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Burden of Proof

Election 2000: Another Day of Courtroom Drama in the Legal Battle Over the Presidency

Aired December 6, 2000 - 12:30 p.m. ET

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

ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: Another day of courtroom drama in the legal battle over the presidency. Will 25,000 absentee ballots be tossed into the wind?

(BEGIN VIDEO CLIP)

GERALD RICHMAN, PLAINTIFF'S ATTORNEY, SEMINOLE CO. ABSENTEE BALLOT CASE: We believe that the stipulation alone probably is enough to show intentional wrong doing, but we have significant additional evidence to offer on that point.

DARYL BRISTOW, BUSH CAMPAIGN ATTORNEY: This is a case that has to do with the question of the integrity of the ballot that was cast. If we were taking about some problem with integrity of the process, we might be talking about some case to throw out an election, which is not something this court is in a position to do. We're taking about a ballot to question the process of an election.

(END VIDEO CLIP)

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

COSSACK: Hello, and welcome to BURDEN OF PROOF, and a special welcome to our international viewers.

The court case you have been watching all morning has taken a 90- minute lunch break. The hearing on a Seminole County lawsuit will resume at 1:45 Eastern time, and CNN will continue to bring you live coverage.

GRETA VAN SUSTEREN, CO-HOST: In the Seminole County case, a Democratic attorney is seeking to have 15,000 absentee ballots thrown out. The lawsuit says Republicans were permitted to add missing information on applications for some of those ballots.

COSSACK: Now, in a case from Martin County, several Democratic voters filed suit to have 10,000 absentee ballots tossed out. They say GOP workers removed ballot application forms from an elections office, and then revised and returned them.

VAN SUSTEREN: Joining us today from Tallahassee is Gary Farmer, who is a plaintiff's attorney in the Martin County case. COSSACK: And here in Washington, Brian Jones, law professor Sheryll Cashin, and former Bush White House counsel C. Boyden Gray. In the back, Erin Maloney (ph) and Barbara Zimmerman (ph).

Let's go right to you, Gary Farmer. You are in the Martin County case, and you are now starting your trial. What do you intend to prove today?

GARY FARMER, PLAINTIFF'S ATTY., MARTIN CO. ABSENTEE BALLOT CASE: Well, good afternoon, Roger and Greta.

We intend to prove today that Martin County election officials violated Florida law by permitting Republican Party officials to come into their office, remove absentee ballot applications, amend them, and then re-submit them you, ostensibly on behalf of the individual voters, and that does violate Florida statutes, and feel it invalidates those ballots as well.

VAN SUSTEREN: Let me stop you, Gary, there are two things. One is that your case in Martin differs from Seminole -- Let me interrupt, we are going go to Frank Sesno here in Washington -- Frank.

FRANK SESNO, CNN ANCHOR: Want to take you right up to Capitol Hill now, and Senate gallery, where Senate-elect Clinton is speaking.

(JOINED IN PROGRESS)

SEN.-ELECT HILLARY RODHAM CLINTON (D), NEW YORK: ... upstate and down state, that have not enjoyed the full benefits of our economic prosperity.

But there are a number of other issues that were part of my campaign and have been a part of my work and my life for 30 years that I will be working on, with colleagues on both sides of the aisle. But right now I don't have any plans as to what I will be introducing, but I'm going to be pursuing all of those various issues.

QUESTION: Mrs. Clinton, can you comment on...

DASCHLE: We're going to limit each senator to one question this time. We'll be back with a lot more of these opportunities in the future.

Yes?

SESNO: Senator Daschle making sure that this does not become the Hillary Rodham Clinton road show, a little discipline there up on Capitol Hill, presumably always welcome, saying one question per senator for now, everybody will back for more.

We will go back to BURDEN OF PROOF.

VAN SUSTEREN: Thanks, Frank.

Let me go back to you, Gary, in Florida. Let me ask you about your case. You were the plaintiff's lawyer in the Martin County case, which is a little different from the Seminole in that applications were actually removed from the office. But you say they were amended. Were they amended or were numbers put on them, added, and does that matter?

