Excerpt from last night's 'Nightline'....is the endgame in view?

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TED KOPPEL And when we come back, making some sense of the legal quagmire.

ANNOUNCER This is ABCNEWS: Nightline, brought to you by...

(Commercial break)

TED KOPPEL Joining us now from San Francisco, Pamela Karlan, professor of law at Stanford University. And joining us from our Chicago bureau, Cass Sunstein, constitutional law professor at the University of Chicago.
And Professor Sunstein, if the secretary of state tomorrow says the count can go ahead, well, obviously, the count goes ahead. What happens if she says no?

CASS SUNSTEIN, UNIVERSITY OF CHICAGO LAW SCHOOL If she says no, it probably goes off to court because the judge was kind of fighting her in her view that 5 PM is a firm deadline. The judge wants her to give a good explanation of why she's not paying attention to a recount if the recount shows a change.

TED KOPPEL Now, since she will by then have read whatever it is that the counties present to her, Professor Karlan, why can she not then come back and say, 'Look, I didn't do this in any arbitrary fashion. I read what the argument was and now I've made the decision. I think the voting is over.'

PAM KARLAN, STANFORD UNIVERSITY LAW SCHOOL Well, she'll have to give reasons, I think. Because Judge Lewis seems to contemplate that she be reasonable in the exercise of her discretion.

TED KOPPEL What is unreasonable about saying this thing has gone on long enough? And anyway, hand counts are not as objective, they tend to me more subjective than machine counts.

PAM KARLAN Well, saying, 'It's gone on long enough anyway,' I don't think would be a reasonable exercise of her discretion. If she gives reasons why she thinks hand counts are less objective, then it'll be up to Judge Lewis in the first instance, and the Florida Supreme Court in the second instance, to decide whether she's right about that.

TED KOPPEL And what, Professor Sunstein, do you think the judge is going to find in an instance like that? In other words, is there any precedence for determining which takes precedence?

CASS SUNSTEIN Well, I think Florida law is pretty clear that the manual recount takes precedence in principle. The Florida law gives special privileges to the manual recounts. So she can't just say manual recounts are no good. But she can say that under the particular circumstances, the manual recounts don't make a meaningful difference or they can't be trusted. If she can show that, she'll probably be all right.

TED KOPPEL All right. Walk us through the various court steps, Professor Karlan, that would come next. So the circuit court judge, theoretically, sometime tomorrow afternoon or the next day says, 'No, I think that the count has to go ahead.' Clearly, the -- the Bush campaign isn't going to like that.

PAM KARLAN That's right. And the secretary of state could appeal that to the Florida Supreme Court.

TED KOPPEL And then what happens?

PAM KARLAN Well, since it's a matter of Florida law, at that point, the decision whether Florida law allows the manual recount is over. And I would expect, since we've seen everybody going into whatever court seems nearest to them, that then there'll be somebody going into federal court claiming the entire Florida process somehow denies some federal constitutional right.

TED KOPPEL Can you give us some sense, Professor Sunstein, of what sort of time we're talking about here? I mean, I realize everything is going to be fast-tracked, but, you know, briefs have to be written, arguments have to be made, arguments have to be rebutted.

CASS SUNSTEIN Yeah. I think it's going to go pretty quick. And that the next week is at the outside when it'll end. And the reason is that this was kind of -- des -- despite appearances...(network technical difficulties)...when Gore and Bush are both converging on the centrality of Florida law, which is pretty clear. It seems messier than it is, but they're really looking at what Florida law means and that should sort itself out within the week.

TED KOPPEL When you say it has been a clarifying day -- so at the end of this day, simply seen through the prism of the legal decision made by that circuit court judge, who comes out ahead here?

CASS SUNSTEIN It's a modestly good day for Bush, but not a terrific one, because the judge doesn't want the secretary of state to refuse to consider the recount unless the refusal has some good reasons behind it. And it's not clear the secretary of state's going to be able to come up with them.

TED KOPPEL What makes that a good day for -- for the Bush campaign, Professor Karlan?

PAM KARLAN I actually think it's a good day for the Gore campaign, because going into this day, the secretary of state was taking the position that in the exercise of her discretion she was simply not going to count those ballots. And Judge Lewis said to her, 'That's not an exercise of discretion. That's an abdication of discretion, and I want to see you really apply Florida law,' which contemplates taking returns after the Tuesday deadline.

TED KOPPEL Now, your expertise is in electoral law. If, for some reason, they are unable to resolve this thing in the courts -- I mean, first of all, is that a possibility? There has to be come kind of resolution, doesn't there?

PAM KARLAN There'll be some answer from the Florida courts, and after that, there may be some answer from the federal courts. But there will be an answer.

TED KOPPEL And Professor Sunstein, when you say this is all going to work pretty quickly, you were suggesting it could be done by sometime next week. You're not suggesting it can work its way all the way through the federal courts and up to the Supreme Court in that time, are you?

CASS SUNSTEIN Probably not. But I think we'll have an awfully good idea what's going to happen a week from today. The Florida courts are going to handle this very quickly. And what's nice about this is it looks like a state court matter now. The efforts to use the federal courts are failing and are likely to continue to fail.

TED KOPPEL So you think this will ultimate -- ul -- ultimately then be resolved in the state court system?

CASS SUNSTEIN I think this is a question of internal state law. The process is working pretty well. The rhetoric is mostly getting toned down on both sides. And this is a Florida law question both sides are acknowledging.

TED KOPPEL Professor Sunstein, thank you very much.
Professor Karlan, thank you.

PAM KARLAN You're welcome.

TED KOPPEL Is there a political exit strategy? We'll ask two former Senate leaders when we come back.

(Commercial break)

-- (The@2000.election), November 15, 2000


I want to hear the commercial.

-- (nemesis@awol.com), November 15, 2000.

I'll bet the Bush and Gore campaigns were listening very closely while this was on last night!

-- How (it@might.end), November 15, 2000.

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