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Special Event

Court Hears Closing Arguments in Democratic Challenge to Absentee Ballots in Seminole County

Aired December 7, 2000 - 2:28 p.m. ET

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

BILL HEMMER, CNN ANCHOR: This is Terry Young now, the defendant's attorney here. He is representing the Seminole County Canvassing Board. Now closing arguments from his perspective.

(JOINED IN PROGRESS)

JUDGE NIKKI ANN CLARK, LEON COUNTY CIRCUIT COURT: By what authority did she allow the Republican Party to go into her office, access the information, and add information to the voter registration on to the voter request forms?

TERRY YOUNG, SEMINOLE COUNTY CANVASSING BOARD ATTORNEY: I'm glad you asked that question because there are two documents. Well, first, let me say this, as Mr. Richman has pointed out, in reading all of the excerpts, he is correct, and in fact, he has demonstrated through his own witnesses that Mrs. Goard is consistent and she does not provide disparate treatment. No matter who came to her office, the testimony is, whether it was Mr. Hall (ph), whether it was Mr. Ray (ph), whether it was somebody who called in or sent a voter...

CLARK: I'm not addressing the disparate treatment just yet. What I'm addressing is, by what authority did Ms. Goard allow anybody into her office who wasn't working to there to add names, when the statute clearly says: "Whoever requests an absentee ballot must provide," and then it sets forth nine things that the person must provide. And it doesn't say -- and the statute doesn't say this information must be somewhere eventually. It said the person making the request must provide the following information, which of course included the information on the voter registration ID number.

So by what authority...

YOUNG: Well, one authority is a bulletin she received from the division of elections, 98-14, which is in evidence.

CLARK: Can I have a copy of it?

YOUNG: I have a copy right here I'll read from and pass that to Your Honor.

CLARK: OK. What's the reference again? I'm sorry.

YOUNG: It's 98-14, it's plaintiff's exhibit -- where are the plaintiff's exhibits? If you return, Your Honor, to the second page of that exhibit, and the one, two, third full paragraph, I'm going to read from the last sentence. Or I'll actually start a little bit before that.

CLARK: The paragraph beginning with, "prior to the 1998 amendments"?

YOUNG: It's the paragraph that actually begins with "Thus, it is readily apparent."

CLARK: (OFF-MIKE) wrong document then. I've got DE 98-14.

YOUNG: Yes. I see. Theirs is copied differently...

CLARK: OK.

YOUNG: ... than mine is. We'll pass...

CLARK: Well, let's just...

(CROSSTALK)

CLARK: It's on the third page of this document that I've got.

YOUNG: Going about halfway down -- and this goes to the 1998 change in the law. "Therefore, there is nothing in the 1998 amendments to this section that causes us to depart from our opinion in DE 90-31, which permits the mailing of absentee ballot requests by candidates or political parties in order that the elector can complete the form and return it to the supervisor..."

Right there, they are saying that political parties can mail the form and insert the information, including all of the information on the very statute that Mr. Richman says only the voter can insert.

It goes on to say that the party in this instance is not requesting an absentee ballot on behalf of the elector; rather, the division of elections says they are mailing the request form to the elector so the elector can complete it. And in this instance we know from the evidence in this case, from their own exhibit, that the completion is nothing more than a signature and the addition of the last four digits of the Social Security number.

CLARK: And so by sending that out to prospective voters, what they are doing, it seems, is providing an opportunity for those prospective voters -- prospective voters to complete the form, provide the necessary information, and send that request in?

YOUNG: That is correct, but what they are also doing is answering -- and the division of elections answers one of the issues with chapter 10162 -- and that is the issue of who can put this information that's required, the nine pieces of information that Mr. Richman has told, Your Honor, the person making the request must do.

CLARK: Where is that, in your opinion? YOUNG: It's right -- it's right there where they say that the party, in mailing, in this instance -- it says the -- right here it says -- which permits the mailing of absentee ballot request...

CLARK: (UNINTELLIGIBLE) beginning with "The party in this instance..."?

YOUNG: "... is not requesting an absentee ballot on behalf of an elector." They are simply mailing the request form to the elector so the elector can complete and personally request the ballot themselves. For...

