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The Florida Vote: Seminole County Case Continues

Aired December 6, 2000 - 4:36 p.m. ET


MARTIN SAVIDGE, CNN ANCHOR: In Tallahassee, Florida, the focus today shifting away from the Florida Supreme Court and now entering into Leon County Circuit Court: two court cases there in front of two different judges from two different Florida counties. But the subject matter and the heart of the issue is absentee ballots, thousands of them that could literally change the outcome of the election, not only in the state of Florida, but for the entire nation.

Right now, we are in the courtroom here of Judge Nikki Clark. We are listening to the testimony of James Delong, a statistician who is being cross-examined as they talk about what could be a possible solution, if the verdict were to be in favor of the Democrats in this case. How do you figure out what absentee ballots you count and what absentee ballots could be cast aside? And that would be a troubling issue for anyone to try to ponder. And yet that's what he's trying to do.

And joining me now, David Cardwell, sort of legally assisting me here.

This is an argument here that must be really deeply embroiled in numbers and probably looked upon as rather circumspect. It's extrapolation at this point.

DAVID CARDWELL, CNN ELECTION LAW ANALYST: Well, certainly, it is. And what each side is going to do with their respective statisticians is to, of course, try to show that they are qualified, that their opinion should be considered by the court, and that they've gone through the correct methodology and used the correct numbers to get to their conclusions.

The other side -- and what is happening now in the course cross- examination -- is to attack the methodology, say that he didn't take certain things into account. And, as you see here, this is Ken Wright (ph), a lawyer representing the Republican Party. And he is objecting to some of the statements that the witness has made. So what's now going to happen is the other side is going to try to either knock down his conclusions or may also be trying to set the stage for the testimony by their statistician when the defendants present their case.

SAVIDGE: Now, why is important that we even get into the issue of what relief could be if the verdict goes one way another? Why are they not still focusing on: Were there illegalities here, improprieties in that talk in -- as far as testimony?

CARDWELL: Well, I think that what is really hanging over this trial as we -- as well as the one from Martin County -- is not so much whether there was some misconduct or not. That almost seems to not be the real crux of the issue. What seems to really be hanging over this courtroom is the fact that the Florida Supreme Court's rendering -- rulings in the past have been that, you know, when you have a lot of misconduct, you throw out all of the absentee ballots.

And that is probably troubling to the judge, to throw out 15,000 ballots vs. perhaps 1,500.

SAVIDGE: So the plaintiffs come up with their idea of fair idea of a fair solution.

Let's listen in once more to the testimony.

JAMES DELONG, STATISTICIAN: ... the will of the voters is an aggregate result, and that procedural fairness is an important part of it, not whether each particular vote counted or it is indeed the will of that particular voter.

KEN WRIGHT, BUSH CAMPAIGN ATTORNEY: Professor Delong, let's go back in the process a little bit. If the -- if Michael Leach had not corrected these cards, these absentee could have still gotten a ballot, isn't that right?

DELONG: I think that...

UNIDENTIFIED MALE: Your honor, I object. This calls for a yes or no question, not a speech by the witness.

WRIGHT: Your honor, is there any


WRIGHT: No, to the answer if you please direct the witness to answer the question fairly.

JUDGE NIKKI ANN CLARK, LEON COUNTY CIRCUIT COURT: Please finish your question, counsel.

WRIGHT: OK. What I want to know -- give me a moment, please. When you did your calculations -- at least when you told me about it in your deposition, did you assume that these voters if they hadn't had their card corrected by Michael Leach would not have been able to vote absentee in this election?

DELONG: My answer to the question of if you discounted 1,932 ballots, how should you discount them? I don't see how, if you're discounted 1,932 ballots, I don't see how the issue that you are talking about comes into it.

CLARK: Actually, you still need to answer his question, though.

DELONG: OK. WRIGHT: The question was, at least when you told me in your deposition, whether you believed that if Michael Leach had not corrected these absentee ballot request forms that these voters would have not been able to vote absentee in this election?

DELONG: So, the question is do I believe that if Michael Leach had not altered these absentee ballot request forms then none of these voters would have voted absentee in the election?

WRIGHT: That's the question, yes.

DELONG: OK, well, I think and I've only seen this this morning since I got off of the plane from the deposition of Professor Robert Topple (ph) and from the information that he's relying on, and that in fact 600 of the voters who mailed in these absentee ballot request forms did in fact receive absentee ballots and did in fact vote.

WRIGHT: So, it's true...


DELONG: Five hundred of whom had already sent in or had immediately thereafter sent in a valid -- already sent in a valid absentee ballot request form when their invalid card hit the system and some number of them, I think, about 70 -- I'm not sure who, while their ballot's request forms were sitting in this box waiting for Mr. Leach, who sent in other kind of cards that had -- or other absentee ballot request forms that were valid and it's..

WRIGHT: Isn't it true, Mr. Delong, that some of these people would have voted anyway?

DELONG: Yes...

WRIGHT: Isn't that the basic question?

