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Burden of Proof

Lawsuit Claims South Carolina GOP Polling Discrimination

Aired February 11, 2000 - 12:30 p.m. ET



GOV. GEORGE W. BUSH (R-TX), PRESIDENTIAL CANDIDATE: I love battling for the vote here in South Carolina. I love working my heart out to share with people what I'm all about. We're in a battle, and I'm here to ask for your vote. I'm here to ask for your support. Voting time is a week from Saturday, and if you're for me I urge you to go. Take half your neighborhood with you.

SEN. JOHN MCCAIN (R-AZ), PRESIDENTIAL CANDIDATE: One of the great things I've found out about the state of South Carolina, arguably it may be the most patriotic state in the union, and I say that without pandering but I say that with great confidence.


ROGER COSSACK, CO-HOST: As campaign 2000 heats up, Senator John McCain and Governor George W. Bush are prepping South Carolina voters for a presidential standoff. But will a Monday court date put next weekend's primary on hold?

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

COSSACK: Hello and welcome to BURDEN OF PROOF.

A federal lawsuit has been filed against the South Carolina GOP by a Democratic state representative and a party activist. The suit claims that the state Republican Party has violated the Voting Rights Act of 1965, making it difficult for black residents to cast ballots in the upcoming presidential primary.

GRETA VAN SUSTEREN, CO-HOST: The plaintiffs and the defendants are headed to federal court Monday afternoon. A three-judge panel will decide whether the South Carolina Republican primary will go forward as schedule.

Joining us today from Columbia, South Carolina, is Democratic state representative J. Todd Rutherford, one of the plaintiffs in this case.

COSSACK: In Atlanta, we're joined by Rutherford's attorney, Lee Parks. And here in Washington, Joy McGlaun (ph), former general counsel of the Republican National Committee Mark Braden, and Matt Roesch (ph). And in the back, Eric Yassenoff (ph) and Christa Cole (ph).

Let's go right to you, Todd. Why did you bring this lawsuit?

J. TODD RUTHERFORD (D), SOUTH CAROLINA STATE HOUSE: Well, what the Republican Party has done in the past two presidential preference primary is to shut down majority-black voting precincts and not allow black voters in those precincts access to the voter polls. What we wanted to do is force the Republican Party to at least allow them access. We're not -- we're not encouraging anyone to go vote in the Republican primary but simply saying that, as a matter of the Constitution, they should be allowed to go and vote in the Republican primary.

VAN SUSTEREN: Todd, does it make a difference in the lawsuit -- in addition to being a plaintiff and a state representative you're also a lawyer -- does it make a difference that none of the plaintiffs is a Republican seeking to have access to the polling place?

RUTHERFORD: Well, I don't think so, because what we're saying is simply that, as a matter of the Voting Rights Act, that the Republicans ought to allow everyone who wants to participate access to the voting polls. That's all we're saying. We're not saying that anyone should go and vote but simply that if they'd like to they ought to have access to the voting poll.

VAN SUSTEREN: What is it that the Republicans are doing in the state of South Carolina that you object to? How many polls are they not opening?

RUTHERFORD: Well, you're looking at a little more than half that are going to be open or that were open in the past two Republican primaries. We have 1,800 total precincts in South Carolina, and they had about 1,000 open or projecting to open at least 1,000. But in downtown Columbia, which is the capital of South Carolina and the heart of my district, three of those voting precincts were closed, and they all happened to be in majority-black precincts, and they say they happen to be but we say that that is a matter of course for them, because they also shut down Williamsburg County. the entire county, which also is majority black and did not allow anyone in Williamsburg County to vote in the Republican preference primary.

COSSACK: Todd, it's not that they're not allowing people to vote, they're just not opening polls in certain areas. Those people that are within those areas can still vote, they just have to travel a little further to get to the polls, isn't that what it is?

RUTHERFORD: Well, that's partially true, but what you're talking about, and especially in my district, is low-income neighborhoods, and you're not talking about people who can just hop in their SUVs and drive over to the next polling precinct and vote. You're talking about a lot of people who walk to the polls, who catch cabs to the polls, who can only take a certain time -- certain amount of time out of their day to go and vote, and this makes that time that much greater. And in Williamsburg County, I mean, talking about a voter having to go the next county to vote, it's not just a small burden that you're placing on them. That's a huge burden to place on someone.

