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Judge Holds Hearing on Transporting Miami-Dade, Palm Beach County BallotsAired November 29, 2000 - 4:00 p.m. ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
JOIE CHEN, CNN ANCHOR: From CNN headquarters here in Atlanta, this is a special report on the Florida vote. Thanks for joining us, I'm Joie Chen.
LOU WATERS, CNN ANCHOR: I'm Lou Waters.
Before we get to the Florida recount business, there's something happening at Hartsfield International Airport here in Atlanta.
CHEN: That's right, here in Atlanta, Lou.
Just a few minutes ago we were watching on our local affiliate WSBTV -- they've been bringing us pictures. This is pictures, now, from WAGATV, one of the other affiliates we have in the city of Atlanta.
Reporting earlier from WSBTV showed us a number of people being evacuated from an AirTran DC-9 jet. They tell us that at local station channel two here in the city of Atlanta. Reports of smoke in the cockpit of that plane -- and we saw in the pictures -- not sure that you can see it in these pictures, but we saw from the WSB pictures a moment ago that there was smoke coming from outside that plane and people who had been evacuated.
However, local affiliates are not able yet to tell us where this plane was coming from or going to next. We did see that there are people who came off the plane, came out of an emergency exit out of side of the plane. There is no further indication yet of the flight number, where this plane was going to or where it was coming from -- it was an AirTran jet. CNN is following this story up here in the city of Atlanta, and we'll bring you the latest details as we get them here -- Lou.
WATERS: And, yes, it's not over in Florida. It's another day of high-stakes legal maneuvering in the disputed presidential race.
Here's where we are: A hearing is scheduled to begin at any moment in Tallahassee, Florida. At issue: the fight over ballots from the Miami-Dade and Palm Beach County elections and just how many of those ballots should be brought to Tallahassee for a possible -- possible -- recount. Officials in those two counties are preparing to send disputed ballots to Tallahassee under police escort. While that legal battle goes on, Florida lawmakers are looking more closely at calling a special session to allow them, not the voters, to choose the state's 25 presidential electors.
At the hearing that's about to get underway in Tallahassee, a judge is considering a request from the Bush campaign that all ballots cast in Miami-Dade and Palm Beach Counties, not just the disputed ballots, be brought to Tallahassee. We're talking about over a million ballots.
CNN's Kate Snow joins us from Tallahassee to tell us the latest in this ever-developing story.
Kate, what's going on?
KATE SNOW, CNN CORRESPONDENT: Well, that's right, Lou; and, in fact, I have some news to bring you. I've just talked to one of the Gore attorneys here, Ron Klain; he tells me that, indeed, they are going to file, very shortly -- they said at about 4:00, which is right now Eastern time -- they're going to file an appeal of the schedule that was laid out yesterday by the judge -- Judge Sauls -- in that case here in Leon County circuit court.
What they are asking is that he should begin counting ballots absolutely right away. They are taking that appeal; we understand they're going to go to the first district court of appeals, which is just behind me here; that's where they'll start, but it will most likely be sent immediately to the Florida Supreme Court, which is right here behind me; again, asking that Judge Sauls' ruling yesterday, where he set up a timetable where they would have a hearing on Saturday -- they're asking that that be expedited, that it be moved up and that they start counting ballots absolutely right away. They plan to file that motion very shortly.
Meantime, the hearing that you mentioned takes place now in the courtroom -- or scheduled for right now in the courtroom of Judge Sauls -- that hearing having to do with exactly how many ballots we're talking about -- how many ballots should be sent here to Tallahassee? Yesterday, you'll recall, the judge ordered that roughly 13,000 ballots -- about 10,000 from Miami-Dade and about 3,000 from Palm Beach County -- should make their way up here and, as you've mentioned, both counties making measures now -- taking measures to send them up with police escorts starting tomorrow early in the morning.
Now, the Republicans now asking that, hey, if you're going to look at some of the ballots, why not then look at all of them? If you're going to reconsider just some disputed ballots, we don't think that's fair. We want all of the ballots from Miami-Dade and Palm Beach physically sent to Tallahassee so that, if the judge decides that he wants to recount them or look at them by hand, he will have all of them here in place.
You mentioned, Lou, and I think it's important to note, we're talking about 1 million -- over 1 million ballots between the two counties. I will point out to you that Miami-Dade alone, which is sending as of now, 10,000 ballots, is using three cars to send 10,000 up here. So if you do the math and you figure a million ballots, we're talking about an awful lot of traffic on the highways up here to Tallahassee.
Lou, I'll send it back to you.
WATERS: I keep asking the question, Kate, about standards that would be applied in a possible recount of any ballots, should the judge decide on that. Is that issue of standards a part of this appeal that you mentioned before the appeals court?
SNOW: No; the appeal that we're hearing is going to happen this afternoon, it's just simply about when he should start, the timing of it.
Now, what the judge did last night is he said, I'm going to talk with you, both sides, about the standards and what kind of -- should I look for dimples, should I look for pregnant chads? What kind of standard should we use to judge intent? He said they would talk about that at a hearing tomorrow. One can imagine that, if this appeal makes its way to the Florida Supreme Court, and if the Florida Supreme Court were to order Judge Sauls to start immediately, that he would have to somehow figure out very soon how to judge those ballots.
But as of right now, he has said they will consider all of that at a hearing tomorrow, on Thursday -- Lou.
WATERS: All right; Kate Snow in Tallahassee.
The Leon County courthouse is being covered like a blanket by CNN's national correspondent Gary Tuchman.
Can you tell us a little bit more about what's going to be going on there this afternoon, Gary?