DELONG: Yes, is highly likely that...

WRIGHT: That some would have voted anyway had they not had their absentee ballot request form corrected by Mr. Leach?

DELONG: It's highly likely...

WRIGHT: Yes or no.

DELONG: ... that some of them would have voted anyway had they not received an absentee ballot.

WRIGHT: OK, that's all that I was trying to get at. And your calculation doesn't take that into account at all. Is that right?

DELONG: It doesn't. I don't think that it was intended to.

WRIGHT: OK, and the reason it's not intended to, right, is you're not trying to calculate what the effect of Michael Leach adding the numbers to the voter -- the absentee ballot request forms was. That's not what you were trying to calculate, was it?

DELONG: What, that is, your presupposing a world in which Michael Leach never shows up at the kind of Seminole County board of elections.

WRIGHT: Yes, let's talk about that world.

DELONG: As opposed to the world that Michael Leach shows up but then kind of Seminole County decides, uh-oh. We've sent out a whole bunch of invalid absentee ballot. We need to call people and do something about them or any other of a bunch of possible worlds that I can think of. You want to stick to one particular world in which Michael Leach simply never comes to Seminole County.

WRIGHT: Right. I want to talk about that. If Michael Leach had not corrected these cards...

DELONG: And then you have...

WRIGHT: I want to know...

CLARK: Let him finish his question, please.

WRIGHT: OK, you have not tried to calculate, have you, whether the act of Michael Leach correcting those absentee ballot request forms changes the outcome of this election, did you?

DELONG: I thought about kind of the offset issue. all right, that you're referring to. How many of these 1,932 people would indeed would have voted through some other means if had they not received absentee ballots in the mail.

WRIGHT: Where is that in your calculation here?

DELONG: I haven't thought about it nearly as much...

UNIDENTIFIED MALE: Your honor, could the witness be directed to answer the question?

CLARK: Please answer the question.

DELONG: I haven't thought about nearly it as much.

UNIDENTIFIED MALE: Could I ask one lawyer to cross-examine the witness at a time.

CLARK: Excuse me. Answer the question, please.

DELONG: OK. Repeat the question.

WRIGHT: Where in your calculation does it try to take into -- does it try to show whether the act of Michael Leach adding the voter registration number to the absentee ballot request forms changed the outcome of election?

DELONG: The affect of the offset is not in that calculation. WRIGHT: OK.

DELONG: Do you want me to talk about my views on the offsetting?

WRIGHT: No, no, I really don't.


WRIGHT: You have not given us an opinion on whether this practice has changed the outcome of this elect, have you?

DELONG: I have thought about this quite...

UNIDENTIFIED MALE: Your honor, once again, it's a yes or no.

WRIGHT: Yes or no?

DELONG: And think the answer is that yes, it did change the outcome of the election, although, I'm not as confident about that as I am about the estimates up their, because I don't know enough -- nearly as much about the determination of the offset as I do about these numbers.

UNIDENTIFIED MALE: Your honor, can I ask you...

CLARK: Wait just a second.

UNIDENTIFIED MALE: Your honor, I've got to object and move to strike. He didn't answer the question asked. The question asked was whether or not he propined that now. His answer of was I thought about it a lot and maybe I can find but I don't feel comfortable about it. And I think that the answer is clearly, do you find whether or not...

CLARK: What I'm going to do is allow this attorney to continue cross-examination and I will certainly give you a chance at the cross- examination.

WRIGHT: OK. Try to answer yes or no, Professor Delong, if it's possible. Have you given us an opinion on whether the practice of adding the voter registration numbers to the cards changed the outcome of the election. Yes or no? Have you done that?

DELONG: I'll give you an opinion, yes it did.

WRIGHT: OK. But that's not the opinion that you just testified to, is it?

DELONG: No, that's not the answer to question that Mr. Seiler (ph) asked me.

WRIGHT: OK, and -- just a moment, please. And are you aware that -- let me just ask you, what was your job during the time period of April 1993 through May of 1995?

DELONG: I was one of the deputies -- I was the deputy assistant secretary of the treasury in the office of economic policy.

WRIGHT: OK, and who was the -- who was the vice president at the time?

DELONG: The vice president at that time was Albert Gore.

WRIGHT: OK. That's all that I have. Thank you.

CLARK: Mr. Young, do you have cross?

TERRY YOUNG, SEMNIOLE CANV. BOARD ATTY.: Good afternoon, Mr. Delong.

SAVIDGE: That was James Delong, the statistician who is just leaving the stand. That was one final sort of quipped from the cross- examination there. Going back to his resume, the statistician saying that at one time he had the job over which Vice President Al Gore apparently had some influence and the fact that, in addition to his math, there might have been some partisan sympathies as well.

David, how effective do you think that the statistician was in trying to drive home the point that there is another solution?

CARDWELL: Well, it remains to be seen if the court's going to accept those numbers. Of course, we don't even know yet if the court would get to the point to come up with the number. I think what you have to do now is to listen to his testimony, and then wait until the other statistician is put on the other side because I think that you're going to find that they're going to try to poke holes in it that way much more than through cross-examination.

