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Florida 2000
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Text: Fla. 11th Circuit Court Hearing on Gore Contest
Saturday, December 2, 2000

Following is the complete transcript of today's Florida 11th Circuit Court hearing of Vice President Gore's contest to the Florida presidential election. The hearing was in Tallahassee in Leon County.

Judge N. Sanders Sauls
David Boies, Gore campaign attorney
Barry Richard, Bush campaign attorney
Dexter Douglass, Gore campaign attorney
E.C. Deeno Kitchen, Gore campaign attorney
Phil Beck, Bush campaign attorney
Fred Bartlett, Bush campaign attoney
Murray Greenberg, Miami-Dade County canvassing commission
Joe Klock, attorney for Fla. Secretary of State and canvassing comission
Terry Madigan, attorney for invervener Matt Butle
Michael Mullin, attorney for Nassau County canvassing board and supervisor of elections
Andrew McMahan, attorney for Palm Beach County canvassing board

SAULS: All right. Good morning. Let's see, we want to call up at this time, this is the case of Albert Gore, Jr., et al., versus Katherine Harris, the Secretary of State of Florida, et al., case number 2000-2808.

At this time, I assume you've each entered your appearances with the court reporter.

Are you ready to proceed, Madam Clerk?

CLERK: Yes, sir.

SAULS: All right.

Madam Reporter?

REPORTER: Yes, sir.

SAULS: At this time, briefly, if we could, I will ask that you stand and enter a brief formal appearance and the party you represent.

You may proceed. Who represents the plaintiffs?

DOUGLASS: Your Honor, I'm Dexter Douglass.

BOIES: Your Honor, David Boies.

SAULS: All right.

KITCHEN: Your Honor, Deeno Kitchen.

RICHARD: Barry Richard, representing George W. Bush.

SAULS: All right.

BECK: Phillip (ph) Beck for George W. Bush.

BARTLIT: And Fred Bartlit for George W. Bush, Your Honor.

SAULS: All right, sir.

HERB TERRELL (ph), BUSH CAMPAIGN ATTORNEY: Herb Terrell (ph) for George W. Bush, Your Honor.

JERRY GIBSON (ph), COUNSEL FOR FLORIDA SECRETARY OF STATE: Jerry Gibson (ph) for the secretary of state.

KLOCK: Joe Klock for the secretary of state and the Canvassing Commission.

ED BOOTH (ph), COUNSEL FOR FLORIDA SECRETARY OF STATE AND CANVASSING COMMISSION: Ed Booth (ph), the secretary of state, the Canvassing Commission.

MADIGAN: Your Honor, Terry Madigan, intervener Matt Butler.

MULLIN: And Your Honor, Mike Mullin for the Nassau County Canvassing Board and the supervisor of elections.

SAULS: All right.

GREENBERG: Your Honor, Murray Greenberg, along with Jeff Ehrlich (ph) and Lee Crabchik (ph) on behalf of Miami-Dade County Canvassing Board.

SAULS: Welcome, Mr. Greenberg.

GREENBERG: Thank you, Your Honor.


MCMAHON: Good morning, Judge. Just Andrew McMahon for the Palm Beach County Canvassing Board.

SAULS: Mr. McMahon, all right, sir. Are you able to see over there, Mr. McMahon?

MCMAHON: I think I can see fine.

SAULS: All right. You're representing one of the named parties in this, and we need to move you somewhere where you can better participate.

MCMAHON: I think I'm fine, Judge.

SAULS: All right. All right.

JENNINGS (ph): Your Honor, Bill Jennings (ph) on behalf of the Carr (ph) intervention (ph) (inaudible) also William Vandercreek (ph) of counsel.

KLAYMAN: Your Honor, Larry Klayman on behalf of Judicial Watch and the public interest.

MEYERS: Your Honor, Frank Meyers on behalf of the Cruz (ph) Interveners.

SAULS: All right. I believe that's everybody.

All right. At this time, is there some suggestion as to the order? Have the parties had any further opportunity to suggest how we should proceed? I intend to proceed as we indicated yesterday, and that is to take up any motions that would bear on the trial. And that is the normal case in a civil trial--any civil case.

Did we have a motion that we need to take up? Or do we want to proceed to motions or go ahead and just make a brief general opening, and then as to each segment as I indicated as to the procedure that we might proceed and you can make further opening as to those specific areas, if you wish?

RICHARD: Your Honor, I think Mr. Boies agrees with me. The openings probably would overlap and be unnecessary, taking time. I'd suggest we have a single opening and a single closing. If Your Honor wants to hear evidence in segments, that will be fine.

BOIES: That will be fine with us, Your Honor. I think that we could have a relatively brief opening to cover all of the issues. Each of us could make one of those. And then go directly to the evidence.

SAULS: (OFF-MIKE) You may proceed.

BOIES: Thank you, Your Honor. May it please the court.

As the court is well aware, this is an election contest under Section 102.168 of the Florida code. And we have alleged that the certified results reject a number of legal votes and include a number of illegal votes.

And there are fundamentally five issues that the court is being asked to consider. Two of those issues related to Palm Beach; two of those issues relate to Miami-Dade; and one issue relates to Nassau County.

The two issues that related to Palm Beach are: At 5 p.m. on November 26, the time that was specified in the Florida Supreme Court's order, Palm Beach County certified results to the secretary of state. Those were the results of the manual recount that Palm Beach County was in the process of doing, but had not yet completed.

And we say that under the Florida Supreme Court's order, those certified results were required to be included in the certified results of the secretary of state, and the Election Canvassing Board.

The second issue with respect to Palm Beach relates to the stub or the tag end, or the additional votes that were identified after 5 p.m., because Palm Beach did not finish its manual recount by 5 p.m.; there's no dispute about that. They finished at 7:07 p.m. on the 26th. And there were an additional number of votes identified in the 127 minutes after 5 p.m. on November 26 that the manual recount continued.

There is no dispute about the number of votes involved there. Palm Beach has admitted the number of votes in its answer. I don't think that's going to be the issue. The real issue is the legal issue of first, was there a requirement under the Supreme Court's order that the 189 votes that had been certified, additional net votes for Al Gore, that had been certified at 5 p.m., should be included or not.

The second issue is the votes that were counted in 127 minutes after 5 PM. Now, first we think those should have been certified under Chappell against State, where the Florida Supreme Court held that a day or two or three missing of the deadline should not prevent those votes from being certified.

But whether or not they should have been certified is really not critical to this case, because this is not under Section 166, it's under Section 168. And as a result, as long as those are legal votes, and the court will recall that Mr. Richard told the court that the defendants do not have any problem with the Palm Beach County's exercise of discretion, so I don't think there's any dispute that those are legal votes, under Section 168 those legal votes must be considered.

So whether or not they should have been included in the certification or not really is not the point in terms of election contest. In election contest, as long as they're legal votes, they've got to be considered, at this stage in the proceeding, whether or not they should have been included at the certification stage.

Now let me turn to Miami-Dade. Miami-Dade is somewhat the same and somewhat different than Palm Beach. It is somewhat the same in the sense that like Palm Beach, Miami-Dade completed a portion of its recount, but not its entire recount.

It is different than Palm Beach in two respects. First, while Palm Beach always intended to complete its manual recount and did, Miami-Dade stopped its manual recount before the deadline. That is, it made a decision not to continue with a manual recount. So not only did it never finish, but it intentionally stopped the manual recount.

Second, unlike Palm Beach, Miami-Dade did not certify its partial results. Neither of those distinctions, we believe, make a difference at this stage, that is, the election contest stage, because again, the issue before the court is: Is there or are there legal votes that have been rejected?

And whether or not the votes identified in the Miami-Dade recount were or were not certified, those are still legal votes that should be considered in this election contest. So that the fact that those votes exist is what is important, not whether or not they were certified, and not even whether or not they should have been certified.

The second issue with respect to Miami-Dade are the approximately 9,000 votes that have never been manually counted, even once.

With respect to Broward County and Palm Beach County, all of the votes were properly counted, or at least all of the votes were manually counted. There's an issue, as the court knows, with respect to Palm Beach as to whether or not the right standard was applied. But all of the votes were counted once in Broward and in Palm Beach.

In Dade, approximately 20 percent of the undervotes were counted. But approximately 80 percent have never been counted at all, and that's the so-called 9,000 ballots that we keep talking about.

So that the second issue with respect to the Palm Beach--excuse me--with respect to the Dade County ballots is: Should those votes be counted? We believe those votes should be counted. We believe that under...


BOIES: ... in the language of the statute place in doubt the result of the election sufficiently so that those votes have got to be included in the vote tally.

And just as background, in the 20 percent of the precincts that were counted manually in Miami-Dade, the Miami-Dade Canvassing Board identified a legal vote in approximately one out of every four undervote or nonvote ballots that it reviewed. That is, they got about 20 percent through the ballots that did not have a vote recorded for president.

And as they went through those ballots, in 24 percent of those ballots--that is, approximately one out of four--they were able to identify that the voter intended to vote for a candidate for president and who that candidate was. So that in one out of four of the undervotes or nonvotes that Miami-Dade reviewed before they ceased their manual review, they were able to identify a legal vote for president.

Now we don't know that that percentage will exactly apply to the 9,000 undervotes or nonvotes that have not been reviewed. But certainly, since that was about the same percentage that Broward County identified, that is Broward County also was able to identify about one vote out of four. When they went through the nonvotes and the undervotes, about one out of four of those votes were votes that the canvassing board in Broward County was able to identify as a legal vote for president and then count it.

It certainly indicates that there are a large number of votes in that 9,000. It would be well over 2,000 votes if the same 25 percent recovery ratio were to apply, far more than the number needed to place in doubt the results of this election, which is the difference, as everybody probably in the country and maybe the world knows, is 537.

So you have in Dade County votes that have never been manually recounted at all that are sufficient to change the election.

The fifth what we think is essentially legal issue is Nassau County. And with respect to Nassau County, you have a situation in which there were two machine counts. I don't think there was any manual count in Nassau County at all. But what is involved are two machine counts.

There was a machine count on Election Day. And then, as is provided by Florida law because the differential was less than one-half of 1 percent, there was a mandatory machine recount. And the statute, as we've quoted to the court, provides that that machine recount, the mandatory machine recount under the statute, is to be the certified result unless there's a manual recount.

There was not a manual recount in Nassau County, and the canvassing board did what we think is the right thing on November 14, and they certified those results to the secretary of state.

Now, thereafter, without any protest being filed, and in our view without any precedent or justification, they then filed another certificate in which they decertified, if you will, what they had certified before, and went back and attempted to certify the results that came in on the first count on Election Day.

Now, first, there is, in our view, no legal or precedential basis for doing that. We don't think there's any basis in the Florida Supreme Court's decision that would allow them to do that. There was no protest filed that would allow them to change it. And in addition, as we've pointed out in our papers, we believe the process by which they did that, which included a person that was substituted onto the board that was, in our view, ineligible, and meetings that, in our view, violated Florida law, in lack of notice and lack of compliance with other statutes, all would make that certification defective.

So with respect to Nassau County, our view is that the right votes to be taken into account in terms of this contest proceeding is the statutory mandated machine recount.

Now those issues, those five issues, are, in our view, entirely questions of law. There is one issue that is, in our view, at least predominantly a question of law because we think it's a judicial issue for the court, but it is somewhat different than these first five issues. And that is the issue with respect to the 3300 Palm Beach ballots that Palm Beach did count that we are contesting.

These 3300 ballots are the only ballots that were counted by a canvassing board that we are contesting. And we believe under the 1929 decision, Nutchio (ph) against State, that we have recited in our paper, that is and has been for more than 70 years in Florida, considered a judicial question to be decided de novo by the court. That's also what we believe that 168 statute makes clear. We think that this is an issue for the court to decide, but we recognize that that's an issue that is going to be subject of some testimony and evidence today.

But in terms of the 3,300 Palm Beach ballots, that is a question that on the one hand the court is going to have to look at what is the appropriate legal standard to apply, and then whether that standard is in the first instance de novo review by the court or whether it is, as the defendants have argued, an abuse of discretion standard.

We think that those are the key issues that are going to be in front of the court. I'm not going to spend time arguing about how important the right to vote is or any of that; I think the court is well-aware of that. I think that our purpose today is to get to the evidence, and get to the legal arguments that will deal with these particular issues.

Thank you very much.

SAULS: Thank you, sir.

Mr. Richard?

RICHARD: May it please the court, I suspect that Your Honor will not be surprised to learn that I differ with Mr. Boies as to the important issue in this case. I believe that Mr. Boies has failed to note what I think is the single threshold issue that subsumes all of those that he mentioned.

The night before last, Mr. Boies told this court that the review by this court today was de novo. He has removed that label today, I suspect because he was unhappy with Your Honor's reaction to his assessment the last time, but the underlying premise of everything that he has told the court just now remains the same.

What he is attempting to do is to begin this court down a path that inevitably leads to a destination that he must arrive at in order to win. And that destination results in a conclusion which is both unreasonable and contrary to Florida law, and it is this that this court should disregard.

All of the actions of the various canvassing boards that are under challenge here and should begin anew an assessment and a count of all of the votes that the plaintiffs challenge.

Now, let me dwell for a moment on why that's unreasonable, and then why it's contrary to law.

It is unreasonable because of a point that Your Honor made in response to Mr. Boies' first suggestion, that this was a de novo hearing, when you asked him a pointed question: What then are the canvassing boards for? A good question. All judge's questions are good questions, but this is one of particular interest to me.


Because if we accept Mr. Boies' premise, there is no reason for a tabulation on Election Night, it makes no difference what the tabulation said, it makes no difference what the canvassing board did, we might as well take all of the ballots on Election Night and ship them to Tallahassee for the court to begin counting, because according to Mr. Boies' premise--which, again, he did not elucidate today, but it's the underlying premise--all that one needs to do, if one is a candidate, or for that matter, under the statute, any voter, is to file an election contest under subsection 168, and the court must begin counting ballots without consideration of anything that the canvassing boards did.

Now, that's not a reasonable construction of what the legislature would have intended. Presumably, what Mr. Boies is saying is that the legislature intended to give the losing candidate three free shots at the basket. If he doesn't like the initial machine tabulation, he can have a manual recount by the canvassing board. And if he's dissatisfied with the canvassing board's manual recount, he files an election contest and he gets another one by the court.

I suggest to the court that that's certainly not what the legislature...


... contrary to the longstanding and clear, established law of the state of Florida, which Mr. Boies has meticulously avoided discussing, and that law is simply this: The conduct of the canvassing boards, both with respect to whether or not they will conduct a manual recount, and the matter in which they conduct it, comes to this court with a presumption of correctness. Legislature has granted those boards a broad degree of discretion, and the only issue on an election contest, when we have had a canvassing board that has taken action, that has engaged in fact finding, that has made a decision, is whether or not that board has abused its discretion.

And abuse of discretion is one of the highest standards known to the law. So what we are here for today is for the plaintiff to carry its heavy burden of proving that the canvassing boards under challenge not only acted wrongly, but acted in a fashion which no reasonable person could have done given the facts known to them at the time.

Now, I submit to the court that that is the law of this state. Your Honor instructed us yesterday that we were not to dwell on legal authority, and I do not intend to do so at this time; I will save it for closing argument.

But I will commit to this court that when closing argument comes, I will be prepared to provide Your Honor with substantial legal authority to substantiate what I have said. And I trust that Mr. Boies will be prepared to provide Your Honor with authority for his underlying premise that this is de novo. We will see.

SAULS: Thank you, Mr. Richard.

KLOCK: Your Honor?

SAULS: Mr. Klock?

KLOCK: I feel badly, Your Honor, having to use notes. A couple of points, Your Honor, that I wanted to clear up.

SAULS: Don't feel bad. I'll burn off a feather here in a little bit. Go ahead.

KLOCK: I'd like to address a couple of points raised by Mr. Boies, and raise a couple of points more generally that I think the secretary will want to address.

The first, Your Honor, has to do with the whole premise that you can have a partial manual recount. As Your Honor--I was not here, but I understand focused on the cover letter provided by the attorney general to the Palm Beach County Canvassing Board, where the attorney general raised grave concerns about the idea of simply having a partial manual recount of certain counties in a statewide race.

And at least in that respect, Your Honor, I think the years that the attorney general had not issued opinions on the election laws did not disserve him, because I think he raised a very, very good point. And it's one that this court has to address as well.

I do not believe, Your Honor, that there is any basis whatsoever to have a pick-and-choose manual recount in the state of Florida in a statewide race.

And I'll point, Your Honor, to language in the Supreme Court opinion that I think should be of great concern to the plaintiffs in this case.

The Supreme Court noted, in footnote 56, on page 40, at oral argument...


KLOCK: The Supreme Court of Florida, the recent one--I'm sorry, Your Honor.

SAULS: Oh, all right.

KLOCK: Page 40 of that opinion in slip form (ph), footnote 56: At oral argument, we inquired as to whether the presidential candidates were interested in our consideration of a reopening of the opportunity to request recounts in any additional counties. Neither candidate requested such an opportunity.

Now the Democrats, Your Honor, would spin this as being an indication that if the Republicans did not ask for other counties to be counted, they, therefore, did that at their peril. I would suggest to Your Honor that that's not the case at all. If it's a statewide race, it is the obligation of whoever is contesting the election, or protesting the election, to file in all the counties that are necessary to be able to have a recount. And I would suggest that that burden falls on the Democrats.

Your Honor, with respect to some of the other points that were raised--and then I'll try to summarize quickly--with respect to Palm Beach County, to this day, Your Honor, they have not yet certified any additional returns in connection with the Supreme Court's order.

On Wednesday evening I believe we received an unsigned document from Palm Beach County which purported to be the continuation of the critical 127 minutes--or whatever it is that Mr. Boies has referred to.

So to this day, Palm Beach County has not complied with the law or with the order of the Supreme Court of Florida.

The other point, Your Honor, that I'm a little confused about has to do with Miami-Dade.

As I understand that the argument with respect to the Miami-Dade Canvassing Board is that they were under some obligation to conduct a manual recount once they started. But of course, the first decision made by Miami-Dade was not to conduct a recount. Then they made a second decision to conduct a recount, and then they made a third decision not to conduct a recount. For some reason that the plaintiffs have not indicated, it is only the second decision that they made that is critical for them to follow through on. It's not critical for them to follow through on their first decision, which was not to conduct a recount.

And also they have not focused on the fact that the Miami-Dade Canvassing Board, when they made their decision to conduct a manual recount, did not, according to the transcript, consider any of the factors set forth in the statute. It apparently was: Gee, people feel strongly about this, let's do it. We don't think legally, Your Honor, that that quite carries the day.

They were very happy, of course, with how Broward County proceeded. And with respect to Nassau County, Your Honor, I think it'll become very clear to the court that the Nassau County board acted quite properly. When they did the second--the automatic recount, they found that they came up with fewer votes than they had the first time, and they thought that they had made a mistake. They can, obviously, address that.

But, Your Honor, I think, to briefly summarize the point that we are dealing with here, you will find with respect to all the cases that are cited to you, with respect to a contest, they're all quite mature. That is understandable. The law of Florida has been developing for a long period of time.

But, Your Honor, all this must be raised in the context of a system now which has mechanical and electromechanical balloting, and all of the decisions handed down by the Supreme Court of Florida in 1932 and 1947, as instructive as they may be, don't deal with the situation we're dealing with today.

The other point that I'd raise to Your Honor that is very interesting is that Mr. Boies presents to the court sort of an election code omelet. Because for purposes of--for some purposes you're to look to section 166, which as Your Honor knows is the only basis in Florida law to have a manual recount at all. That statute, which I believe is 102-1665C, requires that all ballots be recount--not some of them, not just the ones you like, not a partial count.

Now, Your Honor, when we move from 166 to 168, what, pray tell, is the court to do? 166 is very interesting, because as the Supreme Court pointed out, and has been pointed out in other decisions and in a lot of arguments before Your Honor, there is no standard. Judge Labarga's order that Your Honor referred to indicated that the canvassing board is supposed to try to determine voter intent.

I would suggest to Your Honor that a very important part of that process is the canvassing board. There can be no way that the legislature of Florida intended that the process of an election be carried out in the following way: You get to vote; if there's a protest the canvassing board looks out it and makes a decision; if anyone's unhappy with what they do, one circuit judge, or a special master appointed by a circuit judge, or somebody else, gets to make a decision that the legislature reposed in what we thought was a very limited circumstance, having to do with a mechanical failure in a canvassing board.

So, Your Honor, what I'm suggesting is, I do not believe that the court could even make that decision in a contest. I think the canvassing board is a very important element. Because of the fact that you have three people that make it there through different procedures in different counties, they are an important part of that.

And I don't believe, with all due respect to the experience of the court and the court's knowledge of the law, that the court can try to put itself into the position of being three people in 67 different counties. I don't think that that's possible.

And if Your Honor will remember, the entire election protest contest was rolled in by the plaintiffs through the Trojan Horse of the butterfly ballots in Palm Beach County. That was ruled out first. That was the prize to be attended to. Then, when that fell, which as Your Honor knows occurred yesterday when the Supreme Court of Florida basically threw out the challenge to the butterfly ballot, it gave them time to develop some additional theories.

And the theory that they're traveling on now, Your Honor, is that there exists in Florida law by way of protest and contest the right to review ballots in the state of Florida based on voter error. And I would suggest respectfully to Your Honor that there is no such basis in a protest and there is no such basis in a contest.

And Your Honor correctly honed in on the appropriate law with respect to a contest. They have to show, whatever their basis is, that it would make a difference as far as the outcome of the election is concerned. And, Your Honor, unless we're going to have--and I don't mean to be disrespectful, but sort of a voodoo presentation of experts on statistics to try to divine what people are going to do, the fact is under the law, Your Honor, the only way we know to do things is by a count.

I, respectfully, do not think in the contest that there is a basis in Florida to have a recount for voter error, and surely do not believe that there was ever any intention that a judge be substituted for a canvassing board making those decisions.

Thank you, sir.

SAULS: I hesitate to do this in an opening, but let me ask you, is it your--did you just open with the proposition that there's no case or statute that says any party, or an observer or whoever, or I suppose a representative of a party, that there's no right to object to the discretionary exercise of the decision of a canvassing board, as each ballot is being manually recounted, after such a board has properly exercised its discretion to recount in the first place?

KLOCK: Yes, sir.

SAULS: There's no case or statute that allows that objection so that it could be reviewed, each individual decision of the canvassing board?

KLOCK: I do not believe, Your Honor, that there is any basis in Florida to have a recount based on voter error in filling out the ballots.

SAULS: That's not what I asked you.

KLOCK: I'm sorry, sir.

SAULS: I asked you whether or not there was a case or statute that permits the judiciary to, in effect, decide objections to each individual ballot, or card, as those individual ballots or cards are being manually recounted by a canvassing board...

KLOCK: Yes, sir.

SAULS: ... after that board has exercised its discretionary authority and is applying whatever discretionary or standard that it's applying.

KLOCK: That's precisely the point, Your Honor.

SAULS: Well, if there's no right to object, then how do you have a hearing based on a request to have the court then review each of those individual objections?

KLOCK: Your Honor, I think that there's a contest provision...

SAULS: Maybe we're getting in...

KLOCK: Yes, sir.

SAULS: Maybe I just need to leave that...


KLOCK: But, Your Honor, I didn't ask...


SAULS: I just didn't understand, and apparently--I just wanted to understand what your opening is.

KLOCK: That is the point, Your Honor.

SAULS: I'll leave it to where you can establish or not establish that.

KLOCK: Thank you, sir.

BOIES: Your Honor, could I respond briefly to the court's question?

SAULS: Well, I don't want to open this up to anything else, but that's what I just indicated. Maybe I didn't know whether I understood what he was saying, and that's the reason I hesitate to do this in opening.

And I will permit you because it is a little unusual. But I just indicated, now I understand what his opening is, and that's like any party, if he doesn't prove or establish what he said during the trial, then you as a lawyer know what happens to that unproven opening allegation.

BOIES: Your Honor...

SAULS: But, briefly, if you will to begin to put it back in, so then I can turn around and ask you where the authority is.

BOIES: Right, Your Honor, and I'll be very brief.

SAULS: Go ahead.

BOIES: First, we think the authority is in 102.168, the contest statute.

SAULS: 168, OK.

BOIES: And we think that that contest statute has nothing to do with manual recounts, it has nothing to do with whether the certification was timely or untimely, it has nothing to do with whether there's discretion to conduct or not to conduct a manual recount.

It only has to do with whether there are legal votes that have not yet been included, or there are illegal votes that have been included.

And in terms of case authority, you can go back all the way to 1929 to State against Williams, in which the court held that it was a judicial determination, not a determination for the canvassing board. You go to 1932 of Smith against State, in which the Florida Supreme Court held that the ballots were to be reviewed as a judicial matter by the court. You go to the Peacock (ph) case in 1936, in which the Florida Supreme Court held that both the circuit court and the Supreme Court on discretionary mandamus could do that count themselves and there's no mention of giving abuse of discretion deference to the canvassing boards.

And, rather than go decade by decade, I'll jump all the way to the Beckstrom, case in which the Supreme Court held in an election contest case that you did look at the ballots. And the Beckstrom case was a voter error case. The Beckstrom case was a case in which the voters were instructed to color in an optical ballot with a number two pencil. They didn't do that. And it was voter error. The court held that the right way to deal with election contest was to have the court look at those ballots and make a determination.

Thank you.

SAULS: All right.

RICHARD: May I be heard on that, Your Honor?

SAULS: No, this is just opening. I was just going to sit by and I'd ask you about it. I didn't want to open this up. I think I better understand probably openings. But I'm supposed to be fair...


Briefly, go ahead, Mr. Richards, then I'll hear...


RICHARD: I don't want to do it if you don't want to hear it.


RICHARD: I understand you don't (ph) want Mr. Boies to say anything that I'll respond to.


SAULS: Just give me back your side...

RICHARD: It goes back to...


SAULS: I understand he's saying that really what we're dealing with is that the authority is in Section 102.168, which deals with the validity or invalidity of ballots. And I understood your position earlier would be that that statute--well, go ahead.

RICHARD: What it deals with is the validity or invalidity of elections, not ballots. There's nothing in that provision that says that any court ever looks at a ballot. And the real issue, as I said, is what the statutes gives is authority to the canvassing boards to make the factual determination as to whether or not a ballot has been correctly cast or not cast. And the only issue for the court is whether or not that discretion was abused.

SAULS: That was my recollection of your position. I was just trying to find the positions of each of the parties with respect to this.

Yes, sir?

MCMAHON: Good morning, Judge. I'm Andrew McMahon for the Palm Beach County Canvassing Board, and I'll be very brief. There's an awful lot of important work that needs to be done here, and it's our hope that we can, for the most part, stay out of the line of fire.

For the Palm Beach county canvassing board, Judge, we really have no position on the important threshold determination as to whether or not this is de novo before you start looking at the ballots, or whether or not you first need to determine that there is some abuse of discretion.

Should you determine that there is an abuse of discretion or a violation of some other standard of review, as determined to be appropriate in the first instance, we, of course, are prepared to defend the actions of the Palm Beach County Canvassing Board. They properly exercised their discretion, they properly determined the intend of the voters when examining ballots, using the appropriate standard, and to the extent that Your Honor needs to get into that, we're prepared with our witnesses and arguments.

It does seem to me, however, that if Your Honor determines in the first instance that this is de novo, then any testimony, any evidence really as to what the canvassing boards did or didn't do is unnecessary.

We just had one other comment. I'm a little bit confused by the position of the secretary of state. As I understood it, the secretary's position was that as of 5 p.m. on November 26, the deadline came and there was no further opportunity to provide any supplementation of information as the manual recount in Palm Beach County. Indeed, the secretary rejected the information that was provided to her as far as the results of the manual recount up to that point.

Now, unless I misunderstood, the secretary's position is that we still haven't complied with the law because we still haven't provided the final results of our manual recount.

Let me just suggest that if the secretary is willing to open her office to accept what we now have as the final tabulation, which was just completed late last evening, we will be happy to provide those statistics.

Thank you, Judge.

MULLIN: Good morning, Your Honor. I'm Mike Mullin for the Nassau County Canvassing Board.

SAULS: Yes, sir.

MULLIN: First, let me say it's certainly nice to see Mr. Greenberg here in person.


From Nassau County's side, Judge, I think ours will be the briefest and smallest part of your proceedings today and into tomorrow. The Nassau County Canvassing Board and the supervisor of elections basically did and was guided by moral and legal principles in what they did, and they did everything correctly. Their meetings that they held were certainly within the law. The unfortunate aspect is not due to plaintiffs, but there was an unfounded allegation made about a sunshine violation, and that, I think, will be completely refuted today, and there should be no further doubt at all.

The other aspect was, when the supervisor of elections realized on the November 8 count, or the second automatic required count, when she realized that a human error had occurred and a certain amount of ballots were not recounted as they should have been, she started telling the community and the canvassing board and the secretary of state's office that a grievous error had occurred, and that due to human error approximately 218 ballots had not been run through the machine, as they had been done on the first count on November 7th.

She sought, and the canvassing board sought, advice on how to correct that. The advice they received from the secretary of state's office was, you can go back to the first count. And that's exactly what the canvassing board did, based upon that advice.

The other aspect of it was the make-up of the canvassing board, and we think that can be dealt with quickly. We had a canvassing board member who replaced a substitute member who was no longer a candidate for office, and simply voted with the canvassing board to recertify the November 7 results.

But again, Nassau County Canvassing Board and the supervisor did nothing wrong. It's unfortunate there were some unfounded allegations made that worked their way through the system and appeared in pleadings. And I think those will be addressed and refuted today and Nassau will be finished.

SAULS: Thank you, Mr. Mullin.

DOUGLASS: We have entered into a stipulation between Nassau County and the plaintiff, which we will file with the court, on what the basic facts were, to be added.

SAULS: Does that resolve the action with respect to Nassau?

DOUGLASS: No. It will require the court making legal rulings based on the stipulated facts. I think that's...


SAULS: I ask to the extent possible. I thank counsel for that. If you'll go ahead and file it and hand it up so I'll have it.

DOUGLASS: We've got to retype it, but other than that, we have done it.

SAULS: All right, sir.

All right, then, Mr. Greenberg, did you have any opening at this time?

GREENBERG: No, sir, Your Honor. There's no telephone, so I have nothing to say.


SAULS: We've effectively muzzled you, is that right?

All right. Thank you.

All right, at this time then...

MADIGAN: Your Honor, do you wish to hear from the intervenor for an opening?

MULLIN: She sought, and the canvassing board sought, advice on how to correct that. The advice they received from the secretary of state's office was, you can go back to the first count. And that's exactly what the canvassing board did, based upon that advice.

The other aspect of it was the make-up of the canvassing board, and we think that can be dealt with quickly. We had a canvassing board member who replaced a substitute member who was no longer a candidate for office, and simply voted with the canvassing board to recertify the November 7 results.

But again, Nassau County Canvassing Board and the supervisor did nothing wrong. It's unfortunate there were some unfounded allegations made that worked their way through the system and appeared in pleadings. And I think those will be addressed and refuted today and Nassau will be finished.

SAULS: Thank you, Mr. Mullin.

DOUGLASS: We have entered into a stipulation between Nassau County and the plaintiff, which we will file with the court, on what the basic facts were, to be added.

SAULS: Does that resolve the action with respect to Nassau?

DOUGLASS: No. It will require the court making legal rulings based on the stipulated facts. I think that's...


SAULS: I ask to the extent possible. I thank counsel for that. If you'll go ahead and file it and hand it up so I'll have it.

DOUGLASS: We've got to retype it, but other than that, we have done it.

SAULS: All right, sir.

All right, then, Mr. Greenberg, did you have any opening at this time?

GREENBERG: No, sir, Your Honor. There's no telephone, so I have nothing to say.


SAULS: We've effectively muzzled you, is that right?

All right. Thank you.

All right, at this time then...

KLAYMAN: Your Honor, do you wish to hear from the intervenor for an opening?

SAULS: Briefly.

MEYER (ph): We'll make it brief, yes, sir.

SAULS: I believe that you represent, what, individual voters, is that right?

MEYER (ph): May it please the court, yes, Your Honor. I represent Steven Cruz (ph), Teresa Cruz (ph), Terry Kelly (ph)...

SAULS: Well, just individual voters.

MEYER (ph): And Jeanette Seymour (ph). These are citizens from West Florida. And as the court is well aware, it allowed them to participate in this proceeding.

SAULS: Limited participation, yes, sir.

MEYER (ph): And when it occurred, Your Honor, it was a good thing, because then the court had the voice of the citizens in this particular proceeding.

As the court is well aware, it must identify the will of the people and the will of the voters in this election contest proceeding. And by virtue of that, the court must consider the will of all the people of the great state of Florida, including my clients in West Florida, including all of the people who reside throughout the state, from the western end of Pensacola, to the southern tip of Key West or to the Keys, and to our northern neighbors in Nassau County.

Your Honor, from the point of view of my clients, the contest is a lot like by analogy George Orwell's "Animal Farm." And if the court will just bear with me, I'll remind the court that in "Animal Farm" there were two pigs that took over the Jones farm, Snowball and Napoleon. And as a result, they established rules, and one of those rules was all animals are equal.

Now, Napoleon took over the farm and he chased Snowball out. And as a result, a new rule was established: All animals are equal, but some animals are more equal than others.

And, Your Honor, from the point of view of my clients, all votes are equal when they went and entered into this election on November 7. And that's why we have asked, Your Honor, to look at this from a statewide perspective.

We ask the court to look at the counting of votes statewide, because after the election occurred on November 7, from the point of view of the citizens, all votes were equal, but some votes were more equal than others.

And so we ask the court to keep a statewide perspective on these proceedings, and to be sensitive to the citizens' point of view in this election contest, and to look for the will of the people and the will of all of the voters in the great state of Florida.

Your Honor, the evidence will indicate that my clients live in west Florida's central time zone. As a result, they experienced other difficulties with this election, including the fact that the election was called almost an hour before their polls closed. As a result, a lot of their friends and neighbors did not go to the polls, as a direct result of that. And they wish for their voice to be heard in this contest and for the court to keep everyone who voted in mind when addressing the will of the voters.

In summary, Your Honor, again, all votes were equal going into the election. We ask the court to not allow it to become: All votes are equal, but some votes became more equal than others."

Thank you. I now yield to Mr. Madigan.

MADIGAN: Your Honor, on behalf of the intervenors, my clients are individual voters, and may it please the Court. from Duval County, Okaloosa County, Bay County, Calhoun County and Leon County.

And my argument is a little bit different...

SAULS: It's not an argument, it's an opening.

MADIGAN: I understand, Your Honor. My position is a little bit different, and I'll tell the Court the position that our clients have very concisely.

We believe that the fundamental right of voting is one of the most basic in the state of Florida and in the nation, under the 5th and the 14th Amendments. The equal protection clause, Your Honor, demands strict scrutiny in certain circumstances. The right to vote is one of those areas where strict scrutiny is absolutely essential.

MEYER (ph): We ask the court to look at the counting of votes statewide, because after the election occurred on November 7, from the point of view of the citizens, all votes were equal, but some votes were more equal than others.

And so we ask the court to keep a statewide perspective on these proceedings, and to be sensitive to the citizens' point of view in this election contest, and to look for the will of the people and the will of all of the voters in the great state of Florida.

Your Honor, the evidence will indicate that my clients live in west Florida's central time zone. As a result, they experienced other difficulties with this election, including the fact that the election was called almost an hour before their polls closed. As a result, a lot of their friends and neighbors did not go to the polls, as a direct result of that. And they wish for their voice to be heard in this contest and for the court to keep everyone who voted in mind when addressing the will of the voters.

In summary, Your Honor, again, all votes were equal going into the election. We ask the court to not allow it to become: All votes are equal, but some votes became more equal than others."

Thank you. I now yield to Mr. Madigan.

JENNINGS: Your Honor, on behalf of the intervenors, my clients are individual voters, and may it please the Court. from Duval County, Okaloosa County, Bay County, Calhoun County and Leon County.

And my argument is a little bit different...

SAULS: It's not an argument, it's an opening.

JENNINGS: I understand, Your Honor. My position is a little bit different, and I'll tell the Court the position that our clients have very concisely.

We believe that the fundamental right of voting is one of the most basic in the state of Florida and in the nation, under the 5th and the 14th Amendments. The equal protection clause, Your Honor, demands strict scrutiny in certain circumstances. The right to vote is one of those areas where strict scrutiny is absolutely essential.

Strict scrutiny means that the intention of the party or the state to discriminate is really not an issue. Whether or not there is a result of discrimination is essential.

And, Your Honor, this whole case has arisen because of a very, very flawed statute. The manual recount statute allows for the losing candidate in the state to cherry pick the counties he wants the recount in. And that, in and of itself, causes the election to be skewed to the detriment of those people in the other counties, and particularly to the detriment of those people in the counties where Governor Bush won.

I would ask the court to recognize that although circumstantially it might appear that there is sufficient evidence to establish that Mr. Gore cherry picked intentionally, for the purpose of discriminating against all the other voters of Florida, that is not an essential fact for this court to find.

Because of the fundamental basis of the right to vote, the intention of Mr. Gore is not at issue. If there is discrimination, all of the manual recounts should be thrown out, and the manual recount statute should be declared unconstitutional on its face and as applied in these circumstances.

That's all I have.

SAULS: All right. Thank you, Mr. Jennings.

MADIGAN: Your Honor?

SAULS: Yes, sir.

MADIGAN: Your Honor, thank you.

Terry Madigan, on behalf of Matt Butler.

Your Honor, we've seen a lot of paper and a lot of legal arguments flying around this courtroom and flying all over the city of Tallahassee the last few weeks, but from our perspective, and that is of a voter, it's a pretty simple issue.

Matt Butler is a voter, registered voter in Collier County, Florida. His voting machines were the tabulation style, the punch card style that's been much discussed. He went and voted in the general election on November 7th of 2000. He voted for George Bush, or so he thinks. He believes he followed the directions. He cast his ballot, he put it in. It came out later that there were some 3,000 undervotes, as they call in that county, where people went and cast ballots, but for some reason a vote for president did not register. For all he knows, maybe his did not count.

What Mr. Butler is concerned about is now we've been engaged in this process where, after the regular count, after the required statutory machine recount, that Mr. Gore has now gone and selectively picked other counties to do yet a further count, by taking the cards, manually holding them up, and looking at them and trying to figure out, OK, did somebody mean to count a vote for president or did they not.

This didn't happen in Collier County. Mr. Butler was unable by law, he was precluded by law, from even asking that a recount be done in Collier County. No one else asked that it be done.

George Bush won Collier County. Maybe that was the reason Mr. Bush didn't--Governor Bush did not ask. Nonetheless, there is a risk that Mr. Butler's vote may have been among those 3,000. There is a risk that of the 64 other counties where we've not gone through a manual recount, there is a lot of votes that weren't counted. There was 180,000 votes statewide, as we understand it from the figures of the secretary of state, that were not counted for president.

Now all of a sudden we're dealing with a very discrete percentage of those figures by trying to hand pick votes in areas where Mr. Gore knows it's likely there were more voters for him in south Florida counties. That is fundamentally unfair to Mr. Butler and everyone else who didn't have their vote--who's not had their vote hand reviewed to try to determine intent, because somebody else's vote now is going to get to count more than his vote counts simply because someone has been able to pick a portion of the statute and selectively apply it in parts of the state.

And then, from that, they want to try to extrapolate, as I understand it, to say, well, if we picked up all these extra votes in these parts of the state, then by virtue of that, it must apply elsewhere.

Your Honor, this is not a ballot contest; this is a statewide election contest. Unless we are going to count all the votes, and we all heard Mr. Gore on television talking about all votes should be counted--he hasn't asked that all votes be counted.

The court, if it's going to conduct a de novo review or any type of review of ballots of votes that are cast by people, it needs to consider the votes of all people in a statewide election, not just votes from one part of the state to the exclusion of every other part of the state.

That's the basis premise of our argument, Your Honor, is that Mr. Butler's vote needs to be counted in the same manner as everybody else's vote that's going to be taken before this court for further review.

