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Bush Campaign Attorneys Hold Press Conference

Aired November 30, 2000 - 1:51 p.m. ET


LOU WATERS, CNN ANCHOR: We're hearing from the Bush -- George W. Bush legal team in Tallahassee. Here's lead attorney Barry Richard.


BARRY RICHARD, BUSH CAMPAIGN ATTORNEY: ... in the second place, we're not talking about ballots that were not counted, other than ballots that were rejected because the machine determined they weren't properly marked.

QUESTION: What is your statement about the filing of the Gore lawyers today to the Florida Supreme Court? How are you going to respond to that?

GEORGE TERWILLIGER, BUSH CAMPAIGN ATTORNEY: Well, we're respond to it when we respond to it in the Supreme Court, which will be shortly.

But there is a rather curious juxtaposition between Mr. Boies being in here this morning presenting evidence to all of you and then going to the Florida Supreme Court and saying we shouldn't present any evidence at all before you start counting, when the very issue is is there sufficient evidence of some kind of a violation of the election code that would justify counting ballots.

TERWILLIGER: And, of course, our position is if, as Barry just said, if you're going to count ballots, you need to count them all.

QUESTION: (OFF-MIKE) procedure brought up before? Why, when you guys have that opportunity to have all the ballots counted, why didn't you jump on it?

TERWILLIGER: I'm not sure what opportunity you're talking about, sir. But in the recount there is a specific procedure that the election code provides for in a recount. That procedure, which the Gore people asked for, they had.

Now we're in a situation we're in an election contest. An election contest, despite what you may have heard from the other side so far, is not just a continuation of a recount, it is a whole new type of procedure.

And our position in that is very simple, and that is, before -- as the judge found already in the case -- before you make the decision that recounting the ballots is an appropriate remedy, you have to determine that there is a legal problem with the certified results of the election. And he's holding a hearing on Saturday to engage in that process.

QUESTION: As you go through this process, where you know that there's a deadline, which might be, now, December 12 -- it might slop over a few days, depending -- how concerned are you and how many days do you want to build in for appeals as your insurance in case Gore is successful in either Seminole County or in his contest case?

RICHARD: Well, we're not in a position of building in any days. We're going to move this case as rapidly as we can. If we can win it on Saturday, as I've said several times, we'll win it on Saturday. We're not going to do anything to delay it or to slow it down.

I think that when the Florida Supreme Court set the deadline that they did and said that they did it for maximum time for election contests, they intended that there be enough time for us to have a trial on the contest and for the parties to have an opportunity for appeal.

That, by the way, apparently doesn't have to be very long, because of the way the appellate courts have been handling these things up to now. And I would anticipate that they will be completed in time for either party to file an appeal.

By the way, the problem that the Gore camp is complaining about, I think is not contemplated either by the statutes or by the Supreme Court, and that's sufficient time to recount all of these ballots again. I don't think it was contemplated that that would happen under any circumstances, and that's why the time sequences that are there under the statute appear to be too short for that.

QUESTION: When Mr. Boies was in here this morning, he said that Palm Beach and Miami-Dade Counties had such a significant undervote, that that was a justification for asking those contested ballots to be reviewed. And yet, if you look at the numbers, there are at least 17 other counties in the state that had significantly higher error rates, where there were no votes counted for president. Why aren't you challenging for a revote in those counties? Why haven't you put those on the table?

TERWILLIGER: Well, first of all, just because there was an undervote for president doesn't mean there was an error. The national statistics are very clear that in a lot of elections where there are multiple candidates for office, some people choose not to enter a choice in the presidential election.

QUESTION: But these are marked as errors: in Franklin County, 8.2 percent; 60 percent error.

TERWILLIGER: Well, there can be a variety of reasons for that. And we're not foreclosing the possibility that at some point all those votes would be counted.

But we're trying not to slow the process down by prematurely asking for vote counts.

Don't forget -- we need to sort of keep our eye on the big picture here -- the key question in a contest is not how the votes were counted, it's was there some kind of a error that would affect the outcome of the election.

