updated 10/21/2004 10:16:49 AM ET 2004-10-21T14:16:49

Guest: David Boies, Bernard Kerik, Norman Lear, Ed Rollins, Al Sharpton

CHRIS MATTHEWS, HOST:  Tonight, a special edition of HARDBALL, live from Democracy Plaza at New York‘s Rockefeller Center.  From NBC News world headquarters, let‘s play HARDBALL.

Good evening.  I‘m Chris Matthews, outside of Rockefeller Center in New York City, and welcome to the opening of Democracy Plaza.  NBC News and MSNBC will be bringing democracy home to America on election night, November 2, broadcasting from right here live for as long as it takes America to elect our president.  Take a look around us at this political feast, from the mockups of Air Force One to the Oval Office to one of the original copies of the Declaration of Independence. 

Tonight, we inaugurate this plaza in true HARDBALL spirit as we go into the homestretch of this exciting presidential race. 

Joining us later in the show, “All in the Family” creator Norman Lear, former Democratic presidential candidate, the Reverend al Sharpton, the author of “Courting Justice,” attorney David Boies, and former New York City police commissioner and current advisor to the Bush/Cheney campaign, Bernard Kerik. 

Plus, the latest MSNBC/”Knight Ridder”/”Mason-Dixon” poll shows President Bush leading in six battleground states.  He won four years ago, Ohio, West Virginia, New Hampshire, Missouri, Colorado and Nevada. 

But first, my panel from NBC News, Andrea Mitchell, actor activist, Ron Silver, MSN—MSNBC political analyst, Ron Reagan and Republican consultant Ed Rollins. 

Ed, you start.  You‘ve been in a lot of campaigns, especially for this young man‘s dad and you won a couple of them too.

ED ROLLINS, REPUBLICAN CONSULTANT:  He won them.

MATTHEWS:  A stunning number for all the cynics out there—actually cynics don‘t watch HARDBALL.  For all the cynics beyond the people that watch HARDBALL, will the outcome of this election make a difference in your life?  In your life.  The numbers 72 percent, yes.  This is a big one, isn‘t it? 

ROLLINS:  It‘s a big one.  It‘s a big one for a variety of reasons, because I think people fell that support President Bush think that he has to continue.  You can‘t change in a time of terrorism.  And for those that think that everybody he has done is wrong, they want to make that change.  And they that if he gets reelected, it‘s vindication for that.  So it does matter to a lot of Americans. 

MATTHEWS:  180, right? 

ROLLINS:  Definite 180. 

RON REAGAN, MSNBC POLITICAL CORRESPONDENT:  I‘m not quite as old as Ed, but I have—in my lifetime—I don‘t remember seeing a race that‘s is this electrified the public quite like this.  But I do sense that right now, the public is also saying, could we just get this over with?  They want it vote now, I think. 

MATTHEWS:  They don‘t speak for me, Ron. 

REAGAN:  OK. 

MATTHEWS:  OK.  Ron Silver, actor slash activist. 

RON SILVER, ACTOR ACTIVIST:  I‘m surprised the number is not higher, because it clearly does effect everybody‘s life.  Something happened on 9/11 and I think the good judgment of the American people is more than just (UNINTELLIGIBLE).  They get it right sometimes when we all get wrong.  And they know how important this election is.  One side thinks it‘s a literal war that we‘re engaged in.  The other a metaphorical war. 

MATTHEWS:  So you believe, and the reason you are working for the president is, personally, because you believe—the former.

SILVER:  Absolutely.  We were attacked on 9/11 and we were not attacked from overseas.  We were attack from Boston, and Newark and the weaponry they were using were American planes.  We‘re in a new world and this is a war.

MATTHEWS:  And you mentioned, you covered a of these campaigns.  Seventy-two percent, almost three quarters of the people say, it affects them personally this election.

ANDREA MITCHELL, NBC NEWS:  There‘s more passion pro and con against the president for the president.  This is the most important election in anyone‘s lives, in anyone‘s memories.  And I‘ve seen it with old people, with young people who were on all those campuses when we were out for those wonderful debate.  People really care about this.  I will be shocked if we don‘t have record-breaking turnout. 

MATTHEWS:  There‘s talk of maybe a 120 million, 118 million, biggest ever.  It reminds me of the Kennedy/Nixon campaign when everybody walked around with the skimmer (ph) hats on, either Kennedy or Nixon. 

Right now, we‘re joined by the man responsible for bringing a bit of history right here to Rockefeller Plaza.  One of the original printed versions of the Declaration of Independence, is right here now at Democracy Plaza.  Television legend, and founder of Declare Yourself, Norman Lear. 

Mr. Lear, thank you for joining us.  Tell us why you chose to go to the time and expense and effort at this point in your life to bring the Declaration of Independence to the country again. 

