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Election 2000: Hearing on Martin County Absentee Ballot Challenge BeginsAired December 6, 2000 - 7:13 a.m. ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
CAROL LIN, CNN ANCHOR: Welcome back to EARLY EDITION, where we take you now live to Leon County Circuit Court, where you are looking at a Bush attorney, Matt Staver, starting his arguments as to why these absentee ballots favoring George W. Bush were not tampered with and should be counted.
(JOINED IN PROGRESS)
MATTHEW STAVER, BUSH CAMPAIGN ATTORNEY: ... is not something they take very lightly, they take it very seriously, and without the right to vote absentee, they would not be able to vote at all. And let me just touch on that for just a moment. I'll address this later if this court would permit intervention.
But the issue of the right to vote by absentee when it deals with a presidential election is a right, not a privilege. Under the Voting Rights Back, 42 U.S.-C 1973, congressional findings there, back in 1989, ultimately amended the Voting Rights Act to allow for absentee voting, requiring that people were being disenfranchised, and under the privileges and immunities clause, and under equal protection, mandated that there be uniform procedures for absentee voting, and indicated in that particular section, your honor, that voting by absentee for a presidential race is a right, not a privilege.
Any cases in Florida that have indicated voting is a privilege by absentee did not address presidential elections, and there's a crucial difference between voting for the presidential elections and voting for state elections. While state law might say that in certain situations voting is a privilege by absentee, when we look at the federal issues, we need to look at the federal law that preempts this area, and in 1989, that's the Voting Rights Act of 1973, that section, and there it clearly says, voting by absentee is a guaranteed constitutional right.
State of Florida, in the very first declaration of rights, puts down the issue of voting as the pre-eminent right. Article One of the United States Constitution lists that the voting issue is the pre- eminent right. In fact, the state of Florida and United States Supreme Court have both said that the right to vote is the right of all rights. It is the right for which this country stands for democracy. It is the total expression of the ability of the person to express him or herself. We have tried to knock down barriers for the right to vote, we have amended our Constitution four or five times to knock down the barrier of the right to vote over race, gender, age, and even geographical distancing.
This particular case is about an alleged barrier that the plaintiffs are trying to impose in the issue of the right to vote of thousands of people in Martin County, namely whether or not a voter ID was placed on their application form.
That barrier is insignificant, when we consider the other barriers that we've actually struggled for in this country to knock down the right to vote for all people.
Clearly, your honor, whatever happens in the outcome of this litigation, the people that are here, represented as the absentee voters, are the real party in interest. These people literally are outraged and frankly shocked that their vote might be disenfranchised over what someone else alleges or has done.
Many of these people, your honor, voted because they are disabled and they got the ballot in the normal process. It was sent to them, it didn't come through the Republican Party. Some of them went down in person to get their absentee ballot. These are all included in this requested remedy by the plaintiffs.
Other individuals, as we've listed here, did get their application through the Republican Party, and they ultimately voted, assuming that their vote would be counted. We should not let this hyper-technicality disenfranchise these voters. And based upon the interest of the voters, we believe that we have a direct interest. And certainly the outcome of this litigation has a direct and an immediate impact on the right of the these citizens to express themselves, whether they are Republicans, Democrats, independents, Libertarian, or Constitutional Party, or whatever persuasion they come from.
So without going into more detail, your honor, we request this court the opportunity to intervene. For expeditious purposes, we would ask and we would also say that we do not need to participate heavily in the trial. The issues would certainly be dealt with competent counsel on both sides. So we would not anticipate our involvement to be extensive in the area of cross-examination, unless it got to the issue of remedy, and I want to focus our interests on the issue of remedy.
All of the other factual issues will be flushed out through competent counsel on both sides. But we do ant the opportunity, if the issue comes to remedy, to be able to express ourselves, at least by presenting oral argument, at least by presenting the memorandum of law, and also by potentially cross-examining limited on the sole issue of remedy so that we would not bog down this trial and add simply another counsel at the table.
But one thing, in closing, your honor, the Constitution rights protected in the state of Florida Constitution and the United States Constitution are personal rights. They cannot be raised by the supervisor of elections, in the sense of a third party cannot raise my First Amendment right or my right to vote.
The Supreme Court said that those rights are personal, and they cannot be transferred to a third party. We present to this court those personal rights, and only the voters can truly represent those personal rights.
We also bring to the table, not only their state constitutional rights, but their federal Constitution rights as well, since this is a federal election, and that comes from a unique perspective that will not be protected by any one particular interest here.
The other issue is that we represent the interest of all voters, not just those that are Republican, Democrat or independents. We represent the voices of all voters, regardless of what persuasion they voted.
So, in that respect, no other party here can essentially cover those interests that are essential to the voters in this particular case. If you have any questions, we will be happy to answer them.
JUDGE TERRY LEWIS, LEON COUNTY CIRCUIT COURT: OK, let me see what the other parties have to say.
ROBERT HARPER, ATTORNEY FOR PLAINTIFF: Good morning, your honor.
May it please the court. My name is Robert Harper. I'm appearing on behalf of the plaintiffs on this issue.
Your honor, we brief this, as try to brief every issue. It is found in the plaintiffs' response to presidential elector, John E. Thrasher's motion to intervene. Pages 3 through the end of that response address the issues of statutory construction under Florida Statute Section 102.168.
Our position is simply that the Florida statute applies to all election, that this right to vote, announced by my able colleague, is not a right, but a privilege, and that privilege as we have set forth in the trial brief is a -- just that, a privilege.
