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Judge Charles Burton Testifies on Palm Beach County Canvassing Board's Dimpled Ballot Selection Process

Aired November 22, 2000 - 10:49 a.m. ET


LEON HARRIS, CNN ANCHOR: The hearing under way right now in Palm Beach county. This is the second of three scheduled hearings. And we've been listening off and on this morning to Judge Burton. You see him there. He is now testifying before Judge Labarga and he is explaining how it is that the canvassing board has been examining these ballots with dimples in them.


QUESTION: ... process. You were trying to liken yourselves to Broward County?

JUDGE CHARLES BURTON, PALM BEACH COUNTY CANVASSING BOARD: We felt that if there's going to be any, I guess, public confidence in this process that we ought to be consistent with what another county was doing, yes.

QUESTION: And that was after the directive from Judge Labarga over not utilizing the per se rule that had been adopted in 1990.

BURTON: Yes, sir.

QUESTION: And you recognize, as your evaluating it, as the chairman of the canvassing board, that the 1990 rule was a prohibited per se rule?

BURTON: Yes, sir. It certainly is.

QUESTION: Now, you became aware at some point, perhaps as early as November 18th, that Broward County was utilizing the Judge Labarga rule by including indentations, perforations, partial punches, one or more corners?

BURTON: We became aware, and I don't recall when, but, yes, we became aware that Broward was considering those. My main problem was we don't know to what extent they were considering those and that's where, you know -- I don't know whether they're taking the same approach that one indentation shows a voter's intent or they require many. I mean, I know they are considering them.

QUESTION: And you certainly have heard before today the references to the Judge Miller hearing where he directed the canvassing board to count pregnant chads and, quote, "all this other stuff that's support to show the totality of the ballot," end quote.


QUESTION: So that was brought to your attention certainly before today?

BURTON: I had heard that, yes.

QUESTION: Had you seen the transcript before?

BURTON: No, sir, I have not.

QUESTION: Do you need to look at the transcript to help confirm, in fact, that that what's the Broward County judge said?

BURTON: Mr. Cuney (ph), I've known you long enough that if you say it, I have no doubt that it's true.

QUESTION: Did the canvassing board, when you became aware of this judicial-stated application of the rule, get together to decide whether in fact the Palm Beach County canvassing board was properly or correctly applying Judge LaBarga's standard?

BURTON: No. We believe we were.

QUESTION: Was there any discussion about it: "Gee, are we now consistent or inconsistent with Broward County?"

BURTON: I don't know that there was any discussion. I certainly had the thought that they were kind of retreating from a position that we had sought to join them in to be consistent.

QUESTION: And that retreating was in the form of, as you understood it, reviewing ballot cards and determining that votes were cast under circumstances that Palm Beach County would conclude otherwise?

BURTON: Possibly. Because as I indicated, I don't know how they're interpreting an indentation. I don't know if they're applying: "Well, if it's got one dimple, we're counting it," or they're looking at the whole card the same as we are. I'm not sure of that.

QUESTION: Now when you -- you've mentioned a couple of times, and I just want to make sure that we understand it -- that you're looking for a consistent pattern of impression when you don't have two corners separated from the card. Is that right?

BURTON: Correct.

QUESTION: Are you looking for that same consistent pattern of impression when you have one corner separated from the card?

BURTON: I would say that we're trying to look at the card to see if there is any consistency with the card. In other words, if it's a one-corner chad punched out and the rest of the card is all punched out, no, we're not giving it much thought.

We're trying to see why this person seemed to have a problem punching out a card. You know, I have a machine with me. It's fairly simple to punch through. So we're trying to figure out why this person had a problem.

And if they consistently have the problem, we're acknowledging that shows intent. If it happened once, and the rest of the time everything's punched out, we've made a determination that doesn't show intent. I don't know if that's right or wrong. I'm just saying that's how we've been doing it.

QUESTION: Is it the same with regard to what was initially called the sunshine rule: If light shines around the perforations, meaning the perforations have been perforated somewhat but not completely, that you would look for a consistent pattern throughout the card before you would utilize that as a vote?