NORMAN LEAR, DECLARE YOURSELF FOUNDER:  It came to me by surprise, Chris.  I learned that Sotheby‘s was going to auction off an original copy.  I have two little girls that go to school with a kid who‘s father runs Sotheby‘s in Southern California.  I called him.  He said, come on over, the document‘s here.  I went over, I was shocked at my own reaction.  I frankly cried and thought immediately, I don‘t collect such items.  I wouldn‘t hang it on a want.  If I could get it, I was sure would I find the support I needed to travel it.  I looked at it and knew immediately I‘m looking at my country‘s birth certificate, printed the night of July 4, 1776. 

The one that was signed, began to be signed six weeks later.  It took months to be signed.  This was one of a couple hundred copies.  Only 25 known to exist in the world now that were printed the night of July 4 and sent by horseback to the 13 colonies.  I was just overwhelmed as I watched people around the country be overwhelmed when we traveled it. 

MATTHEWS:  You know, in a way, it‘s been said by Gary Wilson (ph), the writer, that it was Abraham Lincoln who reintroduced the Declaration of Independence to country as founding document, even more so than the constitution.  He said four score and seven-years-ago we created this country.  The lines in the Declaration, I guess the key line is “All men are created equal,” right? 

LEAR:  “All men are created equal and designed by their creator with the right, liberty and pursuit of happiness.” But interestingly enough, along the way as we‘ve handed out cards to people to write down their feelings, often enough they will write the decent respect of the opinions of all mankind.

MATTHEWS:  And what do you make of that today, those words? 

LEAR:  I think people are feeling that we‘re part of the human family and we want to be respect as part of the human family.  It‘s part of life, liberty, the pursuit of happiness—created for that reason.  There‘s enormous...

MATTHEWS:  But aren‘t there, Mr. Lear—aren‘t there so many conflicts within that list of particulars, people who are pro-life will say, you don‘t have the liberty to destroy unborn life.  People who believe in the liberty part say, it‘s a privacy matter.  Abortion rights is privacy matter.  Isn‘t it still the problem of people living today to interpret those important words? 

LEAR:  Yes, it is.  And a number of people did interpret them and we have a constitution.  Now people can argue about what the constitution means, but nonetheless there, is the constitution which declares in its own way what everybody‘s rights will be. 

MATTHEWS:  What do you make of the fact that there‘s an outright public competition between the candidates for president as to who can be the most overtly religious? 

LEAR:  I‘m sorry, say that again. 

MATTHEWS:  Are you surprised and what‘s your reaction to the fact that this week John Kerry, a man who has kept his religion largely to himself in his public life, has felt the need go out and compete with President Bush on overt religiosity (ph)? 

LEAR:  My sense of that is that everybody‘s religious feeling is a extremely private matter.  I wouldn‘t stand behind anybody in terms of my feelings, my own compact with the deity.  I think, each of us has an original and unique, like no two thumb prints, there are no two compacts alike.  And it ought to remain in the privacy of one‘s heart, one‘s family, perhaps one‘s congregation.  In the public square, there‘s no room for that.

MATTHEWS:  But isn‘t there a national push from at least half the country for a more overt connection between public life and religious life? 

Don‘t you see it in the evangelical movement?  Don‘t you see it in all displays from the political right? 

It‘s out there. 

LEAR:  Of course, I see it.  What I don‘t see is enough from the main line churches that represents far more people that will talk about the privacy that one should enjoy with one‘s original and unique compact with the deity as opposed to laying all that out in the public.  It doesn‘t belong there.  That‘s what we have a constitution to protect us from.  But...

MATTHEWS:  Let me ask you about your thoughts about the—talk about that.  Talk about the Declaration of Independence.  Go ahead. 

LEAR:  Yes, because today an our Web site declareyourself.com, we passed 1,100,000 and some downloaded registration forms, which is only—we only began in November.  We‘ve been touring the Declaration for three years, but declareyourself.com, seeking people to register and vote just started in November.  So we‘ve (AUDIO GAP)

MATTHEWS:  OK, thank you very much, Norman Lear.  When we come back, we‘ll be joined by the Reverend Al Sharpton live from the mockup—well he‘d like to be there for real in the Oval Office.  And later former New York City police commissioner, Bernard Kerik will be here.  He‘s now an advisor to the Bush campaign. 

You are watching HARDBALL live from Democracy Plaza at Rockefeller Center in New York. 

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL live from Democracy Plaza in Rockefeller Center in New York.  This is a true celebration of America democracy we‘re starting tonight, featuring exhibits of the Declaration of Independence one of the original, of Air Force One and the Oval Office itself.  And joining us from right there, from the Oval Office, he lusted for it in his heart, is the Reverend Al Sharpton.  Reverend, where are you?  I cannot see you in the picture, the Oval Office.  Are you in that room? 

