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Special Event

Plaintiff Attorney Jerry Richman Delivers Closing Arguments in Seminole County Absentee Ballot Application Trial

Aired December 7, 2000 - 1:18 p.m. ET

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

NATALIE ALLEN, CNN ANCHOR: The vice president's lawyers say the arguments we watched this morning constitute their final legal appeal, but a couple of other potentially critical processes have yet to play out. One is this absentee-ballot challenge. The other is a decision by Florida lawmakers to call a special session tomorrow to choose electors.

CNN's Bill Hemmer joins us now, with more on all of this -- Bill.

BILL HEMMER CNN ANCHOR: Hey, Natalie, good afternoon, from Tallahassee.

Still a lot to talk about on the Florida plate, here. And again, it's only 1:00 local time. We've already a very busy day today, and, again, we do expect closing arguments to begin at any moment now in that Seminole county absentee ballot application trial.

But want to go back now, if we can, to the closing -- or rather, the oral arguments we heard -- on hour and eight minutes in length -- in the state Supreme Court building in Tallahassee. David Cardwell and I were watching here and taking a number of notes, throughout that entire hearing, on both sides.

One of the things you said, off the very top, was when Chief Wells jumped in and started talking about that federal issue -- we talked about it before -- but you said at the time, David Boies, right now, is thinking on feet, he was not expecting this.

DAVID CARDWELL, CNN ELECTION LAW ANALYST: That's right, in fact, David Boies had barely even said good morning, and already Chief Justice Wells was hitting him with a question that I don't think they were really anticipating that would come, particularly that early.

He was questioning about whether the Florida Supreme Court even had the jurisdiction to hear this case. And it's obvious that that U.S. Supreme Court decision earlier this week is something that's bothering the justices, that they're trying to figure what they can and cannot do now. So they were really peppering Boies with questions -- it wasn't on the merits of their case, it wasn't on the certification from the district court of appeals -- so that's when I said I think Boies is thinking on feet right now, because he had to react quickly to a question he may not have been anticipating.

HEMMER: And then Barry Richard got his turn -- that was the first question out on the blocks again by the chief justices.

CARDWELL: That's right, he got the same question.

HEMMER: We just heard Dexter Douglass, Ron Klain, and David Boies, the lead attorneys for Al Gore in this situation here, talk about recounting ballots, and they said they could do in about four to five days. Last night in the hotel, David Boies told me he could do it in two to four days. The day debate, though, is that fair game right now, or is this something we have to wait to see what comes out of here?

CARDWELL: Well, we have to wait to see what the Supreme Court says. They could say to count all 14,700 of the so-called disputed ballots, or they could say just the 9,000 Miami-Dade, or just the ballots out of Palm Beach county. We don't know what they may say, or if they may say none.

The other thing is who's going to do the counting? Is it going to be in counting teams, like we saw in Palm Beach county, and if that's the case, is it going to be done by the Leon county circuit court clerk? And that office is going to have to be ready to get counting teams assembled.

HEMMER: Let's continue our discussion about the ballot, here, because that is truly what Al Gore needs right now to continue the case, not only in court legally, but in the court of public opinion. So there's a ballot in front of a judge,and they start examining it -- I believe this case and this time continues to tick away against him.

CARDWELL: Well, one thing that could happen in the Supreme Court -- I mean, we look at all the various scenarios, from completely overturning the trial court to affirming the trial court -- but something short of actually counting ballots is that they count send it back to Judge Sauls and say you applied the wrong standard. Remember, there's that debut over whether it's the -- that it may affect the outcome of election or cast doubt on the outcome of the election, versus where the Bush campaign has said you have to show that but-for what you're complaining about, the abuse of discretion test.

The court may say we think the legislature changed the statute, changed the law in 1999, and so we're going to send back because Judge Sauls applied older cases before that statutory change.

HEMMER: But even if that's the case, you still have to get a ballot out there in a courtroom, and before you do that, you have to determine what is a standard -- in other words, what is a vote, what counts and what doesn't?

CARDWELL: That's right, and if they do send back to Judge Sauls, they may let him be the one to figure out that standard, Or, again, they could, in their opinion, give some direction to the court or, even -- not only, you know, some indication of what they would, but actually ordering them to apply a certain standard.

HEMMER: The burden of proof here is quite high for the vice president in this appeals process. Did they meet it today?

CARDWELL: Well, it's hard to tell in oral argument. I think what you have do is go and to look at their brief, because that's really what the court's going to rely on. But oral argument is often used by an appellate court as way of sort of fleshing out some issues. Some the justices may actually be asking questions to, sort of, get an answer that they can put in their own opinion that they may be writing. So it's hard to tell from oral argument. But in their brief, if you accept their reading -- interpretation of the standard to be applied in determining whether in a contest you should overturn the election or go and count the ballots -- then they've made out their case. The Bush campaign, in their brief, basically told the court you don't have to hear this case, it's already been decided, if you just say no. it's over, then it really is over.

HEMMER: Care to make a prediction?

CARDWELL: My prediction is Supreme Court, 5:00, Friday afternoon, and I think they'll affirm Judge Sauls.

HEMMER: Really?

CARDWELL: Yes -- appeal denied.

HEMMER: What happens to the U.S. Supreme court decision that came back down on...

CARDWELL: I wouldn't be surprised if they don't issue it at the exact same time, do them both together.

HEMMER: 5:00 tomorrow? You're on the record, officially.

CARDWELL: And then they'll take a weekend off.

HEMMER: Quickly -- I got you there, I think A lot of people would -- let's get back to issue of topics discussed in front of the justices. It's not uncommon to have a wide range of topics, and I think that's what, again, we had this morning. But I think, also, to that same point, though, when you have that wide range, it's a bit out difficult to get, with precision, what the justices are going for. Did you feel the same way or not?

CARDWELL: Well, you know, there are times when, again, you're not quite sure exactly what they're getting to with their questions.

HEMMER: Indeed.

CARDWELL: I thought, though, clearly Chief Justice Wells, with his questions, he gave us a pretty precise idea of what's bothering him, and it's that federal question. Some of the others -- there were questions raised, for example, about that judge never even actually looked at ballots -- they were introduced in the evidence, but he didn't look at them -- and their question was: How can you consider the evidence if you don't go and look at it?

