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Burden of Proof

The War Over the Florida Recount Continues

Aired November 29, 2000 - 12:30 p.m. ET


GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: The war over the Florida recount continues. Battles are being fought on three fronts: the U.S. Supreme Court, the Florida Legislature, and the circuit court; and the clock ticks.


GEORGE TERWILLIGER, BUSH CAMPAIGN ATTORNEY: The clock has run out. What the Gore team is trying to do is play overtime, if you want to use the clock analogy. The fact of the matter is that all of the votes that they keep asking to have counted have been counted.

KENDALL COFFEY, DEMOCRATIC PARTY ATTORNEY: The real question is things are moving, are they moving fast enough? And we're obviously very, very seriously concerned about that. And our approach has always been to do everything we can to make this move as fast as possible. Republicans, on the other side, have done everything they can to slow it down.


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

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF.

Last night, Leon County Circuit Court Judge N. Saunders Sauls held a hearing on a Gore request for an expedited schedule to contest the election. He denied that request, but ordered a hearing for Saturday.

ROGER COSSACK, CO-HOST: Judge Sauls also ordered 10,000 contested ballots be delivered from Miami-Dade County, as well as 3,300 ballots from Palm Beach County.

This morning, Circuit Court Judge Jorge LaBarga agreed, and ordered those 3,300 ballots to Tallahassee. I don't know where the 300 went between 3,600 and 3,300, but apparently there is only 3,300.


VICE PRES. AL GORE (D), PRESIDENTIAL CANDIDATE: Silencing the voice of a voter, silences the American spirit in a very real way. No matter how close an election is, the outcome must be decided by the people.

And you know what, when it's close, it means that the passions are high, it means that the feelings are intense. And in a close election, it is even more important than at any other time for the outcome to be determined by the people.


VAN SUSTEREN: Joining us today from Tallahassee is Gore campaign attorney Jeff Robinson. And here in Washington, Christa Brinkley (ph), former Bush White House counsel C. Boyden Gray, and Lowell Harrison (ph).

COSSACK: And in the back, Amy Farrar (ph) and Mike Wanyo (ph).

Jeff, let's go right to you. The contest goes on. Yesterday you asked to have an expedited hearing schedule. The court said no, but Saturday there's a hearing. Are you satisfied?

JEFF ROBINSON, GORE CAMPAIGN ATTORNEY: We are a little disappointed. We think the court needs to start counting right away. We are gratified that the court has ordered that the ballots come up, and further gratified that the court in Palm Beach has decided to send those ballots up here. But we want to get things counted more quickly than the court has so far ordered.

VAN SUSTEREN: You know, I heard yesterday, Jeff, that it seemed like David Boies was hinting, suggesting, threatening, or whatever, an appeal of the judge's decision not to move as quickly as the Gore people want. Any chance there is going to be an expedited appeal to force the judge's hand?

ROBINSON: Well, I think that David Boies was simply suggesting that that's something that would be possible. I'm not sure he was attempting to threaten the court. In fact, I'm sure that he wasn't.

But there are a variety of options, and that's something that is currently under consideration.

VAN SUSTEREN: But is it going to happen? I mean, come on, you guys know whether you are going to appeal this or not, I mean, the clock is running, you have got Saturday, there is this hearing. Certainly it has been decide weathered you think you have to rush to the Florida Supreme Court and move it up to Friday or even today.

ROBINSON: There are variety of things, and that's one of the things that we are considering.

COSSACK: Boyden, one of the criticisms maybe, at least from the Democrats and Republican sides, hey, you guys are dragging your feet, you want to run out the clock on us without a play being called. We want an expedited hearing, you should want an expedited hearing. You should what this thing over as quickly as we do. What is your answer?

C. BOYDEN GRAY, FORMER BUSH WHITE HOUSE COUNSEL: I don't think the Republicans want to run out the clock. But I do think that they may want to have a fair accounting, and it is, it seems to me extremely bizarre to count only a pre-selected 14,000 dimpled ballots, and not all the rest in Florida that may have been also missed by the machine.

I don't know why the Democrats don't want...

COSSACK: Doesn't that open -- I understand your argument, and I'm not saying it is not a good one, but doesn't that open you up to the notion of saying: Look, the reason you want all these ballots recounted now is because you know we have to have this thing over with by December 12th, and you know that every day that goes by is really important. And so now suddenly saying all ballots should be counted is a way of saying we are going to drag our feet and hope that the clock runs out?

