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Special Event

Florida Hearing: 13:43-14:59

Aired December 3, 2000 - 1:43 p.m. ET

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

BLITZER: Welcome back.

We're awaiting the resumption of the hearing before Judge Sanders Sauls circuit court in Leon County. The picture that you're now seeing, people getting ready for this hearing.

Gary Tuchman is on the telephone. He's inside that courtroom.

Gary, any indication this is about to begin?

TUCHMAN: Wolf, all the lawyers are sitting at their seats, the court has quieted down, the court reporter is sitting down. So everything is ready for it to start. The judge has been fairly prompt throughout these last two days, and we expect the court to reconvene any minute.

BLITZER: And this was a lunch break, Gary. Do we have any indication -- originally, the judge said he wanted it all done yesterday. This is now the second day. Earlier today he suggested, at the beginning, shortly after 9:00 a.m. Eastern, that he was hoping it could be completed this morning. But it looks like it's going to continue.

TUCHMAN: Well, it is going to continue, but the judge says he wants it to end.

And here he is.

BLITZER: All right, let's listen to the judge.

SAULS: OK. Let's see -- have we got everyone? All right.

And the defense will call the next witness.

UNIDENTIFIED MALE: Your honor?

SAULS: Sir?

UNIDENTIFIED MALE: (UNINTELLIGIBLE) address the court.

SAULS: Yes, sir?

UNIDENTIFIED MALE: When we started, your honor will recall that we pointed out the urgency that we felt we needed you to have in reaching a conclusion on the issue of whether or not the recount these votes, or count these votes.

And I would like to suggest to the court that, under the court's power, that under this statute, that the court has almost plenary power to conduct this proceeding as it chooses in order to reach an orderly and correct result that the court desires to reach.

We are most anxious, your honor, if there are some matters that we might restrict -- for example, if the court is going to rule that we can count, we would like the court to consider that as soon as possible, or if we're not going to count, the same thing.

The other issues really bear on that from our presentation and standpoint. And I think -- I don't know exactly how else to put this, but if we go another day or two, our remedies...

SAULS: We are not going another day or two, if that is any benefit.

UNIDENTIFIED MALE: I'm asking the court to consider that, and do, if necessary, let us know where we stand. Thank you.

SAULS: We need to proceed with the next witness...

UNIDENTIFIED MALE: Your honor (UNINTELLIGIBLE)?

SAULS: Of course, with respect to any -- whether or not we are talking about the count that you just request, this is my understanding of the law, that the court must first find as a fact that there is a legal basis for ordering any such recount. Before ordering it...

HEMMER: Once again, as the second session begins today just after the lunch break, up to Washington and Greta Van Susteren.

And, Greta, another question from the Gore attorneys, Dexter Douglass, a question about time and if they can get any direction as to how much longer this will proceed.

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: Bill, it was just a strategic move. The reason why Dexter Douglass did this on behalf of the Gore campaign is he's creating a record in the event that the Gore campaign must rush to the Florida Supreme Court to get this judge to order a recount quickly. He wants to be able to say, look, judge, we tried -- to the Supreme Court, look, we tried to push this judge faster. Just creating a record, lawyers do it all the time, and they have to do it.

HEMMER: And, Greta, most folks will tell us down here in Tallahassee, and I'm sure you would agree, that whatever decision comes out of this court and whatever decision Judge Sauls makes, it will be appealed to the state's highest court here in Florida.

VAN SUSTEREN: Lawyers don't give up, Bill -- not often.

HEMMER: Back inside of the courtroom. Phil Beck now.

BECK: ... four witnesses total remaining here.

SAULS: We need to quit talking about it and move ahead then, it sounds like. Perhaps we will have the case back to the plaintiff's side momentarily.

UNIDENTIFIED MALE: Your honor, the secretary should be able to put her case in (UNINTELLIGIBLE).

SAULS: Very good. And we will just consider our (UNINTELLIGIBLE) and they only had one witness, I believe, who was listed -- Mr. Butler did, and I don't know how many Mr. Myers -- I think we're going to make some substantial progress here. I think we're breaking the dike.

UNIDENTIFIED MALE: Your honor, (UNINTELLIGIBLE). We have a emergency motion pending to intervene on behalf of six registered voters in Nassau County.

SAULS: It's a little late at this point, sir. I can't take up any more motions to intervene, but you can certainly stay and watch or, to the extent that the interest of your clients coincide with the other intervening parties that are here, I am sure they would be happy to benefit from any consultation or other information that you may have.

All right. Let's call the next witness.

UNIDENTIFIED MALE: George W. Bush and Deck Cheney call William Rohloff.

SAULS: Ask him to come forward and be sworn.

(UNINTELLIGIBLE) clerk. Oh,all right. You want me to do it? I can hardly see (UNINTELLIGIBLE).

Would you raise your hand? Do you solemnly swear and affirm that the testimony you are about to give will be the truth, the whole truth, and nothing but the truth, so help you God?

I do.

SAULS: Be seated, sir.

You may proceed.

UNIDENTIFIED MALE: Sir, would you please state your name and spell your last name for the record?

WILLIAM ROHLOFF: William John Rohloff -- R-O-H-L-O-F-F.

UNIDENTIFIED MALE: Where do you live, sir?

ROHLOFF: In Broward County, Florida.

UNIDENTIFIED MALE: What do you do for a living.

ROHLOFF: I'm a law enforcement officer.

UNIDENTIFIED MALE: How long have you been a law enforcement officer?

ROHLOFF: Twenty-seven years.

UNIDENTIFIED MALE: Did you vote in the last presidential election?

ROHLOFF: Yes, I did.

UNIDENTIFIED MALE: Would you please tell the court what you did when you went into the voting booth?

ROHLOFF: I first went in and signed in and received my ballot, and I went over to a vacant voting machine, looked over the instructions. Up until that point I still hadn't decided several issues on how I was going to vote.

I placed my ballot into the slot. I started actually at the back of the ballot, and started today place my votes. When I got to the presidential candidates, I was still undecided. And all of the other votes that I had cast, I had taken the stylus and I had put it directly down the center of the hole like the instructions say and pushed all the way down and removed it.

When I got to the presidential candidates, I took the stylus -- I was still undecided. I placed it over the name of one of the candidates, and I just decided that I didn't want to cast a vote.

Did you pull the stylus out then, after you had already touched the ballot with the stylus?

ROHLOFF: Yes sir, I did.

UNIDENTIFIED MALE: Now, do you know, one way or another, whether you made a dimple on that candidate's name that you decided not to vote for?

ROHLOFF: I have no idea, I don't know how much pressure is needed to make a dimple or a scratch mark in it. But I didn't push the stylus all the way down through it.

UNIDENTIFIED MALE: Well, if you did make a dimple on that man's name, do you want that dimple to be counted as a vote for a man you decided not to vote for?

ROHLOFF: No, sir.

UNIDENTIFIED MALE: No more questions, your honor.

SAULS: (UNINTELLIGIBLE).

UNIDENTIFIED MALE: Mr. Rohloff, is it?

