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| THE FINAL ANSWER? | |
 December 12, 2000  |
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Four editoral page editors from newspapers across the country discuss the pending Supreme Court decision in the Bush vs. Gore manual recount case. Editor's Note: This segment aired before the Supreme Court's decision was announced. The NewsHour Media Unit is funded by a grant from the Pew Charitable Trusts.
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CYNTHIA TUCKER: Allow the vote count to proceed, Terry. I think from the beginning, that has been the only fair process to decide who one Florida's 25 electoral votes. I think it was a serious mistake for the U.S. Supreme Court to order a stay of the count that was going on on Saturday. Who knows? That count might have been finished by the end today if the Supreme Court had allowed it to proceed. The Atlanta Constitution's position from the beginning has been count all the votes. If any votes are in dispute count all the votes, count all of Florida if necessary. Count the military ballots, count the absentee ballots from Seminole and Martin County but count the votes. |
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| Could a recount cause irreparable damage? | ||||||||||||||||||||
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TERENCE SMITH: Robert Kittle, what's your view -- the argument was made that that would have caused irreparable damage to the Bush side of the argument? What do you say?
TERENCE SMITH: So, specifically, Bob Kittle, you want to see them overturned, the Florida state Supreme Court? ROBERT KITTLE: Absolutely. I think the Florida Supreme Court issued standards, well there were no real standards, but the ruling of the Supreme Court set up arbitrary and capricious rules after the election. And I think that also provided the Bush campaign's very valid arguments that the equal protection clause of the 14th Amendment was being violated because different voters in the state of Florida were being treated differently. And I think the best outcome would be for a decisive decision from the Supreme Court that brings finality to this, that overturns the Florida Supreme Court's action and sets the clock back to the way it existed on Election Day. TERENCE SMITH: Frank Burgos, what's your view? Is that what the court should do?
TERENCE SMITH: Bruce Dold, what do you think of that? BRUCE DOLD: I don't think Frank’s prayers are going to be answered and expect that the court will rule -- will overrule the Florida Supreme Court on the grounds of equal protection – violation of equal protection clause and that the Florida court was doing the job of the Florida legislature, again, as stipulated by the Constitution. You know, there is some talk that the U.S. Supreme Court may set that strict standard, which would answer the equal protection argument. But I think, in essence, the U.S. Supreme Court would be doing the job that it said the Florida Supreme Court should not do, which is taking the job over of the legislature. So I would be surprised. Now the two swing votes were on Bush's side over the weekend. They seem to be those are the ones that could move on this, but I think that they were perhaps more concerned about that, the provision of the Constitution, that it's up to the legislatures to decide how electors are chosen, and I think that's where they’re going to stumble, and they’ll probably stay put where they were over the weekend. |
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| A possible 5-4 decision | ||||||||||||||||||||
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TERENCE SMITH: Cynthia Tucker, what if Frank Burgos’s wish is not fulfilled; what if we see a 5-4 decision? What's the political impact of that? Either way.
TERENCE SMITH: Go ahead. FRANK BURGOS: Cynthia I think is absolutely right. That’s what I'm really hoping for -- an equal protection sort of wedge here from the U.S. Supreme Court, because I think a very powerful message from the Supreme Court would actually change that, would actually change how we vote here and bring some equality to the equation. What you saw in Florida was that the rich Republican-controlled counties had the more accurate optical ballot scanners and the poorer ones had these antiquated machines whose very inventors testified in Judge Sauls court were prone to error and problems. TERENCE SMITH: All right. Let me ask Bob Kittle. Is that a cause for concern, should it be a cause for concern if there were these inequities?
TERENCE SMITH: Bruce Dold, how would you view a 5-4 or any close decision like that, as a political or legal matter? BRUCE DOLD: I agree with Bob. I don't think this has to be said to be a political decision. I think it was an ideological divide that we have seen so many times from the Supreme Court and the same two swing justices on it. So it's a ideological division as far as being an activist or a conservative court. But you look at the decision over the weekend -- two Republican appointees, including a Bush appointee, sided with Al Gore. You know, that's not a partisan divide. |
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| Should the legislature get involved? | ||||||||||||||||||||
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TERENCE SMITH: Cynthia Tucker, what about the Florida legislature -- that has gotten into the act now and possibly another slate of electors. Is that -- how do you view that?
TERENCE SMITH: Bob Kittle, do you welcome the Florida legislature coming to this? ROBERT KITTLE: I think the legislature is wise to move slowly in the hope that the U.S. Supreme Court will bring finality to this contest. However, Article II of the Constitution clearly empowers the legislature and the legislature alone to determine the manner by which the presidential electors are chosen. This is a presidential contest; it is unique. The legislature does not have this role in any other race under the Constitution. But in the case of choosing our President, the founding fathers put in the check of the legislature to be the ultimate selector of the electors. So the Florida legislature is acting within its constitutional powers, I believe. TERENCE SMITH: Frank Burgos, very briefly, the Congress could get in this as well. How you would view that? FRANK BURGOS: Well, pretty much the same way I would view the Florida legislature getting involved in this. Rob is right that Article II gives the legislators the power to select the electors, but years and years ago they did the responsible thing: They said voters get to pick the electors, candidates get to protest a vote, if they thought the counting was going bad -- they get to contest a vote if things really went bad. A judge gets to rule in all of this. And in the end, according to the legislature, the judge gets to sort of devise any sort of remedy he or she feels fit. So, the Article II responsibility from the legislature they discharge responsibly. So for them to come in right now would be really changing the rules in this election. And if they sent a group of electors to Congress, I don't think there is any reason for Congress not to reject them. TERENCE SMITH: All right. We have to leave it there. Thank you all four very much. |
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TERENCE
SMITH: For more on how this looks around the country we turn to Cynthia
Tucker of The Atlanta Constitution; Robert Kittle of The San Diego Union-Tribune;
Bruce Dold of The Chicago Tribune; and Frank Burgos of The Philadelphia
Daily News. Welcome to you all. Cynthia Tucker, what should the court
do? 
