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Judge Hears Democratic Challenge to Seminole County Absentee Ballots

Aired December 6, 2000 - 7:00 p.m. ET

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

WOLF BLITZER, CNN ANCHOR: I'm Wolf Blitzer in Washington; welcome back to our continuing live coverage of court proceedings in Tallahassee involving disputed absentee ballot applications in Seminole County.

Let's go back to that courtroom right now.

JUDGE NIKKI CLARK, LEON COUNTY CIRCUIT COURT: Compare it to your exhibit and let me know what your input is.

UNIDENTIFIED ATTORNEY: (OFF-MIKE) precincts (OFF-MIKE) just yesterday, if you remember, your honor.

CLARK: I know; just give him a minute, he's going to examine it.

UNIDENTIFIED ATTORNEY: Your honor, I do apologize to the court and Mr. Richman. I just saw the exhibit this morning (OFF-MIKE).

UNIDENTIFIED ATTORNEY: Your honor, for what it's worth, I don't object to it. I have no way of going back and checking at all. All I could do is take a look at it and see if the signature appears to be there.

CLARK: Then if there's no objection, it's admitted.

UNIDENTIFIED ATTORNEY: With that, we accept it per original stipulations that Carmen (ph) Colon (OFF-MIKE).

CLARK: Spell Carmen Colon's last name for me.

UNIDENTIFIED ATTORNEY: It looks like, your honor, it's C-O-L-O- N.

CLARK: Thank you.

UNIDENTIFIED ATTORNEY: Your honor, (OFF-MIKE) and the Seminole County canvassing board rest.

UNIDENTIFIED ATTORNEY: If it please the court, George W. Bush and Richard Cheney would like to introduce the certified copies of the committee report on chapter 101, which I referred to in the argument yesterday along with the bill that the report refers to.

CLARK: There's no objection? Admitted.

UNIDENTIFIED ATTORNEY: I'm sorry your honor. The committee report and the bill (OFF-MIKE).

UNIDENTIFIED ATTORNEY: I believe we have an objection, your honor. We have a copy that does not -- we don't have all the pages that are here, so I'm just trying to look and (OFF-MIKE).

We have no objection to it, with the representation that's the certified copy.

UNIDENTIFIED ATTORNEY: Yes sir; and also the bill -- a certified copy of the bill.

We have no witnesses your honor, and the Bush-Cheney defendant rests.

UNIDENTIFIED ATTORNEY: The secretary in the elections canvassing commission rests, your honor.

UNIDENTIFIED ATTORNEY: Your honor, the Republican Party (OFF- MIKE) and Michael Leach rest.

UNIDENTIFIED ATTORNEY: Your honor, the absentee voter rest and the defendant (OFF-MIKE) rest.

CLARK: Is there rebuttal?

That's your rebuttal, not just a repeat of the evidence in chief?

UNIDENTIFIED ATTORNEY: Absolutely not. The counsel has just brought up, by introducing Carmen Colon -- it would take me a little time to get it, but we have -- he has photocopies, we have photocopies of precinct books for other registered Democrats from that same mailing who did not vote; and I would ask that we be able to introduce that if that at all becomes material. We just take one out at random without any opportunity to check it. But we have checked -- the other ones who did not vote, if that's a material issue in your honor's mind.

CLARK: It's your chart.

UNIDENTIFIED ATTORNEY: Actually, that's what I'm saying, is that that was just a chart as an example of this disparate treatment -- the person was treated that way -- they might still have ended up somehow voting. And we don't, in fact, dispute the fact that some small universe (OFF-MIKE) percentage of may have, in fact, voted. Is there any question in your mind or any inference that that means that everybody voted after they were disparately treated, we would ask (OFF-MIKE) to bring in the copies from the precinct books of the signatures that we're showing that others did not vote; and we proffer to the court that we would be able to prove that.

CLARK: What I'm hearing you say is that you don't have rebuttal, but that if I have additional questions you would bring me additional information. UNIDENTIFIED ATTORNEY: If your honor has a question on that issued or if there's any inference to be drawn that all the Democrats who were disparately treated, in fact, voted, we have evidence to be able to produce -- to show that that is absolutely not the case.

CLARK: I don't have those questions right now.

So what I'm hearing is that the evidence is closed in this case. It's 7:00 and I'm ready to quit for the day. We'll plan for closing argument tomorrow morning.

UNIDENTIFIED ATTORNEY: Your honor, I have an oral argument before the Supreme Court...

CLARK: Oh, you sure do; what time?

