wondering who really won that state.

MR. MCLAUGHLIN: (To Mr. Blankley.) What do you think?

MR. BLANKLEY: A mathematics professor at Temple University, I think, made the point well when he said that the margin of victory in this election will be smaller than the inherent margin of error, whoever wins. And --

MR. MCLAUGHLIN: (Laughs.) So you'll never know?

MR. BLANKLEY: We will know de jure, but we'll never know de facto.

MR. MCLAUGHLIN: Did you hear that?

MR. O'DONNELL: I did hear that. We will know, because the most important thing to know about reality is that reality is always an approximation. We never have exactitude in anything human.

MR. MCLAUGHLIN: That's very sententious, the way you've stated that, my son. But Tony is the one who's hit the nail right on the head.

When we come back, will the U.S. Supreme Court's decision be a victory for Bush, a victory for Gore, or neither?


MR. MCLAUGHLIN: Issue two: The Supremes.

The ultimate legal battle goes to the ultimate court of law. The plaintiff is George W. Bush. The Bush team wants the U.S. Supreme Court to throw out the Florida Supreme Court ruling against Secretary of State Katherine Harris. That Florida court action forced Harris to extend Florida's vote certification deadline by 12 days, November 14 to November 26th, to permit hand counts in three Democratic counties: Palm Beach, Broward, and Miami-Dade.

The Gore team wants this Florida court ruling to stand.

Question: From your scrupulous review of the audiotape of Friday's U.S. Supreme Court session, particularly of the questions by the high court to lawyers for Bush and Gore, how do you think the court will rule, Michael Barone?

MR. BARONE: Well, I think -- I was fascinated by the fact that it seemed to me there are probably five votes there for the proposition that the Florida Supreme Court decision changed the rules after the election, in violation of Title III, Section 5, of the U.S. Code. But --

MR. MCLAUGHLIN: That means it's for Bush.

MR. BARONE: -- but I'm not clear that there's five votes for saying that this case is ripe for a decision or should be coming on there. The judges' questions, of course, are not always indicative of what they're feeling.

But I did get the sense, on the merits, this is a divided court, and we're unlikely to see a unanimous decision if the court decides to reach the --

MR. MCLAUGHLIN: So you think they might rule "not ripe" or "not judicable" now?

MR. BARONE: I think there's a possibility of something of that nature, yes.

MR. MCLAUGHLIN: Eleanor, what do you discern?

MS. CLIFT: I agree with that. I thought Judge Breyer asked the most pertinent question, in "What is the impact of this decision?" At this point, it would just either increase Bush's vote total or decrease it. And the implication is that they will punt and say, "Come back to us when you have a real decision for us to make."

If they don't do that, I think they were tending towards the Gore side. They were extremely critical in the question --

MR. MCLAUGHLIN: But neither --

MS. CLIFT: -- of any federal issue even involved in this case.

MR. MCLAUGHLIN: But neither of you see a unanimous decision, I take it, if they --

MS. CLIFT: I don't think so.

MR. BARONE: If they reach the merits, I think Justice Ginsburg and Justice Souter clearly are on one side, and I thought Justice Scalia and Rehnquist, Chief Justice Rehnquist --

MR. BLANKLEY: Yeah. Yeah. Unless they go merely procedurally, on the ripeness or justiciability or mootness, I don't see a unanimous opinion. And I'm not so sure that I saw five votes.

Now concededly, you can never tell from questions. I've litigated. I've been in the Supreme Court and other courts. But I don't think you -- on balance, I'm not so sure that you've got Kennedy with the Bush side of it --

MR. MCLAUGHLIN: Well, wait a minute. Now what's the bottom line here, Tony? What are you saying?

MR. BLANKLEY: The bottom line is that I think that if they go substantive in their decision, it might conceivably go for Gore.


MR. O'DONNELL: I think --

MR. MCLAUGHLIN: From your scrupulous listening to the tapes --

MR. O'DONNELL: Every word.

MR. MCLAUGHLIN: Every word.

MR. O'DONNELL: Mm-hmm.

MR. MCLAUGHLIN: Okay. You took notes?

MR. O'DONNELL: Absolutely.

MR. MCLAUGHLIN: Good. What does your review tell you?

MR. O'DONNELL: Too close to call.


MR. O'DONNELL: I agree with everything Michael said. I agree with everything that Tony said and Eleanor said.


