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Seminole County Circuit Court Hears Democratic Challenge to Absentee Ballots; Florida Legislature to Hold Special Session to Appoint ElectorsAired December 6, 2000 - 5:55 p.m. ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
JUDY WOODRUFF, CNN ANCHOR: Now, back to that courthouse in Leon County, the courthouse that's -- the courtroom, rather, that's been listening to the case filed by a Democrat in Seminole County, who has filed suit because of some 15,000 absentee ballots, seeking to have those thrown out.
CNN's Bill Delaney has been watching this trial all day long.
Bill, do you want to bring us up to date? They are in a recess right now, but we think they're going to come back in just a few minutes.
BILL DELANEY, CNN CORRESPONDENT: I'll do the best I can, Judy.
Yes, we're here at Leon County Courthouse in Tallahassee, Florida, where for the past couple of hours we have continued to see the Democratic plaintiffs and the Republican defendants arguing over what you can pretty much boil down to did Sandra Goard, election supervisor in Seminole County, intentionally, illegally allow a Republican operative to come into her election's office there in Seminole County and complete ballot applications that were then sent out to Republicans: not giving the same advantage to Democrats.
The plaintiffs in this case said she acted illegally in doing that. The defendants, the Republicans, say Sandra Goard was simply trying to help every voter she possibly could to vote.
Now, this afternoon, in about three hours of testimony before this research, we actually heard from Sandra Goard. She wasn't in the courtroom, though. A deposition she gave, November 22nd, was read from, taking us through the process here: how Michael Leach, a Republican operative, realized that Republicans in their get-out-the- vote effort had made a mistake, they had failed through a computer glitch to put a line for a voter ID number on the applications they sent out to these people they hoped would vote Republican.
Sandra Goard, the election supervisor in Seminole County, gave Michael Leach permission to put those voter ID numbers in. Democrats, of course, object to that.
Now, we also heard, Judy, from a statistician brought by the Republican -- the Democratic plaintiffs, a man named James Delong. Now, what you're seeing here is the plaintiffs possibly trying to shape a remedy less dramatic than throwing out all 15,000 ballots in Seminole County. The statistician arguing you could extrapolate that maybe you'd only have to throw out about 1,500 Bush votes to give an estimate of what would have happened, because remember the votes are all co-mingled now. It's impossible to trace back which ballots were altered by that Republican operative and which weren't.
We expect a long night, Judy, here at the Leon Circuit County Courthouse in Tallahassee, Florida.
WOODRUFF: All right, Bill Delaney there at the courthouse, and of course, CNN will be carrying that trial just as soon as it gets under way. And you can see, they're still milling around in the courtroom.
We're going to take a break. We'll be right back.
BERNARD SHAW, CNN ANCHOR: We are awaiting resumption of the Seminole County absentee ballot case in the courtroom of Judge Nikki Clark, Leon County Circuit Court judge. As soon as -- well, here she is.
JUDGE NIKKI CLARK, LEON COUNTY CIRCUIT COURT: Mr. Richman, are you closing your case?
GERALD RICHMAN, ATTORNEY FOR PLAINTIFF: We have just two minor items, no more witnesses, Your Honor. We've got to just introduce exhibit No. 1, which is just a handwritten chart from Sandra Goard that relates really to the photograph that shows where it was Mr. Leach was sitting.
UNIDENTIFIED MALE: No objection.
UNIDENTIFIED MALE: No objection.
RICHMAN: And I believe that the exhibit No. 27 never got into evidence, according to our notations, and (UNINTELLIGIBLE)...
CLARK: What is 27?
RICHMAN: Twenty-seven is the second protest form, I believe, that was signed by (UNINTELLIGIBLE)...
CLARK: OK, I think I made it 20 through 27. But in -- if didn't, I intend to.
RICHMAN: OK, (UNINTELLIGIBLE) make sure both of them got in (UNINTELLIGIBLE).
RICHMAN: And lastly, your honor, we would move that the (UNINTELLIGIBLE) -- pleas be performed to the proof with regard to, as your honor will recall, one -- we haven't specifically cited, I don't know that we need to, Florida Statute Section 104.0515, it's the (UNINTELLIGIBLE) statute. The case has been tried on that basis without objection.
And secondly, with regard to the issue concerning whether it would change the outcome of the election, counsel raised there as technically whether it was clear enough in the pleadings just to have that conform with the pleas.
TERRY C. YOUNG, SEMINOLE COUNTY CANVASSING BOARD LAWYER: (UNINTELLIGIBLE) we would object. We have indicated all along, we objected to trying anything that was not in pleas. We made that point the other day on a motion to strike the pleadings, or motion to strike certain portions.
Do you acknowledge that you recognize that we were (UNINTELLIGIBLE) anything (UNINTELLIGIBLE), and we certainly, in light of (UNINTELLIGIBLE) in regards to the failure to allege that there was anything about the outcome of the election that had been turned into pleas, as I recall Mr. Richard made an (UNINTELLIGIBLE) motion yesterday. You did not grant it, and we oppose any motion to conform the evidence to the pleas.
DARYL BRISTOW, BUSH ATTORNEY: (UNINTELLIGIBLE) we have not tried anything by consent or reputation, and we do object to any amendment to the pleadings at this late date.
UNIDENTIFIED MALE: Brief response, your honor?
UNIDENTIFIED MALE: Well, same objection, your honor, for the record (UNINTELLIGIBLE) Republican Party of Florida still the same way.
RICHMAN: (UNINTELLIGIBLE) we did make the motion yesterday. At that point I don't believe your honor actually ruled either way. But secondly, they asked the witness, and it was out of their questioning they asked him about changing the outcome of the election, so that they certainly allowed that testimony to go in, and the pleadings should conform to that proof that is...
CLARK: I'm not sure that the pleadings need to be amended in order for you to continue arguing your case.
RICHMAN: I would agree, your honor, but if they do in an abundance of caution we would simply ask that -- that the amendments conform with the...
CLARK: I don't think they do, and I'm going to deny that request. Do you have anything further at all on your case?
RICHMAN: Nothing further, your honor.
CLARK: Other motions?
