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Florida Circuit Court Hears Arguments on Gore Motion to Speed Election Contest CaseAired November 28, 2000 - 5:54 p.m. ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
JUDY WOODRUFF, CNN ANCHOR: We are going to take you directly back to that Tallahassee courtroom where Gore attorneys in an emergency motion are trying to get a special -- emergency counting, immediate counting done of certain disputed ballots in Miami-Dade and Palm Beach Counties. Let's listen to attorney Dexter Douglass.
DEXTER DOUGLASS, GORE CAMPAIGN ATTORNEY: ... criticizing courts, criticizing other people and keep our eye on the ball to get the ball to the end of the game. We will still continue to do that.
Now I would like to request that my co-counsel address the emergency motion in a little more detail than me, because he's much more prepared on that, plus he may have a few remarks about the other motion, with the court's permission.
JUDGE N. SANDERS SAULS, LEON COUNTY CIRCUIT COURT: Well, however you wish to proceed. But now we're dealing with trying to finalize some expedited trial calendar and if there's anything I think related to that, rather than getting off into the other motion that I had.
And when that time comes, I'll ask what the difference is between this motion and the motion I had that was up here the other day. And I already ruled that we were going to have to hold on that motion until we got the issues joined here. And I think automatically with our built-in expediter, once your list of exhibits and witness list came in, that automatically shortened the other time. It shortened it from four to three days. That, you know, gets us closer to having the issues joined.
And I'm just looking at your schedule. And anything else I suppose your co-counsel wants to comment on, on this, I would think maybe we ought to do that first, stay focused on this, and then let me hear from the other side. Or, if they wish to have their lawyer proceed, then I would hear him...
DOUGLASS: Well, I would prefer him to go ahead.
SAULS: Whatever your pleasure. You may proceed.
DAVID BOIES, GORE CAMPAIGN ATTORNEY: If it please Your Honor.
SAULS: Go ahead. BOIES: Thank you, Your Honor. They can proceed. I agree with the court that the right thing to do is deal with the expedited motion first and then we can come back to the motion on counting.
SAULS: Very well.
BOIES: Your Honor, would this be helpful? Whatever you want to do, this is the calendar, and maybe we could all -- where would you like it?
SAULS: Maybe that might be helpful for someone else, but I believe that's just a reproduction of what I have here.
BOIES: Fine, Your Honor. I just didn't know if you needed it.
SAULS: But I didn't want to show you all my markings on it already. I've got mine, sort of, marked up and used over this thing.
But I haven't had it -- if it's convenient for anybody else, by all means.
JOE KLOCK, ATTORNEY FOR FLORIDA SECRETARY OF STATE KATHERINE HARRIS: Your Honor, Joe Klock, Steel, Hector & Davis, for Ms. Harris and the canvassing board.
Your Honor, I'd like to point out a couple of things, if I could. I think one of the key things that Mr. Douglass said was that what they are vitally concerned about is the will of the entire people of the state of Florida. And I think, Your Honor, if you look through the papers what you'll see is, is what they're vitally concerned about is counting all of some of the ballots. They're not the least bit interested in counting all of the ballots in the state of Florida. And all of the papers that are going to be presented to you, you're going to see that they want select ballots here and select ballots there counted.
Now with respect to the secretary and the canvassing board, Your Honor, a couple of things that I think should be straightened out before we go forward. With respect to Palm Beach County, the Supreme Court of Florida in their decision gave the secretary and the canvassing board two options. It said if the office was open on Sunday for business, then at 5 p.m. on Sunday, the returns were to be in the office and the board was to proceed. If the office was not open on Sunday, then they were to proceed at 9:00 on Monday.
If Your Honor has read the order of the Supreme Court, there is no discretion at this point of time that is reposed in either the secretary or the canvassing board as they have read the order. And, therefore, they did what the Supreme Court of Florida told them to do.
At quarter to 5:00 on the appointed evening of Sunday, Palm Beach County sent something which could only be looked upon as being some sort of numerical potpourri. There were columns of numbers, Your Honor. One column of numbers for the Gore and Bush race had the automatic recount numbers that had been done immediately following the election.
The second set of numbers that were provided had the manual recount numbers, Your Honor, but then, when they got to the precincts where they hadn't done manual recount numbers, the number was empty.
So the canvassing board had two possibilities: They either take the automatic recount numbers that they had or they could take the second column, which would have shown Vice President Gore 15,000 votes behind. There was no way, looking at that document, to try to figure out any way of including any of the manual recounts that had been done. And while, Your Honor, we believe the statute's pretty clear that you must recount all of the ballots, that's what the language of the statute says, if the certificate coming up had included a partial recount, we would have had no choice but to accept it.
So to suggest that the secretary or the canvassing board acted in any improper fashion or, as Mr. Douglass has suggested, that they are aligned with Mr. Bush's side, is unfair, Your Honor, any more than it would be unfair to suggest that the attorney general of the state is aligned with Mr. Gore's side because he is a Democrat.
The second point, Your Honor, is with respect to the 162 Dade County votes. The information that we have had provided to us, Your Honor, shows that the votes in question came from -- and this is just, you know, apocryphal -- from 135 precincts. Those precincts, Your Honor, were a 74 percent vote for Gore. They stopped at that point in time. The overall numbers from Dade County showed that something like 54 percent of the votes were for Gore. So what statistical value is supposed to be gleaned from these 162 votes is not clear.
But the point is, Your Honor, the canvassing board and the secretary had no choice but to follow strictly the rule that was laid down by the Supreme Court of Florida. That was made quite clear.
Now, with respect, Your Honor, to why we're here today, and I'd like to pick up on what Your Honor said, we had a hearing yesterday, and the hearing yesterday had to deal with all of these things, and Your Honor ruled, properly, we believe, that before such time as you could get into discovery and counting ballots you had to know whether or not there were legal issues and whether or not you had a prima facie case.
Your Honor ordered us to answer I thought on Friday. I accept the clarification Your Honor meant today, because they did, of course, come up with their witness list early, that Your Honor wants us to respond tomorrow. But, Your Honor, this entire schedule on the blackboard, wherever it went, presumes that Your Honor has already ruled in their favor, it has a generous allocation of time for appellate review as opposed to the time that is necessary for trial.
The Democrats, Your Honor, asked and pressed the Supreme Court of Florida to extend dramatically the protest period, which was done. So now we're in a situation where we have a relatively truncated contest period and what is to be done is everyone is to be pushed in an unseemly fashion forward to meet their time deadline.
Now, Your Honor, unlike Mr. Douglass' side or Mr. Bush's side, we do not have representing the secretary legions of lawyers to do this work. Judge Carter (sic) today has set up in her case something like 20 depositions that are supposed to be taken in the next several days. There is a brief we filed today, Your Honor, a brief in the Supreme Court of Florida at 5:00, a brief in the 11th Circuit at noon, and a brief in the United States Supreme Court at 4:00. On Thursday we have to file another brief in the United States Supreme Court and oral argument is on Friday.
Your Honor, there is no conceivable way that the procedure that you have set forward should be modified. The issues must first be drawn, we have to see what the legal issues are before we can go forward.
And finally, Your Honor, I have no idea what exactly is to be done with these ballots that need to be counted. Under the statute, in the Supreme Court opinion, there's no guidance given. The only thing that we know when there's a manual recount -- and, of course, as Your Honor knows, the secretary's position was that manual recounts were only supposed to be undertaken as a third alternative when there was a tabulation system error. The Supreme Court of Florida has rejected that and established a common law, an equitable and a constitutional basis for a manual recount. But, Your Honor, the only standard is that the three-person canvassing board is to divine the intent of the voters.
Now, Mr. Douglass has cited to Your Honor a case that talks about counting ballots. That's not what they have in mind for Your Honor. Number one, we're going to select certain ballots and then Your Honor is going to be put into the Carnac position of having to examine, presumably, the battles -- the ballots, rather -- to determine the intent of the voters.
Now, let's just look at where we stand as far as that's concerned. Dade County, Your Honor, decided that they couldn't get the job done by the deadline of the Supreme Court, so they stopped the process. Broward County apparently, from everything that can be seen, had a relatively liberal rule that they followed, and that was is that whether or not all the holes were punched or some, they would look at the presidential side and try to figure out what a dimple meant. In Palm Beach County, on the other hand, apparently what they did, from what you can tell, is, is they looked at a ballot and they saw that all the holes were punched except in the presidential race and there was only a dimple, they would determine that that was not a voter intent to vote.
