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Florida 2000
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Text: Gore Attorney David Boies
Thursday, November 30, 2000

Following is the transcript of Gore attorney David Boies' briefing.

BOIES: Good morning. This morning we filed a petition for review in the Florida Supreme Court seeking an order to start the counting of the contested ballots. I think you probably all have a copy of that, and I would be prepared to answer any questions about it that you might have.

In addition, I want to go through some of the statistics that relate to this election, because, there have been a number of comments from Governor Bush's team over the last 36 hours about what has happened, or what has not happened, in this election. And there has been a suggestion that maybe there really aren't any nonvotes out there. Maybe everybody who intended to vote for president really had his or her vote counted.

We think that that is clearly incorrect. We think that is clearly contrary to the evidence. But in addition, we think it is clearly contrary to every statistical analysis that has been done.

And I want to go through with you briefly just a few of the charts that we have prepared, that are in the record. Some of you may already have copies of them, but I would like to run through just four or five of them with you, and then give you an opportunity to ask questions about those as well.

One of those exhibits--you can't hear me if I--how's this, can you hear me now? One of these charts, which is just numbered--and lawyers are always numbering things so they can keep track of them--as Plaintiff's Exhibit One, shows the percentage of ballots with no recorded vote for president. And it shows three different situations.

One, it shows the average of all counties in Florida that use optical ballots. Now optical ballots, because you color in or shade in with a number two pencil a little hole, don't have the problems of whether you've indented a chad, or dislodged a chad, or partially dislodged a chad. You simply circle the little marking place. And those counties have .4 percent, that is, four-tenths of 1 percent of those ballots were not counted for president.

Now if you compare that with all punch-card counties, that is all counties that used punched-card ballots, the number is 350 percent higher, 3 and one-half times higher. Now, these punch-card ballots are scattered around the state. These optical ballot counties are scattered around the state. As statistical analyses show, there simply is no plausible justification, no plausible explanation, for why voters in counties that just happen to use punch-card ballots, would be 350 percent more likely to decide not to vote for president.

What's happening is that because of the limitations of the machine reading of punch card ballots, because the machine doesn't pick up the indentations that the Delahunt case and other cases have held ought to be recorded as votes, you have a much higher statistical number of uncounted votes.

These are real votes. They just haven't been counted because of the limitations of the punch card ballot system. And the only way to count that is the way that Florida law prescribes, which is to use a manual recount.

Now, just for comparison purposes, we also show Palm Beach County, and you can see in Palm Beach County the number of ballots that were recorded as nonvotes for the presidential election were even higher than the average for punch card counties together. So that you have something that's more than five times--more than 500 percent higher--than the average, in the optical ballot counties.

Let me show you another chart. This takes Broward County. Now, before the manual recount, you had 1.1 percent of the ballots not counted for president. After the manual recount, you brought that down to .8 percent. Now, that's still twice as high as the average for optical ballot counties. That is what happened in Broward is they identified some but clearly not all of those ballots that people intended to vote for president, so that the manual recount in Broward made substantial progress. But even after the manual recount in Broward, you still have twice as many ballots uncounted for anybody for president than the average of the optical ballot counties.

And why do we keep coming back to the optical ballot counties? Because those are counties in which you do not have the machine problems that interfere with ballots being counted.

Those can be used as a baseline that indicates how many people may simply not be voting for president.

The other side frequently says, ``Well some people go into the polls, and they don't intend to vote for president.'' Yes, that's true, and that's what you're seeing in the optical ballot counties.

However, what you're seeing here is a number of people who intended to vote for president that simply have not had their vote counted. The number has been reduced significantly by the manual recount, but it hasn't been eliminated entirely.

Now, let's take a look at Palm Beach for a second. In Palm Beach, they started off with 2.2 percent uncounted ballots. After the manual recount, that is after the entire manual recount, that had been reduced from 2.2 percent to 2.1 percent, a very slight reduction.

And you still ended up with more than 2 1/2 times, and certainly more than two times, the number of uncounted ballots in Palm Beach that than you had in Broward, and about five times more uncounted ballots in Palm Beach after the recount than what you had in the average of the optical ballot counties, the counties where you don't have these machine problems in recording votes.

So what you see here is that the manual recount in Palm Beach County made a little bit of a difference, but that there were a very large number of ballots that simply weren't caught in that manual recount for whatever reason. And you can see that in a variety of ways. You can see that in comparing the number of uncounted ballots at the end of the manual recount with the average from the optical ballot counties, or even comparing it to the average, what was left in Broward County.

So either way, you can see that there are a large number of ballots. And this is one of the reasons why we've contested 3,300 ballots in Palm Beach County. And we've asked the court to look at those 3,300 ballots and to try to get this number down closer to the Broward County numbers, so that you can have more of the votes that were actually cast in Palm Beach County counted.