TERRY YOUNG, SEMINOLE COUNTY CANVASSING BOARD ATTORNEY: Yes, your honor, on behalf Seminole County and Sandra Goard we would at this time make the motion for involuntary dismissal and direct (UNINTELLIGIBLE). We would on the arguments made yesterday in order to save time, the stipulation that was reached yesterday, the evidence that has been presented largely without objection here today. I think we have argued the motion and the court is well aware of law and we would rest on the arguments made yesterday eloquently by my partner, Mr. McNeil (ph).
BARRY RICHARD, BUSH CAMPAIGN ATTORNEY: Your honor, George W. Bush and Richard Cheney join in the motion and also request for argument.
UNIDENTIFIED ATTORNEY: Your honor as the secretary of state elections commissioner.
UNIDENTIFIED ATTORNEY: Your honor, same with the Republican Party of Florida. We would rely on the arguments yesterday.
UNIDENTIFIED ATTORNEY: Your honor, the absentee voters also joined relying on our arguments in the memorandum and the arguments yesterday that the remedy requested is impossible to be granted by constitutional offer. There is no evidence to suggest that can be granted after this testimony.
CLARK: As to the motion for voluntary dismissal and/or motion for directed verdict, I will reserve ruling on that. Is the defense prepared to proceed with its case?
UNIDENTIFIED ATTORNEY: Yes, your honor.
CLARK: Call your first witness, please.
UNIDENTIFIED ATTORNEY: I believe Mr. Richard and I have reached a partial stipulation, I want to consult with him on one of the (UNINTELLIGIBLE).
YOUNG: Your honor, I believe Mr. Richard and I have reached a stipulation with respect to Mr. Jacob's testimony. Rather than calling him live or reading portions of his deposition in subject to Mr. Richman's objection that he made in the form of a motion (OFF- MIKE) relevance and materiality, I believe, which was stipulated, Mr. Jacobs, as admitted to deposition testimony that he donated approximately $50,000 of his own money to the Gore-Lieberman campaign; he financed the production of a television spot that was critical of Mr. Cheney, it cost him also approximately $50,000; and he solicited funds on behalf of the Gore-Lieberman campaign.
RICHMAN: Your honor, in response to that, what I reserved is an objection as to relevancy. Mr. Jacobs has not testified and he has no relationship to the issues involved in this case as to what he did because this case is submitted to your honor on the merits. So I object to that testimony going in.
And also, one correction on the stipulation is no contribution was made to Gore-Lieberman, the contribution was made, as I understand it, to the Democratic National Committee. UNIDENTIFIED ATTORNEY: That's fine.
RICHMAN: Still maintain the objection on the grounds of whether it's relevant to any issue whatsoever in this case.
UNIDENTIFIED ATTORNEY: Your honor, it's our position it's relevant to him as the plaintiff in the action and (OFF-MIKE) credited with respect to the prosecution of this action.
CLARK: I think that the evidence that you're speaking of, which was the subject of a motion (OFF-MIKE) yesterday -- I think that that evidence is relevant for cross-examination because it goes to possible proof of bias or interest. Is your client intending to take the stand at all? Are you calling his client?
RICHMAN: No, your honor, we're not. That's why I think it's totally irrelevant.
CLARK: Are you calling Mr. Jacobs?
UNIDENTIFIED ATTORNEY: My suggestion, to expedite this afternoon's trial was to so stipulate rather than me calling (OFF- MIKE) party for the purpose of cross-examining him on those points.
CLARK: And I understand that. My concern is that I believe that the evidence that you're intending to -- that you're seeking to introduce is only relevant as it goes to cross-examination of Mr. Jacobs' credibility. That is, that it can be introduced as proof of bias or interest, but I don't think it has any relevance otherwise.
RICHMAN: That's precisely our position, your honor.
UNIDENTIFIED ATTORNEY: Your honor, the next witness we will call is -- Mr. Johnson is going to read into the record and identify by name (OFF-MIKE) certain deposition testimony and read into the record certain pages and lines of that deposition and only those pages and lines for consideration by the court. We will not read any of the testimony whatsoever.
CLARK: Repeat it, then. This is deposition testimony of which witness?
UNIDENTIFIED ATTORNEY: This is deposition testimony of employees of the office of the supervisor of elections, my client taken by Mr. Richman and some portions of other questions asked by other counsel.
CLARK: And you're reading excerpts from those?
UNIDENTIFIED ATTORNEY: We're not going to read the excerpts, we're just going to identify in the records -- into the record, the portions that we would like considered, no different than the excerpts handed up by Mr. Richman.
CLARK: OK, I'll ask you just to take your time doing that, so that the clerk can be handing me the depositions as you identify which portions you want me to consider. UNIDENTIFIED ATTORNEY: Mr. Johnson will take great care in that.
CLARK: I'm sorry, what's your name?
THOMAS JOHNSON, ATTORNEY: Thomas Johnson.
CLARK: OK; Mr. Johnson, I've been advised that we don't have depositions that have been -- that are in file.
SHAW: As we watch what is happening in the courtroom of Judge Nikki Clark, we want to call in David Cardwell and Kenneth Gross, CNN election analysts, to talk about something very dramatic that occurred here and we carried live just a short while ago: the Republican leaders of the Florida legislature indicating that they're going to call a special session. And this is step one to potentially naming a slate of electors to come to Washington, and potentially the state of Florida could have two different slates of elector.
KENNETH GROSS, CNN ELECTION LAW ANALYST: That is a very dramatic development. We've seen it brewing for days now, and now the Senate leader has come on board, and it's something they are committed to doing. And this is really the first time we've seen this happen in well over a century.
The idea here is that the will of the people is the state law in Florida. That's who's supposed to pick the electors. And now the state legislature is just going to pick them apparently. And that is a dramatic clash of the judiciary, which may rule one way, and the legislature ruling another, which is a separation of powers issue. That's something we haven't seen in any of our lifetimes.
SHAW: David, your thoughts?
DAVID CARDWELL, CNN ELECTION LAW ANALYST: Well, as Ken mentioned, we've seen this coming for some time. There's been a lot of discussion about the legislature going into special session. I found the timing to be quite interesting.