ROBERT
KITTLE: I think Justice Scalia was absolutely correct about that. The
reality is, Terry, that there has been one statewide count and one statewide
recount. So we're not really talking about counting all of the votes.
All of the votes have been counted at least twice. What we're talking
about is the method of recounting the votes yet again, hand recounting.
I think the reality is the objective standard Justices were seeking
yesterday rests only one place, and that’s with the machine recount
that was conducted statewide. Only the machine is politically blind.
Only the machine can treat both candidates evenly. So what I’m
hoping from the Supreme Court is a decision that will bring finality
to this case and not prolong it another day. And that in my mind means
that the Supreme Court must preserve the laws of the state of Florida
as they existed on Election Day. And that means no more hand recounts,
no more reopening this election to endless litigation and endless subjective
recounts.
FRANK
BURGOS: I'm actually praying, Terry, for a 7-2 ruling, that gives everybody
on each side a little bit something. As a father, I understand the importance
of when I go to a store I have to bring back a toy for both my children.
And here I’m looking for -- here what I’m praying for is that
the court will give Al Gore his hand recounts, which we have been advocating
for, and give Governor Bush his standards, because I think if there
is any intellectual honesty in the argument that Ted Olson proposed
yesterday before the Supreme Court, is that there really isn't a standard
from county to county, from table to table, from person to person, on
how to count or tally a dimpled chad or a hanging chad or is this a
vote, or is that a vote, and I think a strict standard that everybody
could agree on would actually bring this whole matter to an end. If
this whole thing had an honest broker from the very beginning, we wouldn't
be in the mess that we are right now. The real argument that Governor
Bush has isn't with Al Gore; it’s with the Florida legislature
for not having established a strict enough standard on how those ballots
should have been counted. 
CYNTHIA
TUCKER: That a President George W. Bush would have even less legitimacy
than he currently has. Americans see very clearly what the court did
on Saturday. It was a 5-4 vote divided right along partisan and ideological
lines. And it's interesting. You know, there have been a lot of very
technical, very complicated legal issues before several courts throughout
this contest and many of them have eluded many Americans, including
myself. I'm no lawyer -- but the Supreme Court's 5-4 ruling on Saturday,
which stopped a recount that had already begun, was very, very clearly
a political power play by the conservatives on the Supreme Court. Today
we had a page full of about ten to twelve letters -- almost all of them
objecting to the Supreme Court's decision. Let me say one more thing
though, Terry, about this notion of equal protection: One of the things
that hasn't been said tonight, and that Justice Scalia seemed to misunderstand,
as he kept pushing the notion that voters did something wrong if their
votes weren’t counted, some voters in Florida already are suffering
not having their votes counted equally. There are counties that are
poorer that have machines in disrepair so that you could go into the
voting booth and do every single thing right and your vote still wouldn't
be counted. But the more affluent counties have the optical scanners,
which are more likely to count votes correctly. So there are already
voters in Florida who are not getting equal protection for their votes.
ROBERT
KITTLE: Well, I think perhaps there is cause for concern but it should
have been before the election. You don't overturn the election because
of the procedures that everyone knew were in place long before the election.
If you want to protest those procedures, that protest needs to come
before the election. And I would just say in response to the issue that
you raised with Cynthia that I don't think a 5-4 decision will in any
way stigmatize the winner in this race. You know, in the last term of
the court over a quarter of the decisions were handed down on 5-4 rulings.
So it's not at all unusual for this court in particular to be split
5-4. I would also note that the great opportunity for the Supreme Court
here is because it is still respected overwhelmingly, I believe, by
the American people. A poll that was done Sunday, the day after the
Supreme Court issued the stay of the hand recounts, showed that 71 percent
of Americans believe the Supreme Court will hear this case and decide
this case fairly. And so this is perhaps the last opportunity to bring
an end to this contest that provides legitimacy and that the country
can accept and therefore unite behind the ultimate winner. 
CYNTHIA
TUCKER: That just increases the chance that we'll have heightened partisanship
if, in fact, there is a Bush presidency. And I would agree at this point
it seems more likely that there will be a Bush presidency, because I
think that we will see the same divide in the Supreme Court when they
ultimately make their ruling. But I don't see any reason for the Florida
legislature to have believed that they needed to leap into this because,
in fact, there is already a slate of Bush electors, when the Supreme
Court makes their ruling, those folks will go to Tallahassee and cast
their votes for Bush. So I think the Florida legislature just wanted
to jump in and ensure that the electors go to George Bush, and, again
that just increases the sense that this is a political power play.