Now what, pray tell, Judge, is the court to do? Is this court being asked to determine what the standard is? And what standard do you use? Do you use the standard that was articulated by the canvassing board -- or actually not articulated -- in Dade, Broward or Palm Beach County? Do you make it up? The only guidance that we have in the statutes for this procedure, which we believe, Your Honor, was never intended for a common law recount, is a three-person canvassing board that is composed of one Republican and one Democrat and one whatever in the middle, which is supposed to make decisions as to intent.
We think the legal issues, Your Honor, are very important issues that need to be decided before we rush forward. And also, Your Honor, we'll point out to you that the statute says on a manual recount that you count all the ballots, not just some of the ballots, not the overcounts, the undercounts, all of the ballots, because, Your Honor, if you were to look at other counties where you have ballots that are not on punch cards, there might be other indications of a voter's intent.
And the legal standard, Your Honor, that we'll suggest is, they must be able to demonstrate to you before they can do any kind of recount in the contest that it would make a difference in the election, not, Your Honor, in Dade, Broward and Palm Beach County, it's a statewide race.
They have to demonstrate to Your Honor that whatever it is that they want this court to undertake has to make a difference in changing the election results statewide.
They chose, Your Honor, when they went down the manual recount route to only challenge in three counties. They made their bed in that regard. I do not know, Your Honor, as a matter of law how they can possibly demonstrate that the change in these votes would make a difference in a statewide vote as opposed to a county-by-county vote.
Finally, Your Honor, I would suggest, just as a matter of, you know, human decency, that we have to come up with a schedule that works with everything else that is going on. There are cases pending in the Supreme Court of the United States, the United States Court of Appeals for the 11th Circuit, the Florida Supreme Court. There are other trial courts around the state that are still moving forward. Your colleague, Judge Carter, has just established a very rigorous schedule to go forward. And we, Your Honor, are a party to every one of these actions. And we, Your Honor, do not have 500 lawyers that can turn their attention to this.
And I would return again to the schedule Your Honor established yesterday, which was a very reasonable schedule. And as Your Honor pointed out or suggested, you have ruled on these motions before. They didn't like the answer. So now we've repackaged them and we've called them something else.
And, finally, Your Honor -- the second finally -- the schedule that they have, which has an allocation of time which is almost equal between appellate time and trial time puts experience on its tail. Everyone knows it should take longer to go through the process of identifying witnesses, identifying issues, going through discovery and trying a case than the appellate side.
This situation, Your Honor, was not caused by the secretary of state or by the canvassing commission. It was caused by a reallocation of time between a protest and a contest period. And the rights of the people of the state of Florida and the rights of these defendants should not be turned on their tail in the rush by the Democrats to get a certain result in a certain time. Thank you, sir.
SAULS: Anything further?
BARRY RICHARD, BUSH CAMPAIGN ATTORNEY: Yes, Your Honor.
I've enjoyed the debate. My understanding, however, was that what you wanted us to focus on at this point is the schedule.
SAULS: That would be appreciated.
RICHARD: So I'll limit myself to that issue.
Counsel is suggesting that it's necessary for you to force us to go to trial on a case which is not only important, but which involves a massive number of documents and I suspect a good many witnesses without adequate time to take even the barest amount of discovery, without adequate opportunity to prepare our case for trial, and without adequate opportunity for this court to conduct a meaningful trial. And they have not given Your Honor a sufficient reason why that should be done.
I mentioned yesterday that the fact that this case involves the presidential election is not sufficient reason for us to suspend basic due process or the fundamental rules of procedure designed to provide the contestants with a fair opportunity to be heard and the court with a reasonable opportunity to have the evidence presented.
Now, I suggest to Your Honor that as long as this case is concluded by the 9th, that is more than sufficient time for it to be heard by whatever appellate court hears it. We need to remember that the Florida Supreme Court, in the last round of this interesting proceeding that we're involved in, ordered briefs, received them, read them, heard oral argument and ruled in a day and a half. The court needs no more than two days to hear this and decide it after Your Honor completes the trial.
Judge Clark, whom counsel inadvertently referred to as Judge Carter, has indeed scheduled a trial, and a separate election contest in this same election for the 6th. So, what counsel is suggesting is that we need to prepare for both of these trials, try one on the 6th, and the other one -- try one next Monday, and the other one on the 6th. And that's unreasonable.
Now, Your Honor, the only reason it would be necessary to do that, the only reason suggested by counsel, is that they need adequate -- is if they needed adequate time to have the ballots recounted once again, after the trial, because I agree with counsel that it is absolutely inappropriate for this court -- and I think the court has no authority -- for Your Honor to begin counting ballots again. I'm not sure how in the world you would do that. And there is no authority for Your Honor to appoint a special master to begin counting ballots. And there is no basis for ballot counting to begin before Your Honor has determined that the relief is appropriate.
The reason I mention this is, presumably counsel will suggest that if this court doesn't hold the trial until the 9th, that there then will be no time for ballots to be counted. But there is no reason for those ballots to be counted again. If the Supreme Court had intended, as counsel is now suggesting, that Your Honor would immediately begin another hand recount of these ballots, then it would have been meaningless for them to have given us a November 26 deadline for the hand recounted ballots to be submitted by the canvassing boards, which is what they did.
They said the final cutoff is 5 p.m. this past Sunday. Counsel is saying that Your Honor should ignore that cutoff, and begin once again with the hand recount of all of the ballots that they wish to be recounted.
The bottom line, your honor, is that the issue of manual recounts has nothing to do with the scheduling of this case. And there is no reason why this case should not be permitted to proceed to a trial that begins -- I would suggest -- on the 7th, which would give us the 7th and the 8th. Your Honor would have an opportunity to hear arguments and rule on the 9th. The Supreme Court, if it decided that it wished to take this up, would have the 10th, and the 11th, and perhaps some of the 12th to decide whatever they wish to decide. And I would urge your honor, that that is more than a reasonable time for us to be able to do this.
I also would agree with counsel, by the way, that the reason we find ourselves in this position, with this truncated amount of time, is because of the legal strategy that was elected by the plaintiffs, who chose, instead of filing an election contest immediately after the first certification, to take a different route instead. And it's unfair for them now to ask this court to force us to go trial, before we have adequate opportunity for preparation, and to ask this court to hear a trial that cannot adequately be presented in that time.
SAULS: Well, let me ask you, before you sit down, you mentioned, what, 30 depositions in some other case? What? That's another...
RICHARD: Judge Clark...
SAULS: ... case that...
RICHARD: Yes, Your Honor...
SAULS: ... apparently if -- I guess it's going to get ahead of this one. I don't know. What does that case involve?
RICHARD: It's a case out of Seminole County, Your Honor, that was transferred here, a case that challenges...
SAULS: Oh, so another...
RICHARD: Well, it's a contest of the same election. It's a challenge to a number of ballots. It's not clear how many...
SAULS: Some other county?
RICHARD: Yes, Your Honor, we asked Judge Clark to transfer it to you for consolidation with this case, but she declined to do so.
There are, it was estimated, about 30 depositions to be taken. There are many witnesses, many documents, and Judge Clark has scheduled it for trial on the 6th.
SAULS: OK. Well, everybody will have to add lawyers then. It may be all of you are going to be like -- probably like the fellow that ran out and jumped on his horse and rode off madly in all directions.
RICHARD: May I make one more comment in that regard please?
SAULS: All right.
RICHARD: There was a comment by Mr. Douglass that my side had plenty of lawyers to go around. But the fact is, number one, that I do not have an unlimited number of lawyers available to assist me in this case. And number two, there's only so many lawyers who can prepare for and present the case that would be recognizable by the court before we begin tripping over each other. And finally, somebody has got to be in a position to oversee all of the cases and make sure that we have an integrated presentation to the various judges who are going to hear these cases, and that job has fallen to me, and I can only be in one place at one time. And I think it's not unreasonable for me to ask that we be accommodated fairly.
It, by the way, is the plaintiffs and others who support their same position that have been in the practice of filing lawsuits and motions day after day after day that have placed us in this posture of having to respond all over the state and virtually every hour.
SAULS: OK. Well, it looks like to me, with the disparity we've got, we're going to have to make a field command decision here, I suppose, and we're going to have to work out something.
I had been looking at the calendar. Mine, of course, wasn't as pretty as your calendar that we had here today, but that's the first thing I did. I wrote on your first motion. That was my little calendar I was looking at when I was trying to fashion what I did the other day. Now that I've got this fancier version, I still looked what I was thinking and I hoped perhaps that you could reach some mutual accommodation.
It looked like to me, because of the timeframe, and recognizing that 12 days out of the normal time for the contest, or in this particular case to contest an election, already been burned up in some other proceedings, rather than in the proceeding for a contest, it doesn't leave us much time, but we've got to work with what we've got, and we've got to do the best we can to do that and in a fashion that is going to be fair to all of the parties.
