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Republican Lawyer Outlines Process for Counting Absentee Ballots

Aired November 12, 2000 - 4:30 p.m. ET



JIM SMITH, FLORIDA REPUBLICAN PARTY: ... all votes properly cast. But it also has a history of pursuing and prosecuting those responsible for ballots improperly solicited or cast.

The Florida law is simple, straight forward and reason-based. Let me go over some of the controlling rules.

First, overseas ballots must be either postmarked by November 7th, signed and dated no later than November 7th. Overseas ballots may not be completed after November 7th. With respect to this election, the time to complete an absentee ballot ended on the day of the election. Any overseas ballot completed after November 7th is invalid, invalid, and cannot be counted.

Next, for voters mailing overseas absentee ballots, only those ballots mailed with an APO, Army post office, FPO, fleet post office, or foreign post mark shall considered valid. Ballots that are not mailed with these postmarks are invalid and cannot be counted.

Third, absentee ballots must be completed by the voter, not by another individual unless the voter is blind, disabled or unable to read or write.

Fourth, absentee ballots must be returned in mailing envelopes provided with the ballot.

Fifth, the mailing envelope must bear a certification by the voter that he or she is a qualified voter and will not submit more than one ballot.

Sixth, the mailing envelope must also bear the certification, including the name and address of a witness, affirming that the voter signed the certification i his or her presence.

Seventh, a person may not witness more than five ballots in an election unless he or she is legally authorized to administer oaths or is an absentee ballot coordinator designated before the election.,

Eighth, foreign overseas ballots must be received by the county election supervisor no later than November 17th, 2000 -- next Friday. Ballots are, of course, subject to invalidation if they were knowingly or willfully executed in defiance of the rules that I just cited. The integrity of the system and the election rests on a strict and unforgiving enforcement of the criminal provisions of our election laws. Accordingly, it is a felony to perpetrate, attempt or aid in any fraud of any vote cast or attempted, such as backdating an absentee ballot.

It is a felony to falsely swear or procure to falsely swear to information provided on an absentee ballot, such as backdating a ballot.

It is a felony to accept or give any benefits in exchange for voting, or refraining from voting, for or against any candidate.

It is a felony to accept or give any benefits in exchange for distributing, collecting, processing or delivering absentee ballots.

Finally, it is a crime for anymore to witness more than five absentee ballots in an election, other than the absentee ballot coordinators appointed by law, notaries or others authorized to administer oaths.

Fair voting counts. Florida's absentee ballot system has been constructed to ensure free and fair votes. If people seek to abuse this system, they do a great disservice to all of us. This state has never countenanced such abuses. This is an important election. I sincerely hope that every qualified Florida voter took the opportunity to cast their absentee overseas ballot, and they have had it properly mailed so it can be counted come this Friday.


SMITH: I'm here, really, at the request of the Republican Party of Florida to try to in advance clear up what has, I think we can all agree in many respects, has been a very confusing election cycle.

There have been news reports that there has been some encouragement of some individuals overseas who may not have not cast their ballot, indicated that even though the November 7th date has passed they could still do that. And we want to clear up that that is really not possible. That is not in accordance with the election laws in Florida. And if that ballot was not, you know, signed and witnessed by November 7th, it is an invalid vote.


SMITH: I can't -- I certainly cannot point to any case of that. Again, there has been a great deal of confusion. This is to, in advance, I think, try to head off what possibly could be some situations that would not be a legal ballot.


SMITH: Well, I think -- yes, ma'am.


SMITH: There has -- there's been -- you know, the networks were certainly confused on election night. They -- OK, I think...


SMITH: I think any reasonable person would have to agree, starting with the election evening, there has been a lot of confusion. There are perhaps in today's world with instant news all over the world people in other parts of the world sitting there with Florida absentee overseas ballots confused as to whether it is too late to cast that ballot or not. And we're trying to make it clear that it is in fact too late to cast that ballot now.

Yes, sir.


SMITH: I'm sorry?


SMITH: In all likelihood, if the ballot was not witnessed and cast on November 7th, it would be cast aside.


SMITH: I think not likely, because the ballot was provided, you know, by the supervisors with directions about how they are to be completed. We don't know really how many of those will be received by the end of the workday next Friday.

Four years ago, I think there were 2,400 absentee ballots -- overseas absentee ballots, and obviously that will not require a great deal to count. But we don't know for this election cycle how many may be cast.

QUESTION: (OFF-MIKE) why can't the state go to court and ask for an extension beyond that? (OFF-MIKE)

SMITH: Well, I think that, maybe again to avoid confusion, I shouldn't try to answer that question. I think that's up to the canvassing board and the legal action that's been taken by some counties I have heard and let that sort itself out. I don't think right now today I can answer that.

QUESTION: Do you know who has the authority to make that decision?

SMITH: I'm sorry?

QUESTION: Do you know who has the legal authority to make that decision, the secretary of state?

SMITH: I think the canvassing board, you know, has probably the inherent authority to make that call, and I obviously can't speak for them.

