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Judge Hears Democratic Challenge to Seminole County Absentee Ballots

Aired December 6, 2000 - 5:00 p.m. ET


JUDY WOODRUFF, CNN ANCHOR: Bush and Gore supporters clash outside the Florida capital -- and in court, where thousands of absentee ballots are in dispute.

BERNIE SHAW, CNN ANCHOR: As Al Gore prepares to press his presidential fight in Florida's high court, a panel of federal judges hands him a victory.



GOV. GEORGE W. BUSH (R-TX), PRESIDENTIAL CANDIDATE: It seems like all the different court suits are working their way to finality. And I hope we can get this over with quickly. And there's a lot of work to be done.


WOODRUFF: George W. Bush juggles presidential-style photo-ops and the legal balls that remain up in the air.

ANNOUNCER: From Washington, this is INSIDE POLITICS, with Judy Woodruff and Bernard Shaw.

WOODRUFF: Thank you for joining us.

In the presidential election drama, two Democratic challenges of almost 25,000 absentee ballots are taking center stage in Florida this day.

SHAW: Those cases from Seminole and Martin counties offer one of the last glimmers of hope for Al Gore as he tries to overcome George W. Bush's certified lead in the Florida vote count. Also this day, a federal court in Atlanta rejected Bush camp appeals seeking to throw out hand recounts of some Florida ballots. And both sides filed legal briefs today with Florida's Supreme Court, which is set to hear oral arguments in a Gore camp appeal tomorrow.

WOODRUFF: Our correspondents Bill Delaney, Kate Snow and Bob Franken are standing by at all the key courthouses. And we will hear from them later. And we are waiting for a news conference by the Republican leaders of the Florida legislature. We're going to go to that just as soon as it gets under way.

But first, we want to resume our live coverage of the trial involving those Seminole County absentee ballots. Back to the courtroom...

UNIDENTIFIED ATTORNEY: ... information which you utilized or considered in formulating your opinions which you testified here today?

JAMES DELONG, STATISTICIAN: Only to the extent that numbers in here are numbers in the stipulation, but I don't, right, I see one that's similar. But that's all.

UNIDENTIFIED ATTORNEY: There is a portion of that document that I have provided you that analyzes the unprocessed absentee ballot request forms, some 742 that were never processed prior to the election.

DELONG: Seven hundred and forty-two?

UNIDENTIFIED ATTORNEY: (unintelligible) any documents not part of, not presented in the stipulation (unintelligible).


JUDGE NIKKI CLARK, LEON COUNTY CIRCUIT COURT: Well, and he said he didn't use the information.

UNIDENTIFIED ATTORNEY: I just want to ask, did you ever do an analysis of the unprocessed absentee ballot request forms that remained unprocessed at the time of election?

DELONG: I haven't had time to.

UNIDENTIFIED ATTORNEY: OK. So you didn't consider any of the results that such an analysis would have rendered?

DELONG: No, I didn't write that position and testimony and not in front of my direct testimony.

UNIDENTIFIED ATTORNEY: Have you ever considered it at all?

DELONG: As I said, I skimmed it and I have been thinking about it to the degree I've had time so far today.

CLARK: So did you consider it?

DELONG: No. Not in my direct testimony.

UNIDENTIFIED ATTORNEY: Thank you. I'll just leave this marked as an identification exhibit at this point in time.

CLARK: And give that back to the clerk, if you would.


Thank you. (unintelligible).

CLARK: Is there further cross?

DARYL BRISTOW, BUSH CAMPAIGN ATTORNEY: Can I ask a couple of questions?

CLARK: Certainly.

BRISTOW: Would you mind if I asked them here?

CLARK: No, I don't.

BRISTOW: We can agree, can we not, professor, that the reason you are terrifying today is because you did not really know how the voters in question cast their ballots (unintelligible)?

DELONG: I think we know with overwhelming probability...

BRISTOW: That's not what I'm asking.

DELONG: ... that more than 1,300 of them voted for...

BRISTOW: Just let me ask the question again. The reason you are terrifying today and providing us with your estimates is because we do not really know how any single voter in question cast his or her ballot, do we?