So before we get to worrying about counting votes statewide, for example, we'd have to address the question of whether it would be enough changes in the votes in the counties that have been contested and that are relevant to justify going farther because those votes would change the outcome. If they don't change the outcome, it's over.

QUESTION: What Mr. Boies seems to be saying is, by not allowing them to vote now, in effect, Judge Sauls is ruling against them, they don't have enough time to do it. What is the problem to vote and to start counting? No decision has been made whether they should be counted, but if a decision is made to count Saturday, Sunday, Monday, Tuesday, there won't be enough time.

You know, their whole argument seems to be, "Well, we can litigate the matter of whether to count them, but when we get to that point there's not going to be enough to time to count them." So, you know, when they're talking about precious time, that seems to be their point.

RICHARD: Let me go back -- in order to answer you, let me begin with a point that I think we tend to forget. There's no right to manual count of votes in this state, not by statute, not by the Constitution, not by the common law.

If the legislature wanted all ballots to be manually counted, because it determined that it was a more reliable way to do it, it would have required that. It would have said, "Either we're going to have manual counts from day one and there will be no machine counts," which it has the right to say, or it would have said, "After the machine count, there will be a manual check, recount, or, if the difference is so small, there'll be a manual recount of all counties."

RICHARD: They could have said all of that. The legislature did not do that.

Obviously we all understand, in every county and in every state, there's the possibility that when we use machine tabulation that there will be errors. What the Florida legislature did do is it set up -- in order to avoid that, it set up a procedure by which there would be manual recounts only under certain circumstances and only when requested. Or I shouldn't say when requested, but only when the canvassing boards determine that we'll have it. Because even if it's requested, they don't have to.

That's the procedure in this state. That's what the law is. That law has been followed. There has to be an end point or you could go on well beyond January recounting and recounting and recounting.

So this is not an issue of the fact that everybody's vote must be checked and must be counted to be absolutely sure that it hasn't been inadvertently missed. That's not what we're talking about here. Because the legislature didn't intend that, it didn't provide for it, nobody on either side has requested it. It's a question of following the law as it's set out, which I think was intended for us to have some parameters, some certainty in an election.

TERWILLIGER: Before we get the next question, while we're talking about counting votes, and before we run out of time, I did want to just bring to your attention these materials from the Seminole County case. I know there's been a lot of discussion about the absentee ballots there and the other lawsuit that is pending in connection with those. And I hope that by presenting some information that you can see with your own eyes, we might be able to lay this to rest.

What we have here are the front and back, in fact, of a ballot application that was sent out by the Republican Party to absentee voters in Seminole as well as other counties. Both parties do this. The Democratic Party sent out these kinds of applications as well.

And I'll point just a couple of things out to you on here, if I might. This form right here is a little card that you tear off from this mailing. This was, of course, prepared by a vendor, printed up and sent out. And the voter, by this little form, requests an absentee ballot and puts their name and puts their signature on here, and with a specific provision that's mentioned on here, a new Florida law, puts the last four digits of their Social Security number.

Over here is the front side of this card. And that is what is returned to the election official. Now some of these, including ones that the Democrats sent out, rather than being sent to the supervisor of elections were, in fact, sent back to one of their party offices, perhaps some of ours were in other places as well, but these in Seminole were addressed to the supervisor.

TERWILLIGER: This number, next to this orange stripe up here, is the erroneous voter ID number. And as you can see, all it is is part of the return address that's on the top of this card. That number, due to an error by the vendor, was not correct for these voters. And when that was discovered, what happened was that the supervisor of the elections permitted that number to be corrected and the correct voter ID number put down there.

There's a couple of important things about this. One, it was clearly a mistake. Two, these are not ballots. These are simply applications for ballots, so political people were never anywhere near ballots, voted or otherwise. And three, it was an inconsequential mistake that made no difference to the validity of the voting process that took place.

I think it's fairly clear that the bottom-line conclusion on this is that there is absolutely no reason to believe that these are not valid votes that were validly cast by people -- voters themselves, who did everything right -- and that these ballots ought to be counted.