REV. AL SHARPTON, FMR. PRESIDENTIAL CANDIDATE:  I‘m sitting on the desk, your worst nightmare. 

MATTHEWS:  Just make yourself at home.  Are you afraid to approach that chair behind that desk and sit there with great prominence, poise or what? 

SHARPTON:  I‘m not afraid at all.  I just wanted to make sure you had a clear shot of me with the presidential seal there. 

MATTHEWS:  It looks totally normal to me and looks right for the world.  Let me ask you, Reverend Sharpton, we have new polling out that‘s interesting.  You ran for the Democratic nomination as did seven other guys.  Look at this number here of the people who are going to vote for John Kerry for president, our new NBC poll, 37 percent of them are voting for Kerry because they like Kerry as a candidate for president.  48 percent are voting against and say so, primarily against, President Bush.  What does that tell you about the candidacy we have right now facing us in the next two weeks? 

SHARPTON:  Well, I think that it is very striking that you have such a substantial amount of people that dislike Bush.  It does not mean, Chris, that a lot of those 48 percent don‘t also respect Kerry, they just dislike Bush more and that‘s a main motivating force.  And I think that that happens when any incumbent runs for re-election, that you have as much emotion against them as do you for the opponent and I don‘t think there‘s anything impractical about that. 

MATTHEWS:  When you‘ve run for office in New York City, for example, you‘ve always gotten a vote that people like you.  Wouldn‘t you have been appalled to know that most of your voters didn‘t like you so much, they dislike the other guy? 

SHARPTON:  One, I don‘t see where that poll said they didn‘t like Kerry.  Second of all, when I‘ve run I‘ve run in primaries usually not against an incumbent.  This is a general election against an incumbent so I don‘t know if I would be the proper comparison.  But, again there are many people that are vehemently opposed to Bush that still do like Kerry so I don‘t think that 48 percent figure says “I don‘t like Kerry.”

MATTHEWS:  Let me give you the example of a guy people like when they vote for him.  The president.  Of the people voting for the president, 74 percent say they‘re voting for the president because they like what he‘s done.  They‘re voting for Bush.  Only 16 percent of the people voting for the president are voting against Kerry.  That‘s an example of a positive candidacy, isn‘t it? 

SHARPTON:  But again, I think that Kerry hasn‘t been president.  So that 16 percent have been swayed probably by some of the propaganda from the Republicans.  The 48 percent voting against Bush are voting against a man who brought us to war, a man who has not done right with the economy, a man who has not delivered healthcare.  You have a record there.  Bush keeps saying, look at the record, well for him, unfortunately, 48 percent of the people in that poll did look at the record. 

MATTHEWS:  Reverend Sharpton, we have someone on our panel, Ron Silver, actor, activist, who wants to take you on.  Here he comes. 

RON SILVER, ACTOR, ACTIVIST:  No, I don‘t want to take him on.  Reverend Sharpton, actually, I want to congratulate you.  Do you not think that you and Howard Dean ultimately won the primaries because the candidate of the Democratic party has accepted your argument that you guys had from the very beginning.  He has evolved into a position and he‘s going to the homestretch with, this is the wrong war, wrong place, wrong time?  In a way, your argument, Howard Dean‘s argument, Dennis Kucinich argument seems to have won the day in the Democratic party...

SHARPTON:  Unfortunately—thank you, Ron.  But unfortunately the problem is that those of us that said there were no weapons of mass destruction won the day and meant that the president misled the public.  I‘m sad that we ended up being right, but I think who really lost to Dean and Kucinich and me was George Bush because the weapons not only were not there, but the last report was that Saddam Hussein didn‘t even have the capacity to make the weapons at that time. 

MATTHEWS:  Do you want to extend your congratulations to that point, Ron?

SILVER:  Yes, I would. 

MATTHEWS:  Reverend Sharpton, let‘s talk about Bill Clinton, a man who has just gone through a major health crisis.  He‘s had a quadruple, I believe, bypass surgery, serious stuff.  Yet he is going arise from his bed.  Next Monday he‘s going to go to Philadelphia in a big rally at noontime.  It will be a big event with the governor, Eddie Rendell.  Then on his own ticket, he will go to Nevada and New Mexico and try to win those states.  Tell me what you think the impact will be of this excursion by the former president? 

SHARPTON:  I think it will be tremendous.  I think that Bill Clinton has a tremendous drawing ability.  I think his book sales have shown that.  The fact that he will dramatically come at a time so quickly behind serious surgery shows his continued commitment to this country and I think it will energize this campaign in the last week unlike anything else.  I think that clearly it will dominate a lot of media attention.  It will draw unprecedented crowds.  And it will be the prelude to an upset by some that expect Bush to be reelected when John Kerry is, in fact, elected on November 2. 

MATTHEWS:  From the Oval Office, a picture which will cheer his fans and appall his critics, the Reverend Al Sharpton. 

