The NewsHour with Jim Lehrer

JIM LEHRER: Good evening. I'm Jim Lehrer. On the NewsHour tonight, while waiting for the U.S. Supreme Court to rule on how to end the presidential election we have some legal analysis and the views of four editorial page editors; plus a Tom Bearden report on the economics of oil refineries, and a Ray Suarez look at today's grounding of the Osprey, a Marine Corps experimental aircraft. It all follows our summary of the news this Tuesday.

NEWS SUMMARY

JIM LEHRER: There was still no word late today on when the U.S. Supreme Court would rule on Bush

versus Gore. that case that could decide the presidential election. Vice President Gore wanted the court to allow manual recounts of disputed ballots in Florida. Governor Bush was opposed. The nine Justices heard 90 minutes of arguments from both sides on Monday morning. In Tallahassee today, the Florida Supreme Court affirmed lower court rulings against throwing out thousands of absentee ballots in Seminole and Martin Counties. Democrats brought those cases, alleging Republicans tampered with the ballot applications. Also in Tallahassee, the Republican-controlled Florida House approved 25 pro-Bush electors. Betty Ann Bowser reports on the debate leading up to that vote.

SPOKESPERSON: A concurrent resolution providing for the manner of appointing electors for President and Vice President of the United States.

BETTY ANN BOWSER: The Republican majority in the Florida House of Representatives began today's special session by making the argument that they are legally bound to choose a slate of electors.

SPOKESMAN: We are to ensure that our voters are represented on December 18 in the electoral college. It's not should we act or may we act; we must act.

BETTY ANN BOWSER: Specifically, the GOP legislators cited a section of the U.S. Constitution, that says: "Each state shall appoint in such manner as the legislature thereof may direct a number of electors." And they mentioned a section of the U.S. Code often called the "safe harbor" provision. It says if a state appoints electors at least six days before the time fixed for the meeting of the electors, such determination shall be conclusive. Since today was the deadline for choosing a slate of electors that can't be challenged by Congress, that was what the Republican majority said was its motivation.

SPOKESPERSON: We have nervously watched the clock tick away, hoping and sometimes praying for finality in this unimaginably close election for President of these United States. Sadly, we have reached the December 12 deadline, and that decision has not come. Now it is time for us, the members of the Florida legislature, to perform our solemn duty.

BETTY ANN BOWSER: But Democrats said the safe harbor protection no longer applies.

SPOKESMAN: The safe harbor is simply the following. Safe harbor is -- Section 5 basically says in very simple terms it's a pledge sort of between Congress and the states. If we get our act together by December 12, if we get our act together, and we select the slates by a process that does not change after election day, then our slate will be deemed conclusive so long as our process is complete and that section talks about contests, so long as there's no contest pending. There is no question the safe harbor is gone. We're out of the harbor, folks; it doesn't exist anymore.

BETTY ANN BOWSER: All 77 Republicans and two Democrats voted this afternoon to approve electors pledged to Governor George W. Bush. It is the same slate certified by Florida secretary of state, Katherine Harris, last month. The Florida state Senate will take the issue up tomorrow.

JIM LEHRER: We'll have more on the struggle for the presidency right after this News Summary. The Marine Corps grounded all Osprey Aircraft today. Last night one of the tilt-rotor planes crashed near camp Lejeune, North Carolina, killing four Marine crew members. There was no word on the cause, but it was the second fatal accident this year involving an Osprey. We'll have more on this story later in the program tonight. Overseas today, Ethiopia and Eritrea formally ended a two-year border war that killed at least 50,000 people. Their leaders signed a treaty in Algeria. It provides for commissions to mark the border, exchange prisoners, and return refugees. They'll also hear claims for war damages. A UN peacekeeping force of 4,200 troops will monitor a buffer zone. President Clinton warned today against letting the peace process fail in Northern Ireland. He spoke in Dublin on his final trip to the Irish Republic before leaving office. He said no one wants to see a return to violence in the North. A two-year-old peace agreement there is threatened by claims that the Irish Republican Army never disarmed. And back in this country today, General Motors announced it will phase out its Oldsmobile division. It's also cutting salaried staff by 10% in Europe and North America, including 4,000 workers in the United States. GM's sales for the year are down 18%. And that's it for the News Summary tonight. Now it's on to waiting for the Supreme Court, four editorial page editors, plus refining oil, and grounding an experimental airplane.