We now have a lawsuit trying to get these votes out of the count. Now, admittingly, the Gore campaign has not brought that lawsuit. But you would think if, as they keep saying, they're so interested in having ballots counted that they might encourage the people who did bring this lawsuit to drop it, because it's much ado about nothing.

QUESTION: Could you update on the U.S. district court filing in Pensacola, Escambia County, over the military ballot?

TERWILLIGER: What about it?

QUESTION: Well, there was supposed to be a deadline of 5:00 today. I didn't know if your side took any action toward that.

TERWILLIGER: Well, off the top of my head, I'm not sure. But if there's any filing deadline that we're supposed to make, I'm sure we'll make it.

Our position on that is very simple. Those overseas military ballots, just like the absentee ballots that somebody's seeking to exclude here, ought to be counted. I mean, these aren't dimples or pimples or pregnant or anything else, they're valid votes that need to be counted.

QUESTION: Mr. Richard, will there be a motion made or has there been one already in Judge Sauls' court to have ballots from Volusia, Broward and Pinellas brought up here just like the other two counties?

RICHARD: I've been told that there has been such a motion made, but I'm not...


RICHARD: Yes. Well, then it may not have been done. I'm not aware of it personally, and I've not been personally involved in any discussion of that.

QUESTION: Have you been (OFF-MIKE) the reason for those three counties? Can you answer that yet? Have you been told about that?

RICHARD: I understand the clerks have filed. I know earlier today I was asked those questions and I said that if it had been, I didn't know the reason that it was.

QUESTION: Why don't you file (OFF-MIKE)

RICHARD: Who? Me, personally?

QUESTION: The Bush team?

QUESTION: Are you saying the Miami-Dade ballots, the Palm Beach ballots, have to be reviewed because their standards don't pass the smell test. Why not apply that to the Broward and Volusia situations, where they've also done the recounts?

RICHARD: Well, let me tell you, we begin always with the premise that we don't believe that it's appropriate to manually recount any ballots at this stage of the proceedings from anywhere. The statute says that at that point where it was appropriate to do it, you needed to manually count all of the ballots, you couldn't manually count just some of them. And so we have taken the position that if that were valid at this stage then you'd have to follow the statute and do all of them. But, again, we don't think there should be any.

Now, as far as other counties are concerned, whether or not the Bush campaign is going to request other counties or has requested other counties, I apologize to you, I had mentioned earlier today to some of you that I feel badly because when we began this business a few weeks ago I was able to answer more questions than I can answer now. It's gotten more and more difficult for me. We now have, as of last count, 42 lawsuits. We've had to allocate the responsibility to an increasing degree, and I've had to concentrate my time on the areas that I've assumed, and I just don't know everything, and neither does Mr. Terwilliger.

QUESTION: Can you give us the rationale for excusing -- for trying to get the judge in the Seminole case disqualified? And do you plan to appeal the denial of that motion?

RICHARD: I was not involved in that, and I just -- I have no comment on it at all.

TERWILLIGER: The reason is the reason that was stated in the papers. And yes, it is likely that we will probably appeal that decision.

The more important question there, though, is that that case ought to be consolidated with the case that Barry and his team are working on in response to the Gore contest of the election.

Seems to me...

QUESTION: It's a nothing case.

TERWILLIGER: Well, it is a nothing case and it ought to be disposed of. But the fact of the matter is, that it seems -- it's just incomprehensible to us why you would have two election contests in front of two different judges and not consolidate the cases. Imagine the chaos if those two judges reach different results.

QUESTION: Do you consider that a contest, the Seminole County case?


QUESTION: Do you consider that a contest or something...

TERWILLIGER: For all intents and purposes, it is. I mean, it's seeking to exclude votes from the count, at this point.

QUESTION: Why wouldn't it be your strategy to delay? You don't want the votes counted, there's only a certain amount of time to get the votes counted, so why wouldn't that be your strategy? TERWILLIGER: I don't think it's appropriate for a lawyer to delay legal proceedings, unless the lawyer has a basis that the law considers proper for the delay; for instance, because of one reason or another, you cannot get a brief filed on time.