GRAY: Well, I'm not speaking for the Bush campaign on this, but the Republican voters throughout the rest of the state have got a right to be very angry, if this handful get counted, fourth time or a fifth time, and the rest of similarly situated voters, don't get the same treatment. I think I would be very angry if I were a Republican voter, say, in the Panhandle, where a lot of voters were chased away by the networks even before they got into the polling booth.

VAN SUSTEREN: You know, though, Boyden, I will tell you where my problem with this -- however the judge rules, the judge rules -- but to suggest that we have to wait until Saturday to have this hearing. I mean, look, the lawyers are ready on both side, You can argue both sides in your sleep. These are not green lawyers. That hearing could have occurred today so we could have moved it ahead a few days. However the judge rules, the judge rules, but putting it off on Saturday does creates more time pressures.

GRAY: Well, I think there are some difficult issues that need to be resolved. But If I were the judge, I would want a little time to figure out where I am. I mean, he got this case just three or four, you know, news cycles ago. And if I were he, I would want to read up on what the issues are before I start making rulings that have such great impact.

COSSACK: Jeff, how important is it that the hearing is now Saturday instead of today, as Greta suggests the court could have been ready today. You know, every day is a year now to you guys, how important is it?

ROBINSON: It's very important. Every day matters, and we believe that we could have started earlier, and that the earlier we start, the earlier we finish, the more time there is to proceed in an orderly fashion.

VAN SUSTEREN: Jeff, how long is the hearing expected to be on Saturday?

ROBINSON: I think, not known yet. The judge indicated that he would be there as long as was necessary.

From our view, most of the issues to be resolved are legal issues, and we think that it is so clear that what the judge needs to do is start the count, that once he hears that the amount of evidence actually to be taken will be very small.

VAN SUSTEREN: Do you expect it to be almost like an appellate argument, where both sides will have a half an hour, or an hour, and then the judge will go decide; or is this going to be a long hearing, all day long, with evidence and witnesses?

ROBINSON: I think it is going to be a little bit of both. There are legal issues which will be put forward. Those legal issues will have to be resolved. Depending upon the resolution of those legal issues, there will more or less evidence taken. But, as you know, some of that you won't know until you are into the courtroom.

COSSACK: Jeff, we have heard Boyden say today that -- and I am sure one of the main arguments is going to be, in a sense, the dilution argument -- you know, look, if you are going to only count 13,000-14,000 ballots, what about all the other people who don't get their ballots recounted? How do you answer that?

ROBINSON: Well, I think Vice President Gore, weeks ago, said: Let's count all the ballots. He said that not once, not twice, but three times. Each time Governor Bush declined.

When the Florida Supreme Court issued its ruling. It also said: If you want to count all the ballots, let's do so. At that time, Governor Bush also declined.

The argument now that somehow there's a dilution when Governor Bush declined the opportunity to have the ballots that he wanted counted counted is just part of running out of the clock.

COSSACK: All right, let's take a break. Our thanks to Jeff Robinson.

Up next, a dispute over 15,000 absentee ballots. We'll have the latest on this Seminole County case when BURDEN OF PROOF returns. Stay with us.


The Supreme Court of the United States announced yesterday that it will provide an audio tape of oral arguments in the Florida election case.

The court said that it would make the tape available "as soon as possible" after the conclusion of oral arguments. Court officials say this marks the first time in its history the court will allow a same- day broadcast of the arguments.



COSSACK: A discovery hearing will be held in a little more than an hour on a case involving 15,000 absentee ballots. A Democratic attorney filed the suit on behalf of one voter, claiming election officials permitted Republican workers to add information on incomplete ballot applications.

Now joining us from West Palm Beach is plaintiffs' attorney Gerald Richman. And on the phone, Terry Young, attorney for the Seminole County Canvassing Board.

Well, Jerry, you are the attorney that's bringing the lawsuit. What is the deposition going to be about?

GERALD RICHMAN, ATTORNEY FOR SEMINOLE COUNTY VOTER: It is not a deposition. Today we have a hearing on a motion to intervene on behalf of five people who are represented essentially by Jerry Falwell's lawyers, and that will be set at 2:00.

COSSACK: What is that..

RICHMAN: The depositions actually...

COSSACK: I am sorry, go ahead.

RICHMAN: That hearing will be in Tallahassee. I will be participating by phone. And what is happening is we start full-scale discovery by depositions tomorrow morning at 9:00.

VAN SUSTEREN: Jerry, explain the basic to me, I'm a little confused. The allegation is that there was, quote, "assistance on ballot applications, but not in voting"; is that correct?

RICHMAN: Absolutely.


RICHMAN: You cannot go ahead and get a ballot, you can't legally vote unless you've gotten your absentee ballot through a legal procedure. And these people got their absentee ballots illegally.