GARY TUCHMAN, CNN NATIONAL CORRESPONDENT: Well, that's right, Lou -- I'm actually sitting, right now, in the back row of the courtroom, and as soon as court starts I won't be able to talk on the telephone anymore.
But I can tell you, to update what Kate just told you -- I was actually with the Gore attorneys as they just filed their appeal. They are asking the Supreme Court of the state of Florida to immediately count contested ballots. Of course, as Kate said, the judge here, Judge Sauls yesterday said he might count the ballots, but certainly not immediately and certainly not before Saturday, the day the trial starts.
But this appeal has been filed. It will initially go to the court of appeals, the district court of appeals of Florida, but they asked, on the appeal, for it to immediately go to the Florida Supreme Court. A hearing could be out, conceivably, as early as today -- unlikely, but that possibility does exist.
And to also talk about what Kate said, what the Republicans are going to ask for in court when it starts in a couple of minutes is for 1,041,159 ballots to be brought here via motorcade from Miami-Dade County and Palm Beach County. They want them all to come at once. Whether that can happened physically or not by Friday, we certainly don't know, but the judge did indicated during yesterday's hearing that he would be open to requests from both sides for what ballots they want brought here. So it should be a very interesting hearing -- Lou.
WATERS: All right, Gary Tuchman in Tallahassee.
And the movement of those ballots tomorrow morning should be another sight to behold -- Joie.
CHEN: Right now, the selection of presidential electors is still up to the hands of the voters and the ballots they have cast; but the U.S. Constitution gives the ultimate authority to state legislatures.
That brings us, today, to CNN's Mike Boettcher, who's watching events unfold in the Florida capitol.
Mike, what's happening there?
MIKE BOETTCHER, CNN CORRESPONDENT: Well, Joie, the legislature here -- their special selective committee will come back tomorrow and make the decision, but it's a foregone conclusion that they will vote tomorrow, that they will hold a special session, probably beginning on Tuesday and then at that point, decide, after the bills are introduced over a five-day period, decide to name the electors for Governor Bush in this election.
Now they heard from their counsel, the Senate did, Roger Magnuson, and he said they have the right to go in, to hold the special session and to name their electors.
(BEGIN VIDEO CLIP)
ROGER MAGNUSON, ATTORNEY FOR FLORIDA SENATE: Not only is this power plenary and full and absolute, but this body has an absolute right, having given that power to another method, to resume that power at any time, and says that is without doubt. So even if this body had determined the method of election of electors, according to the McPherson case, the reigning Supreme Court authority on the subject, you have every right under Article II of the Constitution to resume it at any time.
(END VIDEO CLIP)
BOETTCHER: Now, they heard from about 60 members of the public who, the Democrats admit, they did fly up here today from Miami-Dade, Broward and other counties around Florida -- they openly admit that; and those people testified before the committee that they thought if the Republican-dominated legislature went ahead with this they were, in effect, trying to steal the election. The Republicans don't see it that way, they know they are going into uncharted territory, but they believe they have the Constitution as their compass -- Joie.
CHEN: And Mike, would Governor Jeb Bush have any role in that, if the legislators are named?
BOETTCHER: Well, it's interesting -- earlier on in this process, the last couple of days, they wanted to keep Jeb Bush out of this. They did not want to make him have to sign this bill. In that case, it would take seven days for the bill to become law once the legislature passed it. If the governor doesn't sign a bill in Florida, if the bill is on his desk for seven days it automatically becomes law.
Today there was a sea change in that we are told that Governor Bush, Governor Jeb Bush here, is willing to sign the bill that could make his brother the president -- Joie.
CHEN: CNN's Mike Boettcher for us in Tallahassee, Florida.
Now to help us sort out all the latest developments in the legal issues of the battle, we turn to CNN election law analyst David Cardwell, who's in Tallahassee now; he's a former state elections director in Florida.
David, I have to admit to you that, as a layperson watching all this, I see one maneuver here, one court case here, then this, then this, then this -- tell us which is the single-most significant thing that we should be watching for now. Is there an important development, or are these all just a series of maneuvers to try to gain the upper hand?
DAVID CARDWELL, CNN ELECTION LAW ANALYST: Well, don't think that just because you are describing yourself as a lay person that you are the only one that is confused. There is a lot of lawyers that are confused also.
CHEN: Thank you.
CARDWELL: And probably some judges, because this is a very complicated process. We have got several proceedings going at once. And they are in different courts at different times on different issues. So it is very difficult to try to sort through all of this.
But at the present time, we have a contest pending in circuit court. But there is a question and a disagreement among the parties on a procedural issue, which is how many ballots to get to Tallahassee, and should those ballots be counted or recounted -- depending on which side you are on -- before the judge makes any rulings on questions of law -- which is: Is there a reason for him to go ahead and conduct that recount?
So we've got an appeal sort of within the case that is going to a district court of appeal, and may ultimately then go to the Supreme Court to resolve the question of schedule: When will the count of those ballots begin, if at all? And at the same time, we have got the legislature considering that it may hold a special session next week and try, as a matter of action by the legislature, to take this out of the hands of the courts.
So it's going to be interesting to try to see how all of these things play together. And we have other cases pending elsewhere in the state. So there's a lot that has to be followed at the same time.
CHEN: Looking at this now, from what Judge Sauls decided yesterday -- we were talking about some 14,000 ballots being brought up from South Florida -- as Kate Snow points out, we could be talking about a million if the Bush team is effective in persuading the judge that all these ballots need to be brought and considered -- or not considered, as the case may be in Tallahassee -- is there a procedure for what happens to them when they get there?
I mean, they are being brought up by the state troopers, but what happens to them then?