CLARK: And that's my point. That's my point. They're sending it to the electors so that the electors can have an opportunity to vote absentee.

YOUNG: That is correct.

CLARK: And it goes on that they're sending it so that the elector can complete it and personally request a ballot themselves. It seems that what happened here is the elector completed the form, which didn't have all the required blanks on it, the elector completed the form, sent it back, and then the Republicans added the voter registration number.

YOUNG: There's no doubt about that. That's ...

CLARK: And why isn't that a violation of the requirement in 10162 that says, "The person making the request" -- it doesn't say the person mailing out the opportunity. It says, "The person making the request must disclose."

YOUNG: On the Democrat card, why isn't it a violation of the law that the Democrats printed on the card the name of the elector, the elector's address?

CLARK: That may be an issue, but let me just deal with this issue right now. By what authority did Mrs. Goard allow anybody to add that information?

YOUNG: Well, to answer your question, Your Honor, I think the authority is in chapter 101.62, because it doesn't say who is required to put that information -- it doesn't say when it is and it doesn't say how that person has to do it. It doesn't say that the person has to place that information on the card itself. It says they have to make the request. The division of elections has said that signing it in essence is making the request.

To interpret it otherwise would mean that someone in a nursing home who has someone help them fill out the form and then they sign their name has a committed a crime and hasn't complied with this statute. To interpret it otherwise would mean that the common practice that is known and referred to in DE-98-14 is illegal, because political parties are supplying all of the information.

Mrs. Goard has steadfastly maintained her policies in every instance. She had a meeting. She told her -- she told her employees of her policy. She has adhered to it. She would write letters, as Mr. Richman has admitted, to try to deal with the problems of people who missed information as long as time permitted.

Until what happened? The first time it ever happened in 17 years as a supervisor, the first time since the 1998 amendment, what happens? A political party made a mistake, one that the Democrats didn't make. They asked if they could remove the card. She said, absolutely not, you can't remove the cards, just like she told Dean Ray you can't removing your canvassing petition and take out. He didn't ask her whether or not he could bring people in it. Dean Ray I'll come back to. And she allowed instead an alternative.

When they would come into the office and sit in a remote area, and they would sit there and they would hand the cards to him that didn't have the number on it. The ones that had the number the processed themselves. The ones that didn't have the number, he would do one thing. And I'll get to the depo excerpts, but the depot excerpts are in evidence.

That's what Mr. Leach said he did. It's the only thing he said he did. His deposition is clear. He added the numbers, and that's all he added.

And if you go to...

CLARK: Can I interrupt you for a second?

If he -- if that activity was allowed by statute, wouldn't the statute simply read the information must be somewhere on the card rather than read specifically the person making the request must disclose?

YOUNG: Well, as I indicated, I'm not going to try to deal with the law. Mr. McNeil (ph) is going to deal with that. But I do remember when Mr. Richard read into the court the legislative history behind this statute, which cited, I believe it was the Bolden (ph) case, and it references the fact that this is directory language as opposed to mandatory language.

This does not say, if this is not done, it voids the request. It doesn't say that. It simply doesn't say that. And one thing we do know for certain: It has nothing to do with the ballot that is ultimately cast.

If this was an irregularity, if this was a problem -- the reason I think the 1998 Voting Act was enacted was to stop voter fraud. But...

CLARK: (OFF-MIKE)

YOUNG: But it wasn't directed at absentee ballot information on a request form. It was directed to the type of conduct that is described by the Bolden court itself as promiscuous vote buying, not absentee ballot -- absentee request forms. Nothing to do with that. This creates as much information in the event that there is vote- buying allegations as a footprint, fingerprint, a trail that people can go back and follow to see what type of vote buying might have occurred.

We don't have allegations of that. We don't have one single allegation that goes to the integrity of the ballot, and that's really the key issue here.

Whether this is misconduct...

CLARK: What we have is an allegation that goes to the question of whether or not if the electors even should have received in the first place the absentee ballot.

YOUNG: And if -- yes, that is exactly was Mr. Richman has raised, and he has boldly asserted exactly as you have said, that every single piece of this information, all nine of them, must be placed on the request form by the person. That's not done anywhere in Florida, and we know that from the evidence in this case. We know that the Democrats sent out I don't know how many cards -- it's in the stipulation. Well, the stipulation doesn't deal with how many, but it's in the stipulation that they sent out the cards.