Again, in Miami-Dade, 1.6 percent of the ballots had no vote counted for president. Obviously, the Dade recount was interrupted, and so we don't have a before-and-after comparison. But if you compare the number and percentage of votes in Miami-Dade that were not counted with what the Broward results were after the recount or what the optical ballot counties are, you can see that there are a large number of votes that simply have not been counted in Miami-Dade.

And remember, these are votes that have never even been counted once. These are votes that the machine could not count, and because the manual recount, the manual recount that Florida law provides for, in which the courts have held it was mandatory, required, for Miami-Dade to do, because that manual recount was interrupted prematurely, and stopped prematurely, 9,000 ballots have simply never been counted.

And there are 9,000 ballots here that are recorded as no vote for president that clearly have a number of votes that people actually cast.

The last chart: This is a chart that shows what percentage of the so-called undervotes, or nonvotes, people are able to identify as a clear vote for president when they look at the ballots manually. You start with a universe of the ballots that did not record a vote for president, the so-called nonvotes or undervotes, and you look at those manually. And this shows the percentage of those votes that the canvassing boards were able to clearly determine the voter's intent, and clearly determine that the voter intended to vote for a candidate for president, and then they went on to count that vote.

Now, you see in Broward County, 25 percent of the undervotes or nonvotes that were examined resulted in a vote being counted for president. The Broward County Canvassing Board was able to identify a vote for president in essentially 1 out of every 4 of the ballots that the canvassing board looked at that had started out as an undervote or nonvote.

The same thing was about true in Miami-Dade; that is, although Miami-Dade only did about 20 percent of their precincts, the precincts that Miami-Dade Canvassing Board did look at, in 24 percent of the cases, they were able to identify a vote for president. So, again, about 1 out of every 4 ballots that the Miami-Dade Canvassing Board looked at, that board was able to identify a clear intent of the voter to vote for a candidate for presidency of the United States, a vote that would have been lost and not counted in the absence of that manual recount.

Now by contrast, in Palm Beach County, the canvassing board in Palm Beach County only identified approximately 8 percent, that is 92 percent of the ballots, the undervote, or nonvote ballots that the Palm Beach County canvassing board looked at, only about 8 percent were identified as votes, and 92 percent remained nonvotes.

Now we think that it's clear that the Palm Beach County canvassing board was using a different standard. We think that's clear by comparing it either with Broward or with Miami-Dade. Here are two entirely different canvassing boards, made up of entirely different people, looking at ballots, and each of them are coming up with about the same percentage of votes that they're able to identify, and you see a radically different number in Palm Beach. And we think that reflects the fact that in Broward and Miami-Dade, they were using the standard that the court has identified, and Palm Beach didn't.

That again is one of the reasons why the 3,300 contested ballots in Palm Beach we think are very important to be reviewed. You can see that there are a large number of votes that, if the same standard were used in Palm Beach as was used in Broward and Miami-Dade, would have been counted for president.

The last point I want to make about this is that it shows, for example in Miami-Dade, that one out of every four of the under-counted votes, the nonvotes, the board itself, not any candidate, not any lawyer, but the board itself was able to identify as a clear vote for president.

Now remember there were 9,000 nonvotes that the board never got to. That means that there are 9,000 votes that never went through this process.

And if those ballots, those uncounted ballots, have the same rate by which votes are identified, that is, if somebody was able to identify the same number of votes in those uncounted 9,000 ballots as they were able to identify both in Broward and Miami-Dade in the precincts that were counted, you have over 2,000 votes for the presidency of the United States that are there, that can be easily identified, and simply have not been counted.

That's one of the things that makes our application to the Supreme Court so urgent, because those votes are there. We know that they're there. The actions of the canvassing board have demonstrated that they're there. And what we're asking is that those votes be counted.

QUESTION: Bottom line, sir, if the court rules that those votes cannot be counted, is the legal fight over for Al Gore?

BOIES: Well, if the court were to rule that there can be no counting of votes, then the vote count that exists would be the vote count that exists.

There are obviously a number of other contests that have been brought by other parties, but our contest that relates to trying to get the votes counted, if the court were to rule we're not going to count the votes, that would solve that issues.

We certainly hope the court's not going to rule that the votes are not going to be counted.

(CROSSTALK)

QUESTION: ... sense this morning that you're arguing your case that may not make it to court, that you're arguing it in front of the public now.

BOIES: What we think is that the case is going to make it to court, and that's why we filed the petition with the Supreme Court that we did. That's why we're preparing for the argument on Saturday.

On the other hand, we've had a lot of questions about our response to these statistics, and, again, it is more efficient for me to do this with everybody here than to do with each of you individually.

