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CNN Today

The Florida Vote: Judges Postpone Pivotal Decisions on Absentee Ballots

Aired December 8, 2000 - 1:00 p.m. ET

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

NATALIE ALLEN, CNN ANCHOR: Last we heard, and this is subject to change, we are just about one hour away from circuit court rulings in Tallahassee that will decide the fate of thousands of absentee ballots cast in Martin and Seminole Counties. If the judges decide to throw those ballots out, they will throw the presidential election to Vice President Gore, at least until the inevitable appeal.

An equally momentous decisions could be handed down at any time by Florida's Supreme Court on Gore's last-ditch appeal of his election contest defeat.

But we begin this hour with the back-to-back ballot cases and CNN's Gary Tuchman, who's at the Leon County courthouse -- Gary.

GARY TUCHMAN, CNN CORRESPONDENT: Hell, Natalie. You just said three very important words: "subject to change." Right now the decisions are scheduled to be announced right behind me here at that podium between 2:00 and 2:15 Eastern time, but they were originally supposed to be announced at 12:30 Eastern time.

And what the court decided to do was allow all the lawyers in both cases to go to the court administrator's office to find out the decisions before we did. The reason cited by a press spokesman here is that it was important for the lawyers to find out before CNN told the world and the world found out.

So about 20 lawyers from Seminole County, from Martin County, from the Republican Party, from George W. Bush's litany of attorneys and also from the plaintiffs in this case went up to the office on the second floor of this courthouse. They had the meeting, they were expected to come out and know the decisions; instead they were told that one of the two judges, either Nikki Ann Clark or Terry Lewis -- Clark is doing the Seminole County case, Lewis is doing the Martin County case.

Hadn't completed the decision yet. They want to release both decisions at the same, so now the announcement has been delayed until 2:00 or 2:15.

Now, my colleague Mark Potter has also been covering these cases here in the Leon County Circuit Court. He's outside right now, not too far away from me -- probably about 150 feet away from me; but he's been talking to the lawyers who have been gathering outside. Mark, what are the lawyers saying to you?

MARK POTTER, CNN NATIONAL CORRESPONDENT: Well, they're saying they're trying to figure out what to do with the next hour. They came here expecting to hear a ruling and they didn't hear it. So, one said he was going to twiddle his thumbs -- he actually said that. And another said that he'd be going to lunch.

When I asked them how they're feeling -- more seriously -- when I asked them how they were feeling about this, they said they were cautiously optimistic. They're nervous. They believe, both sides, that they have good cases but this is the moment of truth that always comes in a trial, and no matter how seasoned you are as an attorney this can always be kind of a tough time, waiting to hear what the judge's ruling is.

I also spoke with Harry Jacobs, who is the plaintiff in the Seminole County trial. You might remember he's the attorney from Seminole County who's also a Democratic Party activist. He says that he's just waiting to see. He's nervous and has already prepared his appeal, should he lose. He's also prepared to respond to the other side if they appeal. So he's prepared to make sure that this is not the final ruling in this case, one way or the other -- Gary.

TUCHMAN: Mark, I think one thing that's interesting -- we've been seeing these attorneys for more than a week now and they've all tried to sound very confident. At times some of them have been swaggering.

But I'll tell you, when I watched them go into the office a short time ago to hear the decision they very nervous. They were quiet, they were subdued; and then, when they came out, they were once again swaggering again because they have another hour to wait.

But I'm wondering -- one thing we've been talking about, Mark, you and I -- one thing we've been talking about is how important -- there are two factors to this case. The judge doesn't just have to show that the plaintiffs are right and that the Bush side is wrong and that these counties are wrong; they have to show something else.

Can you tell us more about that?

POTTER: Yes, they not only have to determine whether there was wrongdoing, but they have to determine if there is wrongdoing, whether it is enough to throw out all those ballots. That's a big hurdle and there's lots of law that protects the rights of voters. It is not easy for a judge to disenfranchise people, certainly not 25,000 people, which could potentially be the case if you consider both the Martin County and Seminole County cases.

And so they have to deal with that issue first. It's not just enough to say, yes, there was a technical violation or even a felony committed. You then have to decide, was it enough of a crime -- a big "if" here -- was it enough of a crime to throw out all those votes.

And, of course, the defendants are saying that not one vote should be thrown out because nothing was done wrong. At most there was what they call a hypertechnicality, and that is no reason to throw out votes. It would go against the American principle, the evolving American principle over the last decades that you want to get as many people into the voting booth as you can -- Gary.

TUCHMAN: Mark Potter, thank you very much.

And that's something we should all keep in mind -- that these judges here have an incredible amount of power. The decision they make today could potentially result in net votes being taken away from George W. Bush, and giving the state of Florida and the presidency to Al Gore. That could potentially happen.

