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Special Event

Bush Lawyers Argue for Inclusion of Military Ballots

Aired November 24, 2000 - 2:12 p.m. ET

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

NATALIE ALLEN, CNN ANCHOR: We're going to go now to Leon County. The judge has taken to the bench here in Tallahassee. This is Judge Ralph Smith. This is about the Republicans contesting the election in 14 counties, reference absentee ballots, military ballots that were not counted.

So we'll listen in for a little while.

(JOINED IN PROGRESS)

MEROS: ... by facsimile, by hand delivery of both the motion, the TRO, the original complaint. We are in the process of serving all of them right now.

JUDGE RALPH SMITH, LEON COUNTY CIRCUIT COURT: Well, what's the posture of their appearance? Are any them here today?

MEROS: A number of them are here today.

SMITH: All right. Well, let's have a kind of a roll call to see who we have present, those who are -- some have requested to appear telephonically, I understand.

UNIDENTIFIED MALE: (OFF-MIKE)

SMITH: OK. Who do you have by phone?

MEROS: Your Honor, I believe Clay County, Escambia County and Dade County are in attendance by phone, and they will correct me if I've misstated.

SMITH: All right. Do we have counsel on the phone for those counties?

MARK SRUBY, CLAY COUNTY: Your Honor, this is Mark Sruby (ph) with Clay County.

SMITH: OK. What about Escambia County?

DAVID TUCKER, ESCAMBIA COUNTY: Your Honor, this is David Tucker with Escambia County.

SMITH: And Dade County?

MIKE BURKE, DADE COUNTY: Mike Burke (ph), Your Honor.

SMITH: OK. And who we have present? Would you acknowledge your presence?

MIKE CHESTER, OKALOOSA COUNTY: Your Honor, I'm Mike Chester (ph) from Okaloosa County, and I have with me Hap Holloran (ph), the supervisor of elections from Okaloosa County.

SMITH: OK.

WAYNE VALAINI, COLLIER COUNTY: Sir, my name is Wayne Valaini (ph). I represent, as an individual member of the canvassing board in Collier County, the supervisor of elections, Jennifer Edwards (ph).

SMITH: Which county?

VALAINI: Collier.

SMITH: OK.

RON LABASKY, LEON COUNTY/BAY COUNTY: Your Honor, I'm Ron Labasky (ph). I am here appearing on behalf of two individual defendants, Ian Sancho (ph), who is the supervisor of elections in Leon County, and Kurt Browning (ph), who is the supervisor of elections in Bay County. But it's only with respect to those individual supervisors.

(CROSSTALK)

KURT BROWNING, PASCO COUNTY: Or Pasco County, I'm sorry. Kurt Browning, Pasco County.

SMITH: Pasco?

Any other counties?

KIM TUCKER, FLORIDA ATTORNEY GENERAL'S OFFICE: Not of a county, Your Honor. I'm Kim Tucker (ph) with the Florida Attorney General's Office. There are paragraphs regarding the attorney general's letter (UNINTELLIGIBLE). We're here as an interested party, but not a named defendant.

SMITH: OK.

JAY BALES, FLORIDA ATTORNEY GENERAL'S OFFICE: Mr. Jay Bales (ph) of the Attorney General's Office is also (UNINTELLIGIBLE).

SMITH: What counties have...

TIM HARLEY, CANVASSING BOARD CHAIR, LEON COUNTY: Judge, I'm Tim Harley (ph). I'm the chair of the canvassing board for Leon County, here on my own behalf.

SMITH: OK. Were there any other named defendants who've not been identified?

All right, Mr. Meros (ph), as to those who are not here, either telephonically or in person, have they been given notice of the hearing.

MEROS: Yes, sir, Your Honor. What is today? Today is Friday. On Wednesday, within about an hour and a half after the hearing, we faxed to all of the named defendants a notice of hearing, a letter advising of the hearing, as well as the temporary injunctive comment -- temporary injunctive order.

SMITH: OK. No one's filed anything defensively in the case?

MEROS: Your Honor, I believe there has been one answer of Escambia County that was faxed to us today. And if I may approach, I can give this to the court, if it does not have a copy. And also a notice of appearance and demand for notice of hearing on behalf of Mr. Chester (ph) from Okaloosa County.

SMITH: OK.

MEROS: Those are the only two that I'm aware of.

SMITH: Well, we do have unusual time constraints, but we do have certain due process requirements.

VALAINI: Your Honor, if I may?

SMITH: Yes?

VALAINI: Again, Wayne Valaini, Collier County supervisor of elections. I know that on behalf of my client that the order was not received in her office until approximately 5:35 on Wednesday afternoon, after the close of business. And, in fact, if it hadn't been for me living in Leon County and being aware of what went on and notifying her, we probably wouldn't even be here today.

In regard to the Collier County Canvassing Board, I know that in their office they got all their information just this morning through (OFF-MIKE)

MEROS: No question, Your Honor, the time was short and that everyone did not receive perfect notice. But I can tell you, 5:30 on Wednesday was within an hour after the judge signed the order.