QUESTION: You make an argument about counting the undervotes. In Duval County, there are 4,967 undervotes. The vice president has said, ``All the votes should be counted.'' Should those be counted, as well?

BOIES: I think all the votes should be counted. One of the things that we have done is we have focused on the particular counties that we've been able to contest. Where we've asked to have the votes counted, the manual recount, where they weren't counted, as in Miami-Dade, we've now brought a contest action, which focuses on the contested ballots.

One of the things that we are doing is we're getting close to the end, and we're trying to focus on those issues that we think can be resolved easily and quickly, because we're going to run out of time. And so we have focused on the basic issues that we've been focusing on from the beginning.

QUESTION: Mr. Boies, when do you want the...

(CROSSTALK)

QUESTION: ... follow up on that?

BOIES: Now.

QUESTION: Yes, but how is it going to happen now? You want people to climb into the back of a Ryder truck and start counting as folks are on the highway? You know, what are you asking the Supreme--what's your time table?

BOIES: We would like the votes to be counted as soon as they get here. We've asked to have the ballots brought up here. The ballots are on their way. We'd asked to have them brought up on Wednesday or Thursday. The County Canvassing Board said they could do that, but then Governor Bush's counsel said: Well, we want you to bring all million of the ballots, and so that's delayed it until tomorrow. When the ballots get here, we think those ballots ought to be counted. We'd like to see that count start absolutely as fast as possible.

QUESTION: Just to follow up on a question that was asked: Are you now saying that you agree that all the undervotes, which I think is something like 160,000 or 180,000 statewide, ought to be counted?

BOIES: No. What I'm saying is that we're now in the contest period. We're no longer in the protest period. In the protest period, when you're talking about a manual recount, we said several times that the right way to do it was to have the entire state recounted if anybody wanted. The Supreme Court of Florida offered that alternative to both candidates; neither candidate took them up on it.

We're now in the contest period. The contest period is a very limited period of time. We believe that in a contest period what ought to be counted are the ballots that have been contested. We filed a contest with respect to 3,300 ballots in Palm Beach, and either 9,000 or 10,000 ballots in Miami-Dade. Those are the ballots that need to be counted. We're having trouble getting any ballots counted. We don't want to slow down the count of those ballots with anything else.

QUESTION: The vice president said yesterday that he could foresee this fight going on until mid-December. Can you explain that timetable?

BOIES: Well, if you count December 12 as mid-December, which I do, I can see it, as I've said from the beginning, it going right up to December 12th. I've said from the beginning that I believe that this is going to be over with on December 12th.

QUESTION: Mr. Boies, do you see it going beyond, any wiggle room?

BOIES: I don't.

QUESTION: Mr. Boies, do you think that...

(CROSSTALK)

QUESTION: Mr. Boies, on that date, December 12th, do you still believe that is the drop-dead deadline? Or is there wiggle room to the 18th, before the Electoral College meets?

BOIES: Given what has happened in this case, I would never say that there is not wiggle room with respect to any particular fact or deadline. If somebody had asked me, and some of you did, whether I thought this case was going to be in the United States Supreme Court, not once, but twice, I would have predicted that it was not going to be.

So I can't tell you that there's no chance that something will happen. What I can tell you is what I've said from the beginning, that the Florida Supreme Court has said, and I believe the Florida Supreme Court is right about this, is this is going to come to an end on December 12th. They are making an effort to do that. They set up a schedule to do that. I believe it can be done within that time period, and I think that that's when it's going to end.

QUESTION: Mr. Boies, if the state legislature moves before December 12th to try to name their own slate of electors, do you think they would be in their legal right to do so? Or do you think you could overturn that in court?

BOIES: I don't want to speculate on what the Florida legislature will or will not do. I have said before that I hope the Florida legislature is not going to try to substitute its will for the will of the people of Florida. I think that the way elections are decided in Florida, under the Florida Constitution, is by direct election, by the people. And I would hope and I would expect that the Florida legislature, in thinking about these issues, is not going to try to tamper with such a fundamental right of the people, just to try to influence a particular election, no matter how important that election is.

(CROSSTALK)

QUESTION: By citing the Florida Constitution, are you suggesting that they would not--that they would be violating the Florida Constitution if they did this?

BOIES: I'm not getting into the legality of it. I think that the direction election of electors in Florida, that the electoral process in Florida has been, has always been, for over 100 years, election by the people. And I would hope and would expect the Florida legislature is not going to try to eliminate the will of the people and substitute its own will.

I can't speak for the Florida legislature. I don't want to get involved in that. If they act, we'll have to take a look at what they do. But I would hope that we would all step back and consider the fact that this is and ought to be a question of what did the people say when they voted. From the beginning, our position has been the people have cast their votes, and those votes ought to be counted. And when those votes are counted, that ought to determine this election.