And at this junction I have just about stripped the defendants down to the bares of due process. I can't just absolutely dispense with due process as far as they're concerned. But as we stand now, they have to file their answers by Thursday, and they have to furnish the plaintiffs their list of witnesses and exhibits at the same time. And I don't have too much disagreement with your ultimate schedule, but I had, sort of, looked at the -- December the 7th or the 6th as being able to conclude a full and fair hearing here.
And it appeared that we might get on track to do that if, when we expedited and you had your answers on Thursday and the list of witnesses, that perhaps we could begin with some ongoing discovery, perhaps the commencement of some portions of some taking of some evidence on Friday.
I had gone ahead, in view of the circumstances, to count Saturdays and Sundays. It's been our understanding circuit judges in Florida, we're on call 24 hours a day, and so if it's necessary, that's where we would be. So we're available. And perhaps to the extent that any personnel is necessary, if that could be arranged, but this court can't just direct people to do things when they don't -- we have a lot of logistics as far as clerks and bailiffs and what have you, and so we need to plan for that.
But then we needed to -- it just doesn't leave you too much time for discovery. So to try to commence a trial on Friday without you having at least a day or two for discovery, I frankly don't know where else we'll go in that regard.
And we need -- it seems to me, we need to take some evidence to determine what -- as I had indicated before, what ballots are we talking about? And which ones?
And if the court is going to be asked to count ballots before we just start counting, it seems like to me that what would be the standards for any clerks or any fellow judges that perhaps were appointed, what would be the standard? And if the standards are as indicated the totality of the circumstances, we won't have any people voting, I suppose, on individual ballots, but we would have people vote -- the judges or are we going to appoint clerks to then decide for themselves under a totality of circumstances?
I'm unsure at this juncture. And it would appear that perhaps the taking of some evidence would be required, or at least, perhaps, that's the initial evidence that should be required and taken so as to determine what standard, if any, is to be determined for the counting of votes.
And then we'd have to get to the question of what are we going to count. As I understand it -- and that's an excellent decision by Judge Labarga, and I've had the opportunity now to read in the interim in Palm Beach County where he, I think correctly, stated the law and then the particular board acted.
But I have no idea what method was employed in Palm Beach, for example. What, in fact, did they do as a result of the judge's annunciation?
And as I understand, there's a reference here that perhaps in another county -- I assume perhaps using the same judicial announced standard -- what, in fact, did that board do, or how did it conduct itself, or factually what type of ballot prompted them to have a vote each time, or how, in fact, did they conduct that? That, perhaps, would be of some benefit to try to determine if there is a necessity to count ballots in this contest, then that's the procedure we should follow.
So, what I am suggesting is, I think where we are, is perhaps if we could get ready to take some evidence, perhaps on Friday or Saturday, with reference to that initial aspect, I believe, which is going to have to be done. We can't have people just running off, you know -- jumping on the horse again, and riding off in all directions, just counting. We can count till everybody's slap-happy, but if nobody's on the same page, then I don't know what's being accomplished. And in that context, as we do that, we need to find out what ballots, if any, do we need, and what are the logistics of doing that.
And perhaps we could go ahead, and, as another aspect of this today, agree that we need to try to get at least some ballots -- at least something we could start. You could put them into evidence, or we could determine, at least perhaps we'd have some on hand. But if we're talking about bus loads of ballots, then we've got to turn around and figure out, are we going to go to the mountain, or is the mountain going to come to us.
RICHARD: Your Honor, if I could raise one point, before we adjourn...
SAULS: Yes, sir? OK.
RICHARD: Friday is bad. We do not have two teams. We have one team, your honor. And Friday we have to meet before the Supreme Court. So, if your honor wants to do anything, we respectfully request it be Saturday, rather than Friday.
BOIES: We would respectfully request, if we're not going to do it Friday, we do it Thursday, Your Honor. We always want to do it earlier, rather than later. And I think that both sides here have a lot of lawyers. Somebody was saying that if...
SAULS: Well, let's just go get off on that, and start fussing about that one to begin with, until we can get -- let's just ...
BOIES: So, if we could proceed with...
SAULS: Stir it around here, just a little bit and let's see if we can...
BOIES: So, if we could proceed with this case, Your Honor...
SAULS: Sir? BOIES: If we could proceed with this case, without having this case delayed by other cases, I think that's going to be critical. It's certainly going to be critical from our standpoint. I think the court focuses on two very important issues. One, is the issue here, what the canvassing board did? That is, does this court have to review what the canvassing board did or not?
We submit that that is not an issue that is in front of this court. We submit that the issue that is in front of this court is what is the right resolution of the contested ballots? We have contested certain ballots. We have said that certain ballots we believe should have been counted for Vice President Gore were not counted for Vice President Gore and we have identified what those ballots are.
We believe that under Florida law, we have a right to ask for a judicial determination as to whether or not those ballots should or should not be counted for Vice President Gore.
Whether the Palm Beach board did their job right or wrong isn't relevant to that question, except obviously if they did it right, maybe they would have counted it for Vice President Gore.
But this is not a review of administrative decision. This is not something where you have to go and ask them, what standard did they apply? Did they look at the ballot properly? Did they spend enough time, or not enough time? Did they have enough people look at it? None of those issues are relevant.
This is a question, as we think the case law makes very clear, for the court to decide -- for the court or the court's appointed agent to look at the ballot and make that counting decision.
The second issue is what kind of standard should be applied? Again, we don't think that's a factual issue; we think that is a legal issue. And we think the Supreme Court of Florida has made clear that it's a legal issue. And that's consistent with what the Massachusetts Supreme Court has ruled, what we think the Illinois Supreme Court has ruled, what the Supreme Court of South Dakota has ruled, and a lot of other courts as well.
But that's a legal question, not a factual question; it doesn't depend on the taking of evidence. If there are particular questions about how the machines work or the like, that is something that we would be prepared to, obviously, present evidence to the court about, if that would be useful to the court.
But the fundamental issue as to whether a ballot does or does not express the voter's intent has consistently under Florida law been held to be a judicial question. And it's that judicial question that we're seeking resolution of here.
Those, I think, are the two legal issues that are in front of the court.
And from our perspective, to say that you're going to wait until after the trial to have the examination of the ballots, is backwards. Because here the witnesses are primarily the ballots. The issue is whether particular ballots do or do not express a voter's intent. With respect to the Dade County ballots, approximately 9,000 of them, no one has ever looked at those ballots to determine whether or not they express the voter's intent.
SAULS: Nor has anybody applied any standard to them.
BOIES: Nor has anyone applied any standard to them, that's exactly right, Your Honor.
SAULS: What is the standard then that is to be applied? That's where we get right back to where we began.
BOIES: That's right. And it may very well be useful to have either briefs or arguments to the court, because that's a legal question about that standard.
We think the Florida Supreme Court set that standard in its opinion. We think that the Florida Supreme Court adopted what the Illinois Supreme Court was saying in the long passage that was quoted there.
SAULS: Are you saying that the judge in Palm Beach was incorrect in his ruling? Do you disagree with that ruling?
BOIES: No, no, I think the judge in -- I think -- Judge Labarga?
SAULS: Yes, sir.
BOIES: I think Judge Labarga was on the same page. I think that Judge Labarga's opinion also reflects the right standard.
SAULS: It might attest to the totality of the circumstances test then, you've got to look and take -- you've got to have something to look at so you can make a determination what that is going to mean, don't you think?
BOIES: What you look at, Your Honor, I think is the ballot. And it is -- to get that process started, that we have been pestering the court with as many papers as we have submitted.
SAULS: A little bit like getting nibbled to death by a duck. Go ahead.
BOIES: Well, we appreciate that, Your Honor.
But we decided that, that was a better approach, at least in our early days, than to, sort of, come in with something stronger. This is a -- something that is extremely important to us, we want to be gentle, we want to not be intrusive with the court, but we do...
SAULS: What are you here for?
BOIES: ... want to press the court, because the Supreme Court clearly believed that this job could be done in the time allotted. Defendants' counsel keeps saying it's our fault, we think it's their fault, but the Supreme Court said it doesn't make any difference whose fault it is, you just got to get it done within this time period.
SAULS: At this juncture, I can't be worried with that. I've got other things to do.
BOIES: I know that, Your Honor.
SAULS: Well, let me ask -- the reason I indicated we need to -- if we could arrive at least what we can have to at least begin doing something, we could get -- if I had some idea -- if we were talking about, if -- you mentioned -- you say 3,300 disputed ballots in Palm Beach, we could find out if the court down there would authorize...
