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The Florida Vote: Judge Hears Closing Arguments in Challenge to Absentee Ballots in Seminole CountyAired December 7, 2000 - 3:18 p.m. ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
MARTIN SAVIDGE, CNN ANCHOR: We have been watching developments coming out of the courtroom in the case of Seminole County and it is over absentee ballot request forms and, specifically, whether or not the entire absentee ballot process in that county is tainted. At stake, roughly 15,000 absentee ballots, clearly enough that could make all of the difference in the outcome of the presidential election.
We are joined now by legal analyst Roger Cossack from our Washington bureau.
Roger, you've been watching this. It is clearly a heavy burden that is on this judge here when she tries to determine, if she rules in favor of the plaintiff, exactly what is the relief that she is going to order? What happens to those ballots?
ROGER COSSACK, CNN LEGAL ANALYST: This a tough question, Marty because I would think that she's going to find that there were some problems here with the way the applications and what happened to them -- the conduct regarding them.
Having said that, the next issue is, what do you do about the ballots that were actually cast because, remember, this has to do with applications and not ballots. And once you start talking about tossing out ballots, you know, you're talking about tossing out ballots that innocent people that didn't do anything wrong -- their votes' not counting.
So that's why we saw a statistician put on but, frankly, I don't know how you get from what the statistician said to picking out a number of votes that should be penalized. It was very difficult for me, I think, to follow it and, I think, for the judge too. And that's where the problem is.
SAVIDGE: Do you think a judge is really going to sit down and try to come up with some sort of mathematical equation to parse out votes and, essentially, decide which vote is going to live and die?
COSSACK: No; in a word, no. And I don't think that she should. I think that the remedy of throwing out votes is the very, very, very, very last remedy that should ever be considered. And particularly when we're not talking about ballots that were in any way tampered with, we're talking about applications for ballots; and so that people who are totally innocent voters -- and the notion that their votes aren't going to count -- is something that's just abhorrent to what a democracy should be.
So, you know, where does the punishment lie? I don't know.
SAVIDGE: And a judge has to, obviously, continue to live on in the state of Florida.
SAVIDGE: And if she were to throw out some 15,000 ballots here -- essentially incur the wrath on 15,000 voters -- and this, in many cases could be elderly citizens here in the state of Florida. It could be military ballots ballots that we are talking about here.
COSSACK: It could be anybody.
SAVIDGE: Potentially, this a nasty group of people that could be coming back at you. Does that weigh at all in the mind of a judge when she makes a ruling?
COSSACK: Well, let me -- let me also add that Judge Clark, like all circuit court judges, are elected by the people of Florida for six-year terms. And I suppose that if they make the kinds of opinions that the voters believe is wrong, that when it comes time for voting, that they'll get paid back.
So, you know, we hope that our -- that when we ask judges to make these kinds of decision, we ask them to make them in a state of mind where politics is put aside and personal feelings are put aside, and that they just decide on the facts, and knowing that if they get voted out of office for doing an unpopular call -- for making an unpopular decision, they at least the benefit of knowing they made the right decision. But, you know, this is a political office. We hope that they put the politics aside.
But I am must tell you, if I was in her chair right now, it would pain me not to figure out a way not to throw out legitimate votes.
SAVIDGE: The Republicans are going to maintain that, you know, that sort of punishment, is, as they use -- to use their words -- Draconian here, and that it would go well beyond what is called for if some correction at all is called for here. Do you think that they have a very strong case there in making that point? In other words: All right, we may be at fault. But you cannot punish by throwing out all of those ballots.
COSSACK: Well, yes, I think they have a very strong point, in making -- in saying that. And they're saying: Look, we may have had someone who did something wrong. But you can't throw out 15,000 votes. That is the just the wrong remedy. On the other hand, I -- one of the problems here is that, you know, it's an enigma, because the other side shows up and says: Well, wait a minute. We didn't do anything wrong. And we were denied -- some of our people, presumably, were denied the right to vote.
So how do you make an equitable decision? This is why I don't envy Judge Clark. And I am glad I don't have to make this decision. But it's clear to me that you cannot be throwing out 15,000 votes because of this.
SAVIDGE: All right, Roger, we are going to stop you there, because we are going to go back to the courtroom now: Judge Nikki Clark once more up at the bench. And we will pick up the proceedings in the Seminole County absentee-ballot request-form trial.
GREG MCNEIL (ph), SEMINOLE CANVASSING BOARD ATTORNEY: My name is Greg McNeil, part of Terry Young here on behalf of Seminole County canvassing board and the other named defendants within Seminole County.
Two days ago, I spoke with Your Honor on dispositive motions. And I said there were two things that the plaintiffs would to have to prove in order to prevail under 102.168: misconduct, fraud, or corruption, and, in addition, to that, that it would be sufficient to change the results of the election. The facts are now in. And they have utterly failed to prove the case under Florida law.
There is not a scintilla of evidence of fraud or corruption. There has been a lot of talk about access and unfettered access and what could have happened -- and a lot of speculation about that. But there is no fraud or corruption. The thread that the plaintiffs continue to grasp at in the realm of misconduct is the act of the supervisor allowing Mr. Leach to complete the unprocessed, Republican request forms. And it's that act which they suggest constitutes the misconduct, which is necessary to proceed in a contest action.
The problem is, with that argument, that they don't have any case law. And there's none in Florida that would ever support that conclusion. The argument goes like this: If you have that misconduct -- therefore, the act of putting the voter I.D. number in -- that's a violation of 101.62. And that is the premise of their argument. And therefore, the violation of that 101.62 -- the absentee ballot law -- is a mandatory provision in the statute.
And since it's a mandatory provision in the statute, the breach of that provision somehow constitutes misconduct on behalf of the supervisor. That's the argument. The problem is, the Boardman and the Beckstrom cases completely undermine that argument. It's been said more times than we probably care to recall, but it's been said -- and the Boardman case makes clear -- that any statutory directive in absentee-voting law is directory, not mandatory, unless the statute expressly invalidates the ballot if you fail to follow it.
That is what Boardman stands for: 101.62 is a directory statute. It is not a mandatory statute. There are only -- and we have talked about this before -- three grounds in Florida election law which are mandatory: the voter's signature, the voter witness, and the -- one other, which escapes my recollection at this point, but none under 101.62, and certainly none that they have alleged in the complaint or any of the proof in this case has gone to.
They continue to cling to the language, though, that says: Well, it says "must disclose." So if it says "must disclose," it must be mandatory, and, therefore, a violation of it is misconduct. Well, let's look... CLARK: Let me ask you a question. And I am sorry to interrupt.
CLARK: There are three things, the failure of which to include would render a ballot illegal.
CLARK: Is there a difference between illegal and void?
MCNEIL: If there is a difference, Your Honor, I'm not aware of the statute or case-law authority that draws that distinction.
CLARK: OK, go ahead with your argument.
MCNEIL: And if you take -- and to show the fallacy of the argument, if you take Beckstrom and you take Boardman and you look at what wasn't done in those cases, you see, for example, 101.64 of the Florida statue requires a voter's certificate on the absentee ballot. That was missing in some of the ballots in Boardman; 101.65 requires specific witness information. That was missing on some of the ballots in Boardman.
Some parts of the Florida statute require postmarking on certain absentee ballots. That was missing in some of the ballots in Boardman; 101.68 requires the canvassing board to open up the ballots. That was violated in the Beckstrom case; 101.67 and 101.68 require that only the canvassing board and the election board handle those absentee ballots once they've been voted. That was violated in Beckstrom.