ROHLOFF: Yes, sir. UNIDENTIFIED MALE: From Broward County, sir?

ROHLOFF: Yes, sir.

KITCHEN: My name is Deeno Kitchen. I don't think we've met.

What you told us, I believe, Mr. Rohloff, is that, in all of the elections you intended to cast a vote, you punched right on through?

ROHLOFF: Yes, sir.

KITCHEN: And on the presidential slot, you did not punch through?

ROHLOFF: That is correct.

KITCHEN: At most, as best you tell, there may be what we call a dimple?

ROHLOFF: There may be, yes, sir.

KITCHEN: So if your ballot was reviewed in a hand recount, you would see clean holes all over the place and one dimple.

ROHLOFF: Yes, sir.

KITCHEN: Now, sir, you would agree that your fellow citizens in Broward County who went to the polls and intended to vote for president of these United States, you would agree that if there is any way reasonable practical that their vote can be counted as they intended it, that should be done, don't you?

ROHLOFF: Yes, sir.

KITCHEN: And you're certainly not telling Judge Sauls that, if he feels, in order to get the true intent of your fellow Broward Countians (ph) by reviewing some of these following ballots to see if their intent could be discerned, you want him to do that, don't you?

ROHLOFF: Yes, sir, but I don't believe that -- especially on my ballot, that anyone can interpret my intent when I only make a dimple mark.

KITCHEN: But you know you got a dimple on one, and all of the rest have a clean hole?

ROHLOFF: Correct.

KITCHEN: Do you think it might be reasonable to say, looking at yours, that that dimple wasn't an intent to vote on your ballot.

ROHLOFF: My ballot was not an intent. I changed my mind.

KITCHEN: And certainly you would agree that you would rely on the people this court chooses, if indeed it does, to make the decisions that need to be made under our law? ROHLOFF: I would hope so, yes.

KITCHEN: Thank you. .

SAULS: I have just one.

Mr. Rohloff, you mentioned you started at the back of the ballot, (UNINTELLIGIBLE)

ROHLOFF: No, I believe it was uncontested.

SAULS: Oh, really? Oh, OK. All right. Was there any reason that you started at the back of the ballot? Is that your practice, or ...

ROHLOFF: No. It's just that, going in, I knew I was still undecided on who to vote for for the president.

SAULS: So you decided...

ROHLOFF: I figured I'd start at the least important races, maybe, and work my way forward.

SAULS: Let me ask you one more thing. Did you -- after you pulled your ballot out after you finished voting, did you look at the card and make sure all the chads were off, as the instructions called for?

ROHLOFF: Yes sir, I did.

SAULS: Do you see anything where you marked -- or you thought you might have marked?

ROHLOFF: No. At that time, I don't think the issue of pregnant ballots...

SAULS: You weren't paying that close of attention?

ROHLOFF: No. It was never an issue.

SAULS: I don't have any other questions. Do either of you have any questions concerning any matter I may have inquired about? If not, may the witness stand down without objection? Thank you.

ROHLOFF: Thank you, sir.

SAULS: Call the next witness.

HEMMER: Well that was quick. That was almost warp speed relative to some of the previous witnesses we've had. That is the fourth to get up and get down. The three previous ones stretched over a day and a half.

So William Rohloff, a police officer from Broward County, now off the stand. Now waiting for the next witness to be called, and it's our understanding, based on the lunch break, that the Bush attorneys only wanted to call two. So if the judge is right when he said after the lunch break that we're moving things along, we will see now indeed if the time has accelerated here.

Back inside.

SAULS: ... plaintiffs have transcripts...

UNIDENTIFIED MALE: I can answer your honor's question.

SAULS: Go ahead.

UNIDENTIFIED MALE: Indeed, the plaintiffs' offer as exhibits 23 through 31, nine of the 10 sessions, but they didn't offer the 10th. I am now offering the 10th, which is defendants' exhibit 61. I gave them a copy of it this morning.

And that relates to the sessions held on Tuesday, November 14, year 2000, from 4:00 p.m. to 9:20 p.m. in the evening.

SAULS: All right. Without objection, let it be so marked and received into evidence as the defendants' (UNINTELLIGIBLE) exhibit 61.

UNIDENTIFIED MALE: And at this time, your honor, Governor Bush calls Thomas Spencer as a witness.

SAULS: Ask him to come forward and be sworn.

Would you hand that transcript up, Mr. Terrell, if you have it, sir?

UNIDENTIFIED MALE: I'm sorry. Tom Spencer, your honor,

SAULS: OK.

UNIDENTIFIED MALE: Raise your right hand. Do you solemnly swear that (UNINTELLIGIBLE) truth, the whole truth, and nothing but the truth, so help you God?

THOMAS SPENCER: I do.

SAULS: Be seated. Did we get that transcript yet, or are you using it?

UNIDENTIFIED MALE: Oh, I'm sorry. No, I can give it to your honor.

SAULS: Mr. clerk, would you go and receive that, so that you may duly mark it?

UNIDENTIFIED MALE: Actually, premarked it. You did one thing right.

UNIDENTIFIED MALE: Please state your name, sir.

SPENCER: My name is Tom Spencer.

UNIDENTIFIED MALE: Mr.Spencer, where do you live?

SPENCER: Miami, Florida.

UNIDENTIFIED MALE: All right. How long have you lived there?

SPENCER: Since I was 15 years old.

UNIDENTIFIED MALE: All right. That leads to the next question -- how old are you?

SPENCER: Forty years.

UNIDENTIFIED MALE: So you've lived there -- you've lived there 40 years? All right. What is your occupation, Mr. Spencer?

SPENCER: I am a lawyer.

UNIDENTIFIED MALE: What kind of lawyer are you?

SPENCER: I am a very good lawyer.

But I am a business and commercial litigation lawyer. I handle complex litigation and election type of law.

UNIDENTIFIED MALE: You said you handled some election law matters?

SPENCER: Yes, I do.

UNIDENTIFIED MALE: Do you feel that you are proficient in election law matters?

SPENCER: Yes, I do.

UNIDENTIFIED MALE: All right. Before we come back to election matters, which is what the trial is about, I want to make sure that we get straight with everybody about a couple of things. Are you registered to one party or the other, or a third party?

SPENCER: Yes. I am.

UNIDENTIFIED MALE: Which party is that?

SPENCER: Republican.

UNIDENTIFIED MALE: How long have you been a Republican, Mr. Spencer?

SPENCER: Since about 1978.

UNIDENTIFIED MALE: OK. Twenty-two-plus years.

SPENCER: Yes,

UNIDENTIFIED MALE: Some people are -- let me ask this. Are you active in Republican affairs? SPENCER: Yes.

UNIDENTIFIED MALE: Were you active in this past election?

SPENCER: Yes.

UNIDENTIFIED MALE: On whose behalf?

SPENCER: On behalf of Governor Bush.

UNIDENTIFIED MALE: All right.

In connection with the matters at the Miami-Dade canvassing board -- and I want to focus on that -- could you tell us, just generally, what role you had, if any, in that regard?