VAN SUSTEREN: Why do the Republicans say they're not opening all the polling places?

RUTHERFORD: Well, they say it's because of financial reasons and because of a lack of manpower, but the Republican Party can't tell me that they don't have the money to open up polling places. The Republican Party can't tell me that in downtown Columbia they can't find three more volunteers to go and open those polling places.

VAN SUSTEREN: Can I ask you a question? You're a Democrat and I understand that this lawsuit is about the Republicans in South Carolina not opening polls, but I have a memorandum which states -- it's from the executive director of the election commission in the state of South Carolina to the county boards of voter registration and election commissions -- and in this memorandum it says that the Democrats don't plan on opening all their polling places. Is that right or is that wrong?

RUTHERFORD: Well, that's correct, because what the Democrats are going to do this year is do a caucus system the same way that Iowa does theirs, and so we're not going to have the same-type setup that the Republicans are looking to do. And they could have chosen to go with a caucus system as well. Unfortunately for them, they chose to go with a primary voting system in the traditional sense, and so they have to open up all their precincts and allow access.

COSSACK: Lee Parks, you're the attorney for Todd in this case. What are you attempting to accomplish? Are you attempting to invalidate the election?

LEE PARKS, RUTHERFORD ATTORNEY: Under the Voting Rights Act, if you failed to get approval from the Department of Justice before you conduct an election contrary to state election law, that is the consequence. The -- it's not that it will be invalid, it will not go forward.

VAN SUSTEREN: Let me ask you, Mark. I was talking to Todd about the fact that the Democrats seem to have a plan as well, and Todd has said that the system the Democrats will be using later on in the year is different from the Republicans. Is it...


VAN SUSTEREN: Does it make a difference?

BRADEN: Well, of course it does make a difference. The answer is, we have to be amused that a Democratic representative is attempting to simply throw a monkey wrench in the democratic process in South Carolina.

VAN SUSTEREN: Well, except -- wait a second. If...

BRADEN: Well, he's not concerned about a Democratic process which is much narrower, much more confined, much more restrictive of participation in a Republican process, which is a much-broader process.

VAN SUSTEREN: Well, it may be that maybe Todd's going to file a lawsuit later this -- I have no idea -- or Lee is -- but you have to agree that it would be troubling if, for instance, that poor areas, that polls were shut down and they had less access. They're -- in fact, you should -- they have less ability to travel than if you shut it down in the rich areas?

BRADEN: Well, let's first think about what this process is. This is not a South Carolina state process. This is an election being run by the Republican Party in South Carolina, who's manning it and paying for it. It's not a process of the state of South Carolina. The question of where the polling places are, they're attempting as much as possible to open all the polling places, but it's a question of money and volunteers, and the reality is, and I can't believe the representative would disagree with this, that more Republicans are present in certain areas than other areas.

VAN SUSTEREN: But that doesn't -- that's no excuse. You can't shut -- I mean, if there's a single poor, black person who's denied -- a Republican denied the right to vote...

BRADEN: Nobody's being denied that.

VAN SUSTEREN: ... it would be very troubling. If there's -- if there's a Democrat who suddenly things, look, I'm interest in voting...

COSSACK: Look, there's a major difference between denied the right to vote and having to travel to vote.

VAN SUSTEREN: Listen, I'll tell you, the minute you take -- the minute you move those polls from poll areas, that is to me tantamount to denial. I'll tell you, if poor people...

BRADEN: Do you think for a moment there aren't going to be more polling places than are caucus locations?

VAN SUSTEREN: I don't -- I mean...

BRADEN: Many, many more polling places.

VAN SUSTEREN: That's not the issue. The issue to me is, if there is an effort made to keep poor people from voting by making it a little more difficult...

BRADEN: Absolutely no effort. No -- not even an allegation that that's the motive behind this. We're simply look at a process of where we can get people where most of the voters are and money. This isn't the state paying for it.