RICHARD: Your Honor...
RICHARD: I want to address...
BOIES: Could I correct just one thing, Your Honor?
SAULS: OK, go ahead.
BOIES: About Palm Beach.
SAULS: Yes, sir.
BOIES: Somebody told you -- and I don't remember who it was. But somebody told you last time we were here, yesterday, that there was an order from Judge Labarga that prevented those ballots from coming up here.
SAULS: That's what I -- my recollection.
BOIES: That was my recollection, too. We've checked and we don't think there is such an order. So if whoever said there was such an order could tell us what order they're talking about, what date it was entered and maybe get a copy of it, that would be useful, because we've checked and we've checked the court records and we can't find any such order.
SAULS: That was -- I left -- it was my assumption that, that was one problem that -- problem that needed to be addressed as the parties were conferring yesterday or last night or today, and perhaps that could be resolved next time.
BOIES: No one we've been able to talk to has been able to give us a copy of the order.
SAULS: I don't know. Well, let's just ask Palm Beach right now.
PALM BEACH COUNTY CANVASSING BOARD COUNSEL: Yes, sir. Yes, judge, I'm here. SAULS: Can you give us some assistance?
PALM BEACH COUNTY CANVASSING BOARD COUNSEL: I'll try to.
And that was me that referred to the order of Judge Labarga. And Mr. Boies is correct to the extent that he searched for a written order; Judge Labarga did not reduce his order to writing. He ruled from the bench and he directed us to make these ballots, all the ballots available for public inspection upon completion of the manual recount.
That public inspection began today. There is a hearing scheduled for tomorrow morning before Judge Labarga at 9 a.m.
There are various motions, but among them the Florida Democratic Party is going to ask that the public inspection be terminated for a number of different reasons, and most particularly because those ballots may well be critical evidence before Your Honor.
So we won't be back in front of Judge Labarga until the morning. There was a verbal order from Judge Labarga last week, but it has not been reduced to writing.
SAULS: And you're going to be back before the judge in the morning?
PALM BEACH COUNTY CANVASSING BOARD COUNSEL: Yes, Your Honor.
SAULS: So we would be able to know something tomorrow?
PALM BEACH COUNTY CANVASSING BOARD COUNSEL: We would expect so.
PALM BEACH COUNTY CANVASSING BOARD COUNSEL: Judge Labarga has ruled very promptly on these. He rules from the bench...
SAULS: All right. Well, then that is -- that's some help. At least, it gives us further information.
RICHARD: Your Honor, I think before we decide what to schedule we need to address the question of what the threshold issue is. And I would suggest to Your Honor that I disagree with Mr. Boies. I do agree with Your Honor, but I'd like to place it in what I think is the proper context here.
The Florida statute provides that it is within the discretion of the canvassing boards to determine whether or not there will be a manual recount, and if so, to conduct that manual recount.
The Florida Supreme Court, in its recent decision that we are well aware of, explicitly, expressly reminded us that it is within the discretion of the canvassing boards both to make that decision whether or not to do it, and to conduct the manual recount. Now Florida law does not provide that when a canvassing board has completed a manual recount, just because one files a protest or a contest, that the circuit judge shall then step into the shoes of the canvassing board, and begin to look at 15 or 20 or 40 or 50 or 60 or 100,000 ballots one at a time, and say, I disagree with the board here, I agree with the board there. That's not how it works.
What the law is, is that the judgment for the court is whether or not the canvassing board abused its discretion in some manner. That's what we have to decide as a threshold issue.
What the remedy would be for that we don't reach until after Your Honor decides whether or not they abused their discretion. When we reach that point, we would argue that the remedy would not be a recount under any circumstance, but we haven't gotten anywhere close to that yet.
What I suggest to Your Honor that we need here is we need to hear testimony, if the plaintiffs are claiming that that board abused its discretion, as to whether or not it did so. We need to hear, as Judge Labarga did, from members of that, at the very least, canvassing board as to what it was that they did.
What Your Honor is being told is that for some reason the members of that canvassing board didn't obey the law, didn't obey Judge Labarga, didn't obey the Florida Supreme Court. And the threshold question is, was that true or not?
Now, if after Your Honor hears the evidence and after you hear from the members of the canvassing board and whomever else might have knowledge of what the canvassing board did, you're going to either say, "I think that that canvassing board acted within its discretion as the law permitted it do, do and there's nothing more to be said here," or you may say, "They violated their discretion for one reason or another," at which point you will then decide what the remedy is.
Counsel is trying to put the cart before the horse. It's asking Your Honor to begin to institute a very onerous and costly remedy before you decided anybody violated anything.
So I would suggest to Your Honor that the first thing that we need to do is we need to schedule a hearing for Your Honor to determine whether or not the canvassing boards in Palm Beach and Dade County and Nassau County abused their discretion in some fashion. If they didn't, there's nothing more to do.
And I would urge Your Honor that that hearing ought not to begin on Friday, which is just not sufficient time. We need to get witnesses here. We need to get documents here. We need to complete whatever discovery there is, and that needs to start next week sometime.
SAULS: All right, here's what we're going to do. We're going to -- you have your existing schedule. Your response times, answer times have been moved to Thursday. We're not going to do anything on Friday. We will schedule a hearing. It will be all day if necessary. Be prepared -- see, by then, you'll have had the answers. We'll have some issues joined. Now, we have a little bit more of an idea what, perhaps, Mr. Richard's position would be on this. We know how to frame what it is that we need to take evidence.
In other words, after you've seen -- seen what the issues are, then everybody needs to come for the preliminary threshold of evidentiary determinations that we need to make, or that each side feels we need to make. And we will -- we'll hear it all. And then we will make those initial rulings and then proceed accordingly.
But then in conjunction with that, I have no idea what we're going to do concerning ballots, counting or not counting of ballots. That's going to be dependent upon the -- whatever -- if there is any evidence required, or if not, if Mr. Boies is correct, if it's a matter of law, then they won't need to be presenting any evidence at that hearing and then we would have a determination.
Well, we need to look just in case to have at least some of the -- it seems to me -- some of the information in the form of the ballots perhaps to be on hand and perhaps in this location, at least to the extent of -- well, they've requested, as I understand it now, some 3,300 ballots from Palm Beach County subject to Judge Labarga's direction, if we could request to get those up here.
And if there are -- whatever it is, there's 10,000 in Dade County, and we just bring them, or have them transported, or at least make the arrangements so that -- in an orderly fashion -- I don't think that anybody's going to be able to say, "Well, we need some -- we need a few ballots up here by in the morning," and call down and expect somebody to slingshot them up here.
So we need to look at some things about how to obtain the ballots, and that is volume of them and the transport of them, the security and the storage.
And at this point, see, I still have some questions, for example, how many of those in Palm Beach -- do those objections, the 3,300 that I understand that there were some objections to, does that include the ballot objections of both sides or just one side? Does that -- could anybody answer that question?
Is this 3,300 that you're requesting, that the plaintiffs' requesting, just the ones that perhaps were objected to by the plaintiffs? Am I then to assume that the defendants did not object to any ballots that Palm Beach's canvassing board reviewed and therefore were no ballots preserved which need to be brought? I don't know.
RICHARD: I don't know where that number came from, Your Honor. We believe that the canvassing board acted within its discretion and within the order of Judge Labarga, so we have not challenged what they did.
BOIES: The 3,300 are ballots that we have challenged, Your Honor.
SAULS: That your side has challenged?
SAULS: Perhaps -- well, I guess we -- if you want some ballots up here, we'll bring them. Now, if you want some ballots, we need to know which ones you had to object to, but we're going to have to find out what they did. I'm not saying that anybody's going to count ballots. We have to take some evidence and if -- I understand your position, Mr. Richard.
If the review -- if what the action that is required by law is to review the actions of the canvassing board, then that may be another matter. But if not, then at least we'd have something to start on. And if you have -- any side here has any ballots that are objected to, if you want them, you better let us know so they can throw them on the truck, too. But I need to find out from somebody if we have 3,300 -- if we have 3,300, can somebody tell me how many -- what it would take to transport those? And we could ask -- start asking the officials, you know, how we could get them, and explore it. So, at least by the time we start hearing on Saturday, we perhaps -- if we could get them up here by Friday -- see, this is Tuesday now. So we -- that would at least give them some opportunity to orderly try to bring what it is that we need.
DARYL BRISTOW, BUSH CAMPAIGN ATTORNEY: Daryl Bristow. I was prepared today, and I'll be prepared on Saturday to address these threshold issues fully. This is a contest of an election, not a contest of just a certain number of specified ballots that the other side would like to see.