I guess we would have to invalidate all of the absentee ballots throughout the entire state of Florida.

CLARK: That issue is not before me.

YOUNG: You're correct, it's not. But it is of importance to understand how the division of elections has understood this. And I think, while it doesn't say it plainly and clearly that someone else could put the information on the form, I think a clear reading -- I think a reading of this sentence that I have pointed to the court indicates that the party in this case is a facilitator of the request, and the only thing that makes the request is the signature -- and the addition of the private information, the last four digits of a Social Security number. Everything else on the card is public information, including the voter identification number.

And Mrs. Goard didn't do anything to purposely -- to violate any statute. She has -- the testimony is that she was completely nonpartisan as it relates to the application of policies.

CLARK: (UNINTELLIGIBLE) let me ask a question on their point. Had it not been her office policy that, when the requests were returned absent any of the nine pieces of information, that she would not process those? Had that not been her policy?

YOUNG: Her policy was that it was to have all of that information, and that before she would begin processing it, she would require that information or attempt to retrieve it. On one of Ms. -- we didn't put into evidence -- we didn't put a lot one of things into evidence because they weren't in dispute. One of the things that isn't in dispute is that October 10, 2000: corrective letters no longer sent. That admission indicates that Mrs. Goard and her office did not treat as void, did not treat as rejected applications by voters who came in without all of the required information. They had standard letters -- not in evidence, but it's referred to there -- that went back to the voter so that they could get that information and they could get the opportunity to vote. In this case, innocent voters submitted -- innocent prospective voters submitted a request form, not knowing that this information was not on the card.

These cards were of a unique size. They were easily stacked and segregated, just like the Democrat card was. And when this came to the attention of Ms. Goard, she expressed concern. There is testimony in Mr. Altiero's deposition transcript -- he was a WDBO reporter -- that she told him, and he did a broadcast about it. In fact, at page eight of his deposition, he said yes. And this is back in October 17, I believe: "Yes, she said that she didn't have -- she was concerned that there would be people expecting absentee ballots out -- absentee ballots in the mail back because they were sending in the request form."

And she said that these people were going to be expecting it. And they weren't going to get in it mail. And they didn't know about it. This is a close-to-quote also: She didn't have staff, resources or time to call everybody who sent in these cards to tell them that they weren't going to their absentee ballots in the mail. I thought that it was important on my function as a news reporter to get listeners to know about that.

He also went to Bob Cowls (ph). And as Mr. Richman indicates, it's reported and it's in evidence that Bob Cowls -- the election supervisor of Orlando, who's a Democrat in a county that went Democratic -- didn't require the voter identification number. And he told on the radio, because he didn't want to disenfranchise the voters. Another document that is also in evidence by the plaintiffs that deals with this issue is the October 26 letter from the secretary -- or from Clayton Roberts, the director of the Division of Elections, dealing with the Republican form that was previously litigated, regarding the fact that it had the great seal of Florida upon it.

And he urged people to continue to process the application form. And he warned that, to deny them this privilege raises the possibility that many of Florida's voters could be disenfranchised during the November 7 general election. Mrs. Goard didn't cover anything up. She went out on the radio and told people what happened.

And it also is important to know -- and it's in Mr. Altiero's deposition: transcripts that is before your court -- that later the Republican Party did call up. And they came into her office. And she also reported that voluntarily to the radio. And it was broadcast around October 30. And Mr. Poe, statewide chairman of the Democratic Party, knew about it. He raised an objection to it. Did she hide Mr. Leach? Did she show him out the back door of the office?

No. She let him continue to do what he came there to do. And he didn't come there as a soldier to carry out orders to violate the law. He came there to correct a mistake that the Republican Party of Florida, in effect, of having people, Republicans and Democrats -- and I'm going to come to that in just a second -- so that they would be able to vote as they had requested. That's what happened here: no violations of any law.