COSSACK: Lee, let me -- is the Republican Party a private organization in the state of South Carolina? PARKS: No, you have to obtain certification by the state to have the right to conduct an election. You're expected to conduct it consistent with those laws that the Voting Rights Act requires you to conduct it under. What we've got here, it may not rise to the level of maliciousness, it rises to the level of the stereotyping that has gone on for the last 25 years. When we asked them why these polling places aren't open, when the answer comes back, they're not Republican, that's code for they're black...

VAN SUSTEREN: All right, we need to take a...

PARKS: ... and we don't want to pay to staff polls in non- Republican, i.e. black, areas.

VAN SUSTEREN: We're going to take a break.

Up next, a look at the Voting Rights Act of 1965 and how state and federal law affects the way parties run their primaries. Stay with us.


The 1998 verdict that Oprah Winfrey did not defame cattle producers, nor did she give false information about mad cow disease, has been upheld by a federal appeals court.



VAN SUSTEREN: Welcome back to BURDEN OF PROOF. We go now to Jeanne Meserve for the latest on the shuttle launch.

Actually, I guess we've lost them, so let's go back to Todd.

Todd, let me ask you about the Voting Rights Act of 1965. What was the purpose of that act?

RUTHERFORD: Greta, the purpose of that act was to simply prohibit exactly what's going on now. Back then during Jim Crow and segregation, you had the Grandfather Clause where somebody had to prove -- or an African American had to prove that their grandfather voted in order for them to vote, or you had an African American having to read sections of the Constitution in order to be able to vote. And this is simply no different.

The history of South Carolina shows that it was done -- the primary system was given to the party in order to make it more difficult for African Americans to vote, and...

VAN SUSTEREN: All right, let me interrupt you one second because I think we've solved our technical problems.

We go back to Jeanne Meserve for the latest on the shuttle launch.


And I'm going to toss it over to Miles O'Brien at the Kennedy Space Center in Florida.

Miles, what's the latest on the launch.

MILES O'BRIEN, CNN SPACE CORRESPONDENT: Jeanne, not much time to talk. We'll just listen in to NASA. About 30 seconds to the launch of the space shuttle Endeavour. Six-person crew aboard, a $600 million ambitious radar mapping mission.

Let's listen in to NASA commentator Joel Wells (ph) and the radio communications between the crew and the ground controllers.

UNIDENTIFIED MALE: Twelve, eleven, ten, nine, eight, seven -- we have a go for ignition -- four, three, two, one, booster ignition, and liftoff of space shuttle Endeavour on a 21st century mission placing Earth back on the map.

UNIDENTIFIED MALE: Roger, roll, Endeavour.

UNIDENTIFIED MALE: And we're rolling on a course northeast away from the Kennedy Space Center. (UNINTELLIGIBLE) it will take it above 95 percent of the world's population during its mission. Endeavour's speed already 300 miles per hour, altitude one mile.

Three engines on Endeavour now throttling back to two-thirds throttle as they prepare to go through the Earth's (UNINTELLIGIBLE).

O'BRIEN: (OFF MIKE) NASA's mission control in Houston. As you look at a closeup shot, the twin solid rocket boosters doing most of the work right now, about 80 percent of the thrust.

The famous throttle-up call indicating a portion of time after which the space shuttle increases its throttles after the atmosphere has thinned out somewhat and the weight of the space shuttle has decreased. The throttles are purposely throttled back, and they are accelerated to 104 percent of their capability. Now a minute and 37 seconds into this flight, the solid rocket boosters still attached. The six-person crew aboard right now getting a very, very rough ride, feeling the effects of increasing G loads, which is the pressure of gravity against their bodies.

And there you see the solid rocket boosters' separation, critical moment in the ascent of a space shuttle into orbit, about two minutes after the launch, as expected. It takes about eight-and-a-half minutes for the space shuttle to attain orbit, right now riding on the main engines, that solid -- excuse me, the external tank still attached.

