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Burden of Proof

Election 2000: Decision Day in Florida

Aired December 8, 2000 - 12:30 p.m. ET

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

(JOINED IN PROGRESS)

GERALD RICHMAN, PLAINTIFF'S ATTORNEY: Certainly the Republican party turned that office into an instrument the party in altering things by law they had no right to do. Once somebody goes ahead and does absentee ballot request by law, that's it. When they...

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: The lawyers outside the clerk's house in Leon County. We had expected a ruling from both Judge Nikki Clark out of Seminole County and Judge Lewis having to do with the Martin County case on whether ballots will be thrown out or not.

Let's listen to what the lawyers are saying.

RICHMAN: What remedy ought to occur in this case. The fact that a wrong has occurred, and there was disparate treatment with regard to Republican Party is essentially admitted in the facts, and we've proven that they attempted to cover it up.

The question I can understand any judge struggling with is what do you do in terms of the remedy, and the Florida precedent says all 15,000 ballots have to be thrown out, in other states there's some precedent for saying that the judge can do it proportionately, There's authority under the Florida that says that the judge can order other relief, so the judge has some equitable discretion. We don't know how that is going to be exercised in this case.

QUESTION: Mr. Richman, should your case be at all commingled with the Martin County case?

RICHMAN: They are two separate cases. I think the facts are similar, but there are differences.

QUESTION: Then should the judges be conferring with each other?

RICHMAN: I can't comment on that. It's not customary for judges to confer, but judges do confer from time to time in cases.

QUESTION: Mr. Richman, do you...

QUESTION: Have you had any discussion with the assistant state attorney in Seminole County about pursuing criminal action against Miss Goard? RICHMAN: We have not. Candidly there's just been no time to do that. This has been a unique fast-track case. I don't anybody has ever put together and tried a case as fast as we have to do it in this case, the Seminole and Martin County cases.

QUESTION: Do you think -- do you intend to do, pursuing the state attorney's office...

RICHMAN: That will be up to my client, the state attorney's office will have all the facts. We do believe that the conduct occurred in this case on the part of the Republican Party, and on part of the Republican elected supervisor who is supposed to be a neutral, is illegal.

QUESTION: Mr. Richman, have you read the Bay County dismissal yesterday?

RICHMAN: I have not.

QUESTION: It says in a rather caustic says that third party -- any wrongdoings by a third parties, not the voters themselves, cannot result in the invalidation of ballots. Why should that argument not hold in this case?

RICHMAN: It has absolutely no application because the wrongdoing here goes to the integrity of the process. If you take a look at the city of Miami case, the city of Miami case, the wrongdoing was on the part of third parties, and what ultimately happened in that case is you've got so-called innocent voters because the entire pool is tainted they ended up throwing out 40,000 ballots in that case, and...

QUESTION: Do you plan to appeal this case?

UNIDENTIFIED MALE: We will do what is necessary. We are ready to take an appeal, yes, we are.

QUESTION: What about criminal charges against the supervisor of election?

RICHMAN: That's up to the state attorney. We believe they've got...

QUESTION: What would you encourage the state attorney to do?

RICHMAN: We would encourage appropriate charges to be brought because it goes to the very integrity of the process. Anything else?

QUESTION: Thank you.

RICHMAN: Thank you.

VAN SUSTEREN: We have been listening to Gerald Richman, who is one of the lawyers for the plaintiffs in the Seminole County case, where they seek to throw out approximately 15,000 votes, the headline is of course that the lawyer says that the judge could throw out some, but not all the ballots. And if they lose today that they intend to appeal.

Ken, what is it like to think for these lawyers waiting, we thought it was going to be at 12:30. Now we hear 2:00, 2:15, what do you think it is like?

KEN GROSS, CNN ELECTION LAW ANALYST: It is excruciating, particularly when you have an appointed hour for a decision, you are waiting, it is like the jury is out, even though it is judge decision, and now they have to go back to their room and just sweat it out with more speculation.

VAN SUSTEREN: I should add you are out election law expert, Ken Gross.

ROGER COSSACK, CO-HOST: Joe Serota now joins us.

Joe, in terms of, the thing that I find very curious, this notion of these two judges meeting, and presumably to discuss what their results are in this case. Why would they do that? Is it proper action for them to do that? And how unusual is it?