FOCUS - SUPREME SHOWDOWN

JIM LEHRER: Margaret Warner looks at the legal showdown over the presidency in the highest court of them all.

MARGARET WARNER: For some analysis of where things stand we turn to two law professors and two journalists: Pam Karlan, an election law specialist at Stanford Law School; John Yoo, of the Boalt Hall Law School at the University of California, Berkeley; Stuart Taylor, legal affairs columnist for the "National Journal"; and Anthony Lewis, a columnist for the "New York Times." Welcome back. Let's starts with a couple of nuts and bolts. Today is December 12 -- the deadline we have been all fixated on. Pam Karlan, what is the status now of Florida's electors if the Supreme Court doesn't rule today versus if it does?

PAM KARLAN: Well,I don't think that it makes much difference - the Supreme Court's ruling. There is a slate of electors on file. So, if, for example, the U.S. Supreme Court were to reverse the Florida Supreme Court and end the recounts now, there is a slate of electors on file with the national archives, and that slate is within the safe harbor. Anything else that happens take you beyond the safe harbor and really out to a completely uncharted sea. There is no way there could be a slate pledged to Al Gore that would fit within the safe harbor. And if the Florida legislature votes a slate through tomorrow, that slate too won't be in the safe harbor so you're virtually guaranteed if there is a slate for Gore and a slate for Bush, that there will be a contest in Congress.

MARGARET WARNER: John Yoo, how do you see it, the relationship between today's date and a possible Supreme Court ruling or not?

JOHN YOO: I pretty much agree with Pam. If the Supreme Court ends all this litigation and the recounts by the end of the day today, then the current electors that Florida has already chosen will be treated conclusively and validly by Congress. If the Supreme Court doesn't act by the end of the day today, then the electors that Florida has already chosen could be subject to a vote in Congress on whether to accept them or not. Furthermore, say the Florida Supreme Court and the U.S. Supreme Court agree to allow the recounts to go forward after today but before the 18th, you get some kind of answer, in that situation you'd have two slates electors, one perhaps authorized by Governor Bush that was done last month and one authorized by the Florida Supreme Court. Congress under the voting rules would have the right to choose between them because we haven't conclusively finished the litigation by today. And ultimately, perhaps if the Congress can't agree, then the one that Jeb Bush signed originally would be Florida's electoral votes.

MARGARET WARNER: But, Pam Karlan, explain. If Florida already has a slate of Bush electors that has been certified... Jeb Bush sent them to the national archives or whatever -- what do the Republicans gain by what the Florida legislature - the House did today and the Senate may do tomorrow? In other words, why do they need other slate of Bush electors?

PAM KARLAN: Well, I don't think they do. And I think if the Florida legislature understood Title 3 of the U.S. Code correctly, they wouldn't have done anything today, and they'd be unlikely to do anything tomorrow, because I think nothing that the legislature does now increases the chances of a Bush slate being accepted by Congress. I think those chances are pretty good for the reasons John Yoo just spoke to. But I don't think the legislature's action measurably increases the chances of a Bush place being seated.

MARGARET WARNER: How do you see that, John Yoo?

JOHN YOO: It seems to me that one thing it does is it's a reaffirmation that Florida and its other elective branches do agree with the selection of the electors originally last month. In the case that people in Congress -- if we move beyond the safe harbor date of today - begin to wonder whether to choose between what the Supreme Court had decided or what Katherine Harris had decided -- the Florida legislature now is acting more in a political vain to state its own preference, and they are elected by the voters of Florida too.

MARGARET WARNER: Stuart Taylor, weigh in on this. What do you see could be the reason for or benefit to Republicans of the Bush forces to have the Florida legislature act?

STUART TAYLOR: I think the agree with what has been said, which is it's more a political benefit than legal. There are already Bush electors sitting - figuratively speaking -- in Washington, D.C. Nothing makes them disappear. The legislature weighing in is probably a debating point for people in Congress who want to say here's another reason we should take the Bush electors if it ever comes to that.

MARGARET WARNER: So you don't think they're afraid, though, that there could be a court ordered recount and a court could order the current slate of Bush electors replaced today with a Gore slate?

STUART TAYLOR: I suppose that's a remote contingency. But my reading of the United States Code provisions, which Congress passed in 1887 on this, is that it would violate federal law for any court to try and make the slate of electors that's already certified disappear, and that if you get another slate certified, the solution is Congress figures out which ones to count and the courts have no part in it.