BURTON: I wasn't a big fan of the sunshine rule, because I felt the sunshine rule that some of the other board members were doing -- and that was during the small recount -- was not the procedure we had agreed to do. And then when I found we were doing it I basically said, Wait a minute, I think we're violating the rule we followed.

But I would say yes. I mean, we were looking for light coming through.

QUESTION: And you -- by the way, when you say "violated the procedure we had agreed to," that was, you thought the sunshine rule was in violation of the 1990 per se standard.

BURTON: Right, the one I think Judge Gross (ph) prepared in, right, 1990.

QUESTION: Now you do agree, Judge Burton, that when you look at a card -- and you have a sample card that I think you -- you created us some samples -- when you look at a brand new card and no light shines through, there are no perforations, no corners are loose...

BURTON: Correct.

QUESTION: ... you can shake the card, run it around, jump on it, and essentially it remains a flat card. Is that right?

BURTON: I don't know about jumping on it, but, yes, it would remain a flat card if you shake it.

QUESTION: Certainly not with (inaudible).

BURTON: Right.

QUESTION: And if you turn the card over, a new card, you don't see any dimples, impressions, or perforations?

BURTON: Correct. QUESTION: And you understand that when the card is given to a voter at the precinct place, it is what I would describe as a virgin card, meaning, a card like this with no holes...

BURTON: Correct.

QUESTION: ... no punches, no indentations, no dimples.

BURTON: Yes, sir.

QUESTION: And you understand that it's the voter who then handles the card by either putting into the machine or deciding some other way to punch the holes in it. Is that right?

BURTON: Yes, sir. Other than absentee ballots, yes, sir.

QUESTION: Well, absentee ballots, they don't use a machine, but they have a little stylus that looks like a circular paper clip to actually make the punch holes.

BURTON: Correct.

QUESTION: Can I see some of the sample ballots you've prepared?

BURTON: Sure, if I can -- what I've done is try to create impressions versus full punches, and some of the different things we've been seeing.

BURTON: I mean, they're just different examples of what may be -- by the way, I didn't punch (AUDIO GAP) any particular person there when I punched them.

QUESTION: At least you staggered them.

UNKNOWN: Your Honor, just so that the record of these proceedings will be complete, I would like to make certain that a blank card and any other samples that Your Honor is looking at be made a part of this record.


UNKNOWN: And I can hand once last blank card to the...

QUESTION: You don't want these back do you?

BURTON: I'm sorry?

QUESTION: You don't want these back do you?

BURTON: No, I don't want to see them, no.

QUESTION: Do you by any chance have any extra blanks with you?

BURTON: I could get you a blank. I have some in the case with the voting machines.

QUESTION: This is my last one.

BURTON: No problem, I'll get one out before I leave.

QUESTION: Thanks, Judge.

QUESTION: I have one here where it has like check marks with a pen.

BURTON: I was trying to recreate that one absentee ballot that although the chad wasn't punched, we included that as a vote because of the totality of the card showed the intent of the voter.

QUESTION: Mr. Clerk, if you would mark these instead of a composite, I want an exhibit number on each one. There's four of them. OK?

CLERK: The court's exhibits?

QUESTION: Let's make them court's exhibits; I asked for them.

UNKNOWN: Do we include in that the blank one that Judge Burton will get when he goes to his box?

QUESTION: That will be number five, OK? Those will be one through four, OK?

QUESTION: Now, let me get back to this consistency that we were talking about. Now you -- when you don't have a, as I understand it, when you don't have a fully-punched chad, you try to determine if there is a consistent pattern of the voter doing the same thing.

BURTON: Yes, sir.

QUESTION: Let's focus on the first column of the card, the ballot card.

BURTON: Yes, sir.

QUESTION: The first column is only presidential votes, right?

BURTON: Correct, positions three through 13, excluding 12, are the presidential punches.

QUESTION: And even though the first column goes down to 26, there's nothing between 13 and 26 that would be a candidate?

BURTON: This one goes down to 19; I don't know if that's..

QUESTION: Nineteen.

BURTON: Whatever it is, yes.

QUESTION: And the next race, which is for U.S. Senate, is the next column?