MR. O'DONNELL: I -- but I have trouble counting five votes on any particular issue. I feel like I can get to four here and another three there, but it's very hard to find five for a precise outcome.

MR. MCLAUGHLIN: I think it could go -- I think you're correct. It's too close to go -- it could go any one of three ways. It could go for Bush, it could go for Gore, or could be deemed right now to be nonjusticiable.

MS. CLIFT: That's really impressive. (Laughter.)


MR. O'DONNELL: But it was a very welcome entry into this dialogue because it was a perfectly reasonable discussion all the way through. It was very hard to disagree with anything said during the entire proceeding.

MR. MCLAUGHLIN: All right, let's get to the most interesting issue of the week. Issue three: Enter solons. Forget the courts, forget the lawyers, forget the judges. Here come the legislators.

On Thursday, a committee of the Republican-led Florida legislature voted to recommend a special session next week to consider choosing the state's 25 presidential electors.

This threw "team Gore" into panic. Joe Lieberman forthwith summoned the cameras to denounce the Florida lawmakers and to accuse Governor Jeb Bush, brother of George, of encouraging the move.

SEN. JOSEPH LIEBERMAN (Democratic vice presidential candidate): (From videotape.) I am very disappointed and disturbed about the continuing movement by the Florida legislature, now encouraged by Governor Jeb Bush, to consider choosing their own slate of electors after almost 6 million people in Florida voted on election day. It threatens to put us into a constitutional crisis.

MR. MCLAUGHLIN: December 12th is the deadline for all U.S. states to appoint their electors. Governor Jeb Bush wants that deadline met.

GOV. JEB BUSH (R-FL): (From videotape.) If there's indecision about who the electors are by December 12th, I think it would be a travesty not to have electors seated in the Electoral College from Florida.

MR. MCLAUGHLIN: Florida's Republican legislators point to the U.S. Constitution as their mandate to name electors. In two days of hearings before the legislature, legal experts and scholars bolstered that view.

Here's one, Professor John Yoo from -- get this -- the University of California at Berkeley.

JOHN YOO (Professor, University of California, Berkeley): (From videotape.) However, the Constitution, in Article II, Section 1, overrides that state separation of powers. It requires you, as the state legislatures, to carry the constitutional duty to see that your electors are chosen, and you are the last word on this question.

MR. MCLAUGHLIN: Question: What kind of power does the U.S. Constitution grant to the Florida legislature?

I ask you, Lawrence O'Donnell.

MR. O'DONNELL: Well, it seems to grant it the ultimate power, which is to name the electors according to a procedure established by the legislatures. And so whether they can do it in this situation with all of this litigation going on, and if the litigation is still open, is something we just haven't seen tried before. But it seems as though they do have the power.

MR. MCLAUGHLIN: It has sometimes been described as plenary power, which means that the power derives from the very existence of the body; it is not granted, and that no other entity can expand or constrict that power. In other words, it is essential to the very design of checks and balances.

Do you share that view?

MR. BLANKLEY: Not completely. I think they do, under the Constitution, have the final authority. But they, by statute, under the Constitution -- federal statute -- they can intervene subsequently only if there's not conclusive votes. So I think if there's not a conclusive decision in Florida by the 12th, they'll definitely act; they have the authority to.

MS. CLIFT: The --

MR. BLANKLEY: No, no. Let me just finish.

If there in fact is a decision by the Florida Court system, then it's questionable whether they can intervene.

MR. MCLAUGHLIN: Is it possible for Florida to have two slates of electors --

MS. CLIFT: Sure.

MR. MCLAUGHLIN: -- one selected by the legislature and one selected by the courts? For example, if in Seminole County the decision is to throw out the ballots, and Gore wins the election, that would mean that the -- and the Florida legislature said, "No, our power was usurped; we're going to name our slate," and then the court names a slate; is that possible?

MS. CLIFT: Yes, and you have stumbled onto the truth, John. Thank you. That suit in Seminole County, brought by local Democratic activists, really could --

MR. BLANKLEY: On behalf of Gore. (Chuckles.)

MS. CLIFT: -- excuse me -- really could --

MR. BLANKLEY: Your suit.

MS. CLIFT: -- really could go Gore's way, in which case we could have two sets of electors, and then we would have fun and games here in Washington.