And 101.65 required those ballots to have the voter's signature in a certain place. That was violated in Beckstrom. Did they throw those...
CLARK: But doesn't the Florida legislature have a right to tighten the requirements for absentee voting?
CLARK: And didn't the Florida legislature, in 1998, do exactly that?
MCNEIL: They did...
CLARK: Tighten the requirements and added very specific requirements?
MCNEIL: They did in fact tighten the requirements. They did in fact add language to the absentee-voter requirements that are supposed to be there in order to...
CLARK: And doesn't the court have give effect to that language? I can't simply ignore it. MCNEIL: No, you can't simply ignore it. But what you can do it apply the test that the Supreme Court in Boardman has set forth in making the determination of whether a statute -- whether it's revised or whether it's the original statute -- is mandatory or directory in nature. This -- the legislature would have the same authority. Boardman has been the law since 1975.
And I would suggest to the court, the legislature could have made that a mandatory statute if that had been their intent. But in the Boardman and Beckstrom cases, none of those violations, which were all clearly violations of the absentee-ballot voting law at the time, were sufficient to throw out a single ballot. They did not throw out a single ballot for those violations that I just cataloged: all of which -- most of which went to the ballots themselves and not the ballot- request forms, which I believe is a big difference.
And the question is -- and Your Honor raised this earlier -- is it reasonable to assume that a supervisor, or the supervisors of the election offices in the Boardman and in the Beckstrom cases were aware of these statutory requirements? Certainly. Was that found to be intentional misconduct, sufficient to survive the Boardman test? No. The fact that they obviously were aware of four different statutory provisions as part of their office did not render those invalid. Why?
Because the Supreme Court, every time it weighs in on one of these election-contest cases, time after time again says the primary consideration is whether the will of the voters has been affected. Their own professor of...
CLARK: Let me ask a question there. Are there -- is it your position that there are no possible violations of the election laws that would void out a vote, even if the will of the people could be ascertained? For example, suppose that a bus-load of folks was going from wherever -- an apartment complex -- to vote -- to their voting place. And let's say they left about 3:00 in the afternoon. They were all excited they were going to vote.
And let's say the bus broke down. There were mechanical problems, they have to wait for somebody to come and repair it. And then let's say the bus didn't get to the polls, to the polling place until 7:02. In a situation that -- and let's say everybody on this bus knows exactly who it is they're going to vote for. In a situation like that, even though the will of the people could be ascertained, because they're on the bus saying what their will is, is that a substantial enough violation where their ballots could be discarded?
MCNEIL: Your honor, I believe the difference there is that where the will of the people is addressed in these case law is where these people have cast ballots, and not a situation where there's a busload of people who are intending to cast ballots whose ballots have not yet been cast.
CLARK: Would it be substantial compliance if they got there at 7:02 even though the polls closed at 7:00 and they were really only 120 seconds late?
MCNEIL: Would it be substantial compliance?
CLARK: Yes. If the supervisor of elections allowed them to vote, even though they were 120 seconds late, would that be substantial compliance?
MCNEIL: It would not be substantial compliance. In fact, the Beckstrom court says in a contest situation you can have substantial noncompliance with the statutes and you can have gross negligence on the part of the supervisor's office, but unless you have fraud or intentional wrongdoing, you do not invalidate the will of the people, you don't invalidate the ballots.
CLARK: So where does the court draw the line between a hypertechnical violation and a substantive noncompliance violation?
MCNEIL: Well, you draw the line where a plaintiff comes in and proves to Your Honor that they have satisfied 102.168 and the grounds specified there. And I suppose that is a case-by-case determination depending on the facts and circumstances.
We've heard them speak about the Bolden case. We've heard about the Miami case. That involved deed people voting by absentee ballots, that involved outright vote buying in the like.
So I'm not suggesting that you can draw a simple black line and rule that will encompass the universe -- we've used that term a lot -- the universe of all eventualities. All that we can do is look to see what Boardman and Beckstrom tell us about how to measure these contests.
So it's our position, Your Honor, that there has not been a violation of any mandatory statute under the election laws nor has there been any misconduct as a matter of law by the supervisor exercising the discretion that she did, which -- as you asked Mr. Young, "Under what authority?" I think the authority is chapter 97 and 98. While it doesn't talk specifically about how you run an election office, it does give the supervisor great discretion, and the courts have upheld that discretion unless there is clear and convincing evidence of wrongdoing.
The only other part I want to address, Your Honor, because I know we've used lot of time here, is that the second part of that test is, even assuming there was misconduct, which we don't, but there's a second part of that test, which they haven't met yet, and that is, would it be sufficient to change the results of the election? And Mr. Young has spoken to that already to some extent.
But the expert of -- I believe it was econometrics or statistics or something. I'll be honest, I don't recall specifically. But he premised his assumptions on the fact that that 1,932 people who did not get their ballots could cause what Mr. Leach -- if, for example, if Mr. Leach hadn't filled in the numbers, they wouldn't have gotten the ballots. His assumption was premised on the fact that those people would not have then voted.
Well, that would be to say that a voter in that same situation would say, gee, you know, the vote -- the election is coming up, I did ask for a ballot, I haven't received it, I'm not going to call the elections office -- I could, but I'm not going to do that. I could go to the polls and vote, but I'm not going to do that. I think I'll just forego my right to vote in the general election this year.
That may be a violation of some law of econometrics, but it's certainly a violation of the law of common sense. And the evidence in this case, the plaintiff's own evidence in this case, is that absentee ballot voters who did not receive their ballots still went to the polls and still voted, or corrected the situation themselves.
So there is no substantial competent evidence to support the second prong of 102.168, the election contest statute.
The -- the -- the one thing about that case, Your Honor, that is most disturbing is that the reputation of a loyal public servant has been ruined in a case in front of the national media, all in the plaintiff's zeal to get a candidate elected. And if the court is looking for intentional misconduct, that's it.
RICHARD: May it please the court, I must begin by respectfully disagreeing with Mr. McNeil in his response to your question regarding the bus hypothesis. I believe that that would be certainly in substantial compliance and would not invalidate the ballot, and in fact, it has long been the history of supervisors in this state, as I recall, to keep polls open late for even such mundane things as lines being too long.
CLARK: My question wasn't the line was too long (UNINTELLIGIBLE). My question was where they didn't get there until 7:02.
RICHARD: If the polls are open and they vote, it certainly would be substantial compliance, and I would think there would be absolutely no basis for invalidating those votes.
RICHARD: If the polls were not going to be kept open, I think they have the ability to appeal to the circuit court to keep them open. But I certainly think there's nothing in these statutes that would enable anybody to invalidate a ballot solely because it was cast after the hour that the polls were supposed to be closed.
It is not clear to me, Your Honor, from -- by listening to Mr. Richman's closing argument whether he is suggesting that the mere fact that accurate information in the form of a voter identification number was added to the ballot is enough to render these ballots illegal or whether he is suggesting that only within the context of the alleged conspiracy that it is illegal. But in any case, I will address each of them separately so that whatever it he means, I will have spoken to it. All of us agree that the Seminole case is the Boardman case. The Boardman case expressly receded from a line of cases in the Supreme Court which had required strict compliance with the election statutes. And in their place -- of course, Boardman gave us the language that Your Honor has quoted and then gave us a bright-line test, which all of us have talked about and I have quoted before. But because it is so explicit and it prefaces my next remarks, with Your Honor's permission I will quote it again.