FARMER: Well, I don't really think it does matter, Greta. But actually both has occurred. In some instances, information on the applications was amended, in almost every instance, information was added in the form of the voter I.D. number.

VAN SUSTEREN: Now let me ask you, under the law, as I understand it, in order for you to prevail, you have to show either gross negligence or intentional wrongdoing, and that -- one of the other issues is whether there was substantial compliance with the essential requirements, and finally that the irregularities that you complain about adversely effect the sanctity of the ballot or the integrity of the election.

Now let me go to problem two, substantial compliance with essential requirements, wasn't there substantial compliance with or without these numbers?

FARMER: No, we do not believe that to be the case. The identification numbers are vital to the consideration of these absentee ballots because they identify the person who is going to cast the vote. They go to the qualification of the voter to vote.

VAN SUSTEREN: Is there any -- let me ask you, is there any doubt that the person who got the ballot is the person who was entitled to the ballot and that that person voted?

FARMER: We don't have any evidence on that issue at this time but the fact remains that absentee voting is not a right, it is a privilege. To exercise that privilege, you have to comply with certain requirements of the statutes. You asked me about substantial compliance, Greta, I don't want to get you off subject here, but there is some dispute as to whether substantial compliance is the standard in this case.

These absentee voter laws were amended in 1998 after the corruption that was discovered in the Miami mayor's election, and they were made much stricter and many more hurdles were inserted by the legislature in order for someone to vote absentee.

It is our opinion that substantial compliance may not be enough, that you've got to strictly comply with these absentee voter statutes because they were toughened up and firmed up so much after the 1998 fraud that occurred in the Miami mayor's race. So there's a reason that that occurred. We don't want dead people voting, we don't want people voting twice, the identification numbers go to the verification of those very issues, and therefore go to the qualification of the person to vote. So it is a very important thing.

COSSACK: Gary, is there an allegation on your part that, outside of putting these identification numbers on, that incorrect people, people that you just mentioned, dead people, or any kind of fraud occurred? or is it your allegation that because these numbers were either put on intentionally, or inadvertently left off, that the people who voted legitimately should never have been able to vote?

FARMER: Our contention is sort of the latter part of what you just said, Roger. We have not alleged that dead people have voted or people have voted twice, but what we have alleged is that the right to vote absentee is something that has to be exercised by the individual, not by a party. And the individual has to split the application, not the party, the Republican Party is the one that submitted these.

VAN SUSTEREN: All right. The Republican Party apparently got the advantage or whatever of this number addition to corrupt -- did Democrats have any problems with their absentee ballot applications, and did they get any different treatment?

FARMER: Yes and yes, Greta. There were absentee ballot applications submitted by Democratic voters that put in the, quote, unquote, "reject bin" held by the Martin County Canvassing officials.

And what perhaps is most egregious about this case is that Supervisor Robins took it upon herself to notify Republican officials regarding the problem with Republican applications, but she did not notify Democratic officials to notify them of problems with Democratic application. She has treated the two parties differently. She is a public official. She is supposed to do her job without regard to her own political beliefs or inclinations, yet she exercised her job function in a way that favored her party and disfavored the Democratic Party, and that impacted this vote.

VAN SUSTEREN: All right. We are going to take a break. 1:30 today, Craig Waters, of the Florida Supreme Court, he is the public information officer, will have a statement, and of course CNN will carry that.

We are going to take a break. We will be right back. Stay with us.

(BEGIN LEGAL BRIEF)

American business man Edmund Pope was found guilty of espionage Tuesday and sentenced to 20 years in a Russian prison.

Pope was convicted of trying to buy classified information on a high-speed torpedo. In a statement to the judge, Pope said he was informed that the data he sought was openly available and not secret.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

VICE PRES. AL GORE (D), PRESIDENTIAL CANDIDATE: The applications for ballots were thrown into the trash can by the supervisor of elections there, apparently, even though they were missing the same number that the Republican Party workers were allowed to come in and fix the other applications with.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

GOV. GEORGE W. BUSH (R-TX), PRESIDENTIAL CANDIDATE: It seems like all the different court suits are working their way to finality. Hopefully we can get this over with quickly and there's a lot of work to be done.