UNIDENTIFIED ATTORNEY: Mr. Sauls -- Judge Sauls' case at 10:00 a.m. So I really would appreciate it if the court would not require me to come in before 10:00 a.m. -- so if there's any possibility for (OFF-MIKE) after that, I would...

CLARK: How long is oral argument scheduled for?

UNIDENTIFIED ATTORNEY: A half hour at a time, so I imagine I would be out of there by 11:30.

CLARK: What I'm going to do is this, then: We'll schedule oral argument -- we'll schedule final argument in this case for 1:00 tomorrow afternoon. I'd like to, today, figure out some time.

Mr. Richman, you shouldn't need more than an hour, is that correct?

GERALD RICHMAN, ATTORNEY FOR PLAINTIFF: Yes, your honor, that's correct.

CLARK: And the defense, combined, shouldn't need more than hour and a half, is that correct?

UNIDENTIFIED ATTORNEY: Absolutely.

CLARK: OK, and I'll rely on counsel to figure out among yourselves how to best divide your hour and a half.

UNIDENTIFIED ATTORNEY: Your honor, just for the record we'd like to review the motion for voluntary dismissal and (OFF-MIKE) that we close the evidence.

CLARK: And I'll accept that motion from all the defense parties and, again, I'll take it under advisement and reserve ruling on that.

Anything further for this evening?

UNIDENTIFIED ATTORNEY: Yes your honor; I want to present to the court a supplemental memorandum regarding alternative remedies in support of the testimony that we've had we can -- and, your honor, we also do have proposed findings of fact in the (OFF-MIKE) of law. We can either leave those with your honor, tonight -- I haven't had the chance to review them -- or we can get it to you first thing in the morning, whatever your honor...

CLARK: If I accept them, I'll accept them tomorrow. At this point I don't want them.

UNIDENTIFIED ATTORNEY: That's fine.

CLARK: So then, good evening; and court is in recess until 1:00 tomorrow afternoon.

BLITZER: They began this trial almost 10 or 11 hours ago; it's been continuing all day. Judge Nikki Clark has now recessed, pending final arguments tomorrow at some point in time to be determined to wrap up this trial involving disputed absentee ballot applications in Florida's Seminole County. Welcome back to our continuing coverage.

I want to bring in David Cardwell, our Florida election law analyst, who's been monitoring this trial all day.

And just to be clear, David, this is only one of two counties dealing with this. The Seminole County trial will continue, it will be followed by a similar trial before a different circuit court judge involving Martin County. You heard today very detailed arguments on both sides. Who made the more compelling case -- at least as of right now.

DAVID CARDWELL, CNN ELECTION LAW ANALYST: Well, certainly I think the plaintiffs -- the attorneys for Mr. Jacobs who brought the contest -- were able to show that something had occurred in the supervisor's office and that it resulted in numbers being written onto the absentee ballot request forms.

But what they didn't seem to be able to get really firmly in the record, but which they left a lot of implications, is that there was some opportunity for mischief, as they called it: that there may have been some, you know, intentional acts that were taken -- this wasn't just an unintentional act or that it was something that was done with good motives, it just happened to be a technical violation.

But they didn't seem to get up to that next level. And as a result, I think we saw that, when the defendants put on their case, they poked a few holes in it, showed some alternative explanations and rested. And it seems like it's really now going to turn on the arguments to the judge tomorrow afternoon.

BLITZER: And David, the argument that we heard from Al Gore only yesterday -- that the Republicans received favorable treatment in dealing with these improperly written-out absentee ballot applications that the Democrats were denied similar treatment, did the plaintiffs in this case, the Democrats, make the case that there was favorable treatment only for the Republicans?

CARDWELL: Well, what I heard through the testimony particularly through the reading of Sandra Goard's deposition was that the Republican party made a request and she granted it. No similar request came from the Democrats.

Now, Democrats are arguing that the reason they did not make a similar request is because they had contacted Sandy Goard's office, in fact talked to her in advance of the election and in advance of absentee ballots going out or absentee ballot requests going out and were told she was going to strictly follow the new requirements in the election code for requesting absentee ballots and that they had seen the memorandum and other instructions which said it's got to strictly comply with the election code. And as a result they didn't make the request.

So, you could say, yes, there's different treatment, but what caused that and who was at fault and who, maybe was not at fault.

BLITZER: Was there any evidence that Sandra Goard, the election supervisor in Seminole County, that she was part of some sort of Republican conspiracy designed to help the Republicans get those votes as opposed to declining to allow Democrats to have a similar opportunity?