SHARPTON:  (UNINTELLIGIBLE) to Ron Silver. 

MATTHEWS:  Live with it, Ron.  We‘re at Rockefeller Center at Democracy Plaza, where the ice skating rink is being transformed into an electoral map—I‘m not sure that‘s for the better—of the United States.  And this will be our site on election night, now just 13 days away.  Up next, the politics of fear.  How both candidates are trying to scare voters to win their support.  You‘re watching HARDBALL live from Democracy Plaza on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  That is beautiful here at Rockefeller Center.  Welcome back to HARDBALL, live from this new display of Americana Democracy Plaza.  It‘s beautiful here if you‘re near New York.  And you can come visit.

There may be nothing more powerful to voters, however, than fear.  And both campaigns are making it seem down the stretch here in these last 13 days, that a victory for the other guy would lead to Armageddon.  HARDBALL election correspondent David Shuster reports. 

SHUSTER:  Well, Chris, that‘s right.  For the Democrats, it‘s a tactic that is being used primarily on domestic issues.  For the Republicans, it‘s being used very aggressively in the debate over national security. 

(BEGIN VIDEOTAPE)

CHENEY:  Our job is to defend America. 

SHUSTER (voice-over):  Arguing that the Democrats are not tough enough to stop terrorist attacks, Vice President Cheney now suggests hundreds of thousands of lives are at stake. 

CHENEY:  That the biggest threat we face now as a nation is the possibility of terrorists ending up in the middle of one of our cities with deadlier weapons than have been used before against us, with a biological agent, or a nuclear weapon or a chemical weapon of some kind. 

SHUSTER:  When it comes it nuclear weapons, under the Bush administration‘s watch, North Korea went from one nuclear weapon to at least half a dozen.  But the Bush campaign seems to feel that fears about John Kerry are crucial. 

BUSH:  At a time of great threat to our country, at a time of great challenge in the world, the commander-in-chief must stand on principle, not on the shifting sands of political convenience. 

SHUSTER:  And to drive home the message, the latest Bush campaign commercial starts this way:

NARRATOR:  After September 11, our world changed.  Either we fight terrorists abroad or face them here. 

SHUSTER:  And ends with:

NARRATOR:  John Kerry and his liberal allies, are they a risk we can afford take today? 

SHUSTER:  The Kerry campaign responded vigorously. 

NARRATOR:  We see it for ourselves, the mess in Iraq created by George Bush.  Over 1,000 U.S. soldiers killed. 

KERRY:  As president, I will stop at nothing to get the terrorists before they get us. 

SHUSTER:  But the Democrats are also using fear, sometimes about national security:

KERRY:  On George Bush‘s watch, America is more threatened than we were before. 

SHUSTER:  But more often about Social Security. 

Three days in a row this week, John Kerry told voters that President Bush plans to cut or ruin the program. 

KERRY:  My fellow Americans, on November 2, Social Security is on the ballot. 

SHUSTER:  And in case anybody has missed Kerry‘s speeches, his campaign is running this television commercial. 

NARRATOR:  First, George Bush threatened Social Security with record deficits of over $400 billion.  Now Bush has a plan to cuts Social Security benefits by 30 to 45 percent.  The real Bush agenda: cutting Social Security. 

(END VIDEOTAPE)

SHUSTER:  The Bush campaign says that John Kerry is trying to scare voters.  The Kerry campaign says it‘s the president and vice president who are trying to scare voters.  Both campaigns are correct.  Because the fact is, Chris, that fear is a powerful campaign weapon, as you know, and it‘s a weapon that both campaigns intend to use through the end—Chris.

MATTHEWS:  Thank you, David Shuster. 

Let‘s go to Andrea.  It really is, isn‘t it?  If you are a person over 60 or 70, say you are in your 80‘s and you are being told, that check ain‘t coming at the end of the month, pretty it‘s scary stuff. 

MITCHELL:  It‘s fear tactics on Social Security that the Democrats have used in every campaign going back for several decades.  And also now this year the flu vaccine. 

MATTHEWS:  OK, let‘s talk about it.  Let‘s be honest here.  Cheney is unbelievable, it‘s almost like Dr. Strangelove. 

MITCHELL:  I was about to go there. 

MATTHEWS:  I‘m sorry.  Go ahead. 

MITCHELL:  One side is using fear of Social Security...

MATTHEWS:  Of starvation death, that way. 

MITCHELL:  Which also affects not just the elderly, but, if you talk to a lot of college kids, they‘re really worried about Social Security being there.  And the other side, Dick Cheney obviously, using the fear of nuclear attack, a radiation bomb or worse.  And this guy, John Kerry, linked to the fact that John Kerry will not protect the homeland the way George Bush will. 

MATTHEWS:  It‘s like they‘re saying, do you want it quick or slow? 