SPENCER: I had a very extensive role.

UNIDENTIFIED MALE: Could you give me the timeframe in which you were down in Miami-Dade county headquarters, if that is where you were?

SPENCER: I began my activities in connection with this series of events on the morning -- early morning of November 8th, 2000.

UNIDENTIFIED MALE: All right. The election was on November 7th?

SPENCER: That's correct.

UNIDENTIFIED MALE: So, shortly after the night of the election, you were on the scene?

SPENCER: Yes.

UNIDENTIFIED MALE: And where were you?

SPENCER: I was on the 19th floor, the Department of Elections, Miami-Dade County.

UNIDENTIFIED MALE: And what did you do, just generally, that day?

SPENCER: On that day, I participated on behalf of the Republican Party of Miami-Dade County to observe the recount, the machine recount of the November 7th results.

UNIDENTIFIED MALE: Was that the second machine count?

SPENCER: That is correct.

UNIDENTIFIED MALE: Was it all, or just part of the votes in Miami-Dade County?

SPENCER: It was all of them.

UNIDENTIFIED MALE: For the second time? SPENCER: That's correct.

UNIDENTIFIED MALE: All right. Were there other times that you were on the scene at the Miami-Dade County election board as time went along during the month of November?

SPENCER: Sir, from the early morning of November the 8th until November the 29th, I was more or less continuously involved in the process of the various recounts, machine counts, and other activities before the canvassing board.

UNIDENTIFIED MALE: Did you observe the second machine count -- that is, the recount?

SPENCER: Yes, I did.

UNIDENTIFIED MALE: Did you observe all of the board hearings that occurred of the canvassing board that occurred after November 8 and through November 22?

SPENCER: Yes, sir.

UNIDENTIFIED MALE: All right. Prior to that experience -- and I'm talking about the experience of this election, which really -- the experience of this election, had you had any other experience in terms of viewing up close, as an observer, elections?

SPENCER: Yes, sir.

UNIDENTIFIED MALE: Would you tell Judge Sauls generally what that experience had been?

SPENCER: Well, I am also a political science major, so from the time that I was a college student through my activities as a young lawyer, through the present day, I've always been involved in election law or campaigns in one way or the other, and also observing counts and recounts.

UNIDENTIFIED MALE: In your experience in Miami-Dade County, did you -- do you have the capacity to advise us on, generally speaking, which precincts tend to vote Democrat and which precincts tend to vote Republican?

SPENCER: Yes, as a general rule I could.

TERRELL: All right, would you please advice Judge Sauls of that and in particular, in reference to the presidential election this year in Miami-Dade County?

SPENCER: Sure.

Well, generally speaking, the precinct -- precincts in Miami-Dade County are laid out in an -- in a numerical method and so that the earlier -- the lower numbers are along the coastline, the East Coast, and then sort of worked their way down and that is south and west. And that is that the more recent precincts which are opened up are the higher numbers so that the areas which are the lower numbers are sort of on the East Coast and in the upper northern section of Miami-Dade County. So that the Miami Beach areas, the areas in what we could call Aventura, the Liberty City areas tend to be, generally speaking, the lower numbers.

And those numbers which are in Little Havana, which are to the west of Miami-Dade County and to the south, the higher numbers tend to be more Republican. For example, in the Coral Gables area there are more Republican voters. In the western part of Dade County there are more Republican voters, who tend to be Hispanic.

TERRELL: All right, we'll come back to the subject as we talk about what the Miami-Dade County Board did, in fact, in November based on your personal observation.

Let me first turn your attention to November 14, sir, and in particular, I would like to draw your attention to defendant's exhibit 61, which Judge Sauls has just admitted.

May I approach the witness, Your Honor?

SAULS: You may, sir.

TERRELL: Thank you.

SAULS: You may (UNINTELLIGIBLE).

TERRELL: First, sir, let me ask you if in fact there was any kind of manual recount of any precincts on or about November 14 in Miami-Dade?

SPENCER: Yes, sir.

TERRELL: How many precincts?

SPENCER: There were three precincts.

TERRELL: Were those manual hand counts?

SPENCER: They -- yes, they were manual hand counts.

TERRELL: All right, sir, and which three precincts are we talking about? Are we talking about precincts that are typically Democrat in their voting pattern or Republican typically in their voting pattern?

SPENCER: These were precincts which were selected by the Democratic Party and -- for a test manual recount and they were highly Democratic precincts. As a matter of fact, they were the highest Democratic precincts in Dade County.

TERRELL: How many precincts are there roughly in Dade County?

SPENCER: About 614.

TERRELL: So we have 614 precincts... SPENCER: ... or thereabouts.

TERRELL: ... and Vice President Gore's campaign chose the three that voted most heavily for him to test to see if there was an error?

SPENCER: Yes, I believe the percentage was in excess of 90 percent.

TERRELL: And how many -- roughly how many voters are comprised in those three precincts?

SPENCER: My recollection, it was roughly about 5,000 votes.

TERRELL: Total or each precinct?

SPENCER: Total.

TERRELL: All right. And after that manual count was -- well, first of all, did you observe the manual count?

SPENCER: Yes, I did.

TERRELL: All right. At the end of the day or whatever time it took, at the end of the time that the manual recount was ongoing, how many votes switched to Vice President Gore in these heavily Democratic precincts?

SPENCER: I believe at the end of the day my recollection is that there were six votes.

TERRELL: And do you know whether those precincts, according to the first machine count and the machine recount had all -- had gone for Vice President Gore by a 10-to-1 margin?

SPENCER: Yes, they did.

TERRELL: All right, sir, I'd like to now, if I could, turn your attention to the report of the results by the canvassing board on November 14. First, let me ask you, did you, in fact, observe on November 14 the activities before the canvassing board in which it discussed what to do in light of the six-vote gain by Vice President Gore...

SPENCER: Yes.

TERRELL: ... as a result of looking at these three Democrat precincts?

SPENCER: Yes, sir.

TERRELL: And what, based only on your own observation, what did the canvassing board vote to do?

UNIDENTIFIED MALE: Your Honor, I'm going to object, the record speaks for itself.

SAULS: Over-ruled.

SPENCER: The vote -- the canvassing board decided by a majority vote not to go forward with a full countywide manual recount.

TERRELL: All right, well, we're going to talk about that in defendant's exhibit 61, that's what I've placed in front of you, but first I need to understand -- doesn't matter what I understand -- Judge Sauls perhaps would appreciate understanding the composition of the Miami-Dade County Canvassing Board. Were there three members?

SPENCER: Yes, there were three members.

TERRELL: Could you name each of them?

SPENCER: Yes. The board consisted of Supervisor David Leahy; Judge King, county court judge; and Judge Myriam Lehr (ph), a county court judge.

TERRELL: All right. Was Supervisor Leahy registered to any political party?

UNIDENTIFIED MALE: Your Honor, I'm going to object. There's no way this witness, as much as I respect him, would know that fact.

SAULS: I'll sustain his objection unless you lay a predicate.

TERRELL: Yes, sir. Have you...

SAULS: If he knows.