MARGARET WARNER: All right. Let me ask you now about the U.S. Supreme Court and right now we're awaiting a ruling. They totaled Florida Supreme Court that the Florida Supreme Court ought to be mindful of this deadline of December 12 and that the Florida legislature obviously wanted to take advantage of the safe harbor. Does the U.S. Supreme Court not feel or is it not bound by the same admonition at all?

STUART TAYLOR: No I think the real importance is if the state can get a judicial process done by the state courts by December 12, then that might qualify for the safe harbor if they didn't change the law in the process, which is part of what the courts decided. That's gone now. That can't happen. You know, they can't do it in the next three or four hours. You know, the Supreme Court decides it, remand it - ain't going to happen. So now the question is, what's the real date? The real date is December 18.

MARGARET WARNER: Next Monday.

STUART TAYLOR: Yes. And for the U.S. Supreme Court I can imagine that the failure of the state courts to...I sensed yesterday in argument that Chief Justice Rehnquist might -- one things he might want to reverse state Supreme Court for is starting a process Friday that couldn't possibly be completed by December 12 and therefore not really being serious about the safe harbor. One other thing -- I think John Yoo mentioned the other day if the Supreme Court decides this and makes the whole lawsuit go away by tonight, then maybe that puts the Jeb Bush - the Bush slate in the safe harbor; I think the court would have to think twice about doing that and if I were thin might delay after midnight so no one was accusing me of doing this as on a quick, rush, last minute thing to lock Bush in.

MARGARET WARNER: All right. Tony Lewis, yesterday, and I know you and Stuart were both in the courtroom yesterday, there was a lot of discussion about could there be new standards for a recount and so on. Do you think this Supreme Court has both the statutory and constitutional authority to order a new process, the same kind of new process they really told the Florida Supreme Court not to do?

ANTHONY LEWIS: Margaret, just before I answer that question, could I register my decent from what has been said by the others about the safe harbor.

MARGARET WARNER: Please do.

ANTHONY LEWIS: I don't think the Bush slate that was certified last month entitled so the safe harbor because the statute -- the federal statute -- says it's only if contests have been concluded and decided and it wasn't concluded and decided. There is a contest still going on. I'm also a little skeptical of Stuart's concern that the court might look as if it was a little political if it did something before midnight. I think it's looking totally political to most of the country in what it has done so far, stopping a recount. That comes to your question, Margaret. I don't think there is any federal question in this matter at all. I don't think the Supreme Court has any power whatever to interfere in the Florida election. I've listened to the argument. I've read the briefs; I've thought about it; I've talked to a lot of people and I don't see the federal question. I think that the Supreme Court is just acting in a most extraordinary display of willful power of a kind that conservatives used to accuse the Warren court of doing, but the Warren court was a mere baby compared to what the Supreme Court of the United States and its five more conservative members have done in stopping this recount.

MARGARET WARNER: John Yoo, a willful display of raw power?

JOHN YOO: I don't think. I think most people agree there is a federal question involved here. Now, what the right answer to that federal question might be you can have a honest disagreement about, although I might add even Justices Breyer and Souter, who are proposing sending the case back with a new objective standard for a recount, even by suggesting that remedy, they have already accepted that there is a federal question here, and that the federal court does have the power to intervene. But that power comes from the Constitution. The Constitution requires that the state legislature set out the rules for how an election is going to proceed and if someone, anyone, has a question about whether those standards have been violated or not, they can bring a federal case. That is a federal question, whether someone has violated the text of the Constitution or not.

MARGARET WARNER: Let me go back to you Tony Lewis. Are you saying then that you think the Supreme Court doesn't have the power to give Gore what he wants, which is to perhaps order a new kind of a recount? I mean, he probably would like the old recount to continue or the old standards. But are you saying that you don't think the U.S. Supreme Court has the power, authority, to do the kind of thing the Breyer and Souter were suggesting yesterday?

