Text: Closing Arguments
in Seminole County Absentee Ballots Hearing
Thursday, December 7,
is a partial transcript of closing arguments in the Seminole County absentee
ballots hearing held in Florida's Leon County Circuit Court, Judge Nikki Clark
presiding. Speakers included: Plaintiffs' attorney Gerald Richman, Bush attorneys
Barry Richard and Daryl Bristow, Florida GOP attorney Kenneth Wright, Seminole
County canvassing board attorneys Terry Young and Greg McNeil (ph) and absentee
voter attorney Mathew Staver. Note: Interruptions due to televised coverage
of the hearing occur throughout transcript.
Before we start with closing argument, let me address one issue. I've received
a motion to intervene, from Time publishing company.
Who's here on behalf of
I'm not going to--OK.
Then on the matter of closing,
and the evidence is closed, we're ready to wrap the case up, I had suggested
yesterday one hour for plaintiff's closing, and a combination of 1 1/2 hours
for defense closing.
Is there anything we need
to address before we get right to closing?
Honor, the only thing I'd request, because of rebuttal, with five lawyers arguing
against me--they'd be a little longer--I'd like, say, an extra 10 minutes.
CLARK: Well, I'm
not going to stop you right at 60 minutes. I mean, I'll certainly be flexible
fine. I'm just going to try to use 40 minutes of time and use 20 for rebuttal.
CLARK: Of course,
I'm going to accommodate you on that.
Then, plaintiff may proceed--Mr.
RICHMAN: May it
please the court, Your Honor, the issue is whether the differential or preferential
treatment by the supervisor of elections, in this case, was sufficient to compromise
the validity of the election process. That's how we framed it. Your Honor framed
it slightly differently. But I want to address the two--certainly.
CLARK: there are,
certainly, allegations--very strident allegations--that there was differential
treatment. As I reviewed the evidence last night--in fact, let me rephrase:
What I want you to do is show me where there was differential treatment. It
seems to me what happen was that the supervisor of elections allowed the Republicans
to come in and alter the ballot request forms.
CLARK: The testimony
seemed to indicate that the supervisor of elections didn't offer that to the
Democrats, but also it also seems that the Democrats didn't ask for that. So
talk to me about that issue, and show me where, in the record, the facts would
indicate one way or another.
the Democrats did not know it was going on--no Democrats, no independents, had
any idea that this was happening until October 30th, when it came out publicly,
and at the time it happened, on October 30th, it was, already, essentially,
too late to doing anything...
CLARK: And in fact,
let me ask you another question on that point. It seems that the cards sent
out by the Republicans did not contain a spot for that information.
RICHMAN: It did
CLARK: It seems
that the cards sent out by the Democrats did contain that information. Now talk
to me about that a little bit.
CLARK: Not the information,
but the line where to put the information.
RICHMAN: The Republican
card contained a place where it was to have been preprinted. And they preprinted,
apparently, on some. If I remember the testimony from the excerpts, they said
they came in about 30/70. So about 30 percent,apparently, 70 didn't. And what
happened is is they sent them out two in an envelope to households, so if weren't
both registered Republicans, they'd get there and hope that the other person
would also fill one out. But they didn't have, or didn't put on, the number
on there. The Democrats, surprisingly, in this case...
CLARK: They didn't
even put on a space for the registration number to be filled in--is that correct?
correct, because they were assuming that it was going to be on the preprinted
form on the front. So they were trying to make it easy for the voter to go ahead
and just put this information on the back. The Democrats, surprisingly, did
it the right way.
As far as their mass mailing
goes, what that doesn't address all of the Democrats who may have not have gotten
the mass mailing, it doesn't address independents, and it doesn't address other
people, and that's who's disparately treated. And it's not just disparate treatment
with regard to the mailing issue, it's disparate treatment in terms of what
you do afterwards, and that what was done was a violation of the law.
The important thing is
they never called Mr. Poe--and we didn't call Mr. Poe. But the evidence is that
Mr. Poe found out about it on October 30th, and he just said this is illegal.
And Sandra Goard goes ahead and she keeps right on doing it knowing--having
to know, with her knowledge of the law--that it's illegal. Now, if you take
that in point of time, let's assume for a moment that the Democratic Party went
ahead and said, we'd like to do it too. Two wrongs don't make a right. When
you've disparate treatment here, you can't limit disparate treatment just to
the party, or to parties, disparate treatment is the whole universe of voters
that are there. That's what you have here. Not everybody is affiliated with
a particular party.
If you went ahead and took
the public office of the supervisor of elections and you turned it into a base
for just the two major political parties, what happens to all the other parties?
If you turn it into a base for everybody--those are not the facts we're dealing
You have to go by the facts,
and what the facts are is that they took a public office, and that public office
was then turned into an agent or an arm of one particular political party. And
the reason doesn't matter because the law says you cannot do that. And they
take the agent of that political party, they sit him in there; and this is reason,
by the way, Your Honor, why we said we've got a stipulation in a lot of the
facts--probably enough to give a summary judgment in our favor, I think, we're
stipulated to except with regard to the issue of the remedy.
Because of the Boardman
case and the Baldwin case and others, we needed more to get into the issue of
the sanctity and integrity of the election process. And the way we go about
doing that is by going ahead and showing the knowledge of the statute. The knowledge
that Ms. Goard had.
Now, she knew enough to
know that she shouldn't have her own people going ahead and doing that. But
what does she do? She let's the arm of one party use a room in their office,
and then comes the cover-up. What's the cover-up? She doesn't tell anybody publicly
that it's done. She doesn't tell the Democratic Party, she doesn't tell the
world that it's being done until a reporter, Mr. Alterio, breaks the story on
radio on (OFF-MIKE) October 30.
What happens as a practical
matter? Well, she says, first the person was there one or two days. Then on
deposition I get her to say, could it have been as long or as nine or 10 days--she
Then we deposed Mr. Leach.
Mr. Leach says at least 15 days. And then we go ahead and we get deposed their
employees and one of their employees says, three weeks. Mr. Masciani says his
estimate was that Mr. Leach was actually there for three weeks. Then Sandra
Leach comes in--I'm sorry, Ms. Goard comes in and she says that, with regard
to the people that were there, first of all, I don't know who called me.
Well, I would refer Your
Honor to the excerpt of the deposition that everyone agreed to be put in for
Mr. Stelling (ph); now Mr. Stelling (ph) is vice chair of the Republican Party
of Florida and...
deposition, please. Go on.
RICHMAN: ... and
the excerpt that I'm reading from is very short. Page 25, lines 11-24--because
what was bothering us is, what's the--who is this person? And did she have knowledge
of who the person was? It didn't make sense when she said, I just don't know
who the person is. I don't remember who this unidentified person is, but I go
ahead and I do it.
Mr. Stelling (ph) testifies,
question: "When you say that Mrs. Goard told you that Mr. Schnick was the one
who called her is that--did she mention his name, that he was the one who called
The answer: "Actually,
I know when that was now."
Question: "When was it?"
Answer: "That was in here
when Harry"--that's referring to Harry Jacobs, the plaintiff--"was questioning
her here at the canvassing board meeting with Jacobs.
Question: "What happened
at that time?"
Answer: "She said that
she did not call anybody."
Question: "Did she say
she got a call from Mr. Schnick?"
Answer: "Yes, she did because
she wanted to know how she found out and that's what she answered."
Question: "And she specifically
identified Mr. Schnick?"
Answer: "Yes, she did."
Now, do we have a sudden
loss of memory when her deposition is taken just a couple of weeks later?
Then, a couple of other
excerpts relating directly to Ms. Goard. Goard, in volume II of her deposition
at lines--at page 19, lines eight through 17.
Question: "And you don't
know how many days the other person came in, correct?"
Question: "And you told
us earlier you don't recall the name of the other person, and just have given
us a very limited description, correct?"
Question: "Do you know
whether that other person worked for the Republican Party?
Answer: "No I don't."
But then you have the testimony--reading
from the excerpt of Mr. Leach; and what does Mr. Leach say on that exact same
issue at page 49, lines 17 through 23.
Question: "Did you ever
introduce to her or identify to her either of the two other people that you
mentioned, the other regional directors who were here brief periods of time
according to your testimony?"
Answer: "She knows both
Waldi (ph) and Carlos (ph), from what I understand, personally."
Question: "So she would
know both of these people who came into the back to assist you?"
Answer: "That's correct."
Question: "She would have
been aware of the fact that they were here to assist you at the time they were
Answer: "That's correct."
Question: "Did you observe
her speaking with either of them when they came in?"
Answer: "Not when they
walked in the door."
Question: "But at any time?
Answer: "If she would come
into the back, she would initial pleasantries--hello, how are you."
Question: "So she clearly
knew who they were?"
And at page 49--and then
I asked also--question: "And Did Sandra Goard, by the way, in regard to the
two gentlemen you mentioned, I believe Carlos and--what is it?"
to them by name when they were here?"
Answer: "From what I remember,
Now, following up on that--so
you've got, basically, the cover-up. She doesn't want to the tell us who the
people are, she doesn't want to tell us who from the party called her; she's
got to admit that somebody from the party did it because she has to cover herself
as to why she went ahead and did it at all.
Now go to the next part:
the party--now we know that it's Mr. Schnick who called and we know that Mr.
Schnick sends in Mr. Leach. And what does Mr. Leach do? From Mr. Leach's deposition--and
this is so instructive in terms of what the party is doing in controlling this
process and taking over, in effect, the public office that goes directly to
the integrity of the process. At page 20 at line--beginning, basically, at about
line--I don't know have the actual numbers in here, but page 20, line four through
page 21 line one is the excerpt.
Question--and this is in
the context of where he is talking to Mr. Schnick about coming down to do the
Question: "From your--have
you spoken to him before in terms of knowing how experienced he is"--referring
to Mr. Schnick--"with regard to the law involving elections?
Answer: "I have full faith
and confidence in Todd Schnick's abilities regarding the law in elections. He's
been in politics for a long time."
Question: "So you just
did whatever it is he told to you do, in effect?"
Answer: "I'm a military
man. I follow orders."
The orders in this case
were to violate the law.
The court asked, and I'm
going to get to a few more excerpts shortly--but the court asked, of the two
distinct issues the court stated it was going to be dealing with, the first
is whether the addition, and I'll give you the language from the stipulation
is, "whether the addition of completion of voter registration ID numbers is
sufficient to invalidate the absentee ballots?"
We'll address that in the
remedy section, but the answer is an unequivocal yes. Because, as we've pointed
out to Your Honor, the legislature changed in 1998. The problem with absentee
ballots--there are so many cases about fraud relating to absentee ballots it's
a great vehicle to, basically, destroy the integrity of the process. So the
legislature, responding in 1998, to what happened in '97--and, by the way, in
'97 Your Honor will recall, certainly there were innocent voters who voted in
the absentee ballot pool, but because of the commingling they were all thrown
out because you couldn't trace them.
So there were innocent
voters, quote, "disenfranchised" because they voted by absentee ballot, which
is a privilege; there was no other choice that the court had. And we suggest
to Your Honor, other than the possibility of more limited, equitable relief
that I'll address at the end of my argument, there really is no other choice
in this case because of what happened here, with regard to the entire pool of
absentee ballots being tainted.
The second question that
Your Honor asked, I believe we've already partially answered, is "whether or
not the Democratic Party and the Republican Party were treated differently by
the supervisor of elections office as to the extent that the validity of the
election process was compromised." And there I just have to put a little more
meat on the bones.
It isn't just a matter
of changing the number on the card. It is a matter in this process that you
have--And this is where the photographs, I think, come in handy--I know that
Your Honor said that she saw the photographs, but I really believe a little
short explanation of what they show, counsel will stipulated that I can do this,
This just shows the basic
building. The second one, though, is important because it shows what happens
when you come in. It shows that there a counter here, and this is a non-public
area. The public is out here. There is a restroom for the public here. And the
public doesn't get back there without being supervised, Democrats, Republicans,
The next picture shows
the hallway, the gate, with regard to the public, if it's going to come in here,
and these are all of the people working around here.
The next thing we see,
this is from the back of the area looking at front, the public area being here,
once the person comes in, there is a hallway, over here to the left side of
that picture. And that's Exhibit 4.
Exhibit 5 is important
because it shows what happens when you come in. You go down here, and Your Honor
will see this door down here. That's what leads to the back area, and the rooms
that are there, where the absentee ballot request forms are kept and other things,
in what has been stipulated to, unlocked, filing cabinets in an unlocked room.
And here's the room. So
the person, Mr. Leach, every day that he comes in, walks down this hallway,
these are the restrooms here, the ladies' and the men's restroom right over
here, and there is the room. Wants to come out and use the restroom, go over
here, and he goes into that room, and nobody is posted in that room. There's
not even testimony that the door is kept closed.
The integrity of the election
process, you have an outsider from one party who could go into any place that
they wanted to within the elections supervisor's office.
And there is the room.
There it was it at the time that we took the picture. But you can see all of
these things are flagged, these are the absentee ballot request forms that are
in there, and these are the filing cabinets that are unlocked in that room.
And nobody sits in there and works full-time in that room, according to the
Then, this is just another
picture of the same room to show all of the data, all of the important things
that are in there in this unlocked room with an unsupervised, Republican-paid
CLARK: Let me ask
you a question.
RICHMAN: Yes, Your
CLARK: Is it your
position that the integrity of the election was compromised because of access
to the inner office, or because of the addition of the voter registration ID
RICHMAN: Both of
it, all of it. The whole process of what was done here, we don't know what was
done, we don't know what was thrown away. We will never know because of the
lack of supervision and allowing the Republican operative in there.
CLARK: If you don't
know what was done, are you asking the court to presume that something horrible
RICHMAN: No. What
I am asking the court to presume is that within the basic concept of disparate
treatment. We know, we don't have to presume what was done with regard to the
absentee ballot request forms themselves. But we know in the--the entire framework
of what happened here that they had the opportunity. For example, the shoe box.
We don't know what's in the shoe box. What was in it? There was no, nothing
was locked in.
That is one of the points
that I think I made in opening and it is absolutely rebutted, Your Honor.
When the absentee ballot
request forms came into this office, the testimony of Sandra Goard and her employees,
is they were put aside. They were rejected, and she used the word "rejected"
over and over again in her testimony.
And at that point, if you
can follow what she said publicly in her Internet Web site, they were void.
Nobody's supposed to change them. They're public records, they're not supposed
to be altered at that point.
What happens? They are
not logged in, nobody knows where they are. But some of them, the Republican
postcards are the ones that get changed. Not one shred of testimony that any
others than the Republican postcards were changed. Again, disparate treatment
going right to the integrity of the process.
