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Burden of Proof

Election 2000: Were African-Americans Systematically Denied the Right to Vote?

Aired December 14, 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)

AL GORE, VICE PRESIDENT OF THE UNITED STATES: Tonight, for the sake of our unity as a people and the strength of our democracy, I offer my concession.

GOV. GEORGE W. BUSH (R-TX), PRESIDENT-ELECT: After a difficult election, we must put politics behind us and work together to make the promise of America available for every one of our citizens.

(END VIDEO CLIP)

ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: The campaigns and the contest are over, but the lawsuits surrounding election 2000 continue. Were African-Americans systematically denied the right to vote?

(BEGIN VIDEO CLIP)

REV. JESSE JACKSON, RAINBOW-PUSH COALITION: In the African- American communities, you have the most broken down machines and the least ability to service people who are trying to vote. You have that. About 80 percent of those who were disenfranchised are African Americans. To me, that was race targeting.

(END VIDEO CLIP)

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

COSSACK: Hello and welcome to BURDEN OF PROOF.

Last night, Vice President Al Gore conceded the election and Texas Gov. George W. Bush prepares to become the 43rd president of the United States. But the legal wrangling which has characterized the 2000 race continues in the Florida courts today.

GRETA VAN SUSTEREN, CO-HOST: Last week, the Rainbow-Push Coalition, along with voters and elected officials in Florida, filed a lawsuit against the Duval County supervisor of elections and others. The suit alleges unfairness as it relates to minority voting. In addition, the claim also alleges that African-American voters who were legally registered were turned away from the ballot booth. Joining us from Davie, Florida is Democratic Congressman Alcee Hastings.

COSSACK: And from Jacksonville, we're joined by Richard Mullaney, general counsel for the city of Jacksonville and a member of the Duval County Canvassing Board. In Los Angeles, Cruz Reynoso, vice chairman of the U.S. Commission on Civil Rights. And here in Washington, Hadeeza Boozhay (ph), Dan Keating of the "Washington Post," and Erin Maloney (ph). And in the back, Alex Knott (ph) and Matt Pillsbury (ph).

Dan, I want to go right to you. You have been -- "Washington Post" has been writing about this particular issue. What have you found? What we've heard -- we've heard a statement about broken down voting machines. What exactly does that mean and where were they?

DAN KEATING, "WASHINGTON POST": Well, they were disproportionately in large urban centers where, once again, disproportionately, the African-American voters tend to be. And the most important thing about what kind of machine you vote on is that in about 23 of the counties in Florida, when you cast your ballot they check it right there in the precinct. And if there's any error in it, you get to correct it right away.

And in those counties, 23 counties -- so it's not like just a little county here or there -- less than 1 percent of the ballots didn't have a vote. But when you go to the other counties in Florida where when you cast your ballot nobody checks it, more than 4 percent did not have a vote on it for president.

So just -- it's like if one group of people taking a test gets to have their test corrected right there in front of them and they can fix their mistakes and the other group doesn't, all of a sudden the scores are -- there's a big difference.

COSSACK: Is that 4 percent -- are you able to say that that goes to the inability of these voting machines to register people who intended to vote?

KEATING: I mean there's really not any other explanation for why in one sample you see people voting for president, you know, over 99 percent of the time, and the other time all of a sudden 4 percent of them aren't voting just because of which equipment they're on.

VAN SUSTEREN: Let me get the -- and you and I talked before. One in five votes, you explained -- what is that one in five votes?

KEATING: Oh, OK. The other thing is when you look at the county level, it's often the real issues get masked if you have to get down to the precinct level, which is what we've done a lot of the work in Florida. And so when we looked at the precinct level in Duval County, we were shocked to see two almost entirely African-American precincts where one in three ballots didn't have a vote for president. But overall, if you look at every precinct that's at least 70 percent of the registered voters were African American, it was over one in five ballots didn't have a vote for president. And you look at the ones that are at least 70 percent white, it was less than one in 14.

VAN SUSTEREN: All right, give us so that we have some idea this one in three in African-American areas. What is the national standard that doesn't register a vote for president?

KEATING: The normal is less than one in 50.

