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Burden of Proof

Election Day 2000: Justice Department on the Lookout for Voter Fraud

Aired November 7, 2000 - 12:30 p.m. ET

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

(BEGIN VIDEO CLIP)

JANET RENO, ATTORNEY GENERAL: Every U.S. attorney across the country who is working with the FBI is establishing a special unit to receive reports of corrupt voting practices, and to investigate any citizen's complaint that their voting rights have been violated. This has been consistent with past practices.

(END VIDEO CLIP)

GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: Election day 2000 is finally here, and the attorney general is on the lookout for voter fraud. The Justice Department sends 300 observers to nine states across the nation, in an effort to assure access to the voting booth for minority voters.

ANNOUNCER: This is BURDEN OF PROOF with Greta Van Susteren and Roger Cossack.

VAN SUSTEREN: Hello, and welcome to BURDEN OF PROOF.

After months of polls, primaries and pontification, the day is finally here. Today, all across the nation, Americans are casting their votes in some of the closest presidential and congressional races in a generation.

ROGER COSSACK, CO-HOST: Yesterday, Attorney General Janet Reno sent more than 300 observers to nine states to ensure the voting rights of minority groups. Under the Voting Rights Act, Justice officials sent observers to 18 counties in California, Utah, Arizona, New Mexico, Mississippi, Alabama, Michigan, New York and New Jersey.

Joining us today from Atlanta is former FBI Special Agent Bill Hinshaw.

VAN SUSTEREN: And in Los Angeles, we're joined by Democratic Congresswoman Juanita Millender-McDonald. And here in Washington, Eric Harris (ph), election law attorney Mark Braden, also a former counsel to the RNC, and constitutional law scholar Bruce Fein.

And in our back row, Erin Maloney (ph) and Trevor David Blackwood (ph).

Congresswoman, first to you. Why did the attorney general send observers to your state of California?

REP. JUANITA MILLENDER-MCDONALD (D), CALIFORNIA: Well, first of all, Greta, the state of California is the most diverse state in the nation, and in the past, we have had intimidation, which is voter fraud; we have had undermining, in terms of voting in the state of California.

So the federal government felt it was necessary to bring these monitors into California to monitor and protect Chinese-Americans, Native Americans, Hispanics, Arab-Americans, as well as African- Americans to ensure that they were protected at the voting booths because we have been suppressed many times with guards being at the voting places to intimidation, or to suppress.

As you know, back in the years before the Voting Rights Act, we had poll taxes. So they know, in past history, we have had these types of intimidations and they wanted to monitor that.

VAN SUSTEREN: And when you talk about the Voting Right Acts, of course, we are talking about going back to 1965, but in recent history in the state of California, in the election four years ago, or eight years ago, were there actual cases of groups being blocked from the polling booths in California?

MILLENDER-MCDONALD: That is absolutely correct. There were guards that were standing in close proximity to the precincts, therefore, undermining, and actually intimidating voters from coming to if booth because they didn't know whether it was safe or unsafe. That happened a great deal in Orange County with a lot of Republicans, who wanted to seemingly intimidate those who were Hispanic-Americans.

COSSACK: Congresswoman, when you talk about guards, could you a little be more specific, what did you have in mind? can you describe exactly what you are talking about?

MILLENDER-MCDONALD: We are talking about persons who had uniforms on, who had sticks and guns on their side, as if something would happen if people approached the precincts of the voting areas for certain minority groups. And so this is what we are talking, and this is why a lot of folks went away not voting a couple of years back because of that.

VAN SUSTEREN: Bill Hinshaw, who is a former FBI agent, also joins us today.

Bill, in terms of access, what is the FBI's -- how do you protect or prevent that problem from occurring?

BILL HINSHAW, FORMER FBI SPECIAL AGENT: Well, basically, you don't really prevent it in a proactive type setting. You prevent it by bringing successful prosecution, rather than going out and refereeing incidents that might take place at polling places.

VAN SUSTEREN: How do you investigate such a thing? Have you ever been involved in a particular investigation of an access issue for instance? HINSHAW: Well, actually one, I call it excessive access, where candidates would hire people to board a school bus and they would take them from polling place to polling place and they would do multiple votes on people that didn't show up.