CARDWELL: It seemed like they wanted to leave that implication, but then again, I didn't hear anything that showed that, you know, they could really tie that together. The Democrats are going to argue she was being much more receptive to the Republicans when they made the request, but then the response from defendants was well, Democrats, if you'd made the request, she may have, you know, responded favorably to you.

BLITZER: Ken Gross, our election laws analyst here in Washington, as you were listening, monitoring these many hours of this trial in Tallahassee today, how much does --how much do the Democrats have to prove in order to get those Bush ballots thrown out?

A lot of people are saying those ballots were commingled with a lot of other ballots and thousands of ballots which were legally written up, the application form would be thrown out if the judge went ahead and accepted what Harry Jacobs, the plaintiff in this particular case, is demanding.

KENNETH GROSS, CNN ELECTION LAW ANALYST: Yes, Wolf, the standard of proof here is a high one, and that's one of the burdens. If they can demonstrate -- the Democrats here can demonstrate that numbers were filled in that should not have been filled in, but the court is going to request -- is going to need more than that to throw out 15,000 ballots because as your question noted, when the ballots that came in as a result of the applications that had the numbers inserted, they just get thrown into the pile with all the good ones and you can't differentiate.

And they only -- and the times when the precedent for throwing out even the good ballots, the baby with the bath water, was when there was pervasive fraud as was the case in the Miami election a few years ago where they said the absentee ballot was so rife with fraud that they had to throw them all out. In fact, the laws that we're operating under now were as a result of that. And I'm not sure if that burden has been met but of course that's the standard they have to meet.

BLITZER: That's a very high standard that burden of proof on the Democrats in this particular case. They have show that there was perhaps some sort of criminal intent, isn't that correct?

GROSS: Well, yes, something -- that's right. They need to have -- fraud's a very strong word. You have to have what -- in the law what's called scienter. You have to have a criminal mind or something -- an intent to violate a law and know the law -- know what you're doing is illegal.

BLITZER: All right, Ken Gross and David Cardwell, stand by. We're going to take a quick break. When we come back we'll speak to our correspondents on the scene in Tallahassee. A lot more coverage when we come back.

(COMMERCIAL BREAK)

BLITZER: Welcome back to our continuing coverage. We're covering, actually, two trials that have been under way today. One involving Seminole County, that trial is now in recess pending final arguments that will made tomorrow afternoon in Tallahassee. The other trial involves absentee ballot applications in Martin County. That began this morning. It went into recess to enable some of the attorneys an opportunity to participate in the Seminole County trial. That will resume, we're now told, within about 25 minutes or so. perhaps a half an hour.

Our correspondent Bill Delaney is standing by. Bill, what are the major differences between these two trials -- the Seminole County absentee ballot trial and the Martin County trial?

BILL DELANEY, CNN CORRESPONDENT: Well, essentially the same thing went on. Republican operatives completed ballot applications -- absentee ballot applications in both Seminole County and Martin County. The difference Wolf, I guess would be that about 2,000 applications were completed in Seminole County. Only a few hundred in Martin County. But it's the same basic principle, the same basic concern. Did the Democrats get the same -- get as much of an opportunity to get their absentee ballots fixed and completed so that their party could vote or not.

BLITZER: And Judge Terry Lewis will be overseeing the trail involving the Martin County absentee ballot applications. He's well- known to viewers who've been closely monitoring this past month's dramatic developments involving the Florida vote. Theoretically, it's possible, isn't it, Bill, that whatever decision he makes could be different than the decision that Judge Nikki Clark may make in the Seminole County case?

DELANEY: Yes, let's make this just a little more complicated, Wolf. Indeed, we've been discussing that all day and you're absolutely right. These are two different circuit court judges and they could come up with two different opinions. Now, the facts, as I said, of the two cases are very similar, but there's no reason why these two judges couldn't come up with different rulings. Now. the likelihood, of course, is no matter what the rulings are in either of these circuit court cases, that they'll be appealed. Guess where it ends up? The Florida Supreme Court.

BLITZER: Is Judge Terry Lewis indicated at all how long he's ready to go tonight with this Martin County trial?

DELANEY: Well, we've been told all along that they will go deep into the night. Now, we were a bit surprised just in the past ten minutes or so ago when the plaintiffs -- when the defendants, rather, rested before Judge Nikki Clark. We expected the Seminole County case to go pretty deep into the night, at least a few more hours, and then the plaintiffs rested and of course as we heard, they'll come back at 1:00 tomorrow afternoon for closing arguments.

The Martin County, well, we would expect, again, what we've been told all long that they're going to try to finish as much of this as they can and there was every expectation in speculation earlier that if the Seminole County went late into the night, the Martin County case would pick up and even be heard in the middle of the night. So, the short version of the answer is we think it could easily go toward midnight and even beyond.