ANTHONY LEWIS: First of all, I'm not so sure that Justice Breyer was actually suggesting that. He may have been. On the other hand, as I listened, I thought he may have just been testing the reach of each side's argument. But assuming that that is a possibility, maybe it's a good idea. And maybe the Supreme Court will do it and we'll find it out before the morning. But it would be a most unusual thing. I don't know the basis in any federal law or the Constitution for setting up a new system of counting -- for the Supreme Court of the United States to set up a new system of counting votes in Florida. But let me say, Margaret, in answer to Professor Yoo that the language is there in the Constitution. But if you use that to make this a federal question, then every state's vote for presidential electors is potentially a federal question to be taken to the Supreme Court. It's never happened before. I think it's a very, very long reach.

MARGARET WARNER: Stuart?

STUART TAYLOR: Two points. I think there is pretty clearly a federal question and I think the December 4th order of the Supreme Court kind of puts all nine of them on board of the idea that there's some kind of a federal question. Otherwise, why are they telling the state Supreme Court to clarify it. And here's why I take a -- this is a presidential election. We're not talking about a county sheriff. Article I, Section 2 of the federal Constitution does says the legislature, doesn't say the state, doesn't say the court, the legislature decides. Let's suppose - and I'd be interested in Tony's - let's suppose what the state court had done was the following -- their opinion said, and I'm reciting the whole thing -- all of our friends voted for Gore -- Gore must have won; therefore we certify Gore as the winner. Would there be a federal question there or would the Florida Supreme Court just say, well, that's what they said, state law, you know -- we can't second guess 'em?

ANTHONY LEWIS: My answer to that, Stuart, is that, you know, parades of horribles really don't decide serious constitutional questions.

STUART TAYLOR: Well, here, I think there is a serious constitutional suspicion -

MARGARET WARNER: Let me get Pam Karlan back in this.

Go ahead.

PAM KARLAN: I feel like I may be somewhere between the little bear and Goldilocks - Sandra Day O'Connor - in trying to split the difference here. It seems to me there is a federal question here but it's not under Article II, Section 1, no doubt legislatures appointing electors; it's under the equal protection clause to the Constitution. And I think that's what the Justices were pressing on in the oral argument yesterday -- can we be sure that a recount conducted by Florida comports with the equal protection clause - that is that the same standard is used statewide? Now my own view on that is the Florida standard is perfectly consistent with the equal protection clause and that happens all the time, that there are slight variations, but that's not a denial of equality. On the question whether the Supreme Court could order a more detailed standard or what Justice Breyer and perhaps a double entendre kept referring to as a substandard, I think they could. There are other areas of law where courts issue quite detailed remedial decrees ranging in, for example, prison litigation to things like the temperature of the shower water to reapportionment litigation, where they talk about going down the West side of the street rather than the East side. They could do that. The problem here is that they will be perceived if they do that as, first of all, doing what they told the Florida Supreme Court not to do, and there is an inconsistency there; and, second, legislating after the fact when everybody knows that the standard you pick may have a really dramatic effect on the recount.

MARGARET WARNER: A final brief comment from you on that prospect, whether you think they'd be inclined to do that?

JOHN YOO: I find unlikely. One way to look at it is what is going to happen after this election if the Supreme Court were to say that you can raise a due process challenge as to how any county counts your votes and what standards they use. It would open up a floodgate of litigation that would be available for any election not just a President but all the way down to county commissioner. And this is a court that's not very sympathetic to expanding equal protection and due process causes of action in federal court.

MARGARET WARNER: All right. Well, thank you all four. I'm sorry. We have to leave it there. Thanks very much.

FOCUS - REGIONAL VIEWS

JIM LEHRER: Now Media Correspondent Terence Smith samples the opinions of four editorial page editors.

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?

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 Marty County but count the votes.

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?

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 counting the votes again, hand recounting. I think the reality is the objective stand yard 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 order, no more reopening this election to endless litigation and endless subjective recounts.

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 where 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?

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 a established a strict enough standard on how those ballots should have been counted.

TERENCE SMITH: Bruce Dold, what do you think about 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.

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.

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.

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?

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% 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.

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 are 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.

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?

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.

TERENCE SMITH: Bob Kittle, do you we will come 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 the 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 isunique. The legislature does not have the 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.

JIM LEHRER: Still to come on the NewsHour tonight, an oil story and the grounding of the Osprey.

FOCUS - CRUDE ECONOMICS

JIM LEHRER: Now some crude economics. Tom Bearden reports.