Mr. Leach testified, and Mrs. Goard testified that -- Ms. Goard specifically testified Michael Leach's access anywhere in the office had nothing to do with the outcome of the election. There is no testimony here that anybody socialized, fraternized with Mr. Leach. He came and went. And you very correctly point out, Your Honor, that access, a mere possibility of something occurring without proof is not enough. And all of the cases support that. Now, Your Honor...

CLARK: Going back to the October 26, 2000 letter to all supervisors of elections and staff from Clayton Roberts: Let me ask you to respond to a particular sentence in there. Mr. Roberts writes: "Until ordered by a court, you should continue to process all absentee-ballot requests that are received by your office, so long as the request contain the information required by 101.62 Florida statutes." Is this not advising the supervisors?

YOUNG: It is. And why Mr. Cowls was processed without information, I don't know. But Mrs. Goard did not. She did not process any without the information. This did not tell Ms. Goard that the information couldn't be supplied later. It didn't tell anybody anything different.

All right, Your Honor, moving on, I want to talk a minute about this disparate treatment. They have talked about disparate treatment. And there have been some depositions taken. And the excerpts have been put in. And we put some in ourselves. We didn't call any substantial live witnesses. But there was an excerpt from Bonnie Eaton (ph). She is one the clerical staff who was deposed.

And she said, at page 18: "Do you consider the office nonpartisan?"

Answer: "Completely. We are drilled with that, if not once, 100 times-fold."

"And how are you drilled?"

"That every one is treated equal, that we are here to provide a service to everyone, regardless of their color, race, party affiliation."

"And do those same principles apply to you individually in your processing of the absentee-ballot request forms?"

"Correct."

We asked another -- or actually. it was asked at deposition of Marion Bukens (ph), another office staff. And she said: "We just count the votes, keep the records -- period."

Now, let's talk about the disparate treatment. I just want to make one thing clear as we go through this: There is really three categories of request forms. And it might help if the clerk could pass up to Your Honor defense exhibit 12. We know this. And you absolutely are right about these cards, Your Honor. The Republican cards that went out, a little bit smaller than the Democratic card. And I'm sorry, I thought we had one into evidence. But we don't. The Democratic card is a little bigger.

The Republican card had all the information on it. All they had to was sign it, put their last four digits of Social Security. And it was missing an identification number or a place to put it. And the voter was innocent and didn't have any idea that that would be necessary. The Democratic card had it all on. It was all pre- printed. The only substantial -- those are the only substantial differences between the two cards, except the size. The Democratic card is bigger. And ours is -- and the Republican is smaller.

And one other fact: The Republican card went back to the supervisor of elections' office. The Democrat went to Victory Sweep 2000 (ph) in Orlando, where who knows what they could have done to it? And there is no requirement. It also is in this letter that you were asking me about from Clayton Roberts at the end: "While the preferred method of delivering an absentee-ballot request is directly to the supervisor's office, there's nothing illegal about having a completed request delivered or forwarded by a third party."

So we know that -- we know third parties can touch these, at least, as well. Now, we have -- let's talk about the cards. We got the Republican requests and the Democratic request. The Republican requests are at issue. And they needed attention somehow, some way -- the ones that didn't have identification number: 70 percent didn't, 30 percent did. The Democratic card: They didn't need any attention. And you are correct. They didn't ask because there was no need to ask. The number was on there. There was no disparate treatment between those cards.

Now -- and Mr. Richman, for the first time, acknowledged that if -- he would contend now, for the first time, that if it was, it would be illegal. But up until now, he asked questions in deposition and in this courtroom: Did you ask the Democratic Party? So there wasn't any need to ask. Now, the other set is the unprocessed or the ones that aren't Democrat and aren't Republican. Well, those are broken down into two categories.

We have miscellaneous request forms that were processed and people got absentee ballots. No complaint there, right? Now we have the unprocessed ones, the ones that are the subject Rachel Gebaide's analysis. And if we can go -- could you pause up exhibit 12 -- defense exhibit 12 to the court? Or I have an extra copy, your honor.

This is extra clean copy.

CLARK: Thank you.