BRISTOW: The law is clear: If you get over the immense hurdles that the law presents to begin to second-guess the election officials, the law is clear that, if you're going to have a manual recount...
SAULS: Well, we're going to hear that, I assume. I don't want to truncate you. So we'll hear that at the hearing on Saturday. All I'm trying to do is get us logistically in the position that whatever, if -- respectfully, if you are perhaps wrong and the ruling is the other way, we need to have something. We don't -- then won't have further delay after delay, just in the logistics of bringing something that -- just in case we can go ahead and order it.
BRISTOW: I don't...
SAULS: If we can order it.
BRISTOW: I don't want to delay this hearing unduly, Your Honor.
SAULS: Yes. Yes, sir.
BRISTOW: But the fact is you have to look at two issues. One is that if you have a manual recount, it has to be recount of all the votes. And you have the second issue that you have to have to look at, which is... (CROSSTALK)
SAULS: That means we don't have enough evidence, if you're right, then.
BRISTOW: That's right.
SAULS: I'm up here, but at least we'll have something.
RICHARD: Your Honor, so I understand it, then you're planning on legal arguments Saturday. You're not planning on bringing witnesses up.
SAULS: Any -- when you join the issues, you respond. And each of you know what your positions are. Then we're going to have a hearing. We'll deal with all matters that are legal and any and all matters that are evidentiary.
RICHARD: So you want to hear evidence.
SAULS: I want to hear whatever it is each side wants to present at that time. I think that, for an orderly procedure, perhaps we will take up matters that perhaps may be of law to begin with. And then we will proceed to those matters that may have some....
BRISTOW: On the evidentiary hearing, if any.
SAULS: ... evidence. But it means everybody gets your best hold and bring what you feel you'll need.
BRISTOW: Are you planing to look at this question that I know you have in your mind of standards on Friday, or does that come later?
MIAMI-DADE COUNTY CANVASSING BOARD COUNSEL: We respectfully request that you give us some instruction. Let me briefly tell the court the position we are in. For us to get the ballots ready to be brought up to Tallahassee, if that is what Your Honor orders, it will take us tomorrow to do that. We will then need specific instructions. These ballots are under 24-hour security right now, and have been since November 7. We would need specific instructions as to how the ballots are to be shipped, what kind of security, if any, what mode of transportation, who will accept them.
The statute requires that these be under the supervisor of elections' control, unless -- we agree if the court orders differently, we will comply with the court's order. But there needs to be some definite guidelines before we can release this, Your Honor.
SAULS: I understand there's an outstanding request for production, and there's no technical legal objection to that. Certainly then, if the supervisor could furnish that, I would think that you could submit such a proposed order as you deem would be necessary. And I would think, if that's what you require, if there's no objection to any of those items from these parties, that we could enter that.
MIAMI-DADE COUNTY CANVASSING BOARD COUNSEL: Your Honor...
SAULS: Yes, sir.
MIAMI-DADE COUNTY CANVASSING BOARD COUNSEL: We could do that if the parties can agree on a practical method that the supervisor can implement, that's fine. But right now, we have requests from at least a half a dozen newspapers under the public records law for all these ballots.
So, we will need a court order. If Your Honor will sign something, we will comply with it provided it's practical. Nothing can physically leave here, Your Honor, until Thursday morning at this time or late tomorrow night at the earliest.
SAULS: That's the reason I wanted to bring it up now. Is that Mr. Greenberg (ph) I'm talking to?
MIAMI-DADE COUNTY CANVASSING BOARD COUNSEL: Yes, Your Honor.
SAULS: OK, and the reason I thought I would broach the subject is just this sort of situation.
Now, I can't see at this juncture where there would be any need for those ballots, at least those that have been requested, until Saturday. So that gives perhaps not a long amount of time, but at least an adequate time to inconvenience your supervisor of election, and I suppose since this is a request to produce, if there's any expense involved, in essence I could grant the request to produce.
If that's necessary. If there's some expense involved that the supervisor is concerned about, then I'll assess that against the party whose motion is being granted for the production of those documents if it's necessary.
MIAMI-DADE COUNTY CANVASSING BOARD COUNSEL: That would be fine and appreciated, Your Honor, but we will also need the guidelines of how it's to come up. Is it supposed to come up regular mail, UPS, FedEx, security? We need to know that, please.
SAULS: What I would suggest is I need to know what your supervisor wants to do and what I want to do is to do what your supervisor of election wants to do with the supervisor's ballots. And I'll validate it, confirm it and stand with him, her -- him or her at every juncture. What I need is to somebody to tell me what I need to do to satisfy the supervisor and to -- the supervisor understands every nook and cranny of the election laws to make sure that what the supervisor wants done with those ballots, I'll order it done.
MIAMI-DADE COUNTY CANVASSING BOARD COUNSEL: Thank you, Your Honor. The supervisor is here with me, and he is stating it would be his recommendation that they be driven up by Miami-Dade police.
SAULS: Well, he'll have to go to talk to the police department now, I suppose.
SAULS: But however..
MIAMI-DADE COUNTY CANVASSING BOARD COUNSEL: If Your Honor confirms that suggestion, the Miami-Dade Police Department will do it.
SAULS: All right, can -- do you want me to require the party whose request I'm granting for the production to prepare the order? You could perhaps dictate it, what you're requirements are and have them prepare an order for submission.
MIAMI-DADE COUNTY CANVASSING BOARD COUNSEL: Your Honor?
SAULS: And I could just set a -- I would set a requested receipt date up here, say Friday afternoon. If your supervisor, for example, wants them transferred to the clerk of the court and then the clerk would have some advance notice so that the court then could store them in accordance with your supervisor of elections' directions.
MIAMI-DADE COUNTY CANVASSING BOARD COUNSEL: Your Honor?
SAULS: Yes, sir.
MIAMI-DADE COUNTY CANVASSING BOARD COUNSEL: We will prepare the order and submit it to Mr. Rutledge (ph) by tomorrow morning. He could bring it to the court. That will give us the time to plug in exactly what we need. We will send it to respective counsel and that would be appreciated very much, Your Honor. We will prepare the order.
SAULS: Well, you don't know how much I appreciate that. Thank you.
PALM BEACH COUNTY CANVASSING BOARD COUNSEL: From Palm Beach County, we would request that we would be included in the order as well because, of course, our supervisor has the same concern.
SAULS: How about if you would undertake the same endeavor and prepare the order that is your preference?
PALM BEACH COUNTY CANVASSING BOARD COUNSEL: We'll do that as well, Your Honor.
SAULS: Thank you. All right, go ahead. Let me hear you. We put the same date right now, but hold on subject to -- Mr. Bristow, yes, sir.
BRISTOW: We will be arguing...
MIAMI-DADE COUNTY CANVASSING BOARD COUNSEL: If I may.
SAULS: We can't stop him.
MIAMI-DADE COUNTY CANVASSING BOARD COUNSEL: I want to make certain we are talking about the 10,750 undervotes. Is that correct?
SAULS: That was the subject of -- you sent a request for production.
MIAMI-DADE COUNTY CANVASSING BOARD COUNSEL: The subject of the request.
SAULS: All I'm asking is to comply with the request for production. If they didn't ask what they should have, it's their fault, and at the same time, if there were any requests from any of the other parties or if there are, you see what is going to happen, so I strongly suggest that somebody look at that.
Here again, this is not to indicate in any way, shape, form or fashion -- I assure you, sir, nobody's going to start counting ballots, perhaps, on Saturday unless we get through with some of our proceedings. And if there is a basis that dictates that ballots should be counted, then perhaps they might start counting, or somebody would start counting, or there would be a count beginning Saturday night or Sunday or Monday. I don't know.
All I'm trying to do is, logistically, to get people, in other words, hold everything in a situation where -- dependent upon the development -- we would be able to move and then not, in effect, have truncated some right on this side if, in fact, they are entitled after we've given, admittedly, a short notice and an opportunity on your side.
BRISTOW: The only thing I want to do is to advise the court...
SAULS: Yes, sir.
BRISTOW: ... that it is very clear we do believe that you will not be in counting votes. But if you should get to that point, we're going to have a very clear position that you cannot look at those votes in isolation, and that they must be looked at in the context of the entire county vote, and we will be talking to you about what you would have to look at outside those counties.
But at least for now, in terms of the issue with these counties, we want to advise the court and all parties that it would be our position that no count could take place other than in the context of a full manual recount.