TOM BEARDEN: Last summer, a lot of people in the Midwest got extraordinarily angry over the record high price of gasoline. The oil cartel, OPEC, had reduced production, and the price of crude went up. But when OPEC started pumping more oil, prices stayed high. Some politicians accused the oil industry of gouging consumers. American industry leaders denied that, saying one of the reasons prices went so high, and may shoot up again, is because the nation's refineries are running at full capacity. There is no margin for error. Any interruption in operations could lead to a serious regional shortage and another price spike. Why is there no excess capacity to make such a critical product as gasoline? The head of one of the nation's largest independent refiners says it's because, until recently, there wasn't much money to be made refining oil.

BILL GREEHEY: If you're a major company and you have different lines of business-- exploration, production, chemicals, retail, refining-- what you're going to do is you're going to make the investments where you get the best rate of return. And so what's happened in the last three or four years, the majors have not been spending the money on the refining infrastructure. And, as a result, demand has exceeded capacity growth.

TOM BEARDEN: Look at a refinery from a distance. and nothing much seems to be happening. Get closer, and the apparent calm disappears in the roar of machinery. Thousands of gallons of boiling oil in the soaring, cracking towers literally shakes the ground. The air shimmers with the heat. The place to see what's really happening is the control room. Computer screens show the complex molecules of crude oil being broken apart at high temperatures and pressures, then recombined into finished products. It's a far more complex and refiners say, vulnerable process than decades ago when refineries bought high quality crude and turned it almost directly into gasoline. These days many U.S. refineries-- like Valero Oil's plant in Corpus Christi, Texas-- buy this stuff, a sludgy goo called residual oil.

ROBERT BROADWAY: This is very heavy, very thick oil...

TOM BEARDEN: It's what's left behind after the less sophisticated Middle East refineries skim the easy stuff off the top.

ROBERT BROADWAY: This particular oil has to be heated just to get it into the refinery. We actually take this oil that contains by weight about 3.4% elemental sulfur, and we remove that elemental sulfur. And also we have some contaminants in the oil they're called heavy metals-- such as iron, vanadium, zinc, copper, lead and arsenic-- and we must remove those heavy metals before we can refine the oil into the clean burning gasoline that we produce.

TOM BEARDEN: After removing the contaminates, refiners separate out a series of intermediate ingredients with exotic names like raffinate, xylene, and reformate. Ultimately they're blended together according to a complex recipe that must take into account their individual properties. The blending process all comes down to this room, where quarter-million dollar test devices called "knock engines" continuously meter the octane of the blend, to make sure it'll burn properly. Federal clean air regulations add still another layer of complexity. A new, tougher set of standards, called RFG II, the second phase of reformulated gasoline regulations, went into effect last summer. And finally, a few individual states, like California, have their own, even more stringent clean air laws. These regulations force the industry to produce fuel in smaller batches for different parts of the country. They calls those "boutique gasolines." Robert Broadway, the refinery's service manager, says it's complicated the job considerably.

ROBERT BROADWAY: It is a very difficult process to blend the gasoline from the standpoint-- not the physical standpoint, but the technical standpoint-- to bring the logistics of producing all of these products along with each one of these products having a specific value and tying it all together and making sure that we could produce the most economical gasoline that's required at that point in time.

TOM BEARDEN: The industry says when every plant is running flat out, as they are now, even small outages can have an enormous effect on the market. Sometimes parts of refineries simply break down. Normal maintenance shutdowns also reduce capacity, which can also lead to shortages of finished products. Robert Slaughter is with the Refiners' Trade Association in Washington.

ROBERT SLAUGHTER: What happens when you keep putting more and more burdens on the industry is that, you know, things happen that are unforeseeable. The supply is tighter and from time to time you'll have maybe pipeline or refinery problems or something else unforeseeable, where you'll have a local or perhaps regional supply disruptions with price impacts.

TOM BEARDEN: The industry says all of this, coupled with a temporarily broken pipeline, contributed to the price spikes in the Midwest last summer. And Valero's CEO says reformulated gasoline added yet another layer of complexity.

BILL GREEHEY: RFG Phase II was lower sulfur, lower vapor pressure, which means that refineries had a harder time making this gasoline so you have volume lost.

TOM BEARDEN: But the EPA's clean air chief, Robert Perciasepe, says environmental regulations were not to blame for high prices in the Midwest.

