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Judge Charles Burton Testifies at Hearing on Vote-Counting Procedures

Aired November 22, 2000 - 10:28 a.m. ET


LEON HARRIS, CNN ANCHOR: There has been lots of action in Florida this morning, both inside and outside the courtrooms.

Let's go now to CNN's John Zarrella, standing by this morning in West Palm Beach -- John.

JOHN ZARRELLA, CNN CORRESPONDENT: Good morning, Leon. Well, inside the courtroom here behind me, Judge Jorge Labarga hearing arguments from the Democratic Party as to why dimpled ballots need to be counted. The judge, a week ago, said that the canvassing board could count them. Left it up to them; they haven't counted them. The Democrats say that it could mean significant changes in the numbers if they are allowed to count those dimpled chads.

On the witness stand right now is Judge Charles Burton -- he, of course, the chairman of the canvassing board, testifying.

JUDGE CHARLES BURTON, PALM BEACH COUNTY CANVASSING BOARD: Partially punched, in on at least two corners, may be counted as a vote. In accordance of the Honorable Judge Labarga's ruling, this policy does not exclude any ballot bearing only corner punched or an indentation -- dimple. Such a ballot may be counted as a vote if there is clear evidence of a voter's intent to cast a vote, as determined by the discretion of the canvassing board. And that is a policy we adopted prior to beginning this full manual recount.

JUDGE JORGE LABARGA, CIRCUIT COURT JUDGE: Is that the policy that the board, in fact, has applied in evaluating those ballots that the canvassing board itself has to look at?

BURTON: I believe so.

LABARGA: Is there a per se rule that the board is following that excludes certain ballots?

BURTON: I need to give a little explanation, if I might.

LABARGA: Please.

BURTON: One of the things we have seen in -- the ballots we have looked at are of such wide variety of dents and dings and marks. I mean, to be honest with you, some of us leave scratching our heads: How did this even happen? We have attempted to define what the clear intent of the voter is. You know, we hold up a voting card. I don't know if it's a man or a woman. I don't know if it's a young person or an elderly person. I have a card. I don't know anything about the person that used this card.

And we have attempted, at the very least, to be consistent, in that if we take a punch card in the presidential column is column one -- and I don't even know if they can offer this, but, I mean, I made some examples to show the judge, if he's interested. But assuming there's an indentation in column one with the presidential election, in every other vote cast, whether it be for Congress or sheriff or whatever the other races are clearly punched out, I mean, I think the argument implied that we are just excluding that.

We're looking at card. We're looking at the card in total to see if we can determine the intent of the voter. If the only mark is on that first column and every other hole is punched out, our interpretation of that has been that that does not show the clear intent of the voter. If on cards where a couple or two or three and four, and we don't have any set numbers, also showing indentations or not quite full punches, then we've taken the position that that does show the intent of the voter, in that this person, obviously, had difficulty punching out.

There's been cases where, for example, I know -- as an example, one absentee ballot that came back; this person had made a big check mark in every box he intended to vote for and then it looked like he used a ballpoint -- he, I said he -- I don't know who it was -- used a ballpoint pen to punch out the chad. Well, some of the chads were punched out in the presidential column...


BURTON: The two-corner chad policy, just so everyone understand, many times you can punch a card, the chad will be hanging, but otherwise it's perfect. There's no indentation in the chad or it's perfectly flat. So when we see a chad like that, we can't tell if it was punched or not punched or touched, and so that's the only time that we are really looking for two corners.

I mean, we've tried to take the position -- and I will concede, in some respects, it could be viewed as being more restrictive in that we went from a one corner to a two corner, but that was in an effort to stay consistent with what Broward County was doing.

LABARGA: Let me ask you this, if I could.


LABARGA: What procedure does the board follow? Let's say you come upon a card that needs to be looked at by the three of you. How do you work that? Do you have discussions or...

BURTON: We are set up at a table with Ms. LePore, myself, Commissioner Roberts. Generally, there is a lawyer from the Republican side and a lawyer from the Democrat side. And Ms. LePore will look at the card, you know, 5. And I'll look at the card; I think it's an undervote. And Commissioner Roberts will look at the card and make a -- if we have a majority, that's pretty much how it goes. We do provide the lawyers with an opportunity to object.