And then, again, there was some questions about, you know, do you have to bring in all 67 counties if you're going to do an election contest, an issue which I thought, in Judge Sauls' decision, was sort of a side issue, something that really didn't go to the heart of the case.

HEMMER: Although it was in his ruling.

CARDWELL: It was in his ruling, and it's something that we got raised here. The court, obviously, was thinking about maybe they need to give some guidance before the next statewide contest comes around, so at least, we'll have some law to go by next time.

HEMMER: All right, David, stand by here. David Cardwell, live, in Tallahassee.

I want to let our viewers know that Judge Nikki Clark is back on the bench here, this in the Seminole county case. We'll go back inside again.

This is the issue dealing with absentee ballot applications that Democrats allege were improperly handled by Republicans. They're asking that all ballots, or a portion of them, be tossed out. Republicans say this is a hyper-technicality, and the punishment does not fit the crime.

Again, Judge Clark, back on the bench, this -- after this trial got under way yesterday here in circuit court, Leon count.

JUDGE NIKKI CLARK, LEON COUNTY CIRCUIT COURT: Before we start with closing argument, let me address one issue. I've received a motion to intervene, from Time publishing company.

Who's here on behalf of that case?

All right.

I'm not going to -- OK.

Then on the matter of closing, and the evidence is closed, we're ready to wrap the case up, I had suggested yesterday one hour for plaintiff's closing, and a combination of 1 1/2 hours for defense closing.

Is there anything we need to address before we get right to closing?

UNIDENTIFIED MALE: Your honor, the only thing I'd request, because of rebuttal, with five lawyers arguing against me -- they'd be a little longer -- I'd like, say, an extra 10 minutes.

CLARK: Well, I'm not going to stop you right at 60 minutes. I mean, I'll certainly be flexible

UNIDENTIFIED MALE: : That's fine. I'm just going to try to use 40 minutes of time and use 20 for rebuttal.

CLARK: Of course, I'm going to accommodate you on that. Then, plaintiff may proceed -- Mr. Richman?

GERALD RICHMAN, ATTORNEY FOR PLAINTIFF: May it please the court, your honor, the issue is whether the differential or preferential treatment by the supervisor of elections, in this case, was sufficient to compromise the validity of the election process. That's how we framed it. Your honor framed it slightly differently. But I want to address the two -- certainly.

CLARK: there are, certainly, allegations -- very strident allegations -- that there was differential treatment. As I reviewed the evidence last night -- in fact, let me rephrase: What I want you to do is show me where there was differential treatment. It seems to me what happen was that the supervisor of elections allowed the Republicans to come in and alter the ballot request forms.

RICHMAN: Right.

CLARK: The testimony seemed to indicate that the supervisor of elections didn't offer that to the Democrats, but also it also seems that the Democrats didn't ask for that. So talk to me about that issue, and show me where, in the record, the facts would indicate one way or another.

RICHMAN: Absolutely, the Democrats did not know it was going on -- no Democrats, no independents, had any idea that this was happening until October 30th, when it came out publicly, and at the time it happened, on October 30th, it was, already, essentially, too late to doing anything...

CLARK: And in fact, let me ask you another question on that point. It seems that the cards sent out by the Republicans did not contain a spot for that information.

RICHMAN: It did not -- it did.

CLARK: It seems that the cards sent out by the Democrats did contain that information. Now talk to me about that a little bit.

RICHMAN: Absolutely.

CLARK: Not the information, but the line where to put the information.

RICHMAN: The Republican card contained a place where it was to have been preprinted. And they preprinted, apparently, on some. If I remember the testimony from the excerpts, they said they came in about 30/70. So about 30 percent,apparently, 70 didn't. And what happened is is they sent them out two in an envelope to households, so if weren't both registered Republicans, they'd get there and hope that the other person would also fill one out. But they didn't have, or didn't put on, the number on there. The Democrats, surprisingly, in this case...

CLARK: They didn't even put on a space for the registration number to be filled in -- is that correct? RICHMAN: That's correct, because they were assuming that it was going to be on the preprinted form on the front. So they were trying to make it easy for the voter to go ahead and just put this information on the back. The Democrats, surprisingly, did it the right way.

As far as their mass mailing goes, what that doesn't address all of the Democrats who may have not have gotten the mass mailing, it doesn't address independents, and it doesn't address other people, and that's who's disparately treated. And it's not just disparate treatment with regard to the mailing issue, it's disparate treatment in terms of what you do afterwards, and that what was done was a violation of the law.

The important thing is they never called Mr. Poe -- and we didn't call Mr. Poe. But the evidence is that Mr. Poe found out about it on October 30th, and he just said this is illegal. And Sandra Goard goes ahead and she keeps right on doing it knowing -- having to know, with her knowledge of the law -- that it's illegal. Now, if you take that in point of time, let's assume for a moment that the Democratic Party went ahead and said, we'd like to do it too. Two wrongs don't make a right. When you've disparate treatment here, you can't limit disparate treatment just to the party, or to parties, disparate treatment is the whole universe of voters that are there. That's what you have here. Not everybody is affiliated with a particular party.

If you went ahead and took the public office of the supervisor of elections and you turned it into a base for just the two major political parties, what happens to all the other parties? If you turn it into a base for everybody -- those are not the facts we're dealing with here.

You have to go by the facts, and what the facts are is that they took a public office, and that public office was then turned into an agent or an arm of one particular political party. And the reason doesn't matter because the law says you cannot do that. And they take the agent of that political party, they sit him in there; and this is reason, by the way, your honor, why we said we've got a stipulation in a lot of the facts -- probably enough to give a summary judgment in our favor, I think, we're stipulated to except with regard to the issue of the remedy.

Because of the Boardman case and the Baldwin (ph) case and others, we needed more to get into the issue of the sanctity and integrity of the election process. And the way we go about doing that is by going ahead and showing the knowledge of the statute. The knowledge that Ms. Goard had.

Now, she knew enough to know that she shouldn't have her own people going ahead and doing that. But what does she do? She let's the arm of one party use a room in their office, and then comes the cover-up. What's the cover-up? She doesn't tell anybody publicly that it's done. She doesn't tell the Democratic Party, she doesn't tell the world that it's being done until a reporter, Mr. Alterio, breaks the story on radio on (OFF-MIKE) October 30. What happens as a practical matter? Well, she says, first the person was there one or two days. Then on deposition I get her to say, could it have been as long or as nine or 10 days -- she says "possibly."

