Judge plans to rule Friday in absentee ballot case

December 7, 2000
Web posted at: 1:38 p.m. EST (1838 GMT)

TALLAHASSEE, Florida (CNN) -- Testimony concluded Thursday in the trial involving an effort to throw out nearly 10,000 absentee ballots in Martin County -- a case that could derail Republican George W. Bush's slim but certified Florida victory over Democrat Al Gore. Judge Terry Lewis said he planned to release a written ruling by noon Friday.

A key witness, county Elections Supervisor Peggy Robbins, took the stand shortly after proceedings resumed at 8 a.m., following a late evening session that dragged on past midnight, and testified her office did nothing wrong by allowing a Republican official to add missing voter identification numbers to absentee ballot applications.

Closing arguments in a similar trial involving absentee ballots from Seminole County were being held in the same courthouse Thursday. The suit was filed by Democratic attorney Harry Jacobs, a Gore campaign contributor, who alleged the elections supervisor in that county, Sandra Goard, allowed a "Republican operative" to come to her office and fill in missing information on thousands of absentee ballot applications.

In the Martin County case, Robbins testified the numbers were missing from request forms sent in by GOP voters after a mass mailing from the state Republican party. She said a state GOP official, Tom Hauck, was allowed to remove those forms and add the numbers to make the forms complete.

"The mistake that was made on them was made by the Republican party," Robbins said. "It only seemed logical to allow the Republican party to correct that mistake."

The goal, Robbins said, was to ensure no voter was disenfranchised. "We did not want to deny the voter the right to get their absentee ballot," she said. "They assumed that they had correctly requested an absentee ballot."

The same opportunity would have been given to Democrats, she said, but was not necessary because all forms sent in by Democratic voters were complete and needed no additions.

Democratic voters complained in their suit that they received unequal treatment. They are asking that all the absentee ballots cast in the county be thrown out because it is not possible now to identify those that Robbins allowed the GOP to correct.

Plaintiffs' attorney Ed Stafman contended adding the numbers was illegal because the voters cast ballots unlawfully. "They obtained ballots that they had no right to obtain," he said.

Stafman said the proper remedy was to throw out all the absentee ballots. But he acknowledged that would be harsh and suggested the judge could order some other alternative, such as a punishment for the elections officials.

Bush campaign attorney Daryl Bristow argued voter identification numbers were not a requirement for the request forms, and therefore adding them was not against the law. "All the other information that the voter had supplied under this purely directive, and not mandatory, provision was right," he said.

There were 9,773 absentee ballots cast in Martin County, 6,294 Bush and 3,479 for Gore. Throwing all of them out would deprive Bush of 2,815 votes now in his column --enough in this case to keep him from moving into the White House.

At stake in Seminole are nearly 15,000 absentee ballots, all of which the lawsuit seeks to invalidate because of the alleged mischief. Throwing out those ballots would cost Bush about 4,700 votes.

Individual voters brought both cases. The Bush campaign was involved in both trials, the Gore campaign was not involved.

Thursday December 7 4:21 PM ET
Fla. Official Let GOP Help Voters

By VICKIE CHACHERE, Associated Press Writer

TALLAHASSEE, Fla. (AP) - One attorney charged there was a ``sinister'' conspiracy to aid George W. Bush (news - web sites). A former CIA (news - web sites) agent said he was just trying to help GOP voters. A county elections official said she let Republican operatives correct absentee ballot applications.

Two trials that could affect tens of thousands of presidential votes played out just blocks from where Florida's highest court heard legal arguments Thursday in the contested presidential election.

In Leon County Circuit Court, attorneys representing voters who alleged Republicans tampered with absentee ballot application forms asked judges to throw out as many as 25,000 absentee ballots from Seminole and Martin counties.

At issue in both cases is whether mistakes on absentee ballot request forms sent out by the Florida Republican Party in the waning days of the election were illegally corrected by state GOP officials when the mistakes were discovered.

``It was a sinister underground conspiracy'' to help Bush, said Edward Stafman, attorney for the Martin County challengers.

But Republican activists testified they did nothing wrong, saying they just were trying to correct mistakes their party made on the forms.

Attorneys for the counties and the Republicans are pleading with the judges to not throw out absentee votes. They argue that voters had no control over what was done and shouldn't be disenfranchised.

In the Seminole County case, Leon County Circuit Judge Nikki Clark was to hear closing arguments Thursday afternoon. That was when closing arguments concluded in Martin County, and Judge Terry Lewis said he would rule by noon Friday.

Both trials were held back-to-back in the same courtroom. Testimony in the Seminole case finished after 13 hours Wednesday, then the Martin case began.

Bush won the absentee balloting by 4,797 votes in Seminole and by 2,815 votes in Martin, so throwing them out could place his 537-vote certified statewide lead in jeopardy.

Voter ID numbers were left off many applications through computer errors in Seminole County and incorrect numbers were placed on the forms in Martin County. Florida law says ballot applications may not be mailed out without the correct identification numbers.