"Unless the absentee voting laws which have been violated and the casting of the vote expressly declared that the particular act is essential to the validity of the ballot or that it's omission will cause the ballot not to be counted, the statute should be treated as directory, not mandatory, provided such irregularity is not calculated to affect the integrity of the ballot or election."
So the court has given us two criteria under which it is permissible to invalidate the ballot: No. 1, if the legislature has expressly declared that failure to comply with a given provision will have that effect, and that is not relevant to this proceedings, because all of us know that there is no expressed declaration in the laundry list of nine provisions under 101.62 that it is to result in invalidation of the ballot.
Obviously, Mr. Richman is aware of that and has reached that same conclusion, and so he has gone instead to the integrity issue. But I will address that in a moment, but before I reach it, there are several other things that I would like to comment on with respect to the question of the noncompliance itself.
The First District Court of Appeals -- excuse me, Your Honor -- in McLean versus Belammy (ph) at (UNINTELLIGIBLE), based on the Boardman case, expressly held that the failure to comply with section 101.62 did not result in the invalidation of ballots. It said that the failure to conform to the requirements of section 101.62 are not the kind of irregularities that should result in the court's invalidation of the subject absentee ballots.
Mr. Richman responds that it is now different because the 1998 changes to the legislation made it mandatory. Mr. Richman, however, has yet to respond to the point I made yesterday with respect -- I guess it may have been the day before yesterday -- with respect to the House committee report. The House committee report stated: "Although the statute" -- and this is the report that we have introduced the certified copy, and it traveled with the bill that enacted the new provisions.
"Although the statutes emphasize the importance of all instructions, only the voter's signature and the signature and address of the attesting witness are mandatory. All other provisions are directory in nature, citing Boardman."
Now, this reference was to the law as it existed at the time that the legislature was considering the new changes. So the legislature was well aware of the bright-line rule that had been set in Boardman. And they made numerous changes -- Your Honor, is correct -- in response to the problem experienced with fraud in Dade County. And among those changes were explicit changes with respect to the issue of what would result in invalidation of a ballot.
And when went all was said and done, we were left with only one provision in the new law that did that. It was 101.68C and what it did is interesting. It said: -- and by the way, Your Honor, I asked for the distinction between illegal and void and while I would like to be able to argue that there was a distinction because it would serve me here, in all candor I would have to tell you I would agree that there is no distinction that I'm an aware of so far as the legislative intent is concerned.
But here's what 101.68C said. It said that a ballot would be invalidated or illegal if the ballot itself, in fact, the mailing envelope in which the ballot was included, failed to contain the following items: the last four digits of the voter's Social Security number and an attestation by either a notary or another registered voter in Florida and contain the following information on the other registered voter: the name, the address, and most significantly, the voter identification number as well the county of registration.
So, in this one specific instance, the legislature has required among other things a voter identification number and said failure to include it will invalidate the ballot. But that same language does not exist in the provision with respect to the request for the ballot, and that makes sense for a reason that I will get to in a moment.
In any case, Your Honor, I would invite Mr. Richman when he makes his rebuttal to explain to the court why the House committee report should either be disregarded or how it can be reconciled. Now, as I mentioned because I think that Mr. Richman recognizes that he cannot win this case based upon an express invalidation, he moves instead to the provision with respect to integrity.
And his whole case, in fact, has been built around the suggestion that the integrity and the words of the statute are the integrity of the ballot or election have been compromised. He builds his case upon the construction of a nefarious conspiracy based upon facts that I might note, more readily called for an inference of innocence, but nevertheless we will accept counsel's construction of a nefarious conspiracy. But what he fails to tell us and what he has failed to introduce any evidence of is what was compromised.
He tells us that persons had what he calls unfettered access to various private portions of the supervisor's office including a computer, and a box containing requests for absentee ballots and other "stuff," was his words. But never has he even suggested to us or provided us any evidence of what was compromised now. It's my position that there is only one thing that can be compromised that will compromise the integrity of the ballot or the election and that's the ballots. And there is no evidence in this case that anyone ever had unsupervised access to even one ballot, and in fact, if you look at Mr. Richman's timeline, they could not have because there were no ballots at that time, only requests for ballots.
There is no evidence in this case that the ballots were ever compromised and if the ballots were not compromised, the election was not compromised.
CLARK: Let me ask you a question.
RICHARD: Yes, ma'am.
CLARK: If there had been a situation where a supervisor of elections chose to fill out all the information and particularly all the missing information for one party, and denied a request to do the same for another party. Denied a request so that one party had huge numbers of absentee ballots, the other party had none because requests had been denied, would that be sufficient to impugn the integrity of the election.
RICHARD: I think it might be. I think that there are a lot of other circumstances we have to know about, including questions of estoppel, whether the party that was denied deserted their early enough of it to make because if they did not then we would still not invalidate and disenfranchise the innocent voters, but it might.
CLARK: OK, so there are things then that could have taken place before the ballot was actually cast that could go toward impugning the integrity?
RICHARD: I think there might well be, Your Honor, and I don't think that the legislature intended to restrict the court to the degree that only the actual ballot would be affected. I agree with you and your question is an excellent one because it illustrates how different this case is. So, I'd like to discuss for a minute the so- called disparate treatment.
Your Honor, asked a question of counsel, of Mr. Richman that in fact -- it's not that I'm so prescient but I was proud of myself because when you said to him are the circumstances, different I had written down before you said that I promise same circumstances because we all know that that's the rule. That is equal protection rule. You do not violate the equal protection clause because you treat people differently, you violate it because you treat them differently when they are in the same material circumstances.
Now, the evidence was undisputed and here's what it was: Mr. Richman said, as his evidence did, the Democrats did it right for a change. That's what he said. I'm a registered Democrat so I don't mean to disparate the Democrats.
CLARK: Let's keep the party affiliation out of this, please.
RICHARD: He says -- it's been in the news media -- he said the Democrats did it right. Now, that has a lot of significance to this case because Your Honor knows what he means -- you pointed it out. The Democrats had all of these numbers properly printed on the forms and what's more they had the forms return not to the supervisor's office, but to the Democratic campaign office so that before they brought them in they would have unfettered exercise -- access to them and could fix any that were wrong before they ever turned them in. The result was there were no problems with the mass-mailed Democratic requests for forms and no reason for the supervisor to call anybody in the Democratic camp and tell them there was a problem. I might point out, Your Honor, that as I did in the opening of this case that the statute, while not this particular instance, does encourage the supervisor to notify voters to the extent practical when there is problem with what they have filed.
The response that Mr. Richman gives to that is, well, she did not notify the Democrats who didn't get mass-mailings, but she also didn't notify the Republicans who didn't get mass-mailings or at least there's no evidence to the effect that she did, and there is testimony that there was within that shoe box Republican and Democratic requests that were not honored, presumably because they were not in the mass- mailings that were fixed. There is no evidence that there was disparate treatment even with respect to the persons who did not get mass-mailings and who were not notified.
Now, it's interesting to me, and it's very curious to me that Mr. Richman read the deposition of Mr. Livingston and that has in fact made reference to it in his closing argument because I may be missing something here, but it has appeared to me from the beginning Mr. Livingston is one of the best witnesses on the disparity issue for my client. Mr. Livingston testified and it was the closest by the way that anybody came to a change in circumstances, that back in 1998 when he ran for office, he was not -- he was advised when he submitted a request for absentee ballot -- this is my recollection -- that failed to have a voter identification number or some similar information on it that the statute would be strictly complied, but then he said he was a Republican. So what this suggests to me is that this supervisor, who was the same supervisor in 1998, was not treating Republicans differently than Democrats, but at best had changed her policy between 1998 and 2000.