Then we deposed Mr. Leach. Mr. Leach says at least 15 days. And then we go ahead and we get deposed their employees and one of their employees says, three weeks. Mr. Masciani says his estimate was that Mr. Leach was actually there for three weeks. Then Sandra Leach comes in -- I'm sorry, Ms. Goard comes in and she says that, with regard to the people that were there, first of all, I don't know who called me.

Well, I would refer your honor to the excerpt of the deposition that everyone agreed to be put in for Mr. Stelling (ph); now Mr. Stelling is vice chair of the Republican Party of Florida and...

CLARK: (OFF-MIKE) deposition, please. Go on.

RICHMAN: ... and the excerpt that I'm reading from is very short. Page 25, lines 11-24 -- because what was bothering us is, what's the -- who is this person? And did she have knowledge of who the person was? It didn't make sense when she said, I just don't know who the person is. I don't remember who this unidentified person is, but I go ahead and I do it.

Mr. Stelling testifies, question: "When you say that Mrs. Goard told you that Mr. Schneck (ph) was the one who called her is that -- did she mention his name, that he was the one who called her?"

The answer: "Actually, I know when that was now."

Question: "When was it?"

Answer: "That was in here when Harry" -- that's referring to Harry Jacobs, the plaintiff -- "was questioning her here at the canvassing board meeting with Jacobs.

Question: "What happened at that time?"

Answer: "She said that she did not call anybody."

Question: "Did she say she got a call from Mr. Schneck?"

Answer: "Yes, she did because she wanted to know how she found out and that's what she answered."

Question: "And she specifically identified Mr. Schneck?"

Answer: "Yes, she did."

Now, do we have a sudden loss of memory when her deposition is taken just a couple of weeks later?

Then, a couple of other excerpts relating directly to Ms. Goard. Goard, in volume II of her deposition at lines -- at page 19, lines eight through 17. Question: "And you don't know how many days the other person came in, correct?"

Answer: "Correct."

Question: "And you told us earlier you don't recall the name of the other person, and just have given us a very limited description, correct?"

Answer: "Yes."

Question: "Do you know whether that other person worked for the Republican Party?

Answer: "No I don't."

But then you have the testimony -- reading from the excerpt of Mr. Leach; and what does Mr. Leach say on that exact same issue at page 49, lines 17 through 23.

Question: "Did you ever introduce to her or identify to her either of the two other people that you mentioned, the other regional directors who were here brief periods of time according to your testimony?"

Answer: "She knows both Waldi (ph) and Carlos (ph), from what I understand, personally."

Question: "So she would know both of these people who came into the back to assist you?"

Answer: "That's correct."

Question: "She would have been aware of the fact that they were here to assist you at the time they were here?"

Answer: "That's correct."

Question: "Did you observe her speaking with either of them when they came in?"

Answer: "Not when they walked in the door."

Question: "But at any time?

Answer: "If she would come into the back, she would initial pleasantries -- hello, how are you."

Question: "So she clearly knew who they were?"

Answer: "Clearly."

And at page 49 -- and then I asked also -- question: "And Did Sandra Goard, by the way, in regard to the two gentlemen you mentioned, I believe Carlos and -- what is it?"

Answer: "Waldi."

Question: "Waldi -- referred to them by name when they were here?"

Answer: "From what I remember, yes."

Now, following up on that -- so you've got, basically, the cover- up. She doesn't want to the tell us who the people are, she doesn't want to tell us who from the party called her; she's got to admit that somebody from the party did it because she has to cover herself as to why she went ahead and did it at all.

Now go to the next part: the party -- now we know that it's Mr. Schneck who called and we know that Mr. Schneck sends in Mr. Leach. And what does Mr. Leach do? From Mr. Leach's deposition -- and this is so instructive in terms of what the party is doing in controlling this process and taking over, in effect, the public office that goes directly to the integrity of the process. At page 20 at line -- beginning, basically, at about line -- I don't know have the actual numbers in here, but page 20, line four through page 21 line one is the excerpt.

Question -- and this is in the context of where he is talking to Mr. Schneck about coming down to do the work.

Question: "From your -- have you spoken to him before in terms of knowing how experienced he is" -- referring to Mr. Schneck -- "with regard to the law involving elections?

Answer: "I have full faith and confidence in Todd's (ph) Schneck's abilities regarding the law in elections. He's been in politics for a long time."

Question: "So you just did whatever it is he told to you do, in effect?"

Answer: "I'm a military man. I follow orders."

The orders in this case were to violate the law.

The court asked, and I'm going to get to a few more excerpts shortly -- but the court asked, of the two distinct issues the court stated it was going to be dealing with, the first is whether the addition, and I'll give you the language from the stipulation is, "whether the addition of completion of voter registration ID numbers is sufficient to invalidate the absentee ballots?"

We'll address that in the remedy section, but the answer is an unequivocal yes. Because, as we've pointed out to your honor, the legislature changed in 1998. The problem with absentee ballots -- there are so many cases about fraud relating to absentee ballots it's a great vehicle to, basically, destroy the integrity of the process. So the legislature, responding in 1998, to what happened in '97 -- and, by the way, in '97 your honor will recall, certainly there were innocent voters who voted in the absentee ballot pool, but because of the commingling they were all thrown out because you couldn't trace them.

So there were innocent voters, quote, "disenfranchised" because they voted by absentee ballot, which is a privilege; there was no other choice that the court had. And we suggest to your honor, other than the possibility of more limited, equitable relief that I'll address at the end of my argument, there really is no other choice in this case because of what happened here, with regard to the entire pool of absentee ballots being tainted.

The second question that your honor asked, I believe we've already partially answered, is "whether or not the Democratic Party and the Republican Party were treated differently by the supervisor of elections office as to the extent that the validity of the election process was compromised." And there I just have to put a little more meat on the bones.

It isn't just a matter of changing the number on the card. It is a matter in this process that you have -- And this is where the photographs, I think, come in handy -- I know that your honor said that she saw the photographs, but I really believe a little short explanation of what they show, counsel will stipulated that I can do this, is helpful.

This just shows the basic building. The second one, though, is important because it shows what happens when you come in. It shows that there a counter here, and this is a non-public area. The public is out here. There is a restroom for the public here. And the public doesn't get back there without being supervised, Democrats, Republicans, or independents.