QUESTION: (OFF-MIKE)

BUSH: As I said, people have analyzed this from a legal perspective are absolutely confidence the law is on our side.

(END VIDEO CLIP)

VAN SUSTEREN: Welcome back to BURDEN OF PROOF.

We are going to take you now down to Tallahassee, where CNN's Gary Tuchman is standing by -- Gary.

GARY TUCHMAN, CNN CORRESPONDENT: Well, Greta and Roger, the Seminole County case is in a lunch break right now. Fascinating day here in the Leon County Courthouse in Tallahassee. The day started this morning with the Martin County hearing, 7:00 a.m. Eastern time. Judge Terry Lewis took a break around 8:20 so the Seminole County hearing could take place at 8:30.

The reason both hearings can't take place at the same time is because some of the attorneys are involved in both case.

Now, here is what we have heard from the judge. Judge Nikki Ann Clark says she wants to finish the Seminole County trial today, no matter how long it takes, she wants it to be concluded. We don't know if she will issue a ruling tonight, that could come tomorrow. But she wants the case to finish today.

Judge Terry Lewis said, as soon as the Seminole case is done, he will wait a half an hour, and then he will reconvene, and start the Martin County case in the very same come. I don't know if any of you guys have ever seen anything like this before, we reporters certainly haven't, and we have talked to the lawyers in courtroom, and they say they certainly haven't. Fascinating day with a lot of law in one day in one building.

VAN SUSTEREN: Thanks, Gary.

Sheryll, let me go to you. I want to go back to both of these case. In the event that there is a, quote, "Republican problem," and there was no Democratic problem, they didn't have problems with their applications for their ballot, does that put the case in a stronger light for them to count these absentee ballots, or do you have to disparate treatment, do you think?

SHERYLL CASHIN, LAW PROFESSOR: I think certainly in terms of atmospherics. If we had a case where both parties had been allowed to do what the Republicans did, it would be very difficult for Judge Clark to say that -- to exalt hyper-technical violations of the requirement of the voter themselves putting in this information, to exalt that over counting ballots that seem to be legitimately cast. Nobody is alleging that there was fraud in the actual casting of the ballots. So I do think what is making this different is the disparity of treatment.

COSSACK: Boyden, in terms of a remedy, I mean, this is a draconian remedy, in which the notion that, if this is true, and let's just take it at the very worst, that one side was called up and said: Hey, come on down here, the Republican side was called up, and said hey come on down here and fix this application or else you won't get the votes, and the other ones were tossed. Is the remedy, therefore, then that the Republican votes get tossed out or is there a revote, what happens?

C. BOYDEN GRAY, FORMER BUSH WHITE HOUSE COUNSEL: I just don't see that the remedy is to toss out all the votes. You are disenfranchising all the people who had no problem, or for who's ballot application there was no problem at all.

COSSACK: What do you do with the other side? OK, you know, I agree with you, that's a horrible remedy, of tossing out votes, but what do you do with those who didn't get their votes, didn't get their applications sent in? Do they get any help?

GRAY: Well, in a sense, we don't know how many there are, and we don't know whether it would have affected the outcome, but it is sort of like the absentee military ballots that were rejected because of various technicalities and...

VAN SUSTEREN: Why do we have those technicalities? I mean, Sheryll referred to it as a hyper-technicality. I mean, it is there for a reason, and I mean it may seem a little bit silly, a number, or not a number, but isn't that sort of our insurance against fraud? I mean, is it really a hyper-technicality or is this essential?

GRAY: I suppose, if there were allegations of fraud that would be a different thing, but there aren't. It is like military ballots in a war zone, or in a danger zone, where they take a helicopter in, and whisk the things out, they don't go to a post office and postmark it.

COSSACK: That's not the facts here. What I'm saying is, if these facts turn out to be true, and we don't know if they are going to turn out to be true, but if they are, that there was a Republican operative who said: Listen, we've got some problems on our side, we just won't tell the other side, that's just not right. The question then becomes: What do you do? Maybe you fire the operative. But what do you do about people who were clearly, through no fault of their own, denied the right to vote?