Thank you.

SAULS: Thank you, sir.

At this time, do you want to proceed with your evidentiary presentations? Or are there any other motions that are preliminary thereto?

BOIES: I think we're ready to proceed with the presentation of evidence, Your Honor.

SAULS: You may proceed then.

KITCHEN: If Your Honor please.

SAULS: Mr. Kitchen?

KITCHEN: Judge, we are prepared to offer into evidence at this time the plaintiff's--basically the plaintiff's efforts. We've provided to the defense and to Your Honor the plaintiff's exhibit notebook.

SAULS: I haven't received it.

KITCHEN: It's in a box up there somewhere.

STAFF: Here it is. It's way up here.

BECK: Your Honor, we just got the notebook this morning. And it has 144 items. And we've got boxes and appenda. We're going to need a chance to review it and see whether we have any objections to the documents that are in here. We haven't had a chance to do that with all that's happening.

KITCHEN: Your Honor, why don't you let me offer all this? It's going to take some time just to offer it.

SAULS: We'll offer it. And then it looks like we'll have to have a short recess. I suppose. I don't know. Is that what you're asking for?

RICHARD: You could use the old-fashioned method, Your Honor. He could introduce the document when it's time, and we could look at it and decide whether or not we object to it.

SAULS: Well, that might take 40 forevers, too. And it will.

KLOCK: Well, Your Honor, we need to see the notes, so I know (ph),

SAULS: Well, I'll ask you to share.

(inaudible) have a copy?

BECK: What I would suggest, Your Honor, is that in order to expedite things, that Your Honor tentatively receive the documents in evidence, subject to our making objections after we've had a break in the normal course of events. And that way, they can proceed with their witnesses and we don't have to hold everything up.

SAULS: Absolutely. And then, if there's any specific document that you refer me to, if you have a specific objection then as to that, then you can raise it at that time and perhaps we'll have to stop before I look or view that particular document. Is that satisfactory?

KITCHEN: That's fine, Your Honor, as long as you received it, subject to their objection. We want to make sure we've got our case put on.

SAULS: Go ahead, sir.

KITCHEN: If I could, in the folder, Your Honor, is plaintiff Al Gore's trial document exhibits.

SAULS: Yes, sir?

KITCHEN: I've got an extra copy of it if you need.

SAULS: Is that initial the summary?

KLOCK: Your Honor, we don't have that document.

SAULS: Is there an extra copy of the summary? Is that what--is that in the book, the summary?

KITCHEN: Yes, sir, it should be right in this folder. It just lists...


SAULS: OK. Yes. We got so much paper up here (inaudible). Now, is there an extra copy for--who was it--Mr. Klock? OK. All right. Go ahead, Mr. Kitchen.

KITCHEN: OK. Your Honor, we would under plaintiffs' exhibit binder we would offer now 1 through 22. Those are all in the binder, with the exception, Your Honor, of 7, 8, 9 and 10, which are charts, and with the exception of 22, which is a deposition that is supposed to get here, if it isn't already here, in the next short while. These are all public records and/or business records within the context of offices that produced them.

On the second page is entitled "Transcripts in a Box." That's plaintiffs' exhibits 23 through 44. These are all canvassing commission transcripts. We offer them as both official records and business records.

We would next move, Your Honor, to what we will offer under Palm Beach County as our next numbered exhibit. We would move the admission of the ballots reviewed by the Palm Beach County Canvassing Board, which have been determined to be an undervote, an overvote, or a vote for a candidate other than Gore-Lieberman, which have been the subject of Democratic Party objections and which are segregated into envelopes in each individual precinct transfer box. These ballots are in the custody of the clerk of the court, pursuant to your order.

Next we would offer certain certification documents. Again, these are offered as public records, and to the extent applicable, business records.

Our next number would be the election certificate as of 5:00 p.m. on November 26, 2000. That's, Your Honor, again we're still in Palm Beach County.

SAULS: What number? What date?

KITCHEN: November 26, 2000.

SAULS: That's not even--that's not included back in 15, 16? No, that's--I mean, number 14?

KITCHEN: This is 5 p.m., and this says 4:55. If it is the same, then it'll be a duplicate, but if it's different, the times I have here are different.

SAULS: All right, sir.

KITCHEN: Next would be the election certificate as of the second machine count in Palm Beach County, November 8, 2000. Next...

SAULS: Let's see, what number would that be, Mr. Clerk? Number 48?

CLERK: Yes, sir, that's correct.


CLERK: That is correct, yes, sir.

SAULS: Go ahead, Mr. Kitchen. Restate that, if you would, sir.

KITCHEN: Yes, sir. The Palm Beach County election certificate as of the second machine count on November 8, 2000.

Your Honor, please, I'm told that November 8 I just told you should be 14.

SAULS: November the 14th?

KITCHEN: Yes, Your Honor.

SAULS: All right.

KITCHEN: Next would be the Palm Beach County final election certificate at the close of the manual count.

SAULS: Deem it. What was the date on that Palm Beach final certificate?

KITCHEN: December 1, 2000, Your Honor.

SAULS: December 1? What's today?

KITCHEN: December 2.

SAULS: Yesterday, then. All right.

KITCHEN: We would next move the tally sheets of Palm Beach County showing the precinct by precinct vote totals from the manual count through the conclusion of the recount.

SAULS: It would be number 50, Mr. Clerk?

CLERK: Yes, sir.

KITCHEN: And Your Honor, it's our understanding counsel for Palm Beach County, Mr. McMahon, has these with him. Am I correct? Or has them available?

MCMAHON: The tally sheets?

KITCHEN: Yes. As our next numbered exhibit, Your Honor, we would move into evidence the Miami-Dade undervotes as segregated by the supervisor's office into separate envelopes in each box of precinct ballots.

SAULS: Well, aren't they already included in your exhibit number 45, which is all ballots that are already in the custody, wouldn't it?

KITCHEN: Judge, 45, would that relate to Palm Beach County?

SAULS: There was a reference it was all ballots, so I guess we didn't designate between them, but was that what it was intended to do.

KITCHEN: That was Palm Beach County, Your Honor, this is (inaudible) Miami-Dade.

SAULS: All of 45 would be Palm Beach, Mr. Clerk.

KITCHEN: And the last one is the Miami-Dade undervotes.

SAULS: All right, that would be number 51.

KITCHEN: Just a moment, Judge. Your Honor, number 45 for the plaintiffs is the approximately 3308 Palm Beach County ballots that were being discussed. I think that is our exhibits.

SAULS: I just have one question, if I may, sir. Let's go back to number 46, so that there won't be any confusion. What was number 46?

KITCHEN: Number 46, as I see it, would be the certification documents, the election certification as of 5 o'clock p.m. on November 26.

SAULS: That's the one I had questioned about whether or not that was indicative of exhibit number 14.

KITCHEN: We have three certificates out of Palm Beach. The next one would be the November 14 certification, then the final certification.

SAULS: Are all these documents, are they included--these certificates--are they included in the (inaudible)

KITCHEN: They're in the boxes, what we presented. These are not in the binders; they're in the boxes. And the ones that are not with the court as right now, the ones we mentioned in the deposition, the tally sheets that Mr. McMahon has.

(UNKNOWN): Your Honor, if I may. Exhibit 22, which is the deposition of a machine maintenance person from Miami-Dade County, I do not believe that deposition has been taken at any time.

SAULS: Determine whether it has or has not.

KITCHEN: It's not been taken; we're not offering it.

SAULS: All right.

(UNKNOWN): It has not been taken. We have no objections.

SAULS: Do you wish to call any witnesses?

BOIES: Yes, Your Honor, we will call our first witness. Mr. Zack?

SAULS: Mister who?

BOIES: Mr. Zack, Steven Zack.

SAULS: Ask him to come forward and be sworn.

Can you make your way up here, sir?

All right, this is a witness or...

BOIES: No, Your Honor, I'm going to be the counsel who's going to examine the witness. If it please the court.

SAULS: I thought he called Mr. Zack and I couldn't...


I had no idea why you were going to testify (inaudible).

BOIES: It might go more quickly, Your Honor, if (inaudible) could give testimony.

(UNKNOWN): Your Honor, it was a surprise to me as well.


SAULS: ... going to swear him in as an officer of the court. But who is your witness? Let's call the witness.

BOIES: Mr. Kimball Brace.

SAULS: Ask him to come forward and be sworn.

Madam Clerk, do you wish me to swear the witness--or Mr. Clerk?

CLERK: As you prefer.

SAULS: Well, you can't see him until we get this thing down.

Raise your right hand, sir. Do you solemnly swear, affirm the testimony you're about to give will be the truth, the whole truth and nothing but the truth, so help you God?


SAULS: Be seated, sir.

You may proceed.

BOIES: Thank you, Your Honor.

Would you state your name please?

BRACE: Yes, it's Kimball William Brace.

BOIES: Mr. Brace, where do you reside?

BRACE: I live in Fairfax Station, Virginia.

BOIES: And are you employed at this time?

BRACE: Yes, I serve as president of Election Data Services.

BOIES: Would you tell the court what Election Data Services is?

BRACE: Yes. Election Data Services is a consulting firm that specializes in assistance to state and local governments on areas in election administration, as well as redistricting.

BOIES: How long has Election Data Services been in existence?

BRACE: I started the company back in 1977.

BOIES: And how many employees do you have?

BRACE: We currently have 12 or 13 employees. We tend to fluctuate as we get in years dealing with the census and redistricting.

BOIES: Does Election Data Services examine voting systems and voting equipment?

BRACE: Yes. It has been an interest of mine for a number of years, going back even before I started Election Data Services, in looking at different voting machines, how they operate, and any sort of problems that they might cause because of the way that we analyze election results.

BOIES: Yes, Your Honor, we will call our first witness. Mr. Zack?

SAULS: Mister who?

BOIES: Mr. Zack, Steven Zack.

SAULS: Ask him to come forward and be sworn.

Can you make your way up here, sir?

All right, this is a witness or...

ZACK: No, Your Honor, I'm going to be the counsel who's going to examine the witness. If it please the court.

SAULS: I thought he called Mr. Zack and I couldn't...


I had no idea why you were going to testify (inaudible).

UNKNOWN: It might go more quickly, Your Honor, if (inaudible) could give testimony.

(UNKNOWN): Your Honor, it was a surprise to me as well.


SAULS: ... going to swear him in as an officer of the court. But who is your witness? Let's call the witness.

ZACK: Mr. Kimball Brace.

SAULS: Ask him to come forward and be sworn.

Madam Clerk, do you wish me to swear the witness--or Mr. Clerk?

CLERK: As you prefer.

SAULS: Well, you can't see him until we get this thing down.

Raise your right hand, sir. Do you solemnly swear, affirm the testimony you're about to give will be the truth, the whole truth and nothing but the truth, so help you God?


SAULS: Be seated, sir.

You may proceed.

ZACK: Thank you, Your Honor.

Would you state your name please?

BRACE: Yes, it's Kimball William Brace.

ZACK: Mr. Brace, where do you reside?

BRACE: I live in Fairfax Station, Virginia.

ZACK: And are you employed at this time?

BRACE: Yes, I serve as president of Election Data Services.

ZACK: Would you tell the court what Election Data Services is?

BRACE: Yes. Election Data Services is a consulting firm that specializes in assistance to state and local governments on areas in election administration, as well as redistricting.

ZACK: How long has Election Data Services been in existence?

BRACE: I started the company back in 1977.

ZACK: And how many employees do you have?

BRACE: We currently have 12 or 13 employees. We tend to fluctuate as we get in years dealing with the census and redistricting.

ZACK: Does Election Data Services examine voting systems and voting equipment?

BRACE: Yes. It has been an interest of mine for a number of years, going back even before I started Election Data Services, in looking at different voting machines, how they operate, and any sort of problems that they might cause because of the way that we analyze election results.

ZACK: Well, let's go back to when your interest in the custom and usage of these machines began. Tell the court how that occurred and how you proceeded to review these machines.

BRACE: Well, I really started with elections and election administration in college. My college professor, Dr. Richard Smolka, was beginning a newsletter called "Election Administration Reports," that is a biweekly newsletter that is now in its 26th year, read by county and state governments across the nation. It's designed to provide information to election supervisors, and those kind of individuals, of particular important topics of the day that relate to their job.

And one of the things that is looked at is voting machines and what kind of circumstances are going on with voting machines at that point in time.

ZACK: Tell the court what you personally did in that regard to examine the various machines that were in existence.

BRACE: Well, I started back in 1975. Dr. Smolka was approached by one voting machine company to evaluate a new type of equipment that was coming out on the market. He did not want to do that, and he mentioned that I was available to do that kind of work. That company that then hired me was called Automatic Voting Machine Company, or the AVM Company.

They were developers of the old lever machines, lever machines that are still used, particularly in the northeast part of the country.

But they were concerned that--this new voting system was coming on to the market--had been for a little bit of time at that point--but was starting to make a dent into their market share, and they were interested in what kind of things were happening.

That new voting systems at that time was the punch card system, which is, in fact, now used by 31 percent of the registered voters in this country today.

ZACK: How do you know that 31 percent of the registered voters use that piece of equipment?

BRACE: We are unique in the country. We compile, and have since 1980, what kind of voting system is used in every single county in the country, as well as in New England at the township level, and township level in Michigan, Wisconsin and Minnesota.

ZACK: Are you the only company in the country that knows that kind of information? And do you provide it to government agencies, for example?

BRACE: Yes. We have been compiling this for a long time. The Federal Elections Commission comes to us for the information, and when there is the closeness of this election, we published--we put up on our web page our most recent study of the type of voting systems used. And as a result, for the past two and a half weeks, my phone has been ringing off the hook, as the many members of the press have come to us to inquire about different kinds of voting systems and voting machines.

ZACK: Has your opinion regarding the custom and usage of these machines appeared in various publications?

BRACE: Yes. I've been quoted by all the major networks, CNN, NBC, that sort of thing, as well as papers across the country in terms of voting data. And many of the newspapers and publications have come to us for data that we have in fact for them, themselves, to do their own kind of analysis.

ZACK: Has the Federal Elections Commission ever retained you personally to review custom and usage of voting equipment?

BRACE: Yes. We've actually had several contracts with the Federal Elections Commission, starting back in the mid-'70s where I began to review what kind of voting equipment was used around the country and was moderator of a panel that was done around the country on uses of different voting systems, looking at the pluses and minuses of the different types of machines that are there.

ZACK: Were you the lead investigator for that study?


ZACK: And were you again retained in the 1980s by the Federal Election Commission?

BRACE: In the 1980s by the Federal Elections Commission? We've had numerous works with the Federal Elections Commission for the past two decades.

ZACK: OK. Now what about the Justice Department? Have you ever worked with the Justice Department regarding voting machines?

BRACE: Yes. Back in the mid-1990s, the Justice Department came to us and had us evaluate different voting systems around the country, because at that point in time the two major companies in the elections business were seeking to merge together. And the antitrust division of the Department of Justice came to us to evaluate market share, what would happen if they were to allow those two companies to merge together.

ZACK: Are you retained by local and state legislatures in their decision-making process regarding the purchase of different kinds of election equipment?

BRACE: We have been retained in the past by both state and local governments to help them evaluate the different kinds of voting systems that might be available to them, to take a look at their own local particular circumstances and how each different type of machine would apply or might cause problems for them.

ZACK: And those are local and state legislative bodies that contain both Republicans and Democrats and controlled by both parties?

BRACE: Yes, that's correct.

ZACK: And the cost related to purchasing this kind of equipment, is that a very substantial cost?

BRACE: Absolutely. And that is one of the problems of election administration in this country today. There is not the funds available to election administrators to modernize their equipment. Unfortunately, election administration tends to be the low person on the totem pole.

It is funded by county funds, many times, not by state funds. And county governments are more interested in making sure that the road potholes are fixed, as opposed to paying for multiple million dollars worth of new voting equipment.

ZACK: Have you personally reviewed the actual equipment that was used in Dade County and in Palm Beach County during this last election cycle?

BRACE: Yes, to the extent that I could. I came down just three days ago to take a look at both Miami-Dade as well as Palm Beach in trying to decipher their type of equipment, as well as the usage and storage and what kind of maintenance they do on their equipment.

ZACK: All right. Did you know Mr. Leahy, the Dade County supervisor, before you made this inspection?

BRACE: Yes. David has been a long-time friend of mine, probably back into the '70s, I believe.

ZACK: As a matter of fact, the state of Florida election supervisors have meetings twice a year where they gather together to discuss their issues and their problems. Do you attend those meetings?

BRACE: Yes. The Florida supervisors are one group of individuals that I do try to attend all their meetings. We have several clients down here. We also have a type of software to help county election administrations in drawing and maintaining their precinct boundaries and interfaces with their voter registration system. So as a result, I'm actually down here quite frequently.

ZACK: All right. I understand that there are various kinds of voting systems: punch card, lever machines, paper ballots, optical scanners and electronic equipment.

BRACE: Yes. That's correct. Those are the five major categories...


ZACK: I don't want to spend our time, our limited time, on anything other than the equipment that was actually used in Dade County and in Palm Beach County. Is that all right?


ZACK: And I also want to make clear and make certain that I understand that you don't represent any manufacturer of any equipment so that you would have any interest whatsoever in promoting one kind of equipment or another.

BRACE: No, absolutely not. The various manufacturers come to us...

SAULS: I think you answered his question. You don't have any interest.

ZACK: As we say here, you don't have a dog in that fight, right?

BRACE: That's correct.

ZACK: OK. Now, sir--that will be the last time we hear about dogs up here.

The fact of the matter is, sir, is that you did look at the equipment, and you have with you, I see in front of you, a piece of equipment. Would you tell the court what that is? And do you intend to use it in a way that would assist the court in understanding how the equipment works?

BRACE: Yes. I brought along a piece of punch card equipment that I've had since probably sometime in the late '70s so that the court could see the actual equipment. I know that the court ordered two pieces of equipment from each of the two counties to come up with the ballots, too, but I wasn't sure they were going to be available here, so I brought these.

While I was down in Miami and Palm Beach, I did get the actual ballots from both of those jurisdictions so that the court could see how the ballot was laid out also.

ZACK: All right. With the permission of the court, I'd like you to show the court the piece of equipment itself that you have before you.

SAULS: Just a minute.

ZACK: Yes, sir.

SAULS: I don't know if...


SAULS: ... to conduct some demonstration, and we've got, what is it, a 70-year-old--a 1970s version here, why do we need to look this one, if we have another? Well, we'll have to look in Mr. Greenberg's trunk...


SAULS: If we've got a machine specifically, what county would this one be representative of, sir?

ZACK: This, Your Honor, was used in both Miami and Palm Beach. And both of them have machines that are the same age as this one.

SAULS: I understood there were two machines, two types of machines, that we have, and there in--oh my goodness, who's going to tell us where they are in those boxes to go get them out of the vault?

ZACK: Judge, I might be able to help here, if the court would allow.

SAULS: Yes, sir.

ZACK: The reason that the equipment bought in the '70s is important is that most of the equipment that was used was bought in the '70s. I think that's very important and I'll get into that with the witness.

SAULS: Well, if you want to establish a predicate for that, I think that--he's already standing to object, so you'd have to establish a predicate for that before this witness could continue.

ZACK: I'll be happy to do that, Judge.

SAULS: And if you have to have--Mr. Beck, for what purposes do you arise, sir?

BECK: Well, I do object to having a demonstration with a machine that doesn't come from the counties, with no foundation for when the counties did buy their machines.

And also, Your Honor, because there's no foundation that this man, who's a demographer by profession, maintains his machine the way that voting officials maintain their machines in the actual counties.

ZACK: It's not being used for that purpose, Your Honor.

SAULS: For what purpose is it being used?

ZACK: It's being used so that you can understand how the machines are put together. It is supposed to be merely to help the court in understanding this piece of equipment. Now I'd be happy to use the actual machines.

The opposing counsel asked for us to bring that over to their office last night so they could inspect it. They inspected it last evening. They know about it; they were well aware of it; there's been no objection filed up to this time; and we are going to establish, Your Honor, that the same mechanism is what you'll find--when we take a break, we can actually bring in the other machines and show you any differences. Of course, on cross-examination, they can explain any differences.

We're here just to use the machines so the court can kind of get a feel for how the machine works, the custom and usage of that machine, and how Your Honor can see that the component parts and how the component parts fit together.

SAULS: Is there any objection to that?

BECK: No, Your Honor, if that's all. Because I thought he was going to sit there and try to make dimples on this machine, and show Your Honor how easy it is. If he's not going to try to do that, if he's just going to show you how the machine is put together...

SAULS: Is that the intent, only that, Mr. Zack?

ZACK: Yes, Your Honor. We don't have dimples.

SAULS: Well, then, you can utilize that I suppose as a visual aid, an in-motion, a moving visual aid. And then if we need the others, let me ask the clerks to confer as to how, if they've got some sort of inventory where we would know specifically where those items are and if the parties request them, then we might retrieve them at an appropriate time.

ZACK: Your Honor, I'd like the record to be real clear about this point. We went to Dade County and asked to see the actual machines. We were told that they were in a warehouse and secure and we could not see the actual machines. That is in Medley, Florida. So we were shown a couple example machines that were used to demonstrate to voters how to use the machine. So what we did is we thought the best thing for us to do is to bring this to the court, and we'll proceed on that basis.

Would you please...

SAULS: On that limited basis, proceed.

ZACK: Would you proceed, Mr. Brace, to explain to the court how the machine--I'd like you to take the machine apart, first of all, so you can show the court the component parts of the machine...

SAULS: Leave it there...



SAULS: I'll hold over.

BRACE: OK. That'd be fine, Your Honor.

Yes. The basic machine on the Votomatic punch card devices sits in a polling booth that has privacy shades on both sides for security of the voters.

SAULS: I understand.

BRACE: Independence. And the voting machine itself has a number of pages where the ballots actually are that shows the candidates' names that are on the ballot, OK. The candidate names in these kind of punch card devices are not on the physical ballot itself. In fact, I brought along some demonstrator ballots. These are exactly like the type of ballots that a voter would receive, and you can see that there's no names on the ballot itself.

ZACK: Your Honor, for the record, I think it's important that the record be clear that we will just introduce one of those, if you tear that off, as our next numbered exhibit, Your Honor.

BRACE: Sure.

SAULS: Which, Mr. Clerk, would be...


SAULS: Fifty-two? I'll just make a note here and then we'll hand it up to you.

BRACE: Yes, sir.

SAULS: I hope I didn't--I hope I didn't spoil it.


SAULS: All right.

BRACE: No, you didn't create a chad yet, Your Honor.


And so one of the distinctive points of these type of voting machines is that the voter doesn't see on the physical ballot the candidates' names. He has to understand that punch number 5 is Al Gore, punch number 3 here is George Bush, at least for Palm Beach's standpoint.

And so these ballots continue, and with each election they put different ballot pages in this assembly. This assembly comes off, the voters can't take that off, it's secured by a hinge down there that can be locked so that the voter can't get into this. But, underneath the ballot pages, there's what's called the ballot mask. And those are prepared for each election to show what holes are eligible.

SAULS: Counsel, can you see?

ZACH: I think Counsel is familiar with it. And they have their own.

BECK: I can follow, Your Honor, without going up there.

BRACE: And, so it's important that the correct holes are punched so that when a voter comes in he has the eligible holes there on that regard. Underneath there is a template, it is called, it is a plastic piece that has a pre-existing holes that are styled like a funnel. If you were to look at it from the side, these holes are big at the top and narrow in the bottom of it, so that a stylus, which is what this item here, when it goes around there, it slips into that hole and can go through that hole.

What happens is that the voter pushes through the mask, through the template, and the ballot is then located underneath this template, because the voter, if he did things properly, puts the ballot there and lines up the two red holes. That secures the ballot in there, and when it goes through that template, he then punches out the hole.

That's how the device is designed to work. When he punches out that hole there, that is called a chad. That chad is held to the card by four corners, and the system is designed, if it's working right, to take that chad as it's punched through, there are 13 rubber strips here. And those rubber strips are designed that when the voter takes the stylus, pushes through the card, into the rubber strips, it pushes the chad down through the rubber strips into the troughs underneath.

At that point in time, when the voter pulls the stylist out, that action and the properly maintained rubber pieces grab ahold of the chad. Okay. That's how it's designed to work. But, unfortunately, it doesn't always work that way, Your Honor.

BECK: I object and move to strike that last, volunteered statement about how it always works.

SAULS: Let the record show and reflect.

ZACK: Does it always work that way, sir?

BRACE: It's designed to work that way. The voter, if he votes correctly...

BECK: We object to the court.

SAULS: Hold on, just a minute.

What's the objection?

BECK: It's beyond any area of expertise that this witness has established. I think he's a professional demographer, and doesn't have the experience with how the actual machines work in the field.

SAULS: All right.

Sustain the objection, subject to laying of proper credit.

ZACK: All right, sir.

Have you in fact witnessed how the machines work in the field?

BRACE: Yes. For the past 20 to 25 years, I've been out in actual elections, on Election Day, observing how these type of systems are utilized, as well as other kinds of systems. It's something that we do.

ZACK: Let's stay with this system.


ZACK: All right.

Now, did you, during your examination of how the machines work, did you talk to maintenance people all over the country and personally observe how the machine works?

BRACE: Yes. That's one of the things that I do quite a bit of, to try to see if they, from a maintenance standpoint, have experienced any kind of problems with these kind of machines.

And what many of them have told...

BECK: Your Honor. We're now getting into hearsay.

SAULS: Sustained.

ZACK: Your Honor, he's an expert witness. And as an expert witness, he's entitled to tell the court what his opinion's based on. We can explain what his experience is. I believe that under 702, he has more than adequately been presented to the court as an expert witness. And we'd like the court to allow us to proceed on that basis.

SAULS: Do you wish to take the witness on voir dire?

BECK: Well, Your Honor, it's more of an evidentiary point, clearly, and that is that is not...

SAULS: He says he's an expert witness and he's going to ask for an...

BECK: Sure, I'll take him on voir dire.

SAULS: Of course, no witness can parrot hearsay, but in their investigations, they all understand what the rules are with respect to its utilization.

ZACK: Right, we talked about what his personal observations were, Your Honor.

SAULS: Mr. Beck?

BECK: Good morning, sir.

BRACE: Good morning.

BECK: My name's Phil Beck.


BECK: Am I correct that in your profession, what you are basically is a demographer? Is that right?

RACE: I'm more of a consultant. I'm not a demographer by training. I'm a consultant that deals with demography, deals quite a bit with election results, as well as election administration, because they're all connected together. You need to, in order to study the election returns, to know what kind of machines and whether or not those election returns are being slightly varied by the machine types. And that's what I've been studying for the last 25 years.

BECK: Well, in fact, what you've been doing for the last 25 years is things like advising the Democratic Party in redistricting fights, isn't that right?

BRACE: Not the Democratic Party. My clients are state and local governments, both Democratically-controlled and Republican-controlled.

BECK: Were you a consultant to the Democrats in the 1992 redistricting?

ZACK: Objection, Your Honor. This doesn't go to his ability to testify as an expert as to this piece of equipment.

BECK: It goes to what he does for a living, Your Honor.

ZACK: Your Honor, the question is whether he can offer this court assistance in this case...

SAULS: You may...

ZACK: ... on these issues.

SAULS: I'll sustain his objection on the voir dire. Now, we're dealing with just his qualifications at this point for matters that--the subject matter you have go to credibility or believability of this witness and the weight to be given, if any, to the testimony of the expert. But let's just stay on the voir dire, the voir dire, with respect to his qualifications.

BECK: What's your degree in?

SAULS: And his ability to express an opinion about that which he was just asked.

BECK: What is your degree in?

BRACE: My degree is in political science.

BECK: Do you have a degree in mechanical engineering?

ZACK: Objection, Your Honor. 702 specifically discusses a degree is not what is at issue. Before the court is whether he has knowledge that would help the court, particularly in a non-jury setting, such as this is. It goes to the weight, not to the admissibility of the evidence. Degrees are irrelevant.

We have a very limited period of time here, Judge. And I suggest to you that we have established him as an expert, and this voir dire has not done anything to dis-establish that.

BECK: I probably could have been done...

SAULS: Overrule the objection. Give him limited opportunity.

Go ahead.

BECK: Do you have any training as a mechanical engineer?

BRACE: No, not as a mechanical engineer.

BECK: What sort of engineer are you trained as?

BRACE: I am not an engineer. I study voting systems and voting equipment and their usage, and whether or not their usage can cause problems in how votes are being cast, and whether or not they are being counted and cast properly.

ZACK: Do you expect to offer testimony about what happens to rubber as it is hit by styluses in voting machines?

BECK: Your Honor, what his testimony is going to be in the future is not part of what is here. The question is whether he has expertise to testify as an expert as to how the machines are actually used, John.

SAULS: Not as to how they are actually used; we'll have to hear his objections as to each point if this particular witness wishes to move into those areas and we're trying to find out what his qualifications would be at this juncture, just to answer the initial question that was asked.

BECK: Have you ever designed or manufactured punch card machines or any other kind of voting machine?

BRACE: No, as I said before, I don't sell voting equipment at all. I'm not a manufacturer.

BECK: You said that you've been expecting machines. In fact, you didn't inspect any of the machines used in Miami-Dade County, did you?

BRACE: No, as I believe, Mr. Zack said, we were not permitted to go out to the warehouse. We have all, on both sides, been on a very fast track.

SAULS: You've answered his question. You didn't see it. Go ahead.

BECK: And then in Palm Beach, you were permitted to go to the warehouse, weren't you?

BRACE: Yes, I was.

BECK: And they had Votomatic machines just like your personal Votomatic machine, didn't they?

BRACE: They had those, plus the other types of machines that they had.

BECK: And the Votomatic machines were on these little like aluminum or tin suit cases, right?

BRACE: That's correct.

BECK: And they did allow you to inspect them if you wanted to, but you didn't bother to open any of the suitcases, did you?

BRACE: I could have if I wanted to. I was trying to get back to Miami so that then I could come up to Tallahassee on Thursday, so--I was more interested, since I knew the Votomatic machines, I was more interested in the Pollstar (ph), which is where my concentration while I was at the warehouse in Palm Beach, was concentrated on.

BECK: Now, in terms of how the machines operate or any problems that they might have, that's all based on what somebody else may have told you over the years. Right?

BRACE: No, not always. It's also based on various reports that the federal government has come out with.

BECK: Did you bring any of those with you?

BRACE: Actually, I do have the National Bureau of Standards report from the late '80s I believe, showing some of the problems with punch card devices.

BECK: OK. And in terms of these hearsay statements from people, maintenance people, you say that you talked to, those were not collected by you as part of an investigation that you did in order to render an expert opinion in this case, were they, sir?

BRACE: Well, the last two days they were, in terms of rendering opinion in this case. Previously, they were to--they were obtained in order to get a better understanding of the types of problems that these kind of devices show.

BECK: Your Honor, we renew our objection to this man offering supposed expert testimony on the operation of the machines.

ZACK: Your Honor?

SAULS: Yes, sir?

ZACK: We have one (inaudible) on machines. They took this gentleman's deposition yesterday. There was no objection noted yesterday.

More importantly, this witness is testifying about what he personally has done for 25 years.

SAULS: That's what I want him to do. But if he hasn't been engaged in investigating and have the familiarity as to the accuracy of these machines, then this witness doesn't have any qualifications to do that.

ZACK: I'll ask him that question, Your Honor.

SAULS: Yes, sir.

ZACK: For 25 years, have you personally used these machines to determine the custom and usage of the machine?

BRACE: Yes, I have. It's been a normal course. I demonstrate these machines all over the country. I actually take this machine with me when I go give speeches so that people could see how the machines operate. And I utilize that when people from foreign countries come to my office. They're always interested in the different types of voting equipment, and I use them to show them how they operate.

ZACK: We want you to limit your response to your own personal observations. Is that clear, sir?

BRACE: Yes, sir.

ZACK: Your Honor, I would tender him again as an expert.

BECK: Your Honor, isn't--I'm sorry (inaudible). As far as the only machine that you have, you've never had any problems with that machine, in your own personal observation. Isn't that right, sir?

ZACK: Your Honor, I object to that. That's not relevant to whether he can be an expert.

SAULS: What I want to find out is, does the witness have any experience or qualification, or special qualifications or knowledge of his own as to his work, and dealing with any problems or non-problems with these machines. Just being able to demonstrate and show them to potential customers or whatever, it does not give those qualifications.

If there's some information, or some basis that he has--and the only thing I've heard so far is there's some report from the late 1980s that he has read, I assume in conjunction with his normal occupation. And if that is what he intends to rely on, then I suppose that's what he intends to rely on.

ZACK: No, Your Honor, that's not the only thing he intends to rely on. What he intends to rely on is what we've presented to the court, and that is 25 years of experience dealing with these kinds of equipment. The fact of the matter is, there's no one in the country who has more experience than he does.

And you, as tryer of fact, not with a jury, but you sitting as a judge, have particular knowledge of the weight to be allowed to his testimony, one way or another. The fact is, he said...

SAULS: Well, I'm going to go ahead and admit it on the basis that I understand. I'm going to give it--we don't have a jury, and I'm going to give it such weight as it may deserve, based on whatever the basis for and the foundation for the opinion that he has.

ZACK: Thank you, Your Honor.

SAULS: All right.

ZACK: Let us proceed, sir, in describing to the court what your machine actually shows as far as what occurs when the top part of the ballot is removed. Is there a plastic piece?

BRACE: Yes. And I demonstrated to the judge the plastic piece, the template, that we had here.

SAULS: Yes. I've already seen that.

ZACK: OK. Now, when you went to observe the machines, you personally observing the machines in Palm Beach County, was there a plastic template that you observed as well?

BRACE: Yes. Each machine has a plastic template. And it's important to look at the usage around the plastic template, particularly in various spots on the template itself. What I was observing, particularly in one particular precinct that had a very high undervote, was, in fact, scratches on the left side of the template, which is caused by the type of stylus that is used in West Palm Beach with those equipment.

KLOCK: Your Honor, object.

I'm confused. I thought the man testified that these machines were inside a box. And now he's testifying as to what was inside the box he didn't open.

SAULS: No, he didn't. I don't think there was any testimony that he didn't open the box. He was asked to describe how they were kept or stored down there.

All right.


BRACE: The machine that I observed, or the multiple machines that I observed, were the Pollstar (ph) machines that were out, available for inspection. They were in cardboard boxes.

ZACK: Let's make this very clear.


ZACK: There are two different types of equipment that were used in Palm Beach, correct?

BRACE: That's correct.

ZACK: And what are their names?

BRACE: One is the Votomatic machine, which is what I have here, and the other one is the Pollstar machine, generated by a different manufacturer. It is in essence identical because--in the middle piece. the Pollstar device is just a short, narrower piece, but it has the same basic design as what's in the Votomatic machine.

ZACK: Your Honor, we would request...

SAULS: Hold on. Let me ask...

ZACK: Yes.

SAULS: ... if I may interject here.

ZACK: Please, I'd like you to, Your Honor.

SAULS: What's the name of the other? We had, you said, Votomatic, and then what's the name of the other, Pollstar?

BRACE: The Pollstar is their generic name, Your Honor.

SAULS: All right. How do you spell that, sir, for the reporter?



BRACE: Yes, sir.

SAULS: All right. Thank you.


SAULS: Pardon me, Mr. Zack, go ahead.

ZACK: No, appreciate it, Your Honor.

What's more, Judge, when we take a break and we actually have the Pollstar here--I'll find out where it is--we'll show the court and further illustrate about the testimony being accurate.

SAULS: You may proceed.

ZACK: All right, sir. Now, tell us, you actually saw various Pollstars, more than one?

BRACE: Yes. I've picked up about 25 or 30 to take a look at them, that had been used in different precincts.

ZACK: Let's talk a little bit about how you ultimately went up to Palm Beach. Is it a fact, sir, that we attempted to have you examine the equipment the morning after you arrived, but we were told that at 7 a.m. that equipment was on a bus and you had to come up that evening, no matter what time, to look at it?

ATTORNEY: Your Honor, I object to a lawyer asking a witness what the lawyer was told (inaudible).

ZACK: Your Honor, I'm trying to...

SAULS: Rephrase the question. Go ahead.

ZACK: All right, sir. What were you told is the reason why you had to go to Palm Beach in the middle of the night?

BRACE: I needed to go to Palm Beach Wednesday night, which I drove up to, because the machines that were going to be shipped up to Tallahassee were being packed up and shipped at 7 a.m. on Thursday morning. And so I went up to Palm Beach Wednesday night, got up there about midnight. The emergency center was locked up and you couldn't get into it.

And so I came back at 6:30 in the morning to observe this packing of the ballots, as well as the two devices that were coming up. Those two devices had actually been in the equipment manager's truck that he had taken home with him that night, that Wednesday night, so they were not secure or locked in with the ballots themselves.

ZACK: Now earlier that day, did you personally observe the sample machine, or two machines, that were provided by Mr. Leahy in Dade County?

BRACE: Yes, I did.

ZACK: And did you talk to anyone during the course of examining that machine?

BRACE: Yes. I spent quite a bit of time as Mr. Leahy was conducting parts of--I don't know if it was recount, but at least the packing up of ballots process, so he was quite busy, but I talked with John Klauser (ph), his administrative officer that's in charge of procurement of the machines. And we talked for some time about their experiences in Dade County with the types of machines, the maintenance that they do...

KLOCK: Your Honor, I object. This is all hearsay.

ZACK: Your Honor, we're going to get into what Mr. Klauser (ph) says is admission against interest. Clearly, what he said is an exception to the hearsay rule. And we'd like to proceed with this, Your Honor.

SAULS: Mr. who?

ZACK: Mr. Klauser (ph), who works for Mr. Leahy.

Would you allow us to proceed? He can make his objections...

SAULS: This is admission against interest?

ZACK: Yes, sir. You have to go ahead and allow the witness to testify, Your Honor.

SAULS: We'll sustain his objection.

You can present whatever witness that you wish to to testify about what that witness said, but not through this witness.

ZACK: Your Honor, we'll proceed on that basis.

Do you have any knowledge, sir, regarding from your observations about the channels underneath the voter booths that you personally reviewed in day time?

BRACE: Well, I did not take apart the two sample machines. I note that those two sample machines were not the ones that were used on Election Day; they were sample devices that had been maintained in the county courthouse, or county office building, for demonstration purposes, much as the same way that my device is for demonstration purposes.

ZACK: All right. So let's go now again, now that we've understood Dade, they've used only the Votomatic machine, is that correct?

BRACE: Yes, that's correct.

ZACK: And do you know what model it was?

BRACE: I don't remember. I don't remember. They've got several different models that they...

ZACK: Was it the plastic model or the aluminum model?

BRACE: I believe they had 3Ps (ph), the plastic ones.

ZACK: All right, sir.

And now I'd like you to go back to Palm Beach and tell me, sir, when you looked at the Pollstar, did you look at the plastic sheet or face that you referred to earlier?

BRACE: Yes. The template itself?

ZACK: Could you tell anything from that template at all, from your personal observations?

BRACE: Yes. From my personal observation, I was noticing that there was more extensive wear of that template on the left-hand side than on the right-hand side, which would be understandable and normal in the course of business in terms of the use of the voting equipment.

The left-hand side of these machines gets more use, because when an election administrator sets up the ballot, he generally starts from the left-hand side and moves to the right-hand side as the ballot is filled out, as more contests are listed.

SAULS: May I interject?

ZACK: Yes, Your Honor.

SAULS: Now, the machine that you're talking about now, that you were just testifying about, was that a Votomatic?

BRACE: That was the Pollstar, Your Honor.

SAULS: Oh, it was not the machine that you've got here.

ZACK: That's correct, but it's very similar, but we'll provide one at the intermission.


BOIES (?): It's the machine we're going to show the court at the intermission, Your Honor.

ZACK: And is that indication that you saw, that you described to the court, would that in any way affect a voter's ability to have an indentation in the left-hand column and not have any others in the other columns?

KLOCK: I object, Your Honor. There's no foundation for any expertise on this.

SAULS: He's talking about his own personal observations, that he looked at whatever it is, that--we're trying to figure out what he looked at down there.