Keep in mind the Supreme Court justices here in the state of Florida, the U.S. Supreme Court, they can make major decisions but they literally, directly, can't takes votes away from anybody -- these judges can.

This is Gary Tuchman, CNN live in Tallahassee, Florida.

STEPHEN FRAZIER, CNN ANCHOR: Gary, thank you.

We're awfully glad now we're joined by CNN legal analyst and "BURDEN OF PROOF" host Greta Van Susteren.

We're glad, Greta, because I think we need to set the stage here, if you would help us, please. These are cases, now, dealing with what to do about ballots that may be invalidated because party workers altered absentee ballot applications.

Let's go back and set the stage on what this is all about.

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: Well, you know, Stephen, we use the term "altered," but I think the Republicans might use a different term in looking at it because they say, basically, that they were sort of fixing ballot applications that were flawed. There were missing numbers -- voter identification numbers on the applications; and in the past two years a statute was passed which basically said you have to have this number on it and no one else is supposed to be putting this number on but the person who is seeking the ballot application or, perhaps a guardian of someone who, for instance, can't see or something.

But there is really no disagreement. These numbers were added by people who worked for or are affiliated with the Republican Party. And both sides have stipulated to that fact. That only question is: What do you do about it? Is this a serious violation? Do we strictly follow the law? And do these ballots get disqualified? If they're disqualified, then they're out.

Or, on the other hand, is this just some sort of hypertechnicality that the judge should, sort of, look the other way and ignore and let it be a lesson to all the supervisors of elections from here on in?

That's sort of the difficult issue. And the Democrats would say, look, you know, the Republicans have been very vocal about having strict compliance with their laws -- and they hearken back to the issue when the Florida Supreme Court moved that deadline for Katherine Harris to certify the ballots. And now they say the Republicans want some flexibility in the law. And the Republicans are saying, no, that's not it; this is very different from that situation. This is simply a hypertechnicality; nobody actually told these people how to vote and nobody actually voted for them.

FRAZIER: So what the judge has to decide here -- let's presume it's Judge Clark, we've been told, who's asking for a little bit more time -- she has to determine whether those marking of the ballots constitutes enough to invalidate -- I'm sorry, we've got to make sure we get this right -- marking of the absentee ballot applications constitutes enough of an issue to invalidate the ballots themselves; she has to decide whether both parties were treated equally; and, third, you've touched on something: What do you do about it? Does that mean you've got to throw them all out then?

VAN SUSTEREN: And that's another issue. The Democrats say no, you don't have to do that -- the democratic side of this dispute -- this was brought by democratic voters, this is not brought by Vice President Al Gore, but people who certainly have been supporting Vice President Al Gore.

What they're saying is, no, you don't have to toss out all 15,000, you can toss out some amount that's less. And they had a statistician on the witness stand to sort of give the judge something to -- sort of as an olive branch, almost, to the judge because they know that it's very hard to toss out 15,000 votes in one county, 10,000 in another.

And what they were attempting to do is come up with a solution that might be more attractive to the judge, so they came up with a statistical theory that said, you can do something, of course, that's less. And that lesser amount would mean that Vice President Al Gore won the state of Florida and not Governor George W. Bush.

FRAZIER: OK, here's where we're going to ask you, then, to show us your law degree, Greta. You have seen some very complicated arguments before other courts; but in this one, are the questions asked of these judges all that difficult?

VAN SUSTEREN: They are difficult because both sides have pretty good, strong arguments. You know, and this is one of the reasons why, you know, it sometimes behooves us to have a jury, because then we have 12 people get together and make a decision.

This is a very tough decision for a judge because, no matter what the judges decide in Martin County or Seminole, there are going to be a lot of unhappy people taking lots of swipes at them in the newspaper, on television, on the street. You know, but this is what we pay judges to do. Judges have an obligation to look at the facts, apply the law and use their best judgment as to what should be the right decision based on the facts and the law. That's what we pay them to do. Secondly, one of the other attributes of our system is that it will be reviewed. Both sides have said, look, if I lose, I'm going to the Florida Supreme Court. The Republicans have said that and the democratic side has said that as well. We have checks and balances.

Admittedly, if you have to go up to the Florida Supreme Court you're at a disadvantage. The last thing you want to do is be the losing side going into an appeal. But we have checks and balances -- but it's much like art in a case this close. What someone things is beautiful someone else might think is really ugly. And so you've got to be lucky, almost, who the judge is you get on the case.

FRAZIER: All right, Greta, we've been showing as you've been speaking that we're expecting that decision in an hour and about five more minutes, so we'll talk to you a little letter.

Greta Van Susteren, thank you.