Some are questionable. Some are close. Some we need to look at. Some we need to see what's going on. I mean, in all candor, determining intent from a ballot card is impossible.

Would I like for Judge Labarga to tell us, "Canvassing board, if there is an indentation, you count it. Or if there's only one, you don't count it." Absolutely. And we would follow whatever Your Honor says. But we're trying to be at least consistent in how we're reviewing these.

LABARGA: Going back to your procedure. After the three of you look at it, and you consider the objections raised by the representatives of the parties present, does the board then take a majority vote type...

BURTON: Right. And we don't entertain a whole lot of discussion. I mean, some that are clearly questionable or Commissioner Roberts may say, "Gee, take another look at this," and, "Do you see that?" But, generally, if it's 2-1, it counts. If either party objects, we've been separating those ballots so, you know, we can easily retrieve them.

LABARGA: Can you estimate how many ballots you've personally looked at since the manual recount began?

BURTON: I don't know how many. I will say that we have probably looked at about 30 percent of the questionable ballots, and those are the ballots that are being set aside by the observers, either the Democrat or the Republican observer who calls a ballot questionable, those are the ones that we're reviewing.

LABARGA: Would it be in the thousands?

BURTON: I'm sure it would. Several thousands.

LABARGA: Do a great majority of those ballots that the canvassing board itself examines have dimples or indentations of some sort on them?


LABARGA: Based upon having your looking at thousands of ballots, many of which if not most of which have indentations, is it clear to you that every indentation on a ballot is an indication of a voter's intent?



BURTON: No. LABARGA: Would you describe the presence of an indentation on a card, standing by itself, as ambiguous?

BURTON: Yes and no. That's difficult to answer. There is such a variety of indentations. There are some that barely -- don't even crease the paper. I mean, it's just so remote. And the lawyer for either side is, like, you know, "I object, there's something there." I don't know if that's a vote. I don't know what the person did. It's a ballot card. And unless we see consistently throughout that ballot card some pattern that that's how this person voted, I don't know how else we could determine that's an intent.

And my concern is, if the law is any indication should be done in favor of the voter, that's fine, but I don't know where that law is. And does it result in excluding? Perhaps.

LABARGA: Are there cards -- ballots where the indentation appear in more than one place? For example, you may have indentation in the slot that the person may have intended to vote for either Bush or Gore, and there may be indentations elsewhere in the card.

BURTON: Yes. For example, we have had people -- and I'm not quite sure how they do this either. But it's like a pinhole punch through the number, as opposed to the chad. And we have seen where they consistently voted that way for every race. We have included those, even though the chad is fully intact.

The real argument, Judge, to be honest with you, is over an impression. Are we wrong in excluding one impression as a vote? I don't know the answer.

I heard Mr. Barnhart say, you know, the excuse that somebody touched it and then pulled it back is not really a valid excuse. Believe it or not though, there are many, many columns of people who did not apparently like either candidate and decide to vote for president. So I don't know the intent from a ballot card.

ZARRELLA: Fascinating insights from Judge Charles Burton as to the tremendous difficulty they are having in the canvassing board in discerning voter intent on many of the ballot cards. As the judge said, they're trying to be consistent. So far they have looked at 30 percent of the questionable ballots. When he was asked, well, how many does that mean? He says there are thousands of them.

Very, very difficult for them to, again, determine the intent of voters based on some of those cards. The Democrats have been arguing, you have to enfranchise the voter. Any reasonable mark should be counted; discernible indentations must be counted, the Democratic Party is saying -- but the judge is on the stand, has been saying, it's not all that easy. Very, very difficult.

So, some real, almost indictments of the ballot cards in the system for the way it is working. They just don't know what the voter was trying to do on some of those cards, is what Charles Burton has been saying; and they have been saying that right along throughout the long process for the last week and a half of counting ballots a couple of miles away from here at the emergency operations center.

Back to you in Atlanta -- Leon, Kyra.

HARRIS: All right, thanks John; we'll get back to you in a bit.



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