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Burden of Proof

Election 2000: All Eyes on Florida as Complaints of Voting Irregularities, Threats of Legal Challenges Mount

Aired November 9, 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)

VICE PRES. AL GORE (D), PRESIDENTIAL CANDIDATE: This matter must be resolved expeditiously, but deliberately and without any rush to judgment. Despite the fact that Joe Lieberman and I won the popular vote, under our Constitution it is the winner of the Electoral College who will be the next president.

GOV. GEORGE W. BUSH (R), PRESIDENTIAL CANDIDATE: This morning brings news from Florida that the final vote count there shows that Secretary Cheney and I have carried the state of Florida. And if that result is confirmed in an automatic recount, as we expect it will be, then we will have won the election.

JANET RENO, ATTORNEY GENERAL: We are here to do what's right, and to make sure that the voice of American people that has spoken is heard fairly. That is generally a matter of state law.

(END VIDEO CLIP)

GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: We still don't know. With all eyes now on the vote recount in Florida, complaints of voting irregularities and threats of legal challenges in the Sunshine State mount.

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

VAN SUSTEREN: Hello, and welcome to BURDEN OF PROOF. I'm in Tallahassee, Florida, where just behind me is starting the recount in the second day to determine who is going to be the next president of the United States. Will it be Vice President Al Gore or Governor George W. Bush? We may know later today.

So far, the narrowing of lead by George W. Bush is getting smaller.

ROGER COSSACK, CO-HOST: Representatives from both the Bush and Gore campaigns are in Florida monitoring the recount.

Joining us here in Washington is Geoffrey Gammell (ph), Miriam Vincent (ph) of the Office of the Federal Register, Dashondra Brown (ph), and in the back, Juhie Vijayvargiya (ph), and Amanda Cowert (ph).

VAN SUSTEREN: And with me here in Tallahassee is former Florida Deputy Attorney General George Sheldon, who is a Democrat. And later on the show, we're going to be joined by the former Florida secretary of state and attorney general Jim Smith.

George, first to you. What can the Democrats do here in this state?

GEORGE SHELDON, FMR. FLORIDA DEP. ATTORNEY GENERAL: Well, quite frankly, I think the time is over for spin doctors. I mean, now, what the American people need to be assured of is that there is a fair count in Florida, that the person who is the next president of the United States, we have removed all doubt that this election was fair and in fact every single vote was counted. That's the important thing.

VAN SUSTEREN: How do you do that, George? I mean, we are hearing so many stories about things about the ballots, some were double punched, and disqualified; you hear stories about some not being counted in the recount so they have to go back and do that. You hear about ballots simply not being counted. How can the state of Florida make the rest of the country feel secure?

SHELDON: Well, I think the vice president said that. I mean, we need to not rush to judgment. We need to look at this in an expeditious way. We need to go through the process. The recount that's occurring in Florida is an automatic recount based on state law, it was not requested by the Gore campaign. We've gone through those before.

You are seeing right now, as these votes are coming in, what I understand is about half the counties are in at this point, it is 700- 800 vote margin at this point. We are talking about the presidency of the United States.

I think what this country wants to be assured of, and frankly what the nation wants to be assured of, is that every single vote that was cast and cast legally should be counted. That's what this process all about.

Obviously -- let me just finish. There were complaints obviously 19,000 votes in Palm Beach County were thrown out, there's the issue of the ballot. Those issues -- there's a process for those being resolved.

There may be individual private citizens who file actions, but let's let that thing work itself out, as opposed to kind of rushing to judgment. Excuse me I'm sorry for interrupting.

COSSACK: That's all right, George. Let me just bring you up-to- date, 45 actual areas have been counted out of 67 now, the Bush, the one we have now is that it has now shrunk to 795 votes. Going along with that, I want to just ask you, in terms of what you are talking about, is a recount, are you including the recount or in the recount all of the absentee ballots? And by that, I mean then, if you are, will you not be able to give the country a final number until, perhaps, five or 10 days from now?

SHELDON: I think that's totally accurate. I think it would be a mistake for the secretary of state to certify this election until such time as the overseas ballots have been counted. If you look at 1996, there were approximately 2300 absentee ballots from folks overseas. Some of those are military. I don't think anyone wants to deny the people in the armed services from their right to vote, part of those people might be business individuals, part of those people may be students. We know that some of those are out there so -- when you have a 700, 800 vote margin at this point, in fact, those votes could very well determine who the next president of the United States is.