So far exactly what NASA would have hoped for on a picture- perfect day here at the Kennedy Space Center, thus beginning an 11-day shuttle radar topography mission, the crew attempting to map about 70 percent of the Earth's surface with a special radar device which will provide three-dimensional maps for the military and for scientists. Now indicated, when they say two-engine tal (ph) indicating transatlantic abort scenarios, telling the crew as they go higher, and if the shuttle continues to perform as expected, they have additional options available to them in the way of aborts. But so far, nothing to indicate they would need to abort in any way. So far, things operating as exactly as NASA would hope it.

Once again, an 11-day mission. We will be following it all throughout as always. The six-person crew conducting an ambitious effort to map most of the world in all of 10 days time.

Miles O'Brien, CNN, reporting live from the Kennedy Space Center -- Jeanne.

MESERVE: Thank you, Miles.

And BURDEN OF PROOF will continue after this break.



Q: Nelson Mandela was released from prison in South Africa on this day in 1990. How many years did he spend in jail?

A: 27.


VAN SUSTEREN: Welcome back to BURDEN OF PROOF where we're talking about a lawsuit that has been filed in a South Carolina federal court, saying that the primary that's coming up in the Republican Party is unconstitutional, and that it violates the voting acts of 1965.

Lee, on Monday you're going to court to seek an injunction to stop the primary from going forward. The Republican Party of South Carolina says the Voting Rights Act does not apply to them. Does it, number one? And number two, what is the pre-clearance provision under the Voting Rights Act?

PARKS: Well, the Voting Rights Act clearly applies to anyone who's going to hold a statewide election in a covered jurisdiction. South Carolina is covered by the Voting Rights Act.

You know, this issue was decided back in 1947 when political parties took the position that they were private groups, private clubs, that could exclude blacks from their primaries, white-only primaries, the white primary cases.

And Judge Warring (ph) in South Carolina was the judge that took that on. And he said: You know, you may be a private club, but when you start electing the president of the United States, you need to remember the Constitution. And the Voting Rights Act is what Congress has put in place in '65 to assist federal courts in making sure that we don't revert back to the white primaries. And sadly, when you see a market trend of poll closings in majority black areas, you are reminded of the white primary cases.

VAN SUSTEREN: What about the pre-clearance aspect? what has to be done there?

PARKS: Well, all covered jurisdictions before they are going to hold an election where they vary from state election law have got to check that out with the Justice Department. They assigned the tough job of seeing whether changes were going to have an adverse impact on equal access to the election for minority voters.

VAN SUSTEREN: Was that done here by the Republican state party in South Carolina?

PARKS: Well, interestingly, as of yesterday, they submitted it. We filed a complaint on January the 4th. They contested it, contended they were the private club that was exempt. But I think that they have now come around. And as of yesterday, they have submitted for pre-clearance.

COSSACK: Mark, the Republican Party, I suppose, in South Carolina would argue and say: Look, we're not trying to exclude people, what we're trying to do is not spend money in areas where we know we don't have anybody who is going to come out in vote. It happens that in South Carolina there are, perhaps, mainly black areas, and these people just aren't going to vote Republicans, should we therefore be required to furnish them with polling places, where no one is going to attend.

BRADEN: Well, the first thing to remember is there was never a Republican white primary. There were Democratic white primaries. The Republican Party has never excluded blacks from its primary process, unlike the Democratic Party in large portions of the United States.

Voting Rights Act most certainly applies to the Republican Party. The question here is whether pre-clearance applies. It's the process of parties deciding, when you have limited resources, how many polling place. The Republican Party in South Carolina wants to have a polling place in every precinct in South Carolina. It's a question of whether or not they can do it logistically and financially. That is the only question here.

VAN SUSTEREN: Why not, if they can't open all of them, why not shut down the rich white ones, where they all have cars and let them drive to the so-called "poor black" ones? why not do that so you are guaranteed of allowing these people, who might not have transportation, to vote?

BRADEN: Well, there is no question -- We're talking about a question of the attempt to put polling places everywhere. Part of the cost here isn't, most of this polling place running in a sense is being done by Republican Party volunteers, so it's just simply not a question of deciding...

VAN SUSTEREN: Well, get the volunteers there, get the volunteers...