I can tell you this was imposed on us by the deadline provided by the Supreme Court of Sunday at 5:00. So we have moved heroically, I would suggest, to the extent -- greatest extent possible to notify everyone of the complaint, the motion for temporary injunction and the hearing today and the relief requested.

SMITH: Well, the court has some other concerns that relate to venue. Obviously, this court has the authority to deal with the Leon County supervisor of elections, the canvassing board of Leon County, if it's otherwise a matter cognizable by the court. But you have numerous counties in addition to Leon County, who some of whom haven't even been served with process.

MEROS: Your Honor, I'll be happy to address the venue, if you'd like me to. SMITH: I think we need to address both of these questions: the due process issues regarding the proper notification of these defendants, as well as venue.

MEROS: Well, let me start with venue, if I may, Your Honor. Under 47.021, in Florida statutes, there's a specific provision for -- that states that if, in fact, there are multiple defendants then the proper venue is where any of the defendants reside.

Further, Your Honor, what we have here, I recognize that there is a home venue privilege that is a matter of common law to governmental entities. However, 47.021 is really intended to take into consideration those situations where you have multiple entities and multiple defendants in multiple counties. And what it suggests is that, in any county where the defendant resides it would be an appropriate venue. Otherwise, you would have a situation where you could never have multiple defendants sued in one venue.

Further, by analogy, 102.168(5) is the protest provision under the election laws.

MEROS: Now, this is not an election protest under that statute, but that states specifically that the venue of a protest of any state or federal action is in Leon County. And I believe the reason for that is clear. You are going to have multiple government...

SMITH: Yes, I'm familiar with that. That was the next issue I was going to address with you, was...

MEROS: But what I suggest (UNINTELLIGIBLE) what that says is that is a legislative intent that shows that the concept and the intent of the legislature is to have multi-county cases in Leon County, at least with regard to state and federal elections.

And there are exceptions to the home venue privilege, and I will give you two citations. One is the Gryse (ph) decision, 438 (UNINTELLIGIBLE) 392, and that case says that the home rule -- the home venue provision is not absolute. And the Levy County case, that's in the 1st District, which is 607 (UNINTELLIGIBLE) 479, and that court says -- I mean, and that decision says the trial court has discretion to overrule or to not have put into effect the home venue provision under circumstances like this.

And I would suggest again, Your Honor, if you had a home rule privilege here, you could never have a situation where you could hail more than one defendant into court at one time. And both the election statute itself, as well as the venue statute contemplates Leon County as the appropriate venue for this sort of extraordinary case.

SMITH: Well, what I would entertain today would be a presentation by the plaintiffs. Those defendants who have appeared today or who have appeared telephonically, the court would hear from them, not only on the preliminary and procedural matters, but the substantive matters that the plaintiffs wish to present. But I do have some concerns about these things, the reason I want to bring them up to begin with. What did the plaintiffs anticipate as far as a presentation today?

MEROS: Well, Your Honor, I would like -- we did this with Judge Lewis, but I'd like to do it again. I would like to move pro hac vice the appearance of Mr. Fred Bartlit to handle the substance of the motion today, along with Mr. Glenn (ph) Summers here, both from the Bartlit Beck law firm.

And with me is Jason Unger (ph) of Gray, Harris & Robinson.

But I'd like Mr. Bartlit, if the court so permits, to argue the substance of what we're seeking.

D. TUCKER: Judge, excuse me.

SMITH: Yes.

D. TUCKER: This is David Tucker, Escambia County.

SMITH: Yes.

D. TUCKER: Can you ask Mr. Meros to repeat the names. I couldn't hear.

D. TUCKER: It's raining very hard over here and I'm having a little bit of trouble hearing the names.

SMITH: Well, if you'll repeat the names and the states where they are licensed to practice, and we'll have them give a little background about their good standing in those states.

UNIDENTIFIED MALE: It is Mr. Fred H. Bartlit, B-A-R-T-L-I-T, Jr., and Glenn E. Summers, S-U-M-M-E-R-S, of Bartlit Beck in Denver and Chicago. You would like Mr. Bartlit to explain where they're admitted to practice?

SMITH: Yes.

FRED BARTLIT, ATTORNEY: If the court, please, Fred Bartlit, admitted to practice in Illinois and have been since 1960. I've been admitted to practice in Colorado and have been for about eight or nine years.

SMITH: You're a member in good standing, all approved...

(CROSSTALK)

BARTLIT: Yes, sir. Yes, sir.

SMITH: ... bar and never been subject to any disciplinary proceeding?

BARTLIT: Absolutely not, no, sir.

SMITH: Do you wish to be heard, counsel?

MEROS: Not on this appearance, Your Honor. I'm certainly, I'm sure we have no problem with that.

I would like to raise, though...

(CROSSTALK)

SMITH: Well, let's hear from the other gentleman, too.