And we, as a state, need to assure that in fact every vote in Florida was counted.

VAN SUSTEREN: You know, George, I wonder if it isn't too late in some sense. I have got to tell you. I am a little bit scandalized that we can put a man on the moon, we can build these incredible technological computers, yet we can't even count votes in an orderly fashion. You are the former attorney general of Florida. Can you defend this mess we are in?

SHELDON: I don't think anybody can defend that.

VAN SUSTEREN: What's taken so long? I mean, like, it is the year 2000, counting votes couldn't be that complicated.

SHELDON: Well, it depends on what county you are in right now. If you look at, for instance, Leon County, the county we are in right now, there was absolutely no change. If you look at Pinellas County, Gore picked up 404 votes, and I think Governor Bush picked up 60 some votes.

That's a reality of where we are right now. I mean, the real question you are asking is, is there a problem in following state law, and having a recount carried out.

VAN SUSTEREN: Let me raise another problem. You have different types of ballots in different parts of the state. That seems rather unlike the year 2000 in my mind, and it is not just the state of Florida, I'm hearing about all sorts of things across the country in other states. It doesn't seem very efficient, not necessarily something we can be particularly proud of.

SHELDON: Well, I would not disagree with you that we ought to have a standardized ballot. But that's really an issue for tomorrow because we ought to be saying that everybody is dealing with the same ballot, and the same election process. You are right, technology...

VAN SUSTEREN: But it took a problem to figure that out.

SHELDON: Technology today, I mean we have the capability of doing that, and frankly we ought to be on the cutting edge as a state. But you recognize that this is not just Florida. I mean, it is happening in Massachusetts and New York.

VAN SUSTEREN: I agree.

SHELDON: I think that's something that we ought to be dealing with. I mean, this is the first time this has happened in American history.

VAN SUSTEREN: That we got caught.

COSSACK: Let me just jump in for a second here, George. In terms of what we do know about the complaints in Palm Beach, how does the state of Florida, what does the state of Florida going to do, we know that there are many, many people who said they were unintentionally misled regarding that ballot, and we see by circumstantial evidence that Pat Buchanan, who has already disavowed most of them, said clearly that there's a problem here that I got this many votes?

SHELDON: Well, I think there's a problem there. I mean, if you look at 19,000 ballots in Palm Beach County that were thrown out because the individuals were confused and went back in and voted for a second candidate. I've even heard reports in some instances they recognized that they had voted for the wrong candidate, candidate of their choice, and went and asked for a new ballot, and then are some allegations that those new ballots were denied them.

But the process needs to take care of that. The American people, and the people of the world need to be assured that the next president of the United States in fact was elected by a majority. We know today that Al Gore won the popular vote in this country. We also know that Al Gore got...

VAN SUSTEREN: That is assuming that the vote across the country was right.

SHELDON: Assuming, that's accurate.

VAN SUSTEREN: OK.

SHELDON: But in effect right now I think he has a 200,000, 300,000 vote lead.

COSSACK: George, I am afraid I have to cut you off because we are about out of time. I have to take a break. Thank you, George Sheldon for joining us today. Could the presidential race be determined by the courts? We'll talk about legal action on behalf of some voters in Palm Beach, Florida, when we come back.

(BEGIN LEGAL BRIEF)

According to the Committee for the Study of the American Electorate, an estimated 51 percent of those eligible voted in this year's election. This is up from the 49 percent voting rate in 1996, but still down from the 55 percent rate in 1992.

The figures include an estimated 2.4 million absentee ballots.

(END LEGAL BRIEF) (COMMERCIAL BREAK)

VAN SUSTEREN: Good news for our Internet-savvy viewers. You can now watch BURDEN OF PROOF live on the World Wide Web. Just log-on to cnn.com/burden. We now provide a live video feed, Monday through Friday, at 12:30 p.m. Eastern time. If you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show and even join our chat room.

(BEGIN VIDEO CLIP)

JAMES BAKER, OBSERVER FOR BUSH CAMPAIGN: I've heard some suggestions that a ballot was confusing. A ballot that a Democratic, elected Democrat, election supervisor, approved; a ballot that the former which had been used in prior elections. So I think we need to back off here a little bit in terms of threatening lawsuits, filing lawsuits, and hurling charges.