TERRELL: Have you determined where each of these supervisors are registered, that is whether they're registered to a political party or not?

SPENCER: Yes.

TERRELL: How did you do that?

SPENCER: It was on -- spread on the record.

TERRELL: All right, and you're talking about the record of the proceedings that you observed down in Dade County?

SPENCER: That's right.

TERRELL: All right. What party affiliation, if any, did Supervisor Leahy have at the time of the Miami-Dade proceedings that we're talking about in this lawsuit?

SPENCER: David is an independent.

TERRELL: All right, how about -- is it Judge Lehr?

SPENCER: Judge Lehr.

TERRELL: What about Judge Lehr? SPENCER: She is an independent.

TERRELL: All right, now you mentioned that there is a county judge, Judge King. What registration or affiliation, if any, did Judge King have at the time of the events that we're talking about?

SPENCER: He's a Democrat.

TERRELL: All right. Now, let's turn, if we could -- no, well, first, let me ask you on this 2-1 vote, that was 2-1, I believe you said, against doing a full manual recount of all the ballots in Dade County based upon finding six extra votes for Vice President Gore in heavy Democrat precincts, correct?

SPENCER: That's correct.

TERRELL: All right, now focused on that again, who cast the two votes on the board against doing a full manual recount?

SPENCER: Supervisor Leahy and Judge Myriam Lehr.

TERRELL: And who cast the vote against that and instead wanted to go ahead with the full manual recount of more than 600 ballots in Dade County?

SPENCER: County Court Judge King.

TERRELL: The Democrat?

SPENCER: Yes.

TERRELL: All right, sir. Now if you would, let's turn to exhibit 61 and, Your Honor, I -- it -- I hope a copy is given to you. If not, I have an extra copy for the court. May I hand up to Your Honor?

SAULS: Yes, sir.

TERRELL: Do you need that one? OK, may I hand this one to the Court?

SAULS: Thank you, sir.

TERRELL: Yes, sir.

Mr. Spencer, will you look on page 350 of this transcript?

SPENCER: Yes, sir, I have it.

SAULS: What page, counsel?

TERRELL: Three fifty, Your Honor. It may take you a moment and we'll wait.

SAULS: Go ahead, don't wait on me.

TERRELL: All right. Sir, do you see page 350 line 22 of this transcript?

SPENCER: Yes, sir, I do.

TERRELL: All right. Would you start reading first at line 22 where it says Judge King is the speaker through the end of his speech on 351 on line 5?

SPENCER: Certainly.

Now this is Judge King speaking: "Thank you very much, Mr. Greenberg. At this time I will exercise again my priority as chairman and I will ask that Mr. David Leahy cast a vote with respect to the limited 10,750 vote recount or any precinct limitation that would be reasonably found by the board to be applicable in this case."

TERRELL: All right, now stop there and let's skip down a little bit, because there's a colloquy between Mr. Martinez, the Democrat -- I mean, the Republican representative and Judge King. And if you'll go down to line 16 on page 351 and pick up and read there for quite a while and I'll stop you when it's necessary, and read slowly so that everyone can hear you.

SPENCER: Certainly.

This is Mr. Leahy speaking: "I don't believe that the changes that I saw in votes when you look at the number of initial votes that were counted, when you look at the disproportionate number of votes that vice president got in those three precincts after the -- in the recount compared to the number of votes which Governor Bush got after the initial count and after the recount warrants us to go any further. I believe that what we saw is that truly there was no error in the tabulation system. There are six instances where the tabulation equipment due to improperly punched ballots did not record the vote as we saw it when we hand counted. I just do not believe -- let me state it another way, I have a lot of experience with this system.

I've been here since '74 in the election process. I've been with this particular system since '78. I've been involved in numerous recounts and several hand counts. Based on that experience, it would be my belief that if you counted every ballot by hand in the county that you would get an equal, proportional share of increased votes for both candidates. I just do not believe that anything I've seen tonight warrants us to proceed either with an examination of the undercounted votes or calls for a manual recount, so my vote is no."

TERRELL: Keep reading, sir.

SPENCER: Judge King now speaks: "That you, Mr. Leahy -- Judge Lehr." Now Judge Lehr speaks: "I'm going to concur with Mr. Leahy, my vote is no for a recount." And then Judge King speaks: "At this time, the chairman votes yes."

TERRELL: All right, sir. If you will skip to the bottom of page 353 and start with line 23...

SPENCER: Yes, sir. TERRELL: ... where it says at this time?

SPENCER: Yes, this is still Judge King speaking: "At this time, a majority of the canvassing board has decided that there will be no further hand recounts in the presidential election of November 2000."

TERRELL: All right, sir, and this occurred on what date?

SPENCER: On the 14th of November, the year 2000.

TERRELL: OK, I'd like to now turn to November 17. On November 17, sir, did the Dade County Canvassing Board, County Judge King, Judge Lehr, and Mr. Leahy, again take up the question of whether to conduct a full manual recount?

SPENCER: Yes, sir.

TERRELL: Who brought that idea up?

SPENCER: My recollection is that on the 15th of November the Democratic Party represented by Steve Zach (ph), Joe Geller (ph), Kendall Coffey filed a motion for reconsideration before the canvassing board and that was then -- that motion was then set down for hearing on November the 17th.

TERRELL: All right, sir. I think -- did November 17 on this issue kind of have two parts or what? Did two different things happen with respect to this issue on December -- on November 17? But first let me start this way.

Let me ask you, at this November 17 hearing was any new evidence brought forward or offered by the Democratic Party or anybody else on this same question that had been considered on December -- November 14 as to whether the canvassing board should go from a three precinct manual recount to a recount of more than 600 other precincts as well?

SPENCER: No, sir.

TERRELL: Was there just legal argument?

SPENCER: Yes, sir, and policy argument.

TERRELL: Policy argument, all right.

What was the decision of the canvassing board regarding going from a three precinct manual recount to fully recounting by hand all 600-plus precincts in Miami-Dade County?

SPENCER: My recollection is that this time there was a -- also a majority vote, but this time it was to conduct the manual recount.

TERRELL: Well, sir, do you recall that -- let me show you first plaintiff's exhibit 23.

Sorry, Your Honor.

May I approach the witness, Your Honor?

SAULS: Go ahead.

TERRELL: And on the way I might give you a copy of this (UNINTELLIGIBLE).

SAULS: Thank you.

UNIDENTIFIED MALE: (UNINTELLIGIBLE) an extra copy of that.

TERRELL: All right, sir, would you take a look and does this -- do you believe this bears you out that they did, in fact, decide on that day contrary to their prior decision on November 14 that they would go forward?

SPENCER: That is correct.

TERRELL: And was it with a full manual recount or was it just to count some of the remaining precincts?

SPENCER: It was for a full manual recount...

TERRELL: All right. And...

SPENCER: ... of the entire Dade County area.

TERRELL: And -- but you said the vote was 2-1?

SPENCER: Yes.

TERRELL: Who was the one person who voted against doing this?

SPENCER: David Leahy.