There is no evidence in this case that there was any intentional or unintentional disparate treatment to individuals who were in the same circumstances -- and certainly not a sufficient amount of evidence to suggest that the integrity of the election was affected, or as is necessary, that the results would have been changed.
And this leads me, Your Honor, to my next issue. The Supreme Court of Florida in McPherson versus Flynn. That's 397, (UNINTELLIGIBLE) 665.
... 397, southern second, 665 -- said, "Since there is no common law right to contest elections, any statutory grant must necessarily be construed to grant only such rights as are explicitly set out."
That was a prescient statement by the Florida Supreme Court, because we now have the United States Supreme Court telling us that, at least with respect to presidential electors, that is the only thing that the state of Florida can do.
What the Supreme Court has said, and indeed was discussed in the argument before the Florida Supreme Court this morning, is that it is the legislature and only the legislature that can make the rules with respect to presidential electors.
And here is what the Florida legislature has said: "There is only one way at this stage to challenge an election, and that is the 102.168 contest of election." There is no other way to do it, and based upon McPherson versus Flynn, and also the United States Supreme Court, which interesting -- interestingly was also a McPherson case. I don't know if it was the same Mcpherson.
The legislature said in 102.168, subsection (3a) -- and this is what counsel is relying upon, so I don't make a big deal out of it. But they said that you can contest an election "based upon misconduct, fraud or corruption on the part of any election official or any member of the canvassing board." And here's the portion I desire to emphasize, "sufficient to change or place in doubt the result of the election."
Now, there is not any evidence in this case that one single person cast a ballot that was not counted, provided that that person was fully qualified to vote, or that any single person cast a ballot who was not qualified to vote and that it counted. Not one.
Under those circumstances, Your Honor, I suggest to this court that it is impossible to conclude that this election -- that there was evidence sufficient to change or place in doubt the result of the election.
Now, counsel's response to this, I would imagine, is going to be, oh, but there were 15,000 ballots and all of them are challenged. Now, if that were all you had to do, then 102.168(3a) would be meaningless. It's circular reasoning. The only thing a plaintiff would have say is, I challenge enough ballots so that if I win it would change the result of the election. You can challenge all the ballots. That can't be what the section means.
What it means is you have to prove that enough ballots were affected so they could change the election, and the plaintiffs have not proved that any were affected.
My last comment, Your Honor, is with respect to the remedy. I don't know that it really receives a great deal of comment, but I wanted to do so for two reasons: First of all, it appears to me that Mr. Richman has apparently backed off of the formula suggested by his witness. I'm not sure why. It may be because he, like the rest of us, actually listened to his witness...
But I have to apologize for the court, because I asked one question that resulted in laughs, and I wanted to assure Your Honor that it was not my purpose just to elicit humor by that. I had a point to make.
We've become obsessed in this country with projections as to the winners of elections. I believe that the Washington case is an abomination. For a court to suggest that we have reached the stage now where the individuals who make those projections can tell us who the winners of our elections are is a slippery slope, and one I think which violates undoubtedly the 1965 Voting Rights Act and probably the constitutions of both the United States and the state of Florida. But in any case, there is no authority for any such act in the state of Florida.
This court, if it were to invalidate any ballots, would have to invalidate all of them, and I find no case that has ever, ever justified the invalidation of an election or 15,000 ballots, thereby disenfranchising this many people on the basis of this type of evidence. And I would urge this court not to do so now.
SAVIDGE: You have been listening to Barry Richard, who has been summarizing. He represents, by the way, he's the attorney for the Bush-Cheney campaign in this Seminole court case that is taking place right now. And we are going to hear more from the defendant's side in their closing arguments. But basically, they are refuting all of the charges that the Democrats have made, claiming that there was any malfeasance in this process of absentee ballots from Seminole County. About 15,000 at stake.
DARYL BRISTOW, BUSH CAMPAIGN ATTORNEY: I want to make one comment about the innocence issue, and then I want to focus on the federal question, and then I'll sit down.
Let's first talk about the affirmative defense issue. The evidence in this case that is in the record indicates that sometime in mid-October the radio stations in Seminole County picked up this problem. The evidence in the case indicates that sometime between, I think, the 15th or 16th, 17th of October, and around October 30, the supervisor was on the radio and was interviewed and expressed publicly her concern.
On the 31st, I think, of October the evidence is that the Florida state Democratic chairman had actual notice of this issue and spoke with the supervisor about it.
Now, that was plenty of time for the Democratic Party to have done something that would have notified these innocent people who got themselves an absentee ballot that there might be something wrong with it. You cannot conclude, as savvy as the machinery of the party is, as Mr. Poe is -- he said -- that's not in evidence. You must assume that he knew he had the machinery available to him to do something and do something quickly. For reasons that are not in the record, he chose to do nothing.
And this election went forward and these people voted, and it was not until the ballots were being canvassed that the plaintiff, Mr. Jacobs, appeared and filed a protest. And what we have in the evidence is the testimony, the deposition testimony of Mr. Leach that just before that Mr. Jacobs identified himself as a Democratic Party attorney there representing the interests of Vice President Gore.
So you have a chain of agency and relationship between the plaintiff, the Democratic Party, the chairman of the Democratic Party, and clear knowledge about what was going on in plenty of time to do something, to take some action rather than to lay behind the law and wait until this contest.
Let me answer -- try to answer one question that you put to us that I at least thought had some real concern for you. The question that I thought you said was: "Tell me by what authority this supervisor could permit somebody in her office to write on one of these request forms."
And I'd like to take it in kind of a chain. Suppose I were just a little more elderly than I am and I didn't see well, and I asked somebody, "Would you please fill out my request form for me?" Not the Republican, just a request form. "Put in my voter ID number," and they put it in, "and take it down and get it filed." Files it. That nurse or sister or brother or whoever it is starts to leave the office, says, "My gosh, I've transposed the..."
SAVIDGE: This is Martin Savidge in Tallahassee, Florida. You are looking at proceedings that are taking place in Leon County Circuit Court, specifically in the courtroom of Judge Nikki Clark. This is a case that originates from Seminole County. It is a challenge that has been made by a Democratic attorney down there, challenging the validity of absentee-ballot request forms, and, in essence, the validity perhaps of a many as 15,000 absentee ballots from that particular county.
Daryl Bristow is the attorney speaking now. He represents the Bush campaign. We are in the closing-argument stage of this particular trial. And you can hear those arguments are continuing.
BRISTOW: ... undertaken responsibility to put the number on there, that by her act of signing, she had relied on, delegated to and given responsibility to the party to put it on right, and that that would be substantial compliance to allow for the supervisor to say it's OK for the -- for the party who was delegated the responsibility to make that change.
On the question of innocence, I thought it was pretty notable that when this young man, Leach came in, and sat down to do this job, and began to make these changes -- and the evidence is he got them all right, or he got most of them right -- he made those changes on -- he had these in his computer. And it showed whether it was a Republican or a Democrat. And the records show he made the changes for Democrats, who had been in the household and used the Republican form.
Now, if there were a conspiracy, an effort to try to disenfranchise people, an effort to do anything other than what he said he was doing -- which was taking responsibility to correct a mistake, a simple error that the Republican Party had responsibility for -- he wouldn't have been doing that. Let me talk about the federal law, 47 USC, 1971 (a2b): "No person acting under color of law shall deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under state law to vote." I want to kind of parse through this provision for a moment, because it speaks to an error or omission on any record or paper relating to any application. Now, what is the claimed error or omission on the paper? It can't be the number, because the number's right. The error or omission complained of here on the paper, relating to the application, is that Mr. Leach came in and hand-wrote that correct number down. Now, if that error -- that is, that instead of the voter writing it down, Mr. Leach wrote it down, that's the error.