CARDWELL: When the ballots arrive in Tallahassee, they'll be delivered to the clerk of the circuit court for Leon County. The clerk is the officer who maintains the court records, and very often may maintain evidence that's received during the course of judicial proceedings. The clerk can secure those ballots.
I don't know whether it will be in the clerk's office in the courthouse, or whether -- especially if there is a million ballots -- whether they may have to find some other location. But those ballots would be secured. They'll be certainly under guard. And probably, there will be a surveillance camera on them at all times.
CHEN: In the past, or in any other election -- in any normal election, I guess we can call it -- would this normally happen? I mean, do the ballots normally come back to the statehouse to Tallahassee at the end of an election? Or is it up to individual counties to dispose of them as they see fit? What happens?
CARDWELL: As with almost everything in this election, this is again precedent-setting. We have never had a statewide election contest, and certainly have never had a statewide contest of presidential electors. So we have not a case that has been filed in Leon County where ballots had to be brought up here.
Typically, election contests have been filed in the county in which the office or the issue that was on the ballot -- so the ballots have merely secured in either the supervisor of elections' office in that county or in the clerk's office of that county. So we haven't had the situation of transporting ballots such as this. Once again, we are doing something new and different.
CHEN: So it would be clear, if these are ultimately -- if the judge decides not have the ballots counted -- or recounted, as the case may be -- in Tallahassee, would there be an opportunity for other people to look at them and count them later?
CARDWELL: Well, that's another interesting issue. There's a group known as Judicial Watch, which was actually inspecting the Palm Beach County ballots at the time that Judge Sauls here in Tallahassee ordered that the ballots be brought to Tallahassee.
CHEN: David -- David, I need to interrupt you here, because the hearing is under way now inside Judge Sauls' courtroom in Tallahassee.
(JOINED IN PROGRESS)
JUDGE N. SANDERS SAULS, TALLAHASSEE CIRCUIT COURT: ... to tend to other matters that you have ongoing without having to have another hearing, a hearing a day.
But we received this morning a request for production with a proposed order and it did not indicate in the transmittal with it, nor in the order itself, that there was no objection to the form or content of the order from all counsel. And that being the case, then it appeared that it would be necessary to have a hearing to determine whether the motion or the request for production of ballots to David Leahy, in his capacity as supervisor of elections in and for Dade County, as well as a request for production -- a similar request to the supervisor of elections for Palm Beach County for the transmission of all ballots -- and I gather that to have been all the ballots other than the ballots that we previously I thought we had dealt with yesterday to Tallahassee and specifying that they be delivered on the same time schedule.
And of course under our rules of procedure on a request for production, it became apparent that perhaps the positions of the respective parties upon whom the request had been made should be -- what their position would be should be considered before such an order was entered.
So do I have -- do we have the parties appearing by telephone that were appearing, the counsel for, what is it, Dade County, Mr. Greenberg?
MURRAY GREENBERG, MIAMI-DADE COUNTY CANVASSING BOARD ATTORNEY: I'm here, Your Honor.
SAULS: All right. And counsel for Palm Beach County, is that Mr. McCann?
PALM BEACH COUNTY CANVASSING BOARD COUNSEL: McCann. Here as well, Your Honor.
SAULS: McCann. All right so, Mr. McCann.
Now, under our rule, I guess it would be what, 1.350. Then, of course, a party may request from another party documents or for inspection and copying or production, and the matter when the court asked with respect to the plaintiff, this would be -- this is on behalf of now the defendants, as I understand it, this request. I asked counsel for each of those supervisors at the prior hearing whether there was any objection.
SAULS: And hearing no objection based on any right to have the inspection or production occur in the county of the defendants' residence or the place where the records are kept, the court then granted that request. Now I have an additional request. And I don't know whether you would be in the same position with this request as you were with the other request, or do we need to revisit the matter?
GREENBERG: Your Honor, this is Mr. Greenberg down in Miami.
SAULS: Yes, sir.
GREENBERG: Mr. Rutledge shared with the court and with opposing counsel a proposed order that Mr. McCann and we agreed upon this morning reducing Your Honor's ruling of yesterday to writing.
Today, we are told there's a request that all the ballots, not just the 10,750 undervotes in Dade County, but all 653,000, be sent to Your Honor. We will do that if Your Honor so rules.
However, let me point out to the court that it would be a minimum of tomorrow night late before we could get those ballots packaged and ready to go up. And I cannot represent to the court that they would be there by noon on Friday. We would try, but it will take another full day to do that.
We have spent all day getting the undervotes ready. They are ready -- they will be ready to leave tonight or first thing in the morning. Your Honor, we're ready, willing and able to do whatever you order.
SAULS: Well, it's not a question of whatever the court wishes to order. What I am making sure here by having this hearing is to afford your clients the opportunity to make any objections, if you have any, to the time, place and manner of the production, which is afforded to you under the rule.
Now, if you don't have any objection to that, basically, you are willing to furnish these ballots in the same fashion and we will proceed accordingly.
GREENBERG: Dade County -- Miami-Dade County is ready to do that, Your Honor, under the same rules that Your Honor articulated yesterday, police protection as we set forth.
PALM BEACH COUNTY CANVASSING BOARD COUNSEL: In Palm Beach County, Your Honor, is actually a little bit easier for us to send them all. So we're prepared to load the truck first thing tomorrow morning and get it on the way to Tallahassee, hopefully by 7:00 or 8:00 a.m.
SAULS: Is it going to be a convoy? How many semis? Clerk needs to know that. Is the clerk of our court here?