ROBERT PERCIASEPE: RFG II was implemented throughout the entire country and we didn't see any of this kind of effect. They were able to successfully implement it in 97% of the gasoline in the country. You know, what happened in that specific arena and trying to paint a brush to the whole program, is pretty much a disservice to the clean air goals that have been achieved by the oil industry itself in implementing clean burning gasoline.

TOM BEARDEN: Midwest prices eventually came down from their high of over $2 a gallon. But the average price around the country remains in excess of $1.50. California has gone through several price spikes, and fuel prices there are still substantially higher there than the rest of the country. So the state attorney general commissioned a broad-based study of gas prices. He found that the decline in capacity was real, but he also blamed price hikes on lack of competition.

BILL LOCKYER: In California, there are six oil companies and hopefully not fewer, but that may happen. But a handful of companies that control about 92% of the refining and about 92% of the local retail gas stations. Well, there just isn't adequate competition in that sort of a market environment. So with that inelastic demand, with the SUV's and more and more cars and more and more people every year, the demand side keeps going up. The supply side is relatively fixed in our state. And so they just keep raising the prices on us.

TOM BEARDEN: The California report said there were 35 refiners operating in the state in 1980. In those days the biggest six refiners controlled only 68% of production by 1998 there were just 16 refiners in California. And the biggest six controlled 86% of production. But the report also supported some of the refiners' claims. Some task force members believed the state's clean air requirements increased the number and length of refinery disruptions. And it said investments needed to upgrade refineries to produce cleaner gas contributed to the closure of some independent refineries. But the attorney general says regardless of past economic problems, refineries are making a lot of money now.

BILL LOCKYER: If you look at the history of refineries in California, you find that their profit margins jumped dramatically in the last half a dozen years. The local independent gas station owner actually is doing much worse now, less profit than they used to make. Crude oil prices vary, of course, and that's a major factor. But if you factor out those changes, you find that it's refinery profit margins that seem to be the principal factor and cause in the price spikes.

TOM BEARDEN: Even as the argument over what causes high prices continues, refiners are warning of further price and supply problems as they prepare to cope with new clean air regulations. Congress is considering several bills that would outlaw the use of MTBE, an additive used to put oxygen into gasoline to make it burn cleaner. If MTBE is banned, there will be a substantial loss of gasoline volume. Ethanol, an alcohol made from corn, is a viable but more expensive substitute, even though it enjoys several tax subsidies. In addition, the EPA will soon issue a rule requiring a far lower level of sulfur in diesel fuel. Refiners estimate that changeover will cost them $8 billion. EPA's estimate is half that. But engineers say it's only partly a matter of cost. It's also a case of so many new requirements being imposed in a relatively short period of time -- requirements with unknown consequences.

BILL GREEHEY: And that's the biggest problem we have. EPA does everything on a piecemeal basis, and when you're making an investment in a refinery, in the infrastructure, what you're trying to figure out, what are your needs?

ROBERT PERCIEASEPE: Sequencing these things and phasing them and providing adequate lead time is also part of our responsibility to the EPA. So if we can achieve the clean air and technology advancement investments for the American transportation system and sequence these regulations in an appropriate way so that the oil industry can transition in a way that provides the lead time and the flexibility they need, that is the answer.

TOM BEARDEN: Observers warn that there are no quick fixes for the current turmoil in energy markets. In fact, some think price spikes in all kinds of fuels will become uncomfortably familiar for several years to come.

FOCUS - GROUNDED

JIM LEHRER: Finally tonight, the grounding of an experimental aircraft, and to Ray Suarez.

RAY SUAREZ: The V-22 Osprey, a combination helicopter and airplane, has suffered two fatal accidents this year. Last night's crash came in a heavily wooded area near Camp LeJeune, North Carolina. Among the four Marines killed was the most senior Osprey pilot. In April, one of the tilt-rotor experimental aircraft crashed in the Arizona Desert killing 19 Marines. This morning, the Marines grounded all the test V-22s, and corps Commandant General James Jones asked the Defense Department to delay a decision on full production. At General Jones' request, Defense Secretary William Cohen agreed to name a panel of experts to review the $40 billion Osprey program. At a press conference this morning, Lieutenant General Fred McCorkle, the head of Marine Aviation, defended the aircraft that the corps says is essential to its mission to move combat troops rapidly into dangerous situations.