MITCHELL:  It‘s all about trying to make people so afraid that they will come out and vote.  And they will care enough about this election to vote.  It‘s motivating the base. 

MATTHEWS:  Legitimate? 

RON SILVER, ACTOR/ACTIVIST:  I think it is legitimate, but I‘ll tell you, Andrea makes an interesting point, she‘s saying that the Democrats of this election are using tactics that they historically use all the time, fear of Social Security checks, fear of a certain loss of social whereas the Bush campaign this year is using a legitimate fear that was introduced on 9/11, where most people in this country, bearing up the...

(CROSSTALK)

MITCHELL:  But taking it out of context. 

SILVER:  But hold on.  We basically said, despite our power, this country is incapable of protecting our citizens unless we radically reformulate the way we protect ourselves and handle the new threat.  So, I think they‘re dealing with a (UNINTELLIGIBLE)

MITCHELL:  My point is that both sides are exaggerating and they‘re both trying to motivate their voters to come out. 

MATTHEWS:  Ron?

REAGAN:  Lyndon Johnson, of course, played the nuclear card...

MATTHEWS:  How so?

REAGAN:  We remember the Daisy Picking commercial, the little girl there with the—picking off the daisy petals and the mushroom cloud behind her. 

(CROSSTALK)

REAGAN:  It did barely run, and the Republicans have certainly ratcheted it up in a Strangeloveian way, as you‘ve said. 

MATTHEWS:  Ed, fair game? 

ROLLINS:  Anything‘s fair game.  The bottom line is you have got to win.  This is a campaign that‘s had more money than ever before, both sides.  More campaign days...

MATTHEWS:  So much for that ethics and morality crap, right? 

ROLLINS:  And at the end of the day, this is not an intellectual debate, this is an emotional debate.  And fear is a very important factor to a lot of Americans today. 

MITCHELL:  You know, Ed, one thing that did come out today, which was a revelation that some of the ads that the Democrats, that the Kerry campaign have been putting out, and that we in the media have been picking up, never ran.  This is a first.

MATTHEWS:  Their just for us to talk about.

That‘s been done before, too.

Up next, election attorneys David Boyd and Ben Ginsberg on whether the highly contested race, this one, will be decided on election night or in the court of law.  You‘re watching HARDBALL.  And we‘re live from Democracy Plaza on MSNBC.

(COMMERCIAL BREAK)

(NEWS BREAK)

MATTHEWS:  Welcome back to HARDBALL, as I said, live from Democracy Plaza at Rockefeller Center.  And it‘s a celebration right around us here of American democracy at MSNBC News World Headquarters here in New York City, just 13 days before the presidential election. 

Joining us now is David Boies, who represented the Al Gore campaign in the 2000 reelection—actually, election recount, and is the author of the new book “Courting Justice:  From New York Yankees vs. Major League Baseball to Bush vs. Gore.” 

David, thank you for joining us.  You have got a unique background here.  When you look back over the way that the Supreme Court intervened after not liking what the Florida Supreme Court had ruled in the case involving the Florida electoral votes, was that a good display of American justice or a misdisplay, a misuse of American judicial order? 

DAVID BOIES, AUTHOR, “COURTING JUSTICE”:  It was the first time in our entire history that the United States Supreme Court had intervened in a presidential election. 

I think it was a mistake.  I think it was particularly a mistake to intervene on the grounds that the Supreme Court said it was intervening on, which was the Equal Protection Clause, because the principles that the Supreme Court articulated were not supported by any decision that the curt had previously rendered and were inconsistent with the principles that every one of the five justices who joined in the majority opinion had previously said they believed ought to be used. 

MATTHEWS:  Well, then, David, if that‘s the case, why was that initial count 7-2?  Why was there such a preponderance of opinion a divided court on the issue of due process? 

BOIES:  Well, remember, four justices of the Supreme Court dissented from the opinion.

(CROSSTALK)

MATTHEWS:  From the final opinion, but the initial opinion was on the principle, wasn‘t it? 

BOIES:  Well, no.  The initial opinion was to take the case or not. 

And on the decision to take the case or not at all, it was 5-4. 

In other words, four justices of the Supreme Court voted not even to hear the case.  And remember, when the United States Supreme Court majority stopped the vote counting on December 9, that again was a 5-4 decision with a very bitter dissent by Justice Stevens, joined in by three additional justices. 

MATTHEWS:  But the remedy decision was 5-4, but wasn‘t there a preliminary vote that was 7-2, which was very strong on the issue of denial of due process? 

BOIES:  No.  I think that what you are talking about is that there‘s an assertion in the majority opinion that two additional judges agree that there were equal protection problems. 

MATTHEWS:  Right. 

BOIES:  And what they‘re doing is, they‘re referencing the opinions by Souter and by Justice Breyer.  If you read those two opinions, they both say two things.  One, the court should never have taken this case, and, two, the case should not be decided the way it was being decided. 

