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Burden of Proof

Lawyers for Gore and Bush Battle Over Contested Florida Election

Aired November 28, 2000 - 12:30 p.m. ET


ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: A deadline looms as the U.S. Supreme Court awaits briefs from both campaigns. Plus, lawyers for Gore and Bush battle over the contested Florida election.


DICK CHENEY (R), VICE PRESIDENTIAL CANDIDATE: The election results in Florida have been certified in accordance with Florida state law, and rulings by the Florida Supreme Court. We believe that it is time to get on with the business of organizing the new administration.

VICE PRES. AL GORE (D), PRESIDENTIAL CANDIDATE: Ignoring votes means ignoring democracy itself, and if we ignore the votes of thousands in Florida in this election, how can you, or any American, have confidence that your vote will not be ignored in a future election?

JAMS BAKER, OBSERVER FOR BUSH CAMPAIGN: America has never had a presidential election decided by a contest of the election outcome in the court. This is an extraordinary procedure. And we are entering new uncertain and controversial territory.


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

COSSACK: Hello, and welcome to BURDEN OF PROOF.

As the legal wrangling continues over disputed votes in Florida, the Bush legal team expands. Four new lawyers now join in the legal fight for the White House.

James Baker, Bush's point man in the Sunshine State, feels this new team will punch holes in the Gore lawsuits and set the record straight.

GRETA VAN SUSTEREN, CO-HOST: The vice president has contested the returns in three Florida counties. Last night, Gore sent his message directly to the American people.


GORE: That is all we have asked since election day, a complete count of all the votes cast in Florida, not recount after recount, as some have charged, but a single, full and accurate count. We haven't had that yet.

BAKER: All of the other non-votes, not only in other counties in Florida, but across the United States of America have been counted. They've been counted, and they've been recounted by machines. They have not been manually counted, but neither have all of these other votes that were thrown out.


COSSACK: Joining us today from Tallahassee, Florida is Ron Klain, attorney for the Gore campaign. We'll be speaking to Daryl Bristow, one of Governor Bush's new attorneys, in our next segment.

VAN SUSTEREN: And here in Washington, Barbara Zimmerman (ph), constitutional law professor Mike Tushnet and Pat Hurley (ph). And in our back row, Meghan Scott (ph) and Erin Hueston (ph).

Let me go first to you, Ron. I must confess, I am a little bleary-eyed with all these numbers of votes that, at some point, once in a while, I feel a little confused. I want to focus on the Miami- Dade 10,000 votes. Have they been counted or not?

RON KLAIN, GORE CAMPAIGN ATTORNEY: No, Greta. About 1700 of those ballots were hand counted, of the 10,750, about 1700 were hand counted, and that showed a next gain of about 160 votes for Al Gore. The other 9,000 ballots have been were run through a machine, and the machine said: None of those people voted for president.

But we know that when humans looked at a fifth of the ballots, hundreds of votes were discovered, 400 votes were discovered totally, with a net gain for Gore. So there's reason to believe that on those other 9,000 ballots, which no person has ever looked at, there is reason to believe there a lot of votes there for both candidates for president.

VAN SUSTEREN: Why did the machine reject or not record 9,000 votes. Is it a dimple? is it a hanging chad? or is it a combination? or a bad machine?

KLAIN: Well, part of it is a bad machine. These machines are 30 or 40 years old. The technology is very outdated. Very few counties adopt these machines, now, that there is a lot of testimony about that in Palm Beach, about people trying to punch these chads, and having to bite them off with their teeth. It is machine failure, no question about it.

The machine also doesn't record if someone circles a number on it with a pen, or other things that clearly show a vote.

The fact of the matter is we wouldn't leave anything one-half this important, one-tenth this important, for a machine alone to decide. We don't let machines alone decide whether or not you owe money on your electric bill, or your telephone bill. To let the machines decide this by itself...

COSSACK: Don't you need some standards? Isn't the problem here -- I don't want to go back to this all over again, but, you know, I understand that we don't leave it to machines and things like this, but aren't standards necessary? Isn't that what is missing in this decision of how do you count these ballots?

VAN SUSTEREN: Could I just step in for one second, are these absentee ballots, these 9,000 that we are down to, are these ballots that were cast at the polling booth or are these absentee ballots?