And then, this is the hallway
from that room, you follow down, you make the, basically, come from here and
make a left. And this is the room back there that were given to Mr. Leach and
the two other Republican operatives, which stipulated for a brief time. We have
no way of knowing how long. They were never logged in. Nobody supervised them,
nobody followed them. That is the room.
This is the room that Mr.
Leach was in from anywhere from 15-21 days. There is a door in the back. You
can walk in and out of the door, take things in and out. It has been stipulated
nobody knows, no testimony as to what he had in his briefcase, what he brought
in, what he took out, other than he had a laptop.
CLARK: Again, are
you asking me to presume that things happen that are not in evidence here?
CLARK: Simply because
they had that apparently unfettered access.
RICHMAN: No, I am
not asking Your Honor to presume anything. I am asking Your Honor to presume
one thing, and that is that this goes to the integrity of the process to allow
a person from one party, unsupervised to be in there. That is part of the overall
picture of what happened here. You can't just go ahead and look at the voter
CLARK: Had she allowed
people from various parties to go into that inner-office?
CLARK: Let me ask
a question. Had she allowed various people from various parties to go into that
inner-office unfettered and unsupervised, would that access alone be enough
to compromise the entire election?
RICHMAN: I think
that that alone may not be, but it could be. I mean, I think that you need to
put a little bit meat on the bones.
CLARK: My question.
RICHMAN: The question
is, if she let people from all other parties come in?
CLARK: Right. And
the question boils down to, is it the unfettered access, whether it is by the
Republicans, the Democrats, whoever else, is it the unfettered access...
CLARK: ... that
renders the process so compromised that I can't give an effect.
access to one party, yes.
RICHMAN: If everybody
had access, I think what you would probably have to say is: You have got a really
sloppy, negligence supervisor and you would probably have to know more. But
she says here that anybody who comes in here has to be escorted.
CLARK: She was not
accused of just being sloppy and negligent. And that is not the issue before
RICHMAN: That is
exactly the point. That is why I said this is intentional wrongdoing. She intentionally
did this. She even testified, as a recall, that normally anybody coming in would
be supervised. But these people were not, and they are only representatives
of one party.
CLARK: And let me
ask you another question. If this is a violation--if the unfettered access is
a violation of her policy, does that also render it a violation of the law?
RICHMAN: I can't
cite a specific statute, Your Honor, I haven't looked into that. But I would
say this, I would say, yes, with regard to the law involving disparate treatment.
CLARK: That is not
quite my question, though, and I understand where you are going, but you are
taking my question a little bit too far. I guess that I am trying to break it
down a little bit.
CLARK: And trying
to find out from you your position on the very narrow issue.
RICHMAN: Could you
reframe the issue again?
CLARK: Yes. Is--even
assuming for a moment that she violated a long-standing, perhaps even written
policy, to allow unfettered access into the inner-office, does the violation
of her policy constitute a violation of the law?
RICHMAN: In and
of itself, I would say no.
RICHMAN: I don't
think that we can go that far.
The only other thing that
the pictures show, Your Honor, very briefly is the room. The--aside from the
door, you can see the area where they were, and this is combined with the exhibit,
the hand-written exhibit of Sandra Goard and it basically shows with this...
CLARK: You might
want to put that a little bit closer to me.
The little X that is there,
in relation to the room is where she says that Mr. Leach was sitting, in relation
to this room, and what you can see very clearly...
CLARK: And where
would this X be on that photograph that you got there?
RICHMAN: As near
as I can tell from here, the tables might be somewhere as right in this area.
RICHMAN: In other
words, on that left side. The door would be there, and he would have been sitting
right in this area. And Mr. Masciani, I believe, he said was sitting somewhere
in the desk right in here that you can't see it as you come in, on the side.
But as testified to by Mr. Masciani, he was not there all of the time, and the
person was not supervised.
And this, this is important
because it shows you the computer terminals, the next exhibit, which is number
11, the testimony is that you had to enter a password to get in there, but there
is also testimony from one of the employees.
CLARK: A password
to get into that section or on to the computers?
RICHMAN: To get
on the computers. To log on to the computer, you needed a password. Nobody knows
whether or not he had a password. But what we do know is he was there in the
room while a training session took place, and the computers were on and were
CLARK: But if nobody
knows, and there has been no testimony to that fact.
CLARK: Again, I
can't presume that he had access to the password; is that correct?
RICHMAN: That is
correct. But what I am--what I am saying is unrefuted in this record is that
the computers were left on. They were on in the room, and nobody knows what
happened from that point. And the Democrat were not there when that was on,
no one was.
And this just basically
shows that the room that--the last photograph shows the open door to the back--to
the back of the room, which is photograph number 14.
One case citation we rely
on, Bolden versus Potter for this language: "The burden of establishing with
certainty that a specific number of ballots were tainted, so as to effect the
outcome of the election would be too grave." This is from the Florida Supreme
Court, 1984. "Such a restrictive holding would encourage fraud and corruption
in the election process."
And we've heard much about
the will of the electorate, and what the Supreme Court in this case says is,
"Although the will of the electorate must be protected, so must the sanctity
of the ballot and the integrity of the election."
Very briefly, on the disparate
treatment issue, Your Honor heard the testimony of Steve Haul (ph), which is
rebutted just on two issues. A Democrat comes in and he is told the that the
information must be there, it must be correct, or it's not going to be accepted
or processed. He's not told, you can have somebody from your party come in,
or somebody come in and alter it, and we will do it. And this is on August 18th.
He's also told, he wanted
to get some additional information and the Republican elected supervisor was,
in his word, "less than helpful."
But then we get to Mr.
Ray (ph). Mr. Ray (ph) was called really for one purpose: disparate treatment.
Mr. Ray (ph) has a bunch of, I think that he had about 900 signatures or whatever
that he tried to get on the petition to save the $3700 filing fee. He needed
to get 2,000, he never gets that far, he comes in, he brings them to the--to
Sandra Goard, and she explains to him that there are problems, there are things
that are wrong. He testified that some of them did not have the voter identification
number. He wants to take it back out to get them corrected.
And what does Sandra Goard
do to this person, who she knows is running as a Democrat? She says, you can't
take them out. They're public property, public records. Absolute...
CLARK: You presented
that witness to prove that there was disparate treatment between how Republicans
are being treated and how Democrats are being treated?
CLARK: Well, let
me ask the question. In considering whether or not there was disparate treatment
between people, don't I really have to consider the almost identical activity,
rather than different kinds of activity. I have to look at the exact same activity,
or as close to it as possible, before I can determine whether or not there is
disparate treatment because it's totally different activity.
RICHMAN: Your Honor,
I understand what Your Honor is saying. But it shows what the office was doing,
how they are treating Democrats. Admittedly, it's not voter ID number, but it
is, because he said--in fact, I have got to rethink what I just said. He does
say that some of those petitions had voter ID, identification numbers, missing,
and he tries to take it out so he can go back and correct it. And she says,
no. So that clearly is disparate treatment, and that part of it is right on
CLARK: Those were
on his petitions to be qualified without having to pay a filing fee?
RICHMAN: And certainly
since the voter ID number is an issue that is about as close as we are going
to get. That means, as opposed to the Democratic Party coming in. But it doesn't
have to be the party. Just like Mr. Jacobs, the plaintiff in this case, is not
the party. He is a voter. Yes, he is a Democrat. But that's not the issue in
The issue is disparate
treatment, and that brings us to our next witness, which is Mr. Livingston.
Why did we call Mr. Livingston? Because Mr. Livingston is a lifelong Republican.
Former--And by the way, we didn't call him, they subpoenaed him because he filed
the protest. They asked him the questions. And what he basically said is, I
was appalled. I was the clerk of the courts in a place--I don't think that he
said Richmond, Virginia, but in Virginia, an elected Republican official, and
he goes ahead, and he requests the absentee ballot--and absentee ballot through
a request form, but then he comes in here and sees what is happening. And he
said: That is appalling. You can't do this in a public place.
That goes, again, and Your
Honor, very correctly pointed out that this is a court of law, not a court of
public opinion. But the perception of respect for the legal system and for the
elective process is what is at stake here. That is extremely important. in terms
of the precedent that this case is going to set. And the cases that have come
before, in terms of corrupting the process and maintaining the integrity of
the process. And that's what Mr. Livingston, in effect, was called for as a
witness in this case.
Then we get to--and this
I am going to get to the very quickly--Sandra Goard, knowledge of the law, knows
that it would be void and had to be rejected. The cover-up I've mentioned; the
lack of a log-in; the unlocked and non-public area.
Now, let me--I think I
have it right here--to save time in this case, everybody worked together and
we limited what we were going to read in, but I just want to read in a couple
of very, very brief excerpts.
From the depositions of
Eleanor Bailey (ph), one of the employees at the supervisor of elections office.
Just this, because what she confirms--and we didn't know about this until we
took her deposition--is that when the Republican operative came in, Sandra Goard
held a meeting to tell her people what he was going to be doing.
So, here she is using her
paid public employees to go ahead and assist the Republican Party in what it's
doing, the Republican operatives. And she's asked at page 6, line 8.
Question: "And do you know
if they were pre-printed by the Republican Party and sent to voters? is that
"Yes, that is what I was
Question: "Who told you
Answer: "We were told in
a meeting at the office."
Question: "When was the
meeting, before or after election?"
Question: "OK, who is was
at meeting that you recall?"
Answer: "The whole office
Question: "Who chaired
or who was in charge of the meeting?"
Answer: "Mrs. Goard."
Question: "And knowing
you can't remember exactly what people said, what was the gist of it? what did
you hear at that meeting?"
Answer: "I do not remember
the whole meeting, I just remember that we were going to start receiving these
in, and that it was something that was done through the Republican Party."
We never would have known
about that meeting if not for that testimony.
Then we have the testimony
of Bonnie Eaton (ph). Page 17, line 9.
Question: "As part of your
responsibilities of the clerk in this office of elections, were you instructed
that the voter registration number was a very important piece of information?"
Question: "And you were
told that if that number was incorrect you could not process the application
Question: "And did you
always follow that instruction?"
And then we have the testimony
of Mr. Joyner. Again, a couple of short excerpts. Page 13, line 20--I don't
have the exact line number, but it's in the excerpt that starts with page 13,
Question--And this shows
the use of the staff--"Who was it that physically did the separation?"
Answer: "At that point
in time, I was doing most of the separation of all of the mail to help out the
rest of the staff."
Question: "OK, and what
is that you separated out?"
Answer: "I separated all
of the mail, including, you know, these requests, the request forms."
Question: "And when you
say 'request forms,' which request forms are you referring to?"
Answer: "The Republican
request forms, or, you know, that were submitted, you know, by individuals requesting
am absentee ballot."
Question: "Did you segregate
the Republican request forms, the ones were identified as part of the mass mailing
by the Republican Party separate from other absentee ballot request forms?"
Question: "And on who's
instruction did you do that?"
Answer: "Mrs. Goard."
Question: "Did she tell
you why she wanted you to do that?"
Answer: "No. We were to
separate them and those that did not have the number on it, you know, we were
to give them to Michael."
And at page 21, Question:
"Why did you segregate them on this case?"
Question: "You know, we
were putting them--initially, I don't know if they were there--segregated. Whenever
the decision was made, you know, that someone was coming in to do it. Then they,
to my knowledge, were segregated out.
(INTERRUPTION OF COVERAGE)
RICHMAN: ... "I
believe Charlene (ph)."
So you have another employee
in the supervisor's office doing the segregation.
And then I asked further:
"Had they been segregated out before Mr. Leach arrived?"
Answer: "Not to my knowledge."
Question: "So, in other
words, when Mr. Leach got there a paid employee of this office went ahead and
segregated out the Republican absentee ballot request forms, correct?"
Question: "And then you
personally took those and gave them to Mr. Leach, correct?
Now I'll skip over that
and just go to one brief excerpt here. Page 43--again this is Mr. Joyner. And
keep in mind Your Honor, that Mr. Joyner is the No. 2 person in that office
and Charlene Pike (ph) is the person who was the assistant to both Mr. Joyner
and Ms. Goard.
Page 43, line 25--Question:
"Based upon the policy of this office--it was clearly the policy of this office
that once an absentee ballot request form comes in, no one in this office is
to alter or add any information to the absentee ballot request form, is that
Question: "And that was
pursuant to, as you understood it, the statute that says you can't change or
alter anything there. No one in this office can change our alter anything, is
So they don't do it, but
they let the Republicans come in there, in their office and do what they knew
to be illegal.
And lastly, a brief excerpt
from the deposition of Charlene Pike. Charlene Pike is the lady, Your Honor--and
I'll just quickly summarize what she says on this point. She's the one who testifies,
in her deposition, that what happened in the case is that when people didn't
have the right information on there--on the voter identification numbers, they
would pick up the phone and they would call them. Then she said, no--then that
But what she said is, letters
were sent out. But then things got so busy, somewhere around the 10th to 12th
of October that she no longer sent letters and she no longer made any phone
calls. Maybe one or two she said, that's it. And guess what? On the timeline,
that just happens to be about the time Mr. Leach comes to the office. It's unclear
the exact date Mr. Leach arrives because we don't have, again, a log or any
record of this Republican operative being there.
But the question is, what
happens after that? And she testifies at length, if we go to page 22, line six
and go to top of the next page on there and the excerpt--question: "The last
couple of weeks or so in October and you stopped generating letters for the
benefit of either Democrats or Republicans."
Question: "Then following
that, did you have a conversation with Mrs. Goard as to how these Republican
absentee ballot request forms were going to be handled?"
Answer: "The only conversation
after that, I was informed that somebody from the Republican Party was going
to come into the office with their database and attach numbers to them."
And then I asked her further
on: "With regard to these, you said you made some phone calls. Did you make
any phone calls after October 15?
"After October 15th?"
And, again, she says she
didn't do it after October 10. And then she says one other--two other quick
things that are important. She says--she refers to a staff meeting in 1998.
And this is at page--beginning with the excerpt at page 30, line three through
And in that excerpt she
says: "We asked her about a manual."
And I said: "Now, in 1998"--I'm
sorry, she basically says, her answer says: "Now, in 1998, when the laws changed
we did have a staff meeting and we went over what the new requirements were."
Question: "And one of the
things that you learned in that staff meeting in 1998 is that before an absentee
ballot can be issued the absentee ballot request form mandatorily has to have
the voter's name.
She answers: "Uh-huh."
And the last thing that
I wanted to quote is this: at page 59, line two through 60--I'm sorry, 69, line
14 through 71, line one--in that excerpt she said the following.