BLITZER: Extraordinary times, extraordinary proceedings. Bill Delaney, thanks for joining us. I want to bring in Greta Van Susteren, our legal analyst. Greta, there was a lot of criticism going into today's trial of Judge Nikki Clark by Republicans. In fact, the defendants even sought to get her dismissed because she had supposedly been bypassed by Governor Jeb Bush for a promotion in the court system in Florida. How do you think she handled herself today during these 10 or 11 hours of arguments?

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: You know, I'd say it's rather routine. She sat there. She listened to the evidence and she ruled on all the legal issues that came before her. You know, I think there's one other sort of important little fact.

We talk about her and the fact that she was passed over by Governor Jeb Bush, but one other interesting little fact is that her younger sister was President George Bush's director of media relations in the White House -- the first African-American woman to hold that position.

So, you know, it cuts both ways, you know, in terms of,you know, when you look at someone and see what kind of biases the might have, you know, we should look at the whole picture. But the fact is that there's almost no one on any particular case that is 100 percent completely disassociated with any case that comes before him or her.

I thought that when the Republicans did ask her to disqualify herself, one of the things we always say as lawyers, if you're going to you shoot at the king, you better kill the king. They shot at the king. They wanted her to remove herself.

They were sending a signal to her that they didn't like her, They thought that she was unfair. That she was biased. They lost. It went to the court of appeals. They lost again. And so now they're back before her but her conduct today in the court was rather routine. She listened to the evidence and she ran courtroom rather smoothly and now we'll really be able to judge her after she makes her findings of fact and applies the law and makes a rulings.

BLITZER: And Greta, on top of all of that, the defendants in this particular case, the Republicans and the supervisors in Seminole County, they asked for a jury trial and she denied them that opportunity, saying there was no requirement in the law for that kind of jury trial. So, a lot going against her, but she, as you say, she held her own.

VAN SUSTEREN: Look, being a judge is not a popularity contest and no matter what you do, usually half the people hate you and half the people love you. You know, it's a very difficult job. You're called upon to make rather difficult decisions and you can't make everybody happy all the time. What you do have to do is listen to the facts, apply the law, and use your best wisdom in reaching a conclusion that meets both the facts and the law.

BLITZER: Gary Tuchman, our correspondent who was in the courtroom all day, listening to these activities. Now some of these lawyers, Gary, are heading towards another trial involving absentee ballot applications in Martin County. They must be exhausted. I'm sure you're exhausted just sitting there and you really weren't even doing all that much.

GARY TUCHMAN, CNN CORRESPONDENT: Well, that's right. I'm not talking, Wolf. I'm just sitting there watching, so I'm OK. But I can tell you I think it's fair to say that many of these lawyers are not at the top of their game simply because they're exhausted. The Martin County trial began this morning at 7:00 Eastern time. It's not been 12 1/2 hours since they started arguing and this could go late into the night.

I just got finished talking to Judge Nikki Ann Clark. We had a little conversation. I asked her how she felt and she said, I'm so tired I can't think straight and she's not doing the Martin County case like some of the other attorneys are doing. I asked her if she had a day testimony this long, she says she has in the past, but this is intense.

This is such an important situation, such an important story for us journalists covering it. So it's mentally and physically exhausting in a lot of ways because people are getting up, they're stretching their legs. They're sitting down again. It's very hard experience for many of these people. So I think it's fair to say what they do lack, though, in alertness, these attorneys, they're making up for in perseverance. It's really important -- Wolf.

BLITZER: And have any of the lawyers, especially lawyers representing Governor Bush, have they been complaining to you that they now have go from one trial to another trial that this is basically unfair to them?

TUCHMAN: Well, I think if they were volunteers they might complain. Let me put it another way, some of them aren't getting paid, actually, but I think if it wasn't such an important cause maybe they wouldn't complain. They know they're doing something that's not only important, but is historical also. So I think in that sense everyone's kind of quote, unquote into it. But certainly they're very tired and they know there's a lot of work but they also know and they also hope, the Bush attorneys, that it will soon be over.

BLITZER: Greta Van Susteren, in your experience watching trials and participating in trials over the years, have you ever seen a situation like this where they're back-to-back trials involving two separate counties with a similar cast of characters involving the lawyers?

VAN SUSTEREN: You know, Wolf, not back-to-back, but I will tell you sort of as a follow what Gary just said, you know, trials really are battles and they're an awful lot of work. It's an endurance test. They can last weeks or months. They are around the clock. I'm not surprised that the participants are exhausted but I'm also not surprised that they're ready to get up and try another case this evening because that's what lawyers do.