ZACK: That's all I'm asking about.


KLOCK: It's not a machine used in the election.

ZACK: Yes, it is.

Mr. Klock, we understand that this is one...

I'm sorry, Your Honor.

SAULS: Tell us, Mr. Witness, what was it that you looked at, that you're trying to testify about?

BRACE: It was the Pollstar machines, Your Honor, that were in use in the elections in Palm Beach.

SAULS: All right. Which Mr. Zack has represented it will be presented up there at some appropriate time.

Overrule the objection.


ZACK: Please tell the court what your observations were and how that affects an indentation in that column?

BRACE: Well, clearly, if in fact the left-hand side is getting more use, that has one particular problem--of much more heavier use of that side of these type of machines, as indicated by the scars on the template, as also indicated by--there's more heavier use of the rubber strips on the left-hand side than on the right-hand side generally, because the ballot is utilized that way. When a ballot is shorter, the right side of the device is not utilized; the left-hand side is what is utilized.

And so you find that that left-hand side is much more frequently used. That is, in fact, where the top office on the ballot is placed--in this instance, president of the United States.

ZACK: And were you, from your own personal observations and use of the machine, able to make indentations on a ballot?

BRACE: Yes, I have been able to make indentations. It is something that is possible in a number of different ways. For example, voters don't always follow instructions. The directions are to put the ballot inside the booth--or inside the device, and put the ballot over the red dots on the top of the device.

However, when a voter, particularly a voter that may have been an absentee voter much more frequently--an absentee voter is actually sent a card, they are not sent a device itself, but they are sent a card like this with a ballot book. And the absentee voter has to find the number of the candidate that they want to from the ballot book, find it on the card, and then punch that chad out with the stylus--or with what is really half of a paper clip that they are sent with the absentee ballot.

That is how an absentee voter votes on these type of devices.

What you find with either an absentee--more frequently absentee voter, or a new voter, is that they may not understand that you need to put...

BECK: Your Honor, I object. This is really into the realm of speculation now about what he thinks a new voter might understand.

SAULS: Sustain the objection.

ZACK: Tell us, sir, how you personally were able to do a dimple by placing the card on top, as you started to discuss.

BRACE: Yes. I can create a dimple very easily by simply placing the card on top of the device, as I'm doing here, and simply when you go to push down for the candidate of choice, it's being held by the cardboard underneath the ballot page itself. But there's enough pressure that is being placed on that to create a dimple, which is like what I have right here, Your Honor.

BECK: Your Honor, can I approach so I can see what the witness has done?

SAULS: You may.

BECK: And if I could ask him to back up, I think I followed how he manufactured this dimple, but could I just see where he put the ballot?

BRACE: Sure, I just...

SAULS: Well, I want to inquire, if I may: Is that the instructions to create a dimple, where people will put it instead of putting it where they're supposed to and follow the instructions, they stick it on top and vote?

BRACE: That is something that has been observed, that people do do that, Your Honor.

SAULS: All right.

BECK: Your Honor, I think your question was, was that the instructions.



BRACE: Well, they're not instructed to create dimples; they do create dimples.

SAULS: All right. Sorry, go ahead, Mr. Beck. You had a question I interrupted you with.

ZACK: All right, sir.

SAULS: No, I said Mr. Beck.

Are you finished?


ZACK: Beck and Zack...

SAULS: He put it on top, is what he did.

BECK: And I thought Your Honor's question was: Are they instructed to put the ballot on top...

SAULS: Right.

BECK: ... or are they instructed to slide it into the slot?

SAULS: That's correct.

BRACE: No. The instructions are to slide it into the slot. But as I said, you can find instances where they don't. You can find--in fact, I observed markings on some of the ballot pages that I looked at that would indicate scratch marks on the ballot pages themselves, indicating pressure being placed on the ballot...

BECK (?): Your Honor...

SAULS: Well, let him finish his answer.

BECK (?): OK.

ZACK (?): Even if you don't like it.

SAULS: All right, you done?


BECK: Now I'm a little bit confused, because I thought he said the only thing he observed were the data point machines. Is that right, sir?

ZACK: Your Honor, if I'm allowed to continue my examination...

SAULS: Well, that you...


SAULS: ... in cross, let him go ahead and finish with his direct.

BECK: All right, sir.

ZACK: So, again, tell the court what you observed as far as scratches on the ballot face itself.

BRACE: On the ballot face itself, I did observe on several of the data, or the Pollstar devices, scratches on the ballot page itself, which would indicate a ballot being left--or put on top of it.

In fact, the other observation that I made is that on the, well, on this Palm Beach ballot, which I have in here--here is the butterfly ballot, Your Honor--that if you place the ballot on the card on top, and you go to push for Al Gore, which is number five, the arrow points to that seven position, Your Honor. And when you push on that seven position, it would create a dimple.

And it has been reported to me...

SAULS: No, don't...


SAULS: We won't go there.

When you put it up there to begin with, if somebody's not going to follow the instructions and even put it in where the two little red things go into the others, so your ballot is properly aligned, if somebody doesn't do that, there's no telling who they voted for.

ZACK: Your Honor, that's not our position.

SAULS: Go ahead. I mean, he's trying...

ZACK: If it please the court?

SAULS: Go ahead.

ZACK: The fact is, if a person intends to vote for an individual, whether they put it in the throat, which is what that's called, is that correct, the area...

BRACE: Yes, it is.

ZACK: ... the throat or not, that is a vote as far as that person is concerned. Is that not so, sir?

ATTORNEY: Your Honor, I object.

SAULS: Overruled. Let me sustain the objection to that.


If we're going to have an hour and a half of witness, we're not going to make...

ZACK: I understand, Judge. If we stop the objections, we'd get right through it.


SAULS: We already need to have a break because I'm getting up there--getting it backwards. Go ahead.

ZACK: Let's see if we can move it along, Judge.

And I want you to answer specifically the ways that an indentation can be made, from your own personal observations.

BRACE: Yes. From my own personal observations, there's actually four ways that an indentation could be made. We just demonstrated one of them, when the ballot is placed on top of the machine. It is also possible that an indentation is made if in fact the machines are not cleaned out on a regular basis and there's chad buildup, and therefore the voter may not be able to push down as firmly. The third reason is that those rubber strips, if they're not properly maintained, may become old, brittle, hard and keep a voter, particularly an older voter, from pushing all the way down.

ATTORNEY: Your Honor, (inaudible) on his expertise...

ZACK: I'm asking for his personal observations, Judge. OK?

ATTORNEY: Your Honor...

ZACK: If we do want to move this along, all we're limiting it to is his personal observations.

ATTORNEY: Your Honor...

SAULS: I don't know how he could personally observe. Has he actually ever done that, when the bottom is filled up...

BRACE: Yes, Your Honor.

SAULS: All right. Well, let him testify about his own experience with it. Go ahead. We'll finish up, then proceed.

Just testify about your own experience with it, if you will, sir.

BRACE: Yes, sir.

And so the rubber strips could cause an indentation by being too hard and your not being able to push through the chad. And then, finally, the throat on that template is like a funnel, and I have observed that if you put that stylus in on a slight angle instead of straight up and down, then that will actually create a dimple, an indentation in the card, but you're kind of caught part way into that throat and you can't create the full vote by pushing out the chad.

ZACK: OK. And I want to talk about the stylus itself. There's been a lot of discussion about the machine, a lot of discussion about the ballot. There's been very little discussion about the stylus. Let's talk about the stylus, and the effect it has on the person's ability to vote or indent a ballot.

What kind of styluses are there, sir?

BRACE: There's actually a number of different styluses on the marketplace that various vendors or supply houses sell. I have two of them here, the original one that came with the Votomatic, which has a more rubber tip, or a rubber piece to it. The end of the stylus is a metal piece that the manufacturers found early on that you needed to use a serrated stylus, so that the end of that stylus is like a screw, Your Honor, you can see the slight serrations on that end. That helps, they've determined, it helps to pull off that chad as the stylus comes back up out of the rubber, from that regard.

So different styluses work different ways. The stylus that Palm Beach uses with their Pollstar are not rubber, they're harder plastic, and they have a needle point on the end of it, as opposed to a serrated end.

That needle point is important, Your Honor, because that's the one that would create--is more likely to create the scratches on the template that I was observing in Palm Beach and is more likely, if it's not pressed all the way, to create the kind of dimples that we've been talking about, or indentations.

ZACK: Are there styluses that are sold where the rubber point is flexible that would avoid the problem that you described of causing a dimple and would allow it to go in the channel?

BRACE: Well, the stylus piece itself is not rubber, that's metal itself.

ZACK: Talking about the handle.

BRACE: The handle, yes, is rubber, so that it can bend. There's one style also that is made for handicapped voters that has a large ball on the end of it. That actually applies quite a bit of pressure by just putting your stylus on the ballot.

ZACK: Does Dade and Broward use the rigid plastic handle?

BRACE: Well...

SAULS: If you know. If you don't know, say you don't know.

BRACE: I don't know. I don't know about Dade.

ZACK: All right, tell me about Broward, or Palm Beach, excuse me.

BRACE: Palm Beach? What I observed, and this is one of those, is the stronger plastic stylus.

ZACK: Is that one that was actually given to you during your investigation?

BRACE: Yes, it was.

ZACK: And is that one of the reasons why you could have an indentation in the far left column, and not an indentation in the other columns?

BRACE: Well, clearly...

ZACK: From your own personal observation?

BRACE: Yes. Clearly if a voter is--and I have observed and done myself, that as you start on the machine and first usage is on that lefthand column, you get trained and used to voting the further to the right you go. So that that left-hand column is more almost of a practice area. And that's where you have the better likelihood of an indentation that becomes more secure as your knowledge of the machine becomes more used, as you go further down the ballot.

You're more likely to have a firm chad being pushed out further down the ballot.

ZACK: I'm going to finish this area with one or two more questions. Would you now tell the court the various reasons why you could have an indentation on the left side and not on the right, any of the other columns, from your own personal observations and expertise?

BRACE: Yes. Particularly because as I explained the left side gets more use, you have the better chance of the left side filling up with chad or having larger deposits of chad, because that is the more frequently used area of the machine.

ZACK: OK. And would the hardening of the rubber that you described from your own observations have any affect?

BRACE: It is possible that hardening of the rubber could have a problem. Again, in Miami, I wasn't allowed to see the rubber.

ZACK: Right.

BRACE: But it would certainly be one reason why ultimately you need to take a look at the ballots and see whether or not the indentations are there.

ZACK: Very good, sir.

Now, you referred to a report that you've studied that Mr. Beck discussed. Is that the "Accuracy, Integrity and Security in Computerized Vote Tallying," from the United States Department of Commerce?

BRACE: Yes, the National Bureau of Standards: Roy Saltman (ph) was the author of that.

ZACK: Did that report discuss why a hand count is always necessary and more reliable than a machine count?

BRACE: Yes. It actually contains a section that identifies that a hand count, a manual...

BECK: Your Honor.

SAULS: Hold on; just a little bit.

BECK: Could we see the report? Did they introduce the report?


ZACK: Yes. I would like to do that, Judge.

Thank you.

I'll be happy to do that. I think that's a good idea.

Here's the whole report.

BRACE: That is my only copy, and it's an old one, so I'd like to have a least a copy of it back.

ZACK: Let me give you--here's the part that we're going to introduce.

BECK: We want the whole report.

(UNKNOWN): Actually, I wanted to tell--that's fine.

ZACK: We'll mark that, Judge, first, and then give it to counsel.

I have some more questions.

SAULS: While you're doing that, we'll go ahead. And if anybody would want to go ahead and take a recess?


SAULS: Let's recess until 20 until the hour. It would be 20 until 12 noon.

ZACK: Thank you, Your Honor.


SAULS: OK. Thank you.

ZACK: Your Honor, if it please the court, we have a little bit of a logistics problem that I've been discussing with your clerk. Apparently the machines are here, and it requires the court to order that they be brought to the courtroom for them to actually be brought here. We'd ask the court to do that at this time.

SAULS: You need them for your examination? Is this witness going to be on all day?

ZACK: No, sir. Matter of fact, we'd like to...

SAULS: They just asked me about that, and I told them that they could bring it as we're going here. Apparently we would have--we'll have to take, with all the logistics problems, a lunch break at 1:00, say, for 30 minutes. And I assume that they could bring them at that time, which is what I told the clerks. But if you need them for this witness, then now Ms. Dillon (ph) has already gone downstairs. Go retrieve the machines.

ZACK: Judge, I'm going to be very brief. I'm almost through. Except for the machines, I would be through, for all intents and purposes. And we will...

SAULS: Well, that was my fault, because I stopped them from getting it.

ZACK: We'll deal with it, Your Honor.

SAULS: All right. Go ahead.

ZACK: Another way we could do it, like I say, I only have one or two questions.

SAULS: Let's go ahead with what we can do with this witness...

ZACK: Very good, sir.

SAULS: ... if it's satisfactory, or we'll move to cross-examination while we're waiting and then you can come back on direct.

ZACK: All right, sir.

Now, sir, we were talking about a report, which is exhibit number 53, and it has Section 4.13.3. I guess you need to have the report.

BRACE: I believe it was on her desk, Your Honor.


ZACK: May I approach the bench, Your Honor?

SAULS: You may.

ZACK: Does that report deal with the importance of having a hand count in close elections?

BRACE: Yes. It cites on page 84 a number of instances of failure to provide for a partial recount, particularly in the punch card jurisdictions, particularly in the mid-part of the '80s, one of which was in fact in Palm Beach County.

ZACK: And that report was put out by the U.S. Department of Commerce, National Bureau of Standards?

BRACE: Yes, that's correct.

ZACK: And, sir, have you personally witnessed hand counts?

BRACE: Yes, I have, around the country.

ZACK: On numerous occasions?

BRACE: I don't know how many, but I have seen a number of hand counts.

ZACK: Based on your personal observations, are hand counts more reliable than machine counts?

BRACE: When you have a close election, a manual hand count is the only way of knowing exactly how many votes were cast for each candidate.

ZACK: All right, sir. Do you know whether or not, from your own personal knowledge, the Republican Party in New Mexico two days ago asked for a hand count?

BECK: Your Honor, this sounds like hearsay as the basis of...

SAULS: I'll sustain.

ZACK: I have a document here I'd like to introduce as evidence.

SAULS: I'll sustain the objection. What does this witness know about...

ZACK: I'll introduce it otherwise, Your Honor.

All right, sir. And in your personal experience doing hand counts, did you find that the hand count was in fact more reliable?

BRACE: Yes. It is really the only way of absolutely knowing for sure how many votes were cast for each candidate. And when you're in a very, very close election, that is the key.

ZACK: Your Honor, I have no further questions of this witness at this time. If Mr. Beck--and we talked about it--would like to go through his cross-examination, and then I would have the machines here, I'll walk the court through the machines, and we're through.

SAULS: Leaves are granted.

BECK: What would Your Honor prefer? If you want me to go now, I'll go now.

SAULS: Yes, sir. Yes, sir. And he can reopen to finish his direct, and then you may recross.

BECK: I need just a second here while my colleague Patrick Strong (ph) helps me set up.

Do you have that report up there with you, sir?

BRACE: Yes, I do.

BECK: Could I borrow that from you?

BRACE: Certainly.

BECK: And I think you said that--you were talking about how manual recounts are a lot better than machine recounts. Was that one of the last subjects you addressed?

BRACE: Yes, it was.

BECK: Now, could you, Patrick, switch over to this device?


Now, I apologize for the--I'm going to move it up just a little bit. There we go. Since we only have one copy. This is page 36. Up there kind of in the middle of where I've got this thing on the screen, would you read out loud please what it says under the heading "inaccurate counting"?

BRACE: Yes. I don't know what particular subsection that was dealing with.

BECK: It's dealing with the subsection here of "vulnerability of paper ballots." So go ahead: "Inaccurate counting."

BRACE: OK. It says, "Large counting"--or "Hand counting of large numbers of paper ballots..."

ZACK: Your Honor, I object. This has to do with paper ballots, not machine ballots. I limited my discussion with him to the ballots actually used in these proceedings, because it's the only thing that's relevant to these proceedings. This is a paper ballot situation, not the ballots that were used in these elections, Your Honor, or that's in exhibit in this court.

BECK: Well, Your Honor, I don't...

SAULS: Where's the report? Is that the report?

BECK: Yes.

SAULS: That's the only report we've got.

BECK: Well, I just got it two minutes ago.

SAULS: Yes, I understand. All right.

BECK: (inaudible) 26, Your Honor. My point, I guess, would be that human inattentiveness, because you're spending a long time counting ballots, isn't going to vary whether it's a paper ballot or it's a piece of cardboard or any other kind of ballot. What they're talking about there is human beings get tired and lose attention and don't do as good a job.

ZACK: Your Honor, this is a vastly different situation...

SAULS: I'm going to sustain his objection, I believe, because that's in 3.2. Apparently under 3 the types of vote tallying systems, their vulnerabilities and their national distribution, and then we proceed first with the type of for paper, apparently paper ballots, where you mark X's or what have you. Then you'd have the next section, 3.3, lever machines. Then the next sections are 3.4, punch card voting, 3.42, types of punch cards, et cetera. And then we have 3.4--4.4, which deals with the vulnerabilities of Voteamatic systems.

So apparently that may be the area. And I realize you've only had just a few moments...

BECK: Right.

SAULS: ... to look at this so you can't get that...

BECK: Well, let me ask you...

SAULS: ... with this. I don't know. It may be unfair to you to try to proceed to cross-examine with them having introduced this perhaps by surprise. This wasn't furnished to counsel, and then all of a sudden it appears here. And in all fairness, I think they ought to have an opportunity to look at all of the--the whole report before they have to examine.

ZACK: Your Honor, we weren't going to put it in. It was Mr. Beck who said let's put it in. We agreed.

BECK: Well, Your Honor...

ZACK: It was his suggestion; we were going to just testify about it.

SAULS: Right.

ZACK: So I don't know how...

SAULS: Well, you can't.


UNKNOWN: (INAUDIBLE)... you're putting us in court to do.

UNKNOWN: Well, what I asked the court to do...

SAULS: You can't testify about anything unless it's in evidence.

ZACK: Well, Your Honor, you can testify with no personal knowledge regarding it, and Mr. Beck's the one who suggested it.

SAULS: No, no. As to his own personal knowledge, that can cover anything that you've ever read or heard. That's the reason we have rules of evidence.

BECK: Your Honor, may I try to go about it a different way and then perhaps...

SAULS: If you could, I don't want--I'll stop right now to give you that opportunity.

BECK: I don't want to stop the show for that.

SAULS: All right, go ahead then.

BECK: And maybe, Your Honor, if I have an opportunity over lunch I can come back to this, even though it wouldn't be within the scope of whatever they're going to do with the new machines.

SAULS: I'll make the exception on this, on this--in this case.

BECK: Thank you, Your Honor.

SAULS: All right, go ahead.

BECK: While on the subject of manual recounts, I take it that one of the things that you observed over the last few weeks was this Herculean effort that the different canvassing boards were undertaking to examine these cards, didn't you?

BRACE: Yes, I was not there, but I certainly had CNN on all the time.

BECK: And because of the exigencies of time, people were working into the wee hours of the night, right?

BRACE: That's correct.

BECK: And would you agree, sir, that one problem with a manual recount of any kind of ballot is that human fatigue sets in, crankiness sets in, inattentiveness sets in, and all of that can influence the accuracy of a manual count?

ZACK: Objection, Your Honor. He says this gentleman was not qualified to testified about any of those areas on direct.

SAULS: Overruled. He's on cross.

BRACE: Certain...

SAULS: He's testified as to a wide range of subject matters. Go ahead.

BRACE: Certainly one of the problems that election administrators around the country have is the extreme tight timeframes that all election administrators work under. Recounts are a similar kind of circumstance.

But when you take a look at a very, very close race, the manual recount, while it takes a long time and people are very tired and people understand that, the manual recount is really the only way of determining exact--absolutely how many votes were cast.

Because we are in essence in a tie situation. A 537-vote difference in a presidential race in the state of Florida is too close, given the knowledge that I have of the different types of voting systems and the problems that they cause. That you can only take a look at the actual ballots in order to determine what was the intent of the voter, and that after all is what elections are all about.

BECK: Well, would you agree, sir, that the problems with human inattentiveness and fatigue, crankiness, or even political bias would be more likely to have an influence in how a manual recount comes out, if what somebody is counting is not actually punched holes in the ballot but their perception of whether an indentation exists or a dimple?

BRACE: Well, I think your remark in terms of political bias is wrong. And it's an insult to election administrators all around the country...

BECK: But could you answer my question?

SAULS: Just answer his question, if you will, sir.

BRACE: There is certainly fatigue and different interpretations. I would agree with you that it would be nice to have a single standard everywhere, but Florida--as I understand it, Florida state law gives that standard capability to the local canvassing boards. That's what Florida law says.

I mean, it would be nice to have a single standard, I agree.

SAULS: I believe that you've covered it.

Go ahead.

Let's try to limit our answers now to precisely what he asks, if you will, sir.

BECK: I take it you feel that way about the Palm Beach board, and not just the Miami-Dade board and the Broward board, right?

BRACE: In terms of their professionalism, I think all of them are probably the most professional group of election supervisors in the country.

BECK: No, about how their judgment ought to be respected, rather than substituting some other standard, as Mr. Boies has asked the court to do.

BRACE: Well, certainly, in terms of--you need to take a look at the ballots to find out what the voter's intent. If you've got an indentation, and it's not a circumstance that they cleanly punched out for someone else in that same office, then I would believe that that would be an indication of voter intent.

BECK: And so is your answer that, yes, we should substitute someone else's judgment for the Miami Beach board, but not for Miami and Broward?

BRACE: I don't understand your question.

BECK: I'll move on then.

In the section of the report here on voting with the Votomatic card...


BECK: ... would you agree that there can be problems with the fact that the chads, those little boxes that get punched out, there could be problems just when the chads are manufactured that indentations can be created in the manufacturing process?

BRACE: Well, it's not really likely that indentations--I mean, they are quality-controlled in terms of those. But what you're looking at is an indentation in the shape of a stylus or some sort of device. I mean, an indentation in a manufacturing process is unlikely to be made by what looks to be a stylus that a voter would use.

BECK: Is it your understanding that all nine of the canvassing board members from Miami-Dade, Palm Beach and Broward, when they were looking at these ballots that we saw on television, holding them up in the air and holding them sideways and it seemed almost like putting them on their forehead sometimes, is it your understanding that they were looking for indentations with the shape and diameter of a stylus?

ZACK: Objection, Your Honor. It's not covered under direct whatsoever, what the canvassing board did.

SAULS: I've had to give him--what wasn't covered on direct?

ZACK: On the canvassing board, the canvassing board work is not covered on direct. We talked about the machine and the operation of the machine, not about the work itself.

SAULS: Mr. Beck, you want to re-phrase your question?

BECK: Sir.

Is it your testimony, sir, that the only time that you would consider a dimple in a candidate to be considered for a vote is if the dimple is made by the stylus that comes with the machine?

BRACE: Well, my testimony, and in fact my demonstration to Your Honor, was that you need to take a look at the back of the machine or the back of the ballot, and you can see how there is an indentation on that particular chad when there's no indication of indentations elsewhere on the card. That requires a manual observation to see.

And, indeed, if there are no other votes or no other indentations in that particular office, then I would think that that would probably be a good indication of the intent of the voter.

BECK: Would you...


BRACE: ... Texas law allows.

BECK: Will you answer my question now?

BRACE: OK. I thought I did.

BECK: No. I asked you whether, in your opinion, based on what you just testified to, the only kind of indentations that should even be considered as a candidate to count as a vote would be an indentation that is actually made by the stylus against the card? And I didn't ask you about Texas law, and I didn't ask you about one column versus another. My question is, is the only indentation that should even be considered one that is made by a stylus against that card?

BRACE: Well, certainly...

SAULS: Answer yes or no, and then if you need to explain, do so.

BRACE: OK. That would certainly be the main thing that I would look at...

BECK: You're supposed to answer yes or no.



BECK: Yes.


BECK: Thank you.

BRACE: If I were to rub my finger across there, that could create an indentation, and that obviously shouldn't be counted as an intent of the voter.

BECK: OK. Let me just pick up on that. These cards--actually you're holding a yellow one. Is that a sample ballot?

BRACE: That is what's called a demonstrator card.

BECK: And you are familiar with the fact that the actual ballots that are used are even more fragile than the sample ballots?

BRACE: Yes, that is correct, I understand that.

BECK: And people sometimes pick up those ballots and stand in line before they go into the voting booths, right?

BRACE: Yes--well--no, I'm not--I don't know how Florida law has it in terms of obtaining the ballot when they go up.

BECK: Well, I don't want you to speculate.

BRACE: Yes. I don't know whether they're standing in line for a long time, I don't know.

BECK: You just don't know on that, but you do know that they get their ballot and they take it out and they handle it before they put it in the machine, right?

BRACE: Yes. As I understand it, Florida law provides for a secrecy envelope that the card is put into. They then take that secrecy envelope with the card inside of it to the polling station and take out the card and then put that into the device itself.

BECK: And the way that you just demonstrated that, if I could, sir, you said they take this card out of the envelope, and you held it right here, and then they stick it inside the little slot--that's how you demonstrated it, wasn't it, sir?

BRACE: No. I was holding on to the top part of the card there because it flops--this one has been used quite a bit now, so I was trying to make sure that it didn't flop underneath it.

BECK: And you were holding on with both hands, weren't you?

BRACE: Sure, but you can--you know, you can do it with one hand, too.

BECK: But you did it with both, and your left hand, your finger, was right over the row at the top where people vote for the president of the United States, wasn't it?

BRACE: Certainly that was. My fingernail was not there, but my finger was there, yes.

BECK: And that's the kind of contact with a card that can leave an indentation or a pregnant chad that might be counted as a vote even though there's no evidence that a stylus ever touched that piece of paper; isn't that right, sir?

BRACE: I don't believe that's correct. I'm sitting here massaging this card, and I don't see any indentations on it. And I've been doing it during...

BECK: Of course, you're not sitting there with a magnifying glass, after 14 hours, counting the ballots either, are you, sir?

BRACE: No, I'm not, but you can take a look at the card.

SAULS: I think you answered his question. You said no.

BECK: Let's--rather than try to put this on the screen--well, I'll try it.

This in the section on Votomatic systems. And I'll move it up here.

"Problems of chad in pre-scored cards"--move it a little bit over to the left here, Patrick. There we go.

Could you read that out loud, please?

BRACE: Yes. "Problem of chad in pre-scored cards. Pre-scored cards have presented some difficulties in processing. Either a chad may fall out unintentionally, or a chad that is intended for removal may not be fully removed. In either case, the voter's intent is not accurately recorded."

That's certainly the case--that happens...

BECK: I didn't want you to stop actually. I wanted you to...

BRACE: Oh, I'm sorry, well, there was a...

BECK: Yes, well, I'll move it up.

BRACE: There was a wall mounting that prevented me from reading the next...


BECK: I'm right up here, if you can watch my finger.

BRACE: OK. "A chad that is not intended to fall out may be loosened in handling or may be loosened in the processing of the card through the card reader. Lack of care in tearing off the stub of the card may loosen chad. Undesired removal of chads in reading may be more likely if the design of the reader mechanism requires the card to bend. If the card jams in the reader and is folded or bent, pieces of chad may fall out. Training of precinct personnel in card handling and stub removal and carefully selection of card readers may alleviate this problem."

That was, in fact, the problem that a lot of counties had in the early part of the '70s and the '80s. It was partly caused by smaller cards, or not as thick cards. In fact, the manufacturers took that into consideration, and the cards that we have today, while I agree with you, they're thinner than these demonstrator cards, were in fact better than what was being reported on when this report was done back in the mid-1980s.

BECK: But those problems are still potential problems any time people are handling the cards, right?

BRACE: I don't think it is as much a problem today as it was when the cards were first utilized. And this report helped identify that particular problem. The manufacturers answered that and improved some of these.

Certainly, that had been a problem, and can be a problem...

BECK: Can be.

BRACE: ... but manufacturers have tried to take that into account...

BECK: They've tried.

BRACE: ... improving their stock in their card.

BECK: So they've tried to take it into account, but it can be a problem still; correct?

BRACE: It's possible, I guess.

BECK: And of course, it's also possible that some voter, unlike you, might have long fingernails when they pick up that ballot and do it exactly the way you did; isn't it?

BRACE: Yes, but if you had long fingernails, you'd create a crease, not a punch that's like done by a stylus.

BECK: And do you know whether in Broward and Miami Beach the folks were counting creases in the chads and not just punctures with styluses?

BRACE: I don't know.

BECK: Would you agree, sir, that if somebody just sort of pushed out the chad with their finger by accident, but didn't dislodge the corners, or created a crease in it with their fingernail by accident, that that shouldn't be considered evidence of voter intent?

BRACE: Well, probably not, but I don't see how you could push one out with your finger.

BECK: Oh, you don't?

BRACE: These chads are very, very small, and unless you have very, very, very small hands, I don't know how you could push it out with your finger.

BECK: Well, you talked about how you were able to make dimples with the stylus.

BRACE: Sure.

BECK: And when you did that, you were not trying to vote; you were trying to make dimples, right?

BRACE: No. I was just demonstrating what a voter would do by putting the card there and trying to push the dot.

SAULS: Mr. Witness, Mr. Witness, did I understand you to say you're using a demonstrator card? Are these the same type of actual cards that were used in either of these counties?

BRACE: Actually, these demonstrator cards I obtained when I was down in Miami, in Dade.

SAULS: These are the same types of cards, is what I'm asking you. Do you know this?

BRACE: These are not what a voter uses, Your Honor.

SAULS: Well, all right.

Go ahead.

ZACH: (OFF-MIKE) what actually occurred is we asked for what was used, they gave us a demonstrator. A demonstrator is supposed to represent in a capacity that is the same. Otherwise, you'd have a real ballot and people would be accused of voting...


SAULS: All I'm asking, is this the same--exact same type of ballot, the configuration, whether you call it a demonstrator or not, that was used in these machines down there? That's the representation that's made.


SAULS: All right, then, go ahead, go ahead.

BECK: Well, sir, do you know very much about card manufacture?

BRACE: A little bit. I've talked to the various card manufacturers. I'm not an expert in terms of card manufacturing per se, but I've been through both the plants that manufacture them.

BECK: Well, do you know that when they make these cards that they actually have very, very particular specifications about how thick the paper is on the corner that attaches to the four corners of the chad? How thick that little strip, that corner holder, could be?

BRACE: Yes, I'm aware of that.

BECK: And do you know that they check on a regular basis throughout the day when they're manufacturing these cards to make sure that the thickness of the paper holders stays within specifications?

BRACE: I would certainly hope they would, yes.

BECK: And do you know that sometimes when equipment is used to cut paper, that over time the little knives that are used get dull.

BRACE: Sure.

BECK: And do you know that when the little knives get dull, that then what happens is that the corner pieces of paper that hold the chad in start to get thicker?


BECK: And do you know that when the corner pieces that hold the chad in get thicker, then it's more difficult to puncture through the chad?

BRACE: Yes, that would be another way that a voter could create a dimpled ballot.

BECK: And do you know that when the knives that create the thicker paper get dull, what the manufacturers do is, they use it in a different machine, in a different run, and then they sample ballots?

BRACE: Sure.

BECK: And so therefore, do you agree, sir, that the sample ballot is not just a yellow version of the white ballot that's used to vote, it's basically a reject, because it's harder to punch through than the white ballot is?

BRACE: Well, if you'd like to bring in some white ballots and you get the authority of the court, I'll be happy to take a look at those and see about creating dimples on those.

BECK: Well, did you know any of that stuff before I asked you the question?

BRACE: Sure. No, I was aware of that.

BECK: So the truth is then that the sample ballots are not the same as the regular ballots, are they, sir?

BRACE: They're a little bit thicker, generally, than the regular ballots, yes, so that you probably create a dimple easier than with the regular ballot, but you'd still, I believe, in my use of regular ballots, you'd still create a dimple with those too.

ZACK: Your Honor, I move to strike this. I don't know where it's going. Obviously, we're not asking the court to count dimples on sample ballots; we're asking that the dimples and the indentations on the real ballots be counted. There's no relevancy whatsoever to this entire line of questioning, and I move that it be stricken.

SAULS: Overruled.


BECK: You talked about how you were unable to inspect the machines in Miami-Dade County. Do you remember that?


BECK: And in fact is it the case, sir, that when you asked whether you could inspect the machines in Miami-Dade County, the folks from Miami-Dade said, Sure you can, but only if there's an expert from the other side who's also present when you look at those machines?

BRACE: I had no problem with that.

BECK: Well, did you ever contact anybody or have anyone contact us so that our expert could be there the same time you were to look at the machines?

BRACE: I was not aware of the conversation. It was not told to me that they needed to have someone from the other side. If that was the case, then I have no problem with that, but I didn't say, well, then go find one, because I didn't--I wasn't aware until you told me that that was the conversation, that that was--but that's fine: If you want to have your experts come and look at the machines, that would be good.

BECK: One reason that would be good is that there would be some person other than you and the lawyers who asked you to testify in this case who would be there and be able to confirm or refute whatever you may say about scratches on the templates and that sort of thing, right?

BRACE: Sure. By all means. Maybe Your Honor would like to take a trip down to Miami.

BECK: And when you went to Palm Beach...


BRACE: When you went to Palm Beach...

SAULS: Just answer his questions.



BECK: When you went to Palm Beach and you were able to look at the machines without anybody present from our team, that's when you made these observations about the scratches, right, sir?

ZACK: Your Honor, I have to object for the record, because we filed the procedures; they were outlined by this court. We called Mr. Rutledge, who then got us in touch with Mr. McMahon...

BECK: Your Honor, counsel's testifying here.

ZACK: No, I'm not testifying. He's misrepresenting what occurred.

SAULS: All right. Just a minute. Restate the question, then I'll hear if there's an objection.

BECK: The visit that you made to Palm Beach, where you say you saw these machines with the scratched templates and the other observations you testified about, that was in a visit where nobody from our side was present to view the machines at the same time, correct?

BRACE: Nobody from your side, but there was two members of the press that were there at the same time.

SAULS: Strike the prior question.

ZACK: Thank you, Your Honor.

SAULS: And then we'll rely on the last question and response.

Go ahead.

BECK: Now, this machine is your machine, right?

BRACE: Yes, that's correct.

BECK: And you've had it for 20 years, right?

BRACE: Something like that, yes.

BECK: Would you stick the ballot in the machine, please?

BRACE: Certainly.

BECK: So it's 20 years old. Have you ever changed the rubber strips in your machine?

BRACE: No, I haven't.

BECK: Would you now vote for president please, without trying to make a dimple?

BRACE: Sure.

BECK: Did it work?

BRACE: Yes. A vote for number 5.

SAULS: No, you don't have to say who you voted for.


BRACE: I wasn't picking anyone, Your Honor.

BECK: And if somebody actually puts the card in the machine like they're instructed to and attempts to vote, rather than attempts to make a dimple, it's not all that hard to knock out the little chad, is it, sir?

BRACE: Well, it depends on the template in there. The mask is not a prohibitive measure. The template can be a slight prohibitive.

Remember, you're going into a funnel, and people start into that funnel to get through the hole down below, to then go into the card. I imagine that people could hit the funnel and think they're voting.

BECK: You imagine this?

BRACE: What?

BECK: I said, "You imagine this"?

BRACE: Well, I'm hitting right here. And...

BECK: You're trying to miss your vote, now, right?

BRACE: No, I'm pushing down. And finally it went in.

BECK: Finally? At long last you were able to vote. Is that your testimony?

BRACE: Finally it went in.

BECK: Now, on the question of the stylus, you say that in Palm Beach they have the needle-point stylus?

BRACE: Yes. In Palm Beach.

BECK: And that stylus has a sharper point than the serrated stylus that you refer to, right?

BRACE: That's correct. It's been represented to me that they think that this is actually an improvement on taking the chad off.

BECK: Right.

So that the stylus that they use in Palm Beach, it's been represented to you, does a better job of taking the chad off, than the other kinds of stylus, right?

BRACE: I believe that's what the claim is. I don't know if there's studies on that, per se.

BECK: Well, you haven't limited yourself to things that there's actual studies on when testifying on direct examination, did you?

BRACE: Well, there hasn't been a lot of studies in terms of voting equipment, other than like the National Bureau of Standards, the FEC, which I've reviewed, and that sort of thing.

BECK: You said that--I think it was your theory--that because of the use of the needle-point stylus, that could account for these scratches that you said you saw on the right and left of the machine, is that right?

BRACE: On the template itself is where I observed the scratches.

BECK: On the template itself?


BECK: Now, other kinds of styluses also can make scratches on the template, right?

BRACE: I would imagine it probably could, but I think...

BECK: ... you'd imagine this again?

Actually, if you're just going to imagine it, tell me you don't know.


BRACE: Well, I mean, I--the pinpoint--in fact when I picked one of these up in Palm Beach, the equipment manager there in the warehouse said, be careful, you'll prick yourself, it is sharp. If it's sharp, it's going to go into plastic a lot easier.

BECK: Now when I asked you whether the needle-point stylus, which you've been told by the people who use it and buy it is more likely to actually succeed in dislodging the chad, you told that well, of course, there's been no studies done, remember that?

BRACE: I don't believe there's been any studies. That is the claim.

BECK: Now when your counsel, or Vice President Gore's counsel, asked you whether that same stylus was more likely to leave an indentation, you said, "Yes." And you didn't qualify it at all about how we ought to have more studies before we give opinions like that, did you, sir?

BRACE: Well, what I was talking about was when you have the card on top and you press on it, like you were an absentee voter, then it would give a better indication of an indentation, because you're actually cutting in to the card itself with that hit.

BECK: So you don't need any study if you're talking about if somebody puts the card on top and you're using a pointed stylus to vote, then you say, that's just more likely to leave an indentation, right?

BRACE: It's certainly one way that, yes, you could create an indentation, as I indicated.

BECK: Now in all your years of study and observation around the country, did you find that a lot of people take these ballots and put them on top and vote on top, instead of following the instructions and putting them in that--what's that thing called?

BRACE: Into the throat.

BECK: Into the throat?


BECK: Do a lot of people vote on top, instead of doing what they're told and putting it in the throat?

BRACE: I would hope they don't. And I hope maybe in this demonstration that now people will pay attention and vote the proper way.

SAULS: He just asked you do you know or not. If you don't, say yes or no.



Now if somebody in fact did what you're hypothesizing they do, where they put it on top of the machine and vote, and then if they continued doing voting that way, what you'd be left with is a ballot that for every office, or almost every office, had a dimple or some kind of an indentation. Right?

BRACE: That is correct.

BECK: You would have a pattern of indentations, and not a situation where somebody figured out how to punch the chads through for every single office on the ballot, except there is just a dimple or some kind of marking next to Al Gore's name.

BRACE: Yes, and I investigated that. I asked several people that had been at the recount in Palm Beach...

BECK: I just wondered if ...

(UNKNOWN): Your Honor, can he please (inaudible)

SAULS: Just don't testify about what somebody has told you.

BRACE: OK, Your Honor.

(UNKNOWN): Your Honor, he's asking the question that leads to him answering that way.

SAULS: I understand; that's the reason we stopped it, so he doesn't testify about hear say.

(UNKNOWN): We're going to object to that type of questioning.

SAULS: Let the record so reflect. So this is hearsay.

BECK: So, if he votes on top, and--at least, if he votes on--or go ahead, I don't care, are you going to say that somebody sits there and votes for Al Gore on top of the machine, and then takes the card and puts it in the throat and votes for the rest of the guys?

BRACE: No. No; in fact, what I was saying was that I am precisely hired about that next operation. Wouldn't it make sense if somebody did it on top of the first column? Wouldn't they, in fact, as you were saying, do that in similar vein, down the ballot? And, again, I was not there observing the ballots, but if we could observe the ballots, we could see this. But I was told that there, in fact, was those kind of indentures in the second column also, the vote for U.S. Senator.