JOSEPH H. SEROTA, FLORIDA LAWYER: Well, let me begin this way, it is not improper action for them to do it. It is highly unusual, but this is a highly unusual case, it is very rare that you would have one case -- one judge talking to another judge about the same case, but there's nothing usual about this case, and I'm aware of nothing improper from an ethical or judicial conduct standpoint of doing that. And certainly Gerald Richman spoke, and he didn't complain as though there was anything wrong with it.

VAN SUSTEREN: Of course he hasn't heard the verdict, but I will second that. There is nothing wrong with two judges consulting each other, as long as they make independent decision.

Let's go to Ed Stafman now, who joins us Tallahassee. He is a plaintiffs attorney in the Martin case.

Ed, you expected a 12:30 decision, you are not going to get it. Does that make it -- read the tea leaves for me? Does that make it a little scarier for you?

ED STAFMAN, MARTIN CO. PLAINTIFF'S ATTY.: No, Greta, not really. We are used to this, it is like waiting for a jury, you never know when they are going to come back, but they will come back soon, and we are confident that we are going to get a good result.

VAN SUSTEREN: You know, Ed, it is sort of bizarre, we have two cases, they are companion cases, they are almost identical, except for the fact that ballots in your case, Martin County, were actually taken out of the office. Can you conceive of an opinion that would be inconsistent, one judge saying ballots go, and the other one saying ballots stay?

STAFMAN: It's possible, of course we don't know what they are going to do, we don't to what extent they have collaborated. It is very possible, but we will just have to wait and see on that. There's no way to know.

COSSACK: Ed, one of the problems that I think you face in your case, as well as in the companion case, is this notion that perfectly legitimate ballots and votes may be tossed out. Just seems that that isn't the proper remedy. Is there an alternative remedy or is there an alternative number that you would come up rather than all of the ballots?

STAFMAN: Well, Roger, you know the notion that these are legitimate ballots is a notion that has put out by the Bush-Cheney attorneys, it's just not a correct notion. These ballots issued illegally, the application for these ballots were unlawful, and therefore the resulting ballots were unlawful.

COSSACK: But, Ed, the people who voted did nothing wrong. All the people who voted did was come in, or get ahold of the absentee ballot, mark their choice, and cast their ballot. Is it right that these people who did nothing wrong should lose their vote?

STAFMAN: Well, the remedy we have proposed, first of all, by virtue of Florida law that all the absentee ballot must go, but the alternative remedy is just the ones that have been doctored by the Republicans, and there are 673 in our case that should go.

This notion that those 673 have done nothing wrong isn't exactly correct. They were told, when they submitted these applications, that they were responsible for verifying all the information on the application and signing it, as their representation that they have verified it and it is correct.

You know, absentee voting is a privilege, and with it comes a responsibility, and the responsibility is you've got to fill out the forms correctly, and submit the correct information. And if you don't follow the rules, you can't expect privilege that comes with the rules.

If you show up at the poll late and the poll is closed, you also lose your vote, but those are the rules, and the rules apply to everybody. Incidentally, different rules...

VAN SUSTEREN: All right. Let me stop you there. We are going to take a break, and we are hoping that the Bush lawyers, or the defense lawyers in this case will also join us. We will be right back. Stay with us.

(BEGIN LEGAL BRIEF)

The Ryder truck that carried Palm Beach County ballots to Tallahassee is now for sale on yahoo.com's auction block.

As of Friday morning, the top bid was $85,600. New proceeds will be donated to the American Red Cross.

(END LEGAL BRIEF)

(COMMERCIAL BREAK) VAN SUSTEREN: Welcome back to BURDEN OF PROOF.

Now we are joined by Ken Wright, who is the lead attorney for the Republican Party in both Seminole County and Martin County.

Ken, you have been playing this gymnastics game, bouncing back and forth between the two courtrooms and between the two judges. Is it at all possible that you could have what would seem like inconsistent verdicts, win one place and lose the other?

KENNETH WRIGHT, BUSH/CHENEY ATTORNEY: Greta, I don't believe that's the case. In fact, I have been told that the court administrator has already announced the two judges are intending to issue a single statement, and I would expect following that single statement we will have two cases, which I believe will be consistent. The law in the case...

VAN SUSTEREN: Let me stop. When you say they are going to issue a joint statement. But I assume they are going to issue separate decisions, since they are obligated to look at separate fact cases, am I wrong?