SUMMERS: Your Honor, Glenn Summers, I'm admitted in the states of Colorado, California, several federal district courts. I'm in good standing in all those jurisdictions, and have never been subject to any discipline.

SMITH: If there be no objections to your appearance, the court will allow the appearance.

MEROS: Just before we went any further than present argument on jurisdiction, Your Honor, I'd like to make a presentation on that point, when you're ready.

SMITH: Now would be an appropriate time.

MEROS: Your honor, all the ballots that are going to be discussed today by the ballots, are ballots that were counted and tabulated and either accepted or rejected by...

(CROSSTALK)

SMITH: I'm hearing one of the three counsels by telephone. Was there something you wish the court to hear?

D. TUCKER: No, sir, Your Honor. We may be under tornado warning, and I was just asking my assistant to check our emergency operation site, to make sure we're not.

(LAUGHTER)

SMITH: You may proceed, counsel.

MEROS: I think we're (UNINTELLIGIBLE) cyclone, Your Honor.

(LAUGHTER)

Under Chapter 102, specifically Section 102.168, the legislature has created a section in statutes that deal with situations where you have ballots that are in dispute in the local jurisdictions. And that is, contest of elections section, Your Honor. It provides that individuals who are involved in the election, within a certain period of time, may file what is called a contest to deal with particular ballots that have been handled in their respective counties.

MEROS: Specifically, Your Honor, Section 102.168 provides that -- as follows, subsection 2: "Such contestants shall file a complaint, together with the fees prescribed in chapter 28, with the clerk of the Circuit Court within 10 days after midnight of the date the last county canvassing board empowered to canvass returns certifies the results of the election being contested, or within five days after midnight of the date the last county canvassing board empowered to canvass returns certifies the results of that particular election, following a protest pursuant to 102.166, subsection 1, whichever occurs later."

Your Honor, I believe we're in that posture, at the present time, with respect to each of these respective counties, and certainly the counties that are here before you today. I don't know about the counsel on the phone.

So it would be my suggestion to the court that the venue and the jurisdiction, with respect to these contested ballots that have not yet been -- that have been certified, but not finally certified by the secretary of state, would be subject to a contest provision, in that respective county, to deal with the particular nuances of those ballots in those individual counties, because everything you are going to be hearing today is going to try to cover all these jurisdictions. Every ballot is slightly different -- I mean, there are generalizations that can be made on some of those -- but every one's going to be different, and the court would need to be -- a court would need to be looking at that particular ballot.

So, Your Honor, I would suggest and submit to the court at the present time that the remedy that really is available to the plaintiffs is to go and file a contest with respect to these ballots that they say have not been properly counted or given their weight and certified by the state canvassing commission.

SMITH: Is this, stated otherwise, that they have failed to exhaust their administrative remedies?

MEROS: I would suggest -- well, not administrative remedies, Your Honor, because actually, it's circuit court, so they've failed to exhaust remedies that have been made available to them specifically by statute in their respective jurisdictions where these ballots were cast and counted.

SMITH: But doesn't the contest provision, also, contemplate a protest?

MEROS: Well, a protest would proceed the contest, Your Honor...

SMITH: Which would be administrative?

MEROS: And that would be administrative, between canvassing board and respective electors, or the candidates in those individual counties that are brought into this court today.

So -- and those timeframes, Your Honor, I believe -- I wouldn't want to tell you that I've looked at every county -- but those timeframes have, I believe, presumably passed. They certainly have, I know, in Volusia County, at the present time, the protest timeframe would have passed.

So where we are, Your Honor, is I believe that the statutes -- that the Florida election code provides a specific remedy to individuals who are in the posture that they bring to this court today, and they should be proceeding by way of a contest action in the respective counties where these ballots were cast.

MEROS: And that's our position.

UNIDENTIFIED MALE: Your Honor, who is the speaker?

SMITH: This is the counsel representing Leon County Supervisor of Elections; is that correct?

MEROS: Yes, Your Honor, Leon and Pasco County.

SMITH: OK.

BARTLIT: Your Honor, Fred Bartlit. This is not a contest. We understand that you can't have a contest until after the votes are certified, Your Honor. And we think that what we're trying to do is to avoid an improper certification.

Now, the declaratory judgment statute that we moved under, simply says that any party who has a -- I'll try to speak louder.

Any party who believes they have rights under statutes of the state can ask for an interpretation of the statutes if there's a dispute over them. And, clearly, there is here. What we're trying to do is to take this little window of time we have before Sunday night and do whatever we can to get the ballots certified right in the first place, rather than having a series of contest all over the state afterwards.

And in a minute I'll explain, there is beginning to be some movement.

And we'll be dismissing at least one of these counties, because things are beginning to shape up a little bit. But this is strictly a declaration of our rights under the statues and has nothing to do with a contest.

BARTLIT: It is not a protest. That's all down the road. I guess I'd say, Your Honor, we're trying, maybe, to head off a costly series of contests on these issues if we can.