Question: "OK; in regard
to the information that's being referred to includes all of these items, one
of which is item number four which relates to the voter identification number,
Question: "And you clearly
understand from that, and understood from your training that its the person
making the request who must disclose the information that's here, correct?"
Question: "And one of items
that the person making the request must disclose is the voter identification
Question: "And in this
case, the person who obtained the voter identification number was not the voter,
but was Mr. Leach relating to these Republican cards, is that correct?"
She asked me to rephrase
it, and her answer was recorded as "uh-huh."
Question: "Wasn't it, with
regard to the Republican postcards--wasn't it Mr. Leach who got the voter identification
number and gave that information as opposed to it coming from the voter?"
Your Honor, let me--since
I'm quickly going to run out of time because of the excerpts here, which I didn't
do before--let me note the following: number one, they only produced one witness
and the one witness was just to talk about what's in the shoe box, as to whose
integrity no one has any proof. There's no chain of custody; nobody knows what
was really in there. They have no expert analysis of what's there, and I'm going
to comment briefly upon the numbers as to what's there.
But I'll save the rest
of this for rebuttal only to mention it quickly: They've put up every procedural
roadblock one can try to imagine in this case including, initially, basically
saying that we had to--they wanted to subpoena Vice President Gore and they
wanted us to follow the motion to dismiss, basically saying that Vice President
Gore was an indispensable party to the case.
That's gone by the wayside.
Their theory in hoping that the vice president is somehow in control, that's
gone. The issue of latches that we waited--there's no basis for latches.
The only evidence in this
case is that Mr. Jacobs, who's the party in this case, acted at the canvassing
board when he found out about this on or about November 8 and filed the protest
They said that 102.168,
the contest statute, simply doesn't apply. Totally ignoring the Harris case;
Your Honor has disposed of that. Forty-two USC section 1971 has absolutely no
application and, as we pointed out to Your Honor--is it material? If it's material
it wouldn't apply, aside from the fact that the act has never been applied in
any kind of a situation like this. They can't cite a single case in which it
has, so I'm not going to waste time on that and I'll rely on my memorandum.
Legislative history: They
use a tortured version of the legislative history to say that we are referred
to ballots--that somehow it refers to the absentee ballot request form, which
it does not. And what the law unequivocally says is that that legislation was
passed because of what happened in Miami and it was to tighten up requirements.
And when they tightened up the requirements, they added the word--the word "must"
And they cited some language
in there, saying that some language is directory if it doesn't otherwise say
that. The section that they're referring to is the section that does not apply
to the absentee ballot request forms, so it's totally inapplicable.
They say, as another defense,
everyone does it. They were going to bring in 12 election supervisors. Aside
from the fact that's grossly irrelevant, they then even gave up on that; they
presented no evidence on that other than, I think Your Honor will see, and I
expect to hear it in closing, Mr. Altiero's testimony mentions something about
it was done differently in Orange County.
That's pure hearsay; and
the fact that we let the excerpt go in, by no means is intended to be a waiver
of the fact that that's hearsay and there's never been any proof on that point
as to how other election supervisors are doing. And if they were doing differently,
they would simply be violating the law as well.
Very important argument
on the, don't disenfranchise me, or the issue concerning the remedy and the
issue concerning what our burden of proof is.
before you get to the issue of remedy.
RICHMAN: Yes, Your
CLARK: I want to
inquire about the absentee voters who, whether or not they should have received
the ballots, who did receive the ballots and who filled them out and sent them
in and, as far as they knew, thought they were voting; thought they were voting
legally and they thought their vote was going to count. On those ballots, those
people clearly expressed their intent as who they were going to vote for.
CLARK: If the court--and
this is relying on Boardman, Beckstrom and the other cases--if the court can
give effect to the will of the people because it's clear what their intent was,
why shouldn't I do that?
you cannot do it in accordance with all of the cases that say where it's commingled
and you can't separate it out, that those ballots, basically, have to be thrown
Remember, Your Honor, even
in Boardman with--where some of them were declared invalid, people left a signature
or a witness. The envelope wasn't properly witnessed, and if it wasn't properly
witnessed, you can go right back and say, but that was the will of the person.
That person intended to vote but, technically, they didn't do it right.
But the law says, you have
to do it right to exercise the privilege of an absentee ballot. In this universe
of voters, through no fault, necessarily, of their own, didn't do it right.
It's no different than saying they left off a signature. They didn't get it
witnessed. They didn't go through all of the hoops the legislature says you
must mandatorily go through before your ballot can be counted.
It's the same basic issue.
And they come back and they say, well, we can't prove how those people would
CLARK: Respond to
this quote from the Boardman case: "If statutory requirement with respect to
absentee voting are complied with to the extend that duly responsible election
officials can ascertain that the electors whose vote are being canvassed are
qualified and registered to vote and they do so in a proper manner, the absentee
ballots are legal."
What this says to me is,
even though there is noncompliance with some portions of the statute, if the
canvassers can tell the intent of the people, why shouldn't that intent count?
you have intentional misconduct here. That phrase doesn't apply--didn't apply
in the city of Miami case, doesn't apply in this case because you have intentional,
knowing misconduct. Counsel have used the word and said we haven't proven fraud.
Well, Your Honor, it's fraud on the process.
The fraud that's used in
these cases is not fraud in the classical sense of having to rely on something.
The use of the word "fraud" in the election process is basically a corruption
of the process. This process is corrupted when the Republican Party takes over
the local supervisor of elections offices, and if you look...
CLARK: Let me ask
another question. It seems that part of your argument in showing that there's
fraud is that Mrs. Goard knew the law, was well-versed with the law and had
advised her staff on what the law was.
CLARK: If Mrs. Goard
had been a brand-new supervisor and you don't have evidence that she knew the
law all that well, and I want you to respond to this quote from Boardman: "Absentee
voting statutes must be strictly construed; but strict construction does not
necessarily mean strict compliance."
So if she didn't know,
and I'm not suggesting that she did or didn't. But, absent that evidence, why
shouldn't I still take a look at the language in Boardman and conclude that
there's been substantial compliance by the voters and accept their vote.
that's not what happened here. What happened here is you don't have substantial
compliance because post-Boardman the legislature passed a statute that makes
these requirements mandatory. Boardman did not deal with that issue.
And in Boardman, Your Honor,
there were specific ballots that were taken out, as Your Honor will recall.
They were able to trace them, and Boardman did not involve intentional wrongdoing.
What you've got in this case on the test of Boardman is you've got the three
factors that Boardman sets forth. What happens when there's intentional wrongdoing--is
there substantial compliance?
Well how can you have substantial
compliance when you have a statute that now is made mandatory by the 1998 Republican-controlled
legislature and, on top of that, with the mandatory compliance, it's made punishable
even by a felony. I mean, all of those things add up to the fact that you've
got to view this as strict compliance with the use of the word "must."
So you can't--there is
nothing that would constitute substantial compliance in this case. It's a material
defect in the request.
CLARK: Let me ask
you this, then. The substantial noncompliance is a substantial noncompliance
on the part of the voters, or is it on the part of Mrs. Goard? And if Mrs. Goard
did not substantially comply, isn't it she who should be punished and not the
RICHMAN: Both; the
voters haven't substantially complied because the voters haven't met the requirement
of the statute. The statute says, this is what you must do. you can't have substantial
compliance by the voter if you've got a mandatory provision of the statute that
had to be done by the voter.
So it's not a matter of
punishing the voter, it's the policy of the state of Florida that you don't
get the privilege to vote by absentee ballot unless you do all of these things.
That's what they've said, and there's no legislative history that would contradict
that. That is the law.
So you cannot have substantial
compliance when you leave out what everyone concedes is material. If it wasn't
material, Sandra Goard would have processed this stuff. She didn't. She knew
it was material. She knew it was mandatory. And, on the form--I mean, the voter
may not realize that, but that's not the problem.
The problem is, the voters
can't get it if they leave off a signature, if they do something else they just
don't get to vote that way. They've got to go to the polls. That's the law.
And what you have here, following the language of Boardman is, in Boardman it
says, with regard to the rule--the general rule is that, "where the number of
invalid absentee ballots is more than enough to change the result of the election,
then the election shall be determined solely upon the basis"--in this case,
of the machine vote.
"The reason for the rule
is that, since all the ballots have been commingled and it is impossible to
distinguish the good ballots from the bad because all ballots are required by
law to be unidentifiable that, in fairness, all the ballots must be thrown out."
That is the quote from Boardman; and if it were any other way--and one of the
interesting things, Your Honor, in terms of cross-examination of the expert
that we presented--they were basically trying to say, isn't it a fact that these
people would have gone to the polls anyhow?
They otherwise would have
voted; look at the percentage that's in the shoe box. Well, there is no way
to know that. Talk about speculation--nobody knows what somebody would have
done in an absentee ballot pool, and the expert was candid enough to say that
he didn't have any absentee articles or data to be able to decide that.
Now here's a very interesting
point. He gave, Your Honor--and candidly, Your Honor, we put this in for a reason.
We believe under the law that the only remedy in this case is that the entire
pool must be thrown out as a matter of law in Florida. We can find no case in
Florida where anything less has occurred. We've cited in our memorandum--there's
an Alaska case and, I believe, a California case where they tried to do something
the point I'm getting to, is that--but the question--we put that in there in
an abundance of caution and to point out to Your Honor that there is some language
in there that says this a court of equity and you can fashion other relief.
And the other side is arguing this is draconian--15,000 ballots. As a matter
of law, it's not a matter of whether it's draconian. We didn't create the problem.
The Republican Party did, and the supervisor of elections did. And that is the
But in an abundance of
caution, we wanted to give Your Honor this other information. And the other
information is, as I see it, there are three possibilities. One, they shall
all be thrown out. At the very least, the 1,932 that were infected--that number
should be thrown out and taken out of the column of the Republican Party.
But if you want to go ahead
and say that's not fair because some of these people might have voted for a
Democrat, then you have to look at another issue. And that's where we brought
the expert in.
We really brought him in
for a very limited purpose, in simply to look at, statistically, how could you
go ahead and reduce this number fairly. Does it make sense to go ahead and say,
since the 15,000 votes--and by the way, this is all--I think I've got it noted
right here--It's all stipulated to, in terms of the numbers. Is that, in the
stipulation of facts--this is stipulation of facts in paragraph 31 talks about
the number of voters who were treated as having requested absentee ballots.
And then it comes down to, of the number of voters, says as addition of the
15,784 voters, who submitted absentee ballots that were accepted and counted,
9,858 were registered as Republicans, 4,292 were registered as Democrats. The
remainder had no party affiliation or were registered in other parties.
Why is that significant?
Because that is, interestingly, just about the same ratio, almost 1-1, in terms
of paragraph 32, which talks about the votes in the election; 10,006 votes for
defendants Bush and 5,209 for Gore-Lieberman. So what we see, if you just look
at those stipulated facts, is that it looks like virtually all of the Republicans
met, between the crossover, enough of them ended up voting for the Republican
candidate and the same thing for the Democratic candidate.
And what our experts said
is, he basically gave them the benefit of the doubt. He says, don't even assume
that high a number. Just go ahead and statistically assume the low number is
1504, the high number 1788, looking at exit polls.
Well, they criticized him
for saying, well, CNN wasn't so accurate on the exit polls. He explained, well,
they were relatively accurate over all, but in a close election of a few votes,
you can't tell, but statistically, they are within 1, 2 or 3 percent. So we
simply gave that additional information to Your Honor for consideration.
But in essence, if you
look at that, it would say that 1833 registered Republican votes ought to be
thrown out in this case, and the same number of Democratic votes ought to be
thrown out. If you were not going to don what we believe you should do under
the law, which is to throw out all 15,000 votes.
Let me have just a moment,
Your Honor. I know I have used up more time than I intended, but I was responding
to Your Honor's questions.
Your Honor, what I was
going to address very briefly is the Boardman-Bolden test. Under the Boardman
test, you've got intentional wrongdoing. You don't have substantial compliance.
And we've established, as a matter of law, that the irregularities in this case
effected the integrity of the entire election.
And in Bolden, by the way,
there, the election in effect was overturned, even where the court found that
there was substantial compliance.
Your Honor, with that,
I would simply urge the court that, on the unrebutted facts; on the testimony
of the witnesses that I've quoted to the court, which remains literally unrebutted
in this record of knowledge, of intentional wrongdoing, and of the Republican
Party, in effect, taking over a portion of the supervisor of elections office,
using that office solely for their benefit, complete disparate treatment, that
this is not a case involving a technicality. This is a case that has commingling;
this is a case in which all 15,000 ballots must be thrown out, where the mandatory
statutory provision that says "must" has not been complied with, and where there
is unrebutted evidence in effect with regard to a cover-up that goes to the
very heart of the integrity of the election process.
Thank you, Your Honor.
CLARK: And before
I hear from defense, let me just make a couple of notes here, please.
(INTERRUPTION OF COVERAGE)
CLARK: By what authority
did she allow the Republican Party to go into her office, access the information,
and add information to the voter registration on to the voter request forms?
YOUNG: I'm glad
you asked that question because there are two documents. Well, first, let me
say this, as Mr. Richman has pointed out, in reading all of the excerpts, he
is correct, and in fact, he has demonstrated through his own witnesses that
Mrs. Goard is consistent and she does not provide disparate treatment. No matter
who came to her office, the testimony is, whether it was Mr. Haul (ph), whether
it was Mr. Ray (ph), whether it was somebody who called in or sent a voter...
CLARK: I'm not addressing
the disparate treatment just yet. What I'm addressing is, by what authority
did Ms. Goard allow anybody into her office who wasn't working to there to add
names, when the statute clearly says: "Whoever requests an absentee ballot must
provide," and then it sets forth nine things that the person must provide. And
it doesn't say--and the statute doesn't say this information must be somewhere
eventually. It said the person making the request must provide the following
information, which of course included the information on the voter registration
So by what authority...
YOUNG: Well, one
authority is a bulletin she received from the division of elections, 98-14,
which is in evidence.
CLARK: Can I have
a copy of it?
YOUNG: I have a
copy right here I'll read from and pass that to Your Honor.
CLARK: OK. What's
the reference again? I'm sorry.
YOUNG: It's 98-14,
it's plaintiff's exhibit--where are the plaintiff's exhibits? If you return,
Your Honor, to the second page of that exhibit, and the one, two, third full
paragraph, I'm going to read from the last sentence. Or I'll actually start
a little bit before that.
CLARK: The paragraph
beginning with, "prior to the 1998 amendments"?
YOUNG: It's the
paragraph that actually begins with "Thus, it is readily apparent."
wrong document then. I've got DE 98-14.
YOUNG: Yes. I see.