Is that an error -- writing down the right number -- is that an error which would relate to any application, and it would be material to determining whether such individual is qualified to vote? You well know, Your Honor, what the election law says about what the qualification to vote is. It is set forth in the election law. And it basically says that: A person is at least 18 years of age. A person is a citizen of the United States. A person is a legal resident of the state of Florida, and is a legal resident of the county in which that person seeks to be registered and registers.
This ministerial act, this error complained of, of a second person other than the voter putting this number on -- the correct number -- cannot -- cannot be material to that determination. And to that extent, federal law has preempted the field and said: You can't enact a law that's going to abridge the right to vote. The constitutional argument we have made before. I made it to you, Your Honor, when we opened. And I'm not going to go through it again.
There's this 1st Circuit case that think I cited for you before. But the bottom line is: This is a fundamental right, the right to vote. Here, let's just assume the supervisor did something besides something that was in minor noncompliance. And we're going to take that minor noncompliance -- because of that noncompliance, she has led the voter to believe the voter has done what the voter needed to do to vote.
That process is state action. Now, if we add upon that a court saying that state action which led that voter to believe they had a right to vote was wrong, the vote is canceled without any notice and right to change it, that 1st Circuit Court says that's a violation of due process. So this is a -- I mean, this is a clear Florida issue. But it is a federal-law issue. It is a constitutional issue. And it is, when I -- we back away and look at the big picture, it is such a fundamental fairness issue.
I close, Your Honor, being a visitor to your state and to your town, to say to you: Thank you for the courtesies that this courtroom and your staff have given to me. Thank you for the attention you have given in this most important case. I appreciate my time here. Thank you.
KENNETH WRIGHT, FLORIDA GOP ATTORNEY: Your Honor, I will be extremely brief. I have been relegated the task of clean-up. And with the -- with, I think, the very, very good job of my colleagues making a very cogent explanation of the law in this case, there is not much left. And it's compounded by the fact, Judge, that it really is a simple case.
I want to answer just a couple of questions that haven't been dealt with, with regard to an area of law which I agreed to pick up, which is the distinction between the pre-election processes and the post-election processes. And it may be best addressed by taking your analogy of the people going to the poll and arriving there a couple of minutes after the close of the 7:00 posted poll-closing.
And while I won't disagree with either of my colleagues, I think that Mr. Richard is exactly correct. And I would go further and say that I think there is a bright line. And it is: When does the vote take place? These pre-election irregularities are not discarded. And I think Your Honor said something the other day about having some discomfort with making a ruling that would tend to ignore them. Many of these provisions are there to provide for post-election prosecution, for fines, for felony convictions, for other remedies.
They're also there to afford an opportunity for someone to make a challenge against an irregularity, or an illegal activity, or some wrong as between candidates, and between an activity that may otherwise result in an election being challenged, as in this case. I agree with Mr. Bristow. I think that if the Democratic Party had known of these circumstances, that the responsible thing to do -- and I think that very likely they're estopped now to do it -- was to bring an action and bring this issue out and have it dealt with before the votes of 15,000 people were placed in jeopardy.
The question is when the vote takes place. If your people had arrived and the supervisor made a judgment call -- and these people are on the frontline, Judge, and they have to make calls. There's no time to deliberate. Decisions have to be made. He's got a bus-load of his constituents, people who are trying to vote. And he makes a decision that, under the circumstances, as Mr. Richard has said, that they can vote at 7:02, once they vote, the courts then say: Something just happened.
And there's Your Honor's bright line. A fundamental right has now occurred and we're not going to take that right away after the vote because of a pre-election irregularity, barring one circumstance and it's been talked about today: fraud, substantial fraud -- not fraud in the sense that we would use in commercial transactions, but a fraud of the system such that it would permeate the entire election process. Such that you could not say that the will of the people had been expressed.
That is the test, and Mr. Richard is exactly right in the context of my argument: That could not have occurred because there has been a good election.
And I would state, your honor, lastly -- and I'm going to sit down, Pearson versus Taylor, you have that cite, I know your honor has probably read it enough already. And that is the case that I have nicknamed "the good election cures pre-election irregularities." And that is, we have uncontroverted testimony in the record stipulated that there has been a good election and these irregularities, whether they did occur or didn't occur, absent the kind of proof that this plaintiff has not brought to the court -- that election stands and these voters should not have their votes lost.
I will answer your honor, and I wrote down the two questions you asked when this case began, and I'll answer them briefly. You asked whether the addition on or completion of an absentee ballot request form is sufficient to invalidate the ballot. Based on the argument that you've heard from my colleagues, I think you can answer that question in the negative.
You also ask where Democrats and Republicans treated differently such that the integrity or legitimacy of the election was affected? And I think you can answer that question in the negative.
And I think, having answered those two questions, you should rule with the defense in this case. Thank you, your honor.
SAVIDGE: And so you've been listening, there, to Ken Wright; he is the attorney that represents the Florida Republican Party in this particular case. And that would appear to be -- well, maybe the end of the closing arguments. We also anticipate some rebuttal as well.
We're going to go back to the courtroom and listen.
UNIDENTIFIED ATTORNEY: ... the secretary of state and the elections canvassing commission, who I'm honored to represent.
Foremost is the interest of the thousands of voters whose voices the plaintiffs seek to suppress. Every voter the plaintiffs are attacking is absolutely, completely innocent and the plaintiffs do not attempt to assert otherwise.
Second is the good people, the elections workers and the canvassing board; these good people who toiled away at a thankless job under enormous pressure. These people who now find themselves called felons and frauds and criminals and conspirators. And for what? Because they decided that it was more important that qualified people have the opportunity to vote -- people who had innocently and obviously attempted to assert that right.
Your honor is right, there are limits to substantial compliance; but we are nowhere near them. The plaintiffs have shown nothing in this case to permit the disenfranchisement, to permit the silencing of the votes, to permit the silencing of the voices of the people of Seminole County. The secretary and the commission, your honor, submit to your wisdom and to your judgment.
MATHEW STAVER, ABSENTEE VOTER ATTORNEY: Your honor, I'll make my comments brief.
The Florida Supreme Court and the federal court have indicated that the right to vote is the right of all rights. The Supreme Court just recently said, in looking at the declaration of rights the right to vote, by refusing to recognize an otherwise valid exercise of the right of a citizen to vote for the sake of sacred, unyielding adherence to statutory scripture, we would say, in effect, would nullify the right.
The same Supreme Court earlier said that the electorate's will is primary and that it is primary to effect its will in spite of, and not reliant upon, hypertechnical compliance with statutes. That's the object of elections when looking at the right to vote.
The Supreme Court, in another case -- in fact, just a few weeks ago, the Harris case said this court commented that the will of the people, not a hypertechnical reliance upon statutory provisions, should be our guiding principle in election cases.
The United States Supreme Court has echoed the same thing. It says no right is more precious in a free country than that of having a voice in the election. The Supreme Court said of the United States that any infringement on the right of citizens to vote must be carefully and meticulously scrutinized.