KLAIN: Well, first of all, to answer Greta's question, they were ballots that were cast on election day at the polling booth. So that is that answer.

With regard to Roger's question about the standard, there is a standard, the Florida Supreme Court, in the Harris case, set forward a standard, and the standard is the intent of the voter. And for all the efforts to make that seem mysterious, or difficult, or complex, it is the same standard used in Texas law, it is the same standard Governor Bush has supported in his home state.

So we think it is a clear standard. It is a standard that can be implemented. It has been implemented by courts all over the country, and states that use these kinds of ballots.

And more importantly, I think with a standard, the most important thing is to have the votes be counted by a human being, to see if all of those people who showed up on election day voted for somebody, or voted for nobody.

VAN SUSTEREN: Ron, for some reason it strikes me as odd that you think that there may be a circled ballot, from a ballot that's cast at the polling booth. I can understand how you might think there is a machine problem or an indentation, or a hanging chad, but is it realistic to say that there might be circled ballots?

KLAIN: Not only that, Greta, but actually yesterday on CNN, Judge Burton, the counter in Palm Beach, held up a ballot that someone had been unable to punched through and written the words "Gore- Lieberman" right on the ballot. Voters found these ballots very frustrating. The machines are very old. There is plastic behind them. It makes them hard to punch through.

So I think, if we look at those ballots, we will see all sorts of evidence that voters intended to vote.

Let me make one other point, some of those people voted for George Bush, some voted for Ralph Nader, Pat Buchanan, whomever. All those people have a right to have their votes counted one way or another, and then we will see.

I don't really understand what the objection to the Bush campaign is of simply counting the votes, and seeing which one of these two men is rightfully the president of the United States.

COSSACK: So, Ron, where are you in your contest? I mean, this is obviously what you are claiming in your contest, the lawsuit, you are saying that there were legal votes that had not been counted. You have to get over the first hurdle, which is to convince the judge in Leon County that, even if you are right, there's enough votes to change the election. How are you going to do that?

KLAIN: Well, I think the evidence on that is overwhelming. The margin is 500 votes statewide, there are 215 votes in Palm Beach County that were counted, and were rejected by Secretary of State Harris because they arrived two hours late. We don't think that's a reason to reject lawful votes. You add that to the total, you are down to about a 300 vote margin with 9,000 unrecorded votes in Miami- Dade, I don't think it is hard to figure out that the votes are probably there.

In terms of moving this forward, we have proposed to the trial court this morning an expedited calendar, a day by day calendar, that would have all of these votes counted in seven days from tomorrow, that would get this case wrapped up by the 6th of December. Plenty of time for the December 12th deadline, I think a very reasonable timetable. And we have asked the court to look at our calendar and to consider as soon as possible, and get this process rolling.

VAN SUSTEREN: All right, we are going to take a break. Ron Klain, thank you for joining us today from Tallahassee.

When we come back, new Bush attorney Daryl Bristow and others. Stay with us.


CNN has filed a reconsideration petition with the United States Supreme Court in an attempt to provide live coverage of Friday's arguments in the Florida vote recount case.

The Supreme Court yesterday had declined the media request to allow cameras in the courtroom.



COSSACK: Good news for our Internet-savvy viewers. You can now watch BURDEN OF PROOF live on the World Wide Web. Just log-on to

We now provide a live video feed, Monday through Friday, at 12:30 p.m. Eastern time. And if you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show and even join our chat room.

VAN SUSTEREN: Today in Florida, Bush campaign observer James Baker introduced a new legal arsenal to combat Vice President Gore's contest. Joining us now from Tallahassee is one of the new additions to the Bush team, attorney Daryl Bristow.

Daryl, thank you for joining us.


VAN SUSTEREN: Daryl, I want to ask about the approximate 9,000 or 10,000 votes in Miami-Dade. The Gore campaign claims, and you can correct me if I'm wrong or they are wrong, that the machines down there never recorded them as a vote, either one way or another, they were rejected by the machine, so in essence have never had a count, and they were never manual hand counted. Is that true, number one?

And number two, does the Bush team object in the contest to looking at these 9,000 votes to see whether or not there was a vote?