Theirs is copied differently...
YOUNG: ... than
mine is. We'll pass...
CLARK: Well, let's
CLARK: It's on the
third page of this document that I've got.
YOUNG: Going about
halfway down--and this goes to the 1998 change in the law. "Therefore, there
is nothing in the 1998 amendments to this section that causes us to depart from
our opinion in DE 90-31, which permits the mailing of absentee ballot requests
by candidates or political parties in order that the elector can complete the
form and return it to the supervisor..."
Right there, they are saying
that political parties can mail the form and insert the information, including
all of the information on the very statute that Mr. Richman says only the voter
It goes on to say that
the party in this instance is not requesting an absentee ballot on behalf of
the elector; rather, the division of elections says they are mailing the request
form to the elector so the elector can complete it. And in this instance we
know from the evidence in this case, from their own exhibit, that the completion
is nothing more than a signature and the addition of the last four digits of
the Social Security number.
CLARK: And so by
sending that out to prospective voters, what they are doing, it seems, is providing
an opportunity for those prospective voters--prospective voters to complete
the form, provide the necessary information, and send that request in?
YOUNG: That is correct,
but what they are also doing is answering--and the division of elections answers
one of the issues with chapter 10162--and that is the issue of who can put this
information that's required, the nine pieces of information that Mr. Richman
has told, Your Honor, the person making the request must do.
CLARK: Where is
that, in your opinion?
YOUNG: It's right--it's
right there where they say that the party, in mailing, in this instance--it
says the--right here it says--which permits the mailing of absentee ballot request...
beginning with "The party in this instance..."?
YOUNG: "... is not
requesting an absentee ballot on behalf of an elector." They are simply mailing
the request form to the elector so the elector can complete and personally request
the ballot themselves. For...
CLARK: And that's
my point. That's my point. They're sending it to the electors so that the electors
can have an opportunity to vote absentee.
YOUNG: That is correct.
CLARK: And it goes
on that they're sending it so that the elector can complete it and personally
request a ballot themselves. It seems that what happened here is the elector
completed the form, which didn't have all the required blanks on it, the elector
completed the form, sent it back, and then the Republicans added the voter registration
YOUNG: There's no
doubt about that. That's ...
CLARK: And why isn't
that a violation of the requirement in 10162 that says, "The person making the
request"--it doesn't say the person mailing out the opportunity. It says, "The
person making the request must disclose."
YOUNG: On the Democrat
card, why isn't it a violation of the law that the Democrats printed on the
card the name of the elector, the elector's address?
CLARK: That may
be an issue, but let me just deal with this issue right now. By what authority
did Mrs. Goard allow anybody to add that information?
YOUNG: Well, to
answer your question, Your Honor, I think the authority is in chapter 101.62,
because it doesn't say who is required to put that information--it doesn't say
when it is and it doesn't say how that person has to do it. It doesn't say that
the person has to place that information on the card itself. It says they have
to make the request. The division of elections has said that signing it in essence
is making the request.
To interpret it otherwise
would mean that someone in a nursing home who has someone help them fill out
the form and then they sign their name has a committed a crime and hasn't complied
with this statute. To interpret it otherwise would mean that the common practice
that is known and referred to in DE-98-14 is illegal, because political parties
are supplying all of the information.
Mrs. Goard has steadfastly
maintained her policies in every instance. She had a meeting. She told her--she
told her employees of her policy. She has adhered to it. She would write letters,
as Mr. Richman has admitted, to try to deal with the problems of people who
missed information as long as time permitted.
Until what happened? The
first time it ever happened in 17 years as a supervisor, the first time since
the 1998 amendment, what happens? A political party made a mistake, one that
the Democrats didn't make. They asked if they could remove the card. She said,
absolutely not, you can't remove the cards, just like she told Dean Ray (ph)
you can't removing your canvassing petition and take out. He didn't ask her
whether or not he could bring people in it. Dean Ray (ph) I'll come back to.
And she allowed instead an alternative.
When they would come into
the office and sit in a remote area, and they would sit there and they would
hand the cards to him that didn't have the number on it. The ones that had the
number the processed themselves. The ones that didn't have the number, he would
do one thing. And I'll get to the depo excerpts, but the depot excerpts are
That's what Mr. Leach said
he did. It's the only thing he said he did. His deposition is clear. He added
the numbers, and that's all he added.
And if you go to...
CLARK: Can I interrupt
you for a second?
If he--if that activity
was allowed by statute, wouldn't the statute simply read the information must
be somewhere on the card rather than read specifically the person making the
request must disclose?
YOUNG: Well, as
I indicated, I'm not going to try to deal with the law. Mr. McNeil (ph) is going
to deal with that. But I do remember when Mr. Richard read into the court the
legislative history behind this statute, which cited, I believe it was the Bolden
case, and it references the fact that this is directory language as opposed
to mandatory language.
This does not say, if this
is not done, it voids the request. It doesn't say that. It simply doesn't say
that. And one thing we do know for certain: It has nothing to do with the ballot
that is ultimately cast.
If this was an irregularity,
if this was a problem--the reason I think the 1998 Voting Act was enacted was
to stop voter fraud. But...
YOUNG: But it wasn't
directed at absentee ballot information on a request form. It was directed to
the type of conduct that is described by the Bolden court itself as promiscuous
vote buying, not absentee ballot--absentee request forms. Nothing to do with
This creates as much information
in the event that there is vote-buying allegations as a footprint, fingerprint,
a trail that people can go back and follow to see what type of vote buying might
We don't have allegations
of that. We don't have one single allegation that goes to the integrity of the
ballot, and that's really the key issue here.
Whether this is misconduct...
CLARK: What we have
is an allegation that goes to the question of whether or not if the electors
even should have received in the first place the absentee ballot.
YOUNG: And if--yes,
that is exactly was Mr. Richman has raised, and he has boldly asserted exactly
as you have said, that every single piece of this information, all nine of them,
must be placed on the request form by the person. That's not done anywhere in
Florida, and we know that from the evidence in this case. We know that the Democrats
sent out I don't know how many cards--it's in the stipulation. Well, the stipulation
doesn't deal with how many, but it's in the stipulation that they sent out the
I guess we would have to
invalidate all of the absentee ballots throughout the entire state of Florida.
CLARK: That issue
is not before me.
YOUNG: You're correct,
it's not. But it is of importance to understand how the division of elections
has understood this. And I think, while it doesn't say it plainly and clearly
that someone else could put the information on the form, I think a clear reading--I
think a reading of this sentence that I have pointed to the court indicates
that the party in this case is a facilitator of the request, and the only thing
that makes the request is the signature--and the addition of the private information,
the last four digits of a Social Security number. Everything else on the card
is public information, including the voter identification number.
And Mrs. Goard didn't do
anything to purposely--to violate any statute. She has--the testimony is that
she was completely nonpartisan as it relates to the application of policies.
let me ask a question on their point. Had it not been her office policy that,
when the requests were returned absent any of the nine pieces of information,
that she would not process those? Had that not been her policy?
YOUNG: Her policy
was that it was to have all of that information, and that before she would begin
processing it, she would require that information or attempt to retrieve it.
On one of Ms.--we didn't put into evidence--we didn't put a lot one of things
into evidence because they weren't in dispute. One of the things that isn't
in dispute is that October 10, 2000: corrective letters no longer sent.
That admission indicates
that Mrs. Goard and her office did not treat as void, did not treat as rejected
applications by voters who came in without all of the required information.
They had standard letters--not in evidence, but it's referred to there--that
went back to the voter so that they could get that information and they could
get the opportunity to vote. In this case, innocent voters submitted--innocent
prospective voters submitted a request form, not knowing that this information
was not on the card.
These cards were of a unique
size. They were easily stacked and segregated, just like the Democrat card was.
And when this came to the attention of Ms. Goard, she expressed concern. There
is testimony in Mr. Altiero's deposition transcript--he was a WDBO reporter--that
she told him, and he did a broadcast about it. In fact, at page eight of his
deposition, he said yes. And this is back in October 17, I believe: "Yes, she
said that she didn't have--she was concerned that there would be people expecting
absentee ballots out--absentee ballots in the mail back because they were sending
in the request form."
And she said that these
people were going to be expecting it. And they weren't going to get in it mail.
And they didn't know about it. This is a close-to-quote also: She didn't have
staff, resources or time to call everybody who sent in these cards to tell them
that they weren't going to their absentee ballots in the mail. I thought that
it was important on my function as a news reporter to get listeners to know
He also went to Bob Kohls
(ph). And as Mr. Richman indicates, it's reported and it's in evidence that
Bob Kohls (ph)--the election supervisor of Orlando, who's a Democrat in a county
that went Democratic--didn't require the voter identification number. And he
told on the radio, because he didn't want to disenfranchise the voters. Another
document that is also in evidence by the plaintiffs that deals with this issue
is the October 26 letter from the secretary--or from Clayton Roberts, the director
of the Division of Elections, dealing with the Republican form that was previously
litigated, regarding the fact that it had the great seal of Florida upon it.
And he urged people to
continue to process the application form. And he warned that, to deny them this
privilege raises the possibility that many of Florida's voters could be disenfranchised
during the November 7 general election. Mrs. Goard didn't cover anything up.
She went out on the radio and told people what happened.
And it also is important
to know--and it's in Mr. Altiero's deposition: transcripts that is before your
court--that later the Republican Party did call up. And they came into her office.
And she also reported that voluntarily to the radio. And it was broadcast around
October 30. And Mr. Poe, statewide chairman of the Democratic Party, knew about
it. He raised an objection to it. Did she hide Mr. Leach? Did she show him out
the back door of the office?
No. She let him continue
to do what he came there to do. And he didn't come there as a soldier to carry
out orders to violate the law. He came there to correct a mistake that the Republican
Party of Florida, in effect, of having people, Republicans and Democrats--and
I'm going to come to that in just a second--so that they would be able to vote
as they had requested. That's what happened here: no violations of any law.
Mr. Leach testified, and
Mrs. Goard testified that--Ms. Goard specifically testified Michael Leach's
access anywhere in the office had nothing to do with the outcome of the election.
There is no testimony here that anybody socialized, fraternized with Mr. Leach.
He came and went. And you very correctly point out, Your Honor, that access,
a mere possibility of something occurring without proof is not enough. And all
of the cases support that. Now, Your Honor...
CLARK: Going back
to the October 26, 2000 letter to all supervisors of elections and staff from
Clayton Roberts: Let me ask you to respond to a particular sentence in there.
Mr. Roberts writes: "Until ordered by a court, you should continue to process
all absentee-ballot requests that are received by your office, so long as the
request contain the information required by 101.62 Florida statutes." Is this
not advising the supervisors?
YOUNG: It is. And
why Mr. Kohls (ph) was processed without information, I don't know. But Mrs.
Goard did not. She did not process any without the information. This did not
tell Ms. Goard that the information couldn't be supplied later. It didn't tell
anybody anything different.
All right, Your Honor,
moving on, I want to talk a minute about this disparate treatment. They have
talked about disparate treatment. And there have been some depositions taken.
And the excerpts have been put in. And we put some in ourselves. We didn't call
any substantial live witnesses. But there was an excerpt from Bonnie Eaton (ph).
She is one the clerical staff who was deposed.
And she said, at page 18:
"Do you consider the office nonpartisan?"
Answer: "Completely. We
are drilled with that, if not once, 100 times-fold."
"And how are you drilled?"
"That every one is treated
equal, that we are here to provide a service to everyone, regardless of their
color, race, party affiliation."
"And do those same principles
apply to you individually in your processing of the absentee-ballot request
We asked another--or actually.
it was asked at deposition of Marion Buchans (ph), another office staff. And
she said: "We just count the votes, keep the records--period."
Now, let's talk about the
disparate treatment. I just want to make one thing clear as we go through this:
There is really three categories of request forms. And it might help if the
clerk could pass up to Your Honor defense exhibit 12. We know this. And you
absolutely are right about these cards, Your Honor. The Republican cards that
went out, a little bit smaller than the Democratic card. And I'm sorry, I thought
we had one into evidence. But we don't. The Democratic card is a little bigger.
The Republican card had
all the information on it. All they had to was sign it, put their last four
digits of Social Security. And it was missing an identification number or a
place to put it. And the voter was innocent and didn't have any idea that that
would be necessary. The Democratic card had it all on. It was all pre-printed.
The only substantial--those are the only substantial differences between the
two cards, except the size. The Democratic card is bigger. And ours is--and
the Republican is smaller.
And one other fact: The
Republican card went back to the supervisor of elections' office. The Democrat
went to Victory Sweep 2000 (ph) in Orlando, where who knows what they could
have done to it? And there is no requirement. It also is in this letter that
you were asking me about from Clayton Roberts at the end: "While the preferred
method of delivering an absentee-ballot request is directly to the supervisor's
office, there's nothing illegal about having a completed request delivered or
forwarded by a third party."
So we know that--we know
third parties can touch these, at least, as well. Now, we have--let's talk about
the cards. We got the Republican requests and the Democratic request. The Republican
requests are at issue. And they needed attention somehow, some way--the ones
that didn't have identification number: 70 percent didn't, 30 percent did. The
Democratic card: They didn't need any attention. And you are correct. They didn't
ask because there was no need to ask. The number was on there. There was no
disparate treatment between those cards.
Now--and Mr. Richman, for
the first time, acknowledged that if--he would contend now, for the first time,
that if it was, it would be illegal. But up until now, he asked questions in
deposition and in this courtroom: Did you ask the Democratic Party? So there
wasn't any need to ask. Now, the other set is the unprocessed or the ones that
aren't Democrat and aren't Republican. Well, those are broken down into two
We have miscellaneous request
forms that were processed and people got absentee ballots. No complaint there,
right? Now we have the unprocessed ones, the ones that are the subject Rachel
Gebaide's analysis. And if we can go--could you pause up exhibit 12--defense
exhibit 12 to the court? Or I have an extra copy, Your Honor.
This is extra clean copy.
CLARK: Thank you.
YOUNG: The first
page--or the second page is really a recap of the numbers that were stipulated
to. If anything, this demonstrates how accurate Rachel Gebaide is because the
opposing party really accepted this stipulation.
To recap real quickly,
what it shows is the Republican form there were 2,132 processed with someone
else's handwriting on it and just so the court's aware, we didn't break this
down, but you can tell when you look at them that there's a lot and it's the
same handwriting, which is most probably Mr. Leach's. They had handwriting expert
and maybe they have the number but they haven't shared it with us.
There's numbers of others
that have different sets of handwriting and one could reasonably assume that
the voter may have added that themselves. But we used the total number. We know,
because we've all tracked it down. We've basically agreed to it although we
even came out with a little different number then they did. We came out with
1,937. I think the number they came out with 1,926, and we stipulated to it.
