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The Florida Vote: Florida Courts Listen to Democratic Challenges While the Legislature Prepares to Appoint Electors

Aired December 6, 2000 - 8:30 p.m. ET


ANNOUNCER: This is a CNN Election 2000 special report.

Republicans say they were just helping out the voters.


UNIDENTIFIED MALE: They didn't care that the number was added. They just wanted their absentee ballot.


ANNOUNCER: But Democrats say what really happened was a crime.


UNIDENTIFIED MALE: There was intentional wrongdoing in this case.


ANNOUNCER: Tonight, a case where thousands of ballots, and perhaps, the outcome of the election are at stake.

For Florida's top court, the political and legal pressure is on. And now, the Florida legislature is involved.


TOM MCKAY (R), FLORIDA SENATE PRESIDENT: Earlier this afternoon, Speaker Feeney and I signed a proclamation calling for a special session.


ANNOUNCER: This is a CNN Election 2000 special report: "THE FLORIDA VOTE." From Washington, CNN legal analyst Greta Van Susteren.

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: Thank you for joining us. It's been another day of dramatic surprises as Florida's courts and now the legislature, try to resolve the presidential election. There are so many legal challenges, we asked CNN's David Mattingly to wrap up all the action.


DAVID MATTINGLY, CNN CORRESPONDENT (voice-over): One courthouse, two cases, 25,000 absentee ballots at stake. First case, 7:00 a.m. -- 10,000 ballots challenged from Martin County. At issue: Was the law broken when Republicans removed hundreds of ballot applications, filled in missing information, and returned them to the election supervisor's office?

BARRY RICHARD, BUSH CAMPAIGN ATTORNEY: It is impossible, your honor, based upon the allegations in this complaint for the court to conclude that any votes were affected sufficient to change the results of the election.

MATTINGLY: Then, an hour later, down the hall, case number two -- 15,000 absentee ballots challenged from Seminole County. Did the county election supervisor favor Republicans by allowing them in her office and add missing information on thousands of ballot applications?

DARYL BRISTOW, BUSH CAMPAIGN ATTORNEY: This very nice supervisor was even-handed. She wouldn't help us, the Republicans. She wouldn't help the Democrats.

GERALD RICHMAN, PLAINTIFF'S ATTORNEY: The real issue in this case is going to be the intent of the parties to show that this was intentional and not merely carelessness or negligence. I don't think there's any question that the law was violated in this case.

MATTINGLY: 11 a.m., George W. Bush in Austin introduces Condoleezza Rice, his potential choice for national security adviser. But both court cases clearly on his mind.

GOV. GEORGE W. BUSH (R-TX), PRESIDENTIAL CANDIDATE: You know, they're watching all these legal matters pretty closely and they feel like the law is on our side.

MATTINGLY: And as the governor was speaking, another lawsuit. This one filed by civil rights leaders. Did election irregularities violate the rights of black voters in Duval County?

REV. JESSE JACKSON, CIVIL RIGHTS ACTIVIST: This is not about the Gore campaign. It's not about the Bush campaign. It's about civil rights.

MATTINGLY: Less than an hour later, high noon. Briefs filed in the Florida Supreme Court.

UNIDENTIFIED MALE: We wrote a very good brief. We want those votes counted.

MATTINGLY: Tomorrow, oral arguments before the justices in what could be Gore's last chance appeal for a manual recount of 14,000 ballots.

DOUG HATTAWAY, GORE CAMPAIGN SPOKESMAN: You need to count the votes to determine who won the election, and that hasn't happened yet. MATTINGLY: A victory in any one of the three cases could give Gore enough votes to claim the state's 25 electors and the presidency. But would Governor Jeb Bush certify Gore.

GOV. JEB BUSH (R), FLORIDA: If that's what the law would require, and I would do it.

MATTINGLY: Early afternoon, hundreds of demonstrators converge on the Florida Supreme Court. Special ribbons worn showing support for the Gore election challenge.

CROWD: Bush. Bush. Bush.

MATTINGLY: Signs and shouts supporting Bush.

BOB FRANKEN, CNN CORRESPONDENT: The Circuit Court of Appeals, Lou, has rejected the request from Republicans to overturn two lower court rulings.

MATTINGLY: Then, 2:15 in Atlanta, the U.S. Circuit Court of Appeals denies an earlier request from George W. Bush to stop the Florida manual recounts. The reason, because he still leads in the official vote count, there's no proof of irreparable harm.