In the Seminole County case, elections supervisor Sandra Goard admitted she allowed Republican officials to fill in the numbers and said it was the first time she had done so. ``I had never received a request for that to be done,'' she said. Democrats did not ask for the same accommodation, she added.

Goard also testified that Florida law did not give her the authority to allow party officials to fill in the numbers. But she said she allowed GOP official Michael Leach and a second man she has been unable to identify to fill in the numbers at the party's request. Democratic Party state chairman Bob Poe later called to protest her actions, but Poe did not request the same opportunity to correct applications for Democrats, she said.

Goard did not appear in court Wednesday. Her previous deposition testimony was read aloud instead.

In the Martin County case, county GOP official Tom Hauck was asked on the stand whether he would acknowledge ``walking out of the office'' of Republican elections supervisor Peggy Robbins ``with a stack of applications for absentee ballots.''

``On one occasion, that's right,'' Hauck replied, adding that he took the ballots to county Republican headquarters to fill in the numbers.

Thursday morning, Robbins started the day on the witness stand, testifying she thought she was doing the sensible thing when she let the Republicans fill in the numbers on the ballot applications.

``They had put the information on these cards. It seemed logical to let the people who had done it incorrectly to correct the problem,'' she said.

On Wednesday, Charles Kane, who testified he worked for the FBI and retired from the CIA in 1975, said nothing secretive nor sinister occurred.

``We had an obligation to them,'' he said of Republicans who had received the inaccurate ballot document. ``We had filled out their forms. We did not see this as altering. All we saw this as was correcting a problem caused by the Republican Party of Florida.''

Todd Schnick, the state Republican party's political director, testified that he did not remember key elements of the ballot form glitches, which occurred in the last weeks of the presidential campaign.

In the Seminole County case, Democratic activist Harry Jacobs filed the challenge. Defense attorneys said Jacobs had raised $50,000 for Democrat Al Gore's campaign and provided other assistance.

Gore is not a party in either lawsuit.

DECISION 2000 / AMERICA WAITS: Absentee Application Fight Hits 2 Courts: Law: GOP attorneys attack claims by Democrats about corrected forms in Florida. Prompt verdicts are promised.
SCOTT GOLD
 
12/07/2000
Los Angeles Times
Home Edition
Page A-1
Copyright 2000 / The Times Mirror Company

TALLAHASSEE, Fla. -- Trying to block one of Al Gore's last shots at winning the White House, Republicans launched an aggressive attack Wednesday on two lawsuits claiming the GOP hatched a scheme before the election to illegally correct absentee ballot request forms in two conservative Florida counties.

"This case is being brought for one reason: to change the outcome of the election," GOP attorney Terry Young told Leon County Circuit Judge Nikki Ann Clark in a tense Tallahassee courtroom. "A ballot is not just a piece of paper. It is a voice--and a voice that, at all costs, should not be silenced."

The Republicans' campaign came as both lawsuits got underway here in a day that began before dawn and ended early this morning. As midnight came and went, aides were still bringing in steaming cups of coffee, and puffy-eyed attorneys, some of whom had been in court for 17 straight hours, were gulping them down. A television soundman was snoring loudly in the hallway, his fuzzy boom microphone at his side.

If Clark or Terry P. Lewis, the circuit judge hearing the second case, rules in favor of the Democrats, it would turn the election on its ear at the eleventh hour. The suits seek to throw out about 15,000 absentee votes in Seminole County, north of Orlando, and about 10,000 votes in Martin County, north of West Palm Beach.

Both trials were nearing completion, with verdicts promised promptly. Though legal experts believe the cases are problematic at best, a pair of victories for the Democrats could represent a net gain of almost 8,000 votes for Gore, far more than the vice president needs to trump George W. Bush's minuscule lead in Florida.

If Clark doesn't want to throw out the absentee votes wholesale, Democrats argue, she should at least throw out the votes that Bush earned solely because the state Republican Party was allowed to correct flawed absentee ballot applications that would have been thrown out otherwise.

That number, according to a statistical analysis by UC Berkeley economics professor J. Bradford DeLong: at least 1,504, nearly three times Bush's 537-vote margin in Florida. At a minimum, argued Gerald F. Richman, the lead Democratic attorney bringing the Seminole County case, those votes should be tossed out because the agreement between the Republican officials tainted "the sanctity of the ballot."

But Wednesday morning, the dew hadn't dried on Tallahassee's noble oaks and magnolias before Republicans opened fire.

In the Seminole County case, they quickly painted an image of Harry Jacobs, the audacious personal injury lawyer who filed the lawsuit, as a Democratic insider who spent more than $100,000 of his money this year to try to defeat Bush.

The day Gore chose Sen. Joseph I. Lieberman as his vice presidential candidate, Republicans have learned, Jacobs called Florida Democratic Party Chairman Bob Poe and pledged to "do anything and everything to support the Gore campaign," Young said. "And that's what he's doing today."

Young represents Seminole County election supervisor Sandra Goard, an elected Republican who concedes that she allowed several Republican Party employees to correct more than 2,000 flawed absentee ballot request forms that would have been thrown out otherwise.