SAULS: Yes, Mr. Lang, clerk of the circuit court, are there any things that -- you've just heard what the supervisors have said -- is that going to create any difficulty for you? DAVID LANG, LEON COUNTY CIRCUIT COURT CLERK: Judge, we can make arrangements, if necessary.
SAULS: Mr. Lang, clerk of our circuit court, did you hear him, counsel?
GREENBERG: Sorry, I didn't, Your Honor.
SAULS: He says that he'll be happy to assist in making whatever arrangements are necessary.
GREENBERG: Let me find out. We appreciate that. Mr. John Stott, of his office, has been on the phone with us. He has been most cooperative. I just would like to add that it may not be possible to get it there by 5:00 p.m. on Friday.
SAULS: I indicated to you before, that's the reason I don't have any -- basically, you're being most accommodative.
SAULS: You've not asserted any right to which you would have, as to the -- as I say, the time or the place or the location. And so, we're going to do whatever is necessary to accommodate you under your schedule.
GREENBERG: Thank you, Your Honor. What we will do, if it's OK with the court, we will maintain telephone contact with your clerk's office. Let you know exactly when they leave, when they'll arrive. And if your clerk just has someone there to accept the ballots and sign for them, we will do our best to get them there by 5:00 p.m., but we're just not sure if it will be later that night.
SAULS: Well, I will let your people stay in contact with Mr. Lang's people and they will keep all of that coordinated, I assume.
GREENBERG: Thank you, Your Honor.
PALM BEACH COUNTY CANVASSING BOARD COUNSEL: And from Palm Beach County, Your Honor, we'll do the same thing, except we expect them to arrive tomorrow evening. I'm not sure we'll make it by 5:00, but we'll be in touch. We would also appreciate it, if it's possible, to have some help on loading the transfer boxes. I believe it'll be 167 of them.
SAULS: Our clerk is not that big.
But I'm sure that he's got -- hopefully, is that something we can arrange, Mr. Lang.
LANG: We'll be able to arrange it.
PALM BEACH COUNTY CANVASSING BOARD COUNSEL: I believe it's 168, actually.
SAULS: He says he stands ready to assist. PALM BEACH COUNTY CANVASSING BOARD COUNSEL: Thank you very kindly.
SAULS: Let me ask then, since I have this order, which we were holding, Mr. Rutledge just had circulated it. Can we just take this order and interlineate to save some time? Where can we just specify all instead of... (UNKNOWN): Your Honor, we've already prepared a modified order. It's been provided to counsel of record. And I'll be glad to furnish...
SAULS: All right. Any objection to its form or content, hand it up.
DAVID BOIES, GORE CAMPAIGN ATTORNEY: Your Honor, I'd like to see it.
SAULS: All right.
BOIES: Your Honor, may I be heard on what you were just addressing with Palm Beach and Miami?
SAULS: Just on what?
BOIES: On what you were just addressing with Palm Beach and Miami.
SAULS: By all means.
BOIES: The thing that I want to be sure of is that our request for production comes segregated; that is, we don't find the limited number of ballots that we have requested somehow intermixed in the very large quantity of ballots that the defendants have requested.
SAULS: Can you hear Mr. Boies?
GREENBERG: Yes, yes, I can, Your Honor, from Dade County. We will keep the undervotes segregated from the other ballots.
BOIES: And with respect to Palm Beach County, will we have the 3,300 ballots that we have asserted a contest to segregated from the other ballots?
PALM BEACH COUNTY CANVASSING BOARD COUNSEL: They are in the same transfer boxes, but they are identified in envelopes indicating which party objected.
BOIES: So that we will have envelopes that would show the ballots to which we objected?
PALM BEACH COUNTY CANVASSING BOARD COUNSEL: Yes. As I understand it, there are also some that there were objections to from both sides, but you'll be able to identify those to which your clients or the Democratic Party representatives objected, those to which Mr. Bush or the Republican Party objected, and those with joint objections.
SAULS: All right. That ought to take care of you.
BOIES: OK. The...
PHIL BECK, BUSH CAMPAIGN ATTORNEY: Your Honor, this is Phil Beck.
SAULS: Yes, sir.
BECK: As I understand it, and this is what I think is appropriate, that all the ballots be shipped up together at once, but that the ones that have been already segregated as undervotes remain segregated and clearly packaged separately.
SAULS: Well, that's what I just understood. That was his request and Dade said that that would occur, and Palm Beach said that they don't -- they have them all together but they are readily identifiable, so they're going to bring them as they presently exist. Now, is there a problem with that?
BECK: No, Your Honor, that's perfect. I think that's appropriate.
I do have another matter to raise, and this is a matter, Your Honor, actually now that we've ironed that out, Mr. Boies are in 100 percent agreement on this, but unfortunately we both feel that we need some relief against the Miami-Dade Canvassing Board. Even though they've been most accommodating in terms of their schedule, some of the processes that they have been following we are very concerned are potentially compromising the integrity of the evidence in this case.
Your Honor, as I understand what was happening this morning from our observers who are in Miami-Dade, there were about 100 precincts where the undervotes -- that is, the ballots where nobody clearly voted for either candidate -- had not been segregated from the other ballots. And what they did was they took these 100 precincts and they ran them through one of the vote-counting machines and segregated them running them through the vote-counting machines.
We were unhappy to hear that, because, as Your Honor may know, we're concerned that each time somebody handles one of these ballots, each time it runs through a machine, there's possibility of new dimples getting in, new chads falling off, that sort of thing. But, you know, what's done is done. We wish that had not happened.