There had been reports of it primarily from House Speaker Tom Feeney for several days, but it's interesting that they had their press conference and signed their proclamation late in the day before the oral arguments before the Florida Supreme Court tomorrow on the appeal from Judge Sauls' ruling denying the contest by the Gore campaign.
I believe this was another effort by the legislature to kind of send a signal to the Florida Supreme Court saying, don't forget about us, we're over here on the other side of the street from you, and if we don't like what you do, we may try to overturn it legislatively.
And the schedule they've laid out is to convene on Friday so that they can get organized and have their initial introduction of bills or a joint resolution, have a committee meeting on Monday so they don't have to suspend the rules, and then bring it before the legislature on Wednesday, which is after December 12th and when they think they can act unilaterally.
SHAW: Well, both of you gentlemen step back for a moment and reflect on what the leader of the Democrats in the House, Lois Frankel, said in a news conference that we carried live a short while ago. She alluded to the fact that there's a love-hate relationship between the Republican- controlled legislature and the Florida Supreme Court, but then at one point she said that it's wrong for the Florida legislature to elect the next president of the United States, and she said that history would not treat Florida kindly.
Historically, how significant is what's happening now?
GROSS: This is very significant historically. In fact, the last time we had a legislature pick electors as a permanent matter or at least during a period of time was South Carolina. That was from 1824 to 1860. That was before the Civil War. There are a few other isolated instances in the 1800s, as Colorado was entering the Union when they didn't have enough time to have a vote, they picked the slate of legislators. But those were just little aberrational instances. Nebraska did it.
So this is very, very historic, and I think is going to have repercussions.
SHAW: A thought from you, David?
CARDWELL: Something we should -- yes, something we should keep in mind is that the so-called "certificate of ascertainment," which is the document signed by the governor, Jeb Bush, which identifies the electors that have been selected by Florida pursuant to state law has already been transmitted and received by the archivist of the United States in accordance with federal law.
What remains to be seen is does the legislature, if they do take action, basically just adopt the same slate of electors, send two slates up to Washington: one which would be certified by the governor, and the other, which would be approved by the legislature.
SHAW: And one of the Republican leaders indicated that he didn't know whether it was clear at this point whether Governor Bush would have to sign whatever it is they conclude legislatively.
Our live coverage...
CARDWELL: That's true...
SHAW: ... of what's happening -- yes, please, go ahead.
CARDWELL: I was going to say that's true, because there are two different federal statutes that they're operating under between the certificate sent by the governor and the legislation taking action after December 12th. So there is kind, as we've come to expect throughout this election, there's a little bit of legal uncertainty there.
SHAW: A dramatic and interesting turn of events. Our live coverage of what's happening in Florida will resume in a moment.
WOODRUFF: Back to that Tallahassee courtroom, Leon County courtroom, where the Seminole County case of the absentee ballots is being heard. This is an attorney for the Seminole County Canvassing Board, the defense in this case. And let's hear -- he has just begun to present his side of the case. Let's listen.
UNIDENTIFIED MALE: That's it. I believe counsel for Bush-Cheney may have similar designations, but that's it for the Seminole County supervisor.
UNIDENTIFIED MALE: May it please the court. Your Honor, Brady Edwards on behalf of Bush-Cheney. I have a written stipulation with the same type of information. If I may approach.
JUDGE NIKKI CLARK, LEON COUNTY CIRCUIT COURT: Certainly.
WOODRUFF: David Cardwell, former elections, Florida elections official, can you enlighten us on what it is that the defense attorneys are presenting to the judge right now?
CARDWELL: What they're doing is similar to what the plaintiffs did, only in a different manner. Instead of calling live witnesses, which may take a while, they are using depositions that have been taken over the past couple of weeks of witnesses, and in this case its employees and the supervisor of elections office in Seminole County.
And instead of bringing them up for live testimony in Tallahassee or reading the entire deposition, as the plaintiffs did with Sandy Goard's deposition, they're merely citing to certain pages and lines within the deposition, and the court is making a note of that it,and allow the court to read those provisions or passages in the depositions when the court's ready to do so.
WOODRUFF: David, we don't know whether the defense will be calling any live witnesses, or do we?
CARDWELL: Well, in the case of Sandy Goard and the canvassing board, there was some mention made of a statistician that would be called that in essence would rebut the statistician that was called by the plaintiffs. What wasn't clear in the opening arguments is exactly which of the defendants will actually call that statistician, whether it will be Sandy Goard's lawyer or the lawyers for the Republican Party.
WOODRUFF: And David, just quickly to recap, looking back over the presentation by the plaintiffs and particularly that deposition by Sandy Goard, who is the elections supervisor in Seminole County, was it clear coming out of the plaintiff's presentation there that Democratic voters seeking absentee ballots were treated any differently from Republican voters? CARDWELL: Well, in my view, it wasn't really clear. I mean, they were trying to make the case that there was different treatment. But what they were using as evidence was someone who had tried to get a petition back from the office was denied because they were told that once you file it, that's the way it is.
They used another person as a witness who testified that he was told well in advance of the election that the new election law was going to be strictly enforced, which meant that everything had to be filled out on the absentee ballot request form.
What they weren't able, at least what I did not hear presented, was where there was a Democratic Party person or candidate who went to the supervisor of elections and made the same request that the Republicans made and was turned down. They didn't get to that point.
WOODRUFF: Ken Gross, elections law expert here, in the Washington studio. Ken, does it make a difference as a matter of law whether Democratic voters were treated differently from Republicans in this instance?
GROSS: I think it does. The judge was interested in the integrity of the process and the ability of the electorate, all of the electorate, to have a fair shake at voting. And if there was any inequality, I think that would weigh in her decision. And that is an important factor and point that we're talking about right now.
WOODRUFF: All right. It appears that we do have a witness going to the stand on behalf of the defense. We'll listen.
UNIDENTIFIED MALE: Do you solemnly swear or affirm that the testimony you should give (UNINTELLIGIBLE) is the truth, the whole truth and nothing but the truth, so help you God?
RACHEL GEBAIDE, DEFENSE WITNESS: Yes.
CLARK: Be seated, please.
TERRY YOUNG, ATTORNEY, SEMINOLE COUNTY CANVASSING BOARD: Your name is Rachel Gebaide.