So, in fact, there appears to be that pattern. Once they got down the card, they--what I was told, they didn't know if it continued on. But they did observe it on that second page. So, yes, I would expect as you said, that to be the case. But until you manually take a look it and recount it, you don't know.

BECK: So, if somebody voted consistently on the top, I think what you're saying is that yes, indeed, you would see the indentations or dimples on the other offices, and not just the president of the United States?

BRACE: Sure, absolutely.

BECK: And I think, I don't know if you mentioned it, but sometimes people pull it off to the side of the ballot and line it up with the names: Same thing would happen then, isn't that right?

BRACE: That's correct, yes.

BECK: You'd have a ballot where there's a whole pattern of indentations or dimples, and not a ballot where somebody figured out how to punch out all the other offices for the Democrats, and then just put a little tiny indentation for Al Gore?

BRACE: Yes, you would expect that those indentations continued down the ballot.

BECK: When you were talking about indentations, you said, I believe, that it may be more likely that they appear on the left hand-side of the ballot. Do you remember that subject?


BECK: And you had some hypotheses about how that could be explained. Do you recall that?


BECK: But I think you also said that in order to confirm your supposition that the indentations are more likely on the left than the rest of the ballot, you'd have to take a look at all the ballots. Right?

BRACE: Yes, you'd need to take a look at the ballots. You'd need to do that manual recount.

BECK: Well, in fact, you'd needed to take a look at all the ballots, including the ones where people did manage to vote for either Al Gore or George Bush, to see whether or not withstanding, that they left some indentations in the middle and on the right.

BRACE: Sure, if I was a candidate for county commissioner or judicial candidate, I'd certainly be interested in that, too, if I had lost by 537 votes.

BECK: But if you were a canvassing board member, and you were making a decision whether you were going to count indentations as expressions of a citizen's right to vote, you'd want to take a look at all the ballots to see if whether this theory about indentations on the left side stands up to the facts, wouldn't you?

BRACE: Sure, I would like to look at all the ballots, certainly.

BECK: Do you know whether anybody's done that?

BRACE: I don't know. As I understand it, Miami-Dade stopped doing that after a certain number of precincts. So not everything has been looked at. There hasn't been a full count.

BECK: Now, let's get back to your theory about how there could be dimples on a ballot, but your theory that they're going to be on the left side of the ballot, where the presidential race is, and not in the middle and on the right. OK?


BECK: All right. Now, I think you said that one basis for your theory is that rubber on the left side of this machine somehow gets harder faster than rubber in the middle and on the right side of the machine; is that right?

BRACE: No. My supposition was that rubber on the left-hand side is more frequently used because that's where more candidates are placed in all sorts of ballots in previous cases, so that that left-hand side is more frequently used, is what I was talking about.

BECK: Well, what you were talking about was that because of the more frequent use--which you think happens--it's your opinion, as a political science major, that that causes the rubber to get harder on the left-hand column than it does on the rest of the ballot; isn't that right?

ZACK: Objection, Your Honor. Object to the form of it. He can base his opinion on many things, including his own expertise. (OFF-MIKE) or discuss it in a way that was said. I object to the way the question was framed.

SAULS: Sustained.

Rephrase the question.

BECK: Haven't you expressed your opinion that the reason, in your view, that the rubber on the left-hand side of this machine manages to get harder faster than the rubber in the middle and on the right is because you think, from whatever basis, that more frequent use of the rubber makes the rubber get harder.

BRACE: No, it's not that "I think;" I know that there is more frequent use on the left-hand side. When you look at actual ballots in past contests and you look at the number votes for candidates, there is always more votes at the top of the ballot, which in this instance in punch cards, is on the left-hand side.

As voters go down the ballot, they frequently drop off, that's what we call, in the political science division. You have more frequent dropoff as voters are less likely to vote as they get down the ballot. But certainly...

SAULS: Well, thank you, I believe you've answered his question.

Has he answered your question yet?

BECK: No, sir. Actually the question was not whether people vote more often on the left-hand column. My question is: Haven't you express your opinion, whatever your basis is, that because they vote more often on the left-hand column, in your view, that makes the rubber on the left of the machine harder than the rubber in the middle or on the right?

BRACE: It makes it more in use and can therefore cause those kind of problems. Certainly it would be something...


BECK: Can you answer my question about harder...

ZACK: Objection, Your Honor. He's trying to answer it, but gets interrupted.

SAULS: Overruled, he's on cross.

Now, just answer, again, if you would, sir, yes or no. And then if you need to explain, explain briefly. We'll just follow that format with all of our witnesses and we'll move through here.

BECK: And let me make sure that you understand the question. I'm not asking you whether people vote more often on the left. I'm not asking you whether something else happens to the rubber on the left. I'm asking you this: Haven't you based your opinion on your view, whatever it that may be based on, that because people vote more often on the left, in your view that makes the rubber harder on the left than it does in the middle or on the right?

BRACE: Yes, that's correct.

BECK: Now, have you ever tested that in any way, sir?

BRACE: No, I have not tested that. It would be something that would be worthwhile testing with a real machine that has been subject to a lot of use.

BECK: Do you know the name of the instrument that you would use to test that?

BRACE: During a deposition yesterday, it was mentioned, and I don't remember precisely what it is but...

BECK: Before you heard our witness testify about how you can actually measure hardness of rubber, in your whole life have you ever heard of the name of the machine that's used by experts in the field to see whether rubber at one place is as hard as rubber in another place?

BRACE: I'm pretty sure that I had heard it. I don't keep the name of that machine in my memory from that standpoint. But certainly, in my observations and use of the machines and talking with people all around the country, sure, that's been used.

SAULS: Answer yes or no, if you know, yes or no. If we could follow that format.

BRACE: OK, Your Honor.

BECK: I've forgotten the question, so I don't know if it was a yes or no.

Do you know the difference between synthetic and natural rubber?

BRACE: Just roughly, not to any big degree, no.

BECK: Do you know whether the rubber strips that are used in this rubber machine are synthetic rubber or natural rubber?

BRACE: I've been told that they are mostly more a combination of the two. But I don't know that. I'm not an engineer. I haven't tested that.

BECK: Do you know whether natural rubber over time tends to get harder or softer as it ages?

BRACE: I'm not a rubber expert. I didn't claim to be.

SAULS: Yes or no, just if you don't, just say you don't know.

BRACE: I don't know.

BECK: Do you know whether synthetic rubber over time tends to get harder or softer?

BRACE: I don't know.

BECK: Do you know whether natural rubber when it's impacted repeatedly tends to get harder or softer?

BRACE: I don't know entirely.

BECK: You don't know entirely.

BRACE: No, I don't...

BECK: Well, tell us what you do know about that.

BRACE: No, I don't know. I mean, all I can tell you is my observations of rubber strips in heavily used machines, it looks to me that they are more heavily used, and that's what my basis of my observations were.

BECK: Do you know whether synthetic rubber over time as it gets impacted tends to get harder or softer?

BRACE: No, I don't know.

BECK: Do you know whether there are ways that experts in the field can make the compounds of rubber to counteract whatever tendency they have to get harder or softer?

BRACE: I don't know, per se, no.

BECK: Do you know how many punches of a stylus it would take before this phenomenon that you say you imagined would take place where the rubber would get harder?

BRACE: I don't know if anybody's done any tests of that.

BECK: You don't know, for example, whether the people at IBM when they were developing these machines would sometimes do tests, where for 15,000 times they would punch through a hole to see what the impact was on the rubber.

ZACK: Your Honor, I object to the questions. Counsel (ph) is testifying, sir, he doesn't know.

BECK: Well, I was trying to give him more specific questions. Maybe he knew that in his years of travels, Your Honor.

SAULS: No, let's only ask questions to, even on cross, that you have a good faith, actual basis to ask the question.

BECK: Do you have any idea whether different kinds of materials were used in the different machines in Miami, in Palm Beach and Broward Counties?

BRACE: Different materials in the machines?

BECK: For these strips.

BRACE: In terms of the strips, I don't know.

BECK: OK. So you don't know what was used in Miami versus what was used in Palm Beach, what was used in a Model 3-P versus what was used in that portable model you testified about?

ZACK: Same objection, previous, Your Honor.

BRACE: No, I don't know.

ZACK: Same objection as was previously made.

SAULS: Overruled.

BECK: The reason I asked you is because in the proffer that was filed on your behalf in the Supreme Court of Florida, you claimed you did know. Do you remember that?

BRACE: Well, in the proffer I was talking about, again, what I would imagine happens in terms of more frequent use.

BECK: Did you explain to the Supreme Court of Florida in your proffer that you were talking about what you imagined versus what you knew from personal observation?

BRACE: I mean, my proffer was based on my personal observations.

BECK: Who wrote your proffer?

BRACE: I wrote the vast majority of it. I looked at the proffer that had been presented by several other people in affidavits.

BECK: And you picked up language from other people, and then you adopted it as your own in your proffer to the Supreme Court of Florida, right?

BRACE: I agreed with it, and therefore I put it into my proffer, because it's something that I believe too.

BECK: And some of it was written by the lawyers, right?

BRACE: No, I don't believe it was written by--I don't know it was written by.

BECK: Of course, you don't know who wrote the affidavits that you picked up the language from, do you?

BRACE: Well, there were affidavits from both former Supervisor Jackie Winchester, as well as the gentleman, William--I can never pronounce his name...

BECK: Rouverol.

BRACE: ... Rouverol--that was involved with the development of the Votomatic systems.

BECK: My question is, you don't know whether they wrote their own affidavit, or whether somebody from the Gore legal team wrote up the language for them and they signed it, right?

BRACE: I don't know.


BRACE: I know that I wrote my own.

BECK: Now, let's move on this--your other theory about how it is that dimples could occur on the left side of the card, and more frequently than in the middle and on the right.


BECK: And I think you had a theory that you called chad buildup, right?


BECK: And the chad, of course, are the little rectangles of paper that get dislodged by the stylus, right?

BRACE: That's correct.

BECK: And your theory is that there's a bunch of people voting for the president of the United States, and all these little chads fall down and they kind of stack up on one another and then they stop somebody from pushing the stylus through the hole, right?

BRACE: Not necessarily that they stack up precisely on one another, but they form a pile that starts building up. You'd find that in much more frequent use of the machine on one particular side, which was what my observation was, that in fact it would be on the left-hand side you'd find that more likely.

BECK: Do you know how many people on average use one of these machines in a presidential election?

BRACE: One of my--I was attempting to calculate that based upon previous election results, so that I could see precisely what I would have found in order to determine that, and I just came down on Wednesday morning, I have not had the time to do that. But it was one of my inquires that I was trying to gather data on to show that. In fact, when I was down in Miami and Palm Beach, I obtained sample ballots for previous elections, back to the March primary, to see which candidates were in which position, precisely for that purpose.

BECK: Actually, my question had nothing to do with that purpose. My question was, do you know how many people on average use one of these voting machines in a presidential election?

BRACE: No, I don't, but I was--if I had had more time and we weren't doing this three days after I came here I would have...

SAULS: Just say yes or no...


BECK: I'm not blaming you, I just asked if you knew.

BRACE: Yes, I mean--no, I don't. It would be a good number to know.

BECK: Yes, because before you came in and testified under oath, or submitted a proffer to the Florida Supreme Court, saying that you thought that the chads built up on the left side and stopped people from voting, it'd be kind of important to know how many people on average actually use these machines, wouldn't it?

BRACE: I study election returns all the time.

BECK: Would it be important to know this, sir?

BRACE: And that would be important. But I know from the election returns that that top of the ticket gets more votes.

BECK: But if only...

BRACE: That's the basis of my observation.

BECK: But if only 500 people used the machine on an average Election Day for the presidential election, and all 500 might vote for the president, but we know something, and that is there's only 500 of these little chads falling through the hole, right?

BRACE: That's correct. And so, therefore, one of my inquiries and my questions to both Palm Beach and Miami was how frequently do you clean out the machines?

BECK: OK, sir. Try to stick with the questions.

ZACK: He's opened the door on this issue, and he ought to be able to testify as to what was said to him. He on the one hand is saying you didn't ask, and he's being prohibited from saying what was told to him. He's opened the door on this, Your Honor.

SAULS: Overruled. He is asking the question, and the witness needs to respond, if he'll do so yes or no, and then of course you can come back on redirect. But, we just need to move on through. Ask the question again, and then Mr. Witness answer if you can, and if you need to briefly explain do so.

BRACE: Yes, sir.

BECK: I've forgotten what the question was in answering the objection. I'll move on to something else, Your Honor, if that's all right, or do you want me to reread it.

SAULS: Move. Move. Move. Move. Move.


BECK: Do you know how many times people would actually have to vote to fill up the bottom of that machine?

BRACE: No, I have not done that calculation yet.

BECK: Yet; you think you're going to do that calculation?

BRACE: I would like to do that calculation, certainly.

BECK: Do you know whether it would be in the thousands and thousands and thousands of chad that you'd have to punch through under the presidential holes in order to build up a pile enough that it would even possible for this to take place?

BRACE: I don't know. That's what I was attempting to determine.

BECK: In fact, what you were doing is swearing under oath that it happens. You weren't attempting to determine it, were you, sir?


ZACK: Objection, Your Honor. That's not what the proffer said. As a matter of fact, it's been a total misrepresentation of proffer.

BECK: I'm talking about what he said today in court. He said this is how it happens.

SAULS: Overruled.

BRACE: How it can happen.

SAULS: You may redirect.

BECK: Well, is this just another one of the things that you are imagining might happen?

BRACE: No, not imagining. It's based on long experience and observations of election results, and how ballots are constructed. It's based is my observation.

BECK: Where you have a whole bunch of chad underneath the presidential holes, and somebody is powerful enough to actually vote with one of those styluses, and the stylus penetrates down in that pile of chad, what happens to the chads underneath there? Do they disperse to the side?

BRACE: One would imagine they probably would, yes.

BECK: As long as you've got one big group, every 20 people or so, who's actually able to vote, then whatever chads that are down there, those are going to get pushed off to the sides. Right?

BRACE: Well, there's a thin trough that they go into.

BECK: I think you said that you got the president's on the left, and then you got all the other races in the middle, and people care more about the presidential race than they do the other ones, right?

BRACE: Generally, yes. That's been our observations for many years.

BECK: Do you have a ballot up there in that machine?

BRACE: Yes, I do. I have in the machine, I have the Palm Beach ballot and then I have the ballot pages, some assembly, for the Miami ballot.

BECK: Do you mind if I borrow this for a minute?

BRACE: By all means.

BECK: And this, for the record, is the election for Miami-Dade County, Florida?

BRACE: Yes, the one from November 7, it's the presidential one. That's what I obtained.

BECK: Okay. Now let's see if we can put this in this machine, and we can find out would happen to all these chads. Here we go. I'm going to take this. Here we are on the front page. And then the voter opens to page one. Right?

BRACE: Right.

BECK: And this page here, and we don't show the whole thing because it won't fit, or maybe it will if I zoom back here. You can kind of see here that you've got all this information on the left, and it's basically telling everybody who the nominees are in English. Right?

BRACE: On the left-hand side of the Miami ballot is in English, and on the right-hand side, it's in Spanish.

BECK: And incidentally, do you know from your years of experience the reason they developed the butterfly ballot in the first place was so that they could put the bilingual information over on the right-hand side?

BRACE: I don't consider that a butterfly ballot.

BECK: OK, well, actually, since you didn't testify about it, we'll--unless your lawyer wants you to, we'll stay away from that.

But anyway, we got all of this information, and the person's only supposed to vote for one guy, right?

BRACE: Yes. For president, if you notice on the left-hand side it says, "Vote for one", which is the common language that you find on most ballots.

BECK: OK. So over here, people are instructed.

BRACE: Yeah, there's a vote for one group. Because, for president you're voting both president and vice president, and so they use the word group. I notice the group is also used in the Palm Beach language. That's unusual in my experience to other parts of the country. They don't use the word "group." Maybe that's something in terms of Florida law to define president.

BECK: I don't have the slightest idea.

BRACE: Yeah, OK.

BECK: You got all of these folks listed who want to be president, and you're only supposed to vote for one, right?

BRACE: Right.

BECK: So somebody who votes for President on the--and this is, I think we can show you here, when we talk about the left-hand row, what we're talking about, sir, is that when you open the ballot, the left-hand column over here is the column that people vote for the president in, right?

BRACE: Yes, that's the first column on a machine.

BECK: And you only vote for one, right?

BRACE: That's correct.

BECK: Now, if we go into column two, here again we've got--since it's a bilingual community, we've got it in Spanish and English. But what we got in column two, is we got the United States Senate race on the top, right?

BRACE: That's correct.

BECK: And then we've got the House of Representatives underneath that, right?

BRACE: For that particular congressional district, yes.

BECK: And so, if somebody is voting in column two, they vote in two different races, right?

BRACE: That's correct, yes.

BECK: So we got one chad under column one, and we've got two chads under column two, right?

BRACE: Yes, that's correct.

BECK: Now we go to column three, and here we've got voting for treasurer on the top, right?


BECK: Commissioner of education in the middle, right?

BRACE: That's correct.

BECK: State's attorney on the bottom, right?

BRACE: That's correct.

BECK: So, someone who's voting column three, they vote three times and have three chads knocked out, right?

BRACE: In that column, you're correct.

BECK: So far, we got--we only had one voter and we're starting--we got one chad in column one and two in two and three in three, right?


BECK: And then we go to the next page. I guess this--we might have skipped a column in there because of the way the book is constructed, but we're in either column four or five now, right?


BECK: So we've got justice of the Supreme Court, right?


BECK: And there, there's not just one guy running for the Supreme Court, there's three people running for the Supreme Court, and you got to vote yes or no on each one of them.

BRACE: That's correct.

BECK: So that's three chads. And then we have the district court of appeals, right?

BRACE: That's correct.

BECK: That's four chads. And then we've got the circuit judges; finally we get to the important elections.



BECK: And we've got one, two of those, so that's five, six chads. And then we've got the county court judge. That's seven chads in this column, whatever it is, column four or five, correct?

BRACE: That's correct.

BECK: So, so far we're sort of getting the buildup of chads isn't in the left-hand column, it's going into the middle, isn't it?

BRACE: That's providing the voter votes the entire ballot, which we know unfortunately does not happen.

BECK: So now we get back to good old one, if they vote on this, whatever this constitutional amendment is.


BECK: And then we flip over and we've go two again, right?


BECK: And then we have one again, right?


BECK: Then we've got two again, right?


BECK: And then that's the end.

BRACE: For the Miami ballot? Yes, that's correct.

BECK: Well, we can go through the Palm Beach ballot, but it's going to be the same story, isn't it...


BRACE: I don't know. I haven't done it in the way that you're describing it, but...

BECK: Well, you can flip through if you want, or we could put it up on the screen.

The truth is that if your theory about chad buildup is right, what you've got to have is seven or eight times as many people voting for president as vote for anything else, and then you have a big mountain of chad underneath the presidential column, even though you only vote once, and then you don't have all this chad under the rest of the column, even though you vote four, five, six, seven times; right?

BRACE: You could have that if you're looking only at the November general election and you're making the assumption that the machines are cleaned out after each individual election. But that is not the case. The machines are not cleaned out. And that's the question that I asked after each election. In Palm Beach, the last time they were cleaned out...

ZACK: Your Honor, this is not...


BECK: Your Honor, he's answering the question. He's opened the door. He can't answer the question without indicating that this is...


SAULS: ... I mean, I'll permit him to answer.

BECK: OK, go ahead.

BRACE: You have to take into account--you would be right if you had cleaned out the machines after each election. But I inquired of that in particular when I was in Miami and in Palm Beach, and was informed that in Miami they clean them out as-needed basis, and in Palm Beach they base their cleaning--maintenance on the machines on a per-election-cycle basis.

Which means--because I asked the question of the warehouse person, "Do you clean them"--we had not only the November general election, but we had an October runoff.

"Did you clean them after the October runoff?" And he said no.

"Did you clean them after the September primary?" And he said, no, there wasn't enough time. OK.

There was a March primary here in this state. "Did you clean them after the March primary? You had enough time to clean them after that." And he said, "No, in fact, we didn't. We didn't clean them until"--up to--all the way back to the November '98 election was the last time they cleaned them.

So from that standpoint, yes, you're right in terms of the first column, if they had been cleaned. But they hadn't been cleaned.

BECK: After all these different primaries and elections, what happens to the machines?

BRACE: Well, generally they're taken back to the warehouse.

BECK: How are they taken back?

BRACE: Trucks, probably.

BECK: I think you testified that they sort of come in these little aluminum or tin suitcases, that kind of folds up in a suitcase.

BRACE: The Votomatics do, yes. Not the Pollstars. Yes.

BECK: But these Votomatics fold up into things. And when they...

ZACK: Can I approach, Your Honor, and handle your machine here?

BRACE: Sure.

BECK: So then the guys in the election office, they take these machines, and when they take them back to the warehouse, they don't pick up the machines and walk like this to the warehouse, do they?

BRACE: Don't know.

BECK: In fact, what they do is, they pick up the machines, tap them, put them in the suitcase, grab the handle of the suitcase and walk to the warehouse, don't they?


ZACK: Objection to the question, Your Honor.

SAULS: If he knows--I'll overrule the objection.

BRACE: I don't know.

SAULS: You don't know, so you don't know.

BRACE: I don't know, I don't know.

SAULS: All right.

BECK: Well, if you, as an expert, assume with me that the official employees, they don't pick up the thing and walk like this all the way to the warehouse trying to make sure that they don't tip over any piles of chads inside. And instead, what they do is they pick it up, stick it in a suitcase, pick up the suitcase, put it on the truck, bounce it along on the truck, take it out and set it down...

BRACE: The suitcase is not like that.

BECK: ... and that pile of chad--please let me finish and then you can answer.

BRACE: I'm sorry.

BECK: Then that pile of chads that you think takes place, that would slide way down to the bottom of the unit, or the top of the unit, whichever way they tip it, and it wouldn't be in the way come the next election; isn't that right, sir?

BRACE: Well, except that...

SAULS: If you know. If you don't know...


BRACE: These machines are already in the suitcase. It's not something that they go in and put in the suitcase. They're in the suitcase already.

BECK: OK. So it's in the suitcase. And what is it? The top of the suitcase like this?


BECK: OK. So now we close the suitcase. Does it have a handle on it?


BECK: Where's the handle?

BRACE: The handle is on the bottom.

BECK: OK. So the handle's not on the top. They don't have a suitcase with a handle that they can carry so that they don't knock the chads over; right?

BRACE: That's correct.

BECK: They've got a handle on the end so that all the chads that you think come in column 1, they're all going to slide to the top of the suitcase--or the machine, and get out of the way; right?

BRACE: Well, one would hope that they do, yes.

BECK: I have no more question, Your Honor.

KLOCK: I have two questions.

SAULS: Mr. Zack, if you'll let him ask two, and then we'll go back to redirect. And you keep count, too.


KLOCK: If you were to pick up a ballot and in the presidential column you found one chad punched through and another chad dimpled, what conclusion would you come to?

BRACE: Clearly that the voter may have probably created the dimple, but then went and firmly voted for the other candidate. You couldn't count the dimple in that instance, because if you did you'd create and overvote situation.

KLOCK: Excellent. So what would happen--so someone would have put the little stylus down there and then pulled it out and moved it, right? Let me ask this question. What would happen if somebody put the stylus in there and decided that both of the candidates were equally unattractive and pulled the stylus out? What would be left?

BRACE: After dimpling both of the candidates?

KLOCK: No, just one.


KLOCK: What would be left, sir?

BRACE: You'd have one dimple under one candidate.

KLOCK: And therefore you could not come to the conclusion that the voter intended to vote for that person, could you?

ZACK: Objection, Your Honor. Objection.

SAULS: Sustained.

KLOCK: Nothing further.

MCMAHON: Your Honor, before we get into redirect, there were some questions directed to Palm Beach County. If I might ask a few questions.

SAULS: All right. It seems only fair.

MCMAHON: Good morning, sir. My name is Andrew McMahon. Did we ever speak on the phone? Sometimes I'm called Drew. Does that help?

BRACE: I don't know. I've talked with so many people on the phone.

MCMAHON: Did you speak to an attorney who it was told to you he represented Palm Beach County supervisor of elections the night before you went to the warehouse?

BRACE: OK, yes, I did speak to you. I'm sorry. Yes.

MCMAHON: And did I not tell you, sir, that I had no objection to an inspection of the Palm Beach County voting machines provided that there was a representative from the other side as well?

BRACE: I don't remember...


MCMAHON: You don't remember. Well, sometime after we spoke you proceeded to the warehouse where the voting machines are stored, is that right?

BRACE: Well, I first...


MCMAHON: Yes or no, please.

BRACE: I first inquired over in the supervisor's office whether or not I could.

MCMAHON: Can you just (inaudible)

SAULS: All right. Well, he's explaining (inaudible)


BRACE: And they said that I could go over there. I'm sorry, I was in...

MCMAHON: After you spoke to their attorney, you called the supervisor's office, is that right?

BRACE: No. After I spoke to you that night...


BRACE: ... then the next morning I went to observe the ballots being put into the truck in your emergency center, and I sought to speak to Theresa, who I know. She was very busy and said, I can't talk to you now. I needed some other materials...

SAULS: Just a moment. All this is very interesting, but does it have any relevancy or probative value whatsoever?

MCMAHON: Your Honor...

SAULS: Perhaps if we're on the matter perhaps of credibility, if we could just be succinct.

MCMAHON: I thought the answer called for a yes or no. I'm sorry. Wasn't looking for the speech.

SAULS: Would you please, it's a yes or a no is going to be the rule. Then if you need to briefly explain your answer, please do so.

OK. Go ahead.

MCMAHON: Just briefly, sometime after you spoke to me and I--you can't remember what I told you--you just chose to ask someone in the supervisor of elections office if you, by yourself, with press but no one from the opposing side, went and took a look at some machines. Is that right?

ZACK: Your Honor, I have to object to the relevancy of any of this line of questioning.

MCMAHON: Your Honor...

ZACK: You know, frankly, is counsel testifying about what happened? We went through Mr. Rutledge, and he was asked to come there at midnight. He did what he was asked to do. There were press present. I was not there, so I can't testify. I wouldn't testify anyway; I think it's inappropriate for counsel to be testifying in a proceeding.

MCMAHON: Your Honor, I'm not...

ZACK: And I think we should proceed with the issue at hand.

SAULS: I believe he briefly testified concerning those circumstances, so I will respectfully deny your--I mean, overrule your objection. And let's get this done and move forward.

MCMAHON: Did you tell anyone in the supervisor's office that you had spoken to their counsel about the possibility of your examining these machines?

BRACE: I didn't realize that you were--I talked to so many people on the phone, I didn't realize that you were the attorney with Palm Beach that night. When I went over to the supervisor's, I inquired whether or not--because some of their sample ballots and that sort of thing--and I inquired can we take a look at the machines and I was told that I could, and they called out to the warehouse and said that I would be coming. When I arrived there, there was already press there. And I didn't call the press. I'm sorry, yes?

MCMAHON: I thought you testified that you looked at these machines in the middle of the night. Is that correct?

BRACE: No, I didn't. It was after the ballots had left.

MCMAHON: So, sometime in the middle of the day or morning.

BRACE: Mid-morning, yes.

MCMAHON: What did you exactly do with the voting machines that you looked at?

BRACE: The voting machines, they were segmented in the two areas of the warehouse that you have. The Votomatic machines were in their suitcases and stacked up in one area of the warehouse.

MCMAHON: But you didn't look at those, did you?

BRACE: I didn't look at those, because I've already looked at those. But I did not look at them.

MCMAHON: You looked at them in Palm Beach County?

BRACE: That's correct. I did not look at those...

MCMAHON: Let me just ask you about the ones that you looked at. What did you do with the ones that you actually inspected in Palm Beach County?

BRACE: OK. Those were the Pollstar units, which I had not seen all that much, and I was interested in how they were configured. Those were stacked up in boxes, basically, randomly, thrown into the boxes. Each box was labeled with the precinct number.

MCMAHON: Did you take the machine out of the box?

BRACE: I picked up--it was not covered boxes at all. They were just a whole series of cartons stacked up about seven or eight high.

SAULS: Did you take one out of the box or not?

BRACE: Yes, I did.


MCMAHON: Did you attempt to use any of those Pollstar machines? Attempt to execute a vote?

BRACE: With a demonstrator ballot.

MCMAHON: Did you do it in the manner that you had described. Were you able to make a scratch?

BRACE: I didn't make a scratch, but I've looked at one of the machines and observed for one particular machine, actually several machines from this one precinct. There was a whole bunch of scratches in the left-hand side. I had never seen that before, and so I was interested in why that was.

MCMAHON: Do you or do you not know whether you, in your attempt to utilize one of these Pollstar machines in Palm Beach County, whether or not you, yourself, made a scratch on the machine?

BRACE: Oh, there were probably a 150 scratches on that machine. No, I didn't make 150 scratches, I know that. In fact, in that one, I didn't even vote in that one. I voted in a couple of the other ones, and someone, after I had voted, said, oh, this was the one precinct where the highest undervote was, and I went over to look at that box and observed--that's when I observed the heavy scratches. And I inquired--the press person that was there from the Palm Beach Post--I said, well, why is it here in this precinct and not in other precincts? And he identified...

MCMAHON: I think I'd ask you to not tell us what somebody else said, please.

BRACE: I'm sorry.

MCMAHON: Thank you. Did you attempt to make a vote in the machine that you perceived had substantial scratches in your view?

BRACE: No, not in that machine.

MCMAHON: So you don't know whether you can make a vote effectively in one of those machines or not? Correct?

BRACE: Well, I tried making a vote in about 10 or 15 different machines.

MCMAHON: And you were able to, correct?

BRACE: Certainly, yes.

MCMAHON: Let me ask you, look, we've gone through an awful lot on the buildup of chads, but I just have a few more questions. Do you know what the recommended clean out timetable is for the Votomatics or the Pollstars?

BRACE: I believe the manufacturers recommend that they clean them out after each election, which is certainly preferable. The problem that you have here in Florida is that you have primaries so close.

MCMAHON: Does it make any sense to you that the clean-out schedule might vary depending upon how many people have used the machine?

BRACE: Oh, certainly. That would be the case. Yes.

MCMAHON: Let me ask you, in terms of the possibility that the buildup of chad could cause the dimple that you've described: Is that, in your view, a significant possibility?

BRACE: I think it's significant enough that it's a way of explaining how a dimple could be created.

MCMAHON: When did you first come to that conclusion, that the buildup of chad in these machines is a significant risk factor in terms of an undervote?

BRACE: Well, we have since the election been trying to gather data, before I was contacted by any side.

MCMAHON: I don't mean to interrupt, but I'm trying to shortcut this a little bit. Was it first after this election in 2000 for the presidency that you came to that conclusion about the potential problem caused by buildup of chad?

BRACE: No. I've known about that all along, because I studied election returns for a long, long time.

MCMAHON: You've been aware of that for some 20 years, 25 years? Is that fair?

BRACE: That is one possibility of what could happen. Yes.

MCMAHON: And you never took the time to sit down with your own demonstrator machine and a stack of sample cards to determine how many it took to cause this problem, did you?

BRACE: I have not done that yet. I would like to do that, though.

MCMAHON: Someday?

BRACE: Well, I've been pretty busy.

MCMAHON: Let me just ask you briefly about what you understand to be the recommended maintenance of the t-strips (ph) on the back of the Votomatic machines.

BRACE: Generally, the recommended maintenance is to spray them with silicon spray to improve and keep them long lasting.

MCMAHON: What's your understanding of what's done in Palm Beach County?

BRACE: I believe that--I have been told by the maintenance person that they do do that, but he didn't tell me whether or not it was after each election or an election cycle.

MCMAHON: And you didn't make any inspection to determine whether or not, in your view, the maintenance in Palm Beach County was adequate or substandard in any way, did you?

BRACE: No. Most jurisdictions are usually pretty good. I mean, I'm not infringing upon Palm Beach at all from that standpoint.

MCMAHON: Thank you.

That's all I had, Judge.

SAULS: Thank you.

Any redirect?

ZACK: Yes, Your Honor.

I think we have the machines here right now.

SAULS: We do? Yes. Yes, they came in, I believe.

ZACK: All right. See if we can see them.


SAULS: ... hand them up? How heavy are they? Would you mind walking over and taking those from the clerk, Mr. Zack? Or someone?

ZACK: I'd be happy to do it, Your Honor.

SAULS: All right. These, as I understand it, these are from where? Palm Beach.

ZACK: Yes, Your Honor.

SAULS: Be careful with them.

BRACE: There is that, the one on Mr. Zack's left side is the Pollstar booth, but that is not the actual machine device. I believe Theresa (ph) put that in a white box. I'm sorry. Was there a white box also with that? That's actually just the booth itself, that's...

ZACK: OK. Think we got a white box coming up.

SAULS: Oh, we don't have the white box coming up, is that right?

BRACE: I'm sorry.

SAULS: All right.

ZACK: Well, we'll keep going. We'll keep going.

Would you come down here and open this for us, sir?

BRACE: Yes, sir. Yes, sir, this is the booth that most of the Votomatics come in. Open them up and...

(UNKNOWN): May I approach as well?

SAULS: You may.

BRACE: Sure. The top comes up. The top has a light underneath it, which is plugged in by electrical outlets. These here are the legs that you stick together, and they form the four legs that prop up this device so you don't have to put it on a table.

And then these are the secrecy sides that are there, and underneath there, Your Honor, you see the Votomatic machine, which is just like the Votomatic that I have.

SAULS: Yes, I understand. You can turn it back around.

BRACE: So that's what a Votomatic is. And those devices sit down in that plastic piece right there.

ZACK: All right. And there are legs here.

BRACE: Yes, that's correct.

ZACK: And it's clear, Your Honor, one thing we wanted to demonstrate to the court is the similarity of the two units, so there's no question that the one that was used is of benefit to the court.

SAULS: All right, sir.

ZACK: Now, let me ask you a couple questions about it. I see a stylus there. Is that the hard plastic stylus?

BRACE: Well, first time I've looked at it. It's not as hard as mine is. This one has a little bit more flexibility. It is the serrated-ended stylus.

ZACK: All right. It's not the Andy Capp (ph) stylus?

BRACE: No, that's correct, it's not.

ZACK: All right, sir. You've seen people vote in these machines like this?

BRACE: Oh, yes.

ZACK: Now you heard Mr. Beck ask whether the machine is shaken by people when they leave the premises after they put them away; correct?

BRACE: Yes, late in the evening, afterwards.

ZACK: Did you ever seen somebody after they get through voting go ahead and shake it up so that they get all the chads moved around? Have you ever seen anybody do that?

BRACE: No, I have not.

ZACK: OK. So the chads that accumulate in the channel in the first column are there during the time that they're voting; correct?

BECK: He's leading, Your Honor.

BRACE: That's correct.

ZACK: Now, sir, is the same the case with the Pollstar?

BRACE: The Pollstar, we don't have that device. That is just the booth itself. The device that's that's there sits on a flat page.

ZACK: Right. Have you ever seen anybody lift up the Pollstar and shake it around in between the votes?


SAULS: I believe the testimony was after all the elections were over when they were moving them.

ZACK: That's correct, Your Honor, but I want to be clear...

SAULS: Not during the elections.

ZACK: That's what I want to point out, Your Honor, and I think that's clear now.

So that a build-up that occurs, would occur and would have no chance to be moved while the vote was actually occurring; is that correct?

BRACE: That's correct.

ZACK: And is there any question when a voter goes and sticks their--tries to stick a stylus through the paper and can't stick it that there is something that's keeping it from going through the place where it's supposed to go?


ZACK: No question about that, right?

BRACE: There's no question about that.

ZACK: Nobody's hands in there.

BRACE: That's correct.

ZACK: OK. And the machine is designed in a way that should allow it to occur, and if it isn't occurring, it's because there's something that's stopping the stylus from going through; correct?

BRACE: That's correct.

ZACK: OK, sir. Now, there is nothing that would limit a person's ability to create an indentation if they came in at an angle in the first left-hand column; correct?

BRACE: That's correct.

ZACK: And were able then to vertically use the stylus in the other columns; correct?

BRACE: That's correct.

ZACK: So you would have a ballot with a dimple in column number one, and--or an indentation, and completely clear or hanging chads in the other columns; correct?

BRACE: That's correct.

ZACK: And that person intended to vote for that person in the number one slot; correct?

BRACE: In the first column, one would assume so.

ZACK: Absolutely.

Now, sir, let's talk about what you really proffer as opposed to what was said that you proffered to the Supreme Court.

Did you--and I want you to read it, OK? I'm don't think you were given an opportunity to read it before, but you might as well read it as part of the record.


ZACK: OK? You have it in front of you. I know counsel's had it.


ZACK: And you might want to use it at this time to see what he really said, into paragraph number 18.

SAULS: Do you have some questions of this...


ZACK: Yes, sir, I do have a question. And the question is: Do you anywhere in paragraph 18 say that--anywhere there, tell the Supreme Court about the composition, whether it's artificial or natural rubber?

BRACE: No, I do not.

ZACK: Do you base what you say in there only on your personal observations, sir?

BRACE: Yes, I do.

ZACK: Thank you.

And was that proffer written only by you?

BRACE: Yes, that was.

ZACK: And was it based on your observations?

BRACE: That's correct.

ZACK: And do you stand by that proffer, sir?

BRACE: Yes, I do.

ZACK: Sir--I think we've got the other...

SAULS: The white part now, whatever it is.

ZACK: Yes.

SAULS: Is there another one, or is it just one...


ZACK: I believe there were two units in that, I believe, Your Honor.

SAULS: Oh, there's two in here.

ZACK: In there, yes.

SAULS: All right. Well, we need--do you need my name?

ZACK: Yes, Your Honor.



SAULS: Well, there's not much, but...

ZACK: Then you go through the security thing...


SAULS: Be careful with that. You're allowed (OFF-MIKE)

ZACK: Thank you.

SAULS: All right.

ZACK: One more part here, Your Honor. Here we go.

SAULS: OK, thank you, sir.

BRACE: Yes. There are two units. These are the Pollstar units. And there's a lot of chad falling out.

These are--if you notice, Your Honor, these are the Pollstar units. They don't have the wide blue part on it on either side, but they're basically identical--and I'm putting chad all over Your Honor's counter.

SAULS: That's all right.

BRACE: But that's--this is the ballot from Palm Beach where both sides of the machine were used.

SAULS: What does that sit in?

BRACE: That sits on top of...


ZACK: We could actually open it and show how it sits. I'm only going to be very short, Your Honor. We're coming to the end here.

SAULS: You need to do the same with that one. That's a different...

BRACE: Yes, this is a different booth, Your Honor.

SAULS: I don't know what to do with this.

BRACE: In this booth, Your Honor, you see the legs that are underneath. They're not secured down, but you simply turn it over and there's a flat surface. The legs go into these holes.

SAULS: Just turn it over. Take the legs out.

BRACE: OK, if you could hold on to those for a second.

SAULS: All right, turn it over.

BRACE: Turn it over and it's a flat surface. And the privacy booths go into these channels right here, Your Honor.

SAULS: Where does the...


ZACK: Tell the judge exactly where it goes.

BRACE: It just sits on top.

SAULS: Oh, it's not fastened down?

BRACE: No, it's not fastened down, Your Honor.

SAULS: Oh, all right.

ZACK: And since it's not fastened down, a person could take it with the ballot and put it in their hands and use it this way, correct?

BRACE: That's possible, yes.

ZACK: And that's another way an indentation could occur, correct?

BRACE: Certainly, that would be the case, yes.

ZACK: All right, sir. And I want you to compare the size of this unit. Your Honor, I think the court can take judicial notice that it is about a fourth of the size of the Votomatic. Is that a fair statement?

BRACE: That's a fair statement, yes.

ZACK: OK, sir. So, it is 1/25th capable if you look at this of this person with the chad, so that there's no buildup. Isn't that correct?

BECK: Your Honor, I really think counsel has testified for an hour.

SAULS: I'll also sustain the objection. He does math in his head better than I can.


ZACK: And let me ask you, sir. What is the difference in size between this whole unit and where the chad would accumulate and this whole unit?