If you count those seven judges that the majority tries to count, you have to count a judge that says—Justice Breyer—that says the majority opinion is completely wrong. 

MATTHEWS:  Let‘s talk about the Florida Supreme Court. 

They, of course, had a preliminary ruling that found for the continuation of the count that Saturday.  I will never forget sitting on a park bench in D.C. and learning that the Supreme Court had intervened.  What did you 35 the jurisprudence of that Florida Supreme Court that ruled?  They also intervened against the state legislature with regard to those deadlines. 

BOIES:  Well, remember, there were two decisions.  One was the question on the deadlines.  And there, you had two different state statutes.  One said there was no discretion.  One says there was discretion. 

MATTHEWS:  Right. 

BOIES:  And so what the Florida Supreme Court did was, it picked the later decision, and that was a decision that the Florida Supreme Court had made two years previously in the 1998 election.  So this was not the first time that the Florida Supreme Court was articulating that proposition. 

MATTHEWS:  Do you think the Supreme Court was any less political than the U.S. Supreme Court in handling of that case of Gore vs. Bush? 

BOIES:  I think the Florida Supreme Court relied on precedent, that is, they had cases that went all the way back for 80 years that relied on the intent of the voter. 

And the United States Supreme Court did not rely on precedent.  Now, is that more political or less political?  I‘m not sure I‘m the right person to answer that.  I think there was less of a partisan nature in the Florida Supreme Court. 

MATTHEWS:  Well, some might disagree. 

When we come back, Republican election attorney Ben Ginsberg, he will probably disagree.  He will be with us to talk about the issues to look at for this election night coming up.  We‘re live at Democracy Plaza at Rockefeller Center at NBC World Headquarters in New York.

You‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SEN. JOHN KERRY (D-MA), PRESIDENTIAL CANDIDATE:  This president has taken a $5.6 trillion surplus and turned it into deficits as far as the eye can see. 

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  Our health care system is the envy of the world because we believe in making sure that the decisions are made by doctors and patients, not by officials in the nation‘s capital. 

(END VIDEO CLIP)

MATTHEWS:  Welcome back to HARDBALL, live from Democracy Plaza at Rockefeller Center at NBC World Headquarters. 

Knowing that the 2000 presidential election hinged on 36 days of legal wrangling and ultimately a Supreme Court decision, both campaigns are getting fully lawyered up for the 2004 election.  Two warriors from that epic election battle were attorney Ben Ginsberg, MSNBC political consultant now, a Republican election attorney who represented George W. Bush, and attorney David Boies, who represented Al Gore in that 2000 recount fight.  He‘s author of a new book, “Courting Justice.”

Let me ask you right now, gentlemen, the biggest fight, could it be these provisional ballots?  Let‘s start with Ben on the Republican side.

Is it the problem that now voters will be able to grab what is called a provisional ballot?  It‘s basically a protest ballot saying they‘ve been denied the right to vote. 

BEN GINSBERG, MSNBC CONTRIBUTOR:  Yes, anybody who goes in, if their name doesn‘t appear correctly on the registration rolls, will be given a provisional ballot.  That will be the easy part.  The tough part will be what happens in the days after the election, when the different counties and states figure whether those ballots should be counted or not, and you have to worry about there being more provisional ballots than the margin of victory in the days afterwards.

MATTHEWS:  David Boies, do you see a problem in this whole idea of having this fallback ballot? 

BOIES:  In having what, I‘m sorry? 

MATTHEWS:  Is there a problem by necessity in having a person with an alternate ballot at their disposal to argue from?  Instead of having a recount situation, we now have two kinds of ballots, the preliminary ballot, the actual ballot, and then this other thing called a provisional ballot? 

BOIES:  I think the provisional ballot is actually a good idea, because what it does is, it allows people about whom there may be some dispute at the time they arrive at the polls, to get a ballot, vote and then have it fixed out later.  The real problem, as Ben says, is, if there are a lot of provisional ballots and it‘s larger than the margin of victory, it could take days and maybe weeks to sort all out those problems. 

MATTHEWS:  Let‘s talk about Florida last time and how it might have been alleviated by the presence of these provisional ballots.  Had those people who were inaccurately placed on felons‘ lists, for example, by the governor‘s people or whoever, had they been given provisional ballots last time, would there have a subsequent vote count which would have given Al Gore the victory in Florida, Ben? 

(LAUGHTER) 

GINSBERG:  No, I don‘t think that would have been the result.  But there certainly would have been even more fun discussions for me and David and all our colleagues to discuss during the course of those 36 days.  It could have turned into 72 days. 

MATTHEWS:  But wasn‘t there a perception at the time that most of those people purged from the voting lists because of apparent felony convictions were Democrats?  And, therefore, had they been allowed to vote provisionally, wouldn‘t there have been a different result in Florida? 