DELONG: Statistics doesn't really like to deal with certainty, that everything always has a probability, right, no matter how unlikely it is you can imagine that it might have happened some time.

CLARK: I'm not sure if he's asking a statistical question.

DELONG: Yeah, but we know as surely as...

BRISTOW: Excuse me. Excuse me.


BRISTOW: The reason you're testifying today upon estimates...

DELONG: Right.

BRISTOW: ... is because we do not really know precisely how anyone of those voters cast his or her ballot because we haven't seen them. Is that correct?

DELONG: We do not know precisely how many voters cast for ballots for Governor Bush and for Vice President Gore. But we are as certain...

BRISTOW: Well, that's all I -- sir...

DELONG: ... as we are as certain as anything on the earth...

BRISTOW: Yes, sir. Here's what I'd like to do, if you don't mind. I would like to get to the point that I'm trying to make as opposed to the point that you're trying to make. So if you'll just answer my questions, I'm sure that your counsel can redirect later. And if Your Honor will direct him to do that I would really appreciate it.

CLARK: Please listen to the question and answer only the question.


BRISTOW: Now, it's...

UNIDENTIFIED ATTORNEY: Can I ask that the witness finish his answer and if it's something that's beyond the scope of the question, Your Honor can strike it out.

CLARK: What I have admonished the witness is to please listen to the question and to answer the question and only the question.

BRISTOW: Now, we've agreed, professor, that we don't know exactly how these voters cast their ballots?



DELONG: That's why statistics and statisticians report their results with confidence intervals.

BRISTOW: I'm sorry, I think the judge just told you to answer the question. It follows from what we just agreed to, does it not, that if Judge Clark were to impose upon the voters of Seminole County the formula that you are proposing, that there is a distinct possibility that some of those voters will effectively be forced to cast their ballots for persons other than the candidate of their choice, isn't that true?

DELONG: I don't understand how it's effectively forcing any voter to do anything.

BRISTOW: Well, is there not a margin of error in your calculations?


BRISTOW: OK. And if there is a margin of error, then we must concede that if that error proves to be true, that effectively there will be some percentage of voters who will be forced to support a candidate, if Judge Clark adopts your formula, that they did not intend to vote for. Isn't that true?

DELONG: The question I was asked was to discount the ballots, right? I mean I think that the ballots still, the ballots counted vote for who they voted for still.

BRISTOW: If Judge Clark were to impose your formula upon the voters of Seminole County and given your admission that there is a margin of error in your formula, there is a distinct possibility, is there not, that some of those voters statistically would be forced to cast their ballots, or at least let's put it a way you may be more comfortable with, to end supporting a candidate other than the one they wished to vote for?

DELONG: And I think that the answer is that whatever formula is adopted will probably have some error relative to, you know, call it whatever, the true underlying vote, you know, that there is a margin, definitely a margin of error there, yes.

BRISTOW: And did you know that that is precisely the definition of one of the elements for contesting an election?

DELONG: Excuse me, what is one of the elements?



UNIDENTIFIED ATTORNEY: Well, it's up to the court, I think, not to you.

CLARK: Well, I was assuming he's going to ask another question, a different question, when he said that.

UNIDENTIFIED ATTORNEY: Wouldn't we save a great deal of time and money if we relied upon you and your colleagues to tell us who would be elected and skip all this voting business?




CLARK: Objection sustained.


CLARK: Objection sustained. Any further cross?

BRISTOW: May I have (OFF-MIKE)...

CLARK: Certainly.

BRISTOW: Thank you, Your Honor.

I believe I heard you testify that, in your opinion, this action, or inaction, or error that's been complained about changed the election. Did I hear you say that?


BRISTOW: Now, in order for you to come to that conclusion, there's only one thing you can do, which is to compare what would have happened if the action had not taken place. Isn't that true?


BRISTOW: What statistical analysis did do you, assuming that these people didn't get their absentee ballot, assuming that the Republican Party found out about it, assuming that they put their phone banks to work, assuming that they put their people to work with regard to how many of these people would have asked for another ballot, how many people would have gone to the polls and how many people would have voted? What statistical analysis did you do of that?

UNIDENTIFIED ATTORNEY: Your Honor, objection.


CLARK: Objection overruled.