COSSACK: All right, so if there's one in -- just to be a little more clear, perhaps just for me, when you say one in three or one in five did not have a vote for president, does that mean that there were votes for other offices.

KEATING: Unfortunate, the way they tabulate the records, you can't see that. There's actually some work going on to try to look at that in a little more detail. But the way they tabulate it, you can't see that.

VAN SUSTEREN: There is -- I have read -- you know, I've read a lot in the last five or six weeks about voting, but I read an article that suggested that bad machines were used or were dumped, so to speak, in poorer areas. Does your research or reporting bear out that?

KEATING: It doesn't really indicate machine-by-machine as much as at the precinct level, is where we were looking. So it's harder to say that.

VAN SUSTEREN: And what did you learn, though? I mean, does your reporting show that poorer areas get poorer services or poorer machines or poorer equipment in terms of voting?

KEATING: Well, it definitely turns out there are other studies as well that make a very strong relationship between poor voters and having more spoiled ballots of various sorts. But we were not able to look at specifically how equipment was aligned. All we're able to look at is basically -- the distinction we made is between equipment that checks your ballot to see if there's an error and equipment that doesn't. And in doing that, African Americans are disproportionately voting without the ones that check your ballot.

COSSACK: Dan, does that -- are you able to say that African- American areas get poor equipment, or are you able to say that they just don't get modernized equipment while other areas do get modernized equipment?

KEATING: Right, it's more a matter of affirmative efforts by some places. And it's a little bit a typical thing in technology of leapfrog. Big urban areas had to automate sooner, so they automated earlier with older equipment. Areas that didn't grow as fast automated later, tended to do it with better equipment. So it's a little bit of a matter of simply having automated sooner, but you still have choices about whether you check your ballots in the precincts. And that's a choice they make, and they choose, you know, in the bigger urban areas, not to.

VAN SUSTEREN: You're not new to the story nor new to Florida voting. Is this something that is just arisen, this issue, in this election, or have people been aware of this problem for election cycles back?

KEATING: I mean, I remember I wrote this story in 1992 about how many ballots didn't have a vote for president. But it wasn't a story of importance, it was actually more of a quirk story. It was kind of an amusing story.

VAN SUSTEREN: Well, actually, I beg to differ.

KEATING: And one thing we didn't -- no, I must say but at that point we didn't break it down so much at the precinct level and look at it by race. I just wrote a story about, isn't it interesting what proportion of people go and don't end up casting a vote for president? At that point -- because the election wasn't close and because we weren't looking at it -- like I said, when you look at it on the big pattern, you don't see it as importantly when you go down to the precinct level.

VAN SUSTEREN: Boy, I've got to tell you -- and I understand your thinking on that -- but I'll tell you, to deny votes to people even in an election that's far apart is -- makes me a little unglued.

But let's go to Congressman...

KEATING: It's interesting that the way election supervisors...

COSSACK: You're not saying that there's any intent to deny, is there?

VAN SUSTEREN: I don't care if there's negligence, Roger.

KEATING: Well, it's not -- but it's not intent. But the thing is, if somebody's getting hit by a car in the same crosswalk day after day, at some point is it intent that you're letting them walk out there? And when we looked at it...

VAN SUSTEREN: I -- you know, I think negligence -- I think, Roger, negligence is just as bad as intent here to turn your back on this. I mean, I think that's outrageous for anyone to duck, saying, we never intended, in something so important as voting, is outrageous.

Let me see if I...

KEATING: But it's very -- but election supervisors...

COSSACK: Well, if the results are across the state, who's getting it and who isn't? I mean, you can't just say negligence without proving at some point.

Let's go to our guest.

VAN SUSTEREN: Alcee Hastings. Of course, that's an easy one. I could -- let me see, do you agree with Roger or do you agree with me on this?

REP. ALCEE HASTINGS (D), FLORIDA: I agree with...

COSSACK: Come on now. You know we've been friends for a long time.

HASTINGS: Hey, Roger, you and I are going to be friends for a long time, but I agree with Greta...

COSSACK: OK.

VAN SUSTEREN: ... in this particular instance. And I think you do, too, when all of the proof is there.