(CROSSTALK)

QUESTION: Mr. Boies, what do you think of the Bush team's lawyers' attempt late yesterday to disqualify Judge Clark and knock her off the Seminole County case?

BOIES: I don't want to comment on the tactics of the other side. As you know, the Bush lawyers and the Bush team have made a variety of attacks on the courts. They've attacked the Florida Supreme Court; they've moved to disqualify judges down in Broward County. They now moved to disqualify a judge up here.

I think that every lawyer has a right to make motions. I may agree or disagree with that, but that's their choice, not our choice.

QUESTION: Just to getting back to the charts for a second, not to get caught up in the minutiae of it, but you said that after the manual recount in Palm Beach, you didn't get down to where you thought the average should be, for a variety of reasons. But didn't the court say that the canvassing boards could determine their own standards?

BOIES: No, I don't think the Court--if you're talking about the Florida Supreme Court--I don't think that--you're talking about the Florida Supreme Court?

QUESTION: They said that each county could determine its standards by what is a vote, did they not?

BOIES: No, I don't think that any court has said that. And, indeed, I think in Palm Beach County, Judge Labarga ruled exactly the opposite. Judge Labarga said that the Palm Beach County Canvassing Board could not set its own standard.

Remember, they set a per se standard that--I think it was a two-corner standard. And Judge Labarga said, ``No, you can't do that. That's inconsistent with Florida law.'' And Judge Labarga cited the Delahunt case, which, of course, is the case that held that if you've got an indentation on or near the chad, that has to be counted as a vote.

The Florida Supreme Court has repeatedly said that this is a judicial question. It's not a question for the canvassing boards to decide in their discretion. They count the votes initially. Then once the certified results have taken place, and you move into the election contest, the election contest is a judicial proceeding. And in that situation, the canvassing boards don't have any discretion at all.

STAFF: We've got time for a few more questions.

QUESTION: You've said in court, and Judge Sauls said, in effect if you can't start the counting by Saturday or Sunday, in effect, because of the calendar you lose. How grave is the situation for you timewise with this appeal to the Supreme Court? Is it your belief that if you can't start counting until Sunday, you lose?

BOIES: Well, I don't know about ``you lose.'' What we've said from the beginning is we're going to make every effort to have these votes counted.

However, I do think that we are getting close to the point where some of those votes will not be counted.

We're getting to the point where the count has to start if all of the votes are going to be counted in a fair and accurate way. Are we going to give up on Sunday or Monday? Of course not. We're going to try to get as many of those counted as we possibly can, any way we can. However, we are now faced with a situation that unless those votes start getting counted now, we risk very seriously not having all those votes counted.

QUESTION: Will you continue to cite the Illinois case as proof of the dimple standard, when The Chicago Tribune investigation said that it repudiated that and then one of the guys you got an affidavit from has since recanted (OFF-MIKE)

BOIES: Well, first of all, first The Chicago Sun Times and then The Chicago Tribune went back and looked at the Delahunt case and reported that the...

QUESTION: The Delahunt case is Massachusetts...

BOIES: The Illinois case, yes. That's actually what I was talking about. I was talking about the Pullen (ph) case. First The Chicago Sun Times and then The Chicago Tribune went back and looked at the facts of the Pullen (ph), case and both of them reported that that election had been decided by indented ballots.

Then we got an affidavit from somebody who was involved in it. Now, I don't know what somebody has reported about that being the case or not being the case. What I do know is what was reported contemporaneously, and I know what the affidavit says.

Now, in addition to that, I know what the case says, and the case talks about indented ballots. So whether or not there were or were not indented ballots, and I think the record is clear that there were indented ballots counted, the fact is that the law is that indented ballots are relevant, and that's the proposition for which the Florida Supreme Court cited that case.

Thank you very much.

QUESTION: Why did you guys wait so long to decide to appeal the case? I mean, if we're in such a big hurry, why did you guys wait so long to decide to take it to the Supreme Court?

(UNKNOWN): Well, I don't think we waited very long at all, David. We decided to do this yesterday. As you know, under Florida law, to take a direct appeal, you have to go through the district court of appeals. In Judge Sauls' courtroom yesterday, he declined to sign a written order, and now the defendants have raised procedural objections to that. So we decided to go ahead and file this morning, seeking to invoke the court's original jurisdiction under Article 5 of the Florida Constitution, which lets us come to the Supreme Court directly.

So it took the day yesterday to sort out the procedural posture of the case. We think we're before the Florida Supreme Court. Under either, it's appellate jurisdiction or it's original jurisdiction, and, obviously, we delivered those papers at the opening of business this morning.

Thank you all very much.


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