Good example is an appellate brief I had in another case for another client that I couldn't do this week, because I'm in emergency hearings every hour.

But, as a general rule, I don't practice dilatory law and my client has not asked me to. We are proceeding to successfully try this case as rapidly and decisively as we can.

QUESTION: There's a general notion that they're running out of time. They say, today, tomorrow, they won't have the time to do it. How do you view that dilemma of theirs?

TERWILLIGER: That is their dilemma. But it's a dilemma that comes about -- well, first of all, it comes about because of the legal strategy that was elected by the Gore legal team, which took other steps when they could have filed contest over a week ago.

RICHARD: That's one reason.

The other reason is because of the way that this statutory is constructed. And the third thing is when you say they're running out of time, that presumes that one of the things that the legislature intended is that there be another massive manual recount at this stage. I don't think that was ever intended by the legislature. If you remove that equation, we're not running out of any time.

We've got plenty of time to have what I think is the only issue that is before the circuit court that is authorized and meaningful, and that is whether or not the canvassing boards abused their discretion in doing what they did. And there's plenty of time to both have that heard and have it appealed. So we're not running out of time.

We're only running out of time to do things that the Gore camp would like to do that I don't think are authorized.

QUESTION: Do you have time for one more?

QUESTION: ... when you say the concern here is that -- you said over and over that if there's votes counted, all should be recounted, the Miami-Dade and Palm Beach cases, if partial counts going to happen, have them all come up. And you said previously, if any are being counted, all should be counted.

And yet there is this public relations concern, that the Bush team doesn't want to look like it's dragging this on, it wants to seem presidential.

Is there any way in which your legal abilities are being hampered by public relations concerns of the campaign? RICHARD: Public relations concerns have not been a matter of my consideration. I have never been asked by my client to make it a matter of consideration, not from the first day I came on this campaign. My sole focus has been the legal aspects.

And I have said to those of you who ask me about public relations, that it's not within the scope of my employment. So that has not been an issue for me.

QUESTION: When will you file the Clark appeal?

RICHARD: The what?


QUESTION: When will the Clark appeal be filed?

TERWILLIGER: I don't know. I mean, I'm not certain.

There is one more matter that I do want to bring to your attention that I'd be remiss if I didn't. In all of this discussion about the threshold issue here of counting the votes, there's been much discussion about this case in Chicago, the so-called Pullen (ph) case and whatnot, and I understand that Mr. Boies may have made further reference to that case this morning.

I would strongly encourage all of you to check the record on that case. The fact of the matter is that that court did not approve dimpled ballots being counted as votes, and that is a very important and critical consideration, because no Florida court has ever counted dimpled ballots as votes. What little discussion there has been of dimpled ballots as votes in the national jurisprudence is not very helpful to their cause.

UNIDENTIFIED MALE: Thank you very much. There are some handouts on the way out the door.

WATERS: The Gore legal team was out earlier today. Now we've heard from the Bush legal team -- Barry Richard and George Terwilliger there in Tallahassee as the ballots that they have been talking about arrive at the Leon County courthouse from Palm Beach County, 462,000 of them in 168 boxes in the back of a Ryder truck that was driven up from Palm Beach County. The rest of the ballots that are called for by the Leon County circuit court judge are the 600,000-or-so ballots from Miami-Dade County.

The gist of what Barry Richard was saying today is, we've got plenty of time. We're only running out of time, he said, for things the Gore side want to do that I don't think are authorized.

David Cardwell, our election law analyst, is with us from Tallahassee.

And David, I think I counted four or five times when Barry Richard and George Terwilliger said, we are not trying to slow this process down; as a matter of fact, Richard said, if we win on Saturday, we win on Saturday, and that's what we're going to try to do.

DAVID CARDWELL, CNN ELECTION LAW ANALYST: Well, this is still an extremely fast track that the court has proscribed, even though the Gore campaign would like it to be even faster. They are concerned about running out of time -- that December 12 deadline is looming and it's getting closer every day.