WRIGHT: Well, the facts are very similar. It came essentially to the judges on a lot of stipulated facts. The law, other than in one case the request forms were changed inside the supervisor's office, and in the other case, they were removed from the office, which raises some different issues in regards to matters which we didn't think were relevant. But otherwise, they are very similar cases. The law is the same, and going back and forth, it was almost like "Groundhog Day" because we are in the same courtroom with the same facts, and many of the same players, it is just different faces put to them. So it has really been a circus-like atmosphere.

COSSACK: Ken, it seems fairly clear, at least to me, from hearing the evidence, that there was at least some semblance of wrongdoing done in those canvassing boards by the administrators. In light of that, what should the proper remedy be? One side says, throw out all the votes, perhaps throw out some of the votes. Your side says, no, don't do anything. Doesn't something have to be done?

WRIGHT: Well, you made a statement that is essentially incorrect in the context of these two cases. Nothing was improper at the canvassing board and that is the issue that we made yesterday in closing argument.

In both of these cases, it went to the judges on stipulated facts that there has been nothing but an unequivocally good election. There has been no challenge to the ballots which are cast.

The question before these two judges essentially is, there were, if you admit it, some pre-election irregularities. And the law in Florida for 50 years is to the effect that, essentially, to capsulize it, a good election cures some of these irregularities that happened in the pre-election process. That doesn't mean those laws don't mean anything, it just means that if you know about it beforehand, I would suggest that there could have been remedies at that time, and if any laws have been broken or fines need to be assessed, they can still be assessed.

We are just not going to throw out all of these votes because someone violated some pre-election irregularity.

VAN SUSTEREN: Ken, you know the viewers -- a lot of viewers are not lawyers, and I always like to give them a little taste of what it is like to be a lawyer. I know that you are confident, the plaintiffs are confident, both sides are confident you are going to win. Somebody is going to lose and someone is going to go rushing to the Florida Supreme Court.

I assume, am I correct, that your side, in the event that that does happen, is ready with a brief, and ready to go?

WRIGHT: Absolutely. We've got to be prepared. This thing has got to come to an end. I think the American people want it to come to an end. All of these judges want it to come to an end. We have been trying this case, Greta, both of these case, under conditions that those of us who are lawyers have never seen before in our lives.

If you've got an hour or 30 minutes notice for something, that's a gracious advance notice. So we are certain that whoever wins or loses, there will be an appeal. I think it will go straight through the district court of appeals. I would expect that we will be finishing up briefs tomorrow. I wouldn't be a bit surprised if arguments weren't being made in the Supreme Court on Sunday.

COSSACK: All right, let's go to Professor Jon Mills now in Gainesville.

Jon, this morning, an unusual thing happened before the Florida Supreme Court. The Bush team came back and filed, if you will, a supplementary part to their brief, discussing the jurisdictional question that was first articulated yesterday in the oral arguments. The question about whether or not the Florida Supreme Court really had jurisdiction to hear this, or is this something that vests 100 percent within the Legislature, and that the Supreme Court really doesn't have any power? Both lawyers at that time kind of ducked the question, and this morning the Bush team said: You know what, come to think of it, maybe you don't have the power. What about that?

JON MILLS, LAW PROFESSOR: I thought it was very interesting. I think it was particularly Barry Richard who said this is a garden variety appeal, which is an interesting quote.

I think what they wanted to do is say judicial review has not been wiped out by the existence of that federal code issue, but I think Joe Klock made perhaps what their argument might be, which is: You can review it, but you have a very narrow standard for review. If you do anything other than interpret the law, that is, make new law as the U.S. Supreme Court was implying might be a problem, then we are going to appeal to the U.S. Supreme Court, and you may lose jurisdiction based on that so...

VAN SUSTEREN: And it was so interesting because when the question was posed to the Bush lawyers, Roger and I both looked at each other, because we thought Barry Richard would sort of grab the bait and run with it. But let me say one thing is that I'm not surprised that Barry seemed to miss the question, I mean, the guy has been working around-the-clock for the last three or four weeks, he's in every case, and the fact that he sort of missed that bait, you know, I can understand the supplemental brief today.

COSSACK: Let's go to Ken Gross, our election law expert. Barry Richard, who I like, and is a good guy, and I agree with you has been working 24 hours a day, that was a softball, right down the middle of the plate, should he have missed that one?

