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Miami-Dade County Canvassing Board Holds Hearing

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

ROGER COSSACK, CNN LEGAL ANALYST: I'm sorry we have a hearing that is continuing in Florida. Go ahead.

(JOINED IN PROGRESS)

MIGUEL DE GRANDY, GOP ATTORNEY: ... Tuesday you had a 1 percent count. You voted, by majority vote, that there was not sufficient evidence to have triggered the statute to mandate any further action than the 1 percent count.

On Friday, there was a motion for reconsideration heard, and the board reversed itself. In that discussion, there was ample discussion of what the law says, Your Honor, as I said, as quoted on page 96 and 97 of the transcript, stating clearly that in your opinion, sir...

LAWRENCE KING, CHAIRMAN: I'm well aware of what I said, Mr. De Grandy. I don't mean to interrupt, but we know clearly that the vote was taken, and that we ordered a hand recount of all of the ballots in Dade. And in...

DE GRANDY: Sir, either I can argue my client's position or I can't.

KING: We're not here for that. We're here to ask your input with respect...

DE GRANDY: I'm not arguing it to you, but to the other two members, sir.

KING: No, I'm not trying to cut you off. What I'm saying is...

(AUDIENCE BOOING)

It's clear to me that the board -- and I'm sorry, Mr. De Grandy, we don't do things in a snapshot, we do things over the life of the last week, and you've been involved in each and every one.

And I concur with you wholeheartedly, sir, that the board did what it did at those times. But now we're faced with a new challenge, and we're asking for your input on that.

Thank you.

DE GRANDY: Well, I wanted to speak to that, Your Honor, and unless you prohibit me from doing so, I think my duty as (inaudible) representation requires me to put it on the record, that the finding that was made was a legal finding, was not a discretionary finding.

COSSACK: You have been listening to a hearing going on in front of the Miami-Dade County Canvassing Board, an argument of course about deciding how things should be counted, and what should be counted.

Greta, we are going to finish up in just the few minutes we have left. One of the things we've been arguing about, of course, is the standards, and the lack thereof. And I guess the question that I have to you is: Unless there are more standards, isn't there always going to be this question of how this thing gets done?

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: Well, actually, this is what I don't understand is that the whole idea of determining intent of the voter by the legislature has been cast on the shoulders of the canvassing board. Now, everyone has taken it a little bit farther to say that we have to have more rigid standards, rather than determining the intent. Determining the intent is a standard, that's what they are supposed to do. Every day of the week juries and people are called upon to determine the intent of people's conduct.

So I'm not so sure these rigid hanging chads, pregnant chads, dimpled chads, I'm not sure that's for a court to get into. The canvassing board has its mission, how it decides to carry out its mission is its business unless it becomes unconstitutional.

COSSACK: And speaking of those canvassing board, let's go back to the Miami-Dade County Canvassing board and listen to some more of that hearing.

DE GRANDY: ... based on the trend Gore would win before Hispanic precincts were counted, before Republican precincts were counted.

Again, sir, nothing in the Supreme Court's 40-some page order tells you that to abide by it, you have to violate the law and conduct an illegal count.

Now what we do know, sir, is that the Supreme Court was well aware of what was going on in Dade County. The Supreme Court -- as a matter of fact, a couple of justices talked about Dade County, and when they started the recount. It was very apparent to them that you were conducting a process, and they took that into account when they said you have till Sunday.

And so if you cannot do that, and there is no evidence, as we understand it -- Your Honors and us lawyers -- there is no evidence on the record, other than the learned opinion of Mr. Leahy, that a whole count could not be done; if you had a bigger room, if you had 50 more tables, there is no evidence to say that it is an impossibility. Just the opinion of someone that I do personally respect, but that is not evidence.

And so I will tell you that the Supreme Court knew exactly what you were doing here, knew exactly what your time constraints were, and ruled that you have to do it by Sunday. And so you either do what the law requires, which is a full recount by Sunday, or, sir, I would take you back, and, ma'am, I would take you back to what we are argued to you Tuesday of last week: This should have never happened. There was no evidence based on the 1 percent count that would have triggered the statute that demonstrated errors in tabulation.

Mr. Leahy, who, again, I respect, said as much when he voted against the motion for reconsideration, who voted against a full recount. Let's do the right thing. Let us go back to that Tuesday. Let us stick to that finding of this canvassing board, and let's, at this point, certify the best and most accurate results that you have.

Thank you.

KING: Thank you, Mr. De Grandy.

Mr. Young?

YOUNG: May it please the board. The best is exactly what I think the board should be about, and the best is to have a full summed count.