So, all eyes back to Tallahassee. Testimony drags into the evening. Then, 5:15, the Florida legislature weighs in. First, Republican leaders.

MCKAY: Our sole responsibility will be to put forth a slate of electors that is untainted and insures that Florida 25 electoral votes count in this election regardless of for whom they voted.

MATTINGLY: A special session scheduled for Friday. A deadline for choosing electors looming next Tuesday. State lawmakers possibly taking matters into their own hand, and Democrats threatening new legal challenges.

LOIS FRANKEL (D), FLORIDA HOUSE MINORITY LEADER: That we will with every ounce -- every breath that we have with strong and reasoned voices try to convince our colleagues that it's wrong.

MATTINGLY: Bush sources tonight downplay future appeals to the U.S. Supreme Court indicating that the final word in presidential impasse will be uttered in Florida. But whose voice will it be and what role if any will the nearly 40,000 disputed votes be allowed to play in naming our next president?

David Mattingly, CNN, Atlanta.


VAN SUSTEREN: Was it only a couple of days we thought this whole thing was wrapping up? Well, let's go to Tallahassee to gauge the repercussions of today's event's. I'm joined by Jim Rosica of "The Tallahassee Democrat" newspaper. Jim, thank you for joining us this evening. JIM ROSICA, "THE TALLAHASSEE DEMOCRAT": Thank you, Greta.

VAN SUSTEREN: Jim, tell first of all, one of the key witnesses that we expected to see today was Sandra Goard. Tell me who she is and why wasn't she there?

ROSICA: Well, that's a good question. One that I haven't been able to get answered yet. But Sandra Goard is the supervisor of elections for Seminole County and right now I think the lead of this story is that finally we've heard testimony from her, albeit it was read out loud in the courtroom -- written testimony read out loud by another lawyer, of her admitting that she actually let in these Republican operatives to fill in the blanks, as it were, of hundreds and hundreds of Republican, not absentee ballots, but absentee ballot request cards that were in the Seminole County office.

VAN SUSTEREN: Jim, does there seem to be any disagreement by the representative of the Bush campaign, the defendants in this case, does it seem to be any disagreement that the ballot applications that numbers were added to them, the registration numbers?

ROSICA: I think that every one as a matter of fact has agreed to that. I guess the legal is they've stipulated to. No one's questioning the fact that this GOP worker by the name of Michael Leach and a second man who is still to be identified actually did go in there and add the voter identification numbers to the ballot car where there were blanks. What we didn't really hear today was an explanation from her testimony of why she did that, We did hear, however, that she do not apparently offer the same courtesy to Democrats as she did to Republicans.

VAN SUSTEREN: But did the Democrats have ballot application problems to begin with or was it just a Republican application problem?

ROSICA: Apparently, from we've been able to gather in the courtroom this was solely a Republican problem that was apparently generated because there wasn't, I guess, the proper blank on the preprinted card that they had mailed out to people. So, that's why the problems with the cards being blank were more with the Republicans -- the cards that went to registered Republicans than with the cards that went to the registered Democrats.

VAN SUSTEREN: So how was there any disparate or different treatment for the Democrats compared to the Republicans if it wasn't a Democrat problem to begin with?

ROSICA: Well, I guess one of their points is just the fact that as they said, the Democratic Party was not offered the same courtesy. They were not given a phone call, essentially saying, hey, we're doing the Republican party a favor and letting these guys come in and fill in the blanks. Any of your cards that may have the same problem we'll let you come in a do that also. Apparently, neither Mrs. Goard nor her office offered the same courtesy to anybody in the Democratic Party. VAN SUSTEREN: Jim, the defendants in the case wanted to get rid of the judge who's on the case, Judge Nikki Clark and they failed to do that. What was her demeanor in the courtroom today?

ROSICA: I thought her demeanor -- she was actually a little bit tougher, I thought, than Judge Sauls -- Sanders Sauls was in the contest trial over the weekend. She has kind of -- she shocked us at first by demanding that special muffling devices be placed over all the still cameras in the courtroom. She did not hesitate to cut off witlessness when she thought their answers were getting off track and one point she even cut off a lawyer, bluntly saying you've made your point, now. haven't you?

VAN SUSTEREN: Jim Rosica, "The Tallahassee Democrat," thank you for joining me this evening.