BRISTOW: Let me try to take that from the top. These votes that the Gore campaign lawyers characterize as uncounted votes are also referred to as non-votes or undervotes. They are votes that a machine did not count because the punch card was not punched. There are 9,000 of those yet out there to be looked at, if a court looks at them, in Dade County; there are somewhere between 100,000-200,000 of those non- votes or undervotes in the state of Florida. I think those non-votes or undervotes in Dade County represent about 1.6 percent of the total vote.

You have that same phenomenon in states all across the nation, where people chose not to vote for a candidate. I think the number is as high 3 and 4 and 5 percent in other states.

So we are not talking about an unusual phenomenon. We are talking about cards that were not punched under the system that was chosen for this election in Dade County and elsewhere.

COSSACK: Daryl, with the difference being some 500 votes, is it your position, or the Bush's legal team position, or Governor Bush's position, that all of those votes that you just mentioned represent people who chose not to vote for president and that, therefore, those cards should not be examined, in light of the fact there's only a 500- vote difference?

BRISTOW: Well, let's talk about, first, what you are doing here. Under Florida law, and I think, as a matter of common fairness, when we talk about whether there was or was not a vote, that means that you are going to take a look at this punch card and decide what the intention of a voter was, looking at a mark or a depression, an indentation. And there are no standards whatsoever that have been laid down by anybody for somebody to speculate about the intent of someone who did not complete the voting process in the machine.

The electoral officials have certified a vote to the state of Florida, and that is the vote that should count. Courts should not intervene in that process unless there is some very substantial noncompliance with some mandatory statutory duty.

VAN SUSTEREN: Let's get some help from our constitutional law professor here.

Mark, help bail us out. What does the Constitution require, in terms of these ballots? Are these voters disenfranchised or it tough luck, you should have followed through and figured it out?

MARK TUSHNET, CONSTITUTIONAL LAW PROFESSOR: There's basically no federal constitutional entitlement to have a vote that goes through a machine actually counted; that's an issue of state law. You have to see whether the person complied with whatever the requirements of state law are. That's what is at issue in the Tallahassee hearing.

So you can say a person who intended to vote in a certain way was disenfranchised by the machine's failure, but you can also say that these sorts of failures occur sort of randomly, and there's no big deal about it.

VAN SUSTEREN: Is it the to say that the Constitution -- maybe I'm blunt, or maybe I am making it way too simplistic -- but the Constitution says you have to have an opportunity to vote if you don't know how to accomplish it, we don't have to count it, is that what you are saying?

TUSHNET: No, I think the Constitution says that people have a right to vote, and that right can't be deprived on any sort of arbitrary basis. But a machine that is old and wears down is not really an arbitrary basis for depriving the people of the right to vote.

COSSACK: Daryl, we understand that the Bush team has now filed a motion to object or in -- object in some way to the proposed schedule that the Gore team has filed under the contest. Gore team obviously is looking to have this thing done as quickly as possible, recognizing the deadline, and the Bush team has objected to that. Is that an attempt to perhaps slow down the proceedings at all?

BRISTOW: Well, an objection has been filed, but that objection has been filed to a calendar that was filed, I think, by the Gore campaign lawyers this morning.

Yesterday, we had a hearing in open court, with all parties assembled. The court heard from everyone, including our side of the table, where we were proposing a very speedy effort to get this thing up to bat. And the court laid down schedules about what we were going to do, and how we were going to proceed.

This new calendar would purport to trump what the court has already ordered that we do. We have objected to that. Members of my team, I think, are preparing a schedule of our own, if in fact the court decides that it wants to have some further hearing on the preliminary dates.

VAN SUSTEREN: Does your schedule that you are proposing, does that end before December 12th?


COSSACK: Does it have...

BRISTOW: Puts us in trial...

COSSACK: I'm sorry, go ahead, Daryl.

BRISTOW: Puts us into a hearing next week, it gives us time to file the necessary preliminary motions and have them heard. It gives us an opportunity to have some minimal discovery so that we can see just exactly what kind of expert evidence the other side may be offering, and we will be able to decide and offer to the court evidence on whether it should be accepted or not. We've got to identify our own experts, and we will have to respond. So we are moving in an extremely rapid pace here on our own side to try to get things done.

COSSACK: All right, Daryl Bristow, thank you for joining us.

Up next, a Leon County Court hears the case of 15,000 overseas ballots when BURDEN OF PROOF continues.