We're not, Your Honor -- we're not asking this court to look at any ballots, we're not asking this court to look ballot-by-ballot. What we're asking this court to do is to hear some of the things that have taken place and send an order down to these counties, simply saying, "Will you please take" -- not please -- "Will you take another look at the ballots under these circumstances, given the changed events that we've seen in the last week?"

We're not asking this court to be an electoral judge; this is not a contest. We're trying to save time and move fast, Your Honor.

SMITH: So that we can have a degree of fairness here, how much time do you anticipate you will need in making your presentation today?

BARTLIT: I would imagine a half-hour, Your Honor, maybe not that much.

SMITH: Well, I just want to be sure that the...

(CROSSTALK)

BARTLIT: Yes, sir.

SMITH: ... opposing counsel have that same opportunity.

BARTLIT: If time is of the essence, I can move faster. It's...

SMITH: Court can take whatever time is necessary to resolve this important issues, but I just want to have fairness where you have the same amount of time that your adversaries have, and they will be on notice right now, whether you're going to make an evidentiary presentation or if this is strictly an argument that you wish to advance.

BARTLIT: It'll be mainly argument. It'll be based on the exhibits that we've attached to our papers. They're documents that are not controversial, they're public document, statutes, opinions of the attorney general, that sort of thing. We will not have any witnesses, Your Honor. If it turns out that the court thinks there are fact issues that require witnesses, we could do that later. But the nature of the relief we're hoping for, shouldn't require that.

SMITH: Well, the only thing that I have that's been filed is your complaint for declaratory judgment, injunctive relief, and then your emergency motion for your temporary restraining order. Judge Lewis heard the emergency motion last Wednesday.

BARTLIT: Yes, sir, we did file, today, a brief that had, I think, six exhibits attached. I'll hand it up, with the court's permission.

SMITH: I've gotten the motion for emergency injunctive relief and a memorandum in support of it.

BARTLIT: Yes, sir, the memorandum has Exhibits A through F attached.

SMITH: Well, these were obviously just filed. I'll doubt seriously if anyone has seen a copy of any of this.

UNIDENTIFIED MALE: No, Your Honor.

(CROSSTALK)

MEROS: Your Honor, we received a copy of the memorandum five minutes ago without the attachments.

SMITH: Then you got it about the same time I have gotten it.

VALAINI: On behalf of the Collier supervisor, I was just handed this. SMITH: Well, since you didn't come prepared to have an evidentiary presentation, go ahead and proceed with the way that you contemplated. And the defendants can review what you filed and the court can determine whether this is proper for the court's consideration.

BARTLIT: Thank you very much, Your Honor.

If the court please, we really never expected to be here. Over the last weekend, when it became apparent that about -- in these 14 counties about 50 to 60 percent of the military ballots had been rejected, there was a great hue and cry all around the country and leaders of both parties, as I'm sure the court is aware, said those should be counted if they're lawful.

And everyone began saying, "We should take another look at this."

BARTLIT: Monday passed, and we got reports, and they are hearsay, Your Honor, but we got reports from our people in the counties that some people in the counties were saying, "We don't know what to do." Others were saying, "We'd like a court to give us some direction." And there wasn't a lot of motion.

And then Tuesday came, and there wasn't motion. And we knew the certification date, of course, is Sunday night, and it just seemed sensible to us that if we could get a good certification the first time, that would be good if these issues were simple. So we filed this case on Wednesday, and we're making some progress, Your Honor.

We just heard that -- Clay County can say this for themselves -- we are going to dismiss Clay County, because we got a memorandum from counsel for Clay County that said that last week there were 17 military ballots -- overseas absentee ballots that had been rejected as illegal, and today, November 24, Mr. Sruby's letter, who is on the telephone, says that 14 of the 17 overseas absentee ballots, which had previously been rejected, were, in fact, legal.

So given that, of course, we will dismiss Clay County. They've done what we thought made sense. They have reviewed the ballots, taken another look at them in light of what's been learned since the election, and determined that 17 ballots that are bad are now good. That basically has been the relief we've requested.

SRUBY: Your Honor?

SMITH: Yes?

SRUBY: This is Mark Sruby. And I don't want to interrupt the argument being made by counsel, but if we are being dismissed, I'd like also to -- is that, as a matter of record, that Clay County Canvassing Board and the individual members of the canvassing board are being dismissed from this case?

BARTLIT: Yes, sir.

SMITH: That was counsel for the plaintiff's affirmative response there.

BURKE: Your Honor, this is Mike Burke from Bay County.

SMITH: Yes?

BURKE: I wonder if counsel for the plaintiffs has also received a memo from me stating officially the same thing that Clay County has done, that we have indeed reviewed a number of ballots that were rejected for different reasons, and perhaps we may be dismissed at this time also.

BARTLIT: Yes, sir, we did just get the letter handled to us. We still have some differences with Bay County. I had said last Wednesday that we would be delighted to sit down, person to person, and see if we could explain our position and work it out.