SAULS: All right. Well, I understand what you indicate would be your position, and that's a matter that we'll, perhaps, get into on Saturday. But in the meantime, the clerk will have at least some of the evidence -- a portion of it, and if there's more evidence that needs to be taken, if there was to be any recount at all, then perhaps we can tend to that part and figure out what we're going to do with the -- how we're going to get the rest of them or, if there's not a necessity for them, the supervisors will be happy that the clerk has kept them in their vault and there won't be any need for anybody to go in there and do anything except for the clerk to notify the supervisor that we wish to return your ballots.
All right? Thank you.
BOIES: Your Honor, I have one question...
SAULS: Yes, sir.
BOIES: ... and one comment.
SAULS: Yes, sir.
BOIES: The question is that both, I think, Miami and Palm Beach, indicated that they could have the ballots up here, perhaps by tomorrow night, but certainly by Thursday. And I would request that the ballots be brought up on Thursday if that continues to be possible rather than waiting the day until Friday.
SAULS: What's the difference?
BOIES: Well, Your Honor, it is our position that we can't wait until Saturday to answer two legal questions. Those legal questions are: one, whether it's an abusive of discretion standard or whether the court is going to order a recount; and two, whether you look at the contested ballots or whether you're going to try to look at all the ballots in a county or all the ballots in the state.
Those are two legal questions that we don't think we can afford to wait until Saturday to have answered. If the court is not prepared to address those issues before Saturday, we're going to have to appeal that decision, because it is our view that waiting until Saturday is tantamount to denying the substantive relief. And if our appeal should be successful we would want to have those ballots here so that the court could then proceed.
SAULS: All right.
BOIES: Thank you, Your Honor.
SAULS: What we're going to do is what I just indicated and, of course, I understand you have your rights and your position, but I'm not going to interfere with the U.S. Supreme Court on Friday.
And we're going to have our cutoff there, you'll have one day of Friday to do discovery with respect to any evidentiary matters that perhaps ought to marshal or assimilate any evidence. I'm going to again direct that the supervisors can -- if they do it sooner, it's fine with me, we just need to notify the clerk. But the deadline for having the request, for them to have the ballots that I've indicated up here, is Friday. I didn't say a time.
Would 12:00, do you think, be feasible, Mr. Greenberg on Friday?
MIAMI-DADE COUNTY CANVASSING BOARD COUNSEL: Let me just ask the supervisor -- one second.
SAULS: Good idea.
MIAMI-DADE COUNTY CANVASSING BOARD COUNSEL: Yes -- yes, Your Honor.
SAULS: All right, how about Palm Beach?
MIAMI-DADE COUNTY CANVASSING BOARD COUNSEL: As far as we can tell -- if we run into a problem we'll get back to you right away.
SAULS: Well, try 12:00, and if you can't, close of business -- how about that?
MIAMI-DADE COUNTY CANVASSING BOARD COUNSEL: All right.
SAULS: That's the best I can do; and then we will schedule -- it's an omnibus hearing for whatever needs to be considered in this case on Saturday and we will take action with all due speed on what direction we're going to go as far as ballot counting or otherwise; and that's all we have.
If we wind up with 10,000 ballots and 3,300 ballots, that still would be in the timetable if you had Sunday, Monday and Tuesday to count -- perhaps even if it went over into Wednesday, we would be finishing up with any other legal hearings and matters while that was going on in those four or five days, and that still would keep us on the timetable that I indicated of hopefully finishing by the 6th.
And that, essentially, would almost be in accord with the schedule -- the new schedule that was requested here this morning. But it gives some leeway, and I can't set an absolute deadline. It may go into Thursday; and if that's the case, then it does truncate, to some extent, the appellate time, but everybody's got their problems with this case, so everybody will have to share the good fortune.
BRISTOW: Your Honor...
SAULS: Yes, sir.
BRISTOW: I'd just like to make the same point for the record. On behalf of the secretary of the canvassing commission, our view is if there is any recount to be done at all, under the statute it has to be all the votes.
SAULS: I gathered that that might be your position; and I'm sure I will hear that again on Saturday. I want everybody to understand I'm not making any prejudgments, I'm just trying to, in effect, get all the chairs arranged on the deck.
Now, do we have any questions about this new schedule? The only other thing I can think of is, again, with your responses due on Thursday, now -- did we say 12:00 or close of business, 5:00?
I thought I said 12:00.
BOIES: We filed ours before 12:00, Your Honor.
BRISTOW: It was originally Friday, but we backed it up to Thursday, so... SAULS: All right, since we're going to have the hearing on Saturday, then it won't be necessary to move it to 12:00. That being the case, then, you've got your period, there. You'll have Friday for such discovery or marshalling of evidence that anyone else needs. I've now directed that you will have some evidence available in the event there's a need for it at that hearing, at least for your -- the purposes of your case. If anybody else decides that they want some more ballots, you've heard the supervisors, they're, apparently, bending over backwards to accommodate everybody; but we don't want to wear their patience out.
And if somebody does have some further suggestion, if they knew tomorrow, perhaps they could work on trying to accommodate by, say, Saturday.
So, that's something that the other parties need to look at.
Now, that being the case, where does that leave us now with your emergency motion here? I think I have essentially denied beginning to count something that we don't have right now.
BOIES: I think you have, essentially, denied it, Your Honor. I do think there is an issue and I think you have, essentially, denied it, but I'm not sure and I'd like to push...
SAULS: Well, I want to hear further matters that we need, but -- who was that? Was that my friend Mr. Greenberg down there?
MIAMI-DADE COUNTY CANVASSING BOARD COUNSEL: Yes, sir.
SAULS: What was it?
MIAMI-DADE COUNTY CANVASSING BOARD COUNSEL: What time Saturday is the hearing, Your Honor?
SAULS: What's your pleasure?
MIAMI-DADE COUNTY CANVASSING BOARD COUNSEL: Whatever the court wants to set it, we just want to know.
SAULS: Is 9:00 all right?
MIAMI-DADE COUNTY CANVASSING BOARD COUNSEL: Yes, sir.
SAULS: Very good.
Anybody else have any problem with that? All right.
BOIES: The motion that we submitted had two parts of it. One is how to count and the other was when to count. And we, obviously, asked the court to have the count start immediately, and I think the court has clearly indicated that it is not going to do that, at least before Saturday.
SAULS: Then this is the matter of law that you made reference to, as to how to count. BOIES: Yes, then there's the question of how to count. And we think that is a question -- as many of these questions that we can resolve, we'd like to resolve. SAULS: All right, all right, I understand. Let me -- it gives -- prompts this question: Is there any reason that we couldn't have a hearing Thursday afternoon on that limited aspect?
RICHARD: Your Honor, how can we be talking about how to count, when we have not yet determined whether or not anybody's entitled to...
SAULS: By end case, we've got to count, I submit.
RICHARD: Well I submit, Your Honor, that the point is that he's talking -- I don't know what he means when he says, "how to count." The canvassing board utilized some methodology, because the statute didn't tell it what it was going to be. It just said, "Count these ballots to determine whether or not they should have been voted for a particular voter."
SAULS: Correct, his position is, it's a matter of law. Now, I don't know what all that entails, but I'll have to hear it.
RICHARD: Well, the canvassing board in Palm Beach County utilized some methodology, some standard, by which they determined whether or not to count a ballot. They are claiming that the standard that the canvassing board used was improper and an abuse of discretion.
BOIES: We are not.
RICHARD: Well, then, I'm not sure I understand what it is that they're claiming.
SAULS: All right, maybe I better...
BOIES: Let me try to explain.
SAULS: ... leave him alone, and let him finish his argument. Go ahead.
BOIES: OK, we are not claiming it is an abuse of discretion. Indeed, we are arguing -- it is our position, we think the law is, that it's not a question of the canvassing board's discretion at all.
This is not an abuse of discretion case. This is a situation in which there are certain contested ballots. Our argument is that those ballots were voted for Vice President Gore and Joe Lieberman. We think the court needs to look at those ballots -- directly or indirectly -- and conclude whether we're right or wrong. It has nothing to do with canvassing board discretion.
SAULS: Well, these are ballots that the canvassing board did act on, and made a decision. And then your position would be that that was a futile act, because they were objected to, and that there is a de novo review of those ballots before the court. BOIES: No and yes. No, it was not a futile act, because that is part of the canvassing procedure.
SAULS: Yes, sir.
BOIES: But yes, it is a de novo review, just as we think the courts have consistently held. Now, of course, in Miami-Dade County, 9,000 of the 10,000 ballots were never looked at by the canvassing board, so you don't have that abuse of discretion question. But just with respect to the Palm Beach board, it is our view -- and we do think it would be useful to argue this, as soon as the court will hear us -- that it's not a question of abuse of discretion, it's not a question of whether it was clearly erroneous or any standard like that, it's a question of what are these votes.