We know that there were
515 Republican forms that were processed because they had the number on it and
we know that there were 590 Democrat forms that were processed because they
had all the information. Now, if you turn to next page this is where we start
the analysis of what Mr. Richman calls shoe box, which is really where all the--at
the end of the day, where all of the unprocessed absentee ballot request forms
were as of Election Day.
Let's look at them. You
really have--if I skip ahead you have to do this. The first page is 472, total
unprocessed Republican absentee ballot requests. Of that 400--this is important
because I'm going to tell you right now give you a little head start--there
is 742 all together unprocessed.
So, over half of the unprocessed
applications for request forms are Republican. Of those 472, 202--40 percent,
whatever that number is--were already issued absentee ballots. They may have
put in an absentee ballot request earlier in the year and asked for a request
the entire time or maybe they came by the office and get one themselves.
In any event, 202 are out.
They're processed. Two hundred and sixty-three never had a ballot issued to
them. Now, we know of that 263 from Ms. Gebaide, who I think you understood
took her job very seriously. She could probably tell you who every one of these
people are. But we know of that 176 are Republicans; 16 are Democrats.
Now, an important thing
to remember here is what we're talking about. We're talking about unprocessed
Republican absentee ballot requests. We're talking about the Republican cards,
Your Honor. How is it in this box if we gave disparate treatment and Michael
Leach fixed them all? Because he didn't fix them all.
Either--and there's some
explanations and these are just going have to be assumptions on my part as to
why they ended up here because there's no evidence on that. They could have
ended up here because he can't find the number and the supervisor's office won't
give him the number. They could have ended up here because after putting the
number on them they were deficient in some other means. No signature, unregistered
voter. As we already know, absentee ballot already issued.
But anyway of the 263,
176 are Republican; 16 are Democrats, which confirms what Michael Leach said
in his deposition that he actually put numbers on people who were registered
Democrats which could have occurred because a Democrat lived in a Republican
household. Fourteen others, 29 unregistered and 28 illegible and we had definition
of that yesterday from Ms. Gebaide.
Now, of the 176 Republicans,
we know 67 voted by absentee ballot pursuant to another request; 68 voted at
the polls, and 40 didn't vote. OK, now you certainty can't count the 40 that
didn't vote as any real disparate treatment to Republicans because that's what
we're be accused of is partisan favoritism.
So, let's look at what
we have left. Of the 16 Democrats in this 263 who filled out Republican cards,
seven voted by absentee ballot, six voted at polls and only three didn't vote.
That's not enough to impact the outcome of the election. Of the 14 others, 48--I'm
sorry, four voted by absentee ballot, six voted at polls, and three didn't vote.
Now we have a cumulative total of six. Probably not enough to affect the election
or cast it in doubt.
Now, we know the reasons
these people--the reasons they weren't processed and they're all identified
by Ms. Gebaide. And interestingly, we know that it includes among other things
incorrect voter registration numbers. So not only did they require the number,
they checked it. I mean this is precise. So her office is not partisan and it's
not sloppy. They're precise. The only thing this office did that is under attack,
quite frankly, is allowing the Republicans to correct this error on this limited
Now, let's go to the next
category, the unprocessed Democratic cards. Here is an opportunity for disparate
treatment because I don't think we've seen it up to now. How many are there,
first of all? Enough to throw the election? Don't think so. There are 40 total
unprocessed Democrat cards.
Now let's take a look at
it. Only three of those were no ballot issue; 37 of them were issued as result
of another absentee ballot request. And we know from Rachel Gebaide what happened
to those three. Two of them were registered voters in the county and one of
them we're not this sure of. Probably enough--enough disparate treatment for
anything else to cast doubt on the election.
Now let's look at last
category on the next to last page: unprocessed miscellaneous absentee ballot
requests, 243. Of the 243, 97 were--and these are the people who just sent them
in on their own--97 Republicans, 76 Democrats. So, we've got 76 total Democrats
here. Probably, without going further, not enough to cast doubt in the election.
Twenty-seven others, 40 unregistered and three illegible.
And I submit to you that
Miss Goard or her staff don't know how any of these people are going to vote.
If they're going to assume the Democrats are going vote Democratic like Mr.
Wizard yesterday, you know, they don't certainly know how the others are going
to vote. But let's look. Of the 97 Republicans, 51 voted by absentee ballot
pursuant to an another request; 15 voted at polls any way; 28 didn't vote. Now
those are Republicans so I don't think you can you count that if you were to
consider disparate treatment against us on the charges brought by Mr. Jacobs.
Now, 76 Democrats. What
happened to them? Fifteen voted by absentee ballot, 26 voted at polls and 33
didn't vote. So now we have 33 and six--we have 39 votes out there. Not enough
to impact the election. Of the 2,700, we have six voted by another absentee
ballot request, two that voted at polls and 16 did not vote. We're barely over
50 votes. We don't have enough to impact the election. There is not any disparate
Now, I don't want to use
up the few minutes that I promised my partner Mr. McNeil to talk about the law,
but I want to quickly talk about the relief they ask. It is in fact draconian
and in fact after Mr.--or Dr. DeLong testified, who quite frankly, Your Honor,
I don't think was qualified an expert witness in that area. He's never had any
YOUNG: Well, whether
it's not, it was stipulated by Mr. Richard that it--the court could take this
is evidence for weight and credibility. But, I don't think his evidence was
very credible, but even if the court wanted to consider it, he didn't have any
education, experience or training--the three requirements under Chapter 97.02
to permit an expert to testify in the first place. He didn't have any opinions,
really and it's--you have to understand, if you remember, Your Honor, his underlying
premise was that the 1,626 people wouldn't have gone to the polls anyway.
Ms. Gebaide's analysis
disproves that. Carmen Colon (ph), who was on Mr. Richman's board, demonstrates
that because she voted. The one person of all of the Democrat forms he could
pull out, voted.
Now, so I would submit
to Your Honor that based upon Dr. DeLong's testimony you don't have any other
remedy. There's no credible remedy that he's provided you because I would be
surprised if Your Honor found him credible. The only remedy your are left with
is the throw out 15,000 legally cast votes--and I don't you have much doubt
because you've indicated that to Mr. Richman, and Mr. Richman doesn't deny it
and Dr. DeLong doesn't deny it. Dr. DeLong said that...
(INTERRUPTION OF COVERAGE)
YOUNG: ... that
will attempt to come up with the right margin of votes which, amazingly, is
just over the amount of Mr. Bush's lead in Florida. There is no doubt that what
is at the heart of this case is politics. I'm sure Mr. Jacobs may be well-intending,
but he's a Democrat, and he's a Democrat supporter. And there's only one reason--it's
not money, like a lot of cases that this case is pending before Your Honor.
We represent the nonpartisan
people, Mr. McNeil and I--he's going to talk to you in one minute or less. And
I would remind the court of that; all we want is--and all the Seminole County
officials want is the clear, unequivocal voices of the Seminole County voters
to be heard. They cast their votes; they participated, and they don't want to
be discounted or thrown out, or silenced in any way.
CLARK: Excuse me.
Actually, before you get started, I need to take a short break. We'll stand
in recess 15 minutes.
(INTERRUPTION OF COVERAGE)
MCNEIL (ph): My
name is Greg McNeil (ph), part of Terry Young here on behalf of Seminole County
canvassing board and the other named defendants within Seminole County.
Two days ago, I spoke with
Your Honor on dispositive motions. And I said there were two things that the
plaintiffs would to have to prove in order to prevail under 102.168: misconduct,
fraud, or corruption, and, in addition, to that, that it would be sufficient
to change the results of the election. The facts are now in. And they have utterly
failed to prove the case under Florida law.
There is not a scintilla
of evidence of fraud or corruption. There has been a lot of talk about access
and unfettered access and what could have happened--and a lot of speculation
about that. But there is no fraud or corruption. The thread that the plaintiffs
continue to grasp at in the realm of misconduct is the act of the supervisor
allowing Mr. Leach to complete the unprocessed, Republican request forms. And
it's that act which they suggest constitutes the misconduct, which is necessary
to proceed in a contest action.
The problem is, with that
argument, that they don't have any case law. And there's none in Florida that
would ever support that conclusion. The argument goes like this: If you have
that misconduct--therefore, the act of putting the voter I.D. number in--that's
a violation of 101.62. And that is the premise of their argument. And therefore,
the violation of that 101.62--the absentee ballot law--is a mandatory provision
in the statute.
And since it's a mandatory
provision in the statute, the breach of that provision somehow constitutes misconduct
on behalf of the supervisor. That's the argument. The problem is, the Boardman
and the Beckstrom cases completely undermine that argument. It's been said more
times than we probably care to recall, but it's been said--and the Boardman
case makes clear--that any statutory directive in absentee-voting law is directory,
not mandatory, unless the statute expressly invalidates the ballot if you fail
to follow it.
That is what Boardman stands
for: 101.62 is a directory statute. It is not a mandatory statute. There are
only--and we have talked about this before--three grounds in Florida election
law which are mandatory: the voter's signature, the voter witness, and the--one
other, which escapes my recollection at this point, but none under 101.62, and
certainly none that they have alleged in the complaint or any of the proof in
this case has gone to.
They continue to cling
to the language, though, that says: Well, it says "must disclose." So if it
says "must disclose," it must be mandatory, and, therefore, a violation of it
is misconduct. Well, let's look...
CLARK: Let me ask
you a question. And I am sorry to interrupt.
MCNEIL (ph): No.
CLARK: There are
three things, the failure of which to include would render a ballot illegal.
MCNEIL (ph): Yes.
CLARK: Is there
a difference between illegal and void?
MCNEIL (ph): If
there is a difference, Your Honor, I'm not aware of the statute or case-law
authority that draws that distinction.
CLARK: OK, go ahead
with your argument.
MCNEIL (ph): And
if you take--and to show the fallacy of the argument, if you take Beckstrom
and you take Boardman and you look at what wasn't done in those cases, you see,
for example, 101.64 of the Florida statue requires a voter's certificate on
the absentee ballot. That was missing in some of the ballots in Boardman; 101.65
requires specific witness information. That was missing on some of the ballots
Some parts of the Florida
statute require postmarking on certain absentee ballots. That was missing in
some of the ballots in Boardman; 101.68 requires the canvassing board to open
up the ballots. That was violated in the Beckstrom case; 101.67 and 101.68 require
that only the canvassing board and the election board handle those absentee
ballots once they've been voted. That was violated in Beckstrom.
And 101.65 required those
ballots to have the voter's signature in a certain place. That was violated
in Beckstrom. Did they throw those...
CLARK: But doesn't
the Florida legislature have a right to tighten the requirements for absentee
MCNEIL (ph): Certainly.
CLARK: And didn't
the Florida legislature, in 1998, do exactly that?
MCNEIL (ph): They
CLARK: Tighten the
requirements and added very specific requirements?
MCNEIL (ph): They
did in fact tighten the requirements. They did in fact add language to the absentee-voter
requirements that are supposed to be there in order to...
CLARK: And doesn't
the court have give effect to that language? I can't simply ignore it.
MCNEIL (ph): No,
you can't simply ignore it. But what you can do it apply the test that the Supreme
Court in Boardman has set forth in making the determination of whether a statute--whether
it's revised or whether it's the original statute--is mandatory or directory
in nature. This--the legislature would have the same authority. Boardman has
been the law since 1975.
And I would suggest to
the court, the legislature could have made that a mandatory statute if that
had been their intent. But in the Boardman and Beckstrom cases, none of those
violations, which were all clearly violations of the absentee-ballot voting
law at the time, were sufficient to throw out a single ballot. They did not
throw out a single ballot for those violations that I just cataloged: all of
which--most of which went to the ballots themselves and not the ballot-request
forms, which I believe is a big difference.
And the question is--and
Your Honor raised this earlier--is it reasonable to assume that a supervisor,
or the supervisors of the election offices in the Boardman and in the Beckstrom
cases were aware of these statutory requirements? Certainly. Was that found
to be intentional misconduct, sufficient to survive the Boardman test? No. The
fact that they obviously were aware of four different statutory provisions as
part of their office did not render those invalid. Why?
Because the Supreme Court,
every time it weighs in on one of these election-contest cases, time after time
again says the primary consideration is whether the will of the voters has been
affected. Their own professor of...
CLARK: Let me ask
a question there. Are there--is it your position that there are no possible
violations of the election laws that would void out a vote, even if the will
of the people could be ascertained? For example, suppose that a bus-load of
folks was going from wherever--an apartment complex--to vote--to their voting
place. And let's say they left about 3:00 in the afternoon. They were all excited
they were going to vote.
And let's say the bus broke
down. There were mechanical problems, they have to wait for somebody to come
and repair it. And then let's say the bus didn't get to the polls, to the polling
place until 7:02. In a situation that--and let's say everybody on this bus knows
exactly who it is they're going to vote for. In a situation like that, even
though the will of the people could be ascertained, because they're on the bus
saying what their will is, is that a substantial enough violation where their
ballots could be discarded?
MCNEIL (ph): Your
Honor, I believe the difference there is that where the will of the people is
addressed in these case law is where these people have cast ballots, and not
a situation where there's a busload of people who are intending to cast ballots
whose ballots have not yet been cast.
CLARK: Would it
be substantial compliance if they got there at 7:02 even though the polls closed
at 7:00 and they were really only 120 seconds late?
MCNEIL (ph): Would
it be substantial compliance?
CLARK: Yes. If the
supervisor of elections allowed them to vote, even though they were 120 seconds
late, would that be substantial compliance?
MCNEIL (ph): It
would not be substantial compliance. In fact, the Beckstrom court says in a
contest situation you can have substantial noncompliance with the statutes and
you can have gross negligence on the part of the supervisor's office, but unless
you have fraud or intentional wrongdoing, you do not invalidate the will of
the people, you don't invalidate the ballots.
CLARK: So where
does the court draw the line between a hypertechnical violation and a substantive
MCNEIL (ph): Well,
you draw the line where a plaintiff comes in and proves to Your Honor that they
have satisfied 102.168 and the grounds specified there. And I suppose that is
a case-by-case determination depending on the facts and circumstances.
We've heard them speak
about the Bolden case. We've heard about the Miami case. That involved deed
people voting by absentee ballots, that involved outright vote buying in the
So I'm not suggesting that
you can draw a simple black line and rule that will encompass the universe--we've
used that term a lot--the universe of all eventualities. All that we can do
is look to see what Boardman and Beckstrom tell us about how to measure these
So it's our position, Your
Honor, that there has not been a violation of any mandatory statute under the
election laws nor has there been any misconduct as a matter of law by the supervisor
exercising the discretion that she did, which--as you asked Mr. Young, "Under
what authority?" I think the authority is chapter 97 and 98. While it doesn't
talk specifically about how you run an election office, it does give the supervisor
great discretion, and the courts have upheld that discretion unless there is
clear and convincing evidence of wrongdoing.