We still have some -- we still have differences with Bay County. We do not have any differences with Clay County. But we are seeing some motion.

BURKE: I'm sorry, Your Honor, this is Mike Burke again. Would you restate what plaintiffs' counsel said for me?

SMITH: Clay County is dismissed. The plaintiffs are satisfied with the position that has been taken by Clay County. But as to Bay County, there are certain things that still remain objectionable to the plaintiffs and they have not, at this point, dismissed Bay County.

BARTLIT: We know, Your Honor, other meetings are going on. We know Nassau County met today. We do know Bay met today. We know that Duval is meeting at 3:00 today, almost as we speak. We know that Leon County has just informed us that they're going to meet Sunday to reconsider. They don't have a very big job, because there's not a lot of military ballots here. We know Escambia is meeting Sunday at 2:00. And that's what we hope, that these votes could be reconsidered, and it looks like...

JUDGE ANN TAYLOR, POLK COUNTY CANVASSING BOARD: Your Honor?

BARTLIT: I'm sorry.

SMITH: Yes?

TAYLOR: Your Honor, may I speak?

SMITH: You may.

TAYLOR: This is Judge Ann Taylor (ph) from Polk County. Our attorney is unable to be there. I'm the chairman of our canvassing board. I have called the members of our board, and we are planning to meet after this hearing.

SMITH: Very well.

BARTLIT: And, Your Honor, just so we focus, the relief that we're requesting is really a writ of mandamus and mandatory injunction ordering all the canvassing boards to do what Clay County, for example, has done, to reconsider their military ballot decisions in light of the Boardman (ph) case, in light of rule 1S2.013 (ph), in light of the attorney general's communications, and in light of some other things that have both -- we're all aware of in the press and some things that I hope to point out today.

SMITH: So long as all that's consistent with Florida statutes.

BARTLIT: I sure hope so, sir. I've done the best I can.

SMITH: Well, that was the first thing I want to get into.

BARTLIT: That's what we're going to do; we're going to look at some of the statutes.

SMITH: Well, I gather that when you talk about the administrative rule, you're talking about the rule that provides for consideration of absentee ballots that are received no later than 10 days from the day of the federal election.

BARTLIT: Yes, sir. First, I was going to talk about the postmark issue.

SMITH: Well, let's do this first issue that I just mentioned.

BARTLIT: We talking about the date issue, Your Honor?

SMITH: Subparagraph 7 of 2.013 of the Florida administrative code. You made reference to that in your pleadings.

BARTLIT: Yes, sir.

SMITH: Which provides that, "With respect to a general election, any absentee ballot cast for federal office by an overseas elector which is postmarked or signed and dated no later than the date of the federal election shall be counted if received no later than 10 days from the date of the federal election."

BARTLIT: Yes, sir.

SMITH: That's the one you're talking about?

BARTLIT: Yes. Well, that's one of the statutes I'm talking about...

(CROSSTALK)

SMITH: That's not a statute, that's an administrative...

BARTLIT: Yes, sir.

SMITH: ... code provision.

BARTLIT: Yes, sir. And we agree with that.

SMITH: Well, I understand that. BARTLIT: Yes, sir.

SMITH: I want to know if it agrees with the state law, state statute.

BARTLIT: Well, we can talk about the state statute, we can talk about the rule. I've got the two of them here, Your Honor.

SMITH: All right. Well, compare that to the statutory provision and chapter 101 -- contained in 101.67 subparagraph 2.

I'll read it...

BARTLIT: Yes, sir.

SMITH: ... if you don't have it there. It says, "All marked absentee electors' ballots to be counted must be received by the supervisor by 7 p.m. the day of the election." Now, how does that square with this administrative code provision that allows for 10 days after that election?

BARTLIT: Your Honor, the administrative code provision is obviously an interpretation of the statute, and the Division of Election has the authority to interpret the statutes, and that is the rule they've adopted in line with the statute. The Division of Election has the total authority to interpret that statute, and that's the way it's been interpreted.

May I proceed, Your Honor?

SMITH: You may.

BARTLIT: The first issue I was going to talk about was the postmark issue. We know that the attorney general, on November 20, sent Exhibit A out to all the county supervisors of elections and county canvassing boards.

BARTLIT: We know that in Exhibit B the attorney general stated that, "It has come to the attention of the office that there was confusion on the part of local canvassing boards in the counting of absentee ballots. And it appears that some of these ballots may have been rejected due to the lack of postmark."

It now appears, as we'll see in a moment, that the most common reason for rejected military ballots was the lack of postmark. Because we see that the attorney general has had this investigated. And we see that ballots were rejected merely for lacking the postmark. And the most common reason for the ballots in validation is that they lack postmark. And then the attorney general assigned two assistants to evaluate the county's reported actions in light of the state's agreements with the U.S. Justice Department.

And then in Exhibit C, to our motion today, the attorney general notes that there's a Florida statute that appears to require postmark on all overseas ballots, while a separate rule of the secretary of state clarifies that a date entered by the elector and or the witness can substitute for a postmark.