The next picture shows the hallway, the gate, with regard to the public, if it's going to come in here, and these are all of the people working around here.

The next thing we see, this is from the back of the area looking at front, the public area being here, once the person comes in, there is a hallway, over here to the left side of that picture. And that's Exhibit 4.

Exhibit 5 is important because it shows what happens when you come in. You go down here, and your honor will see this door down here. That's what leads to the back area, and the rooms that are there, where the absentee ballot request forms are kept and other things, in what has been stipulated to, unlocked, filing cabinets in an unlocked room.

And here's the room. So the person, Mr. Leach, every day that he comes in, walks down this hallway, these are the restrooms here, the ladies' and the men's restroom right over here, and there is the room. Wants to come out and use the restroom, go over here, and he goes into that room, and nobody is posted in that room. There's not even testimony that the door is kept closed.

The integrity of the election process, you have an outsider from one party who could go into any place that they wanted to within the elections supervisor's office. And there is the room. There it was it at the time that we took the picture. But you can see all of these things are flagged, these are the absentee ballot request forms that are in there, and these are the filing cabinets that are unlocked in that room. And nobody sits in there and works full-time in that room, according to the testimony.

Then, this is just another picture of the same room to show all of the data, all of the important things that are in there in this unlocked room with an unsupervised, Republican-paid operative.

CLARK: Let me ask you a question.

RICHMAN: Yes, your honor.

CLARK: Is it your position that the integrity of the election was compromised because of access to the inner-office, or because of the addition of the voter registration ID numbers?

RICHMAN: Both of it, all of it. The whole process of what was done here, we don't know what was done, we don't know what was thrown away. We will never know because of the lack of supervision and allowing the Republican operative in there.

CLARK: If you don't what was done, are you asking the court to presume that something horrible was done?

RICHMAN: No, what I am asking the court to presume is that within the basic concept of disparate treatment. We know, we don't have to presume what was done with regard to the absentee ballot request forms themselves. But we know in the -- the entire framework of what happened here that they had the opportunity. For example, the shoe box. We don't know what's in the shoe box. What was in it? There was no, nothing was locked in.

That is one of the points that I think I made in opening and it is absolutely rebutted, your honor.

When the absentee ballot request forms came into this office, the testimony of Sandra Goard and her employees, is they were put aside. They were rejected, and she used the word "rejected" over and over again in her testimony.

And at that point, if you can follow what she said publicly in her Internet Web site, they were void. Nobody's supposed to change them. They're public records, they're not supposed to be altered at that point.

What happens? They are not logged in, nobody knows where they are. But some of them, the Republican postcards are the ones that get changed. Not one shred of testimony that any others than the Republican postcards were changed. Again, disparate treatment going right to the integrity of the process.

And then, this is the hallway from that room, you follow down, you make the, basically, come from here and make a left. And this is the room back there that were given to Mr. Leach and the two other Republican operatives, which stipulated for a brief time. We have no way of knowing how long. They were never logged in. Nobody supervised them, nobody followed them. That is the room.

This is the room that Mr. Leach was in from anywhere from 15-21 days. There is a door in the back. You can walk in and out of the door, take things in and out. It has been stipulated nobody knows, no testimony as to what he had in his briefcase, what he brought in, what he took out, other than he had a laptop.

CLARK: Again, are you asking me to presume that things happen that are not in evidence here?

RICHMAN: No...

CLARK: Simply because they had that apparently unfettered access.

RICHMAN: No, I am not asking your honor to presume anything. I am asking your honor to presume one thing, and that is that this goes to the integrity of the process to allow a person from one party, unsupervised to be in there. That is part of the overall picture of what happened here. You can't just go ahead and look at the voter ID numbers.

CLARK: Had she allowed people from various parties to go into that inner-office?

RICHMAN: Absolutely no testimony...

CLARK: Let me ask a question. Had she allowed various people from various parties to go into that inner-office unfettered and unsupervised, would that access alone be enough to compromise the entire election?

RICHMAN: I think that that alone may not be, but it could be. I mean, I think that you need to put a little bit meat on the bones.

CLARK: My question.

RICHMAN: The question is, if she let people from all other parties come in?

CLARK: Right. And the question boils down to, is it the unfettered access, whether it is by the Republicans, the Democrats, whoever else, is it the unfettered access...

RICHMAN: Unfettered access.

CLARK: ... that renders the process so compromised that I can't give an effect.

RICHMAN: Unfettered access to one party, yes.

CLARK: OK.

RICHMAN: If everybody had access, I think what you would probably have to say is: You have got a really sloppy, negligence supervisor and you would probably have to know more. But she says here that anybody who comes in here has to be escorted.

CLARK: She was not accused of just being sloppy and negligent. And that is not the issue before me.

RICHMAN: That is exactly the point. That is why I said this is intentional wrongdoing. She intentionally did this. She even testified, as a recall, that normally anybody coming in would be supervised. But these people were not, and they are only representatives of one party.

CLARK: And let me ask you another question. If this is a violation -- if the unfettered access is a violation of her policy, does that also render it a violation of the law?

RICHMAN: I can't cite a specific statute, your honor, I haven't looked into that. But I would say this, I would say, yes, with regard to the law involving disparate treatment.

CLARK: That is not quite my question, though, and I understand where you are going, but you are taking my question a little bit too far. I guess that I am trying to break it down a little bit.

RICHMAN: Yes.

CLARK: And trying to find out from you your position on the very narrow issue.

RICHMAN: Could you reframe the issue again?

CLARK: Yes. Is -- even assuming for a moment that she violated a long-standing, perhaps even written policy, to allow unfettered access into the inner-office, does the violation of her policy constitute a violation of the law?

RICHMAN: In and of itself, I would say no.

CLARK: OK.

RICHMAN: I don't think that we can go that far.

The only other thing that the pictures show, your honor, very briefly is the room. The -- aside from the door, you can see the area where they were, and this is combined with the exhibit, the hand- written exhibit of Sandra Goard and it basically shows with this...

CLARK: You might want to put that a little bit closer to me.

RICHMAN: Sure.

The little X that is there, in relation to the room is where she says that Mr. Leach was sitting, in relation to this room, and what you can see very clearly...