First let's start with the fact that there were severe irregularities and discrepancies. And the cumulative effects of them amounts to what Greta spoke about, and that is the negligence.

Roger and Greta, both of you -- and let me compliment you for the extraordinary work that you did. And I don't mean that patronizingly. You have done America proud in the legal arena in interpreting as fast as you have many of the decisions and statutes that you had to.

That said, the Beckstrom case, that both of you are familiar with, cites for the fact that it does not have to be intentional wrongdoing, it does not have to be fraud. If it is gross negligence, then it rises to the level of that something in the way of a remedy needs to be applied.

And that's what we have here. I'm waiting for your guest from Jacksonville to tell us, does he not recognize that African Americans go to the polls to vote for the president and don't vote for down ballot issues a whole lot more than the flip side of what happened in Duval and in Broward, my main county, and in Dade County? That doesn't make any sense.

VAN SUSTEREN: We'll give him a chance to answer that. We're going to take a break and that will be my first question when we come back. Stay with us.

(BEGIN LEGAL BRIEF)

Edmond Pope, an American businessman sentenced to 20 years in prison for espionage, was pardoned Thursday by Russian President Vladimir Putin. The pardon, given on humanitarian grounds, could only happen after the sentence went into legal effect. Under Russian law, that is seven days after the sentence is delivered.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

VAN SUSTEREN: Minority activists, elected officials and voters are suing elections officials in Duval County, Florida. The plaintiffs claim that African-American voters were systematically denied the right to vote. The lawsuit says, among other things, that roadblocks near polling sites intimidated minority citizens, and legal voters were turned away because their names weren't included on the registration list.

Rick, let me go to first to you on the issue that was posed by Congressman Hastings, or a question before we went to break. Let me ask it this way: Is there a problem in Duval County, as it relates to African-American voters, and if so, how long has anyone known about the problem?

RICHARD MULLANEY, DUVAL COUNTY CANVASSING BOARD: Yeah, let me make two comments, if I could. One relates to what Dan from the "Washington Post" said earlier about equipment quality. I think what he's talking about, in part, is the difference between optical scanner technology and the punch card system.

Here in Duval County we have the punch card system throughout the county, and that equipment is fairly uniform and that's important, Greta, going to the next point. What happened in Duval is that, in this election, we had 10 candidates for president, that's a large number because of the way Florida allows candidates to qualify. In Texas, for example, there were five.

Because we had 10 and a punch-card system, our supervisor of elections went to two pages. Palm Beach County, as you know, went to a butterfly ballot, and that's been much discussed; other counties went to real small print.

A lot of people have claimed that by going to two pages, and a lot of people have claimed that because of the instructions that that contributed to a large increase in the number of overvotes in this election. I don't know whether that is true or not, but the one thing I do know that is true is that that is not proof of, and there has never been a basis for believing, that there was a systematic or intentional attempt to disenfranchise any group.

VAN SUSTEREN: What do you make of Dan's remark about one in three votes versus the nationwide standard one and 50?

MULLANEY: Well, let me give you the macro numbers on that. There were 22,000 overvotes in Duval County, there were approximately 5,000 undervotes. Of those 22,000 overvotes, the majority came from precincts that went for Mr. Bush, approximately 12,000. The remaining 10,000 went for Mr. Gore. Four council districts for Mr. Gore, 10 council districts for Mr. Bush. On the undervotes, 72 percent went for Mr. Bush, approximately 28 percent went to Mr. Gore.

Regardless of how that would have fell out, if you could gotten part those numbers, the important discussion to have is not to make a race-based allegation. And the reason that is so important is that I believe we share the same goal. I am like you, Greta, every vote should count. We want people to register. We want them to go to the polls, and we want them to count.

COSSACK: Rick, listen, I want to at least make -- I am trying to sort of make this as inclusive as possible, but if in fact the net effect is that minority and African-American and poor people aren't getting the same opportunity to vote, I mean, you know, whether you intend or you don't intend it, there is a certain base line here where you end up with it.