MR. BARONE: Well --

MS. CLIFT: But the mere threat of the Florida legislature acting prematurely to try to create an insurance policy, a safety net, for Bush has done more to stiffen the backs of Democrats for Al Gore, a lot of --

(Cross talk.)

MR. MCLAUGHLIN: I want to ask --

MR. BLANKLEY: They're not acting prematurely. You have to act --

MR. MCLAUGHLIN: -- I want to ask Michael quickly. We just have a few seconds.


MR. MCLAUGHLIN: You want to comment on Seminole?

MR. BARONE: Well, the fact is, the Seminole thing is totally baseless. The argument is that the Republicans aided voters in getting their absentee ballot applications filled out. You can help people with absentee ballot applications.

MS. CLIFT: (Chuckles.)

MR. BARONE: Both parties routinely provide this information.

MR. MCLAUGHLIN: So it's -- it's --

MR. BARONE: I think it's baseless and would be overturned even by the Florida Supreme Court. (Cross talk.)

MR. BLANKLEY: Let me --

MR. BARONE: But there's no doubt that the legislature has an ability here the legislature has used since 19th century. There's no doubt as well that Democrats would take great umbrage at this.

MS. CLIFT: Yeah. If it's so baseless --

MR. BLANKLEY: Let me --


MS. CLIFT: -- if it's so baseless, why did the Republicans try to get the judge removed? (Chuckles.)

MR. BLANKLEY: Look, let me clarify --

MR. MCLAUGHLIN: No, they're just building --

MS. CLIFT: They're very nervous.

MR. MCLAUGHLIN: No, no, what they're doing is building their appeal, if necessary.

MS. CLIFT: Defending it at a higher court --

MR. BLANKLEY: Let me --

MR. MCLAUGHLIN: But what the real enemy of Gore is, if there is an appeal of that, if it ever reaches that point -- I don't think it will in Seminole County -- then they have to take depositions, they have to have interrogatory, and the clock is ticking, and you go beyond the 12th, you know.

MR. BLANKLEY: Let me clarify --

MR. MCLAUGHLIN: So the clock may be Gore's worst enemy.

MS. CLIFT: You're right.

MR. MCLAUGHLIN: (To Mr. Blankley.) Quickly!

MR. BLANKLEY: The charge isn't baseless. The remedy, though, of throwing out 15,000 ballots, is excessive. So they may well find that there was a technical violation, but the remedy of throwing out the votes will not --


MR. O'DONNELL: That's the remedy that has been used in Florida before.

MR. MCLAUGHLIN: We'll be right back with predictions.


MR. MCLAUGHLIN: Predictions. Michael?

MR. BARONE: There's going to be a big decline this winter in tourism in Florida.

MS. CLIFT: (Laughs.)

MR. MCLAUGHLIN: Really? Extremely insightful.


MS. CLIFT: Electoral reform will be twinned with campaign finance reform, and it will get a head of steam. And if McCain and Feingold are smart, they'll attach it to their legislation, whoever is president.


MR. BLANKLEY: The economist Dr. Jeffrey Eisenach is circulating a private memorandum in this town, suggesting -- and I think it may be acted on next year -- a vital set of legislation to save the information technology industry from the crash that it's moving through now.

MR. MCLAUGHLIN: What's he going to propose?

MR. BLANKLEY: He's identifying procedures and laws, getting rid of certain regulationsm -- that'll unleash the industry, which is now beginning to be contained. And that's why we're seeing a drop in NASDAQ. There's a very important set of arguments for the initial policies coming out of the new administration.

MR. MCLAUGHLIN: A drop? Try plunge.

MR. O'DONNELL: Retiring Democratic Senator Bob Kerrey will not accept a Cabinet post in either the Gore or the Bush administration.

MR. MCLAUGHLIN: Was he offered one?

MR. O'DONNELL: He has -- well, he has not been offered -- how could anyone be offered one yet?

MR. MCLAUGHLIN: Now you know that Colin Powell has not been offered secretary of State-designate.

MR. O'DONNELL: No one's been offered anything.

MR. MCLAUGHLIN: He hasn't been offered that.

MR. O'DONNELL: Not yet.


During the '99 year-end holiday season, retail sales grew by 5 percent. During this holiday season, if everything breaks right, retail sales will grow about half as much, 2-1/2 percent.

Next week: The Supremes speak. Bye-bye!