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Election 2000: Former Florida Election Official David Cardwell Discusses Legal Battles Over Manual Recounts

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

LOU WATERS, CNN ANCHOR: Yes, the story continues of the Florida recount. The legal maneuvering continues on several fronts today. The Gore campaign has asked a state court judge in Tallahassee to allow hand-counted ballots to be included in the final tally. Florida's secretary of state rejects that proposal from four counties. The judge says he won't have a decision until late today at the earliest.

All the while, 12 federal appeals court judges here in Atlanta will consider whether the hand recount issue is a constitutional one and thus should be heard at the federal level. Lawyers for the Bush campaign want the court to intervene and stop all hand counts, which they say violate voters' rights to due process and equal protection, 14th Amendment issues. The Gore camp argues this is not a federal issue. Both sides have until 7:00 tomorrow morning to respond to the other's charges.

In Broward County, Florida, the hand recount is under way anyway. This after the canvassing board there decided yesterday they did have the authority to move ahead with it despite what the secretary of state was saying.

NATALIE ALLEN, CNN ANCHOR: So the question of hand counts right now is before three courts, and we want to talk with someone who can help us sort through all of this.

Our analyst David Cardwell is a former election official in Florida. He joins us from West Palm Beach.

Thank you again for being with us, Mr. Cardwell.

DAVID CARDWELL, FORMER FLORIDA ELECTION OFFICIAL: Glad to be with you.

ALLEN: Let's talk about this hearing that we had here on CNN TODAY before a state circuit court. You had the Gore team saying that the secretary of state did not follow the judge's order in saying she's not going to count any more hand counts in this election. And you had the Bush team saying that she was following the law where the Gore team said she was in violation of the judge's order. What do you make of it?

CARDWELL: Well, the question really comes down to, how much discretion does the secretary of state have? This is something new, that we've not had an instance before with any state -- at the state level with recounts. Those have always been a local issue, typically dealing with local offices.

So this -- the issue that's being raised about the discretion of the secretary of state, the standards to be applied, this is all new. There's no real precedent for it in the state. So we're really arguing on two different approaches with very little precedent to go by.

ALLEN: So what standard is the Gore campaign maintaining is correct, and what standard is the Bush campaign maintaining?

CARDWELL: Well, it basically comes down to a question of whether or not the legislature, when they passed the manual recount statute, intended a manual recount to only be done when there was evidence that the voting tabulation equipment or the software for that equipment had malfunctioned, resulting in an error in the count. The statute actually says, "error in the tabulation." The secretary of state interpreted that to mean an error in the tabulation equipment.

So the Bush campaign is siding with the secretary's interpretation whereas the Gore campaign is saying, well, if the legislature had intended it to just apply to equipment and not to any error that was found by the canvassing board, the legislature could have very easily inserted the word "equipment," but they didn't do so.

ALLEN: And do you as an expert in Florida law have your own thoughts on what the legislature intended there?

CARDWELL: Well, I can tell you that the practice and custom at many of the county canvassing boards that I've been involved in was that if they determined for any reason that they felt that the results of the sample of the three precincts on the manual recount did not directly correlate to the machine counts, then they'd go ahead and do a full manual recount. They did not feel that they were bound by a limitation to it being just the equipment.

However, I understand that some members of the legislature who were involved in the drafting of the statute are now saying that they only intended it to apply to equipment, not just to any error that the canvassing board thought had occurred.

ALLEN: All right, so we have that decision now in the hands of a judge who says, at the earliest, later today he will resolve that one. We also have the 11th Circuit Court of Appeals here in Atlanta looking at the Bush appeal to whether this hand recount is something that the federal court can undertake. What are your thoughts on this argument?

CARDWELL: Well, I would expect that there's possibility of a court order out of the Tallahassee Circuit Court tomorrow. I really doubt they will have anything later today. I think the judge is going to want to be very careful with any order he enters. He also knows that whatever order he may enter is going to be appealed by someone.

I also expect that the 11th Circuit, since they're not even getting a final briefing from the various parties until 7:00 a.m. tomorrow, that they will likely take all day tomorrow and perhaps through the weekend before they may render any decision. That court does not have to actually meet in the sense of having oral argument. It can do so. Its within its discretion. Or they could render a decision just based on the documents that have been filed with it.

So I would anticipate, if there's any court orders it will be tomorrow, but more likely on Monday.

ALLEN: And finally, David, what about that issue about the butterfly ballot in Palm Beach County? Is that an issue that the courts are still going to look at?

CARDWELL: Well, that issue seems to have -- I won't say gone away, but it certainly isn't being mentioned as often. The legality of the ballot itself, while still present in some of the pleadings, does not to be the point of emphasis, though the fact that the butterfly ballot was used may be an explanation of why there were so many overvotes in Palm Beach County. And that would go to the question of whether or not the manual recount would help to determine the voters' intent when they may have accidentally, or in error, punched two holes instead of just one.

ALLEN: David Cardwell, thanks so much. We'll be talking to you again from Palm Beach County.

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