YOUNG: The first page -- or the second page is really a recap of the numbers that were stipulated to. If anything, this demonstrates how accurate Rachel Gebaide is because the opposing party really accepted this stipulation. To recap real quickly, what it shows is the Republican form there were 2,132 processed with someone else's handwriting on it and just so the court's aware, we didn't break this down, but you can tell when you look at them that there's a lot and it's the same handwriting, which is most probably Mr. Leach's. They had handwriting expert and maybe they have the number but they haven't shared it with us.

There's numbers of others that have different sets of handwriting and one could reasonably assume that the voter may have added that themselves. But we used the total number. We know, because we've all tracked it down. We've basically agreed to it although we even came out with a little different number then they did. We came out with 1,937. I think the number they came out with 1,926, and we stipulated to it.

We know that there were 515 Republican forms that were processed because they had the number on it and we know that there were 590 Democrat forms that were processed because they had all the information. Now, if you turn to next page this is where we start the analysis of what Mr. Richman calls shoe box, which is really where all the -- at the end of the day, where all of the unprocessed absentee ballot request forms were as of Election Day.

Let's look at them. You really have -- if I skip ahead you have to do this. The first page is 472, total unprocessed Republican absentee ballot requests. Of that 400 -- this is important because I'm going to tell you right now give you a little head start -- there is 742 all together unprocessed.

So, over half of the unprocessed applications for request forms are Republican. Of those 472, 202 -- 40 percent, whatever that number is -- were already issued absentee ballots. They may have put in an absentee ballot request earlier in the year and asked for a request the entire time or maybe they came by the office and get one themselves.

In any event, 202 are out. They're processed. Two hundred and sixty-three never had a ballot issued to them. Now, we know of that 263 from Ms. Gebaide, who I think you understood took her job very seriously. She could probably tell you who every one of these people are. But we know of that 176 are Republicans; 16 are Democrats.

Now, an important thing to remember here is what we're talking about. We're talking about unprocessed Republican absentee ballot requests. We're talking about the Republican cards, your honor. How is it in this box if we gave disparate treatment and Michael Leach fixed them all? Because he didn't fix them all.

Either -- and there's some explanations and these are just going have to be assumptions on my part as to why they ended up here because there's no evidence on that. They could have ended up here because he can't find the number and the supervisor's office won't give him the number. They could have ended up here because after putting the number on them they were deficient in some other means. No signature, unregistered voter. As we already know, absentee ballot already issued. But anyway of the 263, 176 are Republican; 16 are Democrats, which confirms what Michael Leach said in his deposition that he actually put numbers on people who were registered Democrats which could have occurred because a Democrat lived in a Republican household. Fourteen others, 29 unregistered and 28 illegible and we had definition of that yesterday from Ms. Gebaide.

Now, of the 176 Republicans, we know 67 voted by absentee ballot pursuant to another request; 68 voted at the polls, and 40 didn't vote. OK, now you certainty can't count the 40 that didn't vote as any real disparate treatment to Republicans because that's what we're be accused of is partisan favoritism.

So, let's look at what we have left. Of the 16 Democrats in this 263 who filled out Republican cards, seven voted by absentee ballot, six voted at polls and only three didn't vote. That's not enough to impact the outcome of the election. Of the 14 others, 48 -- I'm sorry, four voted by absentee ballot, six voted at polls, and three didn't vote. Now we have a cumulative total of six. Probably not enough to affect the election or cast it in doubt.

Now, we know the reasons these people -- the reasons they weren't processed and they're all identified by Ms. Gebaide. And interestingly, we know that it includes among other things incorrect voter registration numbers. So not only did they require the number, they checked it. I mean this is precise. So her office is not partisan and it's not sloppy. They're precise. The only thing this office did that is under attack, quite frankly, is allowing the Republicans to correct this error on this limited time.

Now, let's go to the next category, the unprocessed Democratic cards. Here is an opportunity for disparate treatment because I don't think we've seen it up to now. How many are there, first of all? Enough to throw the election? Don't think so. There are 40 total unprocessed Democrat cards.

Now let's take a look at it. Only three of those were no ballot issue; 37 of them were issued as result of another absentee ballot request. And we know from Rachel Gebaide what happened to those three. Two of them were registered voters in the county and one of them we're not this sure of. Probably enough -- enough disparate treatment for anything else to cast doubt on the election.

