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Special Event

Election 2000: Motions to Intervene Continue in the Martin County Absentee Ballot Challenge

Aired December 6, 2000 - 7:31 a.m. ET

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

BILL HEMMER, CNN ANCHOR: Once again, welcome back to Tallahassee. We are going to let you know that Terry Lewis again has convened his courtroom. We'll go back inside shortly.

But how unusual is it, knowing that Terry Lewis is hearing the Martin County case now and Judge Nikki Clark is going to take the Seminole County case probably in hour or so, how unusual to have two cases running concurrently with each other?

DAVID CARDWELL, CNN ELECTION LAW ANALYST: Well, very unusual under normal circumstances, but this -- this has been anything but normal. This is an attempt to try to get things moving along because, you know, the clock is ticking, and the reason they are doing them kind of back to back is that, while there may be different lawyers on the plaintiffs' side, there are the same layers on the defendants' side. So we've got to, you know, try to juggle the two cases back and forth.

HEMMER: Juggling indeed.

Back inside now. Again, opening statements anticipated in this case. Right now motions to intervene continue here back inside the courtroom in Leon County.

(JOINED IN PROGRESS)

UNIDENTIFIED MALE: ... successful candidate that would have party status. But whether we are an intervener or whether we are an indispensable party, our goal is, at the appropriate time, to argue the bona fides, the merits of the substantive motion to dismiss. We do not seek to put on any witnesses. We would ask the court to take judicial notice that Secretary Thrasher -- Speaker Thrasher is a Republican elector and has been certified by both the secretary of state and governor of the state of Florida. And we seek not to cross- examine or examine witnesses, merely to make a legal argument at the appropriate time.

JUDGE TERRY LEWIS, LEON COUNTY CIRCUIT COURT: Did Judge Sauls address the merits of your argument?

UNIDENTIFIED MALE: Judge Sauls did not, but my understanding of the order, as I have heard it announced and read briefly the transcript, was that at the very end of his oral rulings, due to the exigencies of time, he was going to pass on the various motions to dismiss that had been pending without prejudice, of course, to any of those movements pursuing those motions before the Supreme Court.

He did not, however, have any problem with allowing us in for purposes of presenting our argument and our motion.

Thank you.

LEWIS: Response from the plaintiff.

ROBERT HARPER, ATTORNEY FOR PLAINTIFF: May it please the court.

You honor, we have addressed these issues also in the separately filed pleading, the plaintiffs' response to presidential elector John E. Thrasher's motion to intervene, that we ask the court to judicially notice the ruling of Judge Clark, which denied this motion. But we have tried to brief the fact, and I will state it briefly, since we are on such a tight schedule, that the -- first of all, elector is not an indispensable party, as alluded to, and then alleged in the pleadings, that the legislature had spoken to those issues, being not an indispensable party, he would have no right to intervene, but may be granted leave to intervene, which we submit should be denied for the same reasons that the Supreme Court of the United States, the Supreme Court of Florida, and the previous rulings of the circuit court here have -- have consistently ruled on these issues.

Your honor, we feel like this legislative history under Section 102.168, which we have spelled out in brief, clearly sets forth who the appropriate parties in this case, and in all due respect, it does not include Speaker Thrasher.

Thank you.

LEWIS: Any of the defendants and intervener wish to respond on the motion?

UNIDENTIFIED MALE: (inaudible)

LEWIS: OK. Well, my thinking on this -- and I understand Judge Clark denied the motion to intervene -- but I think for purposes of record I didn't see any arguments -- similar argument made by the other defendants or intervener in this case that Mr. Thrasher has made. So I am going to let you intervene for the purposes of making that legal argument, so it will be in the record one way or the other.

OK. All right. Do I have any other motions to intervene? I am looking through here, but anybody seeking to intervene that I have overlooked? I will get to Mr. Harder (ph) later then.

And again, I don't have any particular preference, but it seems like the logical thing to do is to take Mr. Gonzina's motion to dismiss first thing because his motion implies that no further proceedings would be held?

Mr. Richards?

UNIDENTIFIED MALE: That's fine, but I would also motion for the same thing so at some point I'd like to argue...

LEWIS: You raised this issue as well?

UNIDENTIFIED MALE: No your honor. I thought you were just talking generally about the motion to dismiss. I wanted to make sure I was on a different que.

UNIDENTIFIED MALE: The other defendants, your honor, have raised this issue about whether you could contest a presidential election under (inaudible) and I (inaudible) my argument (inaudible) that you indicated that was the reason you were going to allow intervention because you weren't sure that was in there, it is indeed in the -- it is raised by the other defendants.

LEWIS: OK. I didn't know that.

UNIDENTIFIED MALE: We don't waive it, but we don't intend to argue it, so you won't have any duplicative arguments.

LEWIS: Yes, I think Mr. Gonzina is prepared to be the primary person arguing that today, if they have raised -- I didn't see it, but OK, I'll take your word for it, they have raised that issue as well.

HARPER: And of course, the Florida Supreme Court, in the Harris case, specifically says, recognizes the contest provision and that was the reason for their ruling was to allow time to have a contest, certainly they weren't engaged in such a -- in such an order that there is no provision for a contest as far as statues.

LEWIS: I don't think anybody raised that particular issue, though, before the Florida Supreme Court. I just want it to be there in case they want to address it again. I don't know what I'll do on the merits, but I think I should hear it, so, Mr. Gonzina?

UNIDENTIFIED MALE: Thank you again, Judge Lewis.

You are correct that the Florida Supreme Court did not have these issues before it. I think that there was an assumption on behalf of both the Gore team, perhaps more of an assumption on behalf of the Gore team and on behalf of the Bush team as well, that the contest procedures of 102 would apply and the case was argued accordingly.

But the grounds upon which Speaker Thrasher's motion is based were not before the Supreme Court. To my knowledge, they were squarely, I know for a fact, they were squarely before the circuit court in Palm Beach County. And in that case, referred to as the butterfly ballot case, the Floodel (ph) case, Judge LaBarga authored, and I don't know if the court has had an opportunity to read the trial court's opinion in the Palm Beach case, but Judge LaBarga authored a very lengthy and a very, we think, well reasoned opinion where he tracked through the provisions of 103 and 102, and analyzed those two statutes at length, and concluded that 102 simply was not intended and cannot apply to presidential elections.

LEWIS: OK.

UNIDENTIFIED MALE: At the risk of being slightly redundant, but only to emphasize the point...

HEMMER: At 7:37 a.m. Eastern time all of this may sound a little bit like legal minutia, it may or may not play a bigger role throughout the case today. But David Cardwell, give us some guide posts to what the attorneys are trying to do inside now.

CARDWELL: OK, well, what's going on right now is this is the attorney for John Thrasher, former speaker of the House, who is a presidential elector on the Republican side. Thrasher filed the same motion in Judge Sauls' court, seeking to dismiss these contests, because he claims that the contest statute does not apply to presidential electors.

So he is saying, you're in the wrong court, you brought the wrong action, you should dismiss it, because the only way to challenge presidential electors is in the legislature and in Congress.

So they lost this argument before Judge Sauls, they were not allowed to bring it before Judge Clark in the Seminole County case because they weren't allowed to intervene. They loudly intervened here in arguing their motion.

HEMMER: I hope we got all of that.

CARDWELL: OK.

HEMMER: We do anticipate a long day in circuit court, let's get a quick time out. Back with more in Tallahassee after this.

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