VAN SUSTEREN: Give him a break. I would give him a break.

COSSACK: No, I'm not saying he should have, but was it a softball down the middle of the plate?

MILLS: First of all...

COSSACK: Let me just let Ken Gross answer that for a second, Jon.

GROSS: I think that the jurisdictional issue is a very important issue, and it was probably an opportunity to discuss it. In fact, Chief Justice Wells in the Supreme Court of Florida said, you know, you lawyers were before us last time and you didn't raise the jurisdictional question. Our case goes to the U.S. Supreme Court and they think it is the most important issue, and now it is back before us again, and you didn't raise it again.

COSSACK: And do we have the power to discuss this or not?

GROSS: Exactly, the most fundamental question.

VAN SUSTEREN: All these lawyers here I think live in glass houses, anyone who is critical of Barry Richard on that one.

Let me go to Ken Wright. Ken, do you want to talk about this?

WRIGHT: Well, I can't speak too much about the issues involving the Supreme Court argument, Greta. I would agree with one remark that I heard made that was attributed I think to Barry, and that was it was a garden variety appeal. That has been the case on the two cases that we've handled, both in Seminole and Martin. But for the fact that so much was riding on these cases, I think both of them are fairly garden variety cases, the issues are...

COSSACK: I think we perhaps missed him.

Let's go to Joe Serota now.

Joe, in your opinion, the notion of whether or not the Florida Supreme Court has jurisdiction. I mean that's very well that they could be deciding this case on. That was the first thing they brought up yesterday.

SEROTA: I think... COSSACK: Go ahead.

SEROTA: I'm sorry. The jurisdictional issue, of course, is always key. On the other hand, we are talking about a trial and, in a sense, the Supreme Court, but it is the appellate court can always review issues of law, and so on that narrow basis they certainly could hear the case. They can't review questions of fact, and of course that is something that's always going to be debated by both sides. But the fact that they can always look at the discretion of the court, whether the court abused its discretion or followed the correct law, I think that's always a valid point.

Now that's perhaps a different jurisdictional point, but the court -- an appellate court can always review those kinds of issues.

VAN SUSTEREN: Jon, did you think demeanor of the court was any different yesterday compared to about 10 days ago because in the interim the Supreme Court has sort of given them a little bit of a slap.

MILLS: I think they were still pretty tough on both sides, seeing that they were steering towards both, two separate issues, one the standard of law, which they seemed to be favoring the Gore team, and the other is the remedy: How do you expect to us craft a remedy, even if that standard of law was wrong?

VAN SUSTEREN: Ken, I'm a little bit curious, I mean, in an election contest you have to prove you are the winner. On Monday, the judge ruled against the Gore people without even looking at the evidence that would show, assuming this to be true, that Gore was the winner. Is that a powerful argument, you can't even get the judge, who is the fact finder, to look at the very evidence that will prove my point? I mean, that's the way the Gore people present it.

GROSS: Yeah, and I think that is probably the Gore people's strongest argument that there are, in fact, undercounted votes that seem to have holes in them, at least somebody believes that some of them were real votes, and maybe we need to look at that.

COSSACK: Let me just follow-up on one question. We've heard again this notion that this just an every day, garden variety appeal, and that appellate courts can always review what lower courts have done. That's not exactly the issue that the Supreme Court was talking about yesterday, was it?

GROSS: No.

COSSACK: They are saying we have a much narrower standard, this isn't a garden review.

GROSS: It is not a garden variety appeal, in fact. As a matter of fact, it seems that the first time both parties, the Gore people and the Bush people kind of missed this jurisdictional issue on appeal, if you will, whether they could hear the appeal.

As you say, the Supreme Court of the United States gave them a little whack and said: Hey, this is the issue now before us. And they came before them again in Mcpherson versus Blacker (ph), the big case in 1890 was again not discussed.

VAN SUSTEREN: That's all the time we have today. Thanks to our guests and thank you for watching. Join me tonight at 8:30 for a CNN special report with the fallout from these latest court battles.

COSSACK: Tune-in to "TALKBACK LIVE" for your reaction to the latest developments in the quest for the White House. Send your e- mail to Bobbie Battista and tune-in at 3:00 p.m. Eastern time.

Throughout the weekend CNN will continue to follow the legal developments in the race for the White House. We'll be back Monday with another edition of BURDEN OF PROOF. We'll see you then.

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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