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Election 2000

CNN election analyst David Cardwell on the legal issues in Florida

November 16, 2000
12 p.m. EST

(CNN) -- Several cases have been filed in Florida and federal courts regarding hand counts and ballots. Many experts are reluctant to predict the outcome of the pending legal action because it is considered "uncharted waters." What is almost certain is that more litigation may be ahead, with the likelihood that the Florida Supreme Court will be the final arbiter of the issues.

David Cardwell served as head of the Florida Division of Elections in the 70s. In 1979, Cardwell worked for the House of Representatives as the staff director in charge of ethics and elections. Cardwell has represented Republicans and Democratic candidates and committees, as well as cities and counties. Cardwell is also the author of "Ethics and Elections: The Law in Florida." He has been in private practice since 1982. He is currently a partner with Holland and Knight.

Chat Moderator: Welcome to CNN.com Allpolitics Chat, David Cardwell. Thank you for joining us today.

David Cardwell: Hello, this is going to be a little different. I've been on TV since last week, and we are trying another medium.

Question from Bk: I would like to know if Mr. Cardwell believes the Florida Supreme Court has any reason, based on Florida Law, to overturn the secretary of state's decision.

David Cardwell: The Supreme Court could overturn her decision if it finds there was not a reasonable basis, for her decision and she acted arbitrarily. There is no real precedent, so it could go either way.

Question from Alexis: Mr. Cardwell, hello. Good morning. What is the consequence of Bush turning down the statewide vote, and will that affect the judges opinion in Atlanta on how they rule on the appeal? Also, will Gore have any appeal ability if the judges rule to stop the recounts?

David Cardwell: First, on the statewide recount: While mentioned in Vice President Gore's remarks last evening, there has not been any formal request filed seeking a statewide recount. There is a question if one can even be ordered administratively. Any statewide recount would have to be ordered by a court, which would likely have to be the Florida Supreme Court.

Question from Elkmaster: Does everyone agree that the Electoral College needs to go away?

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David Cardwell: If the Electoral College is abolished, the likely replacement will be a straight popular vote. One consequence of that in the event in an election as close as this one, is that instead of recounts in only one state, such as Florida, or perhaps a very few states, there could very well be a national recount. That could result in the situation you are now seeing in Florida, being repeated in 49 other states. Because even in a state that one candidate may have won by a substantial margin, if either candidate could pick up additional votes through a recount, it could affect the national outcome.

Question from TCS: What are the criteria that Harris used to deny the extensions?

David Cardwell: Secretary Harris issued an opinion through the Division of Elections on November 13, that concluded a manual recount county-wide can only be ordered by a county canvassing board, if there is an error in either the tabulation equipment, or the software for that equipment. The three counties that requested their hand count totals be accepted, did not assert any error in the equipment or software, but relied upon the closeness of the vote and potential voter confusion. The secretary stayed with the conclusion in her opinion, and found no basis for the manual recount.

Question from Jackp: Does the Constitution support Bush's attempt to appeal in a federal court over the Florida courts?

David Cardwell: The Bush campaign lawsuit was filed in federal district court, alleging that the Florida manual recount process violates the First and 14th Amendments to the U.S. Constitution. Their principle argument is that the use of just a few counties is not uniform and violates the equal protection clause of the 14th Amendment, because some votes will be treated differently than others. The district court rejected that argument, and they have taken the appeal to the 11th Circuit, which they were able to do, since they raised the question of Federal law. Should the 11th Circuit agree with the Bush campaign argument, it will be a precedent setting decision.

Question from Krs: David, what are the chances the courts will step in today and rule one way, or the other on the recounts and certification?

David Cardwell: It's becoming difficult to predict anything in this election, and it remains to be seen if anyone will rule today. It may be more likely that any court decisions will be tomorrow, or even more likely, Monday. There are court hearings today and tomorrow, but the judges may want to just receive evidence and argument, and then take the weekend to consider their decision.

Question from Bullet: What happened to double-punched ballots in Palm Beach County, if the voter realized their mistake and asked for a new one to cast? Was it shredded or put in the stack of rejected ballots?

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David Cardwell: If you spoil your ballot and request a new one, the spoiled one is sealed in an envelope, marked as a spoiled one, and a new ballot is issued to the voter. The spoiled ballot envelope is then retained in the records of the election. And the precinct report that indicates the number of ballots issued, number of ballots voted, etc. will show the number of spoiled ballots and number of reissued ballots, in that precinct.

Question from Bush2000: Hi, David, there have been reports of Carol Roberts allegedly manipulating the ballots by twisting and poking to try and force an Al Gore vote. How much of a factor will allegations like these be in determining whether or not to continue a hand count?

David Cardwell: I've heard those allegations, but I did not actually see anything that indicated that, so I can't comment on exactly what Commissioner Roberts may or may not have done. The election law restricts who can actually touch a ballot, and a member of the canvassing board is one who can touch a ballot. But it must be done in the open, and in the presence of the other canvassing board members.

Question from Jimb: David, what changes do you see coming as a result of this election?

David Cardwell: I'm sure the Florida legislature will be taking a long hard look at the election code, particularly those previously mundane provisions dealing with voting, and ascertaining the results of the election. Legislation in recent years is focused more on campaign finance, and now I think we'll see that shift, at least at the state level, to election administration. I am sure there will be proposals to have a uniform voting system in the state, and also possibly to ban punch card voting.

Chat Moderator: Do you have any final thoughts to share with us today?

David Cardwell: This has certainly been an interesting week since the election. No one could have predicted on Election Night what we have been through in Florida since then, and what we still have to do. Much of these proceedings have little or no judicial precedent, and we've relied on custom. Now we find that custom is not enough. I am sure there will be more twist and turns, that will rival the best roller coaster in any of our theme parks.

Chat Moderator: Thank you so much for joining us today, David Cardwell.

David Cardwell joined the chat via telephone from West Palm Beach, FL. CNN provided a typist for him. The above is an edited transcript of the chat, which took place on Thursday, November 16, 2000.



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Palm Beach County to resume recount
11/16/00


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