Tonight, also joining me here in Washington is CNN election law analyst Ken Gross. He worked with the Federal Election Commission for nearly a decade, and specializes in election law.

Ken, let's first talk about the fact that Sandra Gourd, who's the supervisor of elections in Seminole County, didn't testify in person but rather the lawyers read her previous deposition testimony. Why is that?

KENNETH GROSS, CNN ELECTION LAW ANALYST: It's a little hard to tell. It kind of cuts both ways. Obviously, the party stipulated or agreed to her not testifying and the lawyers for the Bush people kept referring to her as a very, very nice lady. And I'm sure she is a very nice lady. And if you have a very nice lady as a witness you want to put her the stand and show that she wouldn't do anything illegal or pernicious.

But for whatever reason, maybe they didn't want to subject her to the stress of proceedings, they had a lawyer read a transcript from a lengthy deposition that was taken of her and that's not the most exciting testimony in the world but it isn't a jury hearing, this case, it's a judge hearing it so it's OK.

VAN SUSTEREN: But Ken, the judge is human, and if you want to, you know, put your best foot forward. I understand that Sandra Goard had another engagement, at least that's what I'm reading on the wire, so it's nothing sinister that she wasn't there. But you would have thought that at least it's better -- at least, you want your witness there so that you make a got impression, do you not?

GROSS: Yes, you do, particularly if she's a sympathetic witness. And the way they described her, if they described her even close to being accurate, she sounds like she would make a good witness. And I do remember her in some clips in the news and she seemed like a very nice lady.

Now, there's a downside to it: It's hard to cross-examine for the -- I mean, part of the problem that the plaintiffs had here is that they had to make a case that there was an opportunity for mischief when there were Republican operatives in the room. And you can only make a case like that by cross-examining the other side's witnesses. And they were, essentially, deprived of some of that at testimony, except whatever they were able to elicit during the deposition.

VAN SUSTEREN: And, of course, it runs the big risk of being boring -- to have a question answered being read to -- whether it's a jury or a judge.

But let me turn the corner for a second, Ken, to the issue of remedy. There has been a lot of talk about whether the judge is going to throw out all the absentee ballots, but the plaintiff said that there is an alternative. She doesn't have to throw them all out. What was the alternative?

GROSS: Well, the plaintiff put a statistician on the stand -- we've heard a lot from statisticians in the last couple of days -- to try and devise what we really refer to as an intermediate remedy; something less drastic than actually throwing out 15,000 absentee ballots when we know that 13,000 of them -- or approximately -- we don't know which ones are perfectly valid.

So they were coming up with some kind of statistical sample. If they can establish an alternate, intermediate remedy for the judge, perhaps, maybe she would not seek such a tough standard of fraud or intent. I think she has to find intentional wrongdoing here, but it might be a little bit easier to prove the case if the remedy is less drastic.

VAN SUSTEREN: All right, well let's go to Bush spokesperson Tucker Eskew who's joining us from Tallahassee. Earlier today we had a Gore spokesperson.

So Tucker, how did it go today for your side?

TUCKER ESKEW, BUSH CAMPAIGN SPOKESMAN: Well, we had a good day. We got a chance to present our side under the law and the Gore lawyers, the other side's lawyers continue to present a lot of spin. And you know, Greta, at some point the say anything, do anything, spin anything approach runs headlong into the law. That's what we're hoping for here.

VAN SUSTEREN: But Tucker, I mean, what about the problem of this partial remedy? I know that one of the defenses was that it seemed rather extraordinary to disenfranchise all the absentee ballot casters in Seminole County; but it now seems that the plaintiff says that there's another remedy, an alternative one, something less. What do you say about that?

ESKEW: Well, I hear the other side's lawyer just a short while ago on CNN -- seemed to embrace the idea of disenfranchising all of these ballots. Seemed rather cavalier about it, in fact. And, you know, Vice President Gore embraced this lawsuit the yesterday. They've tried to distance themselves and then they play a little political footsy with the lawyers.

So we all know what it's about -- it's about part of their last- ditch effort. Throwing out those votes would not be a remedy; that would be a cure far worse than what ails us here. What may ail us here is a minor technicality.

VAN SUSTEREN: But you talk about a minor technicality, Tucker -- this was a statute that was created in the last two years by a Florida legislature that's Republican and you've heard a lot from the Republicans in Florida about making sure that we don't change things, that judges don't go beyond the law. In fact, the best example is the Florida Supreme Court on the -- changing the deadline from November 14 to 26.