YOUNG: You work at Lounge Droste Doster Kanter & Reid (ph)?
YOUNG: You work there as an associate?
GEBAIDE: I do.
YOUNG: And you work in the department with me currently?
YOUNG: Since we've been involved in this case, have you had some responsibilities at the supervisor of elections' office?
GEBAIDE: Yes, I have.
YOUNG: Could you generally describe the -- those responsibilities and what they have been for the last 10 days.
GEBAIDE: My responsibilities were to review all of the absentee ballot requests for the November 7th election. That would include processed and unprocessed requests.
YOUNG: Would that include both Republican pre-printed forms and Democrat pre-printed forms?
GEBAIDE: Yes, it would.
YOUNG: And would it also include all of the unprocessed absentee ballot request forms that were never processed, up until the time of the election?
GEBAIDE: That's correct.
YOUNG: With respect to the Republican absentee ballot request forms processed with voter registration numbers added after the initial receipt by the supervisor of elections, tell me what you did.
GEBAIDE: I'm sorry. Could you repeat the question?
YOUNG: OK. To make it easier...
YOUNG: ... why don't -- do you recognize -- defendant's exhibit 12 for identification. Your Honor...
YOUNG: ... would the court like a copy to (UNINTELLIGIBLE) just to look along?
CLARK: If you've got a copy.
YOUNG: Yes. And I have copies (UNINTELLIGIBLE) Yes. Do you recognize that document?
GEBAIDE: Yes, I do.
YOUNG: Is that something that you prepared?
YOUNG: Your Honor, I apologize. I may have handed you my copy.
CLARK: Oh, that's what all these marks are!
CLARK: Just joking.
YOUNG: I wouldn't want these to offend the other side.
Could you describe -- and you can use that document -- and tell -- tell the court what the results are that are compiled on that document, what the represent.
GEBAIDE: OK, the -- well, generally, the first page of the data summary describes the processed Republican absentee ballot requests, the processed -- oh, that had a voter registration number added at some time after the supervisor of elections initially received the request. They describe the processed Democratic requests that had a voter registration number included before the supervisor of election received them, and also the processed Republican absentee ballot requests that had the voter registration number included.
YOUNG: And did you simply go through...
YOUNG: ... all of the request forms in the office of the supervisor of elections by category and count them?
GEBAIDE: We did not count the processed requests that were not the Democratic or Republican absentee ballot requests. That would have been approximately 15,000. But what we did is, we went through all of those processed requests, and we counted the Democratic requests that had been processed and we counted the Republican absentee ballot requests that had been processed and differentiated between those that had the voter registration number printed prior to the time the supervisor received them and those that had the voter registration number provided after the time the supervisor had received them.
YOUNG: And were you physically involved in that process?
GEBAIDE: Yes, I was.
YOUNG: For how many days and how many hours?
GEBAIDE: We began the process on Monday, November 27th, and we concluded our entire collection of the data on Sunday, December 3rd, I believe it was, but just this past Sunday.
YOUNG: And were you working 8:00 to 5:00 on those days?
YOUNG: (UNINTELLIGIBLE) general hours.
GEBAIDE: We were working from approximately 7:15 some nights until 1:00 AM.
YOUNG: And did you have assistants?
GEBAIDE: Yes, I did. YOUNG: Did you supervise the assistants?
GEBAIDE: For the first two days, I co-supervised the assistants with Thomas Johnson. He's another associate at the law firm, at the Lounge firm. And after the first two days, I supervised this process. Yes, that's correct.
YOUNG: And did you -- did you tell the court how the process was that this occurred under your supervision that you felt provided you some semblance of satisfaction with the results?
UNIDENTIFIED ATTORNEY: Objection. Leading (UNINTELLIGIBLE)
YOUNG: All right, were you satisfied with the process?
GEBAIDE: Yes, I was.
YOUNG: Tell the court how you designed the process so you would be satisfied.
GEBAIDE: OK. Our first step was to go through the -- excuse me. The first step was to go through all of the unprocessed absentee ballot requests. And the summary of what we found by the end of the day is on pages 2 through 6, I believe, of the data summary.
YOUNG: Now, those unprocessed absentee ballot requests -- were those the ones that remained unprocessed at the time of election?
GEBAIDE: That's correct.
UNIDENTIFIED ATTORNEY: (UNINTELLIGIBLE) I think the document's not in evidence. I have no objection to describing the process that she went through, but to the extent she starts publishing what category is what, I think the document (UNINTELLIGIBLE)
YOUNG: She hasn't. I just asked her a question, if that is what that involved.
CLARK: OK. Getting close, but go ahead.
YOUNG: And did -- are those the forms that are now collected in a box?
YOUNG: Did you personally touch, inspect and examine each one in your analysis of those unprocessed applications?
GEBAIDE: Yes, I did.
YOUNG: And did you cause information to be recorded from those unprocessed applications?
GEBAIDE: I either personally recorded the information or I had assistance in recording the information, and I -- to the best extent I could, I verified the accuracy of that information. And once all of that information was taken from the hand-written notes and converted into a computer-generated document, I verified that all of the hand- written notes were transcribed correctly into the computer-generated document.
YOUNG: And were the hand-written notes attached to an affidavit that was filed in this action and served on opposing counsel?
GEBAIDE: The hand-written notes were not attached to the affidavit. The hand-written notes that we have are concerned with the processed absentee ballot requests. Those were too voluminous to attach to the affidavit.
YOUNG: But those only have to do with the processed...
YOUNG: ... Republican and Democrat forms.
GEBAIDE: Correct. What we've attached to the affidavit are the computer-generated tables and data summary.
YOUNG: For the?
GEBAIDE: For the unprocessed -- for the box -- for the unprocessed absentee ballot requests that were in the box.
YOUNG: And do the numbers and tabulations and compilations that are reflected on Exhibit 12, for identification, accurately reflect the results of your review and your work?
YOUNG: And among the numbers are comments with respect to reasons certain absentee ballots -- I'm sorry, I make the same mistake everybody else does -- absentee ballot request forms were rejected? Did you -- are those noted on the actual forms you reviewed?