BRACE: About 1/24th or 1/25th, yes.

ZACK: And based on your knowledge of what this looks like, is there more or less room for a chad to accumulate in the Pollstar system versus the Votomatic?

BRACE: There's clearly less room to accumulate. So, if it's used over time, it will build up even more.

ZACK: Is there four times, 400 percent less ability to hold chad?

BRACE: Okay, your math is good.

ZACK: Would you open that up, sir, now that you're here. Is there another one. or is that the only one?

BRACE: No, there is another one; I don't know where that other one went from the other box. On the back is the compartment for cleaning out the chad.

ZACK: So, it's a relatively easy thing to do if they chose to do it?

BRACE: That's true, yes.

ZACK: And, well, this one is relatively easy to do as well.

BRACE: It's the same model, so yes.

ZACK: Try this model for me, and show me exactly how it works.

SAULS: That's alright, I've already seen it once.

ZACK: Now, sir, I would like to you to remove this cover, and Judge, I want to show that this cover, this machine, is full to the brim with chads; I would ask to present it to the court and to opposing counsel. I'll do it with opposing counsel, first, that this is filled to the brim.

BECK: Is this the one he said was easy to vote with?

ZACK: No, this is the one that was removed, and counsel wants to see it, it's filled to the brim with chads. OK?

SAULS: All right, thank you.

BECK: Would that amount of chad--and may I dump this, Your Honor, on a piece of paper?

SAULS: Put it back the way you found it.

ZACK: OK. Well, it's going to be hard--I'll ask you to stick it in. Would all that chad in there make it difficult for a stylus to go through?

BRACE: Yes, that is a possibility.

ZACK: Okay, a couple of other quick questions and then we're through. The equipment, the card that is manufactured, has been used in hundreds of elections. You keep the data. How many states use it?

BRACE: For punch card devices, 31 percent of the nation's voters vote on punch card systems.

ZACK: So if chads just arbitrarily fell out, because they felt like it, we're saying that 31 percent of the nation had been electing people who really shouldn't be elected all these years? Is that what you're telling us?

BRACE: Well, I would say that 31 percent of the population would certainly want to take a look at their voting system.

ZACK: Would you say it's fair to assume, and you know whether the manufacturer of this product, which I understand was Sequoia, originally it was IBM?

BRACE: Originally, IBM, then it was CES, and then it was BRC, and now it's currently ES&S, Election Systems and Software.

ZACK: They make a representation, and everybody that uses it assumes that there is an integrity to the process, isn't that correct?

BECK: Your Honor, he really is just testifying now, making speeches, rather than asking questions.

SAULS: Would you rephrase that one?

ZACK: All right. Is there supposed to be--when you vote, do you believe that your vote makes a difference, or do chads just arbitrarily jump off the page?

BRACE: No, the whole principle of this country is set up to..

SAULS: I understand the principles of the country. Let's deal with the relevancy to this case.


ZACK: Let's talk about this case.

BRACE: OK. I'm sorry, again?

ZACK: When you use this type of equipment...


ZACK: ... are you supposed to have an honest election that occurs?


ZACK: Would there be an honest election if the chad just fell out of the ballot?

BRACE: Fell out of the ballot itself?

ZACK: Yes, by itself.

BRACE: Randomly? By itself? No.

ZACK: Would everyone of the 31 legislatures, the governors, the presidents that have been elected over all these years, would they be taking part in an honest election if chads just arbitrarily fell out, without people intending for those chads to be removed by their vote?


ZACK: I have nothing else, Your Honor.

BECK: Your Honor, I have some cross, just on these new machines questions.

SAULS: You were entitled to cross on--when he brought out on--read away.

BECK: Would it be an honest election if dimples that were never intended as votes were counted as votes?

BRACE: If those dimples were the only indication of the voters' intent in that particular office, then I believe that that's an indication of their intent to vote.

BECK: My question was, if a dimple is put on there and it was never intended by that person, that voter, to be a vote...

ZACK: Objection, Your Honor.

SAULS: Overruled.

ZACK: Judge...

SAULS: Overruled. He's got to ask his question. The witness needs to answer it.

BECK: If there's voters out there who made a dimple for whatever reason, that purposely drew back rather than punch through for Al Gore, then they're getting disenfranchised if you count that dimple as a vote for Al Gore, aren't they, sir?

BRACE: I don't know that you can say that they purposely drew back.

BECK: Well, you don't know one way or the other.

BRACE: No, you don't know.

BECK: OK. I think you said you had this booth that was made. Where's the booth?

BRACE: Which one? This is the Votomatic booth and that's the Pollstar booth.

SAULS: (inaudible)

BECK: This is my last thing, Your Honor, but I do want to get on the record exactly what's in here. Let's open up this booth again.


BECK: And do you mind while we do it away from you?

UNKNOWN: Can you see, Your Honor?

SAULS: I've seen the inside of one.

BECK: And what I'd like you to do is, sir, is take that stuff out from the back, so that we see what the voter would see when they came into the booth. Take the cord out and take those legs, and take those aluminum things, whatever they're made out of, you take those up and put them on the bottom, and those are the legs of the booth, right?

BRACE: Yes, that's correct.

BECK: OK. And then they take that cord out of the way.


BECK: Now let's--so when the person walks in the booth, the thing that they're staring at is a great big thing, and you were pretty decent at dimensions: What would you say, that's about 10 inches by 15 inches?

BRACE: Probably close to that, yes.

BECK: With a great big heading on the top saying voting instructions, right?

BRACE: That's correct.

BECK: And step one, it says, use both hands. Insert the ballot all the way into the vote recorder. Do you see that?

BRACE: That's correct.

BECK: Kind of like the way you did it, right?

BRACE: That's correct.

BECK: It wouldn't be hard for someone following instructions to put their fingers right over the spot for where you vote for the president, would it?

BRACE: Possibly. Sure, their fingers, not their fingernails, but their fingers.

BECK: Well, so in fact they're instructed pretty much to do that, aren't they?

BRACE: Yes, usually what you're doing is you're putting it at the back of the card in order to feed it down. You're not putting it, and then feeding it and then moving your fingers, and feeding it again and doing that. You're putting your fingers at the back of the card where there's no punch positions.

BECK: Well, you're putting your fingers...

BRACE: As the display shows.

BECK: Then you're supposed to put it over the two red pins...

BRACE: That's correct.

BECK: And then read out step number three, please, for the record.

BRACE: Yes. Step number three: "To vote, hold the voting instruction straight up."

BECK: And that's in bold-face type, right?

BRACE: The word straight up is in bold-face type.

BECK: OK. Continue reading the part that's in bold-face type.

BRACE: "Punch straight down through."

BECK: Now continue on with the regular type.

BRACE: The regular type, yes: The ballot card for the candidates or issues of your choice. Do not"--in bold face--"Do not use pen or pencil."

SAULS: Can you press those sides down and still be able to read that?

BECK: Yes, Your Honor.

BRACE: Yes, Your Honor, yes.

SAULS: That way it won't be such a strain on you.

Go ahead.

BECK: Now, what does the note say at the very bottom of the instructions?

BRACE: Which one? Number 5?

BECK: No, underneath number 5, the note.

BRACE: OK. "Note: If you make a mistake, return your ballot card and obtain another."

BECK: And then over here on the top right, what does the heading say when we've got these pictures of the ballots?

BRACE: Yes. It says, "Important notice to voter."

BECK: And now read please what it says under the important notice to the voter.

BRACE: It says, "Look at the back of the ballot card." Then, "Be sure all holes are cleanly punched." And then, "Pull off any partially punched chips"--not dimples, but chips...

BECK: Well, that means...

BRACE: ... "that might be hanging."

BECK: That means chads, right?

BRACE: That means chads.

BECK: Because not everybody, until this week...

BRACE: Until two weeks ago, yes.

BECK: ... until two weeks ago, not that many people understood that these little pieces of paper are chads.


BECK: So pull off any loose chads to make sure that you've punched all the way through, right?

BRACE: That's correct.

And then the final instruction, "If your punched votes have made small circular holes, return your ballots to the election official and request a new one."

BECK: And they don't even talk about the possibility that somebody could come in here and end up just dimpling the thing rather than actually punching through, do they?

BRACE: Dimples are a newer phenomenon in American electoral history.


BECK: All this science of yours, the hard rubber...


BECK: ... the hard rubber and the chad buildup and...

SAULS: I just wondered if he needed to open...


BECK: Want to keep it open.

SAULS: Let me get out of that. You need...

BECK: I need to keep it open, Your Honor.

SAULS: Oh, all right.

BECK: All this science of yours, how rubber hardens and how chads build up and how styluses do whatever they do, you say all of that's brand new and this is a brand new phenomenon, never happened before?

BRACE: No, it's happened before. In this country elections tend to be not close. When you have a close election then you have to take a look at the votes. And that's what is being talked about. We're in a close election, and so it merits this kind of attention. We just happen to be voting for this small office called president of the United States.

BECK: No more, Your Honor.

ZACK: Your Honor, just a couple questions and I'm through.

Sir, how many...


ZACK: Very quickly. How many persons were on the ballot, how many offices were on the ballot in Dade County?

BRACE: How many offices or persons for president?

ZACK: Offices and people to vote for.

BRACE: I haven't counted that. This is the Palm Beach ballot.

ZACK: Right. How many in Dade County? You have it here.

BRACE: Yes. In this ballot page, of course different offices are in different parts of the county...

ZACK: Count them up.

BRACE: President. Congressional. Congressional again for that representative. Treasurer. Commissioner of Education. State's attorney.

SAULS: Just count them. That's what he asked you...


ZACK: I want him to read them out and count them.

SAULS: Oh, oh, you want them read too. All right.

Well, do what he said. Go ahead.

BRACE: Judicial. Justice of the Supreme Court. That is three different elections because it's a retention, and so there is three. Six and three. District court of appeals, that's 10. Circuit court--or circuit judge, the 11th Judicial Circuit, there's two more contests there, so that's 13. And county court judge, that's 14.

ZACK: How many initiatives?

BRACE: State questions is number 1, 2, 3. And then three state. And then one county, and Miami had two charter amendments.

ZACK: OK, sir. And they're about a paragraph each?

BRACE: Yes. Particularly the initiatives.

ZACK: OK. And the number in each of these elections, there are up to 10 people running in each of those elections that you've cited off?

BRACE: No. In most instances there's only vote for one or two.

ZACK: No, I'm saying, is there people there--if they read 10 names, in other words, to decide who they're going to elect. Let's go to the president.


ZACK: How many people running for president?

BRACE: For president, the stat had actually the most number of candidates on the ballot of any state in the nation, there were 10 candidates.

ZACK: OK. And then for Congress?

BRACE: For U.S. senator, there was two, four, six, seven candidates on the ballot.

ZACK: Congress?

BRACE: In this one congressional district, there was just one.

ZACK: All right, for treasurer, commissioner of education--two, five, seven?

BRACE: That's correct.

ZACK: OK. And for judges, there are...

BRACE: Three retentions: one on the court of appeals, two retentions on the 11th Judicial, and one on the county judge.

SAULS: OK, sir.

ZACK: Mr. Beck had you read everything on this ballot except what is in red and three times the size of anything else. Would you read to us what it says.

BRACE: It says, "The legal time limit for voting booth is five minutes." That's not a lot of time when you've got a lot of offices to go through, especially when you make a mistake.

ZACK: Do you think a new voter, or a person who has any infirmity, or an old voter might be so concerned...

SAULS: Does he have any expertise to...


SAULS: ... this? If not, let's leave these matters to argument...


ZACK: I was just going to say, Your Honor, there will be plenty of time to argue this.

Thank you very much, Mr. Brace.

SAULS: All right, thank you.

Let me him try to help you with that.

ZACK: No further questions, Your Honor.

SAULS: No further questions? Then that will conclude with this witness. May this witness stand down? Without objection.

Now at this time, instead of at 1:00, apparently we are going to be at 1:30. So I'll let--2:00? Well--sir?

Well, I don't know how difficult these are.

All right, let's come back at 2:15. Take 45 minutes.

We need to--I hope we're going to proceed a little faster.

The court will stand in recess.

All right. At this time, let's proceed. The plaintiffs will call their next witness.

DOUGLASS: Your Honor, before we do that I'd like to offer a stipulation of facts that have been entered into between the plaintiffs and the county in the Nassau County matter.

SAULS: Can you find a way to get up here? Somebody bring it to you? All right. Thank you, sir.

DOUGLASS: Mr. Mullin is present in court. And that has been executed by both of us on behalf of our clients. And at the proper time, I think we might have some summary argument based on the stipulation.

SAULS: All right. Now, this is your stipulation, sir?

MULLIN: Yes, sir, subject to the summary argument we would make, Your Honor.

SAULS: All right. The stipulation will be approved and submitted into evidence. Make this the plaintiffs'--what is it, number, Mr. Clerk. I mean, make this...

CLERK: Fifty-four, sir.

SAULS: Well, it would be joint--or plaintiffs' number 54, jointly with the defendant canvassing board.

MULLIN: That's Nassau County, Your Honor.

DOUGLASS: I think we gave all counsel copies, but if they don't, we have enough.

SAULS: All right. Plaintiffs will call the next witness. Next witness.

KITCHEN: If Your Honor please, we would like to, before calling the next witness, introduce or offer into evidence as plaintiffs' exhibit number 54 the box of chads that have been identified here in the courtroom.

STAFF: It's 55.

SAULS: All right. Without objection, so ordered.

KITCHEN: We would also like to offer charts that we have numbered 5, 6 and 7, to follow the first four that we offered, but these would be the next three numbered exhibits for the plaintiff.

SAULS: You've got four charts, but three exhibits?

KITCHEN: No, sir. We previously offered four charts, numbered charts 1 through 4. These are charts numbered 5 through 7, that we are offering as our next sequentially numbered exhibits.

SAULS: Any objection? No objection, so ordered.

KITCHEN: Exhibit number 31 that has previously been tendered, part 2 of a transcript, we are getting copies because it's missing from the box, I'm told, Your Honor.

SAULS: All right.

KITCHEN: And, lastly, with your permission, I'd like to move the admission pro hac vice of Mr. Jeffrey Robinson. I have that motion in writing. Counsel has a copy. Would you like me to give it to you or to the clerk?

SAULS: To the clerk.

Any objection?

You're duly admitted to the bar of an appropriate--to an appropriate bar and in good standing, sir? That is a...

ROBINSON: Yes, sir.

SAULS: All right.

KLOCK: Your Honor, the Nassau County affidavit is submitted subject to legal objections, or is it coming in if there are any objections, state it now?

SAULS: The Nassau County affidavit? What affidavit? Are you talking about--are you referring to the stipulation?

KLOCK: Yes, sir.

SAULS: The stipulation is already in.

KLOCK: OK. Well, Your Honor, we just got it, just had an opportunity to read it. We object to paragraph 10.

Paragraph 10 reads that the November 24 meeting after receiving advice from the Elections Division of the Department of State. It appears that this thing could be read as indicating that the Elections Division directed that they take the action they did.

Now, we were a party to the action, Your Honor, and any stipulations we would have to agree to them. We object to that.

The rest of the affidavit--the rest of the stipulation, we have no problem.

SAULS: Well, that's their stipulation. If you have any other evidence that would contradict it, then it's like any other evidence and you have certainly the right to argue that evidence.

Plaintiffs will call the next witness.


SAULS: Do we have a witness?

ROBINSON: Yes, we do, Your Honor.

SAULS: Call the witness.

ROBINSON: Plaintiffs call Professor Nicholas Hengartner.

SAULS: Ask him to come forward and be sworn.

ROBINSON: By your leave, Mr. Clerk--would you raise your right hand, sir?

Do you solemnly swear or affirm the testimony you're about to give will be the truth, the whole truth and nothing but the truth, so help you, God?


SAULS: All right, be seated.

ROBINSON: Excuse me, sir. Sir, excuse me.

SAULS: Those are his, I believe.

UNKNOWN: I realize they are, but we can't see through them.

SAULS: Well, I don't know where we're going to be. Counsel will just have to move somewhere where you can see. Can we bring those up a little bit? Well, that's not going to help you...

ROBINSON: That makes it worse, I think, Your Honor.

SAULS: What?

ROBINSON: I think it makes it worse if you move it up. We were trying to get it out of the way.

SAULS: Is there any way--well, do you have anybody that's going to assist you with this? So we could move them out of Mr.--somebody else is...

(UNKNOWN): I can see all right. I was doing it for the man behind me.

SAULS: Well, let him--if he'll kindly--somebody squeeze him in somewhere else up there.

Let's move. Move along, sir.

You may proceed, sir. The witness has been sworn.


Good afternoon.

Professor Hengartner, would you please state your name for the record?

HENGARTNER: Yes. My name is Nicholas Hengartner.

ROBINSON: And how are you currently employed, sir?

HENGARTNER: I am currently an associate professor at Yale University.


And what field are you an associate professor?

HENGARTNER: I'm a professor in the department of statistics.

ROBINSON: And, sir, what is your educational background?

HENGARTNER: I obtained my PhD from Berkeley in 1993; I obtained a master's...

(UNKNOWN): One second, counsel.

Your Honor, excuse me, put this speaker is playing feedback.

SAULS: Is it? Who does that belong to?

All right. The court reporter, I'm sure, for her benefit, let me ask counsel, and I will admonish myself, that she can only take down one person speaking at a time. And when you and I try to talk at the same time, or when four of you try to talk at one time, she can't do it.

And I'll ask her from now on, if you will raise your hand when that's occurring, so that you may accurately transcribe this proceeding, Madam Recorder.

All right.

Go ahead.

ROBINSON: Professor Hengartner, you started to state your education.

HENGARTNER: Yes. I received my PhD in Berkeley from the department of statistics in 1993. I completed a master's in statistics at the University of Waterloo in Canada in 1988. And I completed an honors' degree in mathematics from the Universite Lavalle (ph) in Quebec City in 1997.

ROBINSON: Sir, what are your duties as an associate professor of statistics at Yale University?

HENGARTNER: My duties include teaching, research, and administrative duties.

ROBINSON: What classes do you teach?

HENGARTNER: I teach a wide range of classes. I teach applied statistics, I teach probability, and I teach the theory of statistics.

ROBINSON: And what are your research interests?

HENGARTNER: My research concerns methodology. It also involves data analysis and looking at numbers to learn from--to learn from numbers, essentially.

ROBINSON: And so you mentioned administrative duties. What are your administrative duties?

HENGARTNER: I'm currently the undergraduate director, the director of undergraduate studies for statistics at Yale University.

ROBINSON: In addition to your responsibilities as an associate professor at Yale, do you do any other employment?

HENGARTNER: I also am retained, and am working on two cases for the district attorney, on essentially inspection, or related to Medicaid fraud.

ROBINSON: Sir, what are your duties in those cases?

HENGARTNER: In those cases, I am asked to collect data and analyze data. The data I'm supposed to collect are actually billing statements submitted by doctors to Medicare, and trying to analyze the results.

ROBINSON: Do you do any other consulting work?

HENGARTNER: I've done some other consulting work, also. I've helped design a sampling plan for the study of the establishment of a community center in Hartford.

ROBINSON: Your Honor, we would like to offer Professor Hengartner as an expert in the field of statistics.

SAULS: Any objection? No objections. You may proceed.

ROBINSON: Professor, what is the field of statistics?

HENGARTNER: Simply put, I think it's trying to answer complex questions using numerical facts that we call data.

ROBINSON: And what do you use statistics for? What are they used for commonly?

HENGARTNER: They're commonly used to shed light, to make interpretations from numbers, on events that are of relevance. They are used to essentially learn from numbers.

ROBINSON: How did you become involved in matters related to the election of the president in the year 2000?

HENGARTNER: I was contacted by an economist from Washington, which is affiliated to the Democratic Party.

ROBINSON: Do you have an understanding as to how this economist got your name?

HENGARTNER: Yes. I understand that the chairman of my department, David Pollard, referred my name to him, saying that I might be a very qualified person to do data analysis.

ROBINSON: Did you have a prior relationship with the economist who called you?

HENGARTNER: Never heard of him before.

ROBINSON: Did you have any prior relationship with the Democratic Party?

HENGARTNER: No, I don't.

ROBINSON: Are you a registered Democrat?


ROBINSON: Registered Republican?


ROBINSON: Did you vote in the presidential election 2000?

HENGARTNER: No, I didn't.

ROBINSON: Why not?

HENGARTNER: I am not a citizen.

ROBINSON: Are you being compensated for your testimony here?

HENGARTNER: No, I am not.

ROBINSON: Is that normal for you in consulting, not to get compensated?

HENGARTNER: I hope not.


ROBINSON: What makes this one different?

HENGARTNER: Well, I must admit it's probably--it's an exciting problem. It's important; it provides visibility for both Yale University and also for myself. It's important professionally.

ROBINSON: What was the initial task that you undertook after you had been contacted in connection with this matter?

HENGARTNER: The initial task was to look, in trying to give a prediction, on the probability that the results of the election might be overturned if a full recount would proceed in Miami, Broward, and Palm Beach.

ROBINSON: Are you today offering any opinions on that subject?


ROBINSON: What subject are you offering opinions on today?

HENGARTNER: I'm going to be offering opinions about the undervote rates in Palm Beach, Miami-Dade, and Broward, and on how the recount, or the recounted votes, differ or are similar to the machine counted votes.

ROBINSON: Okay. Sir, you use the term undervote. What is an undervote?

HENGARTNER: That's a good question. Let me try to explain. I'm sure everybody is aware of what an undervote is. But what I understand an undervote to be is essentially any ballot that went through the machine at some point, and did not register a vote for any candidate. That means the machine saw it as a blank.

ROBINSON: Is that any candidate for any office?

HENGARTNER: We are going to concentrate in this proceeding on, as far as I understand, the presidency of the United States.

ROBINSON: How did you go about conducting your analysis that led to your opinions concerning the undervote?

HENGARTNER: The usual steps that a statistician would do: gather data, verify the data, analyze the data, and draw conclusions.

ROBINSON: How was the data gathered?

HENGARTNER: In this particular case, the data was originally provided by the people of the Democratic Party. It came from official newspaper sources.

ROBINSON: And is that data just what was in the newspaper, what you're relying upon today?

HENGARTNER: No, it is not.

ROBINSON: What else did you do to collect data?

HENGARTNER: It was my opinion that, although I like to rely on newspapers, I don't trust them too much when...


HENGARTNER: ... when there is an important matter at hand. And so, I tried to have written confirmation from every county, every 67 counties in the state, to confirm the number of overvotes, undervotes, and that information which are pertinent to this matter.

ROBINSON: Have you been successful in obtaining that information in the time allowed?

HENGARTNER: Given the short amount of time allowed, I would say I was surprised to get answers from over 50 counties so far.

ROBINSON: And with respect to the counties where you haven't gotten an answer, what information are you using in those counties?

HENGARTNER: I will rely on the newspaper sources that I had previously.

ROBINSON: What conclusions, sir, did you reach concerning the undervote in the presidential election in Florida in the year 2000?

HENGARTNER: The undervote rate--that means the percentage of individuals who did cast a ballot that were not registered by the machine count--varies, and it varies strikingly depending on if one uses a punch card or if one uses an optical scanner.

ROBINSON: When you say an optical scanner, what kind of technology are you talking about?

HENGARTNER: I'm referring to SIT types of forms; that is a test form where one takes a pencil and blacks out A, B, C, D, all of the above, and then essentially there's a machine that will read the marks on the test paper. It's standard procedure in academics to use things like that.

ROBINSON: And with respect to punch cards, what is your understanding of that?

HENGARTNER: A punch card is--it's an IBM card. As far as I understand, it's grown out from the '60s computer revolution, and essentially these are cards which one punches with a little piece of metal the votes that one wants to cast.


ROBINSON: Your Honor?

SAULS: Yes, sir.

ROBINSON: Professor Hengartner, I'd like you to take a look at the first chart. Can you see that from there?

HENGARTNER: No, I can't.

ROBINSON: Your Honor, would it be acceptable if the witness testified from the chart?

SAULS: Let him stand down. But counsel back here can't see. If you'd like to come around this way, then you could maybe sit down over here, so you can see.

ROBINSON: Your Honor, smaller copies have been distributed to all counsel.

SAULS: All right. Go ahead, sir.

ROBINSON: Why don't you come on around so you can actually see it and not shout across people?

Professor Hengartner, what is recorded on this first chart?

HENGARTNER: OK. On this first chart, we see here that when I analyzed the data, I've observed that about three ballots cast in counties that use optical scanners did not register in the machine count. That works out to a percentage of 0.3 percent; three out of a thousand is easier to remember.

When I compare this number to the number of undervotes I've observed in counties that used punch cards, there the rate was more like 15 ballots per thousand that did not register a vote for president. We're always concerned about the presidential vote here.

ROBINSON: Professor, with respect to that, did you do any analysis to seek to determine whether or not there was an explanation for that observed difference?

HENGARTNER: Explanation, yes. When you think of saying, well, there's a reason why they were different, then one of the reasons why they might be different is because the people living in the counties which use optical scanners or punch cards might be different. Different in which respect? Probably with ethnicity, maybe with income.

And so I did use demographic data to verify that this difference--which is, by the way, a very large difference--cannot be explained, at least by any reasonable stretch of the imagination, by simple demographic variables.

ROBINSON: In comparing, you said that's a very large difference. How large? What are the odds of that difference occurring by chance?

HENGARTNER: Yes. How large? One has to understand what a statistician does. A statistician thinks, Well, imagine that there would be no difference in counties that use optical ballots, optical scanners, or punch cards; there would be no difference, and people go in and punch the cards or mark their ballots, and get read.

Then after the fact, you've observed that for, in the counties that use an optical scanner, 0.3 percent had an undervote, whereas 15 percent would have--15.15 percent were under vote in the punch card counties.

And you ask, could that have arisen by chance, assuming that they're the same? And the answer is, I can calculate this, assuming that they are the same, and the probability that this happens, or something even more extreme, is very remote. I would judge to say that it's less than winning the lottery.


ROBINSON: What does the final column on this chart show?

HENGARTNER: Yes, this is just an example. This is the average of all counties that use punch cards. Palm Beach did use punch cards, and as it turns out, its average undervote rate--that means the number of undervotes, or ballots cast that the machine did not record--were 22 out of 1000, which is markedly again higher than the average we've observed in the other counties that use punch cards.

ROBINSON: I'd ask you to take a look at this second card.

What is shown on the first column of this second chart?

HENGARTNER: The first column again is the undervote rate that--we know what it is right now--it's the undervote rate in Palm Beach County before the manual recount occurred--that is, after the mandated machine recount, and that is the same percentage that was on the far right of the previous draft.

ROBINSON: Sorry, sir. And this chart that we--second chart is, what is plaintiff's exhibit number two, and the first chart was plaintiff's exhibit number one...

SAULS: (inaudible) don't worry about anybody else.

HENGARTNER: OK, as long as you see, that's fine.


UNKNOWN: Your Honor, just to preface, if we could make clear what these exhibit numbers on the charts are, because it's going to be confusing without making it clear, because they were separated.

SAULS: The clerk, the first one that was utilized, what was that number?

CLERK: Plaintiff's exhibit number seven.

SAULS: Let the record so reflect. Now we're at?

CLERK: Plaintiff's exhibit number eight.

SAULS: All right, go ahead.

ROBINSON: The second chart--I'm sorry. What does the second column reflect?

HENGARTNER: The second column reflects what the undervote rate was after the manual recount. As you see, it did drop from 2.2 percent to 2 percent, or 22 ballots per thousand to 20 ballots per thousand.

ROBINSON: Now, what is the relative difference between those two?

HENGARTNER: The relative difference would be--what is the difference divided by that's two out of a thousand divided by this two percent. It would be 0.2 divided by two, which is 10 percent? So the relative difference is 10 percent.

ROBINSON: And what is the--with respect to that, that's the relative difference.

HENGARTNER: That's the relative difference.

ROBINSON: What is the recovery rate that that reflects when you move from the Palm Beach before manual recount to Palm Beach after the manual recount?

HENGARTNER: I think I need to define this for the court. The recovery rate corresponds to the number--well, the difference between the number of ballots that were counted for any of the presidents after the manual recount and before the manual recount. There's a difference, and possibly some new ballots were counted or were observed. And if I take this number as a fraction of the undervote, this is known as the recovery rate. And so, in the case of Palm Beach, the recovery rate was 8 percent.

No, no, no. This is--May I, Your Honor?

SAULS: Sure.

HENGARTNER: This is 8 percent. It is confusing, and I apologize, Your Honor.

ROBINSON: OK. Now, the part that you just referred to, which is plaintiff's exhibit number 9, titled "Percentage of Votes Identified During Manual Recounts"?

HENGARTNER: Yes, it is.

ROBINSON: OK. And that 8 percent number that you refer to?

HENGARTNER: Eight percent number, again, is the difference between the votes recorded after the manual recount and before the manual recount, tallied for any candidates. Actually, here the 8 percent is tallied at--no, for any candidates, that's true, for any candidates in Palm Beach, and I take this as a fraction of the undervote.

ROBINSON: I'm going to ask you to go back to--because this next part, which is entitled "Ballots with no Recorded Votes for President in Broward," this is one of the three charts that is part of plaintiff's exhibit number 54. What's shown by this chart?

HENGARTNER: OK. As we've done with Palm Beach, we also asked ourself, what was the undervotes in Broward County, before the manual recount and after? And, again, what we've observed is that before the manual recount, the undervote rate was 11 ballots per 1,000, where after the manual recount, it dropped to eight ballots per 1,000.

And if you ask me what is the relevant change of this, I would said, well, it's a difference of 0.3 divided by 0.8, which is slightly above 0.35, a little bit more than a third, if you want. So, it's a little bit more than a third.

ROBINSON: And, looking back on it--we misspoke before, what is plaintiff's exhibit number 57--the chart with relative recovery rates, what was the relative recovery rate in Broward?

HENGARTNER: The relative recovery rate in Broward...

ROBINSON: Right behind you.

HENGARTNER: Right behind me.

This one, here.

... was 26 percent. Again, what was the difference in votes tallied for any presidential candidate before and after the hand count as percentage of the undervote. And it turns out to be 26 percent.

ROBINSON: Now, on the percentage of the votes identified during manual recount for Miami-Dade, at 22 percent, what does that reflect?

HENGARTNER: As I'm sure everybody's aware in this courtroom, Miami-Dade did not complete the manual recount, so I did the calculation only on the precincts which were completely recounted. And in the precincts that were recounted, we found that the difference between the total counted vote after the manual recount in those precincts and the total vote before, divided by the undervote in those precincts--so it's really only on the portion that was completely counted--is 22 percent, which is more or less in line with Broward County.

ROBINSON: Just so that the record's clear, with respect to Miami-Dade County, I ask you to look at the chart which says "Ballots with no Recorded Vote for President in Miami-Dade County," which is exhibit--plaintiff's exhibit number 56. And what was, before the recount, across the county of Miami-Dade, what was the undervote rate?

HENGARTNER: The undervote rate before the recount was 1.6 percent. And I would like to mention that I don't know what the undercount is after the manual recount, since it has not been completed.

ROBINSON: Now, in looking at the effect of the manual recount, did you do anything to determine whether or not manual recount had any skewing in the votes that were identified?

HENGARTNER: Yes. There was a way to look at this. I'm not sure if the word "skewing" is appropriate. But one interesting question one has to ask is, if the votes that were uncovered during the manual recount, how do they fall with respect to the distribution of votes that were counted by the machine. (inaudible) let's see what happens. That's probably the best thing to do.

ROBINSON: What you're referring to now is plaintiffs' exhibit number 10, chart entitled "Vote Shares in Broward."

HENGARTNER: So let me walk you through this graph. In Broward, after the mandated machine count, there was 31 percent (inaudible) major share. So we seek to look at the Bush-Gore vote. Thirty-one percent of the votes went for Bush, where 69 shares went for Gore.

Now, I do the recount, and there was a determination made that some of the ballots could be assigned intend to vote, and these ballots which could be identified intend to vote, once I looked at for whom the vote fell, 34 percent of these ballots that were determined in the manual recount were 34 percent, whereas there was 66 percent for Gore, which is pretty much in line with those numbers. If anything, if it would be significantly different, it would be a difference in favor of Mr. Bush.

ROBINSON: One last part, which is plaintiffs' exhibit number 56, vote shares in Broward again. How does that chart relate to the previous?

HENGARTNER: It's actually the same chart, Your Honor. This is the statistician in me talking. Statistician like to think about distribution. I like to think of the distribution before and the distribution after. This is how the distribution of machine counts look: Votes for Bush, votes for Gore. And this is (inaudible) does it have the same shape as the distribution of the additional votes or the votes that were uncovered during the manual recount in which people were able to attribute intention. And if you look, they look pretty much the same. Yes, it's true, Bush is slightly higher, but the general shape is the same. And that is the point of this graph, somehow to say there's not a big difference.

Thank you very much.

ROBINSON: Now, Professor Hengartner, after all this analysis, did you reach any conclusions concerning the recovery rate in Palm Beach County?

HENGARTNER: Yes, I did. The recovery rate in Palm Beach County is less than the recovery rate in both Miami-Dade and Broward County.

ROBINSON: OK. And did you reach any conclusions concerning the effect of the manual recount on the major party candidates.


ROBINSON: The effect on their share of the votes.

HENGARTNER: Insofar as it changing the proportions after the manual recount, no, because the votes that were uncovered seemed to follow in the same proportions than the ones that the machine counted previously.

ROBINSON: And did you reach any conclusions concerning the manual recount and its effect on the disparity that you noted between punch cards and optical scan systems?

HENGARTNER: Well, the data shows that when there is a manual recount the undervote rate decreases and gets closer to the undercount rate observed in manual--no, not manual--in optical-sensing-using counties.

ROBINSON: Thank you, Your Honor.

SAULS: I wanted the professor to remain. Let me find out if there's any cross.

BECK: Yes, Your Honor, there is.

SAULS: Oh, all right.

Is that going to affect you, Madam Reporter?

REPORTER: No, that's fine. Thank you.

SAULS: All right.

BECK: Professor, my name is Phil Beck. You said several times that you only looked at the undervotes in the presidential election this last time around, is that right?

HENGARTNER: This is what I talked about today.

BECK: And is that all that you looked at?

HENGARTNER: No, I also compared or looked at undervote rates--no, that's actually not true, so I take it back. I did not look at undervote rates, only for presidents.

BECK: OK, so we went--were you here earlier today when we went through the ballot with the earlier witness?

HENGARTNER: No, I wasn't.

BECK: OK, well, you're familiar, are you not, sir, with the fact that there was more than just the president of the United States race going on here in Florida this last November 7th.


BECK: And there are a lot of other offices that people were voting for, right?


BECK: Now, you looked at the undervotes for the Votamatic machines versus the optical scanner machines only for the president of the United States, right?


BECK: You didn't look at how the undervotes would compare for the Senate race, if there was one, or the governor race, or the congressional races and the judges and all that sort of thing, did you?

HENGARTNER: I have not seen that data yet.

BECK: Now, you don't know, I take it, whether the same pattern that you talked about with your charts, that is that the Votamatic machine has more undervotes for president than the optical scanning machine, you don't know whether that same pattern would hold true for all the other races, do you?

HENGARTNER: I have no clue.

BECK: And the fact that you have no clue about that is a fundamental flaw in your analysis from a statistical point of view, is it not, Professor?


BECK: Well, now, you understand, do you not, that the people that you volunteered to testify for are claiming that the explanation for that difference, that the Votamatics have a lot more undervotes than the optical scanners, that they're claiming that the reason for that difference is because there's something with the Votamatic machine on the left-hand column where the presidential vote is, where the rubber is hard or the chads are built up and people are trying to vote but they're unable to. You understand that's their claim, right?

HENGARTNER: I've heard something like that mentioned in the news media.

BECK: Well you also have submitted affidavits and a proffer of testimony to the Supreme Court of Florida that went beyond what you said here today and actually kind of endorsed that theory. Don't you remember that?

HENGARTNER: I did not--OK, I said that in Palm Beach County. No, actually I didn't say anything about the undervote.

BECK: Well, you say you've read something in the news media. OK, that's good enough because, as you said, you trust the newspapers except on exact numbers anyway, right?. So you know their position is the explanation for this phenomenon that you testified about is that there's hard rubber and chad buildup and scratchy templates and citizens are attempting to vote but they're just--they can't quite punch those chads through, right?

HENGARTNER: Am I an expert on this?


BECK: Do you understand that that's their claim? Do you understand, sir, that that is their claim?

HENGARTNER: It is their claim, sir.

BECK: Yes, and they say it's a lot easier to vote in the middle of the ballot and on the right side of the ballot where the rubber is nice and soft and there's not these big piles of chads, right?

HENGARTNER: I have no data on this.

BECK: Yes, I know you don't.

Now, a statistician, if you wanted to get to the bottom of this, could actually test the hypothesis of the Gore legal team, couldn't he?

HENGARTNER: Provided that the data would be available.

BECK: Yes. And do you know that here in Florida people keep track of how many votes there are, not just for president, but for all the other races as well.

HENGARTNER: Certainly, sir.

BECK: And do you think that the Democratic Party and the Gore legal team could possibly lay their hands on that information?

HENGARTNER: I actually looked at that information myself.

BECK: And you could tell from that information how many undervotes there are in these other races.

HENGARTNER: No, I can't.

BECK: Oh, you couldn't?


BECK: Well, is there data that you could get your hands on that would tell you that?

HENGARTNER: Unless the county provide me with those data specifically, or the secretary of state might have such data, I'm afraid no.

BECK: Did you ask the secretary of state's office for such data?

HENGARTNER: Yes, we called her.

BECK: And did you get it?

HENGARTNER: She was less than helpful.

BECK: Was that before or after she was sued by the Gore legal team?

HENGARTNER: That was when I asked for the data. That was probably--well, actually, I don't know.

BECK: Well, let me get at it this way. There's another plausible argument. You talked about as a statistician you want to find out what other possible explanations, not just the one from the Gore legal team, right?


BECK: And so, one thing that you do is you look at the demographics to see whether there might be some association where poor people, for example, have to use Votomatics, the old machine, and the rich people get to use the optical scanners, right? You looked at that question?

HENGARTNER: Yes, I did look at that question to try to determine if I could completely explain the difference using demographics.

BECK: Because, I don't have any idea of whether it's true, but some people claim that poor people are less successful in casting their votes than rich people, and so maybe demographics could explain something like that. Is that right? Is that why you looked at it?

HENGARTNER: I looked at the demographics aggregated at the county level. If claims like the one you're making should be revealed...

BECK: I'm not asking you about the claim, I'm asking whether you're looking whether you looked at this as a statistician to see whether it could explain the difference?

HENGARTNER: To be able to answer that question--I was trying to do that--to be able to answer that kind of question, one needs to go into much refined level of analysis. The count is just too broad, general entity. There's too much averaging over, so that such effect might possibly be visible, especially if you only have 67 counties.

BECK: So, you took a look at the data on whether demographic explanations might account for the difference, but you had a problem because you didn't have real specific neighborhood data, you had this big, sort of, county averages. Is that right?

HENGARTNER: Essentially, yes.

BECK: So, you just don't know whether some or all of this difference between the undervote percentage using the Votomatic machine versus optical scanners could be accounting for these demographic differences at the more (ph) neighborhood level?

HENGARTNER: If one uses common sense and recognizes that there are poor neighborhoods in every county, then such a position would be hard to maintain.

BECK: Given the data that you have, you think that is unlikely to be the explanation? Right?

HENGARTNER: I haven't seen the data, so I can't tell you.

BECK: OK, so you can't tell me, then. I'm just trying to figure out what your conclusion is, because we have these charts with a big bar that shows the undervotes high in the Votomatic, and the low bar in the optical scanner, and I just--you're telling me you don't know whether the explanation for that is because of demographic factors having nothing to do with the machines? Is that right?

HENGARTNER: No, that's wrong.

BECK: OK, well tell me what you think about that?

HENGARTNER: I think that if I look at demographics like racial profiles of the counties, which is the appropriate level of aggregation in which I have the data, then they can't explain all that difference.