CLARK: And where would this X be on that photograph that you got there?

RICHMAN: As near as I can tell from here, the tables might be somewhere as right in this area.

CLARK: OK.

RICHMAN: In other words, on that left side. The door would be there, and he would have been sitting right in this area. And Mr. Masciani, I believe, he said was sitting somewhere in the desk right in here that you can't see it as you come in, on the side. But as testified to by Mr. Masciani, he was not there all of the time, and the person was not supervised.

And this, this is important because it shows you the computer terminals, the next exhibit, which is number 11, the testimony is that you had to enter a password to get in there, but there is also testimony from one of the employees.

CLARK: A password to get into that section or on to the computers?

RICHMAN: To get on the computers. To log on to the computer, you needed a password. Nobody knows whether or not he had a password. But what we do know is he was there in the room while a training session took place, and the computers were on and were left on.

CLARK: But if nobody knows, and there has been no testimony to that fact.

RICHMAN: What?

CLARK: Again, I can't presume that he had access to the password; is that correct?

RICHMAN: That is correct. But what I am -- what I am saying is unrefuted in this record is that the computers were left on. They were on in the room, and nobody knows what happened from that point. And the Democrat were not there when that was on, no one was.

And this just basically shows that the room that -- the last photograph shows the open door to the back -- to the back of the room, which is photograph number 14.

One case citation we rely on, Bolden versus Potter (ph) for this language: "The burden of establishing with certainty that a specific number of ballots were tainted, so as to effect the outcome of the election would be too grave." This is the from the Florida Supreme Court, 1984. "Such a restrictive holding would encourage fraud and corruption in the election process."

And we've heard much about the will of the electorate, and what the Supreme Court in this case says is, "Although the will of the electorate must be protected, so must the sanctity of the ballot and the integrity of the election."

Very briefly, on the disparate treatment issue, your honor heard the testimony of Steve Haul (ph), which is rebutted just on two issues. A Democrat comes in and he is told the that the information must be there, it must be correct, or it's not going to be accepted or processed. He's not told, you can have somebody from your party come in, or somebody come in and alter it, and we will do it. And this is on August 18th.

He's also told, he wanted to get some additional information and the Republican elected supervisor was, in his word, "less than helpful."

But then we get to Mr. Ray (ph). Mr. Ray was called really for one purpose: disparate treatment. Mr. Ray has a bunch of, I think that he had about 900 signatures or whatever that he tried to get on the petition to save the $3700 filing fee. He needed to get 2,000, he never gets that far, he comes in, he brings them to the -- to Sandra Goard, and she explains to him that there are problems, there are things that are wrong. He testified that some of them did not have the voter identification number. He wants to take it back out to get them corrected.

And what does Sandra Goard do to this person, who she knows is running as a Democrat? She says, you can't take them out. They're public property, public records. Absolute...

CLARK: You presented that witness to prove that there was disparate treatment between how Republicans are being treated and how Democrats are being treated?

RICHMAN: Absolutely.

CLARK: Well, let me ask the question. In considering whether or not there was disparate treatment between people, don't I really have to consider the almost identical activity, rather than different kinds of activity. I have to look at the exact same activity, or as close to it as possible, before I can determine whether or not there is disparate treatment because it's totally different activity.

RICHMAN: Your honor, I understand what your honor is saying. But it shows what the office was doing, how they are treating Democrats. Admittedly, it's not voter ID number, but it is, because he said -- in fact, I have got to rethink what I just said. He does say that some of those petitions had voter ID, identification numbers, missing, and he tries to take it out so he can go back and correct it. And she says, no. So that clearly is disparate treatment, and that part of it is right on point.

CLARK: Those were on his petitions to be qualified without having to pay a filing fee?

RICHMAN: That's correct.

CLARK: OK.

RICHMAN: And certainly since the voter ID number is an issue that is about as close as we are going to get. That means, as opposed to the Democratic Party coming in. But it doesn't have to be the party. Just like Mr. Jacobs, the plaintiff in this case, is not the party. He is a voter. Yes, he is a Democrat. But that's not the issue in this case.

The issue is disparate treatment, and that brings us to our next witness, which is Mr. Livingston. Why did we call Mr. Livingston? Because Mr. Livingston is a lifelong Republican. Former -- And by the way, we didn't call him, they subpoenaed him because he filed the protest. They asked him the questions. And what he basically said is, I was appalled. I was the clerk of the courts in a place -- I don't think that he said Richmond, Virginia, but in Virginia, an elected Republican official, and he goes ahead, and he requests the absentee ballot -- and absentee ballot through a request form, but then he comes in here and sees what is happening. And he said: That is appalling. You can't do this in a public place.

That goes, again, and your honor, very correctly pointed out that this is a court of law, not a court of public opinion. But the perception of respect for the legal system and for the elective process is what is at stake here. That is extremely important. in terms of the precedent that this case is going to set. And the cases that have come before, in terms of corrupting the process and maintaining the integrity of the process. And that's what Mr. Livingston, in effect, was called for as a witness in this case.

Then we get to -- and this I am going to get to the very quickly -- Sandra Goard, knowledge of the law, knows that it would be void and had to be rejected. The cover-up I've mentioned; the lack of a log- in; the unlocked and non-public area.

Now, let me -- I think I have it right here -- to save time in this case, everybody worked together and we limited what we were going to read in, but I just want to read in a couple of very, very brief excerpts.

From the depositions of Eleanor Bailey (ph), one of the employees at the supervisor of elections office. Just this, because what she confirms -- and we didn't know about this until we took her deposition -- is that when the Republican operative came in, Sandra Goard held a meeting to tell her people what he was going to be doing.

So, here she is using her paid public employees to go ahead and assist the Republican Party in what it's doing, the Republican operatives. And she's asked at page 6, line 8.

Question: "And do you know if they were pre-printed by the Republican Party and sent to voters? is that your understanding?

"Yes, that is what I was told."

Question: "Who told you that?"

Answer: "We were told in a meeting at the office."

Question: "When was the meeting, before or after election?"

Answer: "Before." Question: "OK, who is was at meeting that you recall?"

Answer: "The whole office was."

Question: "Who chaired or who was in charge of the meeting?"

Answer: "Mrs. Goard."

Question: "And knowing you can't remember exactly what people said, what was the gist of it? what did you hear at that meeting?"