Yes, sir?

QUESTION: (OFF-MIKE) counting votes (OFF-MIKE)

SMITH: I don't believe in Florida that has ever happened.


SMITH: Right, well, this is an unprecedented situation. We have certainly had, you know, recounts in Florida. We've never had recounts of recounts before and not recounts of machine ballots and that kind of thing. So this is an unprecedented situation. And again, I can't speak for what the canvassing board may do next week. That wouldn't be proper.


QUESTION: In terms of the independence of the county (OFF-MIKE) or do you feel that the state could (OFF-MIKE)

SMITH: Well, I -- you know, each county, through their canvassing board, you know, can make whatever decision they want to make. I don't know that that binds in any way the state canvassing board. I think they have a great deal of leeway to do what they deem is in the state interest to, you know, certify the vote.


SMITH: Again, I just -- I don't want to -- I don't know that I should be trying to guess what the canvassing board may do. I mean, I think that they probably have the authority to take the recount as the official count. But that's up to them.


SMITH: Thank you.


SMITH: They -- yes, the overseas absentee ballots go back to each supervisor of elections. So they'll go to all 67 counties.


SMITH: No, and then they'll report in to Tallahassee.

ANDRIA HALL, CNN ANCHOR: You just finished listening to a press conference from Jim Smith with the Florida Republican Party, saying he wanted to try to clarify and head off any potential problems involving illegitimate absentee ballots that may come up. Of course you know those have to be counted and voted by the 17th of November. He confirmed that mailing envelopes must be certified by voters with a name and address on it, witness.

Let go back and listen. He's answering more questions. QUESTION: ... these ballots then on Friday, they won't be certified by Tuesday?

HALL: Obviously a lot of questions from a lot of reporters there. Again, Jim Smith trying to clarify not something that has happened but something that he wants to makes sure does not happen.

Let's take it to Deborah Feyerick, who's standing by live now in Tallahassee.

Deborah, what do you make of those comments?

DEBORAH FEYERICK, CNN CORRESPONDENT: Well, Jim Smith is doing exactly what you had mentioned, and that is he's trying to clarify any confusion about the law. And he clearly set forth several of the rules, including that these ballots, absentee ballots, need to be postmarked by November 7th. They must have a foreign postmark, and they also must be witnessed by someone, a certified witness who can oversee no more than five ballots. So if you have five friends, you can only witness for those five.

Now what he also set forth, and this was kind of an interesting point, is that he used the word "fraud" and "felony" several times. Unsure why he did that, but he said it is a felony to fill out these absentee ballots after the November 7th deadline.

It is also a felony to try to tamper with your witness. So if you want to try to convince a friend that in fact it is OK for you to fill in a ballot after Election Day, well that could constitute fraud and is a felony.

Also, we also want to bring you up to date on a few other things that have been happening here today. The Democrats, within the next our or so, we are told, will file their own legal brief in response to the Bush lawsuit. And that lawsuit is both a motion for a temporary restraining order and also for a preliminary injunction to stop the hand count. And again, that is an answer to the lawsuit, simply a response, that will be filed with the federal judge, Judge Donald Middlebrooks. He is going to hear this lawsuit tomorrow morning, and then he is going to make his decision.

There are several things that he could do. He could either dismiss this suit out of hand, he could basically say, OK, I am granting you an injunction, or he could say, I've got your information, I've heard both sides and I'm going to wait and see how this all plays out. So that is another development.

But again, you just heard from Jim Smith, who is a former attorney general, laying out some of the ground rules for the absentee ballots. Whether that means there are going to be further challenges, well, that is something that of course we are going to have to keep an eye on. Of course, a lot is at stake with the absentee ballots, because those could determine who wins this election -- Andria.

HALL: Deborah, correct me if I'm wrong. It just seems to me that the whole premise of this press conference was a little bit from left field because he was talking about something that hasn't occurred but he's just afraid that it might occur. And he was claiming that there have been some news reports indicating that there were some people encouraging those overseas to go ahead and cast their vote, even though November 7th was almost a week ago.

FEYERICK: We're trying to track down the source of those news reports. We don't know specifically what he was referring to, whether, in fact, it was in the national paper or in one of the local papers.

Again, you know, this is such a war of words right now being waged as they try to get each different votes. They're also really trying to make a very strong case and in a way lay the turf, lay the terrain, as to what possibly could maybe happen.

So perhaps that is why he had this press conference. It sort of, as you said, came out of nowhere. We were told that someone from the Republican Party was going to be speaking at 4:00, and Jim Smith made it clear that it was the Florida Republican Party and not the national Republicans.

Deborah Feyerick, live in Tallahassee, thanks for sorting this one out for us as well.

We, of course, will have at the top of the hour more news and more reaction from Jim Smith's comments down there in Tallahassee.

Our John King will be standing by live with recap from -- recap of that and also with comments from the Gore campaign. And that will be at 5:00, with Gene Randall, right here in Atlanta.

For now, I'm Andria Hall at the CNN Center. "EARTH MATTERS" is in progress.



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