COSSACK: Mark, as a former counsel for the RNC, this is obviously voter fraud, it is something that concerns the Republicans, as well as the Democrats. What do the RNC, for example when you were dealing with it, what steps did they take to protect against these kinds of things?

MARK BRADEN, FORMER GENERAL COUNSEL, RNC: Well, you know, our system is dependent upon both parties watching each other, so the most important thing to guard against vote fraud is that there are members of the Republican Party and Democratic Party watching the process, people don't like to violate the law. Where there are problems with vote fraud it is almost inevitable in an area where one party totally dominates to the exclusion of the other. People will steal votes in that situation, unfortunately. The vast majority of our poll workers and poll watchers are totally honest, but people steal cars, people steal money, people steal votes.

VAN SUSTEREN: Bruce, when we talk about blocking access to polls, I mean, you know, armed guards is an easy one, but historically, are there sort of covert ways people block access; has that been an issue?

BRUCE FEIN, CONSTITUTIONAL LAW SCHOLAR: Well, it isn't so much I think physically blocking access; that would probably violate state laws simply requiring thoroughfares to be open and preventing assault and intimidating anybody, whether they want to vote or just go in to but tennis shoes in a store.

I think the more common concern is that statements by persons who are near the polling place that, you remember, it is a crime to vote if you are not properly registered, and you have to be U.S. citizen, trying to suggest that they aren't qualified, and that if they make a slip-up in the precinct they cast a vote, or otherwise, they may be subject to criminal prosecution.

For someone who is rather untutored in the process, that may chill them against voting. I think that is the more common concern that justified the attorney general in sending out these observers, because although I don't have any firsthand information of what has been described, but I cannot imagine outside a polling booth, any jurisdiction permitting people with guns or weapons or sticks there, threatening people who walk into the polling place.

COSSACK: All right, let's take a break. Up next, investigating and prosecuting voter fraud. How the Justice Department is tracking the polls. Stay with us.

(BEGIN LEGAL BRIEF)

A federal judge yesterday rejected a lawsuit by the ACLU that asked the court to stop California Attorney General Bill Jones from closing vote-swapping Web sites.

The theory behind vote-swapping Web sites is for Gore to win the presidential election and to help Nader get 5 percent of the vote to be eligible for federal funds in the 2004 election.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

QUESTION: Personally, have you cast your absentee ballot in Florida yet?

RENO: Yes, I have.

QUESTION: You care to tell us anything about it?

RENO: No, I have tried my level best to stay out of politics.

(END VIDEO CLIP)

COSSACK: After months of hearing from the candidates, voters are finally going to the polls today. But will all the results be authentic? U.S. attorneys have set up special units to investigate potential cases of voter fraud.

You know, congresswoman, I want to talk to you about a different kind of issue than voter fraud, the way we perhaps traditionally think of it, and I want to talk about the Internet, because that seems to be at least the notion of what the future of voting seems to perhaps will be. Do you think that this is a way that is going to give more access to people to vote?

MILLENDER-MCDONALD: Well, I'm not sure, Roger, because, as you know, digital divide is very real in minority communities, and so this again might be something to circumvent, African-Americans, Hispanics from voting the Web because of their lack of knowledge and being computer literate. So I'm not sure that will be a concept that will be readily acceptable or even practiced in minority communities.

VAN SUSTEREN: Mark, when we talk about prosecutions for voter fraud, I mean there seems to be -- we've got much of it is state law, and then the federal. Where do we divide the line? Where do the states pick off the prosecution and where do the feds pick off?

BRADEN: Well, the vast majority are state prosecutions, but the federal clearly has jurisdiction in any fraud that is involved in a federal election. So every two years we are most certainly in a situation where the feds could prosecute, and do regularly prosecute voter fraud.

VAN SUSTEREN: Where do we see state prosecutions?

BRADEN: It is exactly the same factual situation, bribery, intimidation, the state statutes mirror the federal statutes. It is illegal to pay someone to vote in every state. It is obviously illegal to vote twice in every state, both violations of state and federal law.