But then they started to do things that we really think are a serious problem. Some county employees -- and these are not members of the canvassing board -- began checking envelopes that they had put the no-vote ballots in, and each envelope has a number on the outside. It might be, say, from precinct 27, and there might be a number 6 on the precinct 27 envelope, and that would mean there are six ballots inside where nobody voted for president of the United States, or at least it's a dimple or a pregnant chad; it's not a clearly punched-out vote.
And what was happening today is that these county employees were opening the envelopes and checking to see whether, in fact, there were six ballots inside the envelope like the envelope said there were.
BECK: And if there were only four ballots, then they took all the ballots from the precinct and ran the ballots through the machine once again, and started sorting through them to see if they could find two more that they could put in the envelope to make the records turn out right.
Now we think, Your Honor, that if you're going to bring the ballots up, that you ought to bring them up the way that they existed in the county records when they were called for. And if the canvassing board made some mistakes along the way and had some counting errors and had mischaracterized some ballots, well, we ought to get those ballots the way that they existed so that we can see that and see if there's any consequences.
Because we're talking about a tight race here and we don't think that county employees, who are not canvassing board members and don't have this authority under law even during a normal counting of an election, ought to be out there fixing the records before they're transmitted to us.
GREENBERG: Your Honor, this is Murray Greenberg in Miami.
SAULS: Yes, sir?
GREENBERG: I would like to take some strong objections to some of Mr. Beck's statements.
BECK: I have some more if -- I have something that I think is more serious, Your Honor.
GREENBERG: Thanks, Your Honor.
First of all, these, quote, "county employees" are members of the super of the elections department, working under the direct supervision of the supervisor of elections. Number two, they are the same people who in every single election help move the ballots through the tabulating equipment. Number three, the representation that was just made to the court is not an accurate representation.
However, I have Mr. Leahy here, and with Your Honor's permission, maybe he should tell you what occurred. We said yesterday that the hundred and some odd precincts which had not been run through to pull out the undervotes would have to go through the machine again. I would also point out that the Bush campaign and the Republican Party has objected to this procedure, twice in Dade County and two times circuit judges, Judge Esquiroz and Judge Tobin denied their request to not let the ballots go through the machine. These are ballots that are made to go through machines. But with Your Honor's permission, I wanted Mr. Leahy to explain to the court what occurred this morning.
SAULS: Won't be necessary. Maybe we'll need to get -- we still haven't been able to get to any evidence in this case. I've been trying to get us there, but if we haven't gotten there yet.
But what I would like to ask is just simply this -- and I understand, I get a lot of allegations from attorneys. But what they say, everybody knows that the court can't consider that as evidence; it is not to be considered as that, nor could any jury, that we instruct the jury every time to that effect.
And so we have to at some point, then we'll take some evidence and we'll find out what his -- you know, his position, whether he can support that or not and we will arrive at that. So we don't have to have in effect a mini-evidentiary hearing right now.
And what I would just like to ask the supervisor is, can we just have everything the way it is now, and let's not do anything else? Or is there some need to do something else with those ballots other than just pack them up just the way they are and not open any more envelopes or do anything else with it?
GREENBERG: We will do that, Your Honor. Supervisor Leahy will pack them up, will keep the undervotes separately marked in separate boxes, send the other boxes up.
As I have advised the court, we will not do anything else to them except pack them up and happily get them up to Your Honor. We would appreciate it if you would sign the order that Mr. Rutledge has proposed so that the supervisor is releasing those under court order and we will be delighted to comply.
SAULS: I'm trying to extract agreement from all of them right now as to that.
And let me just charge and instruct you then, Mr. Leahy, to do just that that has been indicated.
SAULS: OK, Mr. Beck has a few more items. Or is there some other considerations? That won't take care of it, leave everything just the way it is now?
BECK: Well, I have a concern, and these are based on reports that we're getting from our observers who were there. And we've been phoning, really, the lawyers for the county, asking them to stop and they've been telling us they think they were authorized to do this. So that's the information that I'm given.
Here's my biggest concern...
SAULS: We're not done. Right now, as I understand it, I'm going to -- notwithstanding any prior orders that you have, since you're going to place those within my jurisdiction, I'm instructing the supervisor, who is a legal custodian of those records, not to do anything else with them in any way, manner, shape or form other than to pack them up and bring them up.
BECK: And my only concern, Your Honor, is this: I was told that in addition, these same county employees were actually going through undervotes, what the machine spit out as a nonvote, and doing their own little manual recount. And if they thought it was a clear vote, even though the machine said no, they'd put it in a separate envelope that said, "clear vote." And we asked them to stop it. And they said, "No, that's how they're going to do it."
I think, as to those ballots, they ought to be taken out of those envelopes and put back in the original stack of undervotes.
And if somebody, later on, under the authority of the court, decides that those were a clear vote, that's fine. But we should not have county employees, who are now doing a manual recount, and segregating what the machine said is a nonvote into two different categories. They ought to put them back in the same category...
SAULS: Now, you just asked me to have them not do anything else. Now, you're telling me to have them go back and do something else.
BECK: Well, Your Honor...
SAULS: These people are going to be thoroughly confused.
BECK: At least I need a record, Your Honor, that they're going to ship them up, of what it is that they recharacterized today, so that we know -- we know that there were county employees who were taking ballots that the machine said were nonvotes and they were deciding, without any input from the canvassing board, that, in fact, they were votes.
Now, if they don't put them back, we ought to at least have some kind of record, so we can tell that that was some county employee, after these records had been subpoenaed, who made that decision rather than a canvassing board member. Otherwise, I'm concerned, Your Honor, that we're going to have a hopeless mishmash where nobody's going to be able to figure out what the canvassing board even thought about these ballots.
And, Your Honor, I'm sorry that it's a dilemma, but we've been asking them all day not to do this.