And that's a judicial question. And the Florida courts, including the Florida Supreme Court, has dealt with this question before, they've held it's a question for judicial interpretation, and it's not a question in which this court is bound by what the canvassing board did.
SAULS: We're talking about Dade now?
BOIES: Yes. Well...
SAULS: As distinguished from Palm...
(INTERRUPTED FOR LIVE EVENT)
BOIES: ... expediting that, you're going to run out of time. Take the second illustration, in which the court holds it's an abuse of discretion standard. You're going to have to start reviewing the Miami-Dade ballots in any event, because nobody's looked at those; there's no discretion exercised. But while the court is hearing evidence on the abuse of discretion standard for Palm Beach, no ballots, not even the Dade ballots, are going to be counted unless the court has set up some procedure to do them.
So we think that it's critically important that the court address now how this procedure is going to go if and to the extent that there are going to be ballots counted. And if you divide it between the Palm Beach and the Dade County ballots, as I think the court is inclined to do and I think is appropriate, because there is somewhat different situations there, you have a situation in which, with respect to Dade, since we have contested those ballots, there isn't any way to resolve that contest without somebody looking at those ballots. There isn't any discretion here, because nobody looked at them the first time.
Now, we respectfully suggest there's no reason to wait until after Saturday to start the review on those Dade County ballots. I mean, Dade County says they could have them up here tomorrow night or Thursday. And as far as the review of those ballots are concerned, you don't need the lawyers here, you could do it on Friday while they're in the Supreme Court. BOIES: So I think there are ways to expedite this. And I can't think of a legitimate reason not to begin the counting on Thursday, at least with respect to the Dade County ballots.
RICHARD: Your Honor, you've been very accommodating, but if I may have one further comment and then I will not stand up again.
I think Your Honor posed a very cogent question when he said, "What are the canvassing boards for?" According to Mr. Boies, the only thing that has to happen to force the court to begin counting ballots is one candidate has to protest what a canvassing board did and it's a de novo hearing. As a matter of fact, not just a candidate, any voter, because Section 168 says any voter can file an election protest.
Now what he's saying is -- an election contest. What he is saying is that all somebody has to say is, "We disagree with what the canvassing board did," and that's it; we walk into court and the court begins once again counting ballots. That clearly is not what's intended by the Florida statute or the Florida Supreme Court or anybody else.
And I have one other objection, which is this: My client is entitled to a hearing before Mr. Boies' client gets relief. And every time Your Honor gives him another thing, he's back on his feet asking for one more thing that you've already denied him twice.
Now there is no reason for him to be -- we've already truncated this proceeding so that my client has little or no time to prepare for a hearing. And we are entitled to a hearing before Mr. Boies begins getting the relief that he claims he's entitled to. No matter how he couches it in his language, no matter what he says about this being a legal argument, the fact is that he's asking this court to give him everything he's requested, which is to begin another ballot recount before he has provided one iota of evidence or permitted my client to have one hour of hearing on whether or not he's entitled to that recount. And there is no way that he can read the law of this state to say that all he has to do is stand up and say, "We disagree with what the canvassing board did," and then the court has to begin once again counting ballots, what he calls "de novo."
If that's the case, we don't need canvassing boards, we don't need an election. All we need to do is have people submit ballots to the court and let the court do the counting. And the courts will run our elections in this state. Now, with Your Honor's permission, I have a colleague who has some specific issues that he would like to suggest to the court needs to be decided in an evidentiary hearing before anybody starts counting ballots.
PHIL BECK, BUSH CAMPAIGN ATTORNEY: Yes, Your Honor. My name is Phil Beck.
Your Honor, this goes to Mr. Boies' statement that the court could at least begin counting, I think it was ballots from one of the counties or other on Thursday, before any evidentiary hearing.
SAULS: No, I think there was some misunderstanding here. And I gather Mr. Richard objects to having any limited argument on matters of law on Thursday. And I certainly can appreciate; they are getting truncated, it seems like. And maybe the duck is working on you in the form of me, perhaps unduly.
But we're not talking -- nobody needs to get excited about anybody -- I understand he's asked for it, several times, to start counting on Thursday. But I can't strip you of every right that is known to anybody to accommodate that. But we're not going to start counting on Thursday -- well, unless he goes and they tell me that I've got to do something else. And if they do, I hope they give me some instructions of precisely how to carry out their direction.
But otherwise, I've got it structured here. And the only thing we were talking about doing is perhaps dropping back and if there was possible late Thursday to have a limited hearing on just matters that he says are matters of law.
But what happens is we start getting some of these mixed up with Palm Beach and Dade County, which are -- they're a little different, and there certainly may be different considerations. And we do have, perhaps, this aspect of there being -- whether the standard is some abuse of discretion by the canvassing board when they made their determinations, whether or not they've abused it in the process that they used; as opposed to if we have another set that have never undergone any process at all, that they perhaps need to be counted or at least reviewed, to determine whether it is necessary to count.
And when you start talking about the 10,000 ballots, and if you can count 2,400 or 2,500 a day, you're still talking about five days.
And I understand the problem, and it may be, under my schedule, he may be correct; if it takes five days to do it, then it's going to go say from Saturday afternoon or Sunday if get to that. Hopefully we could wave a magic wand and have the judges maybe magically appear or some clerks of court.
But if you counted -- and it took five days through Thursday of the 7th, then that's where we are. This is the time I have given and then in the appellate process, it's after that, then somebody else will be burning the midnight oil, too.
BECK: You honor, what I need to do, if you will just bear with me...
SAULS: Yes, sir.
BECK: ... for a couple of moments, is I need to alert this court to what kind of a hearing we think would be required before the voting begins. Because if we're going to have a hearing on Thursday, he says that the question of how -- you know, what standard to apply is purely a legal issues.
I need to do this also, Your Honor, frankly because Mr. Boies has stated that he's going to go up on appeal on this, claiming it's a legal issue. And we need to have stated on the record our position on this.
The fact is, Your Honor, if you ever get to the point of examining ballots, you will, of course, be attempting to ascertain the intent of the voter. And in order to do that, you are going to have to develop standards, or someone's going to have to develop standards. And Your Honor, those standards are going to have to come after an evidentiary hearing, where facts are presented, including expert testimony, concerning how the machines work, for example, what accounts for the undervotes.
Mr. Boies, today, has said that it is a pure question of law that's been decided by other courts and that no evidence needs to be heard on. And yet, if anybody looks at his witness list, what you see is that the vast majority of the witnesses that he said he was going to call, are in fact directed to the factual question of what should you be looking for on a ballot in order to ascertain voter intent?
He's got statisticians whose purpose appears to be to show that the percentage of undervotes using one kind of machine is higher than another; therefore, if there's a dimple, it must be some indication of a failed attempt to vote. We have statisticians who say that theirs are wrong.
They have listed the designer of a voter machine as one of their witnesses. My understanding it's not one of the machines used here. And he has previously said that certain types of rubber which he thinks were used in Palm Beach could present such a hard surface that someone would try to vote and wouldn't be able to and it would just make one of these dimples.
I had a brief opportunity to talk to the people who designed the actual machines that were used in this election and they say this man is wrong. They say that he's wrong about what kind of material -- rubber -- was on the back, and they also say he's wrong about whether an indentation could be made with a stylus. And you're going to be asked to decide whether these indentations are votes.
In fact, the gentleman that I talked to -- and again I just had a brief opportunity before we came over here -- they indicted that there's a whole bunch of ways that indentations and surface dislocations can be made on ballots that have nothing to do with a voter with a stylus in his or her hand trying to vote.
They've also listed as one of their witnesses, the former election supervisor of Palm Beach, Mrs. Winchester, who has said how the machines work and how they might malfunction and leave dimples.
There's a man that I have not had a chance to talk to that I was reading -- or one of my colleagues was -- the Wall Street Journal, handed this to me on my way over to court today. And what it says in the Wall Street Journal is they say Palm Beach County's voting equipment manager, Mr. Enos (ph), disagrees with Mrs. Winchester. He says the county's 5,000 voting machines are in perfect working condition, and during the off-season, remain stored in an air conditioned warehouse. He argues it's easy, even with a rigid backing strips, to punch cleanly through a chad. Quote, "It doesn't make a dimple," Mr. Enos says, and I'm continuing his quote, "it makes a hole every time."
Now, Your Honor, we think that before any court determines standards to ascertain whether a dimple that may appear on a chad is, in fact, a vote, the court needs to hear evidence about how these dimples can get on the chad, where the dimples come from, and whether the theories that underlie the challenge that Mr. Boies is raising here have any basis in fact or not. We don't think they do. We're going to need to present evidence on that even if Mr. Boies does not.