This is an endurance contest. It's survival of the fittest. It's almost easier for the lawyers than it is for the judge who has sit there all day and listen to it. At least the lawyers are actively participating. They're in war. They're in combat.

So, it's actually easier, but I can tell you that it's absolutely exhausting because even when the trial is over, they don't go home and go to sleep. Most the time they go back to their hotel rooms or back to their offices and they hit computers, write briefs, interview witnesses go through depositions. They're up at 3 or 4:00 in the morning getting ready for tomorrow.

Some of the lawyers today are participating in the Florida Supreme Court tomorrow. So, they're probably not going to get any sleep tonight. They probably worked on the brief all last night that had be filed today at noon in the Florida Supreme Court.

So, what we see on TV is just one small part of what these lawyers are doing and they've got -- they're running on adrenaline. They're running on what very little energy they have, but they're in the most exciting case of their lives and they're probably all going to collapse when it's over.

BLITZER: If David Cardwell -- I hope you're still there in Tallahassee because I know you've been watching all of this all day long and I assume you're going to stay with us throughout the evening as this second trial resumes. Have you in your experience in Florida ever seen anything like this before?

CARDWELL: Well, election cases very often are on a very short timeframe. I've been involved in some including before the Florida Supreme Court that were done in just a day or two but nothing like this with the stakes so high.

I will tell you that in watching this, you know, kind of slam- bang, ping-pong type of, you know, legal actions in different courts, different cases going on at the same time, what it does remind me of it's almost like a capital punishment case. It's coming down to the last few hours and you've got attorneys running from court to court and you know, things are being done on an expedited basis and it sort of has that same feel of something that's just going at, you know, warp speed and as Greta said, they've got so much adrenaline pumping in them they won't collapse until this thing's is over.

BLITZER: All right, David, stand by. Gerald Richman, who's the plaintiff's attorney -- we've been watching him all day in Tallahassee in this circuit courtroom before Judge Nikki Clark, he's joining us now live from Tallahassee. Mr. Richman, thanks for joining us.

I want to get right to the bottom line. Do you think you achieved that burden of proof going into your closing arguments tomorrow, that you proved, in fact, that those absentee ballots that went for Governor Bush should be thrown out?

RICHMAN: We've absolutely proven that wrongdoing occurred. We've proven -- basically it's been stipulated to. The major facts in this case have been stipulated to and admitted, that there was wrongdoing. We've proven that there was intentional wrongdoing. And we've further proven that there was a cover-up. By the evidence that we got in today, they've shown that Sandra Goard, the election supervisor, was not candid, she knew who the Republican operative was, she knew who the people were that were coming into her office.

If you put it all together, what you've got is a complete violation of public trust that goes to the very integrity of the election process. And yes, we believe we've proven it.

We think that the issue that's going to most concern the judge is going to be the question of the appropriateness of the remedy, and we presented evidence on that as well.

BLITZER: But that's a key issue: What do you do with those thousands of absentee ballots that were commingled with some of the ones that you're raising? Do you just throw those ballots out and deny those individuals who did everything the right way in voting by absentee ballot, do you deny them the right to participate in this presidential election?

RICHMAN: The fact of the matter is, if there's any denial, it's as a result of the Republican Party and the Republican supervisor of elections and the misuse of office.

There is precedent for doing that. You've got cases in which, if you can't determine with mathematical certainly, you can't go ahead and trace the ballots, but the pool is tainted by clearly illegal action and what in this case is intentional misconduct, that's the only alternative remedy. And there's absolutely precedent for that.

Remember, absentee ballot voting is a privilege under Florida law, it's not an absolute right, and it's a privilege that in this case has been abused by the Republican Party.

The basic issue is can you, under Florida law, or in America, treat people differently, can you treat the Republican Party one way and the Democratic Party and others in another way? And the answer's an unequivocal no. In Florida that's a felony.

BLITZER: All right.

RICHMAN: So what we've shown is intentional misconduct that rises to the level of felonious conduct...

BLITZER: All right, Mr. Richman...

RICHMAN: ... and how does the court deal with it.

BLITZER: Mr. Richman, unfortunately, we are all out of time. I know you have to get ready for your closing arguments tomorrow. We'll let you go right now. Thank you very much for joining us.

We're standing by for our continuing coverage of the Martin County trial involving those absentee ballot applications. Once that begins, I'll be back here, but for now, thanks very much for joining us. "CROSSFIRE" is next.

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