Answer: "I do not remember the whole meeting, I just remember that we were going to start receiving these in, and that it was something that was done through the Republican Party."

We never would have known about that meeting if not for that testimony.

Then we have the testimony of Bonnie Eaton (ph). Page 17, line 9.

Question: "As part of your responsibilities of the clerk in this office of elections, were you instructed that the voter registration number was a very important piece of information?"

Answer: "Yes."

Question: "And you were told that if that number was incorrect you could not process the application form?"

Answer: "Correct."

Question: "And did you always follow that instruction?"

Answer: "Yes."

And then we have the testimony of Mr. Joyner (ph). Again, a couple of short excerpts. Page 13, line 20 -- I don't have the exact line number, but it's in the excerpt that starts with page 13, line 23.

Question -- And this shows the use of the staff -- "Who was it that physically did the separation?"

Answer: "At that point in time, I was doing most of the separation of all of the mail to help out the rest of the staff."

Question: "OK, and what is that you separated out?"

Answer: "I separated all of the mail, including, you know, these requests, the request forms."

Question: "And when you say 'request forms,' which request forms are you referring to?"

Answer: "The Republican request forms, or, you know, that were submitted, you know, by individuals requesting am absentee ballot."

Question: "Did you segregate the Republican request forms, the ones were identified as part of the mass mailing by the Republican Party separate from other absentee ballot request forms?"

Answer: "Yes."

Question: "And on who's instruction did you do that?"

Answer: "Mrs. Goard."

Question: "Did she tell you why she wanted you to do that?"

Answer: "No. We were to separate them and those that did not have the number on it, you know, we were to give them to Michael."

And at page 21, Question: "Why did you segregate them on this case?"

Question: "You know, we were putting them -- initially, I don't know if they were there -- segregated. Whenever the decision was made, you know, that someone was coming in to do it. Then they, to my knowledge, were segregated out.

HEMMER: To our viewers: We're listening to closing arguments. The attorney, Gerald Richman, the attorney for the plaintiff in this case in the Seminole County absentee ballot application trial. Circuit Court, Leon County, Tallahassee, and the courtroom of Judge Nikki Clark.

RICHMAN: ... "I believe Sharlene (ph)."

So you have another employee in the supervisor's office doing the segregation.

And then I asked further: "Had they been segregated out before Mr. Leach arrived?"

Answer: "Not to my knowledge."

Question: "So, in other words, when Mr. Leach got there a paid employee of this office went ahead and segregated out the Republican absentee ballot request forms, correct?"

Answer: "Correct."

Question: "And then you personally took those and gave them to Mr. Leach, correct?

"Yes."

Now I'll skip over that and just go to one brief excerpt here. Page 43 -- again this is Mr. Joyner (ph). And keep in mind your honor, that Mr. Joyner is the No. 2 person in that office and Sharlene Pike (ph) is the person who was the assistant to both Mr. Joyner and Ms. Goard. Page 43, line 25 -- Question: "Based upon the policy of this office -- it was clearly the policy of this office that once an absentee ballot request form comes in, no one in this office is to alter or add any information to the absentee ballot request form, is that correct?"

Answer: "Correct."

Question: "And that was pursuant to, as you understood it, the statute that says you can't change or alter anything there. No one in this office can change our alter anything, is that correct?"

Answer: "Correct."

So they don't do it, but they let the Republicans come in there, in their office and do what they knew to be illegal.

And lastly, a brief excerpt from the deposition of Sharlene Pike. Sharlene Pike is the lady, your honor -- and I'll just quickly summarize what she says on this point. She's the one who testifies, in her deposition, that what happened in the case is that when people didn't have the right information on there -- on the voter identification numbers, they would pick up the phone and they would call them. Then she said, no -- then that was contradicted.

But what she said is, letters were sent out. But then things got so busy, somewhere around the 10th to 12th of October that she no longer sent letters and she no longer made any phone calls. Maybe one or two she said, that's it. And guess what? On the timeline, that just happens to be about the time Mr. Leach comes to the office. It's unclear the exact date Mr. Leach arrives because we don't have, again, a log or any record of this Republican operative being there.

But the question is, what happens after that? And she testifies at length, if we go to page 22, line six and go to top of the next page on there and the excerpt -- question: "The last couple of weeks or so in October and you stopped generating letters for the benefit of either Democrats or Republicans."

Answer: "Correct."

Question: "Then following that, did you have a conversation with Mrs. Goard as to how these Republican absentee ballot request forms were going to be handled?"

Answer: "The only conversation after that, I was informed that somebody from the Republican Party was going to come into the office with their database and attach numbers to them."

And then I asked her further on: "With regard to these, you said you made some phone calls. Did you make any phone calls after October 15?

"After October 15th?"

"Correct." "No."

And, again, she says she didn't do it after October 10. And then she says one other -- two other quick things that are important. She says -- she refers to a staff meeting in 1998. And this is at page -- beginning with the excerpt at page 30, line three through 32 -- line 17.

And in that excerpt she says: "We asked her about a manual."

And I said: "Now, in 1998" -- I'm sorry, she basically says, her answer says: "Now, in 1998, when the laws changed we did have a staff meeting and we went over what the new requirements were."

Question: "And one of the things that you learned in that staff meeting in 1998 is that before an absentee ballot can be issued the absentee ballot request form mandatorily has to have the voter's name.

She answers: "Uh-huh."

And the last thing that I wanted to quote is this: at page 59, line two through 60 -- I'm sorry, 69, line 14 through 71, line one -- in that excerpt she said the following.

Question: "OK; in regard to the information that's being referred to includes all of these items, one of which is item number four which relates to the voter identification number, correct?"

Answer: "Yes."

Question: "And you clearly understand from that, and understood from your training that its the person making the request who must disclose the information that's here, correct?"

Answer: "Yes."

Question: "And one of items that the person making the request must disclose is the voter identification number, correct?"

Answer: "Yes."

Question: "And in this case, the person who obtained the voter identification number was not the voter, but was Mr. Leach relating to these Republican cards, is that correct?"

She asked me to rephrase it, and her answer was recorded as "uh- huh."

Question: "Wasn't it, with regard to the Republican postcards -- wasn't it Mr. Leach who got the voter identification number and gave that information as opposed to it coming from the voter?"

Answer: "Yes."