TERRELL: And was he the professional supervisor of elections for that county at the time he voted not to do this?

SPENCER: Yes, sir.

TERRELL: OK.

Was there another matter that came up? And let me be specific. At this time, did the Democrat observers and the Democratic Party and Vice President Al Gore's team argue for a partial recount?

SPENCER: Yes, sir.

TERRELL: When you do a recount of the whole county and you don't -- do you start with the lower numbers or do you start at the highest precinct number and work backwards?

SPENCER: No, the system in Miami-Dade County is to start with the lower numbers and increase in arithmetic numbers.

TERRELL: And if you start the recount with the lower numbers, as is typically done, are you counting heavy Democrat precincts or are you counting heavy Republican precincts?

SPENCER: You're counting heavy Democratic precincts, because the system, as I described before, is moving from the coastline from the east, west and south, and the traditional highly Democratic areas are in the north and to the east.

TERRELL: And what were the Democrats proposing on November 17 with respect to a partial manual recount?

SPENCER: Well, they proposed a number of things, but one of them was to only count the approximately 10,750 so-called "undervotes."

TERRELL: And was a vote taken by the supervisory board on that idea on November 17?

SPENCER: Yes.

TERRELL: What was the vote?

SPENCER: The vote was to conduct a full countywide manual recount and not just to count the undervotes.

TERRELL: What was the number of the vote? Was it 2-1, 3-0?

SPENCER: The -- I recall that in this instance there was a 2-1 -- I think it was a 2-1...

TERRELL: Well...

SPENCER: ... no, I'm sorry, it was a 3-0 vote on the full manual recount.

TERRELL: All right, well, let me show you now this exhibit, a portion of the exhibit that I brought to your attention, plaintiff's exhibit 23.

SPENCER: Yes.

TERRELL: Would you take a moment and look at page 96?

SPENCER: Yes.

TERRELL: And do you see on page 96 at line 16 that Chairman King of the canvassing board is speaking?

SPENCER: Yes.

TERRELL: Would you read what Chairman King says on this matter through line 3 on page 97?

SPENCER: Yes. Chairman King: "All right, thank you very much. I've read the statute, I've listened to Mr. Greenberg and Judge Lehr. I wish for your input, if you wish. It says, under sub section 5 A, E and C, under Florida statute, in this case, for the record, 102.666, 166 section 5, sub-section C that the option available to this canvassing board, assuming the canvassing board were to vote - consider voting yes, or -- or this issue, a manual recount of all ballots, I think it is pretty clear, it says "shall" does not say "may", it does, and here I believe there is a type error on the part of the court reporter, it says, "A part there of", and my recollection is he said, "It does not say some part there of".

IRVIN TERRELL, BUSH CAMPAIGN ATTORNEY: Mr. Spencer let me understand, were you there, to hear this speech by judge King?

SPENCER: Yes.

TERRELL: I'm -- I'm sorry?

SPENCER: Yes, I was.

TERRELL: And was Judge King making this statement with respect to the Democrats attempt to get only a partial manual recount, that is of 10,750 so-called undervotes?

SPENCER: That is correct.

TERRELL: And Judge King, the Democrat, voted against that?

SPENCER: Yes.

TERRELL: Was he - by the words that he used, was he mentioning a Florida statute that says that in a manual recount, all of the votes will be counted?

SPENCER: Yes, sir.

And I have cited to it.

TERRELL: All right, sir.

Now, you correct me if I am wrong, and I could well be. Later in the day, on November 17, strike that -- let me start over. On November 17th did the manual recount start, or did something have to occur before that?

SPENCER: No, it did not start there, because it was such an extensive manual recount, preparations had to be underway in order to conduct the county-wide manual recount, and so various plans were prepared to do that. And also, preparation done in order to identify the approximately 10,750 undervotes.

TERRELL: Did you observe this process yourself?

SPENCER: Yes, I did.

TERRELL: All right, I want to ask you a couple of things based on your observations. What did the county canvassing board do with the 625,000 ballots in order to try to find undervotes?

SPENCER: Well, what occurred was that Supervisor Leahy announced the department of elections had a software program, which could go through all of the ballots for Dade county, and identify those which were recorded by the sorting machines as so-called undervotes. And that his staff would then mechanically and physically separate the undervotes from all of the other votes, and that process would -- was to take place - it was announced on the 19th of November.

TERRELL: Do you know your own observation whether the software program to call out undervotes, through another machine count, was a new process that Mr. Leahy -- was working on, or one used at the past?

SPENCER: To my knowledge, it was a program that had not used often in fact past if used at all, and, as a result, some training had to be undertaken of the staff to utilize it.

TERRELL: We will come back to that in a moment. And I believe you said that when the ballots run through the machine a third time, I am talking about all 625,000 in Dade county?

SPENCER: Yes, on November the 19th, I appeared at the tabulation room on the 19th floor of the department of the elections, and the process was begun to run all of the ballots through the machines, through the sorters, and identify or attempt to identify all of the so-called undervotes.

TERRELL: OK. Now, on November 20 and 21 were the on the scene observing?

SPENCER: Yes.

TERRELL: On November 22, were you on the scene observing?

SPENCER: Yes.

TERRELL: On November 22, one day after the Florida Supreme Court made a decision heard around the nation, on the next day, on November 22, what did the canvassing board of Dade county determine to do with respect to the manual recount that had been ongoing on November 20 and 21?

SPENCER: The board decided that due to the time limitation, indicated by and ordered by the Supreme Court of Florida in its decision, that there was, in its view, insufficient time to do a competent and proper manual recount.

TERRELL: All right. Let me ask you this. About what percent of the precincts had been completed in the manual recount at the time that the court ordered the stop?

SPENCER: At my recollection, it was about 20 percent - or 15 to 20 percent of the precincts.

TERRELL: Was that starting at the bottom with the lower number of precincts working up?

SPENCER: Oh yes.

TERRELL: So, that first 20 percent of the precincts, based on your experience in Miami-Dade county was that a count by hand of heavy Republican precincts or heavy Democrat precincts?

SPENCER: No, they are heavy Democratic precincts.

TERRELL: Are those the 388 votes that Al Gore's lawyers want to get into evidence before judge Sauls?

SPENCER: Well, I am not precisely sure about that, but the 388 votes that have been talked about, are in fact, the votes which were counted or observed from the predominantly Democratic precincts in Miami-Dade county as result of that process.

TERRELL: And in fact, do we even know. They were never certified as votes, were they?

SPENCER: No.

TERRELL: By anybody?

SPENCER: No.

TERRELL: And, in connection with the vote, not to go forward with the manual recount - was there because of the time problems - was there a Democrat effort before the board to go ahead and - let's just count what you think you found in these undervotes in the 20 percent precincts, which were heavily Democratic?

SPENCER: Yes.

TERRELL: And did the board take it, I take it the board did not do that?

SPENCER: It did not.

TERRELL: All right. Were there opinions expressed or statements made, a better question statements made by the board members, as to why it is, they were not going to go ahead and submit what they had found in the Democrat precincts?