LIEUTENANT GENERAL FRED McCORKLE: I will still tell you that having flown this aircraft and having been around the aircraft a lot of times I don't think that there is anything else out there that rates with it, and whatever is wrong with it, or if there was something wrong with it to cause this accident we plan on founding out what it was and fixing it.

RAY SUAREZ: The Osprey has been a priority of the Marine Corps since the early 1980s. But the aircraft, which costs about $80 million apiece, has a controversial history. Congress ordered the program to go ahead over the objections of then-Defense Secretary Dick Cheney. Last week the Defense Department's top weapons tester, Philip Coyle, issued a report that said the Osprey "...as tested, is not operationally suitable," primarily because of reliability, maintainability, availability, and human factors. Coyle recommended that further research be conducted into the so-called "vortex ring state," a phenomenon that can cause helicopters to sink uncontrollably. This phenomenon was cited as one cause of the April crash.

RAY SUAREZ: For more, we go to Mark Thompson, national security correspondent for "Time" Magazine, and David Harvey, U.S. Editor of "Defense Helicopter" Magazine and a helicopter pilot.

Well, Mark Thompson, what do you make of Commandant Jones' decision to ground the aircraft and put a delay on its continued production?

MARK THOMPSON: The program as the marine general made clear today is in trouble. It's even in more trouble because Secretary of Defense Cohen basically has taken it away from the Marines and is launching a blue ribbon investigation of the program. And whenever your boss does that, that does not make you feel very comfortable.

RAY SUAREZ: What do you think, David Harvey, is that kind of trouble one that's going to really endanger the future of the Osprey?

MARK THOMPSON: Well, it depends what they find. I think there is no argument when the position being taken now, which is to examine this thing, analyze the problems that have taken place and find it and if possible fix it. But I think it's too early in the process to say the aircraft is threatened, terminally threatened, in any way.

RAY SUAREZ: Well, David Harvey, why does the Marine Corps want it so badly?

DAVID S. HARVEY: Well, a number of reasons, but one very obvious one is their current helicopters are getting very old; they date back to the Vietnam era and some of them before that. And so it's a question of are you going to modernize the force and if so how are you going to do it, and the answer is to modernize the assault lift capability. And this is - this is a key part of that strategy.

RAY SUAREZ: Some of the observers, Mark Thompson, have mentioned that the Marine Corps really has no place else to go. Do you think that's a fair statement?

MARK THOMPSON: Well, plainly, they've been betting on the V-22 being ready to do the job, but plainly, conventional helicopters have been around for a lot longer than tilt rotor air craft. And this particular tilt rotor aircraft has what Marine pilots call unk-unks -- unknowns unknowns - the so-called rain state vortex - the vortex ring state that may have played a rolled in the April crash also could have played a role in this crash. It's like having a bike with a training wheels and one of the training wheels falls off, as the pilot described it to me. If you're just learning to ride a bike, you're very likely to tip over, and that may have been what happened here.

RAY SUAREZ: Are you suggesting it maybe be too difficult to fly?

MARK THOMPSON: Well, apparently, according to Mr. Coyle's report, the Pentagon's chief testers report, you reach a point in this airplane where once you have lost it there is no ability to recover and that becomes even more important when you're at a relatively low altitude which is where these guys were last night.

RAY SUAREZ: David Harvey, let's talk a little bit more about how this thing stays in the air and how it makes that transition. Is that particularly really daunting for a pilot to change from a forward airplane-like movement to more helicopter-like movement while in mid flight?

DAVID S. HARVEY: Well, it's not because of the magic of software. This aircraft has a digital flight control system, and the way that works is that it watches over the pilot, if you like, and decides whether the pilot is making the correct actions or not. I have a little model here of how this thing works. If you can imagine is flying on level flight, the transition is a very slow, gradual process to make it into helicopter mode at which point it comes on down. I have flow the simulator for the NV-22 Osprey, and I can tell you it's a piece of cake from that point of view.

RAY SUAREZ: So what do you see are the flaws of the craft looking at the Coyle Report and what it has to say, what do you think needs to be fixed?

DAVID S. HARVEY: Well, the Coyle Report, as I understand it, was concerned with a number of things that have on their way to being fixed or have been fixed, and they did, as somebody said earlier, relate more to questions of reliability and maintainability that did not address any inherent technological risks in aircraft or characteristics that may be dangerous in some way. I think what we have to do now is as the Marines and the DOD has decided to do, go back, look at everything very thoroughly and look at each of the accidents and incidents on their merit, analyze what's happened, analyze this accident, and then sit back and make a judicious judgment as to what to do next. Rushing ahead I don't think serves any useful purpose at this point.