GEBAIDE: Sometimes it was. Other times, it was apparent after reviewing the absentee ballot request. If there was no signature, that was a reason. If there was no voter registration number, that was a reason. We had a copy of the statute available to us that identifies what items must be included on an absentee ballot request. And when items like the last four digits of a Social Security number were omitted, then that was a reason for not processing the request. Many requests has multiple reasons for not being processed.
YOUNG: OK. Thank you.
Your Honor, at this point in time, I would like to move Exhibit 12 into evidence.
CLARK: Mr. Johnson?
ERIC SEILER, ATTORNEY FOR HARRY JACOBS: We object for a number of reasons, Your Honor. (UNINTELLIGIBLE) best evidence of the contents of the box is the contents of the box. And to the extent this Exhibit 12 for identification is designed to categorize what (UNINTELLIGIBLE) how to break up that box, again, the best evidence of that, where -- which categories documents belong (UNINTELLIGIBLE) to look at documents themselves.
I would note, in addition to that, that the witness, who I'm sure did things in good faith, is not an arm's-length witness here, but is an associate employed by the law firm representing one of the parties in this case, which is not the way this is usually done.
Secondly, we did not have the same access to these documents that they did. We...
CLARK: Were you denied access to the documents?
SEILER: We were denied access to the original documents for the timeframe that they had access to them to conduct this compilation. Instead, we were forced to get copies, not originals. And in one instance, Your Honor -- I could mark this. We have a copy of a document, one of the envelopes that people voted in, which has a note on it which says the original was sent to Terry Young (UNINTELLIGIBLE) the law firm on 12-03-00. So there's at least one document that was in the control of the supervisor (UNINTELLIGIBLE) the original was taken to their law firm and a copy of the document was left behind.
And fourth, there's evidence in this record that the universe from which this witness was working was a universe that was not recorded the same way that the processed ballots were. When documents came in (UNINTELLIGIBLE) they were not put into the computer system. The evidence is they had time stamps.
And then these documents, of course, were made available to Mr. Leach in the back room. I won't bore Your Honor with the testimony because we've heard it over and over. But Mr. Leach had it in an unsupervised area, and there's no way that this witness can testify that the box that she went through is the same in terms of contents as the box that existed on election day.
And the reason that's important is the whole point of Exhibit 12 for identification is not to tell you what the witness counted but to tell you what the true subset of the universe was on election day. So even if you were to admit this for what she counted, I don't think you can admit it for what the -- the broader purpose that counsel wants, which is what was the universe of unprocessed documents, or the "reject" box. And then they're going to try and draw conclusions about what happened to that (UNINTELLIGIBLE) because this witness can't know what the true universe of the "reject" box is.
For those reasons, Your Honor, we object to the introduction of this document.
YOUNG: Your Honor, if I may respond?
CLARK: Let me ask a couple of questions, if I may. What notice did you provide to plaintiff that you would be seeking to introduce a summary? YOUNG: The affidavit -- the affidavit was -- I filed an affidavit of every single person who participated in this process late last week, Friday, I believe, or Monday. I forget which. Time seems to go by right now.
CLARK: No, I know.
YOUNG: With a copy of this attached.
YOUNG: Ms. Gebaide filed an affidavit yesterday with a copy of this attached, together with the back-up she described. In addition, Your Honor, in responding to their objections, whether Ms. Gebaide is a member of my law firm not may go to weight and credibility, but it doesn't go to admissibility. The information -- the record would show that it was members of Mr. Jacobs's law firm that were in the office of the supervisor of elections and doing the same thing. The box was, in fact, made available to them.
And if you recall, Your Honor, the other day, at the outset of -- we had emergency hearing, as soon as I arrived here in Tallahassee on Monday afternoon, Mr. Richman wanted the box made available again (UNINTELLIGIBLE). And you ordered it made available. We brought it up here.
It was available. Or actually, it was available in Florida. And he declined the opportunity to review it. And that was after the service of the summary and the affidavits.
Now, having said that, (UNINTELLIGIBLE) because he probably didn't get them just like I didn't get his memo on the difference between must and shall until he handed it to me a moment ago. But we have done the best that we can under the circumstances and exigencies of this case in providing service.
With respect to the box being the best evidence, you're permitted to have summaries. If they want the box, and they want me to bring it in this courtroom so they can cross-examine Ms. Gebaide about it, I'll bring it in the courtroom. It's down the hall with a witness right now. It's in the custody of - so we maintain chain of custody with my client. But we have it here.
Mr. Richman has introduced evidence about this box in some of the excerpts that he has dealt with. We have a right to put into evidence whether it has all the information in it at the time of the election or whether Mr. Leach contaminated or something else occurred. That goes to weight and credibility, not to the summary itself and its admissibility.
CLARK: I'm going to overrule the objection and allow the summary to be entered. And I'm referencing section 90.956, which of course permits the introduction of a chart, summary, or calculation when it is inconvenient to examine voluminous records. I'm also finding for the record that the notice has been timely to the plaintiff. I'm also finding that Mr. Young has laid a proper foundation that Ms. Gebaide is a qualified witness.
That summary is accurate. Accordingly, the summary is admitted into evidence.
UNIDENTIFIED MALE: Thank you. (UNINTELLIGIBLE) my motion, which is to inquire as to whether you're admitting as to what she counted in the box or if you're admitting it for (UNINTELLIGIBLE)...
CLARK: Your objection was to the introduce - your objection was to the introduction of the summary. I overruled that objection.
UNIDENTIFIED MALE: No further questions, Your Honor.
UNIDENTIFIED MALE: It's going to be a moment.
UNIDENTIFIED MALE: Let me make sure I have your name right. It's Gebaide?
RACHEL D. GEBAIDE, SEMINOLE COUNTY LAW CLERK: Gebaide.
UNIDENTIFIED MALE: May I proceed, Your Honor?
UNIDENTIFIED MALE: Am I correct that you have an understanding of all the different subcategories contained on Exhibit 12?
GEBAIDE: That's correct.
UNIDENTIFIED MALE: And you understand what they mean?
UNIDENTIFIED MALE: And you participated in the choices of putting different contents of the rejection box into those various categories.
GEBAIDE: I did. Some of those categories were developed by the supervisor and her staff, as marked on the unprocessed request.