SPENCER: Yes, my recollection is that since the manual observation and recount of the heavily Democratic areas, yield these preliminary results, it would not be a competent or even a fair indication of what the results were for Miami-Dade county, since the counts had predominantly been in the very, very heavy Democratic areas, and the very, very heavy comparable Republican areas, had not yet been counted or even observed.

TERRELL: If in fact the 20 percent had gone forward, would that have been counting Democrat votes, but not the Cuban and Hispanic votes in the typically Republican precincts that may be found by the same process?

SPENCER: Well, it would have included those kinds of votes, but would not have included my vote.

TERRELL: You live in one of the precincts that has a higher number? SPENCER: Yes, I live in a predominantly Republican area.

TERRELL: That assumes, of course, that you managed to perform the dimpled chad maneuver, right?

SPENCER: Yes, and my precinct is 626th, so it's in the higher numbers.

TERRELL: You don't know if you had a dimple chad or not?

SPENCER: No, I don't.

TERRELL: Did you try to punch it all the way through?

SPENCER: No, -- the procedure is very simple and clear, and I punched through clearly, and, as the instructions said, I pulled the ballot up and looked to see if there were hanging or swinging chads and turned it in.

TERRELL: And let me turn briefly to ballot handling issues, but, before I do, I want judge Sauls to know something about and you Mr. Leahy.

Are you and Mr. Leahy friends?

SPENCER: I would say so.

TERRELL: Yes, do you respect him?

SPENCER: Very much so.

TERRELL: Do you respect the people in the Miami-Dade county at the board that worked there and tried to -- tried so hard during the month of November?

SPENCER: Very much so, and, in fact, if they could be given a Dade county medal of honor, they should be.

TERRELL: All right, sir.

UNIDENTIFIED MALE: Feel free to send us all one.

(LAUGHTER)

TERRELL: All right, sir.

Let me be quick about this. You had previously testified that the all of the ballots all 625,000 Miami-Dade ballots had been through the machines three times?

SPENCER: Yes, sir.

TERRELL: Did you observe the ballots going through the machine the third time, when Mr. Leahy, your friend, was trying to find what he thought may be undervotes?

SPENCER: Yes.

TERRELL: What do you -- tell the court what you observed some.

SPENCER: I believe are you speaking of the run-through through the machines on the 19th of November.

TERRELL: The 19th, yes?

SPENCER: This was a Sunday, and we appeared about ten o'clock and stayed through the process. And what occurred was the ballots had to be put through the sorters and each - each team, Your Honor, in the tabulation room, which is, I would say, roughly the size of this courtroom, and there are about a dozen to 13 different stations, and each station has a computer, and each computer is affixed to a sorter.

And the process is a manual process, whereby the teams put the cards into the sorter, and the computer operates it, and when an undervotes is identified, the machine stops, and the operator then must take the card out physically and put it into a what was in a envelope that was marked by precinct, and the process would continue until the possible 750,000 so-called undervotes were then identified.

So this process started at ten. And since the folks were new to the program, there was a lot of training, on-the-job training, so to speak, with respect to the machine operation during the course of the entire day. Some of the operators were not very familiar with the operation of the machines and, therefore, the process started out very slowly.

TERRELL: And were there machine problems in the process?

SPENCER: Yes, there were a number of machine problems in the process, in this sense, and I observed several of them, first, the operators would have to take a stack of voting cards, and then fan them, physically, in order to put them properly into the sorter. And this was necessary in order to get the proper alignment, so that the machine could start.

And then, very he frequently, the machine would jam, and the card would be taken out, the lead card would be taken out, and then, physically manipulated among the top side and the side shorter side a of the voting card, in order for it to a lining properly with the machine, so there were a lot of stops and starts. I know that at one point, David stopped the process and retrained several of the operators.

TERRELL: When you say there was fanning, you mean like this with the ballot cards?

SPENCER: I mean, fanning like a deck of cards, they are -- they would take a stack of ballots and fan them, for whatever reason, and then put them in the sorter, and it was my understanding it was necessary in order to properly align them.

TERRELL: All right, sir. Let me ask you this. Not to belittle anybody and not to criticize anyone under the extraordinary circumstances, did you observe any dropping of precincts trays?

SPENCER: Yes, on the 19th, a entire tray of ballots from precinct 214, as my recollection, fell and splashed all over the floor and was picked up and then put back in the tray in order.

UNIDENTIFIED MALE: Your Honor, pass (ph) the witness.

JUDGE N. SANDERS SAULS: (UNINTELLIGIBLE) just a minute.

JOSEPH KLOCK, FLORIDA SECRETARY OF STATE COUNSEL: Mr. Spencer, just a couple questions.

You testified, did you not, that there was no evidence whatsoever of a voter tabulation system problem after the one percent manual test was done that's correct.

SPENCER: That was statement supervisor Leahy made, yes.

KLOCK: Did either canvassing commission members say anything contradict other to that.

SPENCER: Not to my recollection.

KLOCK: With respect to the six ballots out of 5,000 that were kicked out of a 90 percent Democratic selection precincts --

SPENCER: Excuse me, I made an error with respect to my last answer - I do recall that judge King said that he believed that he believed that by virtue of net gain of six votes, there was to him an error. And the judge Lare (ph) disagreed.

KLOCK: And the six votes that were kicked out of 5,000 votes that were looked at, in 90 percent predominantly Democratic precincts, in each of cases there was voter error in terms of ballots?

SPENCER: That's right. Obviously, the voter didn't carry out the instructions by punching through and examining carefully the ballot to make sure there were no hanging chads, so that the machine could read it.

KLOCK: Nothing further, Your Honor.

SAULS: (UNINTELLIGIBLE) you may inquire.

DEENO KITCHEN, GORE CAMPAIGN ATTORNEY: Good afternoon, Mr. Spencer.

SPENCER: Good afternoon.

KITCHEN: I'm Deeno Kitchen, I'm a lawyer here in Tallahassee. I'm a trial lawyer, and I am a Democrat. I understand that you are a lawyer and you do commercial work. You are Republican, is that correct?

SPENCER: Yes, sir.

KITCHEN: Obviously, from what you see me doing now, I have a dog in that fight, and it would be fair to say you do too.

SPENCER: I had a dog in the fight before I walked in this courtroom, but while I'm here, I'm here to assist the court.

KITCHEN: But you still have your feelings and your beliefs.

SPENCER: Absolutely.

KITCHEN: Now, let's take a look at Mr. Leahy. He is a supervisor in Miami-Dade (UNINTELLIGIBLE), is that correct?

SPENCER: Yes.

KITCHEN: Honest man?

SPENCER: Very honest man.

KITCHEN: Fair man?

SPENCER: Fair man.

KITCHEN: Competent man?

SPENCER: Very competent.

KITCHEN: Do you think Mr. Leahy is capable of supervising the segregation or separation of undervotes from the rest of the ballots?

Do you think he is capable of that?

SPENCER: Well, I think -- I think he is, but that wasn't the process. The machine did it.

KITCHEN: OK. But whether did it through use of machine, through the use of his clerks, or through other personnel, is that officer capable of doing it?