SAULS: Well, these matters that if we every get to take in some evidence in here, when we're dealing with this, I assume you have some subpoenas. The alternative, I suppose, can you pack up a few of the employees and ship them up here, too?
We may need someone whose been the supervisor of somebody in charge of those, but that's subject to subpoena. So I suppose that that's a case for Saturday. Maybe the supervisor needs to be on notice that some of his employees may be subpoenaed so they won't be taken by surprise if the sheriff has to show up at the last minutes to accept that, unless there could be something worked out, in the meantime, between counsel that some requested people would be produced or if the subpoenas somehow could be accepted in lieu of the sheriff having to actually affect the service.
I think what he's stating is, that he just wants to bring this point up. And that may be a matter that, when we get all those witnesses up here that Mr. Boies talks about, and they are reposited in the repository over there, that there may be some additional witnesses that are necessary, which I anticipated that there would be if we ever get to take in evidence in this case.
BECK: Your Honor, one last point.
SAULS: Will that take care of it?
BECK: One last point. And then Mr. Boies and I are in agreement.
But given what's transpired with these ballots, we would both feel a lot more comfortable if, when they are transported up, a representative from each one of our teams could accompany the motorcade. Again, we asked whether they would allow us to ride in the police car, and if not that, at least be -- you can but we won't let you in the motorcade. So I would ask -- we have real concerns about the integrity of the evidence here, and I think that it would be appropriate in a matter of this magnitude that both sides have a representative accompanying those vehicles.
SAULS: You got a spare tire on the back of any of those that somebody could ride for each side?
GREENBERG: I have a lot of ideas, Your Honor, but I won't enunciate them.
SAULS: Did you want -- is there some...
GREENBERG: This is the first time we've heard this one. We would prefer that they not be in the police vehicle with the ballots. If they want to ride shotgun on the next car, if they want to ride behind them, that's fine with us. But we would really appreciate it if these ballots get, say, from the supervisor of elections, through the police, to you.
SAULS: All right.
GREENBERG: But they can be here, they can pull out and follow us up this turnpike.
SAULS: And they can have a representative ride in the tail end -- the tail police car?
GREENBERG: Well, I don't know if they're going to be in the tail police car. Do we want to -- yes, we can put representatives of both parties in a police car, we'll send them both up in one police car.
BECK: David and I will be down there.
BECK: Your Honor...
SAULS: If the Miami PD will accommodate them and Palm Beach too, I suppose they'll ride up.
GREENBERG: OK, but that will be a separate car, Your Honor, from the ballots.
BOIES: That's fine, Your Honor. We appreciate it.
SAULS: They won't have to be in the police car?
GREENBERG: Oh, it will be in police car. We even have air guns.
SAULS: Very good. Thank you.
Now we've got an additional car for you all to ride in.
MCCANN: Your Honor, from Palm Beach County, as long as our Palm Beach County sheriff's office has no problem with the observers riding with them, the canvassing board doesn't mind that, but...
SAULS: That's the whole problem. They may have some problems on their policy. And before -- I was seeing if you all could come up with something on your own. But let me suggest this: Would the police department -- it won't violate their policy and create any problems by having somebody riding in a police vehicle which there may be some liability problems with that. Can they just have a car, their own private car, whatever it is they're going to drive, just come in and be the next to last car in the procession? And that takes it completely out of any problem that I can see.
GREENBERG: It's OK with us in Miami, Your Honor.
MCCANN: It's OK with us in Palm Beach County, too.
I've just been informed that, at least preliminarily, the PBSO had said it's all right if they want to ride with them.
SAULS: Well, let them take their own car. (LAUGHTER)
Tell them it will be the penultimate vehicle in the parade.
MCCANN: All right.
GREENBERG: Your Honor, can I just make sure of one thing? In the order that Mr. Rutledge is proposing, since we're sending all the ballots, that'd be 5:00 p.m. Friday instead of noon?
SAULS: Over Mr. Boies' objection, yes. So ordered.
Do you need to be heard?
BOIES: No, no. Your Honor, I know when it's futile.
SAULS: We're doing the best we can.
That is fine, sir. And we appreciate the extraordinary cooperation that you and your clients are extending to everybody.
BOIES: Your Honor, could I just give one...
SAULS: Hold on, I think there's something else.
Go ahead, sir.
BOIES: Let me just try one more time. I'll take 60 seconds. If you're not persuaded, you're not persuaded.
They can send up the ballots that are contested right now. We've always said it would be useful for the attorneys here to be able to have some access to those ballots, to see what kind of agreement, if any, we could get.
We obviously can't begin to do that until the ballots get up here.
We can't think of any need to hold up our ballots, the contested ballots, which are a few thousand in each case, for the hundreds of thousands of other ballots.
Now the court obviously has a sense that all the ballots ought to come together for some reason.
SAULS: I didn't specify that. But that's what -- when we get into it, I don't know when they were going to send them, and whether they were going to send two separate convoys or not.
BOIES: Well, they had said, Your Honor, at our first hearing...
SAULS: Then we could be up here Friday.
BOIES: They also said they could bring our ballots -- if all they were doing was going to bring our ballots, they could bring them up Wednesday night or Thursday. And I understand from these people that if all they were going to do is send the ballots we've asked for, they could have them up here tomorrow or Friday morning.
It is these other ballots that is delaying things. And they've said that several times. And all I'm asking is that they send up our ballots as soon as they can.
BECK: Your Honor, I'm concerned about the integrity of the evidence here. And we've had a lot of sorting that I don't think should have taken place. And there may be further sorting in order to say what is an undervote versus what isn't an undervote. We've got these two envelopes where they used to be undervotes and now they're not undervotes. I think they all ought to come up at once.