While we certainly respect the rights of those citizens serving in the armed services overseas, that are many citizens serving overseas and serving in other capacities, in the Peace Corps and doing work for the country, whose privilege to vote, like every other citizen, has to be exercised through the operation of Florida statute, whether it's a presidential election or any other election.
And we submit that, under the basic tenets of statutory construction, that the statute -- that the Florida law applies. This is not a federal question, it is not federal issue under 42 U.S. Code Section 1973, we've specifically addressed that in our response and in the trial brief. We'd also ask the court to judicially notice the ruling in the sister case. I guess you would call it, the Seminole County litigation.
LEWIS: Thank you.
Anybody else on the plaintiff side?
STAVER: Sir, may I respond quickly?
LEWIS: Anybody want to respond to the motion to intervene by Mr. Staver's clients?
STAVER: Your honor, 42 U.S.-C. Section 1973 aa-1, Congress found that, in presidential elections, that, in their findings, there was a lack of sufficient opportunities for absentee registration and absentee voting in presidential elections and, therefore, they said the lack of that denies or abridges the inherent constitutional right of citizens to vote for their president and vice president, denies abridges the inherent constitutional right of citizens to enjoy their free movement across the state, denies and abridges the privileges of immunities clause of Article 4, Section 2, Clause 1 of the United States Constitution.
It goes on to say, and I'll quote: "No citizen of the United States, who is otherwise qualified to vote at any election for president and vice president, shall be denied the right to vote for electors or for president and vice president, if such citizen shall have complied with requirements prescribed by the law of such states or political subdivisions providing for the casting of absentee ballots for such elections."
Subsequent Supreme Court cases and other federal cases from different circuits around the country have clearly said that there is an inherent right to vote under this statute, which preempts any state law to the contrary when, every four years, we elect a president. It may be different every two years, when presidents and vice presidents are not at issue. But when we elect a president, Section 1973 takes control and preempts any state law to the contrary.
It outrages me, your honor, to think that voting for president is considered a privilege, as opposed to a right. Tell that to my client who is in a wheelchair who cannot vote any other way. That is not a privilege under federal law, it is a constitutional right. They have a right to vote by absentee.
And in fact, other cases have clearly said that right to vote for president and vice president by absentee also adheres to the right to vote for other federal electors as well.
This federal law was not argued to the contrary by the plaintiffs. In fact, the memorandum they're talking about is a memorandum in response to Mr. Fracture's (ph) motion intervene, who is an elector.
They have had no memorandum of law with regards to voters, and we ask this court, your honor, to protect the constitutional rights of these voters, who are the real people in interest. Let the voters, please, have a voice in this contested issue.
The most historic issue that we have faced in 100 years, we plead for the court to let the voters have a voice and express their constitutional rights and their state constitutional rights and their federal statutory rights to present their case before you thank you.
LEWIS: OK. Well, I will tell you the truth, Mr. Staver, I think your interests are probably well represented by the attorneys here on the defendant side. But I am mindful that Judge Clark has allowed you to intervene in the case, which appears to be very similar to this.
If you will limited to the extent that she allowed you to intervene in that case, I will grant your motion.
STAVER: We will be happy to do so, your honor. Thank you.
And that I think I have a motion to intervene by Mr. Thrasher. Who represents Mr. Thrasher?
Mr. Ben Zina (ph).
UNIDENTIFIED MALE: Thank you Judge Lewis. Rob Ben Zina (ph) on behalf of John Thrasher.
John Thrasher, as you know, is the immediate past speaker of the Florida House. We seek intervention, however, in his current status, as one of the 25 Republican electors in this presidential election.
We actually, Judge Lewis, seek status as an indispensable part as the first rung of argument, In the alternative, however, and at the very least, status as an intervener, as a person with sufficient interest to qualify under the intervention statute.
We have -- and let me tell you upfront...
BILL HEMMER, CNN ANCHOR: We anticipate, especially from the Republican lawyers throughout the day, you will hear some of the similar themes that we've heard for the past 20 minutes, talking about disenfranchising people in wheelchairs, like the handicapped, also penalizing seniors who cannot necessarily get to the polling stations, and certainly military ballot as well.
But David Cardwell, as we listened to the arguments initially, it appeared anyway that the Republicans were trying to get a motion to dismiss the case, much like they did last night in the Seminole County Courtroom of Nikki Clark.
DAVID CARDWELL, CNN ELECTION LAW ANALYST: that's correct. They had hearings on motions yesterday in the Seminole County case. Judge Clark denied the motion to dismiss. We are hearing now the arguments on the motion to dismiss, and specifically right now, a motion by the former speaker of the Florida House, John Thrasher, who is also an elector, Republican elector, to intervene in the case. He was denied intervention by Judge Clark. He'll try to get into this case here.
HEMMER: And ultimately in this case, the thing that may decide it is the remedy: Do you take all the absentee ballots and throw them out? Do you take a percentage? or do you dismiss the suit entirely?
CARDWELL: Or another possible remedy is to take civil or criminal proceedings against the individuals involved because they may have violated the Election Code, but is the violation so serious that you take away all the absentee ballots, because at this point, we can't tell -- the elections officials can tell which are the so-called good ballots, and which are the so-called bad ballots.
HEMMER: And you heard the Democratic attorney, quickly here, say this is not a federal motion. Republican attorneys would argue it is. And they believe the Supreme Court rules that that third party cannot remove the right of a citizen to vote.
HEMMER: Absentee ballots the issue today. We are in the courtroom of Judge Terry Lewis, and our coverage here live on CNN will continue after a short timeout.
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