SPENCER: In my view, they were capable of doing it, yes.

KITCHEN: Now, the fact is, that at some point, at some point, there were some hand-counted votes of some of the undervotes, is that correct?

SPENCER: Yes.

KITCHEN: Now, approximately, and I say approximately, 10,750 undervotes as we think of it; is that correct?

SPENCER: Yes, sir.

KITCHEN: As you said, about 15 percent of some portion there, was actually hand counted?

SPENCER: Yes, sir.

KITCHEN: Did Mr. Leahy see the hand count was fair? SPENCER: Well, that would be judgment that I would disagree with.

KITCHEN: So you thought Mr. Leahy was not fair in the hand count?

SPENCER: Well, I would have so answer it this way - I would say, from my perspective, no. And let me explain this. I would not question in any way shape or form the integrity or motives or independence of Mr. Leahy, but I - and I think the world of him - but I think that the decisions that were being made, as I observed them, and I would as close to him as this computer screen is, were in my view, not correct.

KITCHEN: In judging his actions, Mr. Spencer, wouldn't it be fair to say that having a dog in the fight could certainly affect how you observed things.

SPENCER: I would say, absolutely, the fact that what I observed in my view was not correct, not fair, not in accordance with what I perceived to be the law, or purpose of the voter law, and would absolutely lead me to the conclusion that it was not fair. Or right.

KITCHEN: Mr. Spencer, I am really not directing my questions to your views of law, but what you observed, and how you saw it happening is what I'm talking about. The fact is that approximately 1,750 of these undervotes were hand counted. Correct?

SPENCER: Yes, sir.

KITCHEN: And 436 additional votes were counted out of that hand count?

SPENCER: That was report and conclusion of a majority of the board.

KITCHEN: Did you think people hand counting were capable of fairly and honestly giving their best judgment as to whether those 436 votes should be added to the tally?

SPENCER: Well, sir, my view was that the system they were asking to make those determinations was not right, was not fair, and was not in accordance with what I believed the result should be.

KITCHEN: Whatever the system selected by those charged with the duty of making that decision, were they attempting in your view to fairly and honestly go through that decision-making process?

SPENCER: I think they were using a sense of fairness that they believed was appropriate, just as they did when at the decided to stop the manual recounting. So I think the best of motives involved in both circumstances, even though I disagreed with the decision that they made with respect to their analysis of the so-called undervotes.

KITCHEN: Fine. As an American citizen, we all agree you have right to differ you, but they came up with additional 436 vote, didn't they?

SPENCER: I don't believe --

KITCHEN: Four hundred and thirty-six votes were added to the total count from the 1,750 hand recounts. Not all for Gore, not all for Bush, but total of 436.

SPENCER: I just don't have the number --

KITCHEN: Approximately.

SPENCER: I just don't have that number in mind.

KITCHEN: More than 100 were added, weren't they?

SPENCER: That's my understanding and recollection.

KITCHEN: You recollect more than 400 were added, don't you?

SPENCER: I don't recall what the number was, but I know more than 300.

KITCHEN: I'm in the ball park?

SPENCER: You are.

KITCHEN: Now, some of those were added for Vice President Gore, and some of them were added for Governor Bush.

SPENCER: That's correct.

KITCHEN: And, as best you could tell, whether you disagreed with the system and what was being done as far the law, whatever (UNINTELLIGIBLE) it was fairly being done, as best could you tell.

SPENCER: I don't think that it was fairly being done, no, I don't - I disagree with that.

KITCHEN: Was the honestly being done?

UNIDENTIFIED MALE: Your Honor, excuse me, I'm sorry. (UNINTELLIGIBLE). Thank you, Your Honor.

KITCHEN: Did you ever observe anything going on in that recount that you thought was dishonest?

UNIDENTIFIED MALE: Excuse me, Your Honor, same question, I object.

KITCHEN: Your Honor --

SAULS: I believe he answered that about four times now.

KITCHEN: May I ask you a question, Your Honor.

SAULS: No, sir, proceed. Rephrase it if you need to. KITCHEN: What I want to know, Mr. Spencer, and I don't mean (UNINTELLIGIBLE) is - whether you disagreed with how something was done, you are not suggesting that any dishonesty was going on?

SPENCER: No, not to the best of my knowledge.

KITCHEN: Now, as you understand it, but for time constraints placed by the Supreme Court at that time, all of the undervotes would have been hand recounted, wouldn't they?

SPENCER: My understanding is that but for the deadline, all of the manual -- all of the votes would have been manually examined and counted by the canvassing board.

KITCHEN: And even on the day the canvassing board decided not to continue the manual recount because of time, that very morning they this voted three/nothing to do the undervote -count the undervote by hand.

SPENCER: Yes.

KITCHEN: The entire undervote by hand.

SPENCER: Yes.

KITCHEN: Now, are we correct when we say there are approximately 9,000 undervotes that were not the subject of the manual recount, have never been observed for counting purposes by human eyes?

SPENCER: To the best of my knowledge, that's true.

KITCHEN: In fact, you have absolutely no evidence to the contrary that anyone tried to recount them by hand?

SPENCER: That's correct.

KITCHEN: Now, when we got to the question of -- you told us first there was a vote to do the sample hand recount on the ballot. Then that was stopped, voted to stop that, correct?

SPENCER: That's correct.

KITCHEN: Then they voted to continue the hand recount.

SPENCER: That is correct.

KITCHEN: When they voted to re-continue, they at least had before them for theirs consideration, an affidavit of a statistician professor Carol (ph) from Johns Hopkins, they had that before them for consideration, didn't they?.

SPENCER: I recall there was a lot before them for consideration.

KITCHEN: So, you are not suggesting to judge Sauls that just out of nowhere, they decided, all of sudden that, by golly, we were doing start back with no reason whatsoever. SPENCER: Absolutely not, I think every decision they made was carefully considered.

KITCHEN: Now, you gave us your insight sir, Mr. Spencer, as a long-time Republican in Dade county of how you thought hand count would have gone if it continued from these precincts to those precincts and about the county, correct?

SPENCER: What I indicated was - just to be correct, that the count, the manual recount, so far as it went, was virtually only in the heavily Democratic areas, and it really didn't take into consideration the heavily Republican areas, or even those which were evenly mixed.

KITCHEN: But we -- we will never know what that recount would have to shown, because it hasn't been done, correct?

SPENCER: That is correct, the entire manual recount was never completed properly,

KITCHEN: And then, can a commercial lawyer and trial lawyer agree that the only way we will know for sure what these 9,000 undervotes that have never been viewed for counting purposes by human beings the only way we will know what they actually say is if someone counts them?

SPENCER: Well that is where we disagree. I contend that these votes have been counted, I think that they have been fairly recounted, and that these votes, by virtue of the results of the tabulation equipment, there was no error, and that the results which have been certified by the canvassing board are the fair, proper and legal results of the election in Miami-Dade county on November 7th.

KITCHEN: OK.

SPENCER: That is my view.