VAN SUSTEREN: OK, good, now, tell me, how old is this law. I understand it is a relatively new law. And what prompted the legislature to pass it, do you know?

RICHMAN: Sure. There was a major fraud that occurred with regard to voting in the city of Miami between the mayor, Mayor Carollo, and the former Mayor Suarez, and that resulted in massive fraud, all of the absentee ballots were thrown out, which is exactly the relief that we are asking for here.

And as a result of that, in 1997, the legislature in 1998, a Republican-controlled legislature, went ahead and passed what is known as the anti-fraud legislation that was to help prevent fraud from occurring. And they were very, very specific, in terms what they required before persons could get absentee ballots, the specific information that had to go in there, and without which the request for an absentee ballot is void, you don't have a right to get one unless you comply with the law. And Secretary Harris specifically gave a directive to all the election supervisors telling them what they had to have before they could accept it. And, in this case, the supervisor of elections in Seminole County properly rejected every one of those improper absentee ballots that didn't contain the right information, and that should have been the end of it.

The problem there is that then Republican supervisor of elections went ahead and worked with Republican Party, only the Republican Party operative, to go ahead and fill in the information, and actually fed them by hand, each one of the absentee ballot request forms that had been rejected.

I mean, it is as clear cut a violation of the anti-fraud, anti- voter fraud statute as you can possibly imagine, and it has all been basically admitted.

COSSACK: All right, joining us now is Terry Young, by phone, from his client's office.

Terry, you've heard the allegations, the allegation is that your client, or your clients, filled in information that was either inadvertently or on purpose left off the application for the ballot, and but for the filling in, these ballots wouldn't have been issued, and the votes wouldn't have been cast. Do you admit or deny that?

TERRY YOUNG, ATTORNEY, SEMINOLE CO. CANVASSING BOARD: We deny that. There are significant issues of fact here, which are not admitted. The one fact that, Roger, you have wrong is the fact that the office of supervisor of elections didn't fill in any information. The information that was filled in at the office supervisors of election was merely the voter identification number that was inadvertently omitted by the Republican Party that printed these forms on only approximately 2,000 request forms, out of 15,000 absentee ballots that were actually voted in this case.

This information is the same information that the Democrats pre- printed on their forms. There is no...

COSSACK: Terry, why should anybody have filled in any number for anyone? I mean, isn't that what the gist of all of this is, whether it be...

VAN SUSTEREN: I think it was the supervisor of election called someone -- Terry, correct me -- did the supervisor of election tip somebody off that there was a defect in the application?

YOUNG: Actually, that's not what happened. What actually happened was a radio show talk host called the supervisor of elections to ask her some questions, and she brought it to his attention that she had concerned that voters who had innocently returned their forms, may not receive their ballot.

But you raise a very good question, Roger, because, and that is whether -- why fill out the information at all. In Florida, most of the supervisors of election either filled the information out themselves or didn't even require the voter identification number at all.

Orange County, where I live, in Orlando, it voted Democratic, Gore carried the county. The supervisor of elections is a Democrat. In that county, that particular supervisor of election waived the requirement of any voter identification.

VAN SUSTEREN: Let's ask Jerry about that. Jerry, what about that?

RICHMAN: I use the cardinal expression: Two wrongs don't make a right. If it was done wrong, and I have no knowledge of what happened in Orange County, but if something was done wrong somewhere else, that does not validate what happened in Seminole County, which is a violation of the law and a third-degree felony.

Keep in mind, what happened here, though, is that it wasn't even the supervisor of elections filling it in. The supervisor of elections opened up her office for nine to 10 days for a Republican operative to come into their office, into a back room, a non-public area, totally unsupervised, to fill in this information, and who knows what else they may have done? They weren't checked in, and what they were taking in and out of the office, whether they had briefcases, nobody watched what they were doing.

VAN SUSTEREN: Let me just step in. We've got to take a break. Let me step in, at least one reason why we have courts to try to sort out what to do about this.

COSSACK: This one won't be easy.

VAN SUSTEREN: Yes. Up next, the Florida Legislature considers entering the fray. Don't go away.


THOMAS JULIN, FIRST AMENDMENT ATTORNEY: If you are going to do something that has an impact on those voters' rights, which are protected by the First Amendment, then you need to, I think, examine this from the perspective of: What is the significant governmental interest here in stepping in?



Q: A Leon County judge has asked that ballots from Palm Beach and Miami-Dade counties be sent to the courthouse by noon Friday. How will they be getting there?

A: In police cars. Court officials also agreed to send voting machines and other pieces of evidence.