UNIDENTIFIED MALE: But you have personal knowledge or have worked with other people...
UNIDENTIFIED MALE: ... to understand what goes into which category. So let me call your attention on the exhibit to the section called "unprocessed Democratic absentee ballot requests." See that, where there were 40 on Exhibit 12?
GEBAIDE: Yes. UNIDENTIFIED MALE: And am I correct that for three of those unprocessed Democratic absentee ballot requests - first let me ask you this. What does Democratic absentee ballot request mean?
GEBAIDE: The Democratic absentee ballot request is the large white postcard. There is a red border around maybe one or two sides of it. And the cards were - after the card was signed by the voter, it was mailed back to an entity called House Victory 2000 with an Orlando address. And on the upper left hand side it said, "Please" - or something to the effect of "your stamp will help support the Democrats."
UNIDENTIFIED MALE: And am I correct that because these are the unprocessed Democratic absentee ballot requests, in fact, nothing was mailed back to anybody? That's why they were unprocessed, right?
GEBAIDE: Well, unprocessed means that that particular request did not result in the issuance of an absentee ballot to that voter.
UNIDENTIFIED MALE: And that's - there are 40 of those, according to your work?
UNIDENTIFIED MALE: And three of those 40, according to your work, no ballot was ever issued to a voter from a Seminole County office, correct?
GEBAIDE: Pursuant to that request, to that part.
UNIDENTIFIED MALE: OK. And you didn't find evidence of another absentee ballot being issued to any of those three people either, did you?
GEBAIDE: Two of the people were not registered in Seminole County. One of them was registered in Orange County. In fact, the card said - everything on the card indicated it was for Orange County. And it was mis-sent apparently by House Victory 2000. And the Seminole County supervisor faxed that ballot request to Orange County.
The second one was for a person who is currently a resident of Alachua County. She registered in late August in Alachua County and is no longer registered in Seminole County.
The third is we could never identify exactly who that voter was because there are two voters by that exact same name living at the same address. The birth dates indicate they may be mother and daughter.
One of them voted at the polls. We determined that by looking at the precinct number of the voter in the supervisor's records, checking the poll book, and seeing a signature. The other voter living by that name living at that address never voted. And so we were unable to tell what the result was for that particular voter.
UNIDENTIFIED MALE: And so for those reasons you just identified, you listed on Exhibit 12 in the category unprocessed Democratic absentee ballot requests that three of these people had no ballot issued to voter, correct?
GEBAIDE: Right. And I leave out the reason why that particular ballot request...
UNIDENTIFIED MALE: I don't mean to interrupt. But I think in the interest of speeding this along...
GEBAIDE: ... Well, I didn't answer your question.
UNIDENTIFIED MALE: ... (UNINTELLIGIBLE) I just want to know if the number three is the number that corresponds to no ballot being issued to a voter?
GEBAIDE: Pursuant to that request, that is correct.
UNIDENTIFIED MALE: Now if you could turn for me to "unprocessed miscellaneous absentee ballot requests," if you could tell us what miscellaneous means.
GEBAIDE: Miscellaneous were all absentee ballot requests that were not the Democratic ballot requests on the card I just described and were not the Republican ballot requests, which are the small grayish, brownish postcards.
UNIDENTIFIED MALE: That we've been talking about in this case.
GEBAIDE: That we've been talking about throughout the case.
UNIDENTIFIED MALE: And I noticed that there are 243 unprocessed. Am I correct that unprocessed means the same thing, that those cards didn't result in an absentee ballot going out to those people from that request?
UNIDENTIFIED MALE: And you've broken them out into the different parties that they're registered in.
UNIDENTIFIED MALE: And one of the groups is the Democrats. There are 76 Democrats who had miscellaneous requests that didn't result in their getting absentee ballots, correct?
UNIDENTIFIED MALE: And 33 of those people, based on the work that you and your colleagues did, didn't vote, right?
UNIDENTIFIED MALE: So from the miscellaneous category, we have 33 Democrats who made an application, didn't get processed, and they didn't vote. And from the Democratic absentee ballot requests, we have three with the explanations as to two of them that you provided. But a total all together in the way you have listed them, we have 36 Democrats who submitted applications who didn't get absentee ballots as a result of those particular applications or from any other application for an absentee ballot, correct? And they didn't vote.
GEBAIDE: I believe what you just said is correct. I do want to clarify for you and for the court that under the unprocessed Democratic absentee ballot requests that all 40 of them did not result in an absentee ballot being issued to the voter. Thirty-seven of them, the reason why that ballot request did not result in an issuance of an absentee ballot to the voter was because the voter had already received or requested an absentee ballot.
UNIDENTIFIED MALE: I understand.
UNIDENTIFIED MALE: That's why I excluded the 37 from my question. I was taking the three from the Democratic absentee ballots...
UNIDENTIFIED MALE: ... and the 33 from the miscellaneous. And all of those people have the following things in common. They made an application on a form that was not the Republican form. They didn't get an absentee ballot as a result of that application. They didn't get an absentee ballot any other way. And they didn't vote, right?
GEBAIDE: Well, yes, but the two of the three in the Democratic side weren't registered in Seminole County. They weren't even eligible to vote.
UNIDENTIFIED MALE: If I said 34 instead of 36, you would agree with what I said, correct?
GEBAIDE: Yes I would.
UNIDENTIFIED MALE: Now I'd like to focus now on the Republican cards part of your work in Exhibit 12. First, you see where it says 263 unprocessed requests.
UNIDENTIFIED MALE: And you have them broken out in categories. You see the last category...
UNIDENTIFIED MALE: ... where it says illegible unknown?
UNIDENTIFIED MALE: I take it those were ones that you just couldn't figure out what party they were in and what happened. GEBAIDE: No, illegible means we couldn't figure out who they were, let alone party, precinct, or anything else. Unknown would be if, for example, if the voter was John Smith and there were eight or nine John Smiths registered in Seminole County and there was other missing information on the card, there was just no way for us to know who that voter was and to trace whether that voter ever received an absentee ballot or voted for the polls.
UNIDENTIFIED MALE: And so you don't know - you know that they made a request for an absentee ballot because you have their request. But you don't know enough about them to put them in a category, Republican, Democrat, or otherwise. And you don't know what they did otherwise, whether they got an absentee ballot some other way, whether they voted or not.