The only other part I want
to address, Your Honor, because I know we've used lot of time here, is that
the second part of that test is, even assuming there was misconduct, which we
don't, but there's a second part of that test, which they haven't met yet, and
that is, would it be sufficient to change the results of the election? And Mr.
Young has spoken to that already to some extent.
But the expert of--I believe
it was econometrics or statistics or something. I'll be honest, I don't recall
specifically. But he premised his assumptions on the fact that that 1,932 people
who did not get their ballots could cause what Mr. Leach--if, for example, if
Mr. Leach hadn't filled in the numbers, they wouldn't have gotten the ballots.
His assumption was premised on the fact that those people would not have then
Well, that would be to
say that a voter in that same situation would say, gee, you know, the vote--the
election is coming up, I did ask for a ballot, I haven't received it, I'm not
going to call the elections office--I could, but I'm not going to do that. I
could go to the polls and vote, but I'm not going to do that. I think I'll just
forego my right to vote in the general election this year.
That may be a violation
of some law of econometrics, but it's certainly a violation of the law of common
sense. And the evidence in this case, the plaintiff's own evidence in this case,
is that absentee ballot voters who did not receive their ballots still went
to the polls and still voted, or corrected the situation themselves.
So there is no substantial
competent evidence to support the second prong of 102.168, the election contest
The--the--the one thing
about that case, Your Honor, that is most disturbing is that the reputation
of a loyal public servant has been ruined in a case in front of the national
media, all in the plaintiff's zeal to get a candidate elected. And if the court
is looking for intentional misconduct, that's it.
RICHARD: May it
please the court, I must begin by respectfully disagreeing with Mr. McNeil (ph)
in his response to your question regarding the bus hypothesis. I believe that
that would be certainly in substantial compliance and would not invalidate the
ballot, and in fact, it has long been the history of supervisors in this state,
as I recall, to keep polls open late for even such mundane things as lines being
CLARK: My question
wasn't the line was too long (inaudible). My question was where they didn't
get there until 7:02.
RICHARD: If the
polls are open and they vote, it certainly would be substantial compliance,
and I would think there would be absolutely no basis for invalidating those
RICHARD: If the
polls were not going to be kept open, I think they have the ability to appeal
to the circuit court to keep them open. But I certainly think there's nothing
in these statutes that would enable anybody to invalidate a ballot solely because
it was cast after the hour that the polls were supposed to be closed.
It is not clear to me,
Your Honor, from--by listening to Mr. Richman's closing argument whether he
is suggesting that the mere fact that accurate information in the form of a
voter identification number was added to the ballot is enough to render these
ballots illegal or whether he is suggesting that only within the context of
the alleged conspiracy that it is illegal. But in any case, I will address each
of them separately so that whatever it he means, I will have spoken to it.
All of us agree that the
Seminole case is the Boardman case. The Boardman case expressly receded from
a line of cases in the Supreme Court which had required strict compliance with
the election statutes. And in their place--of course, Boardman gave us the language
that Your Honor has quoted and then gave us a bright-line test, which all of
us have talked about and I have quoted before. But because it is so explicit
and it prefaces my next remarks, with Your Honor's permission I will quote it
"Unless the absentee voting
laws which have been violated and the casting of the vote expressly declared
that the particular act is essential to the validity of the ballot or that it's
omission will cause the ballot not to be counted, the statute should be treated
as directory, not mandatory, provided such irregularity is not calculated to
affect the integrity of the ballot or election."
So the court has given
us two criteria under which it is permissible to invalidate the ballot: No.
1, if the legislature has expressly declared that failure to comply with a given
provision will have that effect, and that is not relevant to this proceedings,
because all of us know that there is no expressed declaration in the laundry
list of nine provisions under 101.62 that it is to result in invalidation of
Obviously, Mr. Richman
is aware of that and has reached that same conclusion, and so he has gone instead
to the integrity issue. But I will address that in a moment, but before I reach
it, there are several other things that I would like to comment on with respect
to the question of the noncompliance itself.
The First District Court
of Appeals--excuse me, Your Honor--in McLean versus Bellamy (ph), based on the
Boardman case, expressly held that the failure to comply with section 101.62
did not result in the invalidation of ballots. It said that the failure to conform
to the requirements of section 101.62 are not the kind of irregularities that
should result in the court's invalidation of the subject absentee ballots.
Mr. Richman responds that
it is now different because the 1998 changes to the legislation made it mandatory.
Mr. Richman, however, has yet to respond to the point I made yesterday with
respect--I guess it may have been the day before yesterday--with respect to
the House committee report. The House committee report stated: "Although the
statute"--and this is the report that we have introduced the certified copy,
and it traveled with the bill that enacted the new provisions.
"Although the statutes
emphasize the importance of all instructions, only the voter's signature and
the signature and address of the attesting witness are mandatory. All other
provisions are directory in nature, citing Boardman."
Now, this reference was
to the law as it existed at the time that the legislature was considering the
new changes. So the legislature was well aware of the bright-line rule that
had been set in Boardman. And they made numerous changes--Your Honor, is correct--in
response to the problem experienced with fraud in Dade County. And among those
changes were explicit changes with respect to the issue of what would result
in invalidation of a ballot.
And when went all was said
and done, we were left with only one provision in the new law that did that.
It was 101.68C and what it did is interesting. It said:--and by the way, Your
Honor, I asked for the distinction between illegal and void and while I would
like to be able to argue that there was a distinction because it would serve
me here, in all candor I would have to tell you I would agree that there is
no distinction that I'm an aware of so far as the legislative intent is concerned.
But here's what 101.68C
said. It said that a ballot would be invalidated or illegal if the ballot itself,
in fact, the mailing envelope in which the ballot was included, failed to contain
the following items: the last four digits of the voter's Social Security number
and an attestation by either a notary or another registered voter in Florida
and contain the following information on the other registered voter: the name,
the address, and most significantly, the voter identification number as well
the county of registration.
So, in this one specific
instance, the legislature has required among other things a voter identification
number and said failure to include it will invalidate the ballot. But that same
language does not exist in the provision with respect to the request for the
ballot, and that makes sense for a reason that I will get to in a moment.
In any case, Your Honor,
I would invite Mr. Richman when he makes his rebuttal to explain to the court
why the House committee report should either be disregarded or how it can be
reconciled. Now, as I mentioned because I think that Mr. Richman recognizes
that he cannot win this case based upon an express invalidation, he moves instead
to the provision with respect to integrity.
And his whole case, in
fact, has been built around the suggestion that the integrity and the words
of the statute are the integrity of the ballot or election have been compromised.
He builds his case upon the construction of a nefarious conspiracy based upon
facts that I might note, more readily called for an inference of innocence,
but nevertheless we will accept counsel's construction of a nefarious conspiracy.
But what he fails to tell us and what he has failed to introduce any evidence
of is what was compromised.
He tells us that persons
had what he calls unfettered access to various private portions of the supervisor's
office including a computer, and a box containing requests for absentee ballots
and other "stuff," was his words. But never has he even suggested to us or provided
us any evidence of what was compromised now. It's my position that there is
only one thing that can be compromised that will compromise the integrity of
the ballot or the election and that's the ballots. And there is no evidence
in this case that anyone ever had unsupervised access to even one ballot, and
in fact, if you look at Mr. Richman's timeline, they could not have because
there were no ballots at that time, only requests for ballots.
There is no evidence in
this case that the ballots were ever compromised and if the ballots were not
compromised, the election was not compromised.
CLARK: Let me ask
you a question.
RICHARD: Yes, ma'am.
CLARK: If there
had been a situation where a supervisor of elections chose to fill out all the
information and particularly all the missing information for one party, and
denied a request to do the same for another party. Denied a request so that
one party had huge numbers of absentee ballots, the other party had none because
requests had been denied, would that be sufficient to impugn the integrity of
RICHARD: I think
it might be. I think that there are a lot of other circumstances we have to
know about, including questions of estoppel, whether the party that was denied
deserted their early enough of it to make because if they did not then we would
still not invalidate and disenfranchise the innocent voters, but it might.
CLARK: OK, so there
are things then that could have taken place before the ballot was actually cast
that could go toward impugning the integrity?
RICHARD: I think
there might well be, Your Honor, and I don't think that the legislature intended
to restrict the court to the degree that only the actual ballot would be affected.
I agree with you and your question is an excellent one because it illustrates
how different this case is. So, I'd like to discuss for a minute the so-called
Your Honor, asked a question
of counsel, of Mr. Richman that in fact--it's not that I'm so prescient but
I was proud of myself because when you said to him are the circumstances, different
I had written down before you said that I promise same circumstances because
we all know that that's the rule. That is equal protection rule. You do not
violate the equal protection clause because you treat people differently, you
violate it because you treat them differently when they are in the same material
Now, the evidence was undisputed
and here's what it was: Mr. Richman said, as his evidence did, the Democrats
did it right for a change. That's what he said. I'm a registered Democrat so
I don't mean to disparate the Democrats.
CLARK: Let's keep
the party affiliation out of this, please.
RICHARD: He says--it's
been in the news media--he said the Democrats did it right. Now, that has a
lot of significance to this case because Your Honor knows what he means--you
pointed it out. The Democrats had all of these numbers properly printed on the
forms and what's more they had the forms return not to the supervisor's office,
but to the Democratic campaign office so that before they brought them in they
would have unfettered exercise--access to them and could fix any that were wrong
before they ever turned them in.
The result was there were
no problems with the mass-mailed Democratic requests for forms and no reason
for the supervisor to call anybody in the Democratic camp and tell them there
was a problem. I might point out, Your Honor, that as I did in the opening of
this case that the statute, while not this particular instance, does encourage
the supervisor to notify voters to the extent practical when there is problem
with what they have filed.
The response that Mr. Richman
gives to that is, well, she did not notify the Democrats who didn't get mass-mailings,
but she also didn't notify the Republicans who didn't get mass-mailings or at
least there's no evidence to the effect that she did, and there is testimony
that there was within that shoe box Republican and Democratic requests that
were not honored, presumably because they were not in the mass-mailings that
were fixed. There is no evidence that there was disparate treatment even with
respect to the persons who did not get mass-mailings and who were not notified.
Now, it's interesting to
me, and it's very curious to me that Mr. Richman read the deposition of Mr.
Livingston and that has in fact made reference to it in his closing argument
because I may be missing something here, but it has appeared to me from the
beginning Mr. Livingston is one of the best witnesses on the disparity issue
for my client. Mr. Livingston testified and it was the closest by the way that
anybody came to a change in circumstances, that back in 1998 when he ran for
office, he was not--he was advised when he submitted a request for absentee
ballot--this is my recollection--that failed to have a voter identification
number or some similar information on it that the statute would be strictly
complied, but then he said he was a Republican. So what this suggests to me
is that this supervisor, who was the same supervisor in 1998, was not treating
Republicans differently than Democrats, but at best had changed her policy between
1998 and 2000.
There is no evidence in
this case that there was any intentional or unintentional disparate treatment
to individuals who were in the same circumstances--and certainly not a sufficient
amount of evidence to suggest that the integrity of the election was affected,
or as is necessary, that the results would have been changed.
And this leads me, Your
Honor, to my next issue. The Supreme Court of Florida in McPherson versus Flynn.
That's 397, (inaudible) 665.
... 397, southern second,
665--said, "Since there is no common law right to contest elections, any statutory
grant must necessarily be construed to grant only such rights as are explicitly
That was a prescient statement
by the Florida Supreme Court, because we now have the United States Supreme
Court telling us that, at least with respect to presidential electors, that
is the only thing that the state of Florida can do.
What the Supreme Court
has said, and indeed was discussed in the argument before the Florida Supreme
Court this morning, is that it is the legislature and only the legislature that
can make the rules with respect to presidential electors.
And here is what the Florida
legislature has said: "There is only one way at this stage to challenge an election,
and that is the 102.168 contest of election." There is no other way to do it,
and based upon McPherson versus Flynn, and also the United States Supreme Court,
which interesting--interestingly was also a McPherson case. I don't know if
it was the same Mcpherson.
The legislature said in
102.168, subsection (3a)--and this is what counsel is relying upon, so I don't
make a big deal out of it. But they said that you can contest an election "based
upon misconduct, fraud or corruption on the part of any election official or
any member of the canvassing board." And here's the portion I desire to emphasize,
"sufficient to change or place in doubt the result of the election."
Now, there is not any evidence
in this case that one single person cast a ballot that was not counted, provided
that that person was fully qualified to vote, or that any single person cast
a ballot who was not qualified to vote and that it counted. Not one.
Under those circumstances,
Your Honor, I suggest to this court that it is impossible to conclude that this
election--that there was evidence sufficient to change or place in doubt the
result of the election.
Now, counsel's response
to this, I would imagine, is going to be, oh, but there were 15,000 ballots
and all of them are challenged. Now, if that were all you had to do, then 102.168(3a)
would be meaningless. It's circular reasoning. The only thing a plaintiff would
have say is, I challenge enough ballots so that if I win it would change the
result of the election. You can challenge all the ballots. That can't be what
the section means.
What it means is you have
to prove that enough ballots were affected so they could change the election,
and the plaintiffs have not proved that any were affected.
My last comment, Your Honor,
is with respect to the remedy. I don't know that it really receives a great
deal of comment, but I wanted to do so for two reasons: First of all, it appears
to me that Mr. Richman has apparently backed off of the formula suggested by
his witness. I'm not sure why. It may be because he, like the rest of us, actually
listened to his witness...
But I have to apologize
for the court, because I asked one question that resulted in laughs, and I wanted
to assure Your Honor that it was not my purpose just to elicit humor by that.
I had a point to make.
We've become obsessed in
this country with projections as to the winners of elections. I believe that
the Washington case is an abomination. For a court to suggest that we have reached
the stage now where the individuals who make those projections can tell us who
the winners of our elections are is a slippery slope, and one I think which
violates undoubtedly the 1965 Voting Rights Act and probably the constitutions
of both the United States and the state of Florida. But in any case, there is
no authority for any such act in the state of Florida.
This court, if it were
to invalidate any ballots, would have to invalidate all of them, and I find
no case that has ever, ever justified the invalidation of an election or 15,000
ballots, thereby disenfranchising this many people on the basis of this type
of evidence. And I would urge this court not to do so now.