And, of course, we know, as our papers point out, that the rule, which is referred to is this rule -- I'll put up on the screen -- both the state statute, which says, "Only those ballots with an APO-FPO or foreign postmark shall be considered valid." And then the rules says, "with respect to the presidential preference primary and the general election, any absentee ballot which is postmarked or signed and dated." And we now know that there were very many ballots that were knocked out because the canvassing boards relied on the state statute and not on the rule.

The rule, of course, was adopted when the Justice Department brought an action in Florida in 1982 or 1983, the rule was adopted to satisfy the Justice Department, Your Honor. And the rule was approved by Chief Judge Stafford (ph) in the federal district court here in 1984.

I don't believe, Your Honor, that there's anybody that disagrees that the rule which says, "postmarked or signed and dated," is the applicable test for the validity of those military overseas ballots. There hasn't been anybody that's disagreed with that.

SMITH: Say that again?

BARTLIT: OK. I don't think anybody, Your Honor, had disagreed with the fact that number two, the rule is applicable, and not number one, the statute on the screen.

SMITH: All right.

BARTLIT: In other words, this is the letter from the attorney general interpreting the statute. And everybody agrees that you don't need just a postmark; it's sufficient if it's postmarked or signed and dated. Either one. I haven't heard anybody disagree with that across the Florida since the attorney general's memorandum came out the 20th of November.

SMITH: Which statute requires that a ballot, which is not mailed, have any kind a postmark on it? Can't you hand deliver?

BARTLIT: Sure, yes, sir, that's my whole point.

BARTLIT: The point is that this rule was adopted because servicemen overseas -- somebody on a carrier, someplace like that -- may just put it in a mailbag, it's picked up by helicopter, it's may be brought back shoreside, maybe it's postmarked from the U.S., maybe it's delivered in a group of military mail; it won't have a postmark on it.

That is why this rule was adopted, which says that if it's postmarked or signed and dated no later than the date of election, it will be counted. The first go-around, there were very many military ballots that were knocked out, because they didn't have an APO, FPO or foreign postmark. Many were knocked out.

Now that -- all we are asking is that another look be taken at the ballots that were knocked out, based on the Florida statute, but they be looked at in terms of the rule which was adopted to satisfy the federal lawsuit which was brought back in the 1980s. So we say if it has a postmark or if it has no postmark because of the military exigencies, Your Honor, if it doesn't have a postmark, but it's signed and dated no later than the date of election, it should be counted. That's all we're saying.

SMITH: Well, you're saying quite a bit.

BARTLIT: Yes, sir.

SMITH: When would it have to be received by the supervisor of elections?

BARTLIT: It would have to be received by November 17, Your Honor.

SMITH: That's not the day of the election.

BARTLIT: No, sir. That is 10 days after the date of election.

SMITH: Well, how does that square with the statute that I asked you about earlier?

BARTLIT: Because the November 17 rule is a regulation adopted by the Division of Elections, which has authority to adopt such rules.

SMITH: Well, they can't adopt something that is contrary to the legislative enactment.

BARTLIT: Well, Your Honor, you couldn't -- I think what happened here, Your Honor, is that when the hue and cry came up, back in the '80s and again in the 42 USC 1973, the Uniformed and Overseas Citizens Absentee Voting Act, the federal law designed to ensure that, let's see, Section 104, "recommendations to the states to maximize access to the polls by absent uniform service voters and overseas voters."

The theme of this statute, which was passed to solve the problem that we have now, the theme of this was to make sure that absentee ballots could be received, given the exigencies of military service, and actually used.

SMITH: Is there any federal law that allows the counting of a ballot by a serviceman 10 days after -- received 10 days after the election?

BARTLIT: Well, the Florida administrative rule has it, Your Honor, and that was adopted after all of these complaints were had about the problems servicemen had voting. That's why it was adopted.

SMITH: I think we can take judicial notice of that; we're not in time of war, now.

BARTLIT: That's true, Your Honor, yes, sir. However, it's not the --you know, the destroyer Cole wasn't the best place to be three or four weeks ago. And this is hearsay, but we're receiving e-mails and phone calls from people on carriers in the Gulf saying, "I sent my ballot in and I heard that it's not being counted." So, it's not time of war, but it's not, for those fellows, and those young women, it's not time of peace either.

SMITH: Well, we certainly want every proper...

BARTLIT: Yes, sir.

SMITH: ... ballot to be counted...

BARTLIT: Yes, sir; yes, sir.

SMITH: ... every vote. But we can't revolve this presidential election out of your hearsay suggestions that someone...

BARTLIT: Of course not, Your Honor.

SMITH: Well, do you do you have any evidentiary presentation to present that some serviceman aboard that ship has tried to cast an absentee ballot here and has been rejected?