BRADEN: Well, it is easy to say that these volunteers should go somewhere where they don't live.

COSSACK: Todd, let me ask you this question. Todd, suppose that this was the Reform Party in South Carolina, and they just don't have very much money, they had a limited budget, and they said: Look, we just don't have the money to open up polling places in all the places where you want us to, and we can't do it financially. And if you make us do it, we're not even going to be able to have an election; what happens then?

RUTHERFORD: Then the Reform Party should submit a plan for pre- clearance to the Justice Department, sooner than two weeks prior to the election, to say that they can't afford it do it. But for the Republican Party to say that they can't afford to do something is ludicrous. And when he talks about Republicans never excluding African-Americans from the polls, those same Democrats back then that tried to exclude African-Americans are now Republicans.

And look at what the Republicans are doing -- as we watch the space shuttle take off -- look at what Republicans are doing in the year 2000 to stop black people from going to the polls. And this from the party of Bush, who goes to Bob Jones University, which doesn't allow interracial dating; this from the party of McCain...

BRADEN: This man is attacking a Republican Party process, which is infinitely more open than the process he is defending. There will be many more polling places, where many more people will be able to vote in the Republican Party process than will be able to participate in the Democratic Party process.

VAN SUSTEREN: You know, Mark, if the Democrats do that, I'll squawk then.


VAN SUSTEREN; I'll squawk then if the Democrats are excluding poor blacks as well, believe me, Mark.

But, Lee, let me go to you. The certification or pre-clearance process usually is 60 days. They filed yesterday. What about the 60- day provision? The Justice Department doesn't have 60 days before the primary.

PARKS: They sure don't, and I would be amazed if anyone could analyze this issue, in terms of the effective access that these poll closings have had, in the five or six days effectively that the Republican Party has given them. So, the law is clear, if you file late, and you don't get your pre-clearance, the burden falls on the person who filed late, and the election simply won't take place.


BRADEN: I do not for a moment believe, most certainly they have filed for pre-clearance in an effort to shortcircuit this lawsuit. That does not, in fact, the fact that they filed for it mean that they think this requires pre-clearance. I do not believe it requires pre- clearance. It is not that the Voting Rights Act doesn't apply, it does apply. It is a question of whether Section Five, which requires pre- clearance, applies. Section Five doesn't apply here. These -- we're not talking about the election of a person to an office, that's not happening here; and we're not talking about the state of South Carolina, we're talking about a private association. Section 5 doesn't apply.

VAN SUSTEREN: Lee, you have got to answer that. On Monday, I assume before these three federal judges, what are you going to say?

PARKS: Well, we took the deposition of the executive director of the state Republican Party yesterday, and he strongly disagrees with the earlier comments. His comment is, is this primary decides who is going to be the Republican nominee. Since 1980, when they began to have it, the winner in South Carolina has won the nomination. This election binds all of South Carolina's delegates to the winner.

VAN SUSTEREN: Is it possible, Lee, that on Monday, you could get a decision that would actually abort the Saturday primary. Is that a realistic thing that could happen on Monday?

PARKS: That's the law, I expect it.

BRADEN: That would be a triumph of democracy. It really would be, that would be a very wise decision for the voters of South Carolina; wouldn't it? So we would deny them the right to participate in the process. So maybe the Republicans could have a process like the Democrats and close it up and not let people participate. Is that a good political policy?

PARKS: There is another alternative. There could be a delinking of the popular election from the binding of delegates.

VAN SUSTEREN: All right.

PARKS: That's another practical solution to this. In other words, take away the connection between the popular vote, and the actual electoral process of the nominee.

VAN SUSTEREN: And you get the last word, Lee, and you will get more in court on Monday. But that's all the time we have for today. Thanks to our guests and thank you for watching.

Are the questions on the hit TV show "Who Wants to be a Millionaire?" too easy? Come up with your final answer today on "TALKBACK LIVE." That's at 3:00 p.m. Eastern time, noon Pacific.

COSSACK: And we'll be back Monday with another edition of BURDEN OF PROOF. We'll see you then.


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