KITCHEN: So, you agree with me -- they have not been hand count.

SPENCER: I would say that --

UNIDENTIFIED MALE: Excuse me, sir.

Asked and answered, Your Honor, he already said -- that they have not been.

SAULS: Rephrase your question, I believe he testified that -- they haven't -- been hand counted, and I think we all agree (UNINTELLIGIBLE).

KITCHEN: Thank you very much. Mr. Spencer, you told us why you don't think 9,000 votes should be manually counted. Would you -- would you agree that if Mr. John Ahmann, I believe his name is pronounced, the manufacturer inventor of the voting apparatus that was used, says that in a close vote, in a close vote, a hand recount is important. Would you defer to him on the question of whether we could better know what those votes said if we hand recounted them.

SPENCER: No, sir, I wouldn't, because the results of an election for the office of president of the United States of America needs to be fair and evenhanded, and to simply count votes from predominantly Democratic precincts, or even to use a system in of hand observation just in Dade county, or in just in Dade, Broward and Palm Beach county, and not do the same throughout the rest of the state of Florida, is going to give a skewed result and an unfair result, and is not the kind of result that our system is set up for. So I respectfully disagree.

KITCHEN: And that is your opinion? That is your legal opinion or is that is your political opinion?

SPENCER: Yes, sir.

UNIDENTIFIED MALE: Object to -- side bar for Counsel, Your Honor.

SAULS: I'm ...

KITCHEN: I'm asking him what it is.

SPENCER: It is all of those, sir.

KITCHEN: Thank you very much.

UNIDENTIFIED MALE: No redirect, Your Honor.

SAULS: Well, if you don't mind, let me ask one question, you made reference to difficulties, and on the manner in which they were implementing, I suppose, the hand count when it was started; is that correct?

SPENCER: Yes, sir.

SAULS: Were you able to tell, or do you have -- just, let me leave it at that. Were you able to tell what kind of system or standards that the board was using when they were - began counting and counted approximately 15 or 20 percent of the first-numbered precincts?

SPENCER: Yes, sir.

SAULS: What was it?

SPENCER: I should explain that I was behind canvassing board, watching them.

SAULS: All right.

SPENCER: About as close as I am to the computer screen here and, essentially, what happened, was that there were different variations of decisions that I observed. For example, my observations of judge King was that if there were simply a dimple, or a pregnant chad of any kind, he would determine that was a vote, regardless of whether or not there were indentations or clear punches on the rest of the card.

On the other hand, I observed that supervisor Leahy, on the full manual recount, used a different approach. I observed that he would take the ballot and hold it up to the light, like I'm indicating here and look to see whether or not there was some separation on the top of the ballot. Light separation of some type. And if there were, then and there were some other indication on the ballot, he would determine that that was a vote.

Judge Lare used a different approach, and she would take the ballot and hold it to the front, and also turn it over on the back to see whether or not there was some paper separation. This was different than the process they used on the first go-around on the three precincts, and I saw all kind of different variations of the doctor of these indications, and I reached a conclusion that there was no standard that was being used, but that there were different approaches being used by each of the three of them.

SAULS: Even if that was the case, when they decided after they reviewed it to place one in the stack that would count as vote, were they unanimous when they did that?

SPENCER: No, Your Honor. In some instances, where there were clear punches, they were unanimous, and we did have several of those, but, most of the time, it was two to one vote - I saw majority vote, and I would say that the vast majority of the what I saw were by majority, not by unanimous decision.

SAULS: Was it the same majority, or did the majority vary?

SPENCER: The majority varied. It was - in certain circumstances, judge King would use sort of a dimple test, and one of the other, Leahy or Lare would go along with him, and in other cases I noticed that judge Lare would say that there was no other indication on the ballot of voter's intent to actually vote, and she didn't think there was that kind of indication.

SAULS: Well, the majority changed. Did the one ever change?

SPENCER: No. The one consistency that I would observe and I recall was that judge King seemed to see a vote in every dimple.

SAULS: I'm talking about if it were two to one, we are dealing with majority, I'm talking about the one - did the one always stay the same, or did it move around the table among the three of them?

SPENCER: No. The one moved around.

SAULS: OK, all right. OK. So, if you have a system like you described, even if you have a count, suppose -- would it be the case if you put three different people in, and they might get a different count from the three people that you observed?

SPENCER: Absolutely. And I must tell you, Your Honor, that the -- that the judgments that I observed on the second go-around were completely different than the system which was used on the three precincts, in this sense.

On the first go-around, supervisor Leahy did not hold the ballots up to the side. What he did, was to look at ballot, and he would look to see whether or not there were clear punches on the rest of the races. And if there was a hanging chad by two points, he would determine there was a vote, because the voter had clear punched on the rest of the ballot, and that was his decision.

Judge King, as I said, was fairly consistent, if there were a dimple, regardless of what the rest of the vote was, he would determine there might -- or would be a vote, and he would vote for that.

Judge Lare, I noticed that she would make a decision for a vote only if there was an actual clear tearing away of the paper on the ballot, on the chad. So, I noticed and reported completely different set of criteria, if I could use that, between the three precincts and the last manual recount.

SAULS: OK, all right, thank you. Either of you may inquire as to any matter that have been inquired about.

UNIDENTIFIED MALE: I have no questions, Your Honor.

UNIDENTIFIED MALE: No questions, Your Honor.

SAULS: May the witness stand down, be excused without objection.

UNIDENTIFIED MALE: Your Honor, at this time...

RANDALL: We're going to take a break here to bring in Kenneth Gross, our election law specialist. He has something to say about this last witness, Tom Spencer, a Miami lawyer, a Republican activist, a Miami-Dade canvassing board observer.

Ken, you found significance in this Bush witness, didn't you?

GROSS: Well, I think this witness was helpful to the Bush campaign. He cast doubt on the whole process that was used in Miami- Dade to even conduct the partial recounts that they conducted, which was the basis for a full recount, which they never completed, as you might recall. When the Supreme Court ruled that they had a short time frame, it was based on that reason that they didn't recount.

His basis, his thesis, was there shouldn't have been a recount at all in the first place because the basis, the sampling, that was used for a full recount was from heavily Democratic counties not representative -- from heavily Democratic precincts not representative of entire Miami-Dade County. And, therefore, the extrapolation of this sample which would show a basis or an error rate as a basis for a full recount was inappropriate.

Now the Gore lawyers on cross examination said -- really tried to pin him down in saying, well, that may all be true. But isn't it still true that there were 9,000 votes that were not recounted by hand. And he of course admitted to that. Judge Sauls, interestingly enough in his questioning at the end, didn't focus so much on that. He wanted to know what standards were being used in the actual review of the ballots that were recounted. And it sounds as if the different canvassing judges were actually using different standards. One seemed to be using the Palm Beach standard, where you had one dimple but there were no other dimples. You wouldn't count that. And another one was counting them if you had just one dimple on the card, even though there were no other dimples. So that was interesting in and of itself.

RANDALL: We will get back to the hearing at the Leon County courthouse in Tallahassee, Florida, but first we'll take a break.

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