Thank you, Your Honor.
KLOCK: Your Honor, I would make one last point.
SAULS: Just a minute.
Mr. Klock, go ahead.
KLOCK: Thursday, Your Honor, at the close of business is when we're supposed to be filing our answers. Friday, of course, brief the Supreme Court.
On Thursday as well, the United States Court of Appeals today entered an order requiring the secretary of state to basically send extensive materials up on the ballot taking that was in the state of Florida by counties, overvotes, undervotes. I mean, as Your Honor knows, everyone is the act. And the fact is that it is not possible to have this kind of mini-hearing on a Thursday afternoon, before, Your Honor, we've even had an opportunity to file our defenses.
I mean there...
SAULS: I'm going to leave the schedule the same. In looking at it, really, you know I'm trying to balance all of the competing interests here and the equities. And I think that this is the best that I can fashion to at least be unfair to both sides -- equally.
I'm trying to -- I'm trying to deal with it so that equitably each of you, you know, under these circumstances, are accorded the best accommodation that can be accorded. And I don't see how I can do anything else.
And I think that we've got interwoven in it, so we might as well hear it at one hearing, you know, any assertions as to matters of law, whether these questions are matters of law, or if there are matters that require evidence. As I indicated at the outset, I don't know when we started, but it was sometime ago that we -- everybody could get what evidence you felt was going to be necessary; if you had a position that you wanted to assert, that it required evidence, then have it so that we could proceed, and we will go just as long as somebody's still standing on Saturday, beginning at 9:00. And then, if we get into any prospective ballot counting, we'll just do the best we can and finish just as expeditiously as possible. So I don't know of anything else that I can consider here today, except there's one item, and as we've had the discussions, there has not been on the proposed exhibits -- and I haven't seen the exhibits of the defendants, but I would like to request or direct that somebody produce the voting -- some sort of -- the voting machines that were used, I suppose, in Palm Beach and Dade County. I don't know how big these things are, I don't know what perhaps I'm asking, but perhaps we need to see just what it was that was being operated or at least an example of it, along with any attendant instructions or whatever that were given concerning the usage of the machines. So let's have it so we can look at that, along with all of the other items.
BOIES: I think we agree, Your Honor. And there are some different models. And we'll work out a way of getting the court something that is typical.
BECK: I think, yes, Your Honor. I think I have a reasonable idea of which models were used in which counties. And I think we're going to need, however, to get...
SAULS: How big are these things?
BECK: They're not very big, Your Honor.
BECK: So that's not going to be nearly the problem the ballots are. But I think we do need to bring up -- I think we need to bring up the actual machines from Palm Beach County, because unless Mr. Boies is going to put on any evidence, but what he's indicated in press briefings is that the rubber gets real hard and that means somebody can't punch through...
SAULS: Well, you can bring whatever. All I ask for is somebody to give me something that was -- at least one of the machines used in both places. So I'm not asking that it be where it was identical; it's just for visual purposes so I can get some idea...
SAULS: ... what it is we're dealing with.
BOIES: Yes, we can do that, Your Honor. And perhaps we could stipulate that representatives of both sides could inspect the machines that were actually used and try to select -- see if we can agree on bringing one or more...
SAULS: What I would like is whatever was there that a typical voter in each of those counties would have looked at and done -- and utilized when a voter in one of those counties voted.
BECK: Your Honor, we'd certainly agree to it, but they're not our machines. We need somebody...
SAULS: Well, there's my friend...
SAULS: ... my friend Mr. Greenberg to the rescue perhaps. Let's find out.
Go ahead, Mr. Greenberg.
MIAMI-DADE COUNTY CANVASSING BOARD COUNSEL: Your Honor, we will send up with our ballots...
... along with all the instructions and a sample ballot.
SAULS: You know, I really like that guy.
Well, now, wait just a minute, Mr. Greenberg. You're going to send up a sample what?
MIAMI-DADE COUNTY CANVASSING BOARD COUNSEL: A voting booth -- a sample voting booth, and a ballot and the instructions that we had posted at the precinct.
SAULS: All right.
PALM BEACH COUNTY CANVASSING BOARD COUNSEL: We could do the same for Palm Beach County. I believe there were two types we used. We'll send a sample of each, Your Honor.
SAULS: I like you equally with Mr. Greenberg.
UNIDENTIFIED MALE: Your Honor, I want...
SAULS: ... if they're going to bring those now, it's going to be up to these parties of somebody is objecting to whatever it is, that they're going to do. They're going to bring us what they had and I'm not going to hear anybody sitting up here that didn't bring anything, object to whatever it is they've brought, because I'm asking them to bring me what was presented to a voter down there.
So it's going to behoove anybody that wants to object to whatever it is they've brought, to get yourself down there to look at it, to see if you've got the objections and see if you can't get it corrected before they bring it.
BOIES: We'll do that, Your Honor. That's exactly the permission we wanted to have.
SAULS: All right. RICHARD: And we'll -- if they send somebody down, we'll have somebody go, and we'll make an arrangement with the folks from the county, so that we can both be there and look, and agree that it's a fine machine.
SAULS: Fine. All right then. I hesitate to ask this, but is there anything else that we've not covered?
If not, then thank you very much. And that will conclude the hearing.
WOODRUFF: In the last 2 1/2 hours, a little bit more than that, we've been listening to a hearing, State Judge N. Sanders Sauls in Tallahassee. This is on an emergency motion from the Gore campaign to have a special master or other individual to begin counting disputed ballots in Palm Beach County and Miami-Dade County, a total of 14,000 ballots.
And CNN election law analyst Ken Gross, it sounds to me as if what's happened here is Judge Sauls has given the Gore camp about a fourth of a loaf.
KEN GROSS, CNN ELECTION LAW ANALYST: Yes, what the Gore people wanted was an immediate counting of the ballots and that -- we get that process under way. Now, that's not happening. What's happening is that the court is going to have a hearing on Saturday, an omnibus hearing. He's going to hear the fact and the law.
Now, obviously, this is all about time, and what the Gore camp wants is for these matters to be resolved as a matter of law, because legal issues can be decided by the judge instantly. What the Bush people want is for these matters to be decided as a matter of fact. So evidence has to come in, discovery has to occur, which means delay. And that's what this argument is all about.
WOODRUFF: We heard much of this discussion, Ken Gross, about how quickly can this happen. We heard David Boies saying, let's get this done tomorrow, Thursday. We heard the Bush people saying, no, we need more time, we've got other hearings, we've got the U.S. Supreme Court on Friday.
Quickly, if you will, Ken Gross, explain why it is more important for the Bush side to argue the facts.
GROSS: Well, it takes time to argue the facts. They want discovery. They want to take depositions. They want to look at documents, and all that takes time. And if you bring in questions of fact, it slows the process down.
We're working against the December 12th deadline. I've been involved in recount cases that have taken two, three months and longer. This is trying to be compressed into one week or a week and a half, which, if you can reduce the issues to a matter of law, you can dispose of them quickly. That's why you heard one side arguing an abuse of discretion and the other side arguing what's called de novo review, which is a matter of the law -- the judge setting the standards and not going back to the discretion of the canvassing board.
WOODRUFF: Just quickly, Ken Gross, too, explain for -- explain to us what we're going to see on -- in the Saturday hearing. Saturday morning, Judge N. Sanders Sauls will convene once again. He's going to have voting booths there from Palm Beach County, from Miami-Dade County. He's going to have about 14,000 ballots.
But what's going to happen Saturday?
GROSS: Well, you're going to see a mini-trial. Sometimes it happens where you just have lawyers arguing motions like we saw today. You're going to have that, plus you're going to have a mini-trial. You are going to have an expert witness come in and testify that this machine was causing misalignment of the ballot, and you're going to have other testimony such as that. You're going to actually have a demonstration of how the voting occurred. They're not only bringing the ballots up, but they're bringing up the voting machines, and so you're going to see all of this in one day, all compressed into one omnibus hearing.
WOODRUFF: It's going to be quite remarkable, just as this entire election has been, three weeks and counting. Ken Gross, thanks very much. That wraps up our special coverage for now.
But we ask you to stay tuned, coming up right after this, "CROSSFIRE," at 8:00 Eastern, "THE WORLD TODAY," and at 9:00, Larry King will have as among his guests, Dick Cheney, the vice presidential nominee on the Republican side, and Warren Christopher representing the Gore camp, former secretary of state.
I'm Judy Woodruff in Washington. Stay tuned for more coverage here on CNN of the Florida recount.
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