Your honor, let me -- since I'm quickly going to run out of time because of the excerpts here, which I didn't do before -- let me note the following: number one, they only produced one witness and the one witness was just to talk about what's in the shoe box, as to whose integrity no one has any proof. There's no chain of custody; nobody knows what was really in there. They have no expert analysis of what's there, and I'm going to comment briefly upon the numbers as to what's there.

But I'll save the rest of this for rebuttal only to mention it quickly: They've put up every procedural roadblock one can try to imagine in this case including, initially, basically saying that we had to -- they wanted to subpoena Vice President Gore and they wanted us to follow the motion to dismiss, basically saying that Vice President Gore was an indispensable party to the case.

That's gone by the wayside. Their theory in hoping that the vice president is somehow in control, that's gone. The issue of latches that we waited -- there's no basis for latches.

The only evidence in this case is that Mr. Jacobs, who's the party in this case, acted at the canvassing board when he found out about this on or about November 8 and filed the protest timely.

They said that 102.168, the contest statute, simply doesn't apply. Totally ignoring the Harris case; your honor has disposed of that. Forty-two USC section 1971 has absolutely no application and, as we pointed out to your honor -- is it material? If it's material it wouldn't apply, aside from the fact that the act has never been applied in any kind of a situation like this. They can't cite a single case in which it has, so I'm not going to waste time on that and I'll rely on my memorandum.

Legislative history: They use a tortured version of the legislative history to say that we are referred to ballots -- that somehow it refers to the absentee ballot request form, which it does not. And what the law unequivocally says is that that legislation was passed because of what happened in Miami and it was to tighten up requirements. And when they tightened up the requirements, they added the word -- the word "must" is used.

And they cited some language in there, saying that some language is directory if it doesn't otherwise say that. The section that they're referring to is the section that does not apply to the absentee ballot request forms, so it's totally inapplicable.

They say, as another defense, everyone does it. They were going to bring in 12 election supervisors. Aside from the fact that's grossly irrelevant, they then even gave up on that; they presented no evidence on that other than, I think your honor will see, and I expect to hear it in closing, Mr. Altiero's testimony mentions something about it was done differently in Orange County.

That's pure hearsay; and the fact that we let the excerpt go in, by no means is intended to be a waiver of the fact that that's hearsay and there's never been any proof on that point as to how other election supervisors are doing. And if they were doing differently, they would simply be violating the law as well. Very important argument on the, don't disenfranchise me, or the issue concerning the remedy and the issue concerning what our burden of proof is.

CLARK: (OFF-MIKE) interruption (OFF-MIKE) before you get to the issue of remedy.

RICHMAN: Yes, your honor.

CLARK: I want to inquire about the absentee voters who, whether or not they should have received the ballots, who did receive the ballots and who filled them out and sent them in and, as far as they knew, thought they were voting; thought they were voting legally and they thought their vote was going to count. On those ballots, those people clearly expressed their intent as who they were going to vote for.

RICHMAN: Correct.

CLARK: If the court -- and this is relying on Boardman, Beckstrom (ph) and the other cases -- if the court can give effect to the will of the people because it's clear what their intent was, why shouldn't I do that?

RICHMAN: Because you cannot do it in accordance with all of the cases that say where it's commingled and you can't separate it out, that those ballots, basically, have to be thrown out.

Remember, your honor, even in Boardman with -- where some of them were declared invalid, people left a signature or a witness. The envelope wasn't properly witnessed, and if it wasn't properly witnessed, you can go right back and say, but that was the will of the person. That person intended to vote but, technically, they didn't do it right.

But the law says, you have to do it right to exercise the privilege of an absentee ballot. In this universe of voters, through no fault, necessarily, of their own, didn't do it right. It's no different than saying they left off a signature. They didn't get it witnessed. They didn't go through all of the hoops the legislature says you must mandatorily go through before your ballot can be counted.

It's the same basic issue. And they come back and they say, well, we can't prove how those people would have voted.

CLARK: Respond to this quote from the Boardman case: "If statutory requirement with respect to absentee voting are complied with to the extend that duly responsible election officials can ascertain that the electors whose vote are being canvassed are qualified and registered to vote and they do so in a proper manner, the absentee ballots are legal."

What this says to me is, even though there is noncompliance with some portions of the statute, if the canvassers can tell the intent of the people, why shouldn't that intent count? RICHMAN: Because you have intentional misconduct here. That phrase doesn't apply -- didn't apply in the city of Miami case, doesn't apply in this case because you have intentional, knowing misconduct. Counsel have used the word and said we haven't proven fraud. Well, your honor, it's fraud on the process.

The fraud that's used in these cases is not fraud in the classical sense of having to rely on something. The use of the word "fraud" in the election process is basically a corruption of the process. This process is corrupted when the Republican Party takes over the local supervisor of elections offices, and if you look...

CLARK: Let me ask another question. It seems that part of your argument in showing that there's fraud is that Mrs. Goard knew the law, was well-versed with the law and had advised her staff on what the law was.

RICHMAN: That's correct.

CLARK: If Mrs. Goard had been a brand-new supervisor and you don't have evidence that she knew the law all that well, and I want you to respond to this quote from Boardman: "Absentee voting statutes must be strictly construed; but strict construction does not necessarily mean strict compliance."

So if she didn't know, and I'm not suggesting that she did or didn't. But, absent that evidence, why shouldn't I still take a look at the language in Boardman and conclude that there's been substantial compliance by the voters and accept their vote.

RICHMAN: Because that's not what happened here. What happened here is you don't have substantial compliance because post-Boardman the legislature passed a statute that makes these requirements mandatory. Boardman did not deal with that issue.

And in Boardman, your honor, there were specific ballots that were taken out, as your honor will recall. They were able to trace them, and Boardman did not involve intentional wrongdoing. What you've got in this case on the test of Boardman is you've got the three factors that Boardman sets forth. What happens when there's intentional wrongdoing -- is there substantial compliance?

Well how can you have substantial compliance when you have a statute that now is made mandatory by the 1998 Republican-controlled legislature and, on top of that, with the mandatory compliance, it's made punishable even by a felony. I mean, all of those things add up to the fact that you've got to view this as strict compliance with the use of the word "must."

So you can't -- there is nothing that would constitute substantial compliance in this case. It's a material defect in the request.