Usually local low-level vote fraud is prosecuted at the state level. But there's some difficulty prosecuting at the state level because often we are talking about somebody who this might be a fraud in favor of who happens to inhabit the same courthouse as the local law enforcement officials inhabit.

COSSACK: Bill Hinshaw, you spent a great deal of time investigating voter fraud. Is it a difficult to investigate, to find out whether or not it is being committed or going to be committed?

HINSHAW: It is because people don't like to readily confess that or they generally accept that, and except selling your vote for $20 for instance, and it becomes almost scofflory (ph).

COSSACK: What do you mean by that?

HINSHAW: We had one fellow that people always used to said earlier about the school bus, they appeared before the grand jury and were absolutely surprised that they couldn't sell their vote for $20, and the fellow walked out in the hall and said: If the vote is not worth $20, what is it worth? And I think that's probably been part of a lot of lore and history of this country that goes back several hundred years.

VAN SUSTEREN: Bruce, let me take a chance to let you educate the viewers, or remind them. We had the 15th Amendment back I think in 1870, which would seem to give everybody the right to vote, but for some reason, in 1965, we had to pass the Voting Rights Acts because African-Americans and other minorities were still not getting access to the voting booth.

FEIN: Yes, it is a little bit misleading to say the 15th Amendment granted the right to vote. It prevented discrimination on the basis of race, and then expected that whatever qualifications were set up would be even-handedly applied; but they never were throughout all the long and ugly years of Jim Crowe.

For instance, there would be good character requirements that would be used to disqualify a black if they had a misdemeanor of expectorating on the sidewalks, and wouldn't disqualify whites; or there would be literacy tests, which were very prominently used and require blacks to identify the last several presidential occupants, and recite passages from the U.S. Constitutions, but whites were not subject to that same kind of rigor; and of course there was simply the overt intimidation and occasional killing instigated in the civil rights movement, where we have like Schwermer (ph) and Cheney (ph) killed for trying to register blacks.

So the '65, the Congress passed a law that basically said any state that has a law that has the effect of reducing or discriminating on the basis of race is illegal, and moreover, in the future, if you've had low turnout, any new law that relates to voting that may discrimination has to be reviewed by the Department of Justice first. VAN SUSTEREN: Then tell me the justification for why it has to be reauthorized every so often. Why isn't it just a permanent Voting Rights Acts of 1965? Why do we have to keep reauthorizing that?

FEIN: Well, I think what you have stated is both partly right and wrong. The permanent part of the Voting Rights Act that eliminated all literacy tests is in perpetuity. Now the reason why the provisions that require state or federal approval of the state laws is subject to reauthorization is because it is thought by the Supreme Court decision that at some point the vestiges of this past overt discrimination will have been eliminated. And therefore, although the substandard of law, prohibiting an intent to discriminate would remain, the provisions that require review in advance before a law can take effect no longer would pass constitutional muster.

VAN SUSTEREN: All right, we are going to take a quick break.

MILLENDER-MCDONALD: And that is simply not true. I mean, the vestiges of discrimination are still with us, and therefore, it is really, in the view of African-Americans, why is it that we must review this, when we do have and still have discrimination. It is covert, it is overt. And certainly we have selective mailers that come to our districts, trying to suppress us from getting out to vote. Those things are still with us, and it is incumbent upon the Supreme Court to put this to bed, to put it to rest, and let this law be in perpetuity.

VAN SUSTEREN: And I agree with you, congresswoman. We are going to take a quick break.

Up next, releasing exit polls, how will the Internet change the publication of election day results? And will the First Amendment stand up in defense? Stay with us.

(BEGIN Q&A)

Q: During the primaries, three Web sites revealed exit-poll winners before the voting booths closed. Which two of these three Web sites have decided not to disclose exit polls before the voting booths close tonight?

A: Slate and National Review Online. The third Web site, The Drudge Report, has not made the same pledge.