GEBAIDE: Right. We just can't know.
UNIDENTIFIED MALE: And in the breakdowns below that of Republicans and Democrats and others in terms of what they did, you've just excluded those 28 people. They're not included in any of those categories, correct?
UNIDENTIFIED MALE: So if someone were trying to figure out the percentage of people who had Republican cards and wanted to figure out on the one hand if they voted by absentee from some other means or they voted in person or they didn't vote, if they were to use the columns, the sections of your report about the 176 Republicans, the 16 Democrats, and the 14 others, they would be leaving out those 28 people altogether?
GEBAIDE: If they were using only Republicans, Democrats, and others, they would not be including the 28 illegible or unknown.
UNIDENTIFIED MALE: And you don't have any information as to whether those people ever got an absentee ballot or whether they voted at all?
GEBAIDE: We don't know who they are.
UNIDENTIFIED MALE: Now the last thing I think -- I hope we're done, I'm going to look -- confused by is these Republican -- the unprocessed Republican cards, requests rather, don't include any of the Republican request that Mr. Leach fixed and became processed, correct?
UNIDENTIFIED MALE: Not correct?
UNIDENTIFIED MALE: They do include some of them.
GEBAIDE: Yes. UNIDENTIFIED MALE: Is that the 209?
GEBAIDE: Either, it could - no, it could be in the 209 and the 263 because Mr. Leach may have altered some Republican absentee ballot requests that had other deficiencies. And therefore, the request would be denied because of this other deficiency or because the voter had already requested an absentee ballot at a prior time.
UNIDENTIFIED MALE: If my question had been a little better, instead of saying fixed I had said fixed them sufficiently so that when he caused them to go back to someone in the office and they got submitted and then a ballot actually issued, that would take care of what the difference you described?
GEBAIDE: OK, now I'm not sure what the question is.
UNIDENTIFIED MALE: OK, let me try...
UNIDENTIFIED MALE: ... to make it clear. Let's talk about the 209 people first.
UNIDENTIFIED MALE: Two hundred nine people - let me strike that. Is it correct that at the time Mr. Leach did whatever he did, gave the card with the number back to the people in the office and they put it into the system, by that time when they entered it with respect to 209 of the people, they had already gotten an absentee ballot sent to them?
GEBAIDE: OK, of the 209, any portion of that, any portion of the 209 that included a Republican absentee ballot request that had a voter ID number added by Mr. Leach would - OK, I'm sorry...
UNIDENTIFIED MALE: No, look, this whole...
GEBAIDE: ... But yes, the 209 may include ballots that were altered by Mr. Leach. I don't know the exact dates that Mr. Leach was in the office. Pardon me?
UNIDENTIFIED MALE: I mean requests.
GEBAIDE: Oh, excuse me. Thank you. Ballot requests. I think we're all doing that.
UNIDENTIFIED MALE: The reason that the 209 category exists is because at some point the Republican card was processed. And when it was processed, it was learned that that voter had already succeeded in getting an absentee application, correct?
GEBAIDE: Well, just to...
UNIDENTIFIED MALE: (UNINTELLIGIBLE) GEBAIDE: ... we've been using the word processed to mean resulting in the issuance of an absentee ballot. But by the time - yes, by the time that any voter registration card that Mr. Leach had touched was ready to - we were ready to see if the supervisor could issue an absentee ballot, then it would be apparent if based on the supervisor's records that a request had already been made by that voter.
UNIDENTIFIED MALE: And so it's possible that all - that if Mr. - I've lost my number, 2127, if Mr. Leach succeeded as the stipulation says with his colleagues of altering 2,126 of these applications to the extent that they were processed and put through, these 209 could fall into that category. The only difference was that Mr. Leach was too late because the voter had already gotten an absentee application sent, correct?
GEBAIDE: For the 209, that appears to be correct.
UNIDENTIFIED MALE: And from the voters' point of view, as I think one of the defense counsel pointed out before, they didn't know which ones Mr. Leach was working on because they didn't know Mr. Leach was doing this at all, correct?
GEBAIDE: I don't know what anyone else knew.
UNIDENTIFIED MALE: And there is a big universe of Republican absentee ballot requests that consists of the 472 that you looked at that were in the reject box, and it consists of at least 2,126 that got processed, which resulted in Mr. Leach's activity, correct?
GEBAIDE: Some portion of the 472. Oh, wait, yes, the 472. I apologize. The 472, a portion of the 472 were touched by Mr. Leach and then the 2,000 number that has been stipulated to.
UNIDENTIFIED MALE: But just so the numbers are clear, all - if I wanted to think about how many Republican absentee ballot requests were either unprocessed or fixed by Mr. Leach...
UNIDENTIFIED MALE: ... the sum would be 472 plus 2,126 at least, correct?
GEBAIDE: Well, no, because not all of the - some of the 472 had voter registration numbers on them when they arrived in the supervisor's office but there was another flaw to the request. So the 472 is not an accurate number of unprocessed Republican absentee ballot requests that Mr. Leach handled or touched.
UNIDENTIFIED MALE: Maybe my question was unclear.
UNIDENTIFIED MALE: Mr. Leach we know handled and fixed 2,126...
GEBAIDE: Are you pointing to anyone? UNIDENTIFIED MALE: ... I'm pointing to the chart, 2,126, OK?
UNIDENTIFIED MALE: I'm sorry...
UNIDENTIFIED MALE: You know because of the stipulation in this case that Mr. Leach fixed (UNINTELLIGIBLE).
UNIDENTIFIED MALE: All of which came off Republican cards, correct?
UNIDENTIFIED MALE: And everything on the first page of Exhibit 12 under the category "unprocessed Republican absentee ballot requests" is also on Republican cards, right?
UNIDENTIFIED MALE: So if we looked at the universe of unprocessed and fixed by Mr. Leach, it's at least the sum of 472 and 2,126?
GEBAIDE: Oh, you're adding both, OK.
UNIDENTIFIED MALE: So do you agree with me? Because you're the one who did this work, I want to make sure I've got it right.
GEBAIDE: The universe of unprocessed Republican absentee ballot requests...