GRAY: I think -- That's why the remedy I think is too draconian. I don't think you can do that.

VAN SUSTEREN: Unless, there may be a lesser remedy. Sheryll, go ahead. CASHIN: Yes, I mean, it does seems extreme in the Seminole County case, the facts are stipulated, it was 2100 ballots that the Republican Party fixed, not applications that they fixed, so really 2100 ballots -- absentee ballots out of 15,000 are in dispute. The problem is, we don't know which 2100, OK. So it seems very extreme to throw out all 15,000.

The judge could, using her equitable powers, say there was a violation of Florida law, and come up with lesser remedy. I don't know that she would do it, but she could develop some kind of mechanical formula, and say: All right, we are going to figure out a percentage of these 2,000 that should be subtracted from the vote totals.

VAN SUSTEREN: You know what strikes me, what strikes me is how sloppy this is. We have old crummy machines that may clog, we have a bunch of military ballots that no one can figure out some way to sort of qualify them, give them special conversation before we even had this problem, now we have got this slop. I mean, you think that at the very least, we ought to have some sort of integrity in our system that we don't have these stupid problems.

COSSACK: All right, let's turn the coin a little bit. Boyden, let's talk about the contest that's now up before the Florida Supreme Court. Judge Sauls, in my opinion, almost went back and said: Let me see how I can write an opinion that will give Vice President Gore no way to turn. As we lawyers know, once you make a decision on facts, it is a tough, tough way to get one appealed. Your opinion on this.

GRAY: I think it is going to be very hard for the Gore team to get this reversed. The thing that strikes me as being so odd about it is that I think almost two weeks ago now, the Supreme Court rejected the Gore request for the expedited hand count of these Dade County votes, and the same thing went up again about five days ago, now a week, it was rejected again, and I just don't see how now...

VAN SUSTEREN: That was protest, this is a contest, completely different phase, Boyden.

GRAY: No, the contest request was made as the case unfolded before...

VAN SUSTEREN: But before the U.S. Supreme Court, that was an issue having to do with the protest.

GRAY: No, that happened in the protest phase, but there was a request to the Supreme Court at the opening of Judge Sauls' case, about five days ago, to expedite the hand count, and the supreme court said no twice. Now to do it, two or three, four days shy of December 12th.

COSSACK: I would say the only hope for Vice President Gore would be not a turning over of the facts, but if the Florida Supreme Court says: You know what, you used the wrong law to make your decision. In other words, you -- the wrong standard. The standard you used...

VAN SUSTEREN: Then the judge is cooked.

COSSACK: That's the only way out, right, Boyden?

GRAY: It is possible, but the judge found that, even the standard for counting that Palm Beach used, as to which he said you are estopped from trying to get it changed again, that was a change from 1990, that was a change from the law that was in place at the time of...

VAN SUSTEREN: But I think it is the probable versus possible change in the election.

COSSACK: I think it is a tough way to go.

Let's take a break. Up next, we will continue to look at Gore's appeal to his contest defeat. Oral arguments begin tomorrow morning before the Florida Supreme Court. Stay with us.

(BEGIN Q&A)

Q: On this day in 1973, Gerald Ford assumed the role of vice president under which constitutional amendment?

A: The 25th Amendment. Ratified in 1967, the amendment enabled a president to nominate a vice president in the event that office became vacant.

(END Q&A)

(COMMERCIAL BREAK)

COSSACK: Attorneys for Bush and Gore filed briefs at the Florida Supreme Court this morning. Tomorrow, the court will hear arguments over the vice president's appeal to his contest defeat.

Joining us from Tallahassee is Jeff Robinson, attorney for Al Gore.

Jeff, what's your best argument that you are going to take before the Florida Supreme Court. As lawyers, we know that you have an uphill battle that Judge Sauls almost went back and looked like trying to figure out a way there wouldn't be any open ends for you guys.