(INTERRUPTION OF COVERAGE)
BRISTOW: I want
to make one comment about the innocence issue, and then I want to focus on the
federal question, and then I'll sit down.
Let's first talk about
the affirmative defense issue. The evidence in this case that is in the record
indicates that sometime in mid-October the radio stations in Seminole County
picked up this problem. The evidence in the case indicates that sometime between,
I think, the 15th or 16th, 17th of October, and around October 30, the supervisor
was on the radio and was interviewed and expressed publicly her concern.
On the 31st, I think, of
October the evidence is that the Florida state Democratic chairman had actual
notice of this issue and spoke with the supervisor about it.
Now, that was plenty of
time for the Democratic Party to have done something that would have notified
these innocent people who got themselves an absentee ballot that there might
be something wrong with it. You cannot conclude, as savvy as the machinery of
the party is, as Mr. Poe is--he said--that's not in evidence. You must assume
that he knew he had the machinery available to him to do something and do something
quickly. For reasons that are not in the record, he chose to do nothing.
And this election went
forward and these people voted, and it was not until the ballots were being
canvassed that the plaintiff, Mr. Jacobs, appeared and filed a protest. And
what we have in the evidence is the testimony, the deposition testimony of Mr.
Leach that just before that Mr. Jacobs identified himself as a Democratic Party
attorney there representing the interests of Vice President Gore.
So you have a chain of
agency and relationship between the plaintiff, the Democratic Party, the chairman
of the Democratic Party, and clear knowledge about what was going on in plenty
of time to do something, to take some action rather than to lay behind the law
and wait until this contest.
Let me answer--try to answer
one question that you put to us that I at least thought had some real concern
for you. The question that I thought you said was: "Tell me by what authority
this supervisor could permit somebody in her office to write on one of these
And I'd like to take it
in kind of a chain. Suppose I were just a little more elderly than I am and
I didn't see well, and I asked somebody, "Would you please fill out my request
form for me?" Not the Republican, just a request form. "Put in my voter ID number,"
and they put it in, "and take it down and get it filed." Files it. That nurse
or sister or brother or whoever it is starts to leave the office, says, "My
gosh, I've transposed the..."
(INTERRUPTION OF COVERAGE)
BRISTOW: ... undertaken
responsibility to put the number on there, that by her act of signing, she had
relied on, delegated to and given responsibility to the party to put it on right,
and that that would be substantial compliance to allow for the supervisor to
say it's OK for the--for the party who was delegated the responsibility to make
On the question of innocence,
I thought it was pretty notable that when this young man, Leach came in, and
sat down to do this job, and began to make these changes--and the evidence is
he got them all right, or he got most of them right--he made those changes on--he
had these in his computer. And it showed whether it was a Republican or a Democrat.
And the records show he made the changes for Democrats, who had been in the
household and used the Republican form.
Now, if there were a conspiracy,
an effort to try to disenfranchise people, an effort to do anything other than
what he said he was doing--which was taking responsibility to correct a mistake,
a simple error that the Republican Party had responsibility for--he wouldn't
have been doing that. Let me talk about the federal law, 47 USC, 1971 (a2b):
"No person acting under color of law shall deny the right of any individual
to vote in any election because of an error or omission on any record or paper
relating to any application, registration or other act requisite to voting,
if such error or omission is not material in determining whether such individual
is qualified under state law to vote."
I want to kind of parse
through this provision for a moment, because it speaks to an error or omission
on any record or paper relating to any application. Now, what is the claimed
error or omission on the paper? It can't be the number, because the number's
right. The error or omission complained of here on the paper, relating to the
application, is that Mr. Leach came in and hand-wrote that correct number down.
Now, if that error--that is, that instead of the voter writing it down, Mr.
Leach wrote it down, that's the error.
Is that an error--writing
down the right number--is that an error which would relate to any application,
and it would be material to determining whether such individual is qualified
to vote? You well know, Your Honor, what the election law says about what the
qualification to vote is. It is set forth in the election law. And it basically
says that: A person is at least 18 years of age. A person is a citizen of the
United States. A person is a legal resident of the state of Florida, and is
a legal resident of the county in which that person seeks to be registered and
This ministerial act, this
error complained of, of a second person other than the voter putting this number
on--the correct number--cannot--cannot be material to that determination. And
to that extent, federal law has preempted the field and said: You can't enact
a law that's going to abridge the right to vote. The constitutional argument
we have made before. I made it to you, Your Honor, when we opened. And I'm not
going to go through it again.
There's this 1st Circuit
case that think I cited for you before. But the bottom line is: This is a fundamental
right, the right to vote. Here, let's just assume the supervisor did something
besides something that was in minor noncompliance. And we're going to take that
minor noncompliance--because of that noncompliance, she has led the voter to
believe the voter has done what the voter needed to do to vote.
That process is state action.
Now, if we add upon that a court saying that state action which led that voter
to believe they had a right to vote was wrong, the vote is canceled without
any notice and right to change it, that 1st Circuit Court says that's a violation
of due process. So this is a--I mean, this is a clear Florida issue. But it
is a federal-law issue. It is a constitutional issue. And it is, when I--we
back away and look at the big picture, it is such a fundamental fairness issue.
I close, Your Honor, being
a visitor to your state and to your town, to say to you: Thank you for the courtesies
that this courtroom and your staff have given to me. Thank you for the attention
you have given in this most important case. I appreciate my time here. Thank
WRIGHT: Your Honor,
I will be extremely brief. I have been relegated the task of clean-up. And with
the--with, I think, the very, very good job of my colleagues making a very cogent
explanation of the law in this case, there is not much left. And it's compounded
by the fact, Judge, that it really is a simple case.
I want to answer just a
couple of questions that haven't been dealt with, with regard to an area of
law which I agreed to pick up, which is the distinction between the pre-election
processes and the post-election processes. And it may be best addressed by taking
your analogy of the people going to the poll and arriving there a couple of
minutes after the close of the 7:00 posted poll-closing.
And while I won't disagree
with either of my colleagues, I think that Mr. Richard is exactly correct. And
I would go further and say that I think there is a bright line. And it is: When
does the vote take place? These pre-election irregularities are not discarded.
And I think Your Honor said something the other day about having some discomfort
with making a ruling that would tend to ignore them. Many of these provisions
are there to provide for post-election prosecution, for fines, for felony convictions,
for other remedies.
They're also there to afford
an opportunity for someone to make a challenge against an irregularity, or an
illegal activity, or some wrong as between candidates, and between an activity
that may otherwise result in an election being challenged, as in this case.
I agree with Mr. Bristow. I think that if the Democratic Party had known of
these circumstances, that the responsible thing to do--and I think that very
likely they're estopped now to do it--was to bring an action and bring this
issue out and have it dealt with before the votes of 15,000 people were placed
The question is when the
vote takes place. If your people had arrived and the supervisor made a judgment
call--and these people are on the frontline, Judge, and they have to make calls.
There's no time to deliberate. Decisions have to be made. He's got a bus-load
of his constituents, people who are trying to vote. And he makes a decision
that, under the circumstances, as Mr. Richard has said, that they can vote at
7:02, once they vote, the courts then say: Something just happened.
And there's Your Honor's
bright line. A fundamental right has now occurred and we're not going to take
that right away after the vote because of a pre-election irregularity, barring
one circumstance and it's been talked about today: fraud, substantial fraud--not
fraud in the sense that we would use in commercial transactions, but a fraud
of the system such that it would permeate the entire election process. Such
that you could not say that the will of the people had been expressed.
That is the test, and Mr.
Richard is exactly right in the context of my argument: That could not have
occurred because there has been a good election.
And I would state, Your
Honor, lastly--and I'm going to sit down, Pearson versus Taylor, you have that
cite, I know Your Honor has probably read it enough already. And that is the
case that I have nicknamed "the good election cures pre-election irregularities."
And that is, we have uncontroverted testimony in the record stipulated that
there has been a good election and these irregularities, whether they did occur
or didn't occur, absent the kind of proof that this plaintiff has not brought
to the court--that election stands and these voters should not have their votes
I will answer Your Honor,
and I wrote down the two questions you asked when this case began, and I'll
answer them briefly. You asked whether the addition on or completion of an absentee
ballot request form is sufficient to invalidate the ballot. Based on the argument
that you've heard from my colleagues, I think you can answer that question in
You also ask where Democrats
and Republicans treated differently such that the integrity or legitimacy of
the election was affected? And I think you can answer that question in the negative.
And I think, having answered
those two questions, you should rule with the defense in this case. Thank you,
(INTERRUPTION OF COVERAGE)
(UNKNOWN): ... the
secretary of state and the elections canvassing commission, who I'm honored
Foremost is the interest
of the thousands of voters whose voices the plaintiffs seek to suppress. Every
voter the plaintiffs are attacking is absolutely, completely innocent and the
plaintiffs do not attempt to assert otherwise.
Second is the good people,
the elections workers and the canvassing board; these good people who toiled
away at a thankless job under enormous pressure. These people who now find themselves
called felons and frauds and criminals and conspirators. And for what? Because
they decided that it was more important that qualified people have the opportunity
to vote--people who had innocently and obviously attempted to assert that right.
Your Honor is right, there
are limits to substantial compliance; but we are nowhere near them. The plaintiffs
have shown nothing in this case to permit the disenfranchisement, to permit
the silencing of the votes, to permit the silencing of the voices of the people
of Seminole County. The secretary and the commission, Your Honor, submit to
your wisdom and to your judgment.
STAVER: Your Honor,
I'll make my comments brief.
The Florida Supreme Court
and the federal court have indicated that the right to vote is the right of
all rights. The Supreme Court just recently said, in looking at the declaration
of rights the right to vote, by refusing to recognize an otherwise valid exercise
of the right of a citizen to vote for the sake of sacred, unyielding adherence
to statutory scripture, we would say, in effect, would nullify the right.
The same Supreme Court
earlier said that the electorate's will is primary and that it is primary to
effect its will in spite of, and not reliant upon, hypertechnical compliance
with statutes. That's the object of elections when looking at the right to vote.
The Supreme Court, in another
case--in fact, just a few weeks ago, the Harris case said this court commented
that the will of the people, not a hypertechnical reliance upon statutory provisions,
should be our guiding principle in election cases.
The United States Supreme
Court has echoed the same thing. It says no right is more precious in a free
country than that of having a voice in the election. The Supreme Court said
of the United States that any infringement on the right of citizens to vote
must be carefully and meticulously scrutinized.
The same United States
Supreme Court said that the right to vote is a civil right of the highest order.
And if we think about the rights that we enjoy, the right of all rights is the
right to vote. Any infringement on that right to vote, according to the Supreme
Court, must be met with extreme, exacting scrutiny. The government must have
a compelling interest of the highest order to restrict it, and when it tries
to restrict it, it must achieve it in the least restrictive means available.
If there's any other means
to achieve its interests, the government must pursue that means. In this particular
case, it is just the opposite of the history of the struggle of this country.
The struggle of this country has been about breaking down barriers to the right
to vote. Breaking them down over race, gender, taxes at the polling place, age,
and geographic location.
And yet the plaintiffs
would want to erect a barrier of a voter identification card. In the face of
the highest fundamental constitutional right that we can think of in this country,
that seems to be ludicrous. Now, does the government have an interest? Certainly
it does: to prevent fraud. But can it achieve that interest in a lesser restrictive
means than disqualifying one or, in this case, 15,000 votes?
And the answer is, absolutely.
The voter identification number is not necessary to determine whether a person
is qualified to vote in the state of Florida. The signature on an absentee ballot,
the address on an absentee ballot is sufficient to identify that person. The
voter identification number is not.
If that's the barrier;
if the interest is to prevent fraud, then the government must achieve that interest
in the least restrictive means available. It can't put the barrier of an identification
card when it can achieve that interest of preventing fraud in some other less
restrictive manner. The right to vote by absentee for the president of the United
States is just as fundamental a right as the right to vote at a ballot box,
contrary to the plaintiffs--and they will just simply not address this statute:
the right to vote by absentee for president of the United States is not a privilege.
It is a fundamental right under the voting rights Act of 42 USC, section 1973.
Your Honor, as was already
mentioned, 42 USC, section 1971 says that you cannot invalidate someone's application
to vote because of an error or omission if that error or omission is not fundamental
to determining whether the right to vote is permissible under state law. The
error or omission of an identification card is not material to determining that
When we look at the remedy
that they're requesting, even the disenfranchisement of one voice in this case
is a price too high to pay for some voter identification card which is not material
to preventing fraud, which is not necessary to determine whether someone is
qualified to vote. And when we look at the statute, specifically 101.62, it
does not specify a remedy for failing to list an identification number. It does
not say that the application is void, as 101.68 says in the casting of an application,
or the actual ballot.
Interestingly, you can
actually cast an absentee ballot without putting your voter identification number
on the ballot; and if that's the case in the actual casting of the ballot itself,
why is it necessary to put it on the application? There is no remedy under 101.62
that could actually disenfranchise one person in the state of Florida for leaving
off their voter identification number.
The people that we're talking
about that are possible disenfranchisees--I want to defer to one of them that
I represent, Helga Powell (ph), 66 years of age, and I want to just briefly
read something from her that's...
CLARK: Excuse me;
don't. And the reason is that's not in evidence.
STAVER: Yes, it
is Your Honor. The affidavits have been submitted into evidence.
CLARK: Those are
your affidavits? OK, go on, go on.
and so I'll close with this, Your Honor. This is one of my clients and one of
the things she said is if I hadn't received my absentee ballot by the mail,
I would have called the supervisor of elections to make sure I got it. And she
says this--I was born in Nuremberg, Germany during World War II and under the
Nazi dictatorship. I was a member of the Hitler Youth because it was required
to attend school and during those times we could not protest any form of governmental
action or decision for fear of being persecuted or put to death.
Shortly after the war,
I married a member of the United States Army and came to the United States by
choice. I have chosen this country as my home country, and I know firsthand
the price that citizens of a country pay when they have no right to vote for
representatives and have no voice in the governance of their country. As an
American, I hold my right to vote in the highest regard, and it is the most
precious right I have.
This is my first public
protest for any reason, but I hold my right to vote so dearly, and I feel so
strongly that my right to vote should count. that I cannot remain silenced.
Your Honor, I beg this
court not to silence Helga Powell or any other voter that voted by absentee
in this case over an ID number that is not necessary to determine whether he
or she is qualified to vote. Thank you.
CLARK: Mr. Richman?
RICHMAN: I'm most
intrigued, Your Honor, by the fact that the busload issue has come up because
we had a number of examples that we're going to give to Your Honor. I didn't
have a chance to give it before. The busload idea is precisely on point because
what happens here in effect is a busload of Republicans are given an opportunity
and the Democrats and independents are shut out. That's what was not included
in any of their responses.