BECK: OK, so if you look at it at the county level, which is the best you can look at right now, it doesn't explain all the difference. Right?

HENGARTNER: Absolutely right.

BECK: OK. And then you know that the Gore legal team--of course they're saying all the difference, well, the Gore legal team is saying that there is some difference caused by the machine itself, and it's that the left side of the machine, people just aren't able to register their votes. Right?

ROBINSON: Objection, Your Honor.

SAULS: I'll sustain it. I don't know if he's an expert in this. Are you trying to...

BECK: I'm trying to get to what a statistician would do to analyze that hypothesis. I'm not asking him whether he thinks that there is something wrong with the left-hand side...

SAULS: Let's put it in, and let's couch it as a hypothetical rather than as a claim.

ROBINSON: Your Honor, we ask that it be a hypothetical that actually states what the claim is, which that one does not.

BECK: I'll state a new hypothetical. I want you to assume the following: That the Gore legal team is claiming that there were lots of people who attempted to vote or voted for Al Gore, but they were unable to knock that chad through the ballot because there is something on the left-hand side of the machine that is different from the rest of the machine, because they vote more often on the left-hand side of the machine, and therefore there's more wear and tear on the rubber, and more scratches on the template, and there's a big piles of chad underneath the left-hand side, and all of those things conspire to make it harder for people to punch through the chad on the left-hand side of the machine than they do in the middle of the machine or on the right-hand side of the machine. Do you have my hypothetical in mind?

ROBINSON: Objection, Your Honor. That is an improper hypothetical, given the way he stated it.

SAULS: Overruled.

BECK: Do you have my hypothetical in mind?


BECK: Now, if you wanted to test that hypothetical, could you look--and assuming you could get your hands on the data--you could look at the undervotes in the left-hand column where there's a vote for president, and then you could go over to the undervotes in the next column for senator, and the undervotes in the next column for governor and the undervotes in the next column for all the other offices.

And then you could compare those levels of undervotes in the Votomatic with the same levels of undervotes in the optical scan. You could do that as a statistician, could you not?

HENGARTNER: Actually, no.

BECK: Why not?

HENGARTNER: Because the way the optical scan cards are laid out, they don't have columns. They are questions one after the other, like an SAT score.

BECK: Well, you could take the--because my hypothetical, you remember, we're not saying there's anything wrong with the optical scanners; we're saying that...

HENGARTNER: You're talking about the columns, though.

BECK: Yes, I'm sorry. So, let me change it.

If you wanted to test that hypothesis, that the undervotes for president is because the left-hand side of the machine has got all those problems that I enumerated, then what you'd like to do is compare the undervotes from the middle of the machine and the right-hand side of the machine to the corresponding offices in the optical scanners. You'd like to test that, wouldn't you, sir?

HENGARTNER: That would be an interesting question.

BECK: Because if in fact you had the same difference between undervotes for races that were in the middle of the Votomatic and on the right side of the Votomatic, if you had that same kind of differential with the optical scanners, why that would suggest to you that the explanation that I attributed to them, that there is something wrong with the left-hand side of the machine, that that explanation just doesn't make any sense, right?

HENGARTNER: Actually, no, sir.

BECK: And why not?

HENGARTNER: Because the races in the middle of the ballot may correspond to local races, like county clerk and things like that, which are not uniform across counties, and so we're starting to compare participation in races that are not comparable. So I don't think I can make that comparison.

BECK: Well, if you had 47 counties, for example, that used optical scanners and 47 counties that used Votomatics, and in the middle of the Votomatics there were the county judge races, and you found that there was a--not just in one particular county, because they didn't care about that race, but 47 counties--that there's a 20 percent undervote, using the Votomatic, and then you looked over at 52 counties using the optical scanner and there's only a 2 percent undervote, you say that that would be meaningless to you?

HENGARTNER: I'm sorry, sir, in which state are you?

BECK: Well, I'm making up the numbers of counties, so don't hold me to the numbers of counties.

HENGARTNER: Oh, I'm sorry, OK. Because the numbers didn't add up.

BECK: Yes. How many counties are there in Florida?

HENGARTNER: Sixty-seven, sir.

BECK: How many used Votomatics?


BECK: So we look at 15 counties that used Votomatics, and we find an undervote rate for the judges.

And then we looked at--how many counties had optical scanners?

HENGARTNER: It's still--in some judge races in some of the counties, the participation might be greater.

BECK: How many counties have scanners?

HENGARTNER: Well, there would be--I have 32 plus 9, about 40-plus.

BECK: OK. So, here I am, the statistician, and wouldn't it be interesting in testing the hypothesis that I attributed to the Gore legal team to take a look at how the undervotes compare for the county judges in my 15 Votomatic counties with how they filled out the dots in the 40-plus optical scanning counties? That would be significant, wouldn't it?

HENGARTNER: It would be interesting, but I want to remind you again, not all the races in each county will be competitive. Therefore, the participation will depend much more on who is up for election in that county than, probably, the method of counting or voting.

And so, I am not convinced. I mean, this is a hypothetical. You ask me what would I expect from such data. I'm not sure if I can see the difference, because I expect a lot of variation. There will be popular judges and hated judges.

BECK: That's why you look at all the counties, rather than just picking one county where there's a dirty, rotten judge and one county where there's a real popular judge.

SAULS: Can we move this to another race?


BECK: The congressman. You know that every two years we elect members of the House of Representatives here in the United States?


BECK: And you know that they're not elected in column one, they're elected over there in column three or four, right?

HENGARTNER: I would assume so.

BECK: So wouldn't it be interesting to you, if you really wanted to get to the bottom of this hypothesis that I keep attributing to the Gore legal team, to look and see whether the undervote differential is pretty much the same in the congressional races in the Votomatics versus the optical scanners as it is in the presidential election over there in the first column?

HENGARTNER: Again, the House of Representatives, it will be an aggregation of counties that will vote for one given representative. There will be more than one from the state of Florida, and so, depending on which county you are, you could be voting for different representatives. And, therefore, you're going to have different subgroups of different groups of counties voting for different individuals.

And so, the fact that again we're comparing different races for different individuals is confounding the problem of getting the difference between the effects of the Votomatic and the optical scanner.

It is really by looking at a major election like the presidential election that one can at least hope to see some of this effect.

BECK: Well, did you know that in the state of Florida, there's statewide elections for the state Supreme Court?

HENGARTNER: No, I didn't.

BECK: Well, take my word for it that the same fellows and ladies...

SAULS: Was there a hypothetical we're going to ask now?

BECK: Yes.

SAULS: Let's keep it in the form of hypothetical, and let's don't attribute it to anybody.

BECK: I want you to assume, Professor, that when the people of Florida vote--would you like some water here before we continue?

HENGARTNER: Thank you very much.

No, you can continue.

Thank you.

BECK: I want you to assume, Professor, that the people of Florida vote whether to retain the judges who are on the Florida Supreme Court. And I want you to assume that the same judges are up for retention in every county in Florida. And I want you to assume that there are also occasionally constitutional amendments that are proposed to the state constitution that are up in every county in Florida, the same way.


BECK: Now, if you wanted to test the hypothesis that I keep attributing to the Gore legal team, that there's something wrong with the rubber and the plastic and the chads on the lefthand side of the ballot, would you want to look at the undervote percentages for those other statewide races using the other columns of the Votomatic versus when people write it in on the optical scanner? Would you want to look at that?

HENGARTNER: Yes, provided the judges on all of the slates are presented in the same order in every county.

BECK: OK. Well, I'll ask you to assume that they are.


BECK: You'd like to look at that?

HENGARTNER: It seems like a reasonable question.

BECK: And, if in fact the Votomatic results in the same kind of undervotes, or the same kind of differential of undervotes between the Votomatic and the optical scanner, for these other races, that would be an indication that the Gore legal team just hasn't gotten it right when they're talking about the left side of the ballot.

ROBINSON: Objection, Your Honor.

Again, it's not a proper hypothetical. He's again attempting to attribute positions to this side and not asking a hypothetical question.

SAULS: Well, just strike that portion of the hypothetical that has attribution. But he's asked a question. And if the professor can answer it, he can answer it.

BECK: Can you answer that?

HENGARTNER: Yes, if you go slowly through it again.


My assumption is that we have statewide question on shall we retain the judges. And they're listed in the same order, both on the Votomatic and on the optical scanner ballot. And that we have constitutional amendments that are proposed that have exactly the same words and you vote yes or no on Votomatic and on optical scanners.

Now, if that set of assumptions in mind--you with me so far?


BECK: Now, I'm a statistician who wants to test the hypothesis that the reason that the presidential undervote is higher with the Votomatics than it is with the optical scanners is because the rubber's too hard on the left side underneath the president; the plastic template is scratched; the little piles of chads underneath, and all those things are stopping people from voting, and it's peculiar to the left side of the Votomatic.

Now, if you wanted to test your hypothesis, wouldn't you want to look at how the undervotes compare for these other statewide propositions where somebody's not on the left side of the ballot, but in the middle or on the right side of the ballot? Wouldn't you want to look at that to test that hypothesis?

HENGARTNER: I would like to test that, but I would have to ask what is the conclusion you expect me to deliver on such a test. Let me try to explain to you what I mean. If you are trying to prove and I say prove of causation that the first column physically, there's a hole or there's not a hole, that's something else than proving association.

BECK: Well, why don't you explain for the court the difference here between association and causation, because I think that's an important point.

HENGARTNER: Well, if I take a light switch, pull it down one time, the light goes off, I do it again and again, each time I do an action, I see a reaction. And in probability and statistics, the action will not always follow by the same reaction, it's going to change, but it's going to be a random interval. But if you repeat the experiment over and over again and get the same type of results, then I would say, yes, I can prove causation.

If I'm simply given, you walk in a room and the lights are off and you see the switch down and you walk in the room again and the lights are on and switch is on, do you know if the light switch has caused the light to go on and off? And so this is more or less the analogy I would like to do. So looking at a single event.

BECK: OK. So let me try one out on you. I understand that this is an analogy that's sometimes used in introductory statistics courses. There's some sort of goofy relationship between the number of storks' nest in someplace in England and the number of--and the rate of birth of babies in some other place in England. You ever heard of that example?

HENGARTNER: I didn't know that there were storks in England, but I think you referred to Alvis (ph).


BECK: Think I referred to what?

HENGARTNER: To the story is in Alvis (ph) in Poland, they have stories like that.

BECK: Ah, OK. So, anyway...


Or it's like these people who say, you know, if the Republicans win, then the NFC wins the Super Bowl. And they can find some funny relationship between those types of things over 15 years, and that relationship might be an association, but we're pretty confident it's not one thing causing the other, right?

HENGARTNER: It's probably yes.

BECK: Yes. And in fact that's something that statisticians spend a lot of their time doing, is looking at things that just because there's a relationship between two things, such as undervotes on Votomatics versus undervotes on optical scanners, that does not mean that someone actually tried to vote in the Votomatic and the vote failed to be recorded, right?

HENGARTNER: This is correct. And to come to this kind of...


BECK: ... say yes or no before you tell me whether it's good.

HENGARTNER: I was going to--well, OK. The question is it that right. I have forgotten the question.

BECK: Let me start over again. I'm sorry...

HENGARTNER: I'm a professor, I'm sorry.


BECK: That's OK. I'll start over again.

This difference between association and causation, and it's basically just because two things are related to one another doesn't mean that you know the cause of one or the other, right?


BECK: And so that, for example, you could have undervotes with the Votomatic that are higher than the undervotes with the optical scanner, but that does not mean, does it, Professor, that somebody tried to vote in the Votomatic and just wasn't able to punch the chad through.

HENGARTNER: No. And that's why you look at covariants. That's why you look at...

BECK: Covariants, you said. Yes. Go ahead.

HENGARTNER: Demographics. Demographics. That's because of course you say, Well, maybe there's something different in the people. Maybe it's--I don't want to be politically incorrect, so I'm going to pick on the whites.


HENGARTNER: I think it's the white males like myself that don't know how to punch the card. And so I'm looking at demographics, trying to say, Well, I'm comparing now the undervote rate in counties that have Votomatics and other ones which have the optical and trying to see if differences in percentage of white males may make a difference. That is the reason why we look at this.

Now, the same analogy happens again in this room, if I decided to--how would I do this here? I'm going to try to control at least some of the factors that I might think are a source of the lights on or off. For example, I decide to--oh, what could it be. There are some switches there. I'm going to take these ones over here, and they're going to walk in. And still sometimes the switch over there is going to be on and off, and the light is on and off. I will have removed the possibility, at least somehow control observationally, that sometimes the effect cannot be solely attributed to these things. So I'm trying to explain.

And, you see, statistics is very much like Sherlock Holmes. You try to remove every possible explanation. And, let's face it, the only thing that remains at the end is not as a proof, but sounds as a reasonable conclusion to hold.

BECK: I want to ask you whether you considered another possible reasonable explanation for this--the undervote differential?


BECK: And that is not that people actually tried to vote but were unable to push through the chad, but that there's just something about these machines that we've been looking at, where people get into the voting booth and they're less likely to cast a ballot for each office than they are when they sit down with the optical scanning card. Did you consider that as a possible explanation for why there would be this undervote?

HENGARTNER: Why there is an undervote.

BECK: Why there's the undervote differential.

HENGARTNER: I would like to say it's because there's a problem with the machine, but I am aware of the pitfalls in making such a statement.

One possibility might--well, I mean, it's hypotheticals. It's somehow you're asking me to go and make a judgment. If you want, I can give you what I believe.

BECK: I actually asked you whether you considered looking at that to test the hypothesis that it's because of, you can't vote well on the left side of the machine.

HENGARTNER: Again, I don't have working data on this to be able to answer that question.

BECK: Are you familiar just from, you know, talking with your colleagues in the faculty lounge, that there are people who do look at issues like this: cognitive psychologists who say that the kind of voting machine or voting method that you use influences how likely it is that someone's actually going to vote for each and every office.

HENGARTNER: I haven't heard that, but this might sound plausible, although I'm not sure how large the effect would be.

BECK: Because you never studied it.

HENGARTNER: I didn't study that.

BECK: OK. Let me--we've gone around and around on this.

I take it you have no opinion that you're here expressing today about why there is this variance between the undervote in the Votomatic machines versus the undervote in the optical scanning machines.

HENGARTNER: I have many opinions but I have no proof.

BECK: Well, I want to make sure I didn't miss something. Did you express any of those opinions so far?


BECK: OK. So if you have an opinion on why that happens, you're keeping it to yourself for today's hearing.

HENGARTNER: Because I don't have the data to support them.

BECK: Did you, sir, attempt to collect some data from prior elections to test the hypothesis that the reason that there's this big undervote difference in the presidential race is because there's something about the left-hand column that people just are not as likely to be able to push the chad through?


BECK: And as I recall--well, you have filed what we've referred to here as a proffer of direct testimony in the Supreme Court of Florida; right?


BECK: Just a couple of days ago? And did you also sign an affidavit--I can't remember. You signed an affidavit, too, didn't you?


BECK: And that was one that was being used by the Gore legal team when they were fighting in some other courts about these ballots; right?


BECK: And in that--in your affidavit and your proffer of proof, did you talk about you wanted to test this hypothesis, that there's something about the left-hand column that thwarts people as they're trying to vote, and so you compared some data from other elections--another election that took place a couple of years ago?


BECK: OK. And that was the 1988 election; right?


BECK: 1998.

HENGARTNER: Thank you.

BECK: OK. In the 1998 election--well, let's look at what your proffer said to the Supreme Court of Florida.

Is this up here on the screen--I don't know if you can see it.

SAULS: You'll have to turn it around...


BECK: He's got a screen there, Your Honor, I think he can see, too.

HENGARTNER: Oh, I have a screen here, but...

BECK: Is this up here...

SAULS: He's got a screen in front of him.

BECK: Yes.

This proffer of direct testimony of Nicholas Hengartner, is that what you submitted to the Supreme Court of Florida?

ZACK: Your Honor, that misstates the document. It's clearly captured for the Leon County--for this court.


BECK: Oh, I'm sorry. We'll it was--well, did you know it was being submitted to the Supreme Court of Florida, Professor?

HENGARTNER: No, I didn't.

BECK: OK. Well, it was--so this is something that you understood was being submitted to this court.

HENGARTNER: Actually I understood that this was a draft, and I wasn't aware that it was submitted, but...

BECK: OK, well, you're aware--well, you--let's take a look at something else, then, that you were aware of.

Here's a sworn affidavit of Nicholas Hengartner. And you can ignore the "Bush for President" at the top. That was a fax indication rather than on your affidavit.


HENGARTNER: I see. I was looking for rat somewhere in there too.


BECK: Well, I think we'll actually find something very much like that as we go through here.

So, let's move on. And is that your signature there...

HENGARTNER: Yes, it is.

BECK: ... on the last page of this affidavit.

The--let's go to paragraph six of your affidavit.


BECK: And let's see if I can get the two--oops, excuse me. I'm going to try to get all of paragraph six up in front of us.

OK, so we start over here. That's the beginning of paragraph six. I'm just going to stick that up out of the way for a minute; get these on top of one another. OK, here we go. And I'll just kind of read along here and ask you what you were doing in this experiment.

"I have analyzed the number of votes cast in the senatorial and gubernatorial races in the 1998 election for all 67 Florida counties. On statewide in that election, 1.6 more--1.6 percent more votes were counted in the gubernatorial race than in the senatorial race statewide."

So both of these were statewide races, right?

HENGARTNER: Yes, they are.

BECK: And so statewide, a little bit more, 1.6 percent more were for governor's race than the senator's race, right?


BECK: In Palm Beach County, there were 3.5 percent more votes in the governor's race than the senator's race, right?


BECK: So here we've got a bigger differential in Palm Beach than elsewhere. Now you say it's the fourth largest ratio in all the 67 counties, all of which corresponds with counties using punch cards. Now what is--it says, "In fact, of the 27 counties that relied on punch cards, 17 had a ratio higher than one, while in the 38 counties that used an optical system, only 14 had a ratio higher than one.

Statistically, there is evidence that there is an association between the type of voting system used, and the ratio of the number of participants in the gubernatorial and senatorial races." Now let me just stop there.

What you're saying is that, what kind of voting machine you use, there's a relationship between that and whether there's more people voting for governor or more people voting for senator, right?


BECK: So that if you used the optical scanning method, you get a different number than if you used the Votomatic method, right?


BECK: OK. And then it says, "This suggests...

HENGARTNER: Well, can you repeat the last question just to be sure what I said right too?

COURT REPORTER: Yes, sir. Do you want me to read that back?

BECK: Sure.

COURT REPORTER: "So that if you used the optical scanning method, you get a different number than if you used the Votomatic method, right?" Answer: "Right."

HENGARTNER: Different number in what?

BECK: Well, I'm not sure what I meant by number, but you tell me what you meant so far in the stuff that we've read?

HENGARTNER: Do you understand what the ratio bigger than one means?

BECK: I think so, but I'm not sure that everyone else here does, so...


So why don't you help out the unenlightened.


HENGARTNER: OK. A ratio bigger than--so what I'm comparing here is the number of votes cast for the senate race. And I'm comparing that with the number of votes cast for the governor's race. And just so that the number jives and are consistent, what I wrote there, I looked at the ratio of number of votes cast for the governor divided by the number of votes cast for the senator.

That is, possibly if there are more votes cast for the governor than the senator, the ratio will be bigger than one. If there are less votes cast for the governor than the senator, the ratio will be less than one. If I talked about the 3.5 more votes, that means simply the actual fraction, or the ratio, was 1.035. So that's what I mean by these numbers.

So I'm comparing now and asking myself, looking at the governor's race, or how many of these counties had an increase in participation, and how many of these counties had a decrease in participation, depending on if they used punch cards or optical scanners.

BECK: OK. Now then, I put up the remainder of paragraph six--the paragraph that we were on--and it says, "This suggests that the observed defect cannot be solely explained by the geography, demography or socioeconomic effect." Same kind of thing you talked about before in terms of the undervotes in these counties versus optical scanning counties, right?

ROBINSON: Objection, Your Honor. I think a sentence was left out of the reading.

BECK: I'm sorry, what did I leave out? I'll go right up there. Excuse me.

Here we go: So starting at the top--is this right now, counsel? You want me go higher? I'll tell you what I'm going to do. I'll go right to the top. And if I read this before, forgive me. So we went through these numbers--I'm just going to point up here so we're all in the same place--we went through that more for one in Palm Beach then in the rest of the state, fourth largest ratio, etcetera. I think we've got it listed here.

"In fact, of the 27 counties that relied on punch cards, 17 had a ration larger than one"--we got that far, remember--"while of the 38 counties that used an optical system, only 14 had a ration larger than one." Now, let's continue on.

"Statistically, there is evidence that there is an association between the type of voting system used and the ratio of the number of participants in the gubernatorial and senatorial races. Both the punch card and the optical voting system are used across the entire state"--that's the difficulty we had before, with the judges, right, but here we've got statewide elections, so everybody's voting for the same guys in the same order, right?


BECK: Well, that's why you put it in there, right?

HENGARTNER: No. What I said is that both of these elections do appear statewide.

BECK: Fine. "This suggests that the observed effect, that is the difference between who's voting for whom, cannot be solely explained by geography, demography, or socioeconomic effect." In other words, it's not that the guys who are voting more often for the governor are rich people, and the people voting more often for senator are poor people, or vice versa. You're saying that's not the cause of this disparity, right?

HENGARTNER: Not solely.

BECK: OK. Then you say the only logical conclusion which remains is that the voting method differentiates between the races. When you say races here, you mean the offices that people are running for, not black and white type races. Right?


BECK: So it's the voting machine differentiates between the offices that people are running for. OK?

ROBINSON: Again, objection. It's the voting method?

BECK: The voting method, I'm sorry. The voting method--because there is no machine with the optical scanners; you just, you fill in the little dots or the holes. Then you say, "A closer inspection of the Palm Beach County ballot reveals that the senatorial race was recorded in the first column and the gubernatorial race was recorded in the second."


BECK: OK, so let's just draw upon my board over here so we can keep this in mind. Here we have a row, the first row, that's the column on the left side of the ballot, right? I'm pretending that these are little holes that you stick the stylus through and you punch out the chads. OK?


BECK: So, this is the left side of the ballot. And which race is over here on the left side of the ballot?

HENGARTNER: I believe it was the senate race. Do you know why?

BECK: And then your affidavit said that a closer examination of the Palm Beach ballot said that a section of the--what is it, it was the governor's race in the second row. Right?

HENGARTNER: That's what I think, yes.

BECK: So we've got the second row here. Then let's continue on with what your affidavit said. It says here that, "If the optical voting method is neutral"--that means that on the little IBM cards that you fill in the holes--if that method "is neutral with respect to the column position of the races, it must be that either the punch card reader records fewer first column votes than were first cast, or the punch card reader"--it's down here--"it must be that either the punch card reader reports fewer first column votes than were cast--"

Let me just stop there. What you mean by that is, people tried to vote, but they were unable to punch that chad through, right?

HENGARTNER: Let me see.

BECK: I might be able to direct your attention...

HENGARTNER: No, no. That's fine. I just need to read it. (inaudible) this is bad English.

BECK: Well, no one's faulting your English. Let's just focus on what you meant.

What you said here is that it must be that either the punch card reader records fewer first column votes than were cast, so the first half of that is, it must be that either people are trying to vote, casting votes, but it's not getting recorded in the first column, for example because of the hard rubber, whatever, you know, or--where's the or...

HENGARTNER: Or's somewhere. Or the punch card reader records more votes, the second column votes.

BECK: "Or the punch card reader records more second column votes than were actually cast."

HENGARTNER: That is a mistake.

BECK: Yes. That doesn't make any sense.

HENGARTNER: No. That doesn't make any sense.


HENGARTNER: That's why I said it's bad English. That's...

BECK: Yes. So what you're saying then is the second answer doesn't make any sense. I'll just set--we'll set that aside.

HENGARTNER: I apologize.

BECK: No apology necessary.

But what you did say, then, is that the only explanation for this difference is that punch card doesn't record it every time somebody tries to vote in the first column, right?

HENGARTNER: Or there are more votes cast for the second race.

BECK: Now, comparing the first column senatorial race with the fifth column controller race--so we go all the way over to the fifth column--and this is the, what, the controller?


BECK: I'm not going to fill in the other lines.

And then what did you say about comparing the Senate race to the controller race?

ROBINSON: Your Honor, we object. This is all on an affidavit that's not part of this witness' opinion in this case, and it's just taking time and time and time going over matters to which--he didn't offer that opinion in this case.

BECK: Your Honor, it's going to be highly relevant to this witness' credibility.

SAULS: He's the one that (inaudible) I'm going to (inaudible)

BECK: So, go ahead. What do you--you compare it to the fifth column controller race, more votes for the controller than for the Senate race, right?

HENGARTNER: There's more votes for controller than Senate, yes.

BECK: And so, then you say the only other place where that happened was in Duval County. Then you say down here, "This seems unusual and suggests that the punch card reader does not record all the votes cast in the first column." That's what you said this analysis suggests, right?


BECK: Well, isn't that what you said?

HENGARTNER: Well, what I'm saying is that this is unusual, because the controller is not a competitive race compared to the Senate race or the gubernatorial race, and I would have expected a drop-off in participation.

Now, I don't know personally if that controller wasn't the most popular guy, but that's what I'm saying, it is unusual.

BECK: And what you said in an affidavit that you knew the Gore legal team was going to be using in the different counties in their litigation was that this is not only unusual, but it suggests that the punch card reader does not record all the votes that were cast in the first column.

In other words, you bought in to their hypothesis about the left-hand column, right?


ROBINSON: Objection, Your Honor. Again, he's attempting to characterize (inaudible)

SAULS: Overruled. He's going through it.

HENGARTNER: I'm trying to put one and one together. In the first statement, I say, there seems to be something to be going on with either more people voting for senator or governor, depending on which type of system they're using, and then I'm saying--I take a special case, which is Palm Beach, and then comparing their races in particular, I note that this is--it's not very strong evidence, but it suggests--is that what I wrote?

BECK: Suggests, you said.


BECK: And, in fact, you did say, in fairness, in your sworn affidavit, while intuitively evident, further study will be required, right?



Now let's take a look at what was filed, and you said this was--the thing that was filed in this court as a proffered proof, and then that was also sent to the Florida Supreme Court--you didn't know that they were actually filing that thing, is that right?

HENGARTNER: I didn't know it was filed in the Supreme Court.

BECK: Did you know it was going to be filed? Did you know that it was going to filed in this court?

HENGARTNER: Yes, I did, but I didn't think they filed it--I thought they had time to read it and proofread it. And so there are mistakes in the proffer.

BECK: Yes, yes, there are.

HENGARTNER: And so if it's only a draft, again, it's--given the speed with all these things have gone, it's very hard. Don't forget my expertise is data collection, data analysis.

BECK: You filed the affidavit, sir, so I got to ask you about what you filed.

ROBINSON: Objection, Your Honor, again, he's not referring to an affidavit. He's referring to a document that this witness didn't sign.

BECK: OK. Let's look take a look at the document that the Gore legal team filed in this court and filed in the Supreme Court of Florida. Do you remember what we said (inaudible) put them next to each other.

Well, here what we're going to do is compare--and I'll represent these, sir, that most of the paragraph, or all of the paragraph on the left is identical to what we just went over with the exception of just at the very end. And I'm going to show you that.

OK. So I'm going to put these the other way around here because we already went over the affidavit. The affidavit's the one in the single space on the top. And the thing that you signed under oath said that it seems unusual and suggests that the punch card reader does not record all the votes cast in the first column. And then you qualified it in your sworn statement: while intuitively evident, further study will be required. Right?


BECK: And now we're down to the one that the lawyers filed without your knowledge. And it says: Only the controllers...

ROBINSON: Objection, Your Honor.

BECK: That's what he testified to, Judge


ROBINSON: ... about his knowledge. He said he thought there would be an opportunity to go back over it and look at it and make corrections. He knew it was filed in this court, not in the Supreme Court.

SAULS: You can cross. You can come back on redirect. Go ahead.

BECK: Well, I'm going to just move this up so we can see it and we don't get the thermostat in the way. Here we go.

So here we are in what was filed in this court and in the Supreme Court of Florida as your direct testimony. And it says: This seems unusual and indicates that the punch card reader does not record all the votes cast in the first column. And they left out the part about how while it was intuitively obvious, further study would be required, right?

HENGARTNER: It appears so.

BECK: Now, just backing up into either one of these. In your sworn affidavit, sir, earlier in that paragraph, you said a closer inspection of the Palm Beach ballot reveals that the senatorial race was recorded in the first column and the gubernatorial race in the second, right?


BECK: Now, Professor, you've never inspected the ballot that was used in 1998 in Palm Beach County, closely or otherwise, have you?

HENGARTNER: I have not seen the ballot.

BECK: Well, I got one this morning, a sample ballot. And we subpoenaed from Palm Beach the official one and we'll be getting that soon.

With Your Honor's permission, I'd like to put the sample ballot up on the elmo here. It's a sample ballot from 1998 Palm Beach County and we'll be getting the official one up as soon as they produce their documents.

SAULS: All right.


BECK: This is the first page of the ballot, you understand now? And this is the second page of the ballot.

SAULS: Can you read that, Professor, it's difficult. If you need to move a little closer, do so, sir.

HENGARTNER: No, I do see some of it. I don't see it.

BECK: Let me take it off of this. Do we have another one?

Oh, we just got the actual ballot, I'm told. Well, sample ballot, same thing that's up there. Let's you and I look at this.

May I stand with the witness, Your Honor?

SAULS: That would be fine, sir.

BECK: And do you understand, sir, that this thing I'm pointing to on the left, that's page one of the ballot.


ROBINSON: Your Honor, do they happen to have copies of that for counsel?

BECK: It's the only one we have, Your Honor. So if you want to come up here and stand with us, I'd sure invite you to.

SAULS: All right.

BECK: We got page one of the ballot.

That's what we've got over here on the left side. It's page one up in the left-hand corner, right?

HENGARTNER: I do see it, sir.

BECK: OK. And then page two of the ballot, that's what we have over here that we just panned to, correct?


BECK: Now, let's look again back at page one. And do you understand, sir, that the way these ballots work, on page one, everything that's on page one you vote for in the first column, like that black column over there under Senate. Do you understand that's how the ballots work?

HENGARTNER: Yes, I understand, sir.

BECK: OK. Now you read please, for the court, because this is a little bit out of focus, what is the race here at the top of column one?

HENGARTNER: Oh, but I cannot read. This is the congressional, United States senator.

SAULS: That's better. That's better. OK.

BECK: OK. And then what's right underneath the United States Senate in column one?

HENGARTNER: State governor, lieutenant governor.

BECK: So what you said in your sworn affidavit was in column two was actually in column one, right?

HENGARTNER: It was the second race, sir.

BECK: Was it in column one on that ballot or not?

HENGARTNER: My understanding was it was the second race and should have been in column--a mistake. It was the second race and that's where that--and then to the right.

BECK: Well, in your affidavit, you didn't say the fact that it was the second race was what's important. You said that the fact that the Senate was in column one and the governor was in column two, why, that seemed to suggest that the voting machine wasn't recording all the votes cast in column one, because the guys in column two were getting more votes. Do you remember that?

HENGARTNER: I said that it was possible, yes.

BECK: And you can see here that that sworn affidavit of yours, as well as the proffer that the lawyers submitted to this court and the Florida Supreme Court, that just wasn't true, was it, sir?

HENGARTNER: It contained a mistake.

BECK: And as you said, notwithstanding what your affidavit said about a closer inspection of the ballot, you never even looked at the ballot, right?

HENGARTNER: I've looked at the order in which the races were run, sir.

BECK: And when you signed that sworn statement, you were relying on the Gore legal team to give you the straight facts, weren't you?

HENGARTNER: I relied on the facts that I received, yes.

BECK: That's all that I have, Judge.

SAULS: All right. Thank you, sir.

Your redirect.

ROBINSON: Do the questions about the affidavit and the ballot have anything to do with any of the opinions being expressed here today?


ROBINSON: And what were your focus of the opinions you expressed here today?

HENGARTNER: They were on the undervote rates in counties using punch cards and optical systems.

ROBINSON: Now, you got--there were a number of hypotheticals that were put to you concerning if you're going to look statewide in Supreme Court races and constitutional amendments. Would it matter to you, if you were trying to do a real hypothetical analysis, whether or not there were differences in the interest in those races by county?

HENGARTNER: This has definite impact on the undervote rate, yes.

ROBINSON: Right. Where, for example, a judge might be from a particular county and therefore there would be more interest in their retention rates?


ROBINSON: Or the constitutional amendment might have a local, particularized local impact, and therefore more people might be interested in it.

HENGARTNER: This is possible.

ROBINSON: With respect to the undervote that you saw...

SAULS: Are we going to limit our redirect as to the scope of cross, which was the rule? I'm not--as long as everybody's here. OK.

ROBINSON: With respect to the undervote that you identified, that you were questioned about, the demographic factors that go into that, were there any demographic factors that you identified that explain that difference?

HENGARTNER: Demographic effects?

ROBINSON: That explain the difference that you observed in the optical ballot and the punch card?

HENGARTNER: Not to the extent that it's observed, no. It couldn't fully explain that difference.

ROBINSON: Actually don't have the same technology. Is it possible for you to put back up that affidavit and read his paragraph from before?

BECK: Sure (inaudible) do that.

ROBINSON: I think you turned off the...

BECK: Yes. We have to plug this in, too.

Excuse me.

BECK: Here we go. What would you like me to do?

ROBINSON: Paragraph four of his affidavit.

BECK: Want me to zoom in on it?

ROBINSON: Just so we can read it.

And would you just--this is part of the same affidavit you were talking about, correct, sir?


ROBINSON: And would you read that paragraph for the record?

HENGARTNER: Yes. "Both punch cards and optical voting systems are used in counties located across Florida in both urban and rural areas, and in counties with various ethnic and racial and political profiles. Therefore, the observed differences in undervote rates does not seem consistent with the hypothesis of voter apathy towards the presidential election explained by broad geographic, demographic and socioeconomic factors."

I want to be (inaudible), but I think that, simply put, the problem lies with the people but--lies not with the people, but with the voting machines.

ROBINSON: Thank you.

SAULS: May the witness stand down, without objection.

All right, at this time the plaintiffs will call another witness.

UNKNOWN: May we be permitted...

SAULS: Yes, sir. Mister--who was that? That was Mister--oh, part of that is Mr. Beck's, too. With your permission, Mr. Booth would like to return to being able to see.

Plaintiffs call the next witness.

BOIES: Your Honor, that completes our two witnesses (OFF-MIKE). If the court would just give me a moment to make sure that we've (inaudible) all of our exhibits...

SAULS: Would this be--would you suggest maybe this is an appropriate time to take a 15-minute recess?

BOIES: This would be great for us, Your Honor.

SAULS: Be well-taken.

We'll stand in recess until 4:15.


SAULS: All right. Are we ready to proceed? Plaintiff. Do you wish to call your next witness.

Your Honor, I'd like to call the court's attention to the presentation we'll make--it doesn't have to be made at this time--based on the stipulated facts that are in the Nassau County.

SAULS: Will those (inaudible) I've admitted it, but then it can be...

DOUGLASS: Right, and we will argue the legal matter (OFF-MIKE)

SAULS: Yes, sir.

DOUGLASS: Your Honor, just as a clarification, there would be the possibility for one aspect of it to have a witness, the supervisor of elections, to the particular aspect of the stipulated agreement, not addressing this (OFF-MIKE).

SAULS: You may present and rebuttal, if there's any matter that's presented that you need to present rebuttal, then you may do so.

DOUGLASS: We're only going to present what we have already stipulated.

SAULS: Well, that's up to you. If anybody submits something that may contradict any of the stipulated evidence, then you of course would have the opportunity to rebut it.


SAULS: Yes, sir.

KITCHEN (?): Your Honor, our plaintiff's exhibits 46, 47, 48, 49, and 50 have been delivered now to the clerk and marked. They were already offered in the first wave, if you will, of plaintiff's exhibits. But the court now...

SAULS: Counsel, did you see those exhibits to see that those are the appropriate exhibits?

(UNKNOWN): Were those the charts?

SAULS: No, 46 was either a duplicate of exhibit number 14, and the 47 was the election certificate of Palm Beach County; 48 was a Palm Beach Certificate of the second machine count on November 14, as I understand; 49 was the Palm Beach final certificate at the close of the manual count on December 1; and, 50 was the tally sheets of the Palm Beach recount. Is that not correct? All right.

(UNKNOWN): That being so, Your Honor, we would all just want to expressly reserve the right to double-check the numbers of our exhibits when we're through here...

SAULS: Of course.

(UNKNOWN): ... To make sure we don't have something criss-crossed (OFF-MIKE)

SAULS: By all means. At this time, then, the plaintiffs rest?

BOIES (?): We do, Your Honor.

SAULS: All right then. The defendant may proceed.

RICHARD (?): Your Honor, for purpose of preservation of the record, George W. Bush moves for the record directed (ph) verdict, or more properly, entry of judgment, for the failure of the plaintiffs to prove a prima facie case. That because we assume that Your Honor will, given the nature of this case, want to reserve on that, I will not ask to argue it, and I just make the motion for the record at this time. And we are prepared to call a witness, if that's your desire.

SAULS: Same motion.

(UNKNOWN): Yes, Your Honor.

SAULS: All right. Let the record so reflect, and the court will reserve a ruling on that subject to its renewal at the close of--subject to its renewal at the close of all the evidence in this case. All right.

(UNKNOWN): Your Honor, may I suggest at this time that it would be helpful if we understand what your plan is with respect to time. We have some witnesses who need to leave town, we've got others who are here and are prepared to stay over, but need to know what the plan is, since we obviously are going to have to go over at least a portion until tomorrow and possibly Monday.

SAULS: Why tomorrow? Well, I believe we started out that it was the last person standing.

(UNKNOWN): We're prepared to keep going.

SAULS: Let's keep going to see where we go.

DOUGLASS: In that case, your honor, for our first witness we call Richard Grossman.

(UNKNOWN): Mr. Clerk, by your leave, I'll swear the witness.

CLERK: Yes, sir.

SAULS: Will you raise your right hand, sir? Do you solemnly swear upon the testimony you're about to give will be the truth, the whole truth and nothing but the truth, so help you, God?


SAULS: Be seated, sir. You may proceed.

DOUGLASS: I have to apologize to Mr. Boies. We had intended to call Mr. Grossman third or fourth, but he's got to leave town. As long as we're going to be staying here late, we actually could start with Mr. Burton, and that way Mr. Grossman could come back. And would you be ready then?

BOIES (?): Sure, absolutely. We just have (OFF-MIKE)

SAULS: You need to temporarily change the order, if you will, sir.

DOUGLASS: Yes, you did a nice job so far, Mr. Grossman.

SAULS: Go home and rest.


(UNKNOWN): And we may have to go get Mr. Burton. We knew we were supposed to have people lined up, but we didn't think we'd be quite this quick.

BARTLETT: Your Honor, my name is Fred Bartlit, and I'll be taking the next witness, with the court's permission.

SAULS: Yes, sir.

BARTLIT: George W. Bush and Dick Cheney call Judge Charles Burton.

SAULS: Judge Burton, as a constitutional-judicial officer of the state of Florida, you will testify under oath.

BURTON: Thank you, sir.

BARTLIT: What is your name?

BURTON: Charles Burton, B-U-R-T-O-N.

BARTLIT: Where do you live?

BURTON: In Palm Beach County.

BARTLIT: What is your business or profession?

BURTON: I'm a county court judge serving in the criminal division.

BARTLIT: How long have you been a judge, Judge Burton?

BURTON: Since May of 2000.

BARTLIT: Were you a member of the three-member canvassing board in Palm Beach?

BURTON: Yes, sir.

BARTLIT: Were you chairman of the canvassing board?

BURTON: Yes, sir.

BARTLIT: Who were the other two members of the three-man board?

BURTON: It was the supervisor of elections, Theresa LePore, and County Commissioner Carol Roberts.

BARTLIT: Are you a registered Democrat?