The same United States Supreme Court said that the right to vote is a civil right of the highest order. And if we think about the rights that we enjoy, the right of all rights is the right to vote. Any infringement on that right to vote, according to the Supreme Court, must be met with extreme, exacting scrutiny. The government must have a compelling interest of the highest order to restrict it, and when it tries to restrict it, it must achieve it in the least restrictive means available.
If there's any other means to achieve its interests, the government must pursue that means. In this particular case, it is just the opposite of the history of the struggle of this country. The struggle of this country has been about breaking down barriers to the right to vote. Breaking them down over race, gender, taxes at the polling place, age, and geographic location.
And yet the plaintiffs would want to erect a barrier of a voter identification card. In the face of the highest fundamental constitutional right that we can think of in this country, that seems to be ludicrous. Now, does the government have an interest? Certainly it does: to prevent fraud. But can it achieve that interest in a lesser restrictive means than disqualifying one or, in this case, 15,000 votes?
And the answer is, absolutely. The voter identification number is not necessary to determine whether a person is qualified to vote in the state of Florida. The signature on an absentee ballot, the address on an absentee ballot is sufficient to identify that person. The voter identification number is not.
If that's the barrier; if the interest is to prevent fraud, then the government must achieve that interest in the least restrictive means available. It can't put the barrier of an identification card when it can achieve that interest of preventing fraud in some other less restrictive manner. The right to vote by absentee for the president of the United States is just as fundamental a right as the right to vote at a ballot box, contrary to the plaintiffs -- and they will just simply not address this statute: the right to vote by absentee for president of the United States is not a privilege. It is a fundamental right under the voting rights Act of 42 USC, section 1973.
Your honor, as was already mentioned, 42 USC, section 1971 says that you cannot invalidate someone's application to vote because of an error or omission if that error or omission is not fundamental to determining whether the right to vote is permissible under state law. The error or omission of an identification card is not material to determining that particular issue.
When we look at the remedy that they're requesting, even the disenfranchisement of one voice in this case is a price too high to pay for some voter identification card which is not material to preventing fraud, which is not necessary to determine whether someone is qualified to vote. And when we look at the statute, specifically 101.62, it does not specify a remedy for failing to list an identification number. It does not say that the application is void, as 101.68 says in the casting of an application, or the actual ballot.
Interestingly, you can actually cast an absentee ballot without putting your voter identification number on the ballot; and if that's the case in the actual casting of the ballot itself, why is it necessary to put it on the application? There is no remedy under 101.62 that could actually disenfranchise one person in the state of Florida for leaving off their voter identification number.
The people that we're talking about that are possible disenfranchisees -- I want to defer to one of them that I represent, Helga Powell (ph), 66 years of age, and I want to just briefly read something from her that's...
CLARK: Excuse me; don't. And the reason is that's not in evidence.
STAVER: Yes, it is your honor. The affidavits have been submitted into evidence.
CLARK: Those are your affidavits? OK, go on, go on.
STAVER: Exactly, and so I'll close with this, Your Honor. This is one of my clients and one of the things she said is if I hadn't received my absentee ballot by the mail, I would have called the supervisor of elections to make sure I got it. And she says this -- I was born in Nuremberg, Germany during World War II and under the Nazi dictatorship. I was a member of the Hitler Youth because it was required to attend school and during those times we could not protest any form of governmental action or decision for fear of being persecuted or put to death.
Shortly after the war, I married a member of the United States Army and came to the United States by choice. I have chosen this country as my home country, and I know firsthand the price that citizens of a country pay when they have no right to vote for representatives and have no voice in the governance of their country. As an American, I hold my right to vote in the highest regard, and it is the most precious right I have.
This is my first public protest for any reason, but I hold my right to vote so dearly, and I feel so strongly that my right to vote should count. that I cannot remain silenced.
Your Honor, I beg this court not to silence Helga Powell or any other voter that voted by absentee in this case over an ID number that is not necessary to determine whether he or she is qualified to vote. Thank you.
CLARK: Mr. Richman?
RICHMAN: I'm most intrigued, Your Honor, by the fact that the busload issue has come up because we had a number of examples that we're going to give to Your Honor. I didn't have a chance to give it before. The busload idea is precisely on point because what happens here in effect is a busload of Republicans are given an opportunity and the Democrats and independents are shut out. That's what was not included in any of their responses.
There are several examples -- in fact, let me, if I may, get to one particular point because the busload example that was given by Mr. Wright, if I heard him correctly, he said that it's a judgment call by the supervisor and everything it's OK -- it's OK for the supervisor to do that for a busload of the supervisor's constituents. I mean, I don't think we could possibly be more on point here when you got a Republican-elected supervisor doing something in effect for her constituents. She was a candidate in this election thought she wasn't in this particular vote because she'd already been elected without opposition.
The hypocrisy, basically, of what's being presented here is look at what happened in the other cases relating to, for example, Palm Beach County. Look what happened with regard to the secretary of state, Harris as to what she wanted to do, cut off the recount. Don't get to the will of the people. It doesn't matter. We've got a specific date on which we've got to certify. That's what we're going to do.
RICHARD: I object. There's no evidence to these other things.
CLARK: Objection sustained and I don't want to take up the other cases and I don't even want to address the other cases. This one is a significant enough case for me that I'll address just the issues in this case.
RICHMAN: That's fine, Your Honor. Point being, we're here to enforce the law, what the law says in this case in the 1998 amendments by the Republican legislature. We're not asking the court to be lax in those standards or to bend those standards. And our position is that's exactly what the defendants are asking the court do in this case, is in effect to change the standard that's been established by the legislature. Let me take these very quickly serially to respond. In the 1971 -- unless Your Honor has any questions on 43 USC 1971 and I've heard none in the bench, I'm not going to take any time...
CLARK: I'll let you know when I have questions.
RICHMAN: On that particular one, we would rest really on our brief and emphasize the fact that that statutory provision was precleared by the Department of the Justice. It just simply has no application whatsoever to anything in this case. The -- with the argument with regard to Mr. Young, the -- what is totally ignored in here is what does the signature mean?
The signature is the point at which the right to change or alter something ends, like signing a check. And take -- take a look at -- I got the statutory book here. I really liked Mr. Bristow's example of the nursing home. In a nursing -- or a supervisor coming in some supervision to help somebody. Perhaps not being a Florida lawyer, Mr. Bristow is not aware of the fact that the legislature has specifically addressed that kind a problem but by providing assistance for people in that situation, which is not applicable. And that's Florida Statute 101.655, supervised voting by absent electors in certain facilities.
So the example that he gave has absolutely no application under Florida law. What is undisputed here is that there was a basically, a change in policy in terms of what they did. But, Your Honor, not a change in policy of what appears on the Web site from 1998 to the year 2000, and this is what's so important. Everybody is advised all of the information above must be provided or the request is considered to be void. That's the policy. That's what everyone is told.
But Democrats, independents, anyone else who didn't happen to fill in these particular cards is not told of the internal change of policies as to what happens and how this is being handled differently. And the example about disparate treatment, what I understand as being said is that if you have Democrats who made the same mistake, you could have some kind of an argument that the Democrats should have been given the same opportunity and since the Democratic Party as the party didn't make the mistake, then you don't have disparate treatment.
The disparate treatment isn't the universe of Republicans versus Democrats in a mailing. The disparate treatment is the universe of the Republican group that's here versus every one else -- Democrats, independents and anyone else that's involved. It also would include perhaps some Republicans who didn't use the Republican mail-out card.