(BEGIN VIDEO CLIP) UNIDENTIFIED FEMALE: I thought it was the most unusual election I have ever been because so many people didn't get to vote, and what ones did vote were not sure they voted for the right person.


VAN SUSTEREN: The Florida Legislature could determine who receives the state's 25 electoral votes. At the state capital, a committee is hearing arguments on whether the legislative branch should step in and take over the electoral selection process.

Joining us now from Tallahassee, Florida, House Minority Leader Lois Frankel, and House Majority Leader Mike Fasano.

Mike, first to you. Is it really possible that the Florida Legislature will select those 25 votes for the voters of Florida?

MIKE FASANO (R), FLORIDA STATE HOUSE MAJORITY LEADER: Greta, it is very possible. In fact, as you know, there's a joint committee of both the House and the Senate that are convened right now to make a recommendation to the speaker of the house and president of the Senate, and whether we should have a special selection -- special session for the purpose of selecting those 25 electors.

VAN SUSTEREN: I am curious, are you having any sort of backlash at all from the people in the state of Florida because they usually think they are the ones who make this selection, and now the legislature might. Are they unhappy about that?

FASANO: Well, the e-mails and the phone calls and the letters that I'm receiving in faxes from people in my district and throughout the state are one that, to protect and preserve their voice, their vote. And many of them, as I have concerns, too, that their voice and their vote may not count on December 18th, if we don't have 25 electors.

If you will remember, Greta, that these are elected members of the Florida House and Senate, who are elected by those constituents.

COSSACK: Lois Frankel, is there any reason to belief that, even though the process seems to be going on right now, that come December 12th, Florida will not have certified 25 electoral votes. I mean, as it is right now, they do have 25 electoral votes that have been certified. Why should your body be involved at all?

LOIS FRANKEL (D), FLORIDA STATE HOUSE MINORITY LEADER: Well, I will tell you, I think, with all due respect to Mr. Fasano, I think it would be an outrageous power grab by this Florida Legislature to circumvent the vote of Floridians.

Right now, Mr. Bush has been certified as Florida's winner of the electoral votes. Only if he is disqualified and then Al Gore's name is certify, would we have any change in that status. We will never be without our electors.

VAN SUSTEREN: Boyden, you have got a lot of political savvy, and you are you a lawyer. If you were a lawyer adviser to this legislature, what is your legal advice at the moment?

GRAY: Well, there may be a role here for an insurance policy, maybe not now, because the 12th is not here yet, but there's nothing wrong, it seems to me, to provide an insurance policy for after the 12th, in the event that there's a dispute that hasn't been resolved in the courts, to say they would reconfirm, if you will, Mrs. Harris' certification of last Sunday.

COSSACK: Mike Fasano, Boyden suggests that perhaps your action is an insurance policy. And with all due respect to my friend Boyden, isn't that the kind of thing that gets the Florida Legislature perhaps a little criticism that you are ensuring that George Bush wins, as opposed to stating right now that you have electorate votes that George Bush wins, and letting the court take their procedure.

Doesn't it look like what you are saying is: We want to make sure that the court doesn't allow Gore to win?

FASANO: Well, Roger, an election results were final on Sunday night, certified, 25 electors, and all the legislature wants to be sure is that we have 25 electors on December 18th. We've been in the court process, or this state, the Gore team, the Bush team, have been through the courts now for three, almost three and a half weeks, with no finality.

What happens if that continues? What happens somewhere along the road the Supreme Court, the State Supreme Court, or some circuit judge puts a halt to all of those election results, and we go past that December 12th date, and we don't have 25 electors. You know that six million people who voted in the election on November 7th won't have a voice at all.

VAN SUSTEREN: Well, let me give you some news which may add another legal twist to this. The plot thickens. Jonathan Karl of CNN has learned from the Gore campaign the Gore campaign will appeal the schedule by Judge Sauls out of Tallahassee, having to do with the contest, the fact that the hearing is not until Saturday.

Plus, they are going to the Florida Supreme Court with a second issue. They are filing an original petition asking that the counting of those ballots start now.

COSSACK: Talk about legal twists and turns, talk about logs on the fire. But that's all the time we have for today. Thanks to our guests and thank you for watching.

Today on "TALKBACK LIVE": the presidential waiting game. Are Americans running out of patience? Send your e-mail directly to Bobbie Battista and tune-in at 3:00 p.m. Eastern time.

VAN SUSTEREN: And join me tonight at 8:30 p.m. Eastern time, as part of CNN's special primetime election coverage. My guests will include former solicitor general and independent counsel Ken Starr. We will get his thoughts on the court battle being waged in Florida and here in the United States Supreme Court. And 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.



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