MULLANEY: They were getting the same opportunity to vote. Let me say two things. One, it was the ballot county-wide, it was the same instructions county-wide. But, secondly, and this goes to both of your points. Is this acceptable? The answer is no. Do we need a better system the next time? The answer is this.

VAN SUSTEREN: Let me ask you a quick question. Is this something new in Duval County?

MULLANEY: The number of overvotes was much larger this time than last time, that's true. The punch-card system is not new be; that's been used for a while.

VAN SUSTEREN: So Duval knew about the problem at least four years ago, right?

MULLANEY: No, in every -- Greta, in fairness, every state in the country, every county in the country have overvotes and undervotes. I would agree that optical scanner systems have less because, before you leave the booth, you know that there's an overvote. In the punch card system, you typically don't. We definitely need better technology, and one of the great things that is going to come from this experience is a much improved system the next time. What we don't need, I don't think, is divisive allegation that this was an attempt to disenfranchise anybody.

VAN SUSTEREN: But we need an investigation.

Let's go to Cruz.

Cruz, you may be just the guy to help us out here. What is the United States Commission on Civil Rights going to do, if anything? Are you going to investigate?

CRUZ REYNOSO, VICE-CHAIRMAN, U.S. COMMISSION ON CIVIL RIGHTS: The U.S. Commission on Civil Rights is, indeed, going to investigate. One of the most important civil rights that a citizen of this country has is to vote. That's a civil right, so the U.S. Commission on Civil Rights has jurisdiction, not just over whether there was discrimination, intentional or not, and I must agree with those who say that it doesn't matter whether it was intentional or not, if somebody didn't have his or her vote counted, whether it was through negligence or intentional discrimination, that vote still was not counted.

COSSACK: How do you investigate, Cruz? What is your organization going to do?

REYNOSO: We have already announced that we are having hearings, two days of hearings, initially, we may have more in Florida. We will have before us folk who were not permitted to vote, we will have before us the officials to explain their system. And out of that, we will make recommendations to the American people, to Congress, and to the president. We are -- we do not have enforcement power, we have a power to investigate and to recommend, but perhaps our most important power is that to investigate. We have subpoena power to find out what actually happened. I want...

VAN SUSTEREN: Do statistics -- is that part of a case, I mean in the Civil Rights Commission, looking at these voting issue, is statistics a legitimate form of evidence in terms of trying to determine whether there is a problem?

REYNOSO: Absolutely. If there's a pattern of discrimination, whether it is intentional or not, it is still a pattern, and so that's very important for us. I want to shift the discussion a little bit, if I may.

None of the discussion that I have heard thus far speaks to protecting the civil rights of the citizen. I hope that, in our investigation and recommendations, we point to that to the right to vote. There ought to be a system where if a person has not -- has made a mistake or a person has not found on the voting roles, who really should have been there, that there be a system whereby a complaint could be filed, that complaint will be resolved in 24 hours, that person can vote, and the votes of that precinct will not be counted until that individual votes. I think it is outrageous that we have now, perhaps criminal complaints against the officials and so on, but no way in the law to protect that most important civil rights, the right to vote.

COSSACK: All right, Cruz, let me interrupt you for just one second. We are going to take a break. What time of remedy is appropriate for this lawsuit if they find that there's either negligence or intention? Stay with us.

(BEGIN Q&A)

Q: Two Pittsburgh men will be charged with receiving what stolen property commemorating "Peanuts" creator Charles Schultz?

A: A replica of Snoopy, dressed in his red Baron outfit atop his doghouse, which had been installed on a downtown street corner.

(END Q&A)

(COMMERCIAL BREAK)

COSSACK: Even though the election is over, lawsuits continue in Florida. Minority groups are suing Duval County elections officials, claiming African-American voters were deliberately kept away from the polls on Election Day.

Congressman Hastings, I want to find out a little more than what we've talked -- we have talked about the difficulty that African- Americans had once they actually got inside to vote. But what about these other allegations that perhaps roadblocks were set up, and police were around that were to intimidate African-American voters from voting? Is there any proof of that? HASTINGS: Roger, I think the Justice Department is investigating the roadblock situation. There is empirical data gathered by the NAACP with reference to Creole interpreters not being permitted to be utilized in Dade County, and that ballots were not printed in Creole. I think that had a slight impact in that area. But generally speaking, most of the information is anecdotal.