We now have ballots from one county here in Leon County, tomorrow we'll have ballots from the other county. It appears that we would not be able to start counting, or recounting, depending on your point of view, until Saturday anyway. So, basically, it looks to me like we're talking about maybe a, you know, 12-hour difference between what the Gore campaign's asked for and what the Bush campaign says they're willing to go along with.

WATERS: Barry Richard still sounding as confident as ever that the Florida statute does not call for any more recounts in this matter, and that's why he's convinced that he's got plenty of time to get this matter settled before the December 12 deadline?

CARDWELL: Yes; they believe that the Gore campaign has not yet reached the legal threshold that's required in order for the court to even order a count or recount of the ballots. That's why they keep arguing that there's a need to have an argument on the law and the legal issues before Judge Sauls on Saturday to determine if it's even necessary to do a new count.

WATERS: So the Gore proposal now before the Supreme Court is to, what, get these ballots counted -- just the disputed ballots counted -- before the Leon circuit county judge even decides whether or not they will be part of this contest, is that correct?

CARDWELL: That's true. The filing that they made directly in the Florida Supreme Court early this morning was to ask the Florida Supreme Court to either take jurisdiction over the case, to, in essence, pull it up from the circuit court and for the Supreme Court to oversee the counting of the ballots and only the so-called disputed ballots, not all of the ballots.

The other thing they want the court to do is to establish that the standard to be followed is that the voter intended to vote -- if it was a dimple or a pregnant chad -- and that it's only when it was conclusive that it was not an intended to vote would it not be counted. So they've asked the court -- the Supreme Court to either take over the case or to issue what is called a writ of mandamus to Judge Sauls -- basically directing him to have a count of the ballots and to follow the standard that they've asked for in their petition.

WATERS: What's the possibility of that happening?

CARDWELL: Well, when you're in the Supreme Court, there's always a possibility, but it does give the Supreme Court another opportunity to weigh in on the recounts and possibly try to provide some guidance as to how this process should follow, but the Supreme Court is an appellate court. And we've seen that they prefer to have a record come up to them from a lower court rather than starting at the top and working the case back down.

So it's going to be difficult for them. It was a gamble for them to go directly into the Supreme Court, but it's one they probably -- with the time frame -- needed to go ahead and take a chance with.

WATERS: One other matter I'd like you to touch on, and that's the Seminole County business, which Barry Richard said -- or maybe it was Terwilliger -- said, much ado about nothing, and that's the matter of this voter ID number that was changed. The Bush team wants that incorporated in the contest, is that correct?

CARDWELL: Yes, in that case, it's really not the ballots that are at issue, it's the requests that were filed with the supervisor's office to have a ballot mailed to someone who was going to be out of the county on the day of the election.

And the Florida legislature amended the absentee ballot law after the Miami mayoral election in 1997 to make it much tougher to get an absentee ballot to try to cut down on fraud. And they added some requirements for putting numbers such as Social Security numbers and voter ID numbers. The voter ID number was not on the request, and it was filled in for the voter. So the voter didn't do anything wrong, as it appears, at least from the allegations in the complaint.

But there's a question as to whether or not those requests should have been invalidated. The remedies there are sort of extreme. They're asking, in the petition, that all of the absentee ballots in Seminole County be thrown out and it only be the Election Day count. That would have the effect of taking out a lot more votes than just the ones in dispute.

WATERS: Lots to keep track of, and we have David Cardwell, our election law analyst to help us keep track of those things. Thanks again, David.

Natalie, what's next.

NATALIE ALLEN, CNN ANCHOR: Well, we don't know whether those ballots will be counted, but we do know they're coming off the truck right now. They arrived in Tallahassee some 30 minutes ago. They just opened the door a minute ago and they pulled the dollies up and Gary Tuchman is there to tell us what happens to these ballots from Palm Beach County next.

GARY TUCHMAN, CNN CORRESPONDENT: That's right, Natalie; 30 minutes ago the yellow Ryder truck, after an eight-hour ride from West Palm Beach, pulled up to the backside of the Leon County courthouse. Democratic and Republican officials met in the garage at the loading dock and decided on a plan to get it out. They had to agree on every contingency -- the security, how to take care of the ballots -- and now the doors open and 168 boxes that are inside that Ryder truck are now being taken off the truck to be brought to secure vault rooms inside the Leon County courthouse.