BURTON: I believe so. QUESTION: When you looked at the presidential race, whether you're looking at the whole card or just the first column, did you see cards that had multiple dimples in the first column?

BURTON: Yes, sir.

QUESTION: At various holes, three, five, seven, nine?

BURTON: We've had all kinds of combinations, yes, sir.


And what was your mechanism for analyzing those, when you had multiple dimples just in the first column?

BURTON: You're talking about multiple dimples versus multiple punches?

QUESTION: Let's start with multiple dimples first.


QUESTION: I think multiple punches is a lot easier.

BURTON: I think we were concluding because we could not determine because of the multiple impressions what the voter's intent was. None of them was clearly punched, so therefore we have been concluding those were undervotes, I believe, and not a vote for anybody.


And if there's multiple punches, meaning the chad is fully punched through in the first column, you determine that as a multiple vote, and therefore it's not counted for either candidate?

BURTON: Right. That's an overvote. And I think we saw one card had about seven punches.

QUESTION: And others six, five, four?

BURTON: They couldn't decide.

QUESTION: And there were a lot that had two punches?

BURTON: A lot of two punches, yes.

QUESTION: Five and six?

BURTON: Really all combinations, yes, sir.

QUESTION: And then if you came across a card that had just one dimple or one impression in column one? Do I understand that you would look through the remainder of the card to determine if there were any other impressions on the card?

BURTON: Yes, sir.

QUESTION: And if there were no other impressions?

BURTON: We would be calling that an undervote.

QUESTION: And that's because you'd look to see if that same soft punch or indentation shows up in any of the other columns?

BURTON: That's true. And I think the basis for that, quite honestly, is the board's position that we don't know what the intent was and we don't know if they touched it and decided "I don't want to vote for anybody." We felt we couldn't determine their intent.


So on this point, if I could just make sure that I understand the options?


QUESTION: If in column one there are multiple indentations, the board says, "We don't know the voter's intent. We're counting it as an undervote."

BURTON: Correct.

QUESTION: If in column one there's only one indentation, but no other indentations on the card, the canvassing board says, "We can't tell the voter's intent. We're not counting this as a vote"?

BURTON: Correct.

QUESTION: And it's only in a situation with indentations that you would see, indentations in other columns, that the canvassing board would count a column one indentation as a vote?

BURTON: I believe that's correct. Yes, sir.

QUESTION: Would it matter in the other columns if the indentations were actually for a candidate -- that there was a candidate hole there?

BURTON: At some points, we have gone through to determine if, in fact, those were actual votes for candidates, that that number that was punched actually existed, yes. I think we just did that last night when we had a punch of pinholes. It looked like they took like a thumb tack and stuck them through the numbers, and we were making sure that those were actually candidates.

QUESTION: OK. So on this point, then if you saw an indentation in column one, you saw indentations in later columns, before you'd count it as a vote, the canvassing board would make sure that the other indentations show up in a candidate's square?

BURTON: I don't want to say every single time, but I believe we are trying to do that, yes. LABARGA: I don't mean to rush you.

QUESTION: I understand.

LABARGA: This is obviously important. But I would like to get Judge Burton back over to the operations center so we can get the votes counted, keeping in mind the deadline.

QUESTION: Yes, Judge, I do understand.

BURTON: I don't mind the break, Judge, by the way, just so you know.


BURTON: It's only been 14 days, so I don't mind the break.

QUESTION: I'll move as quickly as I can, Judge.

LABARGA: How much longer do you anticipate?

HARRIS: We are watching and listening to a hearing under way right now in Palm Beach County. This hearing to determine whether or not those so-called dimpled ballots can be counted and added to any certified vote total. The test -- you're hearing testimony right now from a judge, Judge Burton, who is the chair of the Palm Beach County Canvassing Board. He's actually now being questioned, the judge actually trading places here. He's been describing the process that the canvassing board has been going through in determining voter intent, trying to figure out exactly what each voter was trying to do with some of these contested ballots, ballots where the choice for the presidency had not been punched completely through the ballot. And he's been, at length, explaining the process behind the thinking of the canvassing board.