(END VIDEO CLIP)

COSSACK: As the presidential recount continues in Florida, there is growing focus on Palm Beach County; 19,000 votes there were disqualified because of a faulty ballot. Later today, a federal judge will hold an emergency hearing to address a lawsuit filed on behalf of some Palm Beach County voters.

Joining us from Miami is Milton Miller. He is a Palm Beach voter suing the state. He is also joined by his attorney, Wendy Wallberg.

And Wendy, why are you bringing this lawsuit, what happened to Milton?

WENDY WALLBERG, MILTON MILLER'S ATTORNEY: Well, Milton went in to vote for his party choice, and by the inherent unfairness of the ballot, we believe he was deprived of his right to vote.

COSSACK: Milton, what was wrong with the ballot? Why were you deprived of your right to vote?

MILTON MILLER, FLORIDA VOTER: When I went in, I went in with a ballot that I thought was like all other ballots that I had voted with for the past 30, 40 years. Never thinking that the ballot was faulty or that it was the cause of such confusion.

COSSACK: Why was it faulty, Milton?

MILLER: It was faulty because when you vote you have the top vote for the -- for the Republican and then the second vote would be for the Democrat, and then if you look to the little punch holes, you see a punch hole that goes for the, naturally, for the Republican, and the second punch hole you would think would be going to the Democrat. But as it turned out, it went all the way over to Mr. Buchanan. The third hole, which really should have been the second hole, was the thing that applied to Mr. Gore, and I was deprived of my basic constitutional rights. Therefore, I feel -- I feel that the underpinnings of American democracy causes people to have a right to put in that one vote that they are thinking of all the time.

VAN SUSTEREN: Let me ask you a question. When you saw the ballot and you observed that the names were on the right side, and on the left side, why didn't you just step outside and ask a poll worker to explain the ballot, or did you?

MILLER: I absolutely asked a poll worker, and he came over, in a very perfunctory manner, he showed me that you vote this way and you vote that way, but he was not showing any great exactitude, causing me to vote, and when I did my voting, I am not sure that I voted for the person that I wanted to vote for. I'm not speaking about anybody...

COSSACK: Let me ask Wendy a question. Wendy, in terms of -- what are you trying to accomplish on behalf of Milton, what are you asking the court to do?

WALLBERG: We are asking the court to, today at 2:30, to issue an injunction allowing that the Palm Beach County alone have a re-vote, that obviously 19,120 voters were confused, their votes were thrown out, and obviously not every vote is counting in this election.

COSSACK: How do you know that 19,000 were confused?

WALLBERG: Well, approximately 19,000 voters, their ballots were punched twice on this issue, on the presidential issue, as compared to all the other issues on the ballot.

VAN SUSTEREN: Wendy, one of the things that you put in your complaint, and I will put it up on the screen for the viewers to read, is a paragraph that says: "Plaintiff was denied that right to vote as the ballot was inherently unfair and incorrect."

Where does the responsibility of the voter arise to make sure he or she understands it? Now Milton has said that he stepped out and talked to someone, and got a perfunctory answer. But where do you put that line? Where is the voter's responsibility?

WALLBERG: Obviously, the voters need to understand about the voting process, what they are going to go in there and do. But we are not talking about the voters, elderly voters, any particular category of voters, we are talking about voters all across the scale, young and old. And they have a responsibility to vote their choice and know what they are doing, but the state and the county also has the responsibility to follow the Florida statutes, to set the ballot up correctly, and not to make it so confusing that 19,000 ballots are punched twice because people don't understand.

COSSACK: Did they not follow the state ballot, was there something different about this ballot?

WALLBERG: Under the Florida statutes, the names were correctly placed on the ballot, the party who previously won the governor was first, Republican; after that comes the second highest voting in last governor election, which was Democrat, and then the minor parties are after that.

However, the problem is, is that is you put the party's name first, you should have the punch hole first. Put the party name second, you should have the punch hole second.

VAN SUSTEREN: All right, Wendy Wallberg and Milton Miller, thank you for joining us. When we come back, we are going to get the Republican perspective. Stay with us.

(BEGIN Q&A)

Q: The outcome of the presidential election depends on the number of overseas absentee ballots in Florida. Usually the number of overseas ballots has little effect on the outcome, but the response in the 1996 election was notable. How many overseas absentee ballots were cast in the 1996 election?

A: Over 2,000. A spokeswoman for the Florida Elections Division said there were an estimated 30,000 sent out this year, but it is unsure how many have been counted.