GINSBERG:  Well, I don‘t think you can jump to that conclusion. 

MATTHEWS:  Let‘s try that as a speculation for the simple reason that it may well be true. 

GINSBERG:  Well, the thing to remember about a provisional ballot is that once it comes before the election officials, they have to determine whether that voter is qualified to vote or not. 

So there‘s no guarantee that people who didn‘t get to vote last time would get to vote with provisional ballots.  There would be a ballot that was there, so there could be more time taken to determine whether there were voters who were eligible to vote. 

MATTHEWS:  Let‘s talk about a very emotional issue with this country.  We‘re now at war.  We weren‘t at war in 2000.  And the people voting over in Iraq and in Afghanistan and other difficult spots in the Mideast are Americans who are voting at a time of war while they‘re fighting a war.  Will either party try to deny their votes‘ validity if those votes come in late a couple of days?

Ben, you‘re first. 

GINSBERG:  Well, I think that the way that the law will be interpreted and has been interpreted and the way that the Justice Department has brought some suits in some states is that there will have to be an adequate of time to count those votes. 

I mean, I think that David and his colleagues don‘t want to go through the problem they had last time in trying to disqualify military voters from coming in. 

MATTHEWS:  But, David, didn‘t the vice presidential candidate last time make it clear, Joe Lieberman, that he wanted all those ballots counted in the heat of that dispute? 

BOIES:  Absolutely. 

I don‘t think there‘s any dispute that you want to have all of the legitimate military ballots counted.  And you want to give them enough time to get back to the United States, so they can be counted.  Last election, there were a lot of other problems with some of the so-called military ballots, including things that were faxed in from places in the United States after the election. 

So just because it allegedly comes from somebody in the military doesn‘t necessarily make it a valid ballot.

MATTHEWS:  OK, you have said allegedly and one other word that suggests that you are suspicious.  Do you believe people are saying that they‘re in the military when they vote and are not? 

BOIES:  No, I don‘t think most people are, but I think there were certainly a lot of ballots in the election last time, like ballots faxed in, not sent in from a ship or a military base, not sent in from outside the United States, but faxed in from someplace in the United States.  It raised some issues.

MATTHEWS:  Oh, Really?  Gentlemen, do you both believe that such ballots should be counted, faxed ballots? 

GINSBERG:  Some states have actually allowed faxed ballots from people in war zones to be counted this time around. 

MATTHEWS:  I see. 

Well, it‘s a touchy issue because nobody wants to be on the side opposing service people getting their votes counted when they‘re fighting in a war to protect the right to vote. 

Anyway, thank you, David Boies, author of “Courting Justice,” a handsome new book, and Ben Ginsberg, who works with me all the time.

When we come back, we‘ll talk to Bush-Cheney adviser Bernard Kerik, the former police commissioner of New York.  And, by the way, he was commissioner during 9/11. 

We‘re here at Democracy Plaza outside Rockefeller Center, what a beautiful place here in New York City.  And if you‘re in New York, you should come down here and take part in this amazing celebration.  It really is a beautiful place, as you can see, a lot of education as well entertainment for your kids when they come here, and for you, of course.

You‘re watching HARDBALL on MSNBC.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL, as I said, live from Democracy Plaza, the new exhibit on this country‘s democracy in New York at Rockefeller Plaza.  You‘re watching it, a live picture of the famous skating rink, of course, which is below me.  And it is being transformed into an electoral map of the United States, so we can bring you unprecedented coverage of this election when America votes on Tuesday, November 2. 

We‘re joined right now by former New York Police Commissioner Bernard Kerik, who is now an unpaid adviser to the Bush-Cheney campaign. 

Mr. Commissioner, you‘re standing outside the famous Air Force One that was used from the days of John F. Kennedy to Ronald Reagan.  Let‘s talk about that.  We‘re talking about security, why the president has to travel on a secure plane in New York.  Why did you, a man of police work, become a man of politics? 

BERNARD KERIK, FORMER NEW YORK CITY POLICE COMMISSIONER:  Well, honestly, Chris, I guess because this election is probably the most important thing in my lifetime, the safety, security of my family, my kids, going forward. 

I lived through September 11.  I lost 23 people that did not in the NYPD.  I saw death and destruction beyond anything I would have ever comprehended.  And I went to Iraq and I understand the threat that‘s out there.  I don‘t want my kids and my family to ever live through another day like that as long as I live.  And I think that‘s why I‘m here, to talk about the president and his successes and what he‘s going to do for this country in the future. 

MATTHEWS:  The Democratic candidate for president and his supporters are saying that the decision to go to war with Iraq had nothing to do with what happened on 9/11.  What are your thoughts on that? 

KERIK:  Well, I think the president, the vice president, the entire administration has said that Saddam did not have anything to do with the attacks on the World Trade Center and the Pentagon.  But there was a direct connection, according to the 9/11 Commission, between Saddam and al Qaeda. 