What we know as evidence, what we know from the records of this board, is that there are some 10,750 ballots cast that have not been tabulated. That is 10,750 people went to the polls, and their votes have not been cast. Everyone else's vote has been tabulated.

And I would ask this board to carefully review with its attorney the law. As we read the law, it is very clear that where the total is not correct -- that is, there is an error in the total because of the human nature of our interface with machines -- that if the manual recount indicates an error in the vote tabulation, which could affect the outcome of the county canvass, the first statutory duty is to correct the error -- that is, to recount the 10,750 votes. And when I say "recount," I now mean count for the first time. There are 10,750 citizens out there whose vote has not been seen by man, woman or machine. That is simply an error. It's a systematic error. It's nothing more than the way machines and the process is designed.

I believe that the statute tells you to correct the error. And the statute says, recount the remaining precincts with the vote tabulation system. The vote tabulation system is the machines. So what this board decided this morning, as I think we said this morning, was lawful, proper, and I think, a fair understanding of the law, which I know this board, as an administrative agency, would follow.

I think that the law guides us precisely as to what to do. The question then is how to do it. And I believe that the problem has really arisen out of logistics. Let's not have the logistics effect or disenfranchise any voter.

I believe that the best way to proceed efficiently, effectively is precisely how Mr. Leahy and others have suggested, and that is that it can be done in the tabulation room. The question I think is then one of simply ensuring that all concerned see a process that is transparent. Well, that seems to me to be something that we can do. For example, in a northern county, Volusia, Judge McDermott had one pool camera in his counting room and allowed everyone to share off that, so the media saw precisely what the board was doing.

We can also have microphones so that each and every word that is said in that room between now and Sunday can be heard and recorded by whoever wants to record it. We can also designate pool reporters, so that again, each and every member of the press and the public sees the process. We have representatives.

I have no concern, and I don't believe that anyone who looks at this problem, has any concern over the efficacy, the integrity of the process that we would undertake, so it is simply one of transparency.

Are we not going to count 10,750 votes for want of a process of disseminating information? Well, I believe that this board can overcome that quickly. I do believe that having a pool reporter, pool cameras, microphones, we can have court reporters, we can have anyone there to memorialize and to make the world assured that this process can go forward. I think that can happen.

What I certainly would urge this board is to proceed forthwith.

My experience in recounts in large states, in statewide recounts, is that where there is a will, there is a way. And I believe that 10,000 votes can in fact be counted accurately between now and Sunday. We will become dear friends in the process because we will spend a lot of time together. But I do honestly believe that it is possible if we -- the lawyers, the media, concerned citizens, protesters, or who ever -- allow you to do your job. And I believe that it can be done.

The process does have the power to count these votes. And I would urge you to proceed in a manner that is lawful, appropriate and the right thing to do. Thank you.

KING: Thank you, Mr. Young.

I want to thank both representatives of their various parties for their persuasive and meaningful arguments here today.

Mr. De Grandy, just one point of clarification: I know you all like to say that to us, so I'm going to say it to you.

When the vote was taken with respect to the two-to-one, at that time, as you recall, Mr. Martinez, who was on behalf of the Republican Party, said to this board, and I'm sorry if I don't quote him exactly, that there are no deals made in this county, that we don't make deals, that we wish only to see a full, complete, accounting. Your own Republican Party wanted a hand recount of the ballots -- if it were to be done, if it were to be done -- an entire hand recount of that ballot. And I think if you will look at page 17 and 19, you will find I concurred with him.

What I did not -- and we're not getting into why I did what I did then -- we've moved radically from that. Mr. Leahy and Judge Lehr and I discovered, like the rest of the nation last night around 9, that the Supreme Court had said, yes, that the recount may go forward.

And what I envisioned, sir, and I think what the board envisioned, was that the hand recount would go forward, as we had planned. It became evidently clear this morning around 6:30, 7:00, when we arrived here to start our task for the 8:00 session, that that was going to be, as David has already said, "a physical impossibility," because of time.

You cannot count the remaining hand ballots in this county by Sunday.

Therefore, the only alternative that this canvassing board had to meet the needs of the people and meet the needs of the parties was to try to adopt what was originally suggested and discussed in open forum with you present...

VAN SUSTEREN: We've been listening to a hearing down in Miami- Dade Canvassing Board. The ongoing dispute about the hand count, exactly what they will count and what they will not. But the headline I suppose is the news that they say it is a physical impossibility to finish the hand count down there by the deadline set by the Florida Supreme Court.

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