But the point of it is they're taking this group of people and they're treating them one way as Republicans on these cards and they're ignoring the rest of the world which don't have happen to be of their party, and don't happen to be of the supervisor of election's party. That's the absolutely disparate treatment and disparate treatment does not end with just filling in the numbers. Disparate treatment is taking a public office and turning it into an arm of the Republican party to make a change that they had absolutely no right under the law to change. That's the disparate treatment that's involved.
Commenting quickly, Mr. Altiero, the -- on October 17th, the one important bit of information about the reporter in his radio show is that at the time he goes ahead and carries on with what Sandra Goard said, it's her concern that these are mostly Republicans that are that doing it. That's her political party and partisan concern and after that, does she volunteer to this reporter that Mr. Leach is there? And I have to say, it's unclear in the record whether Leach was already there but I think he had to be at the time this conversation took place on the 16th and 17th, because we've had some indication of data going in prior to that time. But the point of it is, she never publicly does it until he finds it out.
And nobody is told about that and his business about Mr. Poe. Very interesting. Why didn't Mr. Poe do something on October 30th? Well, I think, Your Honor has been very strict enforcing not allowing speculation. We don't know. They could have called Mr. Poe. They could have asked him this question. They could have ascertained what remedies there were. That's the red herring thrown into this case, and we are not the Democratic Party. What Mr. Poe or what Mr. Poe might have done is pure speculation in this case and has no bearing on the basic issue as to what happened.
What we're really talking about is the integrity of the process. And by the way, I also heard a comment -- he said: Well, who knows what could have been done by the Democratic Party? Who knows what they might have done when they had possession of these cards, since the law allows them to go ahead and in effect bundle the absentee ballot request forms? We all know that it's illegal to bundle the ballots themselves.
But the request forms can come in bulk. Counsel has perhaps overlooked this stipulation in paragraph 28, where it is stipulated by both sides in the last sentence of 28 that says, quote: "There is no evidence and none will be presented indicating the Democratic representatives altered, added to or changed any absentee ballot request forms after they were received from the requester."
So, that has totally been stipulated in this record.
The -- one comment on the remedy issue, and I'm trying to do this in the order in which they spoke. We do not have the burden under the law to prove what -- whether or not these people, the universe of whether it's 2,126 or the 1,932 that actually voted, would have gone to the polls or how they would have voted. That's absolutely what we can't find out.
And if -- if the plaintiff in a case like this had that burden, no one could ever win a case involving absentee ballot requests or absentee ballot request forms. That -- there's not a single case that says that there's an obligation to go ahead and prove what would have happened under those circumstances. And that in effect would be the rankest of speculation on our part. That's what the courts in effect have recognized.
In -- in the -- the busload example, the busload -- I'm sorry. I've already covered that.
I did want to mention the McLean case, since I believe Mr. Richard relied on that. And I would say to Your Honor simply that that case is completely distinguishable.
First, it was the pre-1998 statutory changes. Secondly, it states that the sanctity of the ballot and the integrity of the election, if they are not -- if they were not maintained, a different result would be proper in their case. And in our case, we have the sanctity of the ballot and certainly the integrity of the election in question: the sanctity of the ballot in the sense of how they get the ballot to begin with in violation of a mandatory statute.
And while I'm on that, here's the legislative history that Mr. Richard keeps relying on. He asked me -- challenged me to come up with an answer with regard to the legislative history. And the answer is simply this: If one takes a look at the -- and I'm looking for a page number on here; it looks like page eight of the portion of the legislative history. And I will quote it to Your Honor. It's very short.
It says: "Although the statutes emphasize the importance of all the instructions, only the voter's signature, and the signature and address of the attesting witness are mandatory, all other provisions are directory in nature." And what does it cite? It cites 101.65, which relates to ballots and not absentee ballot request forms, and 101.68(1)(c1).
So the language that he's quoting to Your Honor is wholly inapplicable to the issues in this case. What he's talking about is what is mandatory in regard to the ballot, not what is mandatory under the legislative changes in 1998 with regard to the absentee ballot request forms.
Further on McLean. McLean, one of the things they say is that to be entitled to an absentee vote, you're entitled to it when you do whatever is required by the statute. That in effect would support the position in terms of what happened in this case.
And finally, in that case, we note that they didn't find fraud. The court noted simply that the -- the conduct in that case, which is far different from the intentional wrongdoing in this case, is the conduct was only the supervisor encouraging voters, encouraging voters to vote for his party. And in that case, the way it was done under the facts of that case, the court made an expressed finding that it was simply negligent.
And certainly, under the facts of this case, one cannot find that what the supervisor did here -- with all her knowledge, that it would be wrong for her staff to do it -- was simply negligent in allowing the Republican Party multiple operatives to come into her office.
We also hear about the will of the voters, but when counsel talks about the will of the voters, they ignore the second prong of the test is, and that is, as we've repeated over, and Your Honor pointed out as being one of the issues -- the integrity of the process.
Our expert briefly. The expert, they say, presumed that these people would not vote. To the contrary, Your Honor, what the expert did in his direct testimony is he simply made no assumption. All the expert did -- and we put him on for a very limited purpose -- was to simply say, if you took the pool, and then you wanted to say, "Given the fact that there are registered Republicans and registered Democrats, which way is it more likely that they would have voted?" -- and now I've given Your Honor the other example in my opening statements, opening argument, I should say, that the ratio of people who voted absentee is just about the same as the people -- as the ratio of the -- in other words, those that voted is about the same on a 1-to-1 basis in terms of the outcome of what registered Republicans and what registered Democrats do. So it simply offers Your Honor a basis to look at that.
If I were the defendants, I would also take the position that don't look at an alternate remedy, because let's face this court with what we are able to recall a draconian remedy.
And by the way, if you talk about draconian, in the city of Miami case, 40,000 ballots were thrown out, not 15,000. We don't know how many of those were absentee ballots, but a total of 40,000 were thrown out.
But we came back and we said, here is an alternate way to rule. If -- though it would be setting new precedent in Florida, but at least doing something with regard to what's happened to the entire integrity of the process here. And that's why we gave that to Your Honor, but underlining that there's no Florida precedent in the cases that have done it, one being Alaska and I believe the other being California.
A few other brief thoughts. The -- under 101.62 -- and I think this is probably -- a couple of comments, and then I'll conclude on this note.
That -- it is interesting to see that Mr. Richard disagrees with his colleagues about what substantial compliance is. My simple response is I don't know how, if you have a statute that is mandatory and if you have a violation of the statute being punishable as a felony, that failing to comply with the statute and the legislative intent to clean up abuse with regard to absentee ballots could possibly be considered as something that is either not material or that it is substantial compliance to ignore one of those requirements.
It's simply -- it's kind of like saying, what do you mean by is? What do you mean by void? I mean, void is void. Mandatory compliance is simply mandatory compliance.
Comment was made about Mr. Livingston. Mr. Richard, I think, misspoke, because I don't think that he meant Mr. Livingston. Mr. Livingston was the man with the medical problem who had been the supervisor of the courts -- a clerk of the courts rather in some place in Virginia. He means Mr. Ray when he was talking about the disparate treatment issue.
The point of the testimony of Mr. Ray -- and you recall, Your Honor, he was the one who sought to get the 37 -- the signatures rather to save the $3,700 fee, which he ultimately had to pay -- was disparate treatment, but it was something else.
And the something else was Sandra Goard saying: You cannot change or alter public records. These petitions come in. You don't have the voter I.D. number. You can't alter them by adding it. That is the disparate treatment. And that's what Mr. Ray was called for. Mr. Bristow, I believe it was, said: Well, on October 30th, you could have done something else to notify the people. The Democratic Party could have done it. Somebody could have done it.