UNIDENTIFIED MALE: Plus.
GEBAIDE: ... plus Republican absentee ballot requests that we've stipulated were altered by Mr. Leach...
UNIDENTIFIED MALE: And then processed.
GEBAIDE: ... and then processed would equal the 2,000 number plus 472.
UNIDENTIFIED MALE: Now let's talk about the 263. The 263 stands for what, unprocessed requests. What does that mean?
GEBAIDE: The 263 stands for unprocessed Republican absentee ballot requests that were not issued because of some deficiency in the request. And the possible deficiencies are listed on the next page of the summary.
UNIDENTIFIED MALE: Before we get there...
UNIDENTIFIED MALE: ... before you enumerate them, am I correct that if Mr. Leach fixed a absentee ballot request and therefore it was processed, it couldn't become one of the 263 unprocessed because of some defect, right?
WOODRUFF: This young woman in the witness stand works for the law firm of the defense attorneys here and to help clarify perhaps, what it is that the plaintiffs are trying to get from her, let's go to David Cardwell, a former Florida elections official.
David, I know you've been listening closely. She's been testifying about her own work compiling the number of absentee ballot applications in the office there in Seminole County and what happened to those applications.
CARDWELL: Right, she was sent to the supervisor's office in Seminole County after her law firm was retained to represent the supervisor, and she went through the absentee-ballot requests of the absentee ballots, and compiled a statistical report of the various categories that these ballots fell into. Normally, you would have an employee from that office testify to these ballots to sort of authenticate them. Again, in the interest of time, they're trying to speed things up and have this woman testify to what she did in the course of preparing those requests forms for this trial.
So what happened was, when Terry Young initially examined her, he wanted to show that there had not been any tampering with the ballot requests in the box or in the room where they were stored. And now what's happening is, the other side is trying to poke some holes into that and show that there was some potential, or that there may have been some arbitrary decisions as to what -- as to which request went into what category.
WOODRUFF: And why would that matter, David, if that had happened?
CARDWELL: Well, one of the allegations of the plaintiffs in this action is that there was an opportunity for mischief. And that's where it starts getting to the level of fraud and intentional wrongdoing. They know they have got to show more than just the fact that there were registration numbers written on these envelopes -- or cards. They have got to get a little bit more in to get to the standard of showing that the election outcome was affected, and their request for relief should granted.
So part of what they've been trying to show is that there was an opportunity for either absentee-ballots requests from Democrats to be taken out of the stack and disposed of somehow, or moved to a different stack, or if something could have occurred which could be considered intentional wrongdoing or fraud. WOODRUFF: All right, David Cardwell, we're going to go -- I think the court -- they took a -- had a brief momentary moment of silence. But while they get under way with more testimony from -- or cross-examination of this witness -- we are going to take a break. We'll be back with more live coverage of the Seminole County absentee- ballot case.
SHAW: As we return to the courtroom of Judge Nikki Clark, a welcome to the "MONEYLINE" viewers who normally would be watching that program at this hour. Going back to the courtroom where the issue right now: the Seminole County absentee-ballot request forms.
UNIDENTIFIED MALE: Your Honor, at this point in time...
SHAW: CNN election analyst Kenneth Gross has been watching this courtroom scene, as have you, our viewers.
Ken, the clock is ticking.
GROSS: It is. And the -- Jacobs, the people supporting the Gore's position here are trying to poke holes in the testimony of the witnesses for the defense -- the Bush witnesses -- and these witnesses are important. They have to, in a sense, make a case through cross- examination, because part of what they're trying to show is that there was an opportunity for mischief.
Well, was there really mischief? Can they show there were actual irregularities going on while the Republican operatives had access to the ballots?
SHAW: Well, one of the responsibilities we have -- our viewers have -- is to listen and watch very closely. So let's continue doing so.
TERRY YOUNG, SEMINOLE COUNTY CANVASSING BOARD ATTORNEY: We don't have depositions. But due to the time constraints and exigencies, we didn't have any other opportunities. And I would like to offer these into evidence at this point in time.
UNIDENTIFIED MALE: For obvious reasons, I object, Your Honor. There is no way I can cross-examine him and determine the validity -- find out at all. And we were precluded, by the way, from being able to go ahead and contact any people with regard to who had actually voted or whether they would have voted. We were not allowed to go ahead and contact those people.
It was a gag order, as I understand it, that was imposed with regard to public-records disclosure that occurred which regard to ballot envelopes, for example. When they came in, we had questions relating to that. And we were told we could not contact the voters. There is no possible way that this could be admissible under the circumstances. YOUNG: Your Honor.
CLARK: Mr. Young.
YOUNG: We are defending a case in which one of the critical allegations of evidence is that the course of the election was altered as a result of the activities of Mr. Leach. The parties have stipulated that some 1,932 ballots resulted from the absentee-ballot requests forms Mr. Leach added voter identification numbers on. These are 92 affidavits of those people, saying that they would have otherwise executed it.
In the time exigencies that were placed on this court, which the court had to place on us, it was impossible for us to take any significant portion of these by deposition. And it would have been a terrible burden on the court or these parties, these individuals to have subpoenaed them here to testify. This is the only way we have a representative sample to demonstrate this in this unusual case, under these unusual...
SHAW: Well, Judy Woodruff, this portion of this special edition of INSIDE POLITICS is fast coming to an end, as we've been bringing live coverage from the courtroom of Judge Nikki Clark.
WOODRUFF: We've been trying to bring our viewers as much of this trial as we possibly can: one of the two cases where absentee ballots are at the center -- Seminole County, this one. When this one concludes, we're told that tomorrow, there will be a trial -- assuming this one ever ends.
SHAW: Long night ahead.
WOODRUFF: A long night ahead. And in the meantime, as we've been talking during the last hour or so, dramatic developments from Tallahassee: the Republican leaders of the Florida state legislature announcing that they do intend to call a special session, the point of which would be to appoint a separate slate of Republican electors in the event the original slate is called into question by the courts.
SHAW: That special session to start Friday December 8.
Our seats are being relieved by Wolf Blitzer, who will be coming up at the top of the hour. Please stay with us.
WOODRUFF: He'll be right here.
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