STEPHEN FRAZIER, CNN ANCHOR: All right, we are going to step away from this circuit court rooom in Leon County where this man, Fred Bartlit, a lawyer brought in from Chicago on behalf of the Bush campaign, is making the cased that certain military overseas absentee ballots should be permitted, even though they were thrown out earlier on various technicalities.

(INTERRUPTED BY CNN COVERAGE OF A LIVE EVENT)

FRAZIER: We're going to take you now back to that hearing before the Leon County Circuit Courthouse courtroom of Judge L. Ralph Smith. And speaking before the judge now is Fred Bartlit, an attorney for the Bush campaign.

(JOINED IN PROGRESS)

SMITH: ... canvassing boards, as the case may be, in each of the various counties were so influenced by this memoranda from Mr. Mark Herron that they complied with that rather than the requirements of Florida law?

BARTLIT: Your Honor, I don't know -- I would never ask the court to assume that. You can't, because none of us were there. That would be the rankest kind of speculation, of course.

All I'm saying is that it's reasonable, in the light of things -- one wonders why you could have all this confusion that's now in the process of being cleared up. And when you have lawyers being instructed to argue to the people that are doing the voting a statute which is inapplicable, it is conceivable, at least, that that could contribute to the confusion.

BARTLIT: It's conceivable. I don't know what was happen. I wasn't there. And I certainly would never ask the court to conclude that. But I think it's something that is reasonable to take under consideration, when we're asking the court to take whatever steps are reasonable and proper to try to clear this up before we certify on Sunday night. That's all we're asking.

SMITH: Well, it appears to me that you have alleged in your complaint that these overseas ballots were not counted because of the reasons that are set forth in this November 15 memorandum.

BARTLIT: Yes, sir, I think at this stage, at the pleading stage, I think it's a reasonable inference that when you have people down arguing in the counties that a statute applies, which we now know doesn't apply, that that could contribute to the confusion. That's a reasonable inference at the pleading stage, Your Honor.

SMITH: Well, I'm not satisfied an administrative ruling overrides a legislative enactment. I don't understand that kind of reasoning.

BARTLIT: Well, your honor, I don't think there's any dispute anywhere in the state. The attorney general of Florida now agrees that this rule applies. Everybody agrees with that.

SMITH: Well, that's your argument; I hear that.

BARTLIT: Yes, sir. Well, at least when we read the opinions that have been sent out by the attorney general of Florida, he -- as we say a minute ago, he assigned a couple of deputy attorney generals to look into this matter, and they looked into it. And they concluded that it's not necessary to have a postmark, it's sufficient if it's signed and dated; that you can have one or the other, you don't have to have just a postmark.

SMITH: That's very well, but still the ballot has to be received by the date of the election, according to this statue.

BARTLIT: Your Honor, let me put it this way: The lawsuit was filed in Florida by the federal government in 1980. The Florida law said -- the Justice Department suit said that Florida law operated in practice to discriminate against servicemen.

And in settlement of that lawsuit by the U.S. government down here, a regulation was adopted to deal with the discrimination. The rule was approved by a federal judge as part of a consent decree. It has the force of federal law and it was a regulation adopted to deal with problems with the statue. And it really has the force of law now, Your Honor.

SMITH: Well, wasn't there at that time a federal statute that provided for that 10-day extension?

BARTLIT: I don't know the answer to that, Your Honor.

SMITH: Where did the 10 days come from?

BARTLIT: All I'm saying is, the rule that was adopted by -- that is sufficient that signed or dated no later than the date of the federal election.

SMITH: Well, didn't that consent decree provide that it only applied to that 1982 or '84 election?

BARTLIT: No, I don't think so, Your Honor. I think the settlement of the case by the government resulted in the new rule that ought to be applied in this election.

SMITH: Well, I direct you to page seven of the consent decree that was entered by Judge Stafford in Case No. 80-1055. Is that the same case you're talking about?

BARTLIT: Yes, sir.

SMITH: Page 7, paragraph 2, says, "For the 1982 federal elections only, as an interim solution, the state of Florida shall take the following steps," and it goes through A, B, C. Are those the steps that provide for that addition 10 days?

BARTLIT: Yes, sir. But then paragraph 4, I think, on the next page says, "for a later federal elections, subsequent to 1982, the defendants," that was the state of Florida, "would submit to the court a plaint of compliance."

The plaint of compliance would have put in measures necessary to permit American citizens abroad a reasonable opportunity to return their ballots for the federal primary. And that plan was submitted in a final order, which is entered -- let's see -- August 30, 1984, Judge Stafford reviewed the statement of compliance that was later admitted, finds that a remedial plan satisfied the problem and signs it, and the remedial plan has this provision in it.

SMITH: All right.

BARTLIT: That was designed to apply to later federal elections, including this one, Your Honor.

SMITH: Doesn't this -- page 8, paragraph 4 of that first order -- say that the Florida legislature...