Aside from the fact that there is a lack of evidence, one of the things that was suggested to Your Honor in one of the statements made during this case was: Well, they could have set up phone banks, perhaps. Republicans could have set up phone banks, Democrats. Your Honor asked this question: If the Republicans Party was going to follow the law, and they noticed this problem on October 10, where was the burden?
Who's supposed to solve that? Republican Party could have set up phone banks. The Republican Party could have gone on the news. The Republican Party could have done a lot of things. But what they chose to do is violate the integrity of the process. And finally, let me end with these points. Succinctly stated, Florida statute 101.62 has been totally violated. The voters did not comply with the law. The supervisor of elections, by assisting the Republican Party, did not comply with the law.
What they did is void -- just as the supervisor of elections said -- as a matter of law. Mr. Leach, under the law, is not a lawful requester. The signature is what determines the lawful request: a signature with all of the information required by the statute. To do otherwise would totally violate the legislative intent. The second prong, and the justification for all of these ballots being thrown out: disparate treatment under the law.
What's the disparate treatment in brief summary? It's taking -- first it's the act of what Leach himself did within the supervisor of elections' office, using the supervisor of elections' staff. And one of the points that I may have not emphasized enough is: It wasn't just simply giving him a chair, as Mrs. Goard publicly stated. "We just gave him a chair," is what she said to Mr. Poe, in accordance with the testimony.
She gave him the office. But then she used her paid staff to go ahead and bundle these things up, separate only the Republican cards from everyone else, and just go ahead and use those, and then feed them to him. And they didn't just do it once. Day by day by day, as the cards came in, they were fed to Mr. Leach all the way until, I believe the date is November 2 or November 3. Just on the eve of the election, he sat there, while, from October 10 on, the entire other universe of voters isn't helped.
No letters go out to them, no phone calls, no notice whatsoever. It's giving Leach, the Republican operative, and the two other operatives access to the public's space. And it's taking what is notice to the world that if you don't do this right, it is void, as has been on the Web site, and then turning around for one group and not treating it as void.
We believe, Your Honor, we have more than met the burden in this case on every one of the essentials of Boardman, in a case of intentional wrongdoing, no substantial compliance whatsoever, and that the only remedy in this case -- and it is a case that has to send a message and establish a very important precedent, is that, if standards are loosened in this case, and they are allowed to do what they did in this case -- go back to the old law-school thing about parading the horribles -- but what comes next?
What standard do we get away from? Is next time, can they accept it without a signature there? Can Mr. Leach come in and sign for somebody? What else would come next if the court does not enforce the law in this case and provide the relief that is afforded and provided for under cases that have dealt with the issue of, basically: fraud, corruption, intentional wrongdoing, but basically an interference with the entire integrity of the process.
Your Honor, on behalf of myself and my numerous volunteer lawyers here and my client, we thank you very much for your attention, information, and for the assistance of your staff. It's lot better here than it is in other places I've practiced. You have got a great group to work with. Thank you very much.
CLARK: You're welcome.
Let me just make a couple points. One, I do appreciate the staff I have got to work with. They have been wonderful. But the second thing I need to make note of is: My job is not to send a message. My job is to rule on the case before me. My job is to apply the existing case law and statutory law to the facts as I find them from the evidence. With that, I will note that I will make a written ruling on this. I certainly won't delay on it. But I can't tell you exactly what time. When it's issued, you will know. The court is in recess.
UNIDENTIFIED MALE: Thank you, Your Honor.
CLARK: You're welcome.
SAVIDGE: And there you hear the final comments from Judge Nikki Clark. This brings to an end the trial right now -- except, obviously, for the judge's decision -- in the Seminole County case, in which there are about 15,000 absentee ballots that are at stake here. Now, it is not the ballots that anyone is really questioning here. It is the process that got those absentee ballots into the hands of some Republicans.
Essentially, what was being questioned here were absentee-ballot request forms that apparently were missing or did not have properly printed upon them the voter identification numbers. Thereby, once that error was noted, the supervisor of elections in Seminole County made it clear to the Republican Party officials that there had been this error. And there were election workers that were sent over to correct the error, fill in the voter identification numbers, so that those requests could be processed and so that the absentee ballots could be sent out.
The Democrats have been charging, in this particular case, that that was not only unfair -- because the Republicans had access to these request forms -- that it was improper. And they also say that it was illegal. The Republicans have been responding and saying that that is not the case, and that there was no impropriety here. But above all, they are saying that even if the judge did find some illegality, you cannot throw out all of those absentee ballots. It has been two days of testimony here. In some cases, it's been very grueling, because we've had two cases going on at the same time: Martin County, Seminole County.
I'm going to ask you basically to tell us: Who do you think did the better job in presenting their side of the case?
DAVID CARDWELL, CNN ELECTION LAW ANALYST: Well, I thought both sides did a good job of presenting the case that each of them had in the short that they had to prepare for this. Though, in some ways, they had a little bit more time than the election-contest case, because this case has been brewing out of Seminole County for a couple of weeks.
But the real difficulty here, as we have seen with some of the other cases in this election, is it comes down to differing interpretations of the same set of facts, the same laws, the same case law. So the plaintiffs, on behalf of Harry Jacobs, put on the case that showed that a Republican operative was allowed in the supervisor of elections' office, was allowed to add numbers to a form which had not been printed due to a computer glitch.
But it was just the application for the absentee ballot, not the ballot itself -- very clear that the Democrats did not do it. But the Democrats did not ask, according to the testimony that was presented. So what it really turns on is: How do you interpret whether or not that was disparate treatment? Was one party treated differently and given some favoritism over the other? But even when you get past that point, once you have even determined: All right, we recognize something occurred here that shouldn't have occurred.
Does it rise to the level that you throw out 15,000 ballots? And so there was a lot of discussion about the right to vote, the need to try to preserve those voters who complied with the law, to make sure that their votes are counted. So we got a little bit of a civics lesson through this case, too, with people arguing and bringing up old voting rights' cases and excerpts from various publications about the right to vote.
So what it really -- I think it really turns on -- and what we saw -- I think part of the weight that's on the judge here is she may say, something was wrong here, but do I want to throw out all of these ballots that were cast properly because something happened before the election took place.
And one comment that was made by one the speakers was a very good one, when then cited a case that said a good election helps solve anything that occurred that was wrong prior to the election. And that's basically the old saying, you're not entitled to a perfect election, just a fair one.
SAVIDGE: That's a good one. One of the points that the defendants in this case, the Republicans, hammered in at the very end there in the closing arguments was the sanctity of the vote here. And that seemed to be that they were obviously sending a message to the judge here that, all right, perhaps there may have been an appearance of impropriety here, but do you punish the voter -- and who you punish, and is, as they say, fair to silence the voices of 15,000 people from Seminole County.
A very powerful argument to end on when you're dealing with an election.
CARDWELL: Right, and this Florida Supreme Court has been very strong in its statements. The case that the viewers would have heard referred to constantly is the Boardman decision. That involved a judicial case in the '80s. And that case said, basically, to the election officials, if there's any way you can count a vote, you should count it; you should not throw it out for technicalities.
That predated the existing statute on absentee voting; so another thing the judge has to weigh is, is that case law still good or do I have to look to the new statute?
SAVIDGE: And now wait for a ruling. David Cardwell, thank you very much.
Not only that ruling -- we are, essentially, waiting for three rulings in Tallahassee. Any one of them could change the outcome of the election. We'll take a break; our coverage continues after this.
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