Now the Republicans want the law to be a little more flexible. Isn't that talking out both sides of your mouth, and isn't that a little bit of a problem?

ESKEW: I don't think so because are you're talking about ballots versus what was going on here, which had to do with applications. Let's not forget there is another distinction here. Republicans sent out these requests for applications -- two Republicans. The Democrats did the same thing. Republicans had theirs addressed so they went directly to the county supervisor's office. Democrats, on the other hand, Greta, had them sent back to party headquarters, so if a Democrat were to change a number on one of these forms, there would be no way to know. I haven't seen much of that in the press, but it's a distinction that I believe Judge Clark would want to take under advisement.

VAN SUSTEREN: Tucker, one quick question: your lawyers going to get any sleep tonight getting ready for the Supreme Court tomorrow?

ESKEW: Not much; part of the reason I'm on your show as a spokesman -- because we've got one lawyer due in Martin County and a lot of others preparing for the Supreme Court tomorrow.

VAN SUSTEREN: And speaking of Martin County, I actually -- Tucker, thank you very much for joining us tonight.

We're going to take a break. And speaking of Martin County, the trial has begun again in Martin County and the first witness has been called by the plaintiffs. We're looking at live picture; we're going to dip in every time there's something important. We'll be right back with more, stay with us.


VAN SUSTEREN: Welcome back; we're going to take you to the Martin County trial in Tallahassee where the first witness is on the witness stand -- it's Tom Hauck, who's a Republican Party official. let's listen.

UNIDENTIFIED ATTORNEY: The program that, in fact, the Republicans had -- you were aware of it because, in part, you, yourself, received, did you not, a preprinted form sent out by the state Republican Party that gave you the opportunity, if you elected to do so, to make an application for an absentee ballot -- correct, Mr. Hauck.

TOM HAUCK, MARTIN COUNTY GOP OFFICIAL: That's correct. UNIDENTIFIED ATTORNEY: Right; so that was one the ways in which you were aware that, in fact, your state party had a program to try to encourage people to take an opportunity of the right to apply for absentee ballots -- correct, Mr Hauck?

HAUCK: I received a mailing and I ignored it because I was going to vote. That's what I thought.

UNIDENTIFIED ATTORNEY: But there came a time, Mr. Hauck, in which you were aware from phone calls that came into headquarters there in Stewart in Martin County, that in fact, Republican -- potential Republican voters were experiencing delays in receiving in receiving their absentee ballots, correct?

HAUCK: I received one phone call.

UNIDENTIFIED ATTORNEY: You received one phone call and you spoke to -- I think it was a woman, is that right?

HAUCK: That is correct.

UNIDENTIFIED ATTORNEY: And she told you that, in fact, she had had a difficulty in receiving her absentee ballot from the supervisor of elections office in Martin County, correct?

HAUCK: Correct.

UNIDENTIFIED ATTORNEY: In fact, you suggested that she call Peggy Robbins and see what the delay was, correct?

HAUCK: That's what I said the other day in the testimony, yes.

UNIDENTIFIED ATTORNEY: No, but his honor needs to be able to hear that as well.

HAUCK: I'm sorry.

UNIDENTIFIED ATTORNEY: So you had her -- you suggest that she give a holler to Ms. Robbins to find out what the problem was, is that right?

HAUCK: Sorry; repeat the...

UNIDENTIFIED ATTORNEY: You told her to call Ms. Robbins to see what the problem was, is that right?

HAUCK: When she first told me, yes.

UNIDENTIFIED ATTORNEY: Your honor? Excuse me, I was asleep at the switch and I would to raise a matter. I was trying to get caught up here when we had this matter (OFF-MIKE) and the supervisor and the propriety of the board and the supervisor -- many defendants and you did rule -- you were prepared to say they were not indispensable parties. You have no relief to grant against them whatsoever.

This gentlemen, I believe, has been sued individually. You could grant no relief against him whatsoever. The motions to dismiss do not -- I mean they stand. There's not been pleaded one thing that would say that he ought to have a position, a party in the case therefore I would ask, your honor, to reconsider the motions to dismiss as to these individuals and dismiss them so they are not parties to defendants and can't then be treated as hostile parties. They're in no different position than the parties you just released.