JEFF ROBINSON, ATTORNEY FOR AL GORE: We have to disagree with that. I think judge ruled on a number of issues of law, which provide clear appeals to the Florida Supreme Court, which will consider the issues de novo. He also failed to consider important evidence, that's one of the things, as you know, that when a trial court does that, the appellate court has a lot more leeway in what it does.

VAN SUSTEREN: Jeff, when you say reasonable evidence, you are talking about the ballots, basically, you thought the judge looked at the ballots to see whether or not Vice President Al Gore could meet the standard of showing that he was the winner and not Governor Bush, is that right? ROBINSON: Right. When you are looking at what happened here, the notion that you didn't look at ballots that weren't counted that said Al Gore written in on them, and those ballots were not count, we think that's evidence that those ballots need to be considered, that is evidence that the canvassing boards did not act appropriately.

COSSACK: I'm sorry, Jeff, what evidentiary standard do you believe was mistaken by Judge Sauls. In other words, your claim is that he applied the wrong standard. What did he do that was wrong?

ROBINSON: Well, there are a couple of things. The first thing is, he reviewed the actions of the canvassing board, and he said he had to find that they had abused their discretion before he could do anything. We believe that the Florida law doesn't provide for that in a contest, that the law requires the court to make its own independent decision.

Secondly, he ruled that, in order to have a contest, you had to look at every ballot in the state. And again, there is no Florida cases that suggest that. They say that you look at the ballots that have put in issue. Those are two legal ruling that we are going to be challenging.

VAN SUSTEREN: You know, Sheryll, it just occurred to me that the Florida Supreme Court could imitate the U.S. Supreme Court and probably do a huge disservice by saying the record is incomplete for whatever reason, and send it back down for Judge Sanders Sauls. Is that the worst that could happen here, in terms of -- for both sides, a remand?

CASHIN: I suppose it would be because the clock would be running out. I don't think that's what the Florida Supreme Court will do. As the lawyer for Gore said, Judge Sanders Sauls has given the Florida Supreme Court ample room to reverse him on legal grounds.

VAN SUSTEREN: OK, but they reverse him, it goes back down to him, let's say...

CASHIN: They could find that he applied the wrong legal standard, and the debate is whether they had to prove a reasonable probability that the outcome of the election would be different, versus what the Gore team is saying that all they have to show is that there were some legal ballots that should have been cast and put the election in doubt. That's a much easier standard.

VAN SUSTEREN: We are now four days deeper into this, and go back to the same judge to now go do this.

CASHIN: They could say -- courts don't like to do this, but they could say there's ample evidence in this record, as we see it, that this standard -- the appropriate standard wasn't met, and just order that the hand recounts begin.

VAN SUSTEREN: By Judge Sauls.

CASHIN: Yes, you are right. COSSACK: Sheryll, I...

CASHIN: They would have to be pretty direct to make that happen.

COSSACK: I agree what you said what they could do. Clearly, the Florida Supreme Court has the power to do those things. You saw Judge Sanders Sauls' opinion, and you saw that he made certain findings of facts, and you know as a lawyer...

VAN SUSTEREN: But if he is dead wrong on the law -- Roger, hypothetical, if he is dead wrong on the law, the Florida Supreme Court doesn't have a choice.

COSSACK: In reality, they now have to find that he's, quote, "dead wrong on law"; how often does that happen?

CASHIN: Well, it can happen quite a bit because, after all, on legal questions, appellate court can review de novo, can review it as if the lower court didn't even decide it.

VAN SUSTEREN: All right. Well, I get the last word. That's all the time we have for today. Thanks to our guests, and thank you for watching.

CNN will continue live coverage of these two trials in Tallahassee throughout the day. And join me tonight for an election 2000 special report. We'll track today's developments in the absentee ballot cases, and preview tomorrow's arguments before the Florida Supreme Court. That's at 8:30 p.m. Eastern time.

COSSACK: And today on "TALKBACK LIVE": How will the 2000 election impact how Americans vote in the future? Send your e-mail to Bobbie Battista and tune-in at 3:00 p.m. Eastern time. We'll be back tomorrow with the latest in the race for the White House, and another edition of BURDEN OF PROOF. We'll see you then. Bye-bye.

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

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