BURTON: Yes, sir.

BARTLIT: Is Ms. LePore a registered Democrat?

BURTON: From what I've heard, yes. I don't know for a fact.

BARTLIT: Do you know if Ms. Roberts is a registered Democrat?

BURTON: Again, I believe she is. I don't know that for a fact.

BARTLIT: Are you here voluntarily, without subpoena?

BURTON: Right. I was asked to be here by the county attorney.

BARTLIT: Now, can you see on your screen a timeline?

BURTON: Yes, sir.

BARTLIT: Now, Judge Burton, what we're going to be doing is asking you about the standards that the Palm Beach Canvassing Board applied during certain periods of time.

BURTON: All right.

BARTLIT: We know the election, of course, was at November 7. On November 11, did you start the 1 percent recount?

BURTON: I believe so. I'm not 100 percent of the date.

BARTLIT: Now, before you began the 1 percent recount, did you review Section 5614 regarding canvass of ballots?

BURTON: Right.

BARTLIT: Let's take a quick look at 5614 please. And we'll look at the heading of the statute for the record, and then we'll go to the second page.

The second page says, "No vote shall be declared invalid or void if there is a clear indication of the intent of the voter as determined by the canvassing board." And then it says, "If it is impossible to determine the elector's choice, the elector's ballot shall not be counted for that office."

BURTON: Yes, sir.

BARTLIT: From the time you began canvassing ballots in Palm Beach, did you have in mind the strictures of that statute that you had before you?

BURTON: Yes, sir.

BARTLIT: Now, let's go back to when you're starting on November 11. When you first started looking at ballots to determine the intent of the voters, did you start with a 1990 resolution of an earlier Palm Beach board?

BURTON: Yes, sir, that would be correct.

BARTLIT: And let's put that on the screen.

BURTON: That would have been a policy that I believe Judge Gross (ph), who at the time was a county court judge, had come up with.

BARTLIT: Is exhibit 46 that earlier policy?

BURTON: Yes, sir, that is it.

BARTLIT: Let's take a look at the date. Adopted November 6, 1990, by Judge Gross (ph), Ms. Winchester and Ms. Elmquist (ph). How did you learn of exhibit 46, Judge Burton?

BURTON: I don't recall, to be honest with you. I think the supervisor of elections, or it could have been the county attorney, somebody had produced a copy of it, and we were kind of using that as our guide at the time.

BARTLIT: Now, these earlier 1990 guidelines that you told us you started out using said that a chad that is fully attached, bearing only an indentation, should not be counted as a vote; an indentation is not evidence of intent to cast a valid vote.

BURTON: Yes, sir.

BARTLIT: Was that the standard that you first used when you first started the 1 percent recount?

BURTON: Yes, sir.

BARTLIT: Shortly after you started the 1 percent recount, did you change the standard that you and the others were using to determine the intent of voters?

(UNKNOWN): Objection, Your Honor. Relevance.

SAULS: Overruled.

BURTON: You're still talking about the 1 percent recount?

BARTLIT: Yes, sir.

BURTON: Somebody brought up the issue of dealing with the sunshine rule, if you will, that if you could see light through an indentation that should be counted as a vote as well.

And so things started getting a little muddled because we were on the one hand operating under the 1990, on the other, the sunshine rule. And what I was finding was, quite honestly--for example, let's say a couple of the ballots had a couple of dings or impressions in it--I mean, there could have been a pinhole of light through one of them, and those were now being counted as votes. So I was a little uncomfortable at where we were heading.

BARTLIT: Just so we're clear, at the time of the November 7 election, the election we're talking about, it was Exhibit 46 that was the policy that was in effect within Palm Beach County.

DOUGLASS: Your Honor, may I have a continuing objection to this on obvious (ph) grounds?

SAULS: Yes, sir. Let the record so...


BURTON: During the 1 percent recount, yes, sir.

BARTLIT: It was also the policy that was in effect as of November 7 when the voters came out and voted in Florida: Is that correct?

BURTON: Yes--I mean, obviously the policy existed, and as you well know, the canvassing board has not had much activity, or this kind of activity, since 1990. So obviously it was there and it was in existence.

BARTLIT: Now you told us--and we're still back at the time of the 1 percent canvass...

BURTON: Right.

BARTLIT: ... 1 percent count, you said sometime during that day you switched to the sunshine rule?

BURTON: I don't recall who brought it up, whether it was Commissioner Roberts or the--somebody had brought up the sunshine rule. And as we were in there doing the recount, that seemed to be being applied in what I felt was not really consistent with the policy we had agreed--necessarily agreed to go forward, which is this policy here, Exhibit 46.

BARTLIT: But did you change after conferring with the other two board members and start using the sunshine rule?

BURTON: We did.

BARTLIT: Now let's stop for a second, please. We've all heard about the sunshine rule. Can you tell the nation and the court: What was the sunshine rule and how was it applied?

BURTON: Well, the way we were applying it is that any--any light that was coming through any indentation on a ballot, if you could see light through it, it was being counted as a vote.

BARTLIT: Would you hold the ballot up in front of a bright light or...

BURTON: Well, we'd just hold it up, the...


BURTON: My now familiar pose: holding a ballot up.


If we could see light through it, we were counting it as a vote.

BARTLIT: Karnack pose.

BURTON: Well, I wouldn't go that far, but...

BARTLIT: (inaudible) never got to ask you--I asked you about the three people who were the board members, and you said you were a registered Democrat, you thought Ms. LePore was, you weren't sure about Ms. Roberts. Were most of your decisions on these ballots unanimous?

BURTON: They were, and particularly in the 1 percent. And even when we reached a certain point, we had done I think one precinct. And I was a little concerned about the standard we were applying because, number one, it wasn't necessarily consistent with Exhibit 46, and so I brought that up, that I felt--you know, we were seeing--particularly we were seeing a number of ballots with a couple of impressions down the presidential column, and on one of them you may see a pinhole of light and we're counting that as a vote and we're ignoring, you know, the other impressions.

So I brought that up again to the board, and that's when we kind of shifted back I think during the 1 percent to the 1990 guidelines, your Exhibit 46, and then we wound up redoing that first precinct again.

BARTLIT: Well, on what basis did you finally do the first precinct for what I've got marked as period number one up there? Was it the--it's on your screen also--was it the sunshine rule or the no-indentations-count rule?

BURTON: Initially, it was the sunshine rule, and then we went back--and went back to your Exhibit 46, and we actually redid that precinct.

BARTLIT: Sometime during the first 1 percent recount, that I've got marked as period one...

BURTON: Yes, sir.

BARTLIT: ... did you use the--did you find out that Broward County was using what was called a two-corners rule?

DOUGLASS: Objection, Your Honor, foundation.

BURTON: That was not... `

SOULS: I'll sustain that.

Ask him if he understands...

BARTLIT: Have you ever heard the term "two-corners rule"...


BURTON: Yes, sir.

BARTLIT: What's the two-corners rule?

BURTON: That did not come up at the 1 percent recount. That came up prior to the full recount. But in any event, two corners, meaning a vote would not be counted unless two corners of the chad were punched out.

BARTLIT: We'll come back to that later, then.

OK, we finish the 1 percent recount, and is it accurate that Vice President Gore gained 19 votes?

BURTON: I believe it was a net of 19 votes, yes, sir.

BARTLIT: Now between November 11, when you did the first recount, and the November 16, when the manual recount began, were there some hearings before Judge Labarga?

BURTON: There was at least one before Judge Lebarga that I'm aware of, yes.

BARTLIT: Did those hearings involve a standard that you were to use in judging the intent of voters from indentations, dimples? Did you use the term "indentations" and "dimples" interchangeably?

BURTON: I did not. It seems to me everybody else is. But I understood a dimple to be where the belly of the chad is, for example, punctured, but the four corners are still attached.

BARTLIT: Was there a hearing before Judge Labarga on how you should judge the intent of voters from we'll call them dimples?

BURTON: Yes, sir.

BARTLIT: Did Judge Labarga enter an order?

BURTON: He did.

BARTLIT: Is exhibit 39 the order that Judge Labarga entered?

BURTON: Yes, sir.

BARTLIT: It says, "Done and ordered in chambers at West Palm, this 15th day of November, 2000, Jorge Labarga, circuit court judge." Was this order delivered to you?

BURTON: Right. At some point I discussed an order; it was brought to our attention by the county attorney.

BARTLIT: Now, Judge Labarga's November 15 order says that the state election statute contemplates that no vote is to be declared invalid or void if there's a clear indication of the intent of the voter. Of course, that's what the statute says, isn't it?

BURTON: Yes, sir.

BARTLIT: It goes on to say that the second sentence says the present policy restricts the canvassing board's ability to determine the intent of the voter. Was that the 1990 policy, my exhibit 46?

BURTON: Correct. And that was by the, you know, the per se policy...

BARTLIT: Yes, sir.

BURTON: ... if you will, of excluding dimples or indentations.

BARTLIT: So we get back to that. This is what you call the per se rule, which says, quote, at the end of it, "An indentation is not evidence of intent to cast a valid vote." That was the per se rule.

BURTON: Correct.

BARTLIT: As a result of Judge Labarga's November 15 order, did you abandon the per se rule?

BURTON: Yes, sir.

BARTLIT: Let's go back to his order, if we can. What Judge Labarga says is, "Palm Beach Canvassing Committee has the discretion to utilize whatever methodology it deems proper to determine the true intent of the voter, and it should not be restricted. To that end, the present policy of a per se exclusion of any ballot that does not have a partially punched or hanging chad is not in compliance with law."

Then he goes on to say, "The canvassing board has the discretion to consider those ballots and accept them or reject them."

BURTON: Yes, sir.

BARTLIT: Judge Burton, after reading Judge Labarga's November 15 order, did you issue a resolution of the canvassing board?

BURTON: Right. And it was--my main thing was, at the time, Broward County had begun their recount, two, or perhaps three, days before.

BOIES: Your Honor, may I have an objection, unless we have the witness' foundation for knowledge about Broward County. I believe when we get to the foundation, we'll find it was hearsay (inaudible).

SAULS: Overruled. You may cross.

BURTON: My only intent was simply to try and be consistent with what Broward County was doing. And so, yes, we came up with a policy that I think--at least the intention was to incorporate that, as well as incorporate Judge Labarga's ruling.

BARTLIT: Is exhibit 40, which is now on the screen, the policy that you, Ms. LePore and Ms. Roberts adopted after getting the November 15 order from Judge Labarga?

BURTON: Yes, sir.

BARTLIT: We see that it's adopted November 16. And the rule you adopt is a chad that is hanging or partially punched in at least two corners may be counted as a vote. In accordance with the Honorable Jorge Labarga's ruling, this policy does not exclude any ballot, does not exclude any ballot, bearing only one-corner punch or a dimple. Such ballot may be counted as a vote if there is clear evidence of a voter's intent to cast a vote as determined by the discretion of the canvassing board.

BURTON: Yes, sir.

BARTLIT: Did you announce that resolution, announce that policy, at an open meeting?

BURTON: I believe we did.

BARTLIT: Were there any Gore lawyers present when you read that policy?

BURTON: Yes. There was plenty of lawyers. It was Gore lawyers and Bush lawyers. That's correct.

BARTLIT: Did anybody there make any objection to that policy when you announced it?

BURTON: Only thing I recall--I don't recall any objection to the policy. I do recall at one point Mr. Newman suggesting that we adopt the Texas standard.

But I don't recall any objection to the standard, no.

BARTLIT: At any rate, we see that exhibit 40, the board's policy, was announced on November 16th. Was that announced--do you remember whether that was in the morning or the afternoon?

BURTON: I don't recall, to be quite honest with you.

BARTLIT: Do you recall...

BURTON: It was prior to when the manual recount began.

BARTLIT: So if we look at the--the manual recount began about 7:30 in the evening on November 16th, is that correct?

BURTON: Correct.

BARTLIT: So that it was before you actually began the manual recount that the board announced it's new policy.

BURTON: Yes, sir.

BARTLIT: When you announced the new policy, nobody ran to court to schedule another hearing. You began the manual recount without any more court hearings, is that true?

BURTON: Correct.

BARTLIT: Now, Mr. Brace earlier today said that hand counts were a good thing. You did a hand count, didn't you?

BURTON: We tried to complete it, yes, sir.

BARTLIT: And, let's talk a little bit about procedure in your hand count. We've seen these counting teams that were located around the emergency center there.

BURTON: Yes, sir.

BARTLIT: There would be--how would each counting team be constituted?

BURTON: We had at least two people who were the counters, if you will, and they would hold up a ballot and inspect it themselves. And there would be an observer from the Democratic Party, an observer from the Republican Party, and either one could call the ballot questionable. And if it was called questionable, it was set aside in a questionable pile, and it was ultimately those ballots that the canvassing board would look at.

BARTLIT: So when every time any observer objected to any of the rulings made by the counting teams, that would go to you and your other two members of the canvassing board.

BURTON: Right, and the counting team, quite honestly, really wasn't making any rulings. They were simply holding up the ballot and letting the observers see it, and pretty much relying on the observers to either agree it was a vote for five or three or call it questionable.

BARTLIT: Were objections--were the ballots objected to put in a separate pile, regardless of who made the objection or regardless of the basis of the objection?

BURTON: Yes, sir.

BARTLIT: And then the three of you reviewed every single one of these.

BURTON: Yes, sir.

BARTLIT: Is it true that during the period of the manual recount, you and Ms. LePore and Ms. Roberts, the three of you personally reviewed over 15,000 of these objected-to ballots?

BURTON: I wasn't sure. I thought it was about 14,500, but it's pretty close.

BARTLIT: Did you and your other two members of the board make between 14,000 and 15,000 separate, independent, individualized decisions as to voter intent from those some 14,000 objected-to ballots?

BURTON: We certainly tried.

BARTLIT: Now, Mr. Boies said today that--oh by the way, these some 14,000 separate decisions you made on these objected-to ballots, did you announce each decision out loud, so that it was recorded in a court reporter's transcript for anybody to look at?

BURTON: I believe so. Yes, sir.

BARTLIT: So all of your work product has been memorialized.

BURTON: Yes, sir.

BARTLIT: Now, as I said, Mr. Boies said the issue in Palm Beach is whether the right standard was applied. He said that this morning before you got here. Now, on November 22nd, did you have an opportunity under oath to explain the standard which you had been using during the first six days of the manual recount?

BURTON: Yes, sir.

BARTLIT: Was there a second hearing before Judge Labarga, on November 22nd?

BURTON: Right, that was the hearing I testified at.

BARTLIT: You were--were you the only witness at that hearing?

BURTON: I don't know. I believe I was. I'm not sure.

BARTLIT: Now, let's talk about your description of the standards--of the problems you encountered, Judge Burton, and the standards you applied during that period from November 16 to November 22, when you were testifying before Judge Labarga. Did you tell him that the great majority of ballots had dimples or indentations of some kind? Do you remember that?

BURTON: Correct.

BARTLIT: Do you remember saying that some of them were so minor that they didn't even crease the paper?

BURTON: Right. I kind of--I think I referred to those barely discernible impressions.

BARTLIT: Those were the ones that were so minor that you said we could put them back in the stack and use them again next year.

BURTON: Sometimes, that's correct.

BARTLIT: Were many of the indentations to you questionable so far as the intent of the voter?

BURTON: Yes, sir.

BARTLIT: Were some of them very close and some contentious even, so far as trying to determine the intent of the voter?

BURTON: Yes, sir.

BARTLIT: Were there many where you thought it was impossible, doing the best you could, to determine the intent of the voter?

BURTON: I think we were doing that the entire time, to be honest with you.

BARTLIT: Now, were there a wide variety of what you call dings, dents, marks, indentations on these ballots?

BURTON: Yes, sir.

BARTLIT: Now, did you have cards with--where there were multiple dings or dents in the first column?

BURTON: Yes, sir.

BARTLIT: Now we've heard a lot about the first column, let's turn to that. And the column I've marked is the first column. Is that correct?

BURTON: That's correct.

BARTLIT: That's the column where the seven or eight different presidential candidates were listed.

BURTON: I believe it was ten. It was actually 3-13, excluding 12, were the presidential functions.

BARTLIT: Governor George W. Bush was number 3?

BURTON: He was three, Buchanan was four, Gore was five. I'm not quite sure who the rest were.

BARTLIT: Now, when you looked at these ballots, and you looked at the first column were there many, many ballots where you believed, looking at the first column, that people apparently didn't like either candidate and just decided not to vote for president?

BURTON: There was clearly many of that--and again, I'm not keeping track in my head of how many--but there were certainly quite a number that, I mean, I think clearly had no indentations or impressions that we would call undervotes, and in which neither lawyer objected to that call. So, there was clearly a number of those, yes, sir.

BARTLIT: Were these ballots where there were punches throughout other parts of the ballot, but they just plain left the number one row, the left hand row, blank?

BURTON: Yes, and there were some, for example, that just, it appeared obvious to us, they came in just to vote for sheriff, for example. And that was the only one punched, and that was it.

BARTLIT: Now, was one of the things that you took into consideration in judging the intent of the voters from the indentations, dings, marks and punches, was it the instructions that the voters were given?

BURTON: Sure, I mean, I think we assumed going in, or at least operated under the basis that the voter understood the instructions, and, you know, he knew how to vote.

BARTLIT: I've got a demonstrative on the screen, which is Exhibit 531. Is that a photograph of the Palm Beach ballot instructions?

BURTON: I believe that is the instruction that is inside the silver case that we saw earlier, that when you open it up, it's on the wall of the case.

BARTLIT: It starts by saying, "Use both hands; insert the ballot all the way in"?

BURTON: Yes, sir.

BARTLIT: And then, "Be sure that the two slots fit down over the two red pins," and the red pins are in red, I guess, right?

BURTON: Yes, sir.

BARTLIT: And then we see, "To vote, hold the voting instrument straight up; punch straight down through the ballot card." Did you take that instruction, which we saw right on the voting machine, into consideration--as one of the things you took into consideration in making judgments as to the intent of the voter?

BURTON: Again, I think we were operating under the assumption from the start that people understood the instructions, or at least read the instructions, and knew how to vote. Yes.

BARTLIT: Did you--we're now back to the period between November 16 and November 22--during that period, did you have a two-corners-out rule?

BURTON: The full recount you're talking about?

BARTLIT: Yes, the full recount.

BURTON: Yes, sir.

BARTLIT: And let's look at two-corners-out. We've heard these terms, and I guess we've seen them in the press--the hanging chad is the chad at the top, is that correct, that's just dangling by one corner. The swinging chad has two corners out. And then we go to the trichad and the dimpled chad. And again, Your Honor, these are not meant to be to scale; it's offered only for illustrative purposes.

Now, if there was either a dimple, or if we're to look at the trichad, did you treat that as a dimple?

BURTON: Yes. Well, I guess I need to go back a minute. When you talk about the two-chad rule, or the two-corner rule, I'm referring to those ballots where you really couldn't determine an impression. You know, the chad itself wasn't damaged--it was still flat--but yet it had been popped out in at least a couple of corners.

BARTLIT: Well, that's a good point. Were there times when you could look, for example, at the chad, and you could see with your naked eye in the center of the chad a little depression the size of the stylus that was used to push out the chad?

BURTON: Sure, mostly in the back, but yes, you could see it in the front as well.

BARTLIT: You could actually see--you could look at the dimensions of the stylus and look at this, and you could see an indentation in the center.


BARTLIT: And, if you actually saw the indentation, how did you treat that, Judge Burton?

BURTON: In terms of what? Are you talking about...

BARTLIT: In terms of the intent of the voter?

BURTON: Well, we certainly looked at that in conjunction with the totality of the ballot card.

BARTLIT: Now, we talked earlier about your test for ascertaining whether a dimple indicated intent, and if you were to look for example at the dimpled chad on the bottom, that's where you'd hold it up to the light, and determine whether you could see any light around it?

BURTON: Well, that was at the--that's going back to the 1 percent again, the initial recount. We were not really operating under the light policy at the manual recount.

We would--I will say this, there were so many variations of marks on those ballot cards, you know, we would treat that as a dimple. And if it was attached at all four corners, we would, you know, look at that in totality with the rest of the ballot card in making our determination.

There were, for example, many ballot cards where it almost looked like they took a pin or a thumb tack and punched through the number of the candidate. So, you know, if they voted for Gore, they punched through number five. And we would see a consistent pattern throughout the ballot card, where they punched like a little pinhole through the numbers. None of the chads were moved out, but yet we would count those as votes, because we believed by the totality of the ballot card that showed the voter's intent.

BARTLIT: Well, Judge Burton, I've drawn an arrow to the dimpled chad, the pregnant chad. If you saw one of those, what you would do then is you would look at all the rest of the ballot card for any other evidence that might guide you to ascertaining the intent of the voter, is that it?

BURTON: Yes, sir. Because our feeling was that if, for example, we were to look at the rest of the card--and let's just assume it was a full card, and that they voted for every race--we were looking to see if we saw other dimpled votes, and if we felt for example that all of the other holes or chads were fully punched out, we were finding that that did not show a clear intent to vote.

BARTLIT: Well, what I want to do now is I'm going to show you some ballots which I prepared myself. And, Your Honor, they're for illustrative purposes, not actual ballots. I wanted you to make certain assumptions as we go through them, and ask how you made your decisions.

So, first, we're going to look at where there's an indentation or a dimple in column one, and it's sort of hard to see until we turn it over, but we look at column one...

BURTON: Right. I see, under number 3.


If you look at column one, you can see that on the front, there's a tiny indentation.

BURTON: Right. I see that.

BARTLIT: It's tiny. I made it myself.

And then you look at the rest of the card, you can see there's a lot of holes punched out, right?

BURTON: Yes, sir.

BARTLIT: And then we'll just highlight those before we turn the card over. We've flipped the card over, and there is our dimple we looked at.

BURTON: Right.

BARTLIT: And then we see a whole lot of holes punched clean through.


BURTON: Yes, sir.

BARTLIT: Now, you told us earlier that you encountered a number of cards where there were no marks at all in the presidential column, column one. Remember that?

BURTON: Yes, sir.

BARTLIT: Now, of course now, the column we're looking at here, this column here is column one, isn't it, because we've flipped it over?

BURTON: Right.

BARTLIT: So the red arrow that points at the indentation is pointing to column one.

Now, what did you do with a ballot like this, where you had an indentation or a dimple in column one, and then all of the rest of these were punched out?

BURTON: We concluded that to be an undervote.

BARTLIT: And what was the basis for your conclusion that where there was column one, there was just a dimple, but all throughout the rest of the ballot, the voter had been able to get a clean punch?

BURTON: My rationale, quite honestly, was, we saw so many cards with multiple impressions in the first row that, by virtue of seeing one impression, we felt--or at least I know I felt--that this voter obviously had no problem punching out their votes, and by virtue of just having one in the first column, that did not show a clear indication of an intent to vote.

BARTLIT: Did you state on the record during the full recount that where you saw an impression like we have here in column one and the entire rest of the card punched out, it was impossible to tell what the voter's intent was?

BURTON: I don't know if I used those words, but I could have.

BARTLIT: Did you make any evaluation of how difficult it was to punch all the way through if you wanted to?

BURTON: I will tell you that before I went to testify, I guess on the 22nd, in front of Judge Labarga, I was asked to bring along a voting machine. And I tried it before, and it was very difficult to make an indentation like that, because it seemed it was quite easy for me to pop out the chad.

BARTLIT: Now, we've talked about what you would do if you saw an indentation in column one, and then everybody else had punched it out.

What, if any conclusion, did you draw when you saw a pattern of repeated punch-outs, like I've got indicated with these arrows?

BURTON: We would--at some point, we would see--and it's hard to say exactly, because not everybody voted in every race. But, you know, there were some where we'd see, for example, they voted in four races, and a couple of them where some type of an impression--I don't want to say "dimpled," because there were really so many variation, you know--and if there was at least a pattern of it, or it looked like this was consistent with what the voter was doing, we would attribute that as a vote at that point.

BARTLIT: Now let's turn--you talked about a pattern of repeated indentations. Let's now turn to a ballot that has--again, a ballot I prepared--with a number of repeated indentations.


BARTLIT: Now, it's hard to see these from the front, but if you look carefully, you can see there's an indentation here at three...

BURTON: Is that 26? I counted 26.

BARTLIT: You've got a new skill.

BURTON: Right.


I'm not quite sure what I'm going to do with it, but...


BARTLIT: Everybody has 15 minutes of pain, that is what they say.

So let's flip it over because--I take it, did you almost always just flip these things over right away?

BURTON: Right. Some of the--some of the impressions, or dings, or whatever you call them, were very difficult to see in the front, and so it was much easier if you flipped the card over to look at the back, and you could see exactly, like that.

BARTLIT: Well, I flipped over Exhibit 524, and we can see no punches and a pattern of indentations of--and I tried to make them of different dimensions.

BURTON: Right.

BARTLIT: Now, when you got a card like this, where you had a number of indentations like this, what conclusion regarding the intent of the voter would you draw from it?

BURTON: That this is obviously--that for whatever reason, the voter had some difficulty, and this is how the voter voted, and that would be a vote for Mr. Buchanan, I guess, in number four, it looks like.

BARTLIT: We heard earlier today that--we heard earlier today by one of the witnesses that the witness thought there was a possibility, at least, that instead of sliding the ballot in here like you're supposed to, where it says "slide ballot in," that there were some voters that would lay the ballot down over to the side, and then take the stylus with the ballot on top of that paper and try to punch through.

BURTON: Well, we actually came to believe is that they were putting the ballot over that center strip with the holes, not inside but on the outside.

BARTLIT: Ah, so what they were really doing--your view was that what they were doing was, they had the ballot sort of like that--I can't turn this sideways, but it was...

BURTON: Right. It was actually--right, it was straight down the center strip, and that's how we were getting those pinhole votes. They were taking the stylus and punching the numbers. Obviously it wasn't going to go through if they didn't hit the chad.

BARTLIT: Now, when you say "we," did you and Ms. Roberts and Ms. LePore all concur in the thought that that was at the least a possibility?

BURTON: Right. We saw so many different variations, we were many times wondering how they made these different impressions. We couldn't figure them out...


BARTLIT: The possibility was that the two ballot holes would go over the two red knobs, but instead of sliding it underneath where it said "slide under," they would put it over the top.

BURTON: Well, actually, on one set--and when I talked about the pinholes through the numbers, I kind of believe--let me just get up here a minute.

BARTLIT: With the court's permission.

SAULS: Absolutely.

BURTON: I kind of believe they were putting the ballot card this way, and then just punching, and that resulted instead of a punch-through, it resulted in a pinhole.

The other problem we ran into quite frequently is, instead of putting the ballot card in and inserting it in the holes, they were putting it in backwards, and the ballot part was being shoved over those two red pins, because we saw quite a number of patterns of ballots with two big holes in them that we believe was caused by putting them in upside down.

BARTLIT: OK, well, let's take these two possibilities then. If you had a ballot, or looked to you like the voter had laid it down here and punched through when you saw a pattern of pinholes, would you give the voter credit? Would you count that as votes if you observed the pattern?

BURTON: Yes, sir; yes, absolutely.

BARTLIT: And why was that?

BURTON: Because we could see a consistent pattern, and there was a number of pinhole votes. In fact, some of them looked like they went through about three or four votes with the pinholes and then started doing it right and, you know, we kind of assumed somebody either showed them what to do or they asked or whatever.

You know, at least they'd show a pattern that convinced us that was their intent, that was the way they casted a vote.

BARTLIT: And likewise, if somebody just laid the ballot down here--put red on the wall--and just went like this with a stylus, you thought that might make some of those little dimples.

BURTON: Yes, right.

BARTLIT: Didn't punch all the way through but just made a tiny indentation.


BARTLIT: Again, then, if you saw--it looked like a voter had voted that way, even though they hadn't followed the instructions, would you give--how would you--what conclusions would you reach about the voter's intent?

BURTON: We would find that, based on, you know, some pattern, that showed the intent of the voter, or that's how they voted, and we would give them credit for that vote, and we counted it as a vote.

BARTLIT: So if a voter laid his ballot down on here, or a voter laid her ballot down on here, in either of those circumstances, and they did it the same way all the time, if it was a Gore vote, you'd count it as a Gore vote, even though they didn't follow the instructions.

BURTON: Yes, sir.

BARTLIT: And likewise for Governor Bush.

BURTON: Correct.

BARTLIT: Now, let's talk about a couple of other possibilities here.

BARTLIT: And I'll flip this over just to save time.

BURTON: All right.

BARTLIT: Here we've got a ballot. If we look in the right-hand column, we've got a punch and a dimple. Now, if dimples are always votes, one would think, wouldn't one, that this would be an overvote, and this ballot would be tossed out because there's both a vote here and a vote here. What did you do when you saw that pattern?

BURTON: This is one of the patterns that we saw quite frequently, and it showed a clear punch at number three and a dimple at number eight. We would conclude that the clear intent of the voter, because they fully punched out number three, would be a vote for number three.

BARTLIT: Did you engage in any analysis as to what in the world could have created this dimple down here at number eight when there was a clear punch up here at number three?

BURTON: Well, I mean, quite honestly we saw enough ballots--I mean, it was clear there were--there was some of these where there would be two or three little dimples or impressions and then a fully punched-out. I mean, it was clear people had--somebody had touched the ballot enough to make some kind of an impression and then decided to fully punch out another vote.

BARTLIT: Is it true then that whenever you saw a clear punch in column one here, the clear punch sort of trumped or won out over any subsequent dimples you saw in that column?

BURTON: Yes, sir.

BARTLIT: Was that true no matter how prominent or well defined the dimples were?

BURTON: Yes, sir. We just felt that if we're looking for the clear intent of the voter, a fully punched chad demonstrated that that was their intent.

BARTLIT: We've been talking about the series of court hearings--proceedings that were had. We've been talking about the standards you followed during the period from the 16th up to November 22.

BURTON: Yes, sir.

BARTLIT: You told us that you testified before Judge Labarga on November 22 and the court--I was going to say the jury but--we've all heard your explanations...

BURTON: The same jury that's sitting over here...


BARTLIT: It's kind of a mean looking jury.


In any event, on November 20 did the Gore lawyers move to clarify this earlier Judge Labarga order?

BURTON: I'm sorry, on what date?

BARTLIT: On November 20, and I'll show you the document just to save time--Exhibit 41.

BURTON: Right, I was aware they had filed a motion, if that's the one I'm thinking of.

BARTLIT: Well, let's look at the last page so we can get the date right.

BURTON: OK, November 20.

BARTLIT: November 20, motion to clarify. Were these lawyers who were down there...

BURTON: Correct.

BARTLIT: ... during the recount representing the Democratic Party?

BURTON: Correct.

BARTLIT: Now, after you testified on November 22, did Judge Labarga enter a second order?

BURTON: Right. And to be honest with you, I'm taking your word for the dates. I'm not at 100 percent sure of the dates on all of these.

BARTLIT: Why don't we look at the order and...

BURTON: But he did. He entered an order I think I testified in the morning, and I believe at 4:30 that afternoon his order was released.

BARTLIT: Well let's look at Exhibit 42.

BURTON: Right.

BARTLIT: Order on plaintiff's emergency motion to clarify, and if we look at the last page...

BURTON: I believe that was his summary, right?

BARTLIT: Right. We can see that this was entered on November 22. When you got this order, did you read it?

BURTON: I read it. All of the board members read it, myself, Ms. Roberts, Ms. LePore. We basically came to the conclusion that we had been complying with that order and that's, you know, that's how we had been handling it thus far and we continued to move on with the recount.

BARTLIT: Judge Labarga concluded in his order that the Florida legislature set forth the procedure for manual recount. And then he concluded that--no, he cited the section we showed you earlier, Judge Burton, where he says, no vote shall be declared invalid or void if there is a clear intention of the voter as determined by the canvassing board. And those were his italics, weren't they?

BURTON: Yes, sir.

BARTLIT: And then he said, any vote where you can't discern the intent of the voter must be discarded. And then he says that if a counting team can't determine the voter's intent, it goes to you.

BURTON: Right.

BARTLIT: And, finally, he concludes that, given that language, the Florida legislature intended to leave any determination regarding the question of voter intent with the canvassing board. He said the canvassing board had been entrusted by the legislature with making the necessary factual findings.

Were you making factual findings regarding voter intent, as we have described, as you went along looking at these 14,000 contested ballots?

BURTON: Sure. We tried to. I mean, some were obviously, you know, were more obvious than others.

BARTLIT: After you read--well, let's go to the end of the order. Here is Judge Labarga's summary of rulings. If the counting team can't determine the voter's intent, the ballots shall be presented to you to determine intent. The canvassing board, you, Ms. LePore and Ms. Roberts, have been entrusted by the legislature with making these factual determinations as to intent. And the board cannot have a policy which provided for per se exclusion of any ballot.

Did you have such a policy during the full manual recount that began November 16?

BURTON: I don't believe so.

BARTLIT: Did you do like Judge Labarga said and consider each ballot in the totality of the circumstances, like you've been telling us?

BURTON: Right. We looked at each ballot in total.

BARTLIT: And, finally, did you, as Judge Labarga said, where the intent of the voter can be fairly and satisfactorily ascertained, did you give that intention of fact, like you told us?

BURTON: Yes, sir.

BARTLIT: Now, after you got Judge Labarga's order, did you make a statement to the canvassing board in a public meeting as to your view as to the meaning of this order?

BURTON: Well, I think I just reiterated that we have all read Judge Labarga's order and that it was our feeling that we have been complying with it all along. And that view is shared by Ms. LePore and Commissioner Roberts.

BARTLIT: So it's November 22. Did you tell the open meeting after you got Judge Labarga's order that you felt his order confirmed what you'd been doing between November 16 and November 22?

BURTON: Yes. And I think we all agreed to that.

BARTLIT: Unanimously?

BURTON: Yes, sir.

BARTLIT: Basically, three Democrats.

BURTON: Three people trying to do the best job they can. Yes, sir.

BARTLIT: Thank you.

Now, when you stood up and said that you were going to continue doing just what you'd been doing between the 16th and the 22nd, were there lawyers representing Vice President Gore there?

BURTON: As I said, there weren't lawyers far away at any time.

BARTLIT: Was there any objection made when you made the statement as to what you and the other two board members were going to do for the rest of the manual recount?

BURTON: The only thing that came up, and it might have been at the end of that day or the end of that night, at some point, I spoke to Mr. Cuney (ph). Somewhere--I'm not sure how it came up. Somewhere it had requested--and I don't know if that's the correct day.

I should--at some point it came up, though, that somebody wanted to kind of have a--make a presentation as to why they felt we weren't proceeding correctly. And I talked to Mr. Cuney (ph), I believe, and we set it up for Friday morning, and told the Republicans as well that if they wanted to make a little pitch, that we would entertain it at that time. Right. November 24 would have been Friday morning.

BARTLIT: November 24. We have a transcript, which is Exhibit 44.


BARTLIT: And if we're to look at the first column, you've been requested by Mr. Cuney (ph) to have an opportunity to present brief argument.

Was it brief argument?

BURTON: Well, I mean, he had some witnesses and some affidavits. And we certainly agreed to hear him. And I think we tried to give the same time to--I think it was Mr. Bolton, who just presented an argument.


BARTLIT: Judge Burton, how many witnesses were called at that hearing?

BURTON: Believe they had three witnesses, as well as affidavits.

BARTLIT: Who were the three witnesses that were called?

BURTON: Well, I don't recall the name of the gentleman who was here earlier, the statistician. There was a fellow, an elderly fellow, who I guess had--this was involved in--I don't know if he was involved in inventing the Votamatic or some type of involvement, as well as Ms. Winchester, who was the previous supervisor of elections.

BARTLIT: Mr. Rouverol?

BURTON: Sounds correct.

BARTLIT: Was Mr. Rouverol represented to you as somebody who had helped design the Votamatic machine?

BURTON: I don't recall exactly, but something along those lines. Somehow he was involved in the Votamatic.

BARTLIT: Did you give any weight to the testimony of Mr. Rouverol?

BURTON: I mean, you know, we gave weight to the entire presentation.

BARTLIT: Of course Mr. Rouverol has not shown up here today, as we all know. Were you aware of that?

BURTON: I don't know who's been here necessarily.

BARTLIT: Now, after the--let's go back here--after the--after November 22, when you told the group that you were going to continue ascertaining voter intent from the rest of the manual recount, just as you had from November 16 to November 22, was there any appeal taken to any court or did anybody ever go back to Judge Labarga for a third clarification?

BURTON: I don't know, quite honestly, because, you know, obviously I was aware of many actions taking place outside of that counting room. But, you know, I have no idea. I don't believe so. I know I never had to go back there, so...

BARTLIT: Now, at any time during this period did you ever articulate in more detail, Judge Burton, what you meant by a pattern? For example, earlier we saw, in exhibit 524, we saw that where there was a consistent pattern of indentations you counted the vote in column 1.

BURTON: Right. That vote would have been counted.

BARTLIT: That would have been there. That's a Gore vote, right?

BURTON: That's actually--that's a Buchanan vote.

BARTLIT: Buchanan vote. Now, did you...

BURTON: There was even a few of those, yes.

BARTLIT: Did you refine--during this period of the manual recount, did you refine your pattern so that it wasn't necessary that every single other chad be dimpled before you would give credit for a vote to the voter?

BURTON: We did. And the real problem came in not so much on a ballot card that looked like this, which is clearly dimpled. We had many that were just--I mean, you really had to stretch to see an impression. And interestingly enough, we would find those cards where those barely discernible impressions went through the entire card or predominantly the entire card. And just like this, which is, you know, an obviously dimpled ballot, we would count those as votes. And we got to where certainly we weren't requiring the entire card to be dimpled or impressioned, you know, we were just trying to see a fair amount based on the total votes, if we could see this is how the person obviously voted and we're going to count it.

BARTLIT: Did you get to the point, for example, that if there were, let's say, 15 punches, but you saw five unpunctured, unpunched dimples, that you would give the voter credit for his vote there?

BURTON: I believe so, yes, sir.

BARTLIT: Even though you saw that many times, the majority of the time, the voter had been able to punch through, if there were like three or four or five, more than one dimple where the voter had failed, you gave him the benefit of the doubt and gave him the vote?

BURTON: Yes, sir.

BARTLIT: Finally, you didn't quite get finished, as we all know, and we know that you asked for extra time and didn't get it. And tell us what happened, without telling about all the phone calls and everything, what happened between 5:00 the Sunday evening and the time you finished the count. Did you just continue counting, doing business at the same old stand until you got done?

BURTON: Right. We tried to get whatever votes we had done into the secretary of state by 5:00. Didn't want them to arrive at 5:01. And we continued to finish the uncounted ballots. And it took about another hour and a half, two hours, perhaps.

BARTLIT: During the two hours from 5:00 to 7:00, did you continue using the same standards that you told Judge Labarga about and you told Judge Sauls about today in trying to extract from these patterns of marks and dimples and dimples and indentations what you thought, in your discretion, was the intent of the voter?

BURTON: Yes, pretty much. We obviously zipped through a little bit faster, perhaps. But, yes, we were still operating under--and I will say that it got to the point where spending so much time with the Democrat lawyers and the Republican lawyers, you know, it was pretty clear what was going to be objectionable to or not. And even though we had all these questionable ballots, the majority of them were not necessarily questionable. We could see it was a clear vote for Gore, for example, and I'd hold it up, and no objection and it would go into the Gore pile, or, you know, whichever way it came out.

So the undervotes became pretty clear, the overvotes became pretty clear. It became pretty clear when which ballots they were going object to and those are the ones we separated.

BARTLIT: Thank you.

That's all I have, Your Honor.

SAULS: All right. Do you have any (OFF-MIKE)

KLOCK: Your Honor, I don't know what order you want this in. I just want to ask you two questions--two or three questions, if I can.

SAULS: Let's do it real fast. A couple, and then plaintiff may proceed.

KLOCK: Judge Burton, at the time that you undertook the manual recount, after the automatic recount had been done...

BURTON: Before recount, you're talking...

KLOCK: Yes, sir.