JUDGE TERRY LEWIS, LEON COUNTY CIRCUIT COURT: I never called him hostile. That's such a bad word, but adverse party is the proper term. What do you say, Mr. Hauck?

UNIDENTIFIED ATTORNEY: Well, your honor, I think he clearly is. He has been sued. The court, I mean, now at the 12th hour is hearing a motion which I gather to dismiss Mr. Hauck in his individual capacity.

LEWIS: Wasn't there a motion -- was there a written motion filed to dismiss?

UNIDENTIFIED ATTORNEY: Your honor, there was a written motion filed. And we have been in trial all day long and there's not a time appropriate to have a normal schedule of motions and hearing. Mr. Hauck is named as party only because of his capacity in the Republican Executive Committee, which they named as party, and he should no more be a part of this suit as part as an individual member of the canvassing board.

LEWIS: Well, I probably agree with you in terms he fits the same rational that I used against the other ones, but even if I granted motion and dismissed him right now, I'd probably let him leave this witness anyway in the interest of time and getting and if it becomes abusive or something, object. But otherwise, I'd just as soon let him get to the point.


UNIDENTIFIED ATTORNEY: Mr. Hauck, you were just explaining to the court that you had heard through an individual potential voter, that in fact, she had experienced difficulties and delays in getting...

VAN SUSTEREN: We've been listening to the lawyers quibble over the fact of whether or not this is an adverse witness, whether he's a party. The advantage to the plaintiffs is they got ask leading questions if he adverse, is he's an opponent party and, of course, the defendants don't want leading questions. They want open-ended questions. The plaintiffs won. They will be leading questions. Let's listen.

UNIDENTIFIED ATTORNEY: ... so as result of that conversation. Mr. Hauck, what did you take it upon yourself to do?

HAUCK: I called Mrs. Robbins.

UNIDENTIFIED ATTORNEY: All right, and tell the court the conversation that had you with Mrs. Robbins. HAUCK: As I said the other day, I don't remember precisely but what I do remember was I told her that a lady had called me saying there was difficulty with getting the absentee ballots out. They seemed to quite a few of them there and I asked if we could help. And she said, possibly. And then I went done to her office and -- you want me to continue?

UNIDENTIFIED ATTORNEY: You went do down to her office that same day, is that right?

HAUCK: That is correct.

UNIDENTIFIED ATTORNEY: All right, and you went into the office that's there in Stewart, Florida. Is that right?

HAUCK: It's a big office. I mean, it's not just her little office. It's a supervisor of elections office is bigger than this room with a number of people there. It's not...

UNIDENTIFIED ATTORNEY: A number of people, Mr. Hauck, and also a number of documents to your knowledge in that office, is that right?

HAUCK: That is correct.

UNIDENTIFIED ATTORNEY: All right, and you had an appreciation, did you not, Mr. Hauck, that the number of documents I just referred to were in fact public records? You had an appreciation for that, didn't you?

HAUCK: I didn't think about that at all.

DARYL BRISTOW, BUSH CAMPAIGN ATTORNEY: Your honor, he calls for a legal conclusion.


UNIDENTIFIED ATTORNEY: This does go to the heart of our state of mind.

LEWIS: Overruled.

UNIDENTIFIED ATTORNEY: Thanks very much. Mr. Hauck. With all your comings and goings into the supervisor of election's office, can you tell the court with what degree of care you noticed that office treating the documents that were inside the office? Tell the court about that.

HAUCK: Actually, when I went there -- I went there daily basis for a while because I was helping a couple of candidates with their absentee ballot mail-outs, so I would get labels for them before the Bush campaign during the primary or the runoff. So I was there quite frequently, but only in a certain section. I never went in back rooms or never into her office. I've only been in her office once, I think. It's not into her office or into the records section. It's the into front section where the receptionist sits and where the other -- where people vote, you know, when they come into their office. It's a wide area. There are very few documents.

UNIDENTIFIED ATTORNEY: But my point to you, Mr. Hauck, is that precisely the configuration of the office you just described to the court, wasn't it clear to you, as a person coming this there on daily basis, that the documents that were...

VAN SUSTEREN: We've been listening to the trial in Martin County in Tallahassee. The allegation there by Democratic voters is that 669 votes of 980,000 absentee ballot -- applications, rather, were altered by Republican officials. The trial has just begun and we'll continue to dip into as important events happen. We're now going to go to a break and coming up next is "LARRY KING LIVE." Don't miss it. Stay with us.



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