They have two rooms set up; one room will get Palm Beach County ballots -- and there are a total of 462,000 ballots on that yellow Ryder truck. The other one will be Miami-Dade ballots. Those Miami- Dade ballots will be leaving south Florida tomorrow, getting here by 5:00 Eastern time, and there are 653,000 of them, for a total of 1,115,000 ballots that will be inside this building.

The reason they're all here is because they might be counted. Then again, they might not. Judge N. Sanders Sauls hasn't decided yet. He says, he'll make that decision once the hearing begins on Saturday.

But now the first of the boxes has come off. We don't know how long it takes to unload all these boxes. As a matter of fact, the officials here, the judge, had no idea how long any of these things would to take -- whether to count them, whether to unload them. This is uncharted territory, but they're doing the best they can.

Democrats originally asked for 14,000 disputed ballots to come here. Republicans countered the next day, if you're going to bring 14,000 here, bring all of them, and the judge agreed to bring all of them. About 30 minutes ago, that truck did arrive down the streets of Tallahassee. It was almost like a presidential visit -- of course, these are ballots that could decide the presidency, so it seemed appropriate.

But they arrived 30 minutes ago with a police escort; Tallahassee police officers on their motorcycles were leading the way. Palm Beach County sheriff's officers were also in a car. And they were follow on the highways on the way here by no less than 11 different journalists' cars also going along the way to mark this. In addition, helicopters from different television stations along the way -- it started in West Palm Beach, so there were West Palm Beach television stations for part of the way. Then Orlando television stations, Jacksonville television stations -- people had helicopters here showing this eight-hour trip of this yellow Ryder truck from West Palm Beach to Tallahassee.

So the ballots are now here, they're coming off of the truck. The contest -- the Al Gore contest begins Saturday. The Al Gore attorneys wanted this count to begin immediately. The judge said he couldn't rule on counting them immediately because he didn't have the ballots. Al Gore's attorneys decided to file an appeal with the Florida Supreme Court -- nothing's been heard yet from that court, but Gore's attorneys want that count to begin as soon as possible. They think that time is wasting.

Of course, Mr. Bush's attorneys say these do not need to be counted at all, it is totally unnecessary, but they want them all here in case the judge wants to look at them, count them, whatever he wants to do with them, they think it's fair that all the ballots are here.

So they're starting to get unloaded, they'll be in the vaults and more will come -- 600,000-plus more will come tomorrow.

Natalie back to you.

ALLEN: It seems like it's going to be a slow process there; lots of folks looking on at the back of that truck.

Gary Tuchman, thanks.

Now to Lou.

WATERS: And we'll need more helicopters in the air -- tomorrow in Miami they're heading them up and moving them out tomorrow, and we may need a bigger truck.

Here's CNN's Frank Buckley, keeping watch down there in Miami- Dade -- Frank.

FRANK BUCKLEY, CNN CORRESPONDENT: Hi, Lou. In fact, they're going to use two trucks. They're planning to use two 14-foot-paneled trucks tomorrow. They'll be escorted by two marked police cars and followed by two observer cars, now. Earlier, we were told that all of the Republicans and Democrats acting as observers would be going in one chase car. They've apparently negotiated a deal where they're not going to have to sit together for that nine-hour car ride and now they'll be separated into two cars.

We'll take you inside right now to the 19th floor where the process is underway -- where they are, in fact, finishing up the job of the day, which is to box up all of the 654,000 ballots. All of them being placed into small boxes and then the small boxes being placed into larger boxes; all of the boxes then being taped up. They're expecting about 100 boxes and then they will be loaded onto the two trucks, and then -- that's probably going to happen at about 5:30 tomorrow morning; and then, within an hour or so, they believe they'll hit the road for what's expected to be a 9- to 10-hour trip up to Tallahassee -- Lou.

WATERS: Frank Buckley in Miami-Dade. We'll be keeping watch on those ballots, too, of course, as will everyone else. We'll take a break and we will continue with this special election coverage when we come back.



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