QUESTION: ... decision to not count a vote, based on the two- corner rule. Have you seen that transcript excerpt before?

BURTON: The one that was in your motion?


BURTON: Yes, I did see that.

QUESTION: Do you need to look at a copy of that?

BURTON: No, I mean, I'm generally familiar with it.

QUESTION: OK. In that discussion, November 17, the canvassing board says, and you're speaking on behalf of the canvassing board, that you say, quote, "Remember, we're operating under a two-corner rule similar to Broward", end quote, is that right?

BURTON: OK. QUESTION: And Superintendent LePore says, a two-corner rule. And that was a fairly standard rule that you were applying, at that time?

BURTON: That is a rule that we were applying, and still applying, when a chad is punched but there's really no mark, but it's out. And the question is, is it out two corners, yes.

QUESTION: And that's consistent with the standard you continue to apply through today, the two-corner rule?


QUESTION: It's clearly a vote if there are two corners out?


QUESTION: And if there are less than two corners out, then you have to go through some analysis?


QUESTION: And that analysis requires that you look at the rest of the card to see if the voters have done that same thing before?

BURTON: That's true. QUESTION: You understand that when a voter -- strike that -- do you presume, as a canvassing board, that any marks on the card are made by the voter?

BURTON: I don't know that we've ever thought about it. I think that's certainly more true with respect to a card that was cast at some election office versus an absentee ballot, yes.

QUESTION: Let's put absentees to the side.


QUESTION: So markings that would be made with the security and regularity of ballot cards are made by the voter?

BURTON: Yes, and I also need to interject that one of the things the board is assuming is that voters have followed the instructions not only in sample ballots, but the instructions that are clearly posted on the voting machine as to how to cast a vote. That is also an assumption of ours.

QUESTION: And if they didn't follow the instructions, that's a factor you consider in deciding if that vote should be counted?

BURTON: Well, I think going into it, we're assuming they did. And so, by looking at this card, what is their intent?

QUESTION: Let me ask you a specific question that's sort of tangential, but dealing with this writing. I understand, and you can correct me if I'm wrong, that there was either one or more situations where somebody had physically written on a card the names of a candidate. Do you remember that situation? BURTON: Yes, these were on -- I think it was absentee where -- actually, I don't remember if it was absentee -- but anyway, this attachment, when you went to the voting booth, had lines and you could do write-in candidates. And the instructions clearly said you're only to use that for candidates that are not on the ballot.

QUESTION: And in this particular case, a candidate whose name was on the ballot was written on?

BURTON: Yes, I believe we excluded one Democrat vote and one Republican vote, to be exact.

QUESTION: And the reason for excluding was that they didn't follow the rules?

BURTON: They didn't follow the instructions, and I believe that's correct.

QUESTION: Even though, as you review as a canvassing board member somebody hand-writing the name of the candidate certainly intends to express the voter's interest in casting a vote for that candidate?

BURTON: Possibly, yes. I would think so.

QUESTION: But the rules weren't followed, so it was rejected.

BURTON: We felt that it clearly stated in plain English to vote for -- that was only for a candidate that was not on the ballot.

QUESTION: The authority that you understand you have as a canvassing board is to determine the will of the voter; we've used that term a lot. Is that right?

BURTON: Yes, sir.

QUESTION: And does the canvassing board understand that to be a discretionary authority? That you have discretion to determine the will of the voter?

BURTON: Yes, sir.

QUESTION: Even though you understand that the test is not a discretionary one. It's an absolute: Determine the will of the voter is a question of law; it's a standard of law. Is that right?

BURTON: Yes, sir.

QUESTION: And you're to look at objective evidence on the card?

HARRIS: We've been listening this morning to Judge Burton, the chair of the Palm Beach County Canvassing Board. He's been explaining the process the board's been going through in selecting and determining which ballots are undercounted or dimpled ballots and how they're going to go through the process of picking which ones should be counted toward the total tally. KYRA PHILLIPS, CNN ANCHOR: That really helped to put things in perspective when he showed the ballot and explained, you know, what is the dimpled ballot...

HARRIS: Exactly.

PHILLIPS: ... the hanging chad. It really puts it in perspective.




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