FRAZIER: Now, in any other year, any other presidential election, the job that Florida lawmakers began today would be unthinkable. The legislature met in special session to choose the state's presidential electors to start that process. It's the very issue put before the voters on Election Day.

CNN's Bill Hemmer is watching that session unfold. He joins us with the latest now.

Bill, what have you seen?

BILL HEMMER, CNN CORRESPONDENT: Hey, Stephen, good afternoon to you. An incredible time right now in Tallahassee. There are dynamics working on three different fronts that this city and this state and, really, for the country, for that matter, has not seen in 132 years.

Behind us the state Supreme Court has seven justices deliberating an appeal that may or may not determine the outcome of the president. You've got the special session meeting right now where Republican lawmakers want to make sure that those 25 electoral votes are staying intact. And across the street at circuit court you have two big decisions coming down on those Martin and Seminole County cases, again, expected about an hour from now.

What can we tell you about the state Supreme Court? Based on its last decision -- 17 days ago they heard oral arguments on a Monday at 2:00, the decision came out Tuesday evening right before 10:00 local time. Now, that is the only guidepost we have in this case. We are not quite sure -- indeed, nobody knows when a decision will come out of the state Supreme Court behind me.

With that as a setup, David Cardwell sitting to my right now to talk more about this.

And I mentioned the dynamic; you've lived in Florida all your life. Is it quite amazing or not?

DAVID CARDWELL, CNN ELECTION LAW ANALYST: Amazing is an understatement. We have these three proceeding going at the same time with so much at stake; it's just incredible.

HEMMER: Let's talk about Seminole and Martin County.

We know, because Doug Smith used the wrong pronoun about 45 minutes ago and said "her." We know that judge Clark is still finishing her opinion; she did not have as much time, though, as Judge Lewis.

CARDWELL: That's right; Judge Lewis' trial ended about six hours before hers did. So he got a six-hour head start on her in preparing his order. And also I think she has shown, as when she adjourned, that she wanted to be sure that she got it right. She said she would try to render a decision as quickly as possible, but she didn't make promises.

But she did say, I want to make sure I get it right.

HEMMER: And we know there will be an appeal from either side that loses -- that's been the indication, anyway. And, typically how it's worked is thus: From circuit court it goes to district court and then straight to the state Supreme Court here. The circuit -- the district court in the middle really has worked as a waystation of sorts.

CARDWELL: Right; they've had a couple of cases that came to them; for example, on the request for a mandatory recount of the Miami-Dade canvassing board and some others they've been heard at the district court level. But through much of this post-presidential election legal maneuvering, the district courts have said, we need to get it up to the state Supreme Court.

HEMMER: And just to let our viewers know at this point, these voter registration numbers are mandatory in Florida because of a law passed two years ago. But in many states across the country they either, A, don't have these numbers or, B, use your Social Security number, am I right on that?.

CARDWELL: That's correct. Again, it's part of our decentralized election system in Florida. Each of the 67 county supervisors of election are the ones who maintain the voter registration roles for that county. So each has a different way of keeping their records, a different way of issuing what is required by state law -- a voter ID card, and they each have their own unique numbers. When you move from one county to the next you have to reregister and get a new voter ID number in the county you've moved to.

And when we had a problem with some absentee voting in a municipal election in 1997, that's when the legislature came in '98 and said, let's put some more requirementments here.

HEMMER: Let's get back to the dynamic right now. With a special session underway, how aware do you believe the courts are of what the lawmakers are doing today in vice versa?

CARDWELL: Oh, I think everyone is aware of what everyone else is doing. There's just too much going on. I think they're probably, just as interested citizens they want to know. But as players in the process they want to know where they are -- what's the context that they're operating within?

So I think all of them are going to be, you know, looking to what others are doing. In fact, I remember last night, when walking around the capitol, where you could see into the offices at night, just about every single office had a TV on, and it's usually on CNN.

HEMMER: Well we like to hear that.

Let's make some predictions, if you don't mind. What's going to happen in Seminole County?

CARDWELL: I believe in both the Seminole County and the Martin County cases that the judges are going to find that there was something done wrong in violation of the statute, but they're going to say, this is not enough to throw out all the ballots. It may be that they may try to throw out some of the ballots or fashion some other kind of relief. They may recommend that there be some sort of proceeding against the people that actually tampered with the application forms.

HEMMER: As Martin and Seminole -- state Supreme Court; what do they do and when?

CARDWELL: I believe, in the state Supreme Court, I would think that they may rule late today. Perhaps very late this afternoon or early evening. I think they know that time is of the essence. They want to give anyyone time for an appeal regardless of how they may rule.

So I think probably really late today we could get something from them.

HEMMER: You're on record, but it's your opinion that matters. David Cardwell, thanks again; much appreciated.

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