DELONG: OK. We know that 63 percent of voters in Seminole County went to the polls on Election Day. We also know that of kind of the number of people who submitted absentee-ballot request forms that were invalid that lacked voter I.D. numbers, a substantial number of them actually did manage to vote absentee, because they sent in more than one absentee-ballot request form -- I think numbers to the tune of several hundred at least.

BRISTOW: Actually, statistically it was on the order of 90 percent, wasn't it?

DELONG: What? No!

BRISTOW: Eighty percent.


CLARK: Excuse me, folks.

UNIDENTIFIED FEMALE: One at a time, please!

CLARK: Excuse me. Let me hear your objection.

BRISTOW: My objection is that the questioner interrupted the witness two sentences into an answer to a question that had 10 elements in terms of being compound. I think simple, appropriate cross-examination should allow the witness to finish and answer everything he was saying in response...

CLARK: Objection overruled.

What's your question?

BRISTOW: Let me break it down, your honor: He's got a fair objection, I think.

Let's assume that these innocent voters who didn't know what was happening and turned in their absentee ballot, they don't get an answer back.

DELONG: Right.

BRISTOW: And assume that Todd Schnick (ph), who is involved in this matter, went to the phones and that these are loyal Republicans and they actually went out and said, let us help you, let us bring you another form, let us get it filled out.

On what statistical model would you come to a conclusion that these people would not have voted their will?

BRISTOW: Objection, predicate based on facts not in evidence.

CLARK: Counselor, respond.

BRISTOW: Yes, your honor. I'm trying to establish all the various hypotheticals that no statistician could ever come up with.

CLARK: No, I understand what you're trying to do, but responding to the legal objection: Are there facts in evidence on which you based your hypothetical?

BRISTOW: Yes, I believe there are...

CLARK: Let's go on to those.

BRISTOW: ... and if not, Mr. Schnick is available for him -- to have him come testify that they would have done exactly what I have presented as...

CLARK: OK, I'm going to be compelled to sustain the objection because I don't know where the facts are in evidence.

BRISTOW: It is not in the stipulation; Mr. Schnick is on call.

CLARK: OK, I'm sustaining the objection.

BRISTOW: With regard to the absentee ballots...

WOODRUFF: As Bush campaign attorney Daryl Bristow cross-examines the witness, the statistician, I want to bring in our -- CNN's David Cardwell, who is a former Florida elections official.

David, clearly the Bush people are trying to undermine what this statistician has provided for the challenger, the plaintiff there in Seminole County.

DAVID CARDWELL, CNN ELECTION LAW ANALYST: Clearly, they are, and they're going to do it in two ways. One would be through this cross- examination, where they have attacked both his experience -- they've noted that he hasn't been qualified as an expert witness before, and now they're challenging his methodology -- or that he didn't do something, perhaps, he should have done in addition to what he did do.

So they're going to try to attack him here. They'll also try to bring down his conclusion with their own statistician when they put their own case on.

WOODRUFF: David -- but just to be clear about it: The thrust of his argument is that there is a way, by his calculation, to come up with a -- in his view, the plaintiff's view -- a fair number of ballots to be thrown out on both the Republican side and the democratic side. That was really what he was arguing, am I right?

CARDWELL: Correct. What they're doing here is that the plaintiffs realize that, for the judge to throw out 15,000 ballots, which would be all of the absentee ballots in Seminole County, may be just too severe a remedy and she might not want to do that. But she might be willing to do something that's much less than that if she finds that there has been wrongdoing here that warrants some sort of remedy.

So what they're trying to do is to give her an alternative to the 15,000 by saying that, through the statistical analysis we can identify how many of those ballots came in as a result of these improperly -- as they're alleging -- filled-out request cards, and then we can figure out how those ballots were distributed in terms of votes and then make the discount and the total vote in Seminole County based upon that statistical analysis.

WOODRUFF: And it so happens that that total would change the outcome of the election in Florida, because the number we just heard the statistician give a little while ago is well over 1,000, which would be more than enough to change the outcome.

Let's go back, now, to the courtroom and to the Bush cross- examination.

UNIDENTIFIED LAWYER: May I proceed, your honor?

CLARK: Proceed.




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