SAVIDGE: All right. Let's go back to the testimony.

DELONG: And whether that had an affect on voting behavior.

CLARK: So what's your answer to his question?

DELONG: On absentee ballots, no; on voting behavior, yes.

YOUNG: Well, did you do a statistical analysis in that chapter?

DELONG: Not this kind, no.

YOUNG: Thank you. And I think I heard you testify earlier that you have never testified in court before, it had never reached that stage?


YOUNG: Is that correct, that you never testified?

DELONG: Yes, that's correct.

YOUNG: So is it fair to say that you have never been qualified as an expert witness in any court in the United States of America before? DELONG: That would be fair.

YOUNG: And you have never written an article on the statistical analysis that you were asked testify to by the plaintiff here today. Is that correct?

DELONG: The statistical methods that I used here...

YOUNG: It's yes or no.

DELONG: OK, let me say no.

YOUNG: And you have never taught a course on statistically analyzing absentee voter behavior or in connection with analyzing election results, as you have been asked to testify here today, have you, sir?

DELONG: I have taught sections of courses in which -- or sections of courses I've taught have analyzed election results.

YOUNG: Absentee...

DELONG: I've never taught a course devoted to absentee voting behavior.

YOUNG: And is there any general, well-accepted wealth or repository of statistical information that is relied upon by statisticians in this area -- absentee ballot voting behavior that you relied upon for your opinion here today?

DELONG: I would have to say no.

YOUNG: And there's also no statistical, well-accepted principle for data that you relied upon here today in connection with requesting absentee ballots by voters, is there, sir?

DELONG: Yes, I've relied on the normal statistical principles, the normal statistical tool kit...

YOUNG: This is my question...

DELONG: ... that is relied upon for everything. They apply just as well to absentees.

CLARK: I think he's going to ask you a more specific question.

YOUNG: You didn't listen to my question. I asked you: Did you rely upon the statistical data dealing with absentee voter requests for absentee ballots?


YOUNG: Did you attempt to see whether or not there was any respected opinions in your area of expertise on the areas in which you were asked to testify here today?

DELONG: I did, I searched -- time was extremely short.

YOUNG: Could you find any?

DELONG: I didn't find anything significant that would -- that affected my analysis.

YOUNG: Now, Mr. Levy (ph) asked you whether or not you were watching CNN the night of the election and you said you were channel surfing. I take it that you were not a part of any group of experts that helped any network or any other predicting of the election results that evening -- you were at home, is that right?

DELONG: I was at home, yes.

YOUNG: Now, Mr. Levy asked you about these voters that we're talking about here and you recognized that we're actually talking about, from your analysis, 1,932 cast absentee votes, is that correct?


YOUNG: Mr. Levy asked you about the votes that are put in an envelope and they're signed and sealed by the voter. And you've indicated that, to your understanding you have no knowledge that the 1,932 votes cast by the Seminole County electorate in question here reflected the will of the voter, correct?

DELONG: Could you repeat the question?

YOUNG: The 1,932 people that cast these votes cast the will of the people, did they not?

DELONG: They each cast their own vote as they wished.

YOUNG: Now, each of these absentee votes reflects an individual voter's preference, correct?


YOUNG: Did you look at the ballot that was included in this return form?

DELONG: I think I glanced at it briefly, yes.

YOUNG: It includes more selections than the selection for Vice President Gore and Lieberman or Bush-Cheney, doesn't it?


YOUNG: OK; and you didn't analyze or consider in your analysis how any other vote for any other race on that ballot would be impacted, did you, sir?

DELONG: I did not.

YOUNG: And with respect to each individual vote -- 1,932 of them reflecting the will of the people, as you have acknowledged -- you don't know how any one of those people individually voted when they cast their ballot and they inserted them in the secrecy sleeve and mailed this back to the supervisor of elections for counting and canvassing (OFF-MIKE)?

DELONG: Yes; that's the point of having a secret ballot, yes.

YOUNG: You indicate that there is crossover voting, correct?


YOUNG: And you got that information from, I think you said, exit polls; correct?

DELONG: Right.

YOUNG: Did you obtain exit poll information in Seminole County?

DELONG: I couldn't find it and...

YOUNG: The answer is no?


YOUNG: And, as I understand it, there is no exit poll information with respect to absentee ballots, is there, sir?


YOUNG: So not only did you not rely upon any information regarding exit polls in Seminole County, where this race occurred, but you didn't even have any data available for absentee ballot information with regard to an exit poll basis, did you sir?

DELONG: Absent -- cannot have information...

SAVIDGE: You're listening to testimony coming from the Leon County Circuit Court in this case, the Seminole County trial. At stake here is a debate over the validity of literally what could be thousands of absentee ballots; enough that could swing the outcome of the election from, right now, the leader George W. Bush to, perhaps, Vice President Albert Gore, depending on the decision of the judge, Nikki Clark.



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