Nothing's going to happen until we have this evidentiary hearing that begins on Saturday. And lawyers aren't going to be poring over ballots and making critical decisions in advance of Saturday.
I think we ought to get all the ballots up in a unified way, ensuring the integrity of the evidence.
SAULS: Mr. Greenberg, when did you tell me your client was going to send these up?
GREENBERG: If they're sending all the ballots, Your Honor, then they would be able to leave Friday morning, Your Honor, and hopefully be there by 5:00. If it were just the undervotes, we could get them up there by tomorrow night.
GREENBERG: We have to package the other 643,000 ballots.
SAULS: The bottom line, the difference would be about eight hours, at the most?
GREENBERG: Well, probably 24 hours, one working day, yes, Your Honor.
SAULS: Well, if they're going to come up the prior evening and if they all come together, they wouldn't be here until the next evening. But that's an eight-hour working day, is what I was saying or 12-hour.
Well, the difference is 12 hours, I don't know whether this justifies the expense. And, obviously, yes, you could do it, but at the same time, they're accommodating.
You know, otherwise, I'm not the czar, these people are cooperating and otherwise you'd be down, perhaps, if they had objected down there doing it and not up here. And so...
BOIES: All we want to do is take advantage of their cooperation, Your Honor.
SAULS: I understand. It seems to me, that that's putting an undo burden on them to make them run two convoys up here with those ballots.
SAULS: Mr. Greenberg, are you all right?
Tell him I apologize. I didn't mean to do that.
GREENBERG: Yes, you have Mr. Greenberg on the phone.
LANG: And the other parties?
MCCANN: Here, in West Palm Beach, as well.
LANG: Thank you.
BOIES: Your Honor, we are, of course, paying for the expense...
BOIES: ... of bringing it up. And since they're prepared to bring it up and we're paying for the expense, it seems to me that there's no legitimate reason not to have them come up.
SAULS: I'm going to leave it to them.
What do you all want to do down there? Do you want to send up two times or do you want to do it once? It's your call.
GREENBERG: One time, from Miami.
SAULS: One time it is. All right. That's it. One time.
What else do we have?
BECK: That's all that we have, Your Honor.
SAULS: All right. Well, that ought to conclude.
Well, now wait a minute, we have one other matter and I had another. We had one other order that we needed to take up. And that was an order -- where is it -- that came in from -- all right, this is Mr. Douglass. I think this had come in.
I had a transmission here. This was an order relating to a proposed order denying motion to commence counting of votes, et cetera, et cetera. Again, on this one there was no representation of no objection to form or content as to this order. And I didn't know if it was appropriate to enter this or not by counsel.
Quite frankly, it was my recollection that I asked the difference between this motion and the prior motion to count ballots, and I didn't think that there was any appreciable distinction, and I'd already ruled that I couldn't grant or deny that motion, pending the receipt of evidence.
The only other recollection that I have is, in essence, when it was brought back up again in the reincarnated form with the word "emergency" on it again, that I, in essence, I think in colloquy with counsel, said that, in effect, it appears that it might be a denial of trying to count something that's not here. But we are going to get them here, and I still haven't granted or denied the motion, so I, frankly, don't know how -- if it's appropriate for me to enter the order.
BECK: Your Honor, I'm sure that this was faxed over to us, but we just saw it now and we strongly object to any order denying their request.
I think that what your order did was, you set a hearing schedule.
BECK: And you're going forward with their motion, and you're going to hear evidence, and you're going to hear legal argument.
I think what's happened here is that the Gore team, as they threatened yesterday, decided to take still another appeal. And so they appealed your order, which is nothing really more than a scheduling order, and they're pretending like you denied them relief. And in order to perfect their appeal, they're asking you to enter an order that says you denied them relief when you did no such thing.
So I think Your Honor ought to not enter that proposed order. We object to it. We think that what Your Honor did was you set their matter for a hearing on Saturday at 9:00 a.m.
BOIES: Your Honor, I think the court knows that we're not threatening the court with anything and we're not pretending anything.
SAULS: Well, even if you were, it wouldn't bother me.
BOIES: Wouldn't bother you a bit. I wouldn't expect it to.
BOIES: And I'm sure the court is well aware that in a matter of this importance...
BOIES: ... we've got to seek appellate relief when we think it's appropriate.
SAULS: That is your right.
BOIES: In terms of our motion, the Monday motion, the Tuesday motion, both of those were a motion to get the count started right away. We have said, and I would say again, that in normal circumstances the order that this court is proceeding on would be very fast indeed. But this is not a normal circumstance, and we believe that the counting has got to start right away.
This court has set a hearing, this court has set a schedule. It has effectively denied our request that it start now. I understand the court's view that it's enough to start later. Our view is it ought to be able to start it now. And all we're asking for is the ability to take the question up to the Florida Supreme Court whether it should start now or whether it's OK to put it off until after the Saturday hearing.
And all we're asking for is an order, a written order, because we think that will facilitate matters, that reflects what we think the court clearly did on the transcript.
BECK: Your Honor, this is how they characterized your order in the appeal papers that they filed: "The order is effectively a final order denying all relief sought by plaintiffs, because the action now pending below must be completed by December 12." So they want this piece of paper that has the word "denied" on it so they can then tell the court of appeals that you have denied all relief sought by them, when all you did was schedule the hearing for Saturday instead of Thursday.
SAULS: Well, I'm going to adhere to the prior ruling that I made that I would not be able to enter any order on the motion to count until we had the evidentiary foundation to do so. So we'll proceed under the scheduling order.