Q: Forty protesters, who were arrested during the Republican National Convention for causing a traffic blockade, were acquitted yesterday.

What were they charged with?

A: The protesters had been charged with conspiracy, obstructing a highway, and obstruction of justice.



COSSACK: A Democratic attorney representing some voters in Seminole County is fighting to get 15,000 absentee ballots thrown out. Gerald Richman says an elections official permitted GOP Party members to fill out missing ballots -- missing information on the ballots. He joins us today from Tallahassee.

And later, joining us on the phone, is Terry Young, attorney for the Seminole County Canvassing Board.

Well, first, I want to get to Mr. Richman. Tell me what your lawsuit is all about and what you are doing?

GERALD RICHMAN, ATTY. IN SEMINOLE CO. CASE: Very simple, it is an anti-voter fraud statute that was passed in 1998. It says to get absentee ballot, you must fill out an absentee ballot request form, that it can only be filled out by the elector, that is the voter, the voter's immediate family or guardian. No one else can do it, no one else can change it, no one else can alter it.

COSSACK: Who are you claiming did it?

RICHMAN: There is no question about it, the Republican Party did it. The Republican Party had no right to do it.

The absentee ballot request forms that didn't have the right information had been rejected by the Republican supervisor of elections, as it should have been. And then, the Republican Party came into her office for a period of nine to 10 days, with one of their representatives, and they were hand-fed the ballot request forms, and then they altered them by adding information to those cards, and then it was the Republican Party that submitted them in direct violation of Florida law, and that is felony under Florida law.

VAN SUSTEREN: All right, well, let's go to Terry Young, who is on the canvassing board, a lawyer for the canvassing board, and he joins us by telephone.

Terry, what is your response to this lawsuit?

TERRY YOUNG, ATTORNEY, SEMINOLE CO. CANVASSING BOARD: Our response is that there is no illegality, there was no fraud, there was no breaking of the law. Sandra Goard, who is the supervisor of elections of Seminole County, merely facilitated and accommodated voter intent. All she did was make sure that ballot requests of registered voters in Seminole County were processed, and that they received their absentee ballot so that they could vote their conscience.

VAN SUSTEREN: Let me ask you one quick question: Did she facilitate both Republican and Democratic applications?

YOUNG: There was no need to facilitate the Democrat application because the Democratic form that they had prepared had the voter identification number printed on the form. The Republican form, for some reason, as I understand it, didn't have the voter identification number on the form. All the Republican representative did is add the number after the fact.

COSSACK: Terry, let me ask you the specific question, Gerald Richman said that, in fact, there was a member of this board who facilitated Republican ballots by filling in information that should have been filled in by the voter, and wasn't, and that Republicans came in and filled in that information and then made those votes proper. Did that happen or didn't it happen?

YOUNG: The information is not information that is supposed to be filled in by the voter. The voter is the one that must request the absentee ballot, and they did that. They did that on these forms. They signed them, they added the last four digits of their Social Security number. They did the same thing on the Democratic form.

The Democrats placed the voter identification number on their form themselves before they mailed it to the voter.

VAN SUSTEREN: All right, Mark, let me ask you about the Constitution again. Does the Constitution, when you look at this, sort of these voting issues, does it require sort of strict compliance with all these rules about whether you fill out forms one way or another, postmarks, or is there any leeway? TUSHNET: The best thing to say about this is that there probably is a general principle that underlies our voting laws, which is that the people rule. And so you should do, in interpreting these statutes, which do try to regulate the system, you should interpret them in ways that make it easier to ensure that the choice of the people becomes the representative of the people.

COSSACK: We have just a few seconds left. You've heard the explanation, is that right or wrong?

RICHMAN: Absolutely wrong. In this case, the Republican Party, the supervisor of elections, did this only for specific Republican -- allowed it to occur for only specific Republican voters. Other people, who were independents, who had errors, didn't have information on their forms, were not given that opportunity. They were disenfranchised.

And what you have is, you've got ballots that resulted from an illegal absent ballot request form. The law is very clear.

VAN SUSTEREN: What we have got is a factual dispute. Who knows who is right, but that's all the time we have for today. Thanks to our guests, and thank you for watching.

COSSACK: We will see you tomorrow on another edition of BURDEN OF PROOF. Bye-Bye.



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