FRAZIER: If you're just joining us, let's bring you up to date on what you're watching now in the upper right part of your screen. You're seeing Judge L. Ralph Smith of the Leon County Circuit Court in Tallahassee. And now speaking before him is attorney Fred Bartlit, brought in by the Bush campaign as part of the campaign's effort to contest the election in 14 counties, although Attorney Bartlit did say that rather than a contest, this is an effort to prevent what he calls an improper certification of votes.

And what they'd like to talk about here are the votes cast by military personnel overseas, and which have been rejected for a number of reasons having to do with whether they bear a proper postmark, whether they bear hand written date written down by the voter himself as they cast the ballot and signatures.

So, to bring us up-to-date on what exactly is happening in this hearing, let's turn now to our legal analyst Roger Cossack, who's been listening in and can help clarify.

Sounds like they're dealing with whether a statute or an administrative order is the law of the land right now, Roger.

ROGER COSSACK, CNN LEGAL ANALYST: That's exactly right. Lawyer Fred Bartlit from Illinois is saying, judge, you know, there is a statute that talks about it has to be postmarked on the day of election but that was later modify in a voting rights case that took place, I think, in 1984 in which consent decree, a lawsuit was brought exactly on the issue that military ballots were not being counted because they weren't getting there on time. And there was modification of this statute which would give them 10-day grace period and a certain way to get in other than having it postmarked.

But this judge is giving them a hard time. He's saying, you know, I'm not so sure that an administrative ruling like that can oversee a plain-speaking Florida statute, and then he's questioning whether or not that just had to do with that 1984 election. So, Lawyer Bartlit has his hands full trying to convince this judge that this administrative ruling which allows the extra 10 days is really the law of Florida.

And that's where they are right now. The judge is questioning whether or no -- what is the right law, is it the law passed by the legislature or is this later administrative ruling in some ways modifies the law. In fact, modifies the law giving an extra 10 days. That's about where they are.

FRAZIER: Roger, I know you've been listening closely, and you want to get back to listening, but let's set the stage here on what's at stake here. How many ballots are we talking about?

COSSACK: Well, I'm not exactly sure of the total amount, but there's all these several counties, you know, many, maybe 20 counties that have been sued under this complaint for declaratory relief and we heard one of them had 17 absentee ballots that were eliminated, and then later on, I think it was Bay County, and they said, OK, 14 of those are -- not Bay County but Clay County, 14 of those 17 have been admitted. So there's -- but there are about, I think, maybe 15 other counties that are included in this lawsuit with varying amounts of absentee ballots and many of whom have been excluded.

And what Mr. Bartlit, the lawyer for the Bush campaign, is saying, look, we're protesting now because we think that they're excluding them improperly on different standards and we want you, judge, to issue what's called declaratory relief or tell the people what the standards are so that they can go back and review these ballots pursuant to these standards.

And the problem that he's running into is that apparently the judge and Mr. Bartlit have different views, at least so far, on what the proper standards are. And so he's just brought up his first one, presumably his strongest argument, the postmark argument. He's seems to be having some difficulty with the judge, but, you know, it's far from over. FRAZIER: Roger, that clears things up quite a bit. Thank you very much. Let's go back and listen more to what's happening in that courtroom right now.

BARTLIT: I'm saying that the procedures and policies in effect, including that statute, in practice were insufficient to implement that federal right.

What the state did was submit the statute the court is looking at, but in addition the rule as the plan of compliance. Judge Stafford adopted the statute and the rule as sufficient compliance with the federal lawsuit. And if the court will look at the legislative history to the rule, you'll see in the bottom it says, formerly 1C- -- I think it's 2.17. And if you look at the order granting relief, the federal relief, and adopting the plan of compliance, it cites that rule.

It is not a matter of going by the state administrative rule over a statute, it is the state administrative rule that permitted Florida law to comply with the federal law. And that's why Mr. Bartlit is talking about it trumping it; but for that rule the statute would be unconstitutional as violative of federal law under the supremacy clause.

BARTLIT: Your Honor, we could submit a short separate paper on this issue, if the court would desire; we can do that by first thing in the morning.

SMITH: Very well. You may proceed.

BARTLIT: The second point I'd like to make is this, Your Honor. We've talked about the postmark or signed-and-dated issue. Let's turn now to the signed-and-dated issue and see if there are ballots improperly rejected for supposed noncompliance to the signed-and-dated issue.

First going to talk about the Boardman (ph) case. Your Honor knows the Boardman case. The Boardman case is a case where there were many irregularities, like no address of attesting voters. These were absentee ballots. It's a case like this case, which is absentee ballots. They didn't check the little place you have to check as to why you're voting absentee. There was vague identification of witnesses.

The trial judge found that those irregularities were not fatal. The 1st District reversed and said that every aspect of the absentee voting law has to be applied across the board. They're all important.

The Supreme Court reversed the 1st District and said that all that's required is substantial compliance, and that unless the absentee voting laws declare that a particular act is essential, essential to validity, then the statute would be treated as directory, not mandatory.

Now, how does that apply here? Well, let's look at Exhibit C.

The Florida attorney general, in Exhibit C, noted that...

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