I believe that that's all we have. So let me now let you go so you can resume your activities without further disruption.
Thank you all very much. That will conclude the hearing.
CHEN: All right, let's see if we can sort through what's been happening there in Judge N. Sanders Sauls' courtroom there in Tallahassee, Florida. It is the Leon County Circuit Court.
What you've been watching here is a hearing: At issue was a Bush team request to have all of the ballots from Miami-Dade, Palm Beach County brought up to Tallahassee. That could be in the neighborhood of about 1 million votes, not just the disputed votes, which would be in the number of about 14,000. These were to be brought to Tallahassee, the state capital of Florida, to be either counted or recounted, depending on what your opinion of that is, or not counted at all, but in any case secured with a hearing to be held this Saturday.
After a considerable amount of debate and discussion about the complexities of packaging up and moving these ballots, however many there would be up to Tallahassee, they finally determined that all of them would come up from both Miami-Dade and Palm Beach counties to Tallahassee. And the deadline's now been extended to 5:00 p.m. on Friday for all of that to happen.
The other element was a Gore team bid to have the calendar for all of this so that the ballots would be counted immediately or as soon as possible. In any case, the judge said he couldn't make a decision on that, effectively because he didn't have the ballots in hand to count.
David Cardwell is with us. He's the CNN election law analyst, back with us from Tallahassee. He's also the former state elections director in Florida. I guess you heard as much as this hearing as I did, David, and I'm wondering if there's been any advancement in your mind or any additional complexity. I guess a lot more ballots to be considered in any case.
CARDWELL: Well, any time you go from 13,000 to over a million ballots, that's probably making things a bit more complicated, just the logistics of getting those ballots to Tallahassee and then storing them once they're here in a secure manner so that every one will be satisfied that the ballots are in fact secured.
What you saw during the course of the hearing was a debate not only of -- over the number of ballots, which, since both Palm Beach County and Miami-Dade County consented to sending all of them, that really kind of, even though there was an objection from the Gore team, that basically meant they were going to send them up. Then it was a matter of logistics and when they were going to be brought to Tallahassee.
The Gore team wanted to go ahead and get the so-called "disputed ballots" up here immediately, but the judge overruled that and said that they all come in one caravan from Palm Beach County and Miami- Dade County. He did allow observers to be in the caravan from each of the two campaigns.
So those ballots will be arriving in Tallahassee around 5 o'clock on Friday, but they'll take a while to get them unloaded and get them secured, and then we have the hearing starting Saturday morning at 9:00 a.m....
CHEN: Determining what will actually be done with them as well.
CARDWELL: Right, right. And at that time...
CHEN: ... We appreciate your insight. I'm sorry, we're going to have move along here. We're going to hear more from you later, I am sure. CNN election law analyst David Cardwell joining us from Tallahassee -- Lou.
WATERS: We have not been hearing from George Bush today, but we have been hearing from Al Gore. Let's check in now with Jonathan Karl in Washington with the latest about that.
JONATHAN KARL, CNN CORRESPONDENT: Well, that's right, Lou. Vice President Gore met with Joe Lieberman, his running mate, and his transition team, or at least what he hopes to be his transition team today, at the Old Executive Office Building of the White House.
In addition to Joe Lieberman, the vice president was joined by Roy Neel, who is heading up his transition effort, by Alexis Herman, by Charles Burson, Katie McGinty, and Bill Daley: an effort to go over some general discussion of what would happen if indeed this works out Gore's way and he does have a transition to the presidency. Meanwhile, the vice president is engaged in a public relations war, an all-out media blitz. He sat down just a little while ago with CNN's John King. This is what he had to say.
(BEGIN VIDEO CLIP)
AL GORE, VICE PRESIDENT OF THE UNITED STATES: Well, I've never used the phrase "steal the election." And I think that's an intemperate phrase. And I think that both Governor Bush and I have an obligation during this period, when the votes are yet to be counted, to try to pave the way for whichever one of us wins to be able to unify the country.
You know, the only way to avoid having a cloud over the next president is to count all the votes, because the -- our country is based on the consent of the governed, and the consent of the governed can only come through a vote by the people. And all of the people who vote legally have to have their votes counted. That's a basic principle.
If -- if all of the votes are counted, that's the best way to confer legitimacy on the outcome of the election. And you know, in a close race, which by definition is usually one where the passions are running high and feelings are very strong, it's even more important than in any other kind of race to make sure that the outcome is one that's determined by the will of the people, by the votes cast by the people: not by politicians who have control of the election machinery and who decide for whatever reason to let some votes that are legally cast and take other legally cast votes and exclude them.
That's -- that's wrong. And if the election is determined that way, it would -- it would present a serious risk for the ability of whoever is the winner to bring the country together.
(END VIDEO CLIP)
KARL: This is third day in a row that the vice president has brought his case directly to the American people. And, in fact, he will sit down for no more than five national television interviews today before the day is up. It's an effort to bring his case directly to the American people that all votes -- including especially those roughly 14,000 disputed ballots -- should be recounted.
The Gore team believes that, if those 14,000 ballots are counted, there are clearly more than enough votes to put Gore over the top in Florida -- Lou.
WATERS: All right, Jonathan Karl in Washington.
And there is more to that interview with Al Gore. And can you see the rest of it at 8:00 Eastern this evening on "THE WORLD TODAY" Then at 10:00 p.m. Eastern, watch the entire interview during our election special, "The Florida Vote." And we are expecting to hear from the Bush campaign within the next hour of "INSIDE POLITICS." So that's it for us.
CHEN: Stay tuned for that. And we will see you again tomorrow.
TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com
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