Our enemy today is al Qaeda.  Our enemy today is Ansar al-Islam.  Our enemy are sick and demented people that are led people like Zarqawi in Iraq today, by bin Laden, who, basically, their motto is they want to see every American in this country dead.  We have to be proactive.  We have to be preemptive.  And that is what the president is doing. 

MATTHEWS:  Do you believe that the decision to go into Iraq was based upon hard knowledge of the security situation which would develop as of today?  In other words, are we safe in Iraq today?  Was it smart to put us into a place as it is today, as it has become? 

KERIK:  Honestly, Chris, I think we have to look at what‘s happened in the last three years, the successes we‘ve had, liberating Afghanistan, liberating Iraq. 

We have alliances now in Afghanistan, in Iraq, in Pakistan.  Libya has disarmed.  This is all a part of the big picture.  And the big picture is having alliances out there and relationships in the Middle East that we‘ve never had before to bring us closer to safety and security in this country.  And I think Iraq was a major part of that.  Saddam was the a man that had weapons of mass destruction.  He was a man that killed 300,000, 400,000 of his own people. 

He was a man that had an enormous hatred for this country.  And when you tie that all together with al Qaeda and the other elements out there that want to destroy us, I think it is important that we went into Iraq, went into Afghanistan, and we continue this battle going forward. 

MATTHEWS:  OK, thank you very much, former New York Police Commissioner Bernard Kerik, now with the Bush campaign.

He is standing, by the way, in front of one of the many great exhibits here at Democracy Plaza, the Air Force One of the days of Kennedy and Reagan. 

We‘re back with our panel right now.  Well, there‘s a fellow that is affected by 9/11.  He sounds like you, Ron. 

SILVER:  Well, yes, absolutely.  How can you not be affected by 9/11? 

MATTHEWS:  Well, ask the 50 percent of the country that look at it differently.  This country is deeply divided, Ron. 

SILVER:  Fifty percent of this country since 2000 has been ready to look at it a differently from that last election.  This country has been polarized for the last four years. 

MITCHELL:  And I think the counterargument which the Kerry people would make is that the policies of this president have made America more dangerous, that going into Iraq and alienating, further alienating the Muslim world has made the country more vulnerable. 

(CROSSTALK)

MITCHELL:  I‘m just laying out the positions. 

(CROSSTALK)

MATTHEWS:  Ron.

REAGAN:  You know, he mentioned sick and demented.  And, certainly, when you see somebody like Abu al-Zarqawi sawing somebody‘s head off, this man is obviously a psychopath. 

But to simply characterize everything that‘s going on in the Middle East, with Osama bin Laden, as sick dementia, minimizes the problem in a way.  This isn‘t just a few crazy people running around.  They have got an agenda and they know what they‘re doing.  These are some very clever people as well.  So to just call them sickos is wrong. 

MATTHEWS:  Well, the old Soviet system was, if you weren‘t right politically, they sent to you an asylum. 

REAGAN:  That‘s right. 

MATTHEWS:  There‘s a parallel.

Let‘s go to Ed.

ROLLINS:  The critical thing here is, whether you agree or disagree, we should have gone to war or not gone to war, we‘re in war.  And both sides today have said we have got to support our troops. 

And I think the critical question the country has to make is do you want a change, make a transition at this point in time, put a whole new team in there?  Certainly, some people do.  A lot of people don‘t.  And I think the security issue has been something that has been out there for a long, long time.  And where Democrats are not in a favorable position today is among a lot of married women, who traditionally have been a base of their party.  A lot of those women are very worried about national security and their kids. 

MITCHELL:  Well, interestingly, one of the interesting things that emerged in today‘s polling, in the Pew poll, for instance, is that, whereas George Bush had a big, big advantage over John Kerry of 21 points on the ability to handle the war on terror and protect the homeland after the Republican Convention, that has now narrowed to 48-41.  So Kerry is beginning to, I think through the debates, to make up a little bit of ground on that. 

MATTHEWS:  We‘re going to have to come back and talk about this.  We have a lot of time between now and election night. 

Thank you, Andrea Mitchell.  Thank you, Ron Reagan, Ron Silver and Ed Rollins.

Ron Reagan and Ron Silver will be with us for our special edition of HARDBALL coming up at 9:00.  “AFTER HOURS,” by the way, tonight at 10:00 Eastern.  They‘re going to come on at 10:00.

And we want to once again invite you and your family to come down to this amazing celebration.  That‘s if you live reasonably close to New York.  It‘s here in New York Central at the Rockefeller Plaza.  What a beautiful part of New York to start with.  And this exhibit makes it all the better.  We‘ll be celebrating this amazing throughout the days between now and Election Day and especially on election night. 

We‘ll be right back with a special edition of HARDBALL at 9:00.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

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