There are several examples--in
fact, let me, if I may, get to one particular point because the busload example
that was given by Mr. Wright, if I heard him correctly, he said that it's a
judgment call by the supervisor and everything it's OK--it's OK for the supervisor
to do that for a busload of the supervisor's constituents. I mean, I don't think
we could possibly be more on point here when you got a Republican-elected supervisor
doing something in effect for her constituents. She was a candidate in this
election thought she wasn't in this particular vote because she'd already been
elected without opposition.
The hypocrisy, basically,
of what's being presented here is look at what happened in the other cases relating
to, for example, Palm Beach County. Look what happened with regard to the secretary
of state, Harris as to what she wanted to do, cut off the recount. Don't get
to the will of the people. It doesn't matter. We've got a specific date on which
we've got to certify. That's what we're going to do.
RICHARD: I object.
There's no evidence to these other things.
sustained and I don't want to take up the other cases and I don't even want
to address the other cases. This one is a significant enough case for me that
I'll address just the issues in this case.
fine, Your Honor. Point being, we're here to enforce the law, what the law says
in this case in the 1998 amendments by the Republican legislature. We're not
asking the court to be lax in those standards or to bend those standards. And
our position is that's exactly what the defendants are asking the court do in
this case, is in effect to change the standard that's been established by the
legislature. Let me take these very quickly serially to respond. In the 1971--unless
Your Honor has any questions on 43 USC 1971 and I've heard none in the bench,
I'm not going to take any time...
CLARK: I'll let
you know when I have questions.
RICHMAN: On that
particular one, we would rest really on our brief and emphasize the fact that
that statutory provision was precleared by the Department of the Justice. It
just simply has no application whatsoever to anything in this case. The--with
the argument with regard to Mr. Young, the--what is totally ignored in here
is what does the signature mean?
The signature is the point
at which the right to change or alter something ends, like signing a check.
And take--take a look at--I got the statutory book here. I really liked Mr.
Bristow's example of the nursing home. In a nursing--or a supervisor coming
in some supervision to help somebody. Perhaps not being a Florida lawyer, Mr.
Bristow is not aware of the fact that the legislature has specifically addressed
that kind a problem but by providing assistance for people in that situation,
which is not applicable. And that's Florida Statute 101.655, supervised voting
by absent electors in certain facilities.
So the example that he
gave has absolutely no application under Florida law. What is undisputed here
is that there was a basically, a change in policy in terms of what they did.
But, Your Honor, not a change in policy of what appears on the Web site from
1998 to the year 2000, and this is what's so important. Everybody is advised
all of the information above must be provided or the request is considered to
be void. That's the policy. That's what everyone is told.
But Democrats, independents,
anyone else who didn't happen to fill in these particular cards is not told
of the internal change of policies as to what happens and how this is being
handled differently. And the example about disparate treatment, what I understand
as being said is that if you have Democrats who made the same mistake, you could
have some kind of an argument that the Democrats should have been given the
same opportunity and since the Democratic Party as the party didn't make the
mistake, then you don't have disparate treatment.
The disparate treatment
isn't the universe of Republicans versus Democrats in a mailing. The disparate
treatment is the universe of the Republican group that's here versus every one
else--Democrats, independents and anyone else that's involved. It also would
include perhaps some Republicans who didn't use the Republican mail-out card.
But the point of it is
they're taking this group of people and they're treating them one way as Republicans
on these cards and they're ignoring the rest of the world which don't have happen
to be of their party, and don't happen to be of the supervisor of election's
party. That's the absolutely disparate treatment and disparate treatment does
not end with just filling in the numbers. Disparate treatment is taking a public
office and turning it into an arm of the Republican party to make a change that
they had absolutely no right under the law to change. That's the disparate treatment
Commenting quickly, Mr.
Altiero, the--on October 17th, the one important bit of information about the
reporter in his radio show is that at the time he goes ahead and carries on
with what Sandra Goard said, it's her concern that these are mostly Republicans
that are that doing it. That's her political party and partisan concern and
after that, does she volunteer to this reporter that Mr. Leach is there?
And I have to say, it's
unclear in the record whether Leach was already there but I think he had to
be at the time this conversation took place on the 16th and 17th, because we've
had some indication of data going in prior to that time. But the point of it
is, she never publicly does it until he finds it out.
And nobody is told about
that and his business about Mr. Poe. Very interesting. Why didn't Mr. Poe do
something on October 30th? Well, I think, Your Honor has been very strict enforcing
not allowing speculation. We don't know. They could have called Mr. Poe. They
could have asked him this question. They could have ascertained what remedies
there were. That's the red herring thrown into this case, and we are not the
Democratic Party. What Mr. Poe or what Mr. Poe might have done is pure speculation
in this case and has no bearing on the basic issue as to what happened.
What we're really talking
about is the integrity of the process. And by the way, I also heard a comment--he
said: Well, who knows what could have been done by the Democratic Party? Who
knows what they might have done when they had possession of these cards, since
the law allows them to go ahead and in effect bundle the absentee ballot request
forms? We all know that it's illegal to bundle the ballots themselves.
But the request forms can
come in bulk. Counsel has perhaps overlooked this stipulation in paragraph 28,
where it is stipulated by both sides in the last sentence of 28 that says, quote:
"There is no evidence and none will be presented indicating the Democratic representatives
altered, added to or changed any absentee ballot request forms after they were
received from the requester."
So, that has totally been
stipulated in this record.
The--one comment on the
remedy issue, and I'm trying to do this in the order in which they spoke. We
do not have the burden under the law to prove what--whether or not these people,
the universe of whether it's 2,126 or the 1,932 that actually voted, would have
gone to the polls or how they would have voted. That's absolutely what we can't
And if--if the plaintiff
in a case like this had that burden, no one could ever win a case involving
absentee ballot requests or absentee ballot request forms. That--there's not
a single case that says that there's an obligation to go ahead and prove what
would have happened under those circumstances. And that in effect would be the
rankest of speculation on our part. That's what the courts in effect have recognized.
In--in the--the busload
example, the busload--I'm sorry. I've already covered that.
I did want to mention the
McLean case, since I believe Mr. Richard relied on that. And I would say to
Your Honor simply that that case is completely distinguishable.
First, it was the pre-1998
statutory changes. Secondly, it states that the sanctity of the ballot and the
integrity of the election, if they are not--if they were not maintained, a different
result would be proper in their case. And in our case, we have the sanctity
of the ballot and certainly the integrity of the election in QUESTION:
the sanctity of the ballot in the sense of how they get the ballot to begin
with in violation of a mandatory statute.
And while I'm on that,
here's the legislative history that Mr. Richard keeps relying on. He asked me--challenged
me to come up with an answer with regard to the legislative history. And the
answer is simply this: If one takes a look at the--and I'm looking for a page
number on here; it looks like page eight of the portion of the legislative history.
And I will quote it to Your Honor. It's very short.
It says: "Although the
statutes emphasize the importance of all the instructions, only the voter's
signature, and the signature and address of the attesting witness are mandatory,
all other provisions are directory in nature." And what does it cite? It cites
101.65, which relates to ballots and not absentee ballot request forms, and
So the language that he's
quoting to Your Honor is wholly inapplicable to the issues in this case. What
he's talking about is what is mandatory in regard to the ballot, not what is
mandatory under the legislative changes in 1998 with regard to the absentee
ballot request forms.
Further on McLean. McLean,
one of the things they say is that to be entitled to an absentee vote, you're
entitled to it when you do whatever is required by the statute. That in effect
would support the position in terms of what happened in this case.
And finally, in that case,
we note that they didn't find fraud. The court noted simply that the--the conduct
in that case, which is far different from the intentional wrongdoing in this
case, is the conduct was only the supervisor encouraging voters, encouraging
voters to vote for his party. And in that case, the way it was done under the
facts of that case, the court made an expressed finding that it was simply negligent.
And certainly, under the
facts of this case, one cannot find that what the supervisor did here--with
all her knowledge, that it would be wrong for her staff to do it--was simply
negligent in allowing the Republican Party multiple operatives to come into
We also hear about the
will of the voters, but when counsel talks about the will of the voters, they
ignore the second prong of the test is, and that is, as we've repeated over,
and Your Honor pointed out as being one of the issues--the integrity of the
Our expert briefly. The
expert, they say, presumed that these people would not vote. To the contrary,
Your Honor, what the expert did in his direct testimony is he simply made no
assumption. All the expert did--and we put him on for a very limited purpose--was
to simply say, if you took the pool, and then you wanted to say, "Given the
fact that there are registered Republicans and registered Democrats, which way
is it more likely that they would have voted?"--and now I've given Your Honor
the other example in my opening statements, opening argument, I should say,
that the ratio of people who voted absentee is just about the same as the people--as
the ratio of the--in other words, those that voted is about the same on a 1-to-1
basis in terms of the outcome of what registered Republicans and what registered
Democrats do. So it simply offers Your Honor a basis to look at that.
If I were the defendants,
I would also take the position that don't look at an alternate remedy, because
let's face this court with what we are able to recall a draconian remedy.
And by the way, if you
talk about draconian, in the city of Miami case, 40,000 ballots were thrown
out, not 15,000. We don't know how many of those were absentee ballots, but
a total of 40,000 were thrown out.
But we came back and we
said, here is an alternate way to rule. If--though it would be setting new precedent
in Florida, but at least doing something with regard to what's happened to the
entire integrity of the process here. And that's why we gave that to Your Honor,
but underlining that there's no Florida precedent in the cases that have done
it, one being Alaska and I believe the other being California.
A few other brief thoughts.
The--under 101.62--and I think this is probably--a couple of comments, and then
I'll conclude on this note.
That--it is interesting
to see that Mr. Richard disagrees with his colleagues about what substantial
compliance is. My simple response is I don't know how, if you have a statute
that is mandatory and if you have a violation of the statute being punishable
as a felony, that failing to comply with the statute and the legislative intent
to clean up abuse with regard to absentee ballots could possibly be considered
as something that is either not material or that it is substantial compliance
to ignore one of those requirements.
It's simply--it's kind
of like saying, what do you mean by is? What do you mean by void? I mean, void
is void. Mandatory compliance is simply mandatory compliance.
Comment was made about
Mr. Livingston. Mr. Richard, I think, misspoke, because I don't think that he
meant Mr. Livingston. Mr. Livingston was the man with the medical problem who
had been the supervisor of the courts--a clerk of the courts rather in some
place in Virginia. He means Mr. Ray (ph) when he was talking about the disparate
The point of the testimony
of Mr. Ray (ph)--and you recall, Your Honor, he was the one who sought to get
the 37--the signatures rather to save the $3,700 fee, which he ultimately had
to pay--was disparate treatment, but it was something else.
And the something else
was Sandra Goard saying: You cannot change or alter public records. These petitions
come in. You don't have the voter I.D. number. You can't alter them by adding
it. That is the disparate treatment. And that's what Mr. Ray (ph) was called
for. Mr. Bristow, I believe it was, said: Well, on October 30th, you could have
done something else to notify the people. The Democratic Party could have done
it. Somebody could have done it.
Aside from the fact that
there is a lack of evidence, one of the things that was suggested to Your Honor
in one of the statements made during this case was: Well, they could have set
up phone banks, perhaps. Republicans could have set up phone banks, Democrats.
Your Honor asked this QUESTION: If the Republicans Party was going to
follow the law, and they noticed this problem on October 10, where was the burden?
Who's supposed to solve
that? Republican Party could have set up phone banks. The Republican Party could
have gone on the news. The Republican Party could have done a lot of things.
But what they chose to do is violate the integrity of the process. And finally,
let me end with these points. Succinctly stated, Florida statute 101.62 has
been totally violated. The voters did not comply with the law. The supervisor
of elections, by assisting the Republican Party, did not comply with the law.
What they did is void--just
as the supervisor of elections said--as a matter of law. Mr. Leach, under the
law, is not a lawful requester. The signature is what determines the lawful
request: a signature with all of the information required by the statute. To
do otherwise would totally violate the legislative intent. The second prong,
and the justification for all of these ballots being thrown out: disparate treatment
under the law.
What's the disparate treatment
in brief summary? It's taking--first it's the act of what Leach himself did
within the supervisor of elections' office, using the supervisor of elections'
staff. And one of the points that I may have not emphasized enough is: It wasn't
just simply giving him a chair, as Mrs. Goard publicly stated. "We just gave
him a chair," is what she said to Mr. Poe, in accordance with the testimony.
She gave him the office.
But then she used her paid staff to go ahead and bundle these things up, separate
only the Republican cards from everyone else, and just go ahead and use those,
and then feed them to him. And they didn't just do it once. Day by day by day,
as the cards came in, they were fed to Mr. Leach all the way until, I believe
the date is November 2 or November 3. Just on the eve of the election, he sat
there, while, from October 10 on, the entire other universe of voters isn't
No letters go out to them,
no phone calls, no notice whatsoever. It's giving Leach, the Republican operative,
and the two other operatives access to the public's space. And it's taking what
is notice to the world that if you don't do this right, it is void, as has been
on the Web site, and then turning around for one group and not treating it as
We believe, Your Honor,
we have more than met the burden in this case on every one of the essentials
of Boardman, in a case of intentional wrongdoing, no substantial compliance
whatsoever, and that the only remedy in this case--and it is a case that has
to send a message and establish a very important precedent, is that, if standards
are loosened in this case, and they are allowed to do what they did in this
case--go back to the old law-school thing about parading the horribles--but
what comes next?
What standard do we get
away from? Is next time, can they accept it without a signature there? Can Mr.
Leach come in and sign for somebody? What else would come next if the court
does not enforce the law in this case and provide the relief that is afforded
and provided for under cases that have dealt with the issue of, basically: fraud,
corruption, intentional wrongdoing, but basically an interference with the entire
integrity of the process.
Your Honor, on behalf of
myself and my numerous volunteer lawyers here and my client, we thank you very
much for your attention, information, and for the assistance of your staff.
It's lot better here than it is in other places I've practiced. You have got
a great group to work with. Thank you very much.
CLARK: You're welcome.
Let me just make a couple
points. One, I do appreciate the staff I have got to work with. They have been
wonderful. But the second thing I need to make note of is: My job is not to
send a message. My job is to rule on the case before me. My job is to apply
the existing case law and statutory law to the facts as I find them from the
evidence. With that, I will note that I will make a written ruling on this.
I certainly won't delay on it. But I can't tell you exactly what time. When
it's issued, you will know. The court is in recess.
you, Your Honor.
CLARK: You're welcome.