(END Q&A)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

R. DOUG LEWIS, EXECUTIVE DIRECTOR, ELECTION CENTER: If Florida cannot be resolved as a result of this election, then you go to the Constitutional provisions. And the 12th Amendment to the Constitution says that if an election cannot be resolved through the Electoral College, then the vote goes to the House of Representatives where each state gets one vote.

(END VIDEO CLIP)

VAN SUSTEREN: Joining me here in Tallahassee for a little Republican perspective is Jim Smith, who is the former attorney general, former secretary of state here in Florida.

Jim, 19,000 ballots being disqualified, and then you have 3,400 for Pat Buchanan in the Palm Beach County. From the outside it looks like there might have been something irregular in the vote when the evidence is not in. We have Milton talking about how he's troubled about his vote.

Where do we hold voters responsible, and where do we find out that they're confused and we should step in and try to do something to fix it?

JIM SMITH, FORMER FLORIDA SECRETARY OF STATE: You know, our laws guarantee every citizen the right to vote, but there is a responsibility about whether they can vote accurately or not.

VAN SUSTEREN: What if there is something that some people may think is misleading, the way this ballot is lined up -- then does the responsibility shift?

SMITH: Well, I think the question is, when does it shift? And it may well be that after this election it's time to look at this whole process and maybe all over the country. But the fact is, in Palm Beach County and the presidential race four years ago, almost 15,000 ballots were thrown out.

VAN SUSTEREN: For the same reason: double voting?

SMITH: Double voting, the same reason; and so I would suggest that, perhaps, 2 percent of the people have difficulty with this kind of ballot.

VAN SUSTEREN: Wouldn't that, then, have been noticed? Wouldn't that tip-off the people who, in Palm Beach -- to me, if there were 15,000 disqualified last year, I would have thought, gee, maybe I better change the ballots so we don't have this problem in 2000.

SMITH: Well that, again -- you know, these ballots are published, there is a time for comment, there's a time for people to come forward. There's ample time for the Republican or the Democrat Party to come forward and say we don't think this is appropriate. We think it is confusing, we think there's a better way to do it. And the fact is, in this election, and in the '96 election, nobody did that.

There is a time to complain, and it's not after the election.

COSSACK: All right, joining me here in Washington is Miriam Vincent. Miriam, make this all work for us: What happens now, for example, on the 18th when the Electoral College is supposed to meet? Let's just say that Florida hasn't figured this out yet. What happens?

MIRIAM VINCENT, OFFICE OF THE FEDERAL REGISTER: Well, Florida -- in the past, in 1960, there was a controversy, I discovered this morning, in terms of whether Kennedy or Nixon won the state of Hawaii. And, actually, two different sets of electoral votes were sent to Washington to be counted, three for Kennedy and three for Nixon. And there was no controversy at that point because of the Electoral College, the difference was so huge, three votes didn't matter. Nixon said go ahead and count them for Kennedy.

So I guess there is precedent for a state to either mess up or send two sets of votes in, and then it's up to the House -- actually up to both chambers of Congress to decide if they're going to count the votes or if they're just going to count certain votes or they're going to throw all of them out.

COSSACK: Jim, how would you feel if, for example, if somehow it ended up that Florida's votes were not counted in the Electoral College?

SMITH: I didn't hear that.

COSSACK: I said, Jim, one of the all alternatives would be that Florida's vote may not be counted. As a resident of Florida, how would you respond to that?

SMITH: First, I think that, honestly, this kind of questioning is a little bit of what is wrong with this whole process right now. This process is working. I'm confident that Florida will have resolved this issue and our Electoral College voters will be in a position to vote for the candidate that won the Florida vote by the time the Electoral College meets.

VAN SUSTEREN: Miriam, if the vote is not, sort of, certified out of the state of Florida -- December 18 rolls around and a federal judge, let's say, hypothetically, has issued an injunction. Does the statute require that vote to occur on December 18 -- that Electoral College vote?

VINCENT: Well, the December 18 date is statutory, it's not Constitutional; so that date can be changed. Whether a federal court would have the authorization in the separation of powers to change federal law to something else, I don't know.

VAN SUSTEREN: And of course, speaking of "I don't know," there's a lot we don't know, but that's all the time we have. Thanks to our guests and thanks for watching.

COSSACK: We'll see you tomorrow with more of this on another edition of BURDEN OF PROOF. See you then.

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