(END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: In more than any other election, technology will play a role in how quickly returns are tabulated and released. Congresswoman, let me go first to you. The issue of exit polls; there are, you know, some people who have suggested putting it on the Internet and, of course, many people oppose that. We may see that four years from now. There's the thought it might discourage voting in, for instance, your state, if we report something happening on this side of the country. Do you think, consistent with, for instance, the First Amendment, Congress could ever pass any legislation to say exit polls could not be put on the Internet?

MILLENDER-MCDONALD: Well, I certainly would like to have us visit that. The secretary of state, Bill Jones, called all of the delegates of California just a couple of weeks ago to urge us to go to a press conference to urge the media not to do the exit polling before California closed down and the Pacific Northwest. We think it is so totally unfair; and when you have younger folks who really do surf the Internet and look for these types of, this type of information, they might become discouraged and not go to the polls late into the evening here in California and in the Pacific Northwest. I think we really should revisit that and see whether we can ban it, if we can.

VAN SUSTEREN: Mark, do you think that, consistent with the First Amendment, it could ever be banned?

BRADEN: No, I don't believe it can.

VAN SUSTEREN: Why, I mean, the First Amendment isn't absolute.

BRADEN: Yes, well, it's not absolute. I think you can ban, you know, publishing the time of the troop ship leaving the harbor, but I think, in this situation, we most certainly don't reach to the stage where the Supreme Court would permit you the prior restraint.

FEIN: Well, I think that's absolutely right; and the reason is that the court has uniformly rejected idea that government can act on the proposition that truthful speech for private citizens will be acted upon in an irresponsible way. They won't make the wise decision and, therefore, the government has to restrain them by blocking them access to truthful information. My own view is the current system is really a conspiracy and restraint of the antitrust laws where all the agreements, the networks get together and say they will agree not to release truthful information in advance.

VAN SUSTEREN: Which is what we have now, is that all the networks have said together that they won't but that's, of course, not the Internet.

COSSACK: Bruce, how can that be a violation of the antitrust laws, if the government -- if these organizations...

VAN SUSTEREN: I'm with Bruce, that could be another whole BURDEN OF PROOF.

COSSACK: ... if the organizations get together and agree to do something which, in effect, would all -- most people would believe may injure the voting process.

FEIN: Because not all a people, necessarily, believe that, Roger. Not everybody thinks that it's irresponsible, if they know what the polling data is, to decide on their own whether to go to voting booth or not.

COSSACK: But is it a restraint of trade?

FEIN: It's a restraint of the sale of truthful news, absolutely. If it was another product, Roger, there's not a shadow of a doubt -- suppose all of them got together and agreed, we won't have more than three acts of violence on any show...

MILLENDER-MCDONALD: Well then, it appears to me that we should have three days of voting in California so that we can kind of catch up with...

(LAUGHTER)

COSSACK: Now you're talking.

VAN SUSTEREN: Or maybe in California get up three hours earlier and vote with the rest of us on the East Coast. But Mark, let me ask...

COSSACK: Well that is really easy -- as a Californian, I can tell you that's real East Coast snobbery that I have to put up with, Congresswoman.

VAN SUSTEREN: Let me ask you, Mark, what about if you could publish exit polls but you put a three-hour time delay on it? Is that a First Amendment restraint?

BRADEN: If the government did that, of course. I think that's a wise decision, possibly, for the networks to do, but the government simply has no role in deciding what information we can get or not get. You can make the decision as journalists, your network can make that decision and it may well be a proper decision, but it's not the government's decision.

VAN SUSTEREN: I say open the polls three hours earlier for you Californians. Wake up early, Roger.

COSSACK: Well that's because, you know, you're up at 4:00 in the morning with nothing to do. The rest of us have something to do.

MILLENDER-MCDONALD: We're already up at the crack of dawn now.

COSSACK: That's right; that's all the time we have for today. Thanks to our guests, thank you for watching. Today on "TALKBACK LIVE," we want your reaction to election 2000, call and e-mail now and stay tuned throughout the afternoon to weigh in on this historic day.

VAN SUSTEREN: And we'll be back tomorrow with another edition of BURDEN OF PROOF; we will see you then.

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