Now let's look at last category on the next to last page: unprocessed miscellaneous absentee ballot requests, 243. Of the 243, 97 were -- and these are the people who just sent them in on their own -- 97 Republicans, 76 Democrats. So, we've got 76 total Democrats here. Probably, without going further, not enough to cast doubt in the election. Twenty-seven others, 40 unregistered and three illegible.

And I submit to you that Miss Goard or her staff don't know how any of these people are going to vote. If they're going to assume the Democrats are going vote Democratic like Mr. Wizard yesterday, you know, they don't certainly know how the others are going to vote. But let's look. Of the 97 Republicans, 51 voted by absentee ballot pursuant to an another request; 15 voted at polls any way; 28 didn't vote. Now those are Republicans so I don't think you can you count that if you were to consider disparate treatment against us on the charges brought by Mr. Jacobs.

Now, 76 Democrats. What happened to them? Fifteen voted by absentee ballot, 26 voted at polls and 33 didn't vote. So now we have 33 and six -- we have 39 votes out there. Not enough to impact the election. Of the 2,700, we have six voted by another absentee ballot request, two that voted at polls and 16 did not vote. We're barely over 50 votes. We don't have enough to impact the election. There is not any disparate treatment here.

Now, I don't want to use up the few minutes that I promised my partner Mr. McNeil to talk about the law, but I want to quickly talk about the relief they ask. It is in fact draconian and in fact after Mr. -- or Dr. DeLong testified, who quite frankly, your honor, I don't think was qualified an expert witness in that area. He's never had any education...

CLARK: (UNINTELLIGIBLE)

YOUNG: Well, whether it's not, it was stipulated by Mr. Richard that it -- the court could take this is evidence for weight and credibility. But, I don't think his evidence was very credible, but even if the court wanted to consider it, he didn't have any education, experience or training -- the three requirements under Chapter 97.02 to permit an expert to testify in the first place. He didn't have any opinions, really and it's -- you have to understand, if you remember, your honor, his underlying premise was that the 1,626 people wouldn't have gone to the polls anyway.

Ms. Gebaide's analysis disproves that. Carmen Colon (ph), who was on Mr. Richman's board, demonstrates that because she voted. The one person of all of the Democrat forms he could pull out, voted.

Now, so I would submit to your honor that based upon Dr. DeLong's testimony you don't have any other remedy. There's no credible remedy that he's provided you because I would be surprised if your honor found him credible. The only remedy your are left with is the throw out 15,000 legally cast votes -- and I don't you have much doubt because you've indicated that to Mr. Richman, and Mr. Richman doesn't deny it and Dr. DeLong doesn't deny it. Dr. DeLong said that...

MARTIN SAVIDGE, CNN CORRESPONDENT: You are listening now to the closing arguments coming from a Seminole County absentee ballots request form trial. The person who is speaking right now is Terry Young. he's the attorney for the Seminole County canvassing board. They are the defendants in this case. The plaintiffs have already had their closing arguments.

At stake, potentially 15,000 absentee ballots from Seminole County -- enough to change the outcome of the presidential election. We'll take a break and the arguments will continue after this.

YOUNG: ... that will attempt to come up with the right margin of votes which, amazingly, is just over the amount of Mr. Bush's lead in Florida. There is no doubt that what is at the heart of this case is politics. I'm sure Mr. Jacobs may be well-intending, but he's a Democrat, and he's a Democrat supporter. And there's only one reason -- it's not money, like a lot of cases that this case is pending before your honor.

We represent the nonpartisan people, Mr. McNeil and I -- he's going to talk to you in one minute or less. And I would remind the court of that; all we want is -- and all the Seminole County officials want is the clear, unequivocal voices of the Seminole County voters to be heard. They cast their votes; they participated, and they don't want to be discounted or thrown out, or silenced in any way.

CLARK: Excuse me. Actually, before you get started, I need to take a short break. We'll stand in recess 15 minutes.

SAVIDGE: And you just heard, as Terry Young -- who was the attorney for the defendants in this case -- completed his summation of events. There are other attorneys to come, yet, for the plaintiffs and Judge Nikki Clark, here in Leon Circuit Court has requested that there be a short break. Closing arguments will continue; so will our coverage, right after this.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com

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