That's why I make the argument that the irregularities and discrepancies, the cumulative total of them, such as Dan's findings not only African-Americans, great opportunity here for some coalescing, because Latinos suffered in those same 40 counties that Dan did such great work in: 25 percent discard in the 1996 election. Some of the remedies are going to be yet another equal-protection lawsuit.

And not to hog the time, the all-too-cute opinion of the United States Supreme Court in Bush vs. Gore opened the door to equal protection: to protect Gore's electors to get them to safe harbor, and then close the door and let the voters drown in a sea of confusion, I think that that's ridiculous.

VAN SUSTEREN: All right, listen, speaking of a sea of confusion, let me add just one thing. And I am going to go to you, Dan.

(CROSSTALK)

VAN SUSTEREN: In 1870, we have this 15th Amendment -- we have the 15th Amendment ratified giving everybody the right to vote regardless of race. In 1965, we have the Voting Rights Act, in which it suspended literacy tests. Now, in Duval County, 10 candidates, two pages, and the instructions are: Vote on every page. Now we have an I.Q. test in Duval. What is your reaction to that?

KEATING: It is obviously disturbing. If you follow the instructions, you invalidate your ballot. And he was talking about helping people correct things. We -- I spoke with a woman whose son voted. He was a high school kid voting for the first time, came out of the booth, and said to his mom, "Mom, I voted every page." And she said, "Oh, no." And they looked at his ballot and they could see that he had invalidated his presidential vote.

And she said they told the poll workers. And the poll workers said, "Nothing you can do about it," dropped it in the box. It also says in the instructions: If you make a error, tell them. You can get a new ballot. And a lot of this -- what I think Alcee Hastings was talking about -- and I don't have proof of this -- but just anecdotally, this is the kind of thing people are talking about -- is that: Was there a big difference in something like that in Duval, where they wouldn't help someone with their ballot.

(CROSSTALK)

KEATING: But compare it. Say, let's look at Okaloosa County, where Bush won the absentees 18-19. And they sent out absentee ballots to the people who didn't even request them.

(CROSSTALK)

COSSACK: We've got to give Rick a chance to respond.

Rick, please respond.

MULLANEY: Yes, somebody has leaped in here with some whole new facts that I know nothing about. It is completely news to me at this point -- and, of course, we've been asking everyone to give us their complaints and allegations -- that the instructions said: Vote every page. That's not my understanding. But we will look at all of it. Our understanding is that it had clear instructions. It said vote appropriate pages. It had a listing of the presidents.

VAN SUSTEREN: Every page.

MULLANEY: No.

(CROSSTALK)

KEATING: The sample ballot we read clearly said -- which is posted in the polling place with the instructions, the instruction for the machine that are posted on the wall.

(CROSSTALK)

COSSACK: Rick, go ahead.

MULLANEY: The same instructions countywide. Unfortunately, there were some confusions regarding the sample ballot and the actual ballot that you found in the polling places. And they were countywide. Now, I agree with Greta: Whatever confusion that cause is regrettable. But it was not racism.

VAN SUSTEREN: You know what: not even just regrettable, Rick.

MULLANEY: It's not...

VAN SUSTEREN: And I appreciate it. It's not even regrettable. It is wrong. But unfortunately, this time -- and I'm sorry, Rick. I put you on the hot seat today.

MULLANEY: It's not race-based.

VAN SUSTEREN: But that's all time we have today. Thanks to our guests. And thank you for watching.

Tonight on CNN, "GET TO THE POINT" with a new prime-time show. My guest will be Democratic Congressman John Conyers of Michigan. Join us at 8:30 Eastern.

COSSACK: And today on CNN's "TALKBACK LIVE": Can president- elect Bush unite the nation? Send your e-mail to Bobbie Battista and tune in at 3:00 p.m. Eastern Time.

We are going to be back tomorrow with another edition of BURDEN OF PROOF. At 8:30, I'm going to be watching Greta. And we'll see you then. Bye bye.

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