KLOCK: After the full recount had been done and you did the test manual recount, as a result of that test, did you discover any problems with the mechanical or electro-mechanical systems of the vote count in Palm Beach County?

BURTON: The opinion of--and I have to rely on the supervisor of elections, because I certainly was not an expert in this prior to that night--but her opinion was that the counting equipment, the machinery, was working fine, and that any error was the result of voter error.

BURTON: Thank you, Your Honor.

SAULS: Mr. Boies.

BOIES: Good afternoon, Judge Burton.

BURTON: Good afternoon, sir.

BOIES: My name is David Boies, and I represent Vice President Gore and Joe Lieberman.

When you completed the manual recount, you had discovered a number of additional votes that you believed you could discern the clear intent of the voter for that had not been counted by the machines; correct?

BURTON: Are you talking about the 1 percent? I mean, I just trying to...

BOIES: Well, I was talking about the full manual recount, which you completed.

BURTON: OK, I'm sorry.

BOIES: But we can take it one step at a time.

BURTON: OK, no, that's fine.

BOIES: To begin with, you did a 1 percent sample.

BURTON: Yes, sir.

BOIES: And following the 1 percent sample, there came a time when the canvassing board voted to do a full manual recount; correct?


BOIES: And what was the vote?

BURTON: The initial vote?

BOIES: The vote as to whether or not to do a full manual recount.

BURTON: It was 2-to-1, initially.

BOIES: Two-to-one in favor of doing it?

BURTON: Yes, sir.

BOIES: Who voted against doing it?

BURTON: I did.

BOIES: You voted against doing it. And the other two members voted in favor of doing it, I take it?

BURTON: They voted in favor and it also came up, I was actually seeking advice and counsel and thought we ought to be better informed. Ms. LePore agreed with that and seconded that motion, and then later, I guess on the advice of counsel, withdrew that second, so the initial vote was 2-to-1, yes, sir.

BOIES: And did you suggest that an opinion be obtained from the secretary of state?

BURTON: At some point. I wanted to get an opinion from someone. I thought it was foolish to charge ahead with a process of counting a half million votes without a plan, without talking about it, without figuring out how were we going to do this.

BOIES: Is the answer to my question yes, you asked for an opinion from the secretary of state?

BURTON: On Monday, the board unanimously asked for an opinion from the secretary of state and the attorney general, yes, sir.

BOIES: Did you propose that, sir? Who proposed to the board that you ask for an opinion from the secretary of state?

BURTON: I don't recall. It might have been me.

BOIES: Might have been.

BURTON: And I know I had asked--actually, as chairman, I had asked for an opinion on Sunday dealing with that Tuesday deadline because we were concerned about that deadline coming up. So, I asked for an opinion on that issue. On Monday the board--and it might have been at my suggestion, yes, sir.

BOIES: Let me just try to be sure we know what opinion we're talking about.


BOIES: There was a request for an opinion from the secretary of state as to whether you could conduct a manual recount; correct?

BURTON: Yes, but that was not on Monday.

BOIES: And did you propose that the board make that request, sir?

BURTON: It probably was me. I mean...

BOIES: Probably. It really was you. You know it was you, right? It wasn't probably...

BURTON: No, I know--see, I know I brought that up at 2:30 in the morning, which was Sunday...


... which was Sunday morning when the motion was made. I believe--in all--it probably was me.


BURTON: I was concerned about whether we could lawfully go forward based on the fact that we were dealing with voter error versus machine error--yes, sir.

BOIES: So now it is your testimony that you did propose doing that?

BURTON: Well, you told me I did, so, I mean, I'm...

BOIES: Well, I'm just trying to get your testimony, sir.

SAULS: I believe he's testified fully on this point...



BURTON: I can certainly say it was more than likely than not that I was the one who brought it up, yes, sir.

BOIES: OK. Did you have any discussions with anyone representing Governor Bush before you made that request?

BURTON: I had discussions with a lawyer from the division of elections, and I can't remember her name. She was there at the 1 percent recount.

BOIES: OK. Did you call her or did she call you?

BURTON: No, she was there--she was there while we were doing the 1 percent recount.

BOIES: And what was the nature of your discussion about asking for an opinion from the secretary of state with this person from the division of elections?

BURTON: Her feeling was that we were not authorized to do a manual recount where there was no machine error. She's the one--she actually suggested, you know, you could obtain an opinion from the division of elections, which I did not know was binding, I will tell you that.

BOIES: Now when you did your manual recount and you finished it 90 to 120 minutes past the 5 p.m., the additional votes that you had identified resulted in net additional votes for Vice President Gore for about 215 votes; correct?

BURTON: That's what I had heard. I actually had never seen the final tally, if you will, but I had heard that number, yes, sir.

BOIES: And you believed that number sufficiently to put that in your answer in this case; right, sir?

BURTON: I don't know that I saw the answer that was filed. But, yes. I mean, I certainly had no qualms about that number as being the number.

BOIES: OK. And you believed that the votes that you counted, that you and other two canvassing board members counted, as part of your manual recount, were votes that you had identified as votes where you could discern the voter's intent; correct?

BURTON: Correct, that those were clearly votes that were--at least the majority were not previously counted by the machine count.

BOIES: Now there were some votes that you did not count for any candidate for president as to which there was an objection, that is, one side or the other said you should count it as a vote; correct?

BURTON: Yes, sir.

BOIES: And there were approximately 3,300 such votes that the Democratic representatives asserted should be counted and the canvassing board disagreed; correct?

BURTON: Again, I don't have the number. I would certain not dispute your number, yes, sir.

BOIES: And those votes were segregated; correct?

BURTON: Right. Every objectionable to ballot was separated either by a Republican objection to number five, a Democrat objection to number three, a Republican objection to overvote, undervote, same thing--those were kept in separate envelopes.

BOIES: And those separate envelopes were maintained, that is, when those ballots came up here, they included separate envelopes that had segregated those 3,300 contested ballots; correct?

BURTON: Right. Each of those envelopes with the objectionable ballots were kept at the end of each precinct. So, I mean, as you open--I don't know if they came up with those metal cases, but I assume they did, and those objectionable ones would be at the end of every precinct.

BOIES: In making your determinations as to which votes should count and which votes should not count, as part of your manual recount duties, you believe that you were acting consistently with Judge Labarga's opinion, both his first opinion and his second opinion; correct?

BURTON: We certainly tried to, yes, sir.

BOIES: And you believe that you succeeded.

BURTON: We certainly did our best, yes, sir.

BOIES: Well, let me just press you a little bit. I know you did your best, but do you think that you actually succeeded in following that opinion?

BURTON: Yes, I believe we did.

BOIES: OK. And you accepted that opinion as a fair statement of what your duties were; did you not, sir?

BURTON: Judge Labarga's?


BURTON: Yes, sir.

BOIES: I have no more questions, Your Honor.

SAULS: All right, sir.

BARTLIT: I have one question, Your Honor. I'll ask them here to save time.

SAULS: All right.

BURTON: Is it true that on November 26, Sunday, the very last day, that going through from about 2 to--or 3 p.m. until 7:30 when you finally shut down, the objections were not separated in separate boxes, so you'd have to go through the whole thing.

BOIES: Objection, Your Honor. I think he misstates the witness' testimony. The witness said he completed the work in an hour and a half to two hours, not in two and a half hours.

BARTLIT: I realize that. That was my question...

SAULS: Why don't you just ask the judge again? He'll tell you and straighten it all out.

BURTON: I think I understood his question.

SAULS: Oh, all right.

BURTON: I don't recall the exact time period. It came time that we were trying to get through with this recount. We wanted to get it done. And at some point I just said to the lawyers--I don't recall how many precincts were involved, but it was the last several precincts, and I don't remember how many. I said, "Look, let's just stipulate that you're objecting to all of them," or, "All your objections are in there and we're not going to separate them," because it was taking too much time, actually, to sit there and do the envelopes and separate them and segregate them. And we were trying to finish this on time.

So I don't remember how many precincts but there are, you know, some at the end certainly where that would apply.

BARTLIT: If the standards you told us about that you applied to these 3,300 votes, if that standard was changed so you had a standard different from the one that you applied to the 3,300, would that result in one standard for the 3,300 and a different standard for the other 600,000 or so?

BURTON: Well, I mean I suppose that would be the case. If somebody were to view it differently now, you know, opinions can differ, sure. I mean, you know as I said to Judge Labarga, if you can tell us how to do it we'd love to hear a definitive way to do it and we'd certainly follow it.

BARTLIT: That's all I have, Your Honor.

SAULS: All right.

Judge, if you don't mind I had--oh.

UNKNOWN: No, you can go ahead.

SAULS: Let me ask just, if you don't mind, we're not going to, nobody else, but any of you can object, of course, to anything I may ask the judge.

But there's been reference here to Palm Beach County doing a 1 percent recount, the initial, the manual recount that has to be at least three precincts or at least 1 percent.

BURTON: Yes, sir.

SAULS: Judge, when you finished, when the board finished that, nobody's told me, what did that show?

BURTON: That's--I think it was brought out. That showed a net gain of 19 votes for Gore.

SAULS: Right.

BURTON: That was after about a 17-or 18-hour day, and at 2:30 in the morning, that's when basically the vote was made to yahoo, let's get counting. And I didn't feel that was a wise choice to make at that time.

SAULS: Well, what I wanted to know, if that--in how many precincts was it?

BURTON: That was actually--the 1 percent, which were picked by the Democratic Party because they had requested that...

SAULS: Yes, sir.

BURTON: ... included three precincts. There as an extra precinct that I think was chosen by the supervisor because it came closest to the number of votes to equal the 1 percent.

SAULS: The 1 percent. All right, well, if that showed--and that was 1 percent I assume of 600,000...

BURTON: It's about 462,000 ballots I believe. Something in that range.

SAULS: 462,000? Well, I'm just wondering on what basis the board decided that, in accordance with the statute, that that 19-vote increase indicated an error in the vote tabulation which could affect the outcome of the election. How was that analyzed and decided, based on the 19...

BURTON: Well, that was actually--as I said, that was actually decided at 2:30 in the morning by Commissioner Roberts, who made a little presentation that I was not really happy with and said, "I think it shows that this could result in a net of 1,900 votes."

SAULS: Well, what was the--was there any type of standard and any type of measurement to make a reasoned decision?

BURTON: I felt not, because, quite honestly, I think statistically to say that would mean 1,900 votes is incorrect because that assumes--you know, there were Republican precincts, too. And if we were counting all of the dings and nicks, for example, the Republicans would have got a great many of the votes.

I didn't agree with the standard. My only thing was, I wanted to go about this in a more reasoned approach and analysis, and I wasn't given that opportunity. And I guess since that day, I've been the one accused of trying to block this recount, which is not the case, but...

SAULS: Absolutely not. I'd have to salute you as a great American, as a matter of fact.

I had one other question, and that was, you've testified now--how many times or days did you have to stop counting and attend either court to testify about this or to attend board meetings where you had request to do this, that or the other?

BURTON: Well, the only--once we started the recount, the only--there was that, and I'm assuming it was November 22. I don't recall if that was the correct date. I did go to Judge Labarga's courtroom and testified in the morning.

SAULS: I see. I had that one.

BURTON: Whatever the date of that hearing was. The only other time we took was Friday morning.

SAULS: That's the meeting on the 24th where the board then had a further meeting?

BURTON: That's where they presented some witnesses and some arguments.

SAULS: I see, OK.

BURTON: And we did take Thanksgiving off which...

SAULS: OK, all right. Well, apparently if you hadn't been tied up in board hearings or court, you might have been able to get that extra hour and a half anyway.

I don't have any other questions. Do either of you have any questions concerning any matter I may have inquired about?

UNKNOWN: No, sir.

SAULS: All right.

UNKNOWN: Your Honor?

SAULS: About any matter I may have inquired about.


SAULS: About any matter I may have inquired about.

UNKNOWN: Related, then.

UNKNOWN: Your Honor?

SAULS: Yes, sir?


UNKNOWN: ... just to be an observer.

SAULS: That's what...

UNKNOWN: And I'm asking--Your Honor, I'm not asking to ask questions. I was just raising something in a public interest Your Honor may...


SAULS: Respectfully, I don't want believe we can permit that at this time.


SAULS: Mr. Boies.

BOIES: One question, Your Honor.

SAULS: Yes, sir.

BOIES: Do I understand, Judge Burton, that there came a time after the initial vote when you became in favor of doing a full manual recount?

BURTON: Yes. And we voted to proceed. And then we, unfortunately, got stuck with that Division of Elections opinion. We then got a contrary opinion from the attorney general. We originally were going to file an action in circuit court. I think it was just decided, let's go to the Supreme Court because it's going to go there, the Supreme Court of Florida.

And once they accepted it, our appellate attorney and county attorney, actually, Mr. Rogov (ph) and Ms. Dytrych, felt...

BOIES: This may be a privilege. I don't know, Your Honor.

BURTON: No. They just simply felt--and we did this publicly--and I think they felt we ought to give deference to the Supreme Court, since they had accepted the case and wait for their opinion. And so that's what we did.

BOIES: When it came down to the decision to go forward with the full manual recount, ultimately was unanimous.

BURTON: It was unanimous, yes, sir.

BOIES: Thank you.

SAULS: All right. May the witness stand down and be excused?

Thank you, Judge.

BURTON: All right, thank you very much.

SAULS: Yes, sir.

Call the next...


BARTLIT: ... one other witness from Palm Beach County. I understand that he's been released from his subpoena. This is our equipment manager, and if he can be released? This is Tony Enos (ph). They both travel back together.

SAULS: Yes, yes. Can we...

ZACK (?): We're trying to cut short--we're trying to trim down the witness list, so we're not going to ask all the maintenance people to testify.

SAULS: Very good.


GREENBERG: Your Honor.

SAULS: Mr. Greenberg?

GREENBERG: We have our equipment manager here, too, and I would ask the same.

ZACK: Yes, yes, of course.

SAULS: All right. I understand these will be brief.

BOIES (?): Could we have just one moment...

SAULS: Surely.

BOIES (?): ... before we excuse him.

SAULS: May I see--let me just see, Mister--I suppose--Beck, Mr. Boies, if I might see you for a minute.

All right, this five-minute conference has run five minutes, I believe. Can we go ahead and proceed?

UNKNOWN: Yes, Your Honor.

SAULS: All right.

Now we were talking about certain of the witnesses. Is there any objection to them being excused, the ones that were announced?

UNKNOWN: No, Your Honor. We worked out one set stipulation to solve the problem.

SAULS: Very good, OK, all right. Then...

ZACK: Yes, Your Honor. We'd like once again to call Richard Grossman.

SAULS: All right, then. After conferring with at least two of the lead counsel just to determine perhaps some idea of the length of the witness.

Come forward, sir. And it's my recollection you've previously been sworn and remain under oath.

GROSSMAN: Yes, sir.

SAULS: All right. If you'll be seated, sir. This will be the last witness that we'll take tonight. And we will then, I suppose, reconvene at 9:00 in the morning.

We do have certain of our personnel that perhaps do need to have--some of them haven't eaten all day, I've been informed. So we need to try to attend to them. So for that reason, instead of trying to continue tonight, we'll take the recess overnight and then continue in the morning.

ZACK: Yes, Your Honor. And we'll be ready to go.

SAULS: All right.

ZACK: Would you please state your name for the record?

GROSSMAN: Richard Frank Grossman.

ZACK: Mr. Grossman, what do you do for a living?

GROSSMAN: I am technical director for the Halstead Division of the Hammond Group (ph).

ZACK: And what does the Halstead Division (ph) make?

GROSSMAN: We make heat stabilizers and other additives for rubber and plastic compositions.

ZACK: Do you consider yourself an experienced man in the formulation and characteristics of rubber and plastic?


ZACK: Would you please, very briefly, describe for the court your educational background, in terms of your scientific training in rubber and plastic?

GROSSMAN: I have a Ph.D. in chemistry. I've been in the rubber and plastics industry since 1957. I teach rubber and plastics technology for the University of Wisconsin at Milwaukee, for the Center for Professional Advancement for the Institute of Material Science on a regular basis.

ZACK: Have we asked you to come here to court today to give the court some scientific testimony concerning these rubber T-strips that are involved in the voting machines that you heard about today?


BOIES (?): Your Honor, at this time, we would raise an objection, and we would ask that we be allowed to voir dire, very briefly.

SAULS: (OFF-MIKE) on voir dire?

BOIES (?): Yes, sir.

SAULS: All right. You may proceed.

BOIES (?): Through no fault of his own, we believe that he has nothing of probative value to be offered in this proceeding.

SAULS: I say we voir dire first.

ZACK: Thank you, sir.

I guess good evening, already.

We met yesterday, sir.


ZACK: And we had an opportunity to talk yesterday. And you recall that your deposition was taken yesterday?


ZACK: Under oath. And I asked you questions...


ZACK: ... regarding what you did in these proceedings, correct?


ZACK: And you told me that you had received some sample strips and that you cut them into one-inch pieces and stacked them five on top of each other and then tested them; is that correct?

GROSSMAN: Half-inch pieces.

ZACK: Half-inch pieces. Am I correct...


GROSSMAN: Aside from that, you're correct.

ZACK: Great. And, sir, I asked you whether you believed the best evidence in this case was to have rubber from the voting machines that were actually used, and you said that was correct; isn't that correct?


SAULS: Mr. Zack, let me ask, I thought you were here to voir dire on this witness' qualifications as an expert, not conduct a cross-examination.

ZACK: No, sir, I'm not here on that issue at all, Your Honor.

SAULS: Well, let's conclude. Move to his qualifications alone, and then you may proceed.

ZACK: The only voir dire is as to the probative value. What he did--and I can point to the court where he says...

SAULS: Voir dire at this time only as to his qualifications.

ZACK: Only as to his--Your Honor, we're not going to do that. We'll sit down.

SAULS: All right.

ZACK: But we would ask to be able to shorten the examination by going into the probative value.

SAULS: Let's proceed in the normal course.

Mr. Beck, you're back on direct.

BECK: All right, Your Honor.

I think I was asking you, sir, whether we asked you to come and provide some scientific evidence for the court concerning the rubber T-strips that are used in the voting machines that we've heard about today. Were you asked to come here and help out the court on that?


BECK: I'm going to show you a little diagram that we worked on.

Yes, I gave Mr. Boies a copy a minute ago.

And here--and, Your Honor, I hasten to say that this is not to exact scale either, but for illustrious (sic) purposes.

This blue thing at the top within this piece of metal coming down, what is that, Mr. Grossman?

GROSSMAN: That is the stylus.

BECK: And then what are these gray things where the stylus is about to go between the gray things?

GROSSMAN: That is a cross-section of a molded piece of polycarbonate that serves as a template.

BECK: And then what is this tan piece here?

GROSSMAN: I presume that is the actual ballot.

BECK: So this little piece--I don't know how well you can see it on yours--would be the chad that gets hit by the stylus?

GROSSMAN: A piece of that ballot, yes.

BECK: And then, how about these black things here that go up...

ZACK: Your Honor, objection.

SAULS: Yes, sir.

ZACK: He was specifically asked at deposition whether he was going to testify about anything other than rubber and plastic composition, and he said, "No, I am not a mechanical engineer. The only thing I'm going to testify is about rubber, period." We asked him that question and that was his answer. I can cite the page...


SAULS: Was that the extent of the examination? Was it limited to that subject matter?

BECK: I'm sure it was, but he also testified about these pieces of rubber, and I'm just trying to make sure the court understands where the rubber is here and what the rubber does. That's all he's going to testify, is about the rubber.

SAULS: Well, I think perhaps he can do that, if he's in conjunction, without that illustration. As I understand it, it goes through the ballot...

BECK: I actually have...

SAULS: ... and down through the split in the rubber, and then you have the bottom down there. So I understand that.

BECK: OK. And focusing just on the rubber...

SAULS: Besides that, if we keep looking at that, that thing's going to blind us all...


SAULS: ... the end of the day. Go ahead.

BECK: Focusing just on the rubber, when the stylus goes through and breaks the chad, what happens here where these two separate T-strips of rubber...

ZACK: Your Honor...

BECK: ... as it goes between? What happens to the rubber?

ZACK: I have to object, Your Honor. He stated on deposition he's never seen any of these machines, he knows nothing about the operation of these machines. He was specifically asked those questions, and he said, "I don't know, haven't been to Miami, I haven't been to Palm Beach."

SAULS: I'll sustain the objection.

ZACK: Thank you, Your Honor.

BECK: I think counsel mischaracterized what was said in the deposition, Your Honor, but we'll simply move on rather than talk about the diagram.

ZACK: I'll cite the page, Your Honor.

SAULS: Go ahead.

BECK: Have you read the materials that were filed by the experts who have either appeared for Vice President Gore's legal team, or at least wrote up affidavits ready to be filed on their behalf, that concern these machines and a theory of how they malfunctioned?

ZACK: Objection, Your Honor. What probative value is there to him reading what somebody else says--pure, rank hearsay?


BECK: I didn't ask him what the unusual...

ZACK: He also said he's not going to testify about any of these things. I spent an hour and a half with him yesterday...

SAULS: Mr. Zack, I understand the nature of your objection.

ZACK: Thank you, Your Honor.

BECK: Your Honor, this is simply setting the stage...

SAULS: And, Mr. Beck, the witness is an expert in the properties of plastics and rubber, I believe, so why don't we just ask him questions that relate to that, now, how that relates to these machines and other matters. And I suppose that can be developed through other witnesses.

BECK: Do you know what type of rubber was used in T-strips in the Votomatic machines?

GROSSMAN: I believe that...

ZACK: I object to what he believes, Your Honor. We know he didn't examine it. We know he can't answer this question.

SAULS: Mr. Zack, he wishes you to lay a predicate so would you lay a predicate, otherwise I'll have to sustain his objection.

BECK: In connection with our request to you to testify in this case, did you make inquiries as to the type of rubber that is used in the Votomatic machines in Palm Beach and Miami and Broward?


BECK: What were the natures of--what was the nature of the inquiries that you made?

GROSSMAN: I asked Mr. Ahman (ph) to call IBM company, the original developer of this rubber compound, to obtain the ASTM specification for that particular rubber compound.

ZACK: Your Honor, I move to strike any testimony this gentleman has, and I will cite the page where he says, quote, "In reaching your opinion, do you observer or examine rubber strips of voting machines that were used in jurisdictions that are issued here today?" And the answer is no. Period. He has never seen any of these machines.

SAULS: Overrule the objection. The witness can testify as an expert in the properties of plastics and rubber. And if he lays, as an expert does, (inaudible) normal in his investigation, whatever he's done to gather information, then I want to hear that so he can lay his foundation. And then if he has an opinion he could express it if he's obtained the same type of material.

Now, let's move on with this witness.

ZACK: Would it please the court...

SAULS: Yes, sir.

ZACK: I have to say...


SAULS: For the record, I believe your objections noted, several times.

ZACK: ... that this is a surprise because as of yesterday, he said he knew nothing. Now, we are entitled to...

SAULS: Knew nothing about rubber and plastics?

ZACK: In these machines. The question specifically talked about the T-strips in these machines in Dade County. That is what was asked him yesterday, and yesterday he knew nothing about it. All he knew--all he knew was about three sets of rubber strips that he tested. Your Honor, I'd ask...


SAULS: I understand, I understand, your objection is noted, overruled.

You may proceed.

And then if you have an objection that would be the proper subject to strike it, then I'll entertain that.

Let him proceed.

BECK: Mr. Grossman, you said you asked Mr. Ahman (ph) to make a telephone call. Who is Mr. Ahman (ph)?

GROSSMAN: He is one of the developers of the Votomatic voting machine.

BECK: And did you consider it to be a sensible way to gather information about the type of rubber used in these machines that asked one of the developers of the machines to call and get the scientific specifications from the suppliers?


BECK: And what did you learn about the rubber that is used in the T-strips in the Votomatic machines?

GROSSMAN: Per the IBM records, the rubber compound is--was developed to an ASTM specification of type AA, 60 hardness, tensile strength not specified, and was specifically listed as a SBR-natural rubber blend.

BECK: It's a SBR what?

GROSSMAN: Natural rubber blend.

BECK: Blend. And as someone who is trained and experienced in the field of rubber and plastic chemistry, what do those specifications tell you about the hardness of that rubber?

GROSSMAN: The six listed after the AA category means that it is to be 60 hardness, plus or minus five is the normal leeway. The AA designation indicates suitability for service to a 60 centigrade--Celsius limit.

BECK: And for those of us who haven't switched over to the metric system, what would 60 degrees Celsius be approximately in Fahrenheit?


BECK: So it's supposed to function correctly up to 140 degrees of heat?


BECK: Now, you've mentioned that it was a blend of synthetic rubber and natural rubber. Please describe for the court what happens to the hardness of natural rubber over time.

GROSSMAN: As it degrades through time, it tends to soften and become sticky, such as a natural rubber band, if you leave it for a period of years, tends to become soft and mushy and sticky.

BECK: How about synthetic rubber? What happens with synthetic rubber if you just leave it alone over time?

GROSSMAN: SBR, styrene butadiene rubber, a common rubber used, for example, in tires, a common synthetic rubber, typically ages, degrades through hardening.

BECK: So natural rubber would tend to soften over time, and synthetic rubber would tend to harden over time, is that right?


BECK: And when you have the kind of blend, that you said this was, of some natural and some synthetic, what happens then to the tendency to harden or soften over time?

GROSSMAN: If the composition is put together judiciously, these tendencies often balance out. The hardening tendency counterbalancing the softening tendency and yielding better resistance to natural aging than either individual component.

BECK: Now if you have a blend like this, the kind that was used in the Votomatic machines for the T-strips, would the amount of use, say the amount of--the number of times that something is struck with an instrument such as a stylus, would that cause the T-strips to get any harder than they already were?

GROSSMAN: Well, you must understand the hardening mechanism, the aging. It is oxidation, and the factors involved--involved are time and temperature. Now, the effective impact, although it may cause tears or abrasions, or other physical damage, is not an effect that increases degradation unless the frequency of the impact is so great that the rubbery item cannot dissipate the energy of impact and is heated. Now that--I'm sorry, I just wanted--I think this is important.

BECK: Yes, sir, go ahead.

GROSSMAN: The frequency of impact--I have studied this subject, I conducted a number of experiments along these lines. The frequency of impact that is significant in heating rubber and causing it to degrade is in the range of one to a thousand incidents per second.

BECK: So if you had a stylus, and you had some kind of mechanism that could make that stylus go a thousand times per second through those rubber strips, and you did that for a long time, then maybe it would generate enough heat to affect the hardness of the rubber?


BECK: Well, if you had elections every couple of months, and every few minutes somebody comes in and presses the stylus through these rubber T-strips in the first column, is that going to make the first column of T-strips any harder than any other columns of T-strips?

GROSSMAN: It's unlikely that in frequent impact is going to accelerate the degradation of that compound and cause it to harden.

BECK: We also saw today these little portable units. I think, they're called Pollstars. Were you here when the little portable unit was in the courtroom?

GROSSMAN: I have examined several Pollstar units.

BECK: What kind of material is used in the Pollstar unit for these T-strips?

ZACH: Objection, Your Honor. Pollstar units that he examined were not ones that were involved in this election. They were hand selected by the owner and manufacturer of Pollstar, hand delivered to this gentleman in Tallahassee. They have no probative value as to the machines that were actually used in Palm Beach.

BECK: Did you make inquiries concerning the type of material that is used for the T-strips in the Pollstar machines that are in use in Palm Beach County? What was the nature of the inquiries that you made in order to satisfy yourself about the kind of material that's used in T-strips in the Pollstar units in Palm Beach County.

GROSSMAN: I asked the president of the company that manufactures the Pollstar unit to provide the specification from the manufacturer of the rubber compound that is used in their T-strip pads.

BECK: And is Exhibit 53, up on the screen, a copy of the specifications that came from Bayer (ph) Corporation, the maker of that material that's used in the T-strips in the machines that are used in Palm Beach County?


BECK: What kind of material is it, that you could tell from these specifications from the manufacturer, is the material that's used in these T-strips in the portable units.

ZACH: Again, Your Honor. This is right (ph) hearsay. Where the manufacturer told him? The manufacturer is not here, I can't cross-examine the manufacturer.

SAULS: This is an expert, Mr. Zach. Overruled.

BECK: What's the type of material that you understand from the manufacturer, Bayer (ph) Corporation, to have been the material used in T-strips...

SAULS: You just ask him what he--you know, you don't testify.

BECK: What kind of material was it?

GROSSMAN: Urethane rubber.

BECK: Urethane rubber. Are you familiar with this material?


BECK: What are the hardness qualities of urethane rubber?

GROSSMAN: It is difficult to obtain compounds that are as soft as the 60 durometer (ph) synthetic rubber compound used in the Votomatic machine. This type of rubber is much more common in the range of 80 or 90 sure-A (ph) hardness. This particular compound is an 85 sure-A (ph) hardness compound.

BECK: So, that is a bit harder than the rubber that was used in the other unit.

Is that right?


BECK: Now, you talked about what happens to synthetic rubber and natural rubber over time, in terms of its hardness. How about urethane rubber of the sort that the folks got from Bayer (ph) Corporation? What happens to the hardness of that material over time?

GROSSMAN: It is more temperature resistant than SPR or natural rubber. Nonetheless, a sufficient combination of time and temperature under dry conditions would tend to cause gradual hardening. Under a combination of heat and, say, steam, under steam conditions, the reverse is true, and it would tend to soften.

BECK: How about under normal conditions?

GROSSMAN: Say, room temperature?

BECK: Yes?

GROSSMAN: I would expect very little change over a period of many years.

BECK: And I asked you before as to the rubber compounds, whether the frequency of impact on a rubber compound could cause hardening. Let me ask you the same question concerning this urethane rubber. Would the frequency of hitting a T-strip made out of urethane rubber with one of those styluses, would that cause hardening?

GROSSMAN: I think that you would have to have a high frequency in order to generate sufficient heat, probably to a greater degree than with the SPR, since it has greater resistance to heat aging than fur (ph) does.

BECK: So you'd actually have to actually have a stylus hitting the urethane rubber more than a thousand times per second, in order to generate enough heat that it could have any effect on the hardness, is that right?

ZACK: He's leading the witness, Your Honor.

SAULS: Sorry (ph)

ZACK: Objecting. He's leading his own witness.

SAULS: Don't lead the witness.

BECK: How many times per second would you have to hit the urethane rubber with one of these styluses, in order to generate enough heat that it could have any affect on the hardness of this rubber?

GROSSMAN: Elastomers in general respond that way to frequency...

ZACK: Objection; no proper predicate (ph), Your Honor. There's no foundation that was ever done, or (OFF-MIKE) any knowledge about this. Scratch (ph) the question.

BECK: Actually, let me lay the foundation. I think you indicated earlier you've done a lot of scientific research, and in fact have done laboratory tests on this exact question of frequency of impact causing heat in a sufficient amount to affect hardness. Is that what you said before?

GROSSMAN: That is true.

ZACK: Will the counsel...

BECK: Please describe some of the tests?

SAULS: Hold on just a minute. Go ahead.

Have you done it on this particular type of material, sir?

GROSSMAN: Not on this specific material.

SAULS: Sustain the objection.

BECK: Now, the fact that urethane rubber is slightly harder than the blend of rubber used in the other machine...

ZACK: I object, Your Honor. That's not his testimony. It's exactly 50 percent harder, based on his testimony, not slightly harder.

SAULS: Let him finish, and then you can come back and straighten him out.

ZACK: Thank you.

BECK: The fact that the urethane rubber is higher in hardness than the rubber blend used in the other machines, does that necessarily have any affect at all, given the nature of these rubber strips, on how difficult it would be for somebody to push a chad through?

ZACK: Objection, Your Honor. We already dealt with this, and he wasn't going to testify about the mechanics involved, he was only going to testify about the rubber. And I read to the court his testimony yesterday.

BECK: Your Honor, we're talking about the qualities of the two rubber strips.

SAULS: Sustain the objection.

BECK: OK. That's all I have, Judge.

SAULS: All right.

Your cross.

ZACK: Thank you, Your Honor.

Hello, again.


ZACK: Let me understand what you just said about the urethane. If it is at a 90 percent hardness, and the Votomatic rubber is a 60 percent hardness...

BECK: Object, Your Honor. He didn't say percent. That's a completely different measure.

SAULS: Let him ask questions.

ZACK: It's 60 percent, sir?


ZACK: Did you not say 60 percent?


ZACK: What did you say?

GROSSMAN: These are not percentages. These are numbers on a hardness scale that is measured by indenting the rubber specimen with a pearl (ph) driven by a calibrated spring, and then you read a scale from 0 to 100; that is just a scale, it is not a percent.

ZACK: I accept that, and that's what you explained to me yesterday, that when you did this procedure--and let's talk about the procedure for a moment. You were provided a machine, a Pollstar machine, by the manufacturer of that machine, correct?


ZACK: And he hand-carried that machine to you, but it wasn't one machine, it was 10 machines, correct?

BECK: Your Honor, (OFF-MIKE) objection...


SAULS: Sustain the objection. Let's cross-examine this witness, and let's don't testify as to other matters. He has testified. I've limited his testimony; I've sustained some of your objections to where he's testifying only as an expert as to plastics and rubber.

ZACK: That's all I'm talking about.

SAULS: And that's all we need to do. And we don't need to talk about who brought who what.

ZACK: Well, it goes to the credibility of his testimony.

SAULS: All right. Just cross-examine, then.

ZACK: Were there 10 machines with 10 different types of rubber in them?

BECK: Your honor, I object.

SAULS: Sustain the objection.


BECK: ... ask these questions.

SAULS: Sustain the objection.

ZACK: Did you examine 10 machines with rubber or one machine with rubber?

BECK: Your Honor, if I can start over and ask all these questions, it would be fine for cross. But he persuaded Your Honor not to let me ask about these tests.

ZACK: No, this is cross. This is what he did.

SAULS: I'm going to sustain his objection.

ZACK: OK, then we'll move on to something else now.

SAULS: Let's move on to--what he's opined here as to these particular properties on these, and the man has testified on one property that you're talking about with the Pollstar.


SAULS: He has not conducted any tests concerning rapidity of striking or anything else with that. I sustained the objection on the other he said he had. Now let's confine ourselves to that and let's get through for the day.

ZACK: Your Honor, what he has testified about is his--the procedure he followed. And all I'm going to do is talk to him about the procedure he followed.

BECK: He did not testify about the procedure he followed because counsel objected, and I didn't ask him.

ZACK: Your Honor.

SAULS: Mr. Zack?

ZACK: Yes, sir?

SAULS: Let's limit our cross-examination to his opinions that he's expressed concerning these materials?

ZACK: Did you do anything, sir? Did you do anything before you came and testified here today?

GROSSMAN: Could you make that more specific?

ZACK: Yes. Did you do anything testing any types of rubber as part of your testimony here today?

BECK: Your honor, I'm going to object again. He objected and Your Honor sustained the objection and therefore I would not...


SAULS: I'm going to sustain his objection.

Mr. Zack, now I've explained the areas that we need. We don't need to hear about testing any other rubber. He has testified that he obtained information concerning the properties of these materials that are utilized in these machines which are standard industry numbers. He knows and he's an expert in that. He's conducted tests on that. And he did not base and I did not consider and have not considered any testimony of this witness based on any individual test that he's done on I don't know what kind of pieces of rubber, all right?

ZACK: All right. Then let's talk about...

SAULS: So let's proceed.

ZACK: ... what you did involving the rubber in the machines in Dade County, OK?

SAULS: Sustain the objection. Counsel, you may sit down and that'll conclude the examination.

ZACK: Your Honor, if I may?

SAULS: All right.

ZACK: I would like this witness to address the question of the hardness in the rubber that you testified about.

SAULS: All right, very good.

ZACK: Tell us if you will about the rubber compound in the Votomatic machine that you testified about. Have you actually taken a rubber compound from a Votomatic machine?


ZACK: And have you also taken a piece of rubber from a sample that was given to you?

BECK: Your Honor, this is the area that I was not allowed to inquire into. You can't stop me from doing a direct and then...

SAULS: I'm going to sustain his objection, Mr. Zack.

ZACK: Your Honor, the only question I have for this gentleman then...

SAULS: All right.

ZACK: ... because I'm going to move to strike his testimony as not being...

SAULS: Do that when you finish.

ZACK: I will.

SAULS: Go ahead and finish and then...

ZACK: I first have to raise the point, Your Honor...

SAULS: Go ahead.

ZACK: ... that I believe the court was going to allow me to do in this context as opposed to on voir dire.

SAULS: Go ahead.

ZACK: Have you examined the rubber bands, the T-strips, in any machine in Dade County or Palm Beach County before coming to testify here today, sir?

GROSSMAN: I have no knowledge of what the problems was...

SAULS: No, sir, just answer his question. He wants to know, and which I'd understood you had already testified, you did not do anything and have any information concerning the particular machines in Dade or Palm Beach County. Isn't that what you testified to before?

GROSSMAN: Your Honor, are you referring...

SAULS: Did you know the types of materials that are supposed to be used in those machines? Is that correct or not?

GROSSMAN: My question was: Do you mean machines used in this past election in those districts or in general machines that might have come from those counties?

SAULS: I said--he's asking you about this and you've already testified I had understood once or at least twice that you had done anything with the particular machines that were involved in Palm Beach or Dade County.

GROSSMAN: In this last election?

SAULS: That's correct.

GROSSMAN: That's true.

SAULS: All right, I thought the record was clear.

ZACK: And you have no knowledge of how the rubber that you have seen was in any way kept prior to you looking at the rubber, is that correct.

BECK: Your Honor?

SAULS: Overruled. That's a...

BECK: We're talking about the machine I wasn't allowed to ask about.

ZACK: It's not the machine.

SAULS: Overruled. Go ahead, Mr. Zack.

ZACK: Sir, you have no knowledge of how the rubber that you tested was in any way maintained, correct?

GROSSMAN: In the Votomatic machines that I looked at, that's true.

ZACK: You don't know whether silicone was used?

GROSSMAN: I don't know.

ZACK: You don't know whether it was kept in an air-conditioned space.

GROSSMAN: I don't know.

ZACK: You indicated that the urethane gets hard with heat. Do you remember that testimony?


ZACK: And you have no knowledge, do you, as to whether or not the warehouse where the urethane bands were part of a machine was air conditioned or not and how hot that facility was as to whether or not it got hot? Isn't that correct, sir?

GROSSMAN: I don't know if the urethane in questioned got hot.

ZACK: And if it did get hot to a certain level, it would get hard, correct?

GROSSMAN: If it were heated past certain limits, it would tend to degrade and become harder.

ZACK: And sir, did you state that you wanted to actually test the actual rubber but was unable to do so?

BECK: Judge, this is once again...


ZACK: It goes to striking his testimony, Your Honor.

BECK: Your Honor, do I get to come back and redirect and ask him about these tests now?


SAULS: I'm going to sustain his objection. I believe you've asked--you've cross-examined him on the matters that you have effectively cross-examined him on, concerning his knowledge as to the particulars.

He's testified as to the general. Now, I don't know what else he can do.

ZACK: Very little, Your Honor.

SAULS: All right.

ZACK: And I would ask whether you saw the--you recall our discussion yesterday about what you were allegedly going to testify about on the witness list?

Do you recall that?

GROSSMAN: I recall that, yes.

ZACK: And you recall that you never saw what your lawyers put down; you were going to testify before you came to Tallahassee?

GROSSMAN: You asked me that question, and I said that was true.

ZACK: That's all, Your Honor.

SAULS: All right, thank you.

(UNKNOWN): Move to strike his testimony at this time, Your Honor, as having no probative value. He did not examine the machines in Dade County. He has no knowledge of how those machines were kept, how they were maintained. We respectfully say to the court that, through no fault at all of Mr. Grossman, he was not allowed to make the test that would be of any consequence to these proceedings.

SAULS: All right.

I'll respectfully deny the motion. And will give the testimony such weight and credibility as it may be deemed appropriate for that, in view of the direct and the cross-examination.

ZACK: Thank Your Honor.

SAULS: All right. At this time, then--we will call the next witness at 9:00, I assume, in the morning.

At this time, then, the court will stand in recess.

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