RAY SUAREZ: Mark Thompson, do you agree with David Harvey's understanding of what was in the Coyle Report?

MARK THOMPSON: Well, the report was really harsh. I mean, this airplane can go twice as fast, five time farther than what we've currently got. It is a big leap ahead. But it has a lot of problems, which were detailed in the Coyle Report. I think what's important to realize is that this is a radical new airplane and it's like jumping a high bar; if you don't knock the bar off, it means you're not trying to jump high enough. We need to give the Pentagon breathing room if that's what they're trying to do is bring on a radical new aircraft. But the question is: How long can we let them crash into the desert and into the forest before we say this thing is not really for production, which is what we're on the cusp of right now?

RAY SUAREZ: Are there aircraft in current service that have had sort of a rocky start like this that have since worked out the bugs and are now a vital part of the fleet?

MARK THOMPSON: Oh, sure. I mean, the Harrier jet, which the Marines also fly, had a very high accident rate, as the general said today at the Pentagon -- you know -- we used to have 80 airplanes crash a week and we didn't pay much attention to that in the early days of aviation, but now there is a lot more attention focused on aircrafts, especially ones as radical as this.

RAY SUAREZ: David Harvey, the Coyle Report, which is the product review, basically, the test review of this helicopter, said it was operationally effective but not operationally suitable. What does that mean in layman's language?

DAVID S. HARVEY: Well, I think it meant that the required reliability and maintainability factors weren't there. I don't think it was arguing with the fact that this aircraft as a military tool, as a tactical weapon is in fact very effective and in fact ready to do what it's supposed to do.

RAY SUAREZ: Should its supporters worry a little bit if there is a Bush/Cheney administration coming in since the man who may be Vice President is a known opponent of the program?

DAVID S. HARVEY: Well, I would say to that, if the President himself -- President Bush in that case -- is from Texas which is where the tilt rotor is built - so I think that would act as a counterbalance to that dynamic happening.

RAY SUAREZ: And, Mark Thompson, Mark your view of the political future of this aircraft?

MARK THOMPSON: Well, plainly, Secretary Cheney did try to kill it but he only tried to kill it for the cost reasons. He acknowledged if you could get it to work, it would be a great aircraft. So it's still very expensive and now it's crashing. So I think Secretary Cheney -- Vice President perhaps -- Cheney will give it a lot of scrutiny and indeed it remains up to Congress what ultimately will happen to it.

RAY SUAREZ: Well, three of the fifteen built have crashed. Are they moving into area where there is much, much less room for error now?

MARK THOMPSON: Well, I think in the next several months if there is another crash, God forbid, the program will be almost dead.

RAY SUAREZ: David Harvey, do you agree?

DAVID S. HARVEY: I agree with that sort of feeling, yes. But I would like to return to my previous point, which is each aircraft accident that happens in any branch or realm of aviation is a discrete happening unto itself. I think you have to be very disciplined about looking into the causes of every one before trying to bundle them up together in a sort of basket and saying this is a hopeless case.

RAY SUAREZ: Well, if it turns out this one after investigation is found to be pilot error rather than aircraft malfunction, what would that tell you?

DAVID S. HARVEY: It would tell you that the training needs addressing.

RAY SUAREZ: Rather than it being simply too hard to fly?

DAVID S. HARVEY: I don't think it's too hard to fly. Listen, this airplane has been around a long time. An awful lot of test pilots, people with - I'm from Missouri- show me attitudes to aviation in every way have looked at this from every particular angle. I think by now we would have known if there was an inherent difficulty in the aircraft that somehow makes it real hard to fly. I don't buy that at all.

RAY SUAREZ: David Harvey, Mark Thompson, thank you both.

RECAP

JIM LEHRER: Again, the other major stories of this Tuesday: There was no word on when the U.S. Supreme Court would rule on Bush versus Gore. That case could decide the Presidential election. The Republican-controlled Florida House approved 25 pro-Bush electors. And Ethiopia and Eritrea formally ended a two-year border war that killed at least 50,000 people. We'll see you online, and again here tomorrow evening. I'm Jim Lehrer. Thank you and good night.