CLARK: Let me ask you this, then. The substantial noncompliance is a substantial noncompliance on the part of the voters, or is it on the part of Mrs. Goard? And if Mrs. Goard did not substantially comply, isn't it she who should be punished and not the voters?

RICHMAN: Both; the voters haven't substantially complied because the voters haven't met the requirement of the statute. The statute says, this is what you must do. you can't have substantial compliance by the voter if you've got a mandatory provision of the statute that had to be done by the voter.

So it's not a matter of punishing the voter, it's the policy of the state of Florida that you don't get the privilege to vote by absentee ballot unless you do all of these things. That's what they've said, and there's no legislative history that would contradict that. That is the law.

So you cannot have substantial compliance when you leave out what everyone concedes is material. If it wasn't material, Sandra Goard would have processed this stuff. She didn't. She knew it was material. She knew it was mandatory. And, on the form -- I mean, the voter may not realize that, but that's not the problem.

The problem is, the voters can't get it if they leave off a signature, if they do something else they just don't get to vote that way. They've got to go to the polls. That's the law. And what you have here, following the language of Boardman is, in Boardman it says, with regard to the rule -- the general rule is that, "where the number of invalid absentee ballots is more than enough to change the result of the election, then the election shall be determined solely upon the basis" -- in this case, of the machine vote.

"The reason for the rule is that, since all the ballots have been commingled and it is impossible to distinguish the good ballots from the bad because all ballots are required by law to be unidentifiable that, in fairness, all the ballots must be thrown out." That is the quote from Boardman; and if it were any other way -- and one of the interesting things, your honor, in terms of cross-examination of the expert that we presented -- they were basically trying to say, isn't it a fact that these people would have gone to the polls anyhow?

They otherwise would have voted; look at the percentage that's in the shoe box. Well, there is no way to know that. Talk about speculation -- nobody knows what somebody would have done in an absentee ballot pool, and the expert was candid enough to say that he didn't have any absentee articles or data to be able to decide that.

Now here's a very interesting point. He gave, your honor -- and candidly, your honor, we put this in for a reason. We believe under the law that the only remedy in this case is that the entire pool must be thrown out as a matter of law in Florida. We can find no case in Florida where anything less has occurred. We've cited in our memorandum -- there's an Alaska case and, I believe, a California case where they tried to do something proportionately...

CLARK: (OFF-MIKE) expert (OFF-MIKE) proportional.

RICHMAN: That's the point I'm getting to, is that -- but the question -- we put that in there in an abundance of caution and to point out to your honor that there is some language in there that says this a court of equity and you can fashion other relief. And the other side is arguing this is draconian -- 15,000 ballots. As a matter of law, it's not a matter of whether it's draconian. We didn't create the problem. The Republican Party did, and the supervisor of elections did. And that is the only remedy.

But in an abundance of caution, we wanted to give your honor this other information. And the other information is, as I see it, there are three possibilities. One, they shall all be thrown out. At the very least, the 1,932 that were infected -- that number should be thrown out and taken out of the column of the Republican Party.

But if you want to go ahead and say that's not fair because some of these people might have voted for a Democrat, then you have to look at another issue. And that's where we brought the expert in.

We really brought him in for a very limited purpose, in simply to look at, statistically, how could you go ahead and reduce this number fairly. Does it make sense to go ahead and say, since the 15,000 votes -- and by the way, this is all -- I think I've got it noted right here -- It's all stipulated to, in terms of the numbers. Is that, in the stipulation of facts -- this is stipulation of facts in paragraph 31 talks about the number of voters who were treated as having requested absentee ballots. And then it comes down to, of the number of voters, says as addition of the 15,784 voters, who submitted absentee ballots that were accepted and counted, 9,858 were registered as Republicans, 4,292 were registered as Democrats. The remainder had no party affiliation or were registered in other parties.

Why is that significant? Because that is, interestingly, just about the same ratio, almost 1-1, in terms of paragraph 32, which talks about the votes in the election; 10,006 votes for defendants Bush and 5,209 for Gore-Lieberman. So what we see, if you just look at those stipulated facts, is that it looks like virtually all of the Republicans met, between the crossover, enough of them ended up voting for the Republican candidate and the same thing for the Democratic candidate.

And what our experts said is, he basically gave them the benefit of the doubt. He says, don't even assume that high a number. Just go ahead and statistically assume the low number is 1504, the high number 1788, looking at exit polls.

Well, they criticized him for saying, well, CNN wasn't so accurate on the exit polls. He explained, well, they were relatively accurate over all, but in a close election of a few votes, you can't tell, but statistically, they are within 1, 2 or 3 percent. So we simply gave that additional information to your honor for consideration.

But in essence, if you look at that, it would say that 1833 registered Republican votes ought to be thrown out in this case, and the same number of Democratic votes ought to be thrown out. If you were not going to don what we believe you should do under the law, which is to throw out all 15,000 votes.

Let me have just a moment, your honor. I know I have used up more time than I intended, but I was responding to your honor's questions.

Your honor, what I was going to address very briefly is the Boardman-Bolden (ph) test. Under the Boardman test, you've got intentional wrongdoing. You don't have substantial compliance. And we've established, as a matter of law, that the irregularities in this case effected the integrity of the entire election.

And in Bolden, by the way, there, the election in effect was overturned, even where the court found that there was substantial compliance.

Your honor, with that, I would simply urge the court that, on the unrebutted facts; on the testimony of the witnesses that I've quoted to the court, which remains literally unrebutted in this record of knowledge, of intentional wrongdoing, and of the Republican Party, in effect, taking over a portion of the supervisor of elections office, using that office solely for their benefit, complete disparate treatment, that this is not a case involving a technicality. This is a case that has commingling; this is a case in which all 15,000 ballots must be thrown out, where the mandatory statutory provision that says "must" has not been complied with, and where there is unrebutted evidence in effect with regard to a cover-up that goes to the very heart of the integrity of the election process.

Thank you, your honor.

CLARK: And before I hear from defense, let me just make a couple of notes here, please.

HEMMER: Once again, we are watching closing arguments in the Seminole County absentee ballot application trial. Jerry Richman, attorney for the plaintiff, just completing his closing arguments. We will hear from the Seminole County attorneys, the defendants in this case, after a quick timeout. Back with more from Leon County in Tallahassee, Florida after this.

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