But Goard, the Republicans argued, is not the partisan player that Jacobs is. "She has no vested interest in the outcome of the election," Young said. "Her only vested interest is that every legally cast vote . . . is counted."

Both parties sent postcards to thousands of prospective voters in the months before the election, an increasingly common tactic across the nation as absentee voting has become more central to political campaigns.

Each party sent the cards to voters who were likely to back their candidate--an operation that cost the state Republican Party $500,000. The cards were, essentially, preprinted applications to receive absentee ballots. They contained a variety of information about each voter, and were supposed to require only a signature. They could then be sent back to election officials, who would, in turn, send back an absentee ballot.

But a Republican contractor mistakenly printed voters' birth dates in a spot reserved for voter identification numbers, one of the pieces of information that Florida law requires before county election officials can issue actual absentee ballots.

While the voter-identification requirements appear technical, they were an important piece of a get-tough reform package approved by Florida in the wake of Miami's infamous 1997 mayoral election. That election was tarnished by widespread fraud involving absentee voting, resulting ultimately in the removal of Miami Mayor Xavier Suarez from office.

"We goofed," Republican Party political director Todd Schnick testified Wednesday night in the Martin County case.

"And you knew there was big trouble," said attorney Edward Stafman, representing the Martin County Democratic activist who filed that lawsuit.

So the state Republican Party mobilized, crafting agreements with two election supervisors--both elected Republicans--to correct the mistake.

In Seminole County, Schnick called Goard in October and secured an agreement that allowed them to use a back room of her office to correct the ballot applications, though they had already been thrown out. Three Republican Party officials worked for as long as three weeks, correcting 2,126 absentee ballot application forms.

Absentee ballots were then sent to those Seminole County voters, resulting in 1,932 actual votes--1,833 from registered Republicans and 54 registered Democrats.

The Republican Party worked out a similar agreement in Martin County, where the party was allowed to remove the flawed absentee ballot forms from the election office for several days, then return them with the correct information.

Hundreds of absentee ballot requests filed by Democrats, who received different postcards without the printing error, were flawed in other ways. And, though it's unclear whether they ever asked, Democrats did not have the same opportunity in either county to correct those errors.

Unapologetically, Republicans formally acknowledged all of that Wednesday.

The GOP's team of lawyers signed an extensive stipulation document in the Seminole County case that admitted virtually everything the Democrats have alleged.

Republicans acknowledged that the Republican Party officials were allowed to correct ballot applications in a room where the public is not allowed. They acknowledged that the party officials were not supervised and that Goard's staff assisted them by segregating flawed Republican ballot applications from the rest of the application pile.

None of that matters, the Republicans argued. Legally, they said, the judges cannot throw out any absentee votes. The lawsuits, they pointed out, do not even claim that votes themselves were faulty, either because the wrong voter identification number was used or because they were cast by the wrong person.

Finally, the Republicans argued that the state Democratic Party was at least as underhanded in its efforts to enlist absentee voters.

At least in some cases, said Bush attorney Daryl Bristow, the return address on the Democratic Party's postcards was to the party's headquarters, not to the election supervisor's office. Party officials would receive the ballot applications in the mail themselves, then carry them to the election office.

Clark, the judge hearing the Seminole suit, told the attorneys that she believes the case boils down to two arguments: whether the correction of the forms "is sufficient to invalidate the vote" and whether the parties were treated differently.

Richman, the lead attorney for Jacobs in the Seminole County case, said he has proven both.

In the face of the Republicans' criticism, Richman produced a series of witnesses in an attempt to prove his case Wednesday.

Dean Ray, a Seminole County Commission candidate, told the judge that he submitted hundreds of signatures in an attempt to qualify for the election this fall, mostly to avoid paying a $3,700 qualifying fee. Many of those signatures were disqualified, and Ray said he asked Goard if he could use voter identification numbers to verify them.

"She stated that was against the law," said Ray, a Democrat who ultimately lost the election.

DeLong, the UC Berkeley statistician Democrats hired for $500 an hour, said during his testimony Wednesday that if Republicans were given access to a voting procedure that Democrats did not take part in, "you are treading on extremely dangerous ground."

All told, Richman said, the Seminole County case amounts to voter fraud--and a conspiracy. "This was intentional," he said, "and not merely carelessness or negligence."

By Wednesday night, Democrats were trying to recapture some of the momentum in the cases, with some success. In the Martin County case, especially, witnesses appeared evasive as Stafman peppered them with questions.

Charles W. Kane , a Martin County resident and a member of the state Republican Executive Committee, testified that he was one of the Republican Party officials who corrected ballots in that county. On the witness stand, Kane refused to call his actions "alterations."

"I call it an addition to correct the problem," he said.

As the night wore on, the courtroom exchanges became increasingly aggressive. Stafman grilled Schnick, who was responsible for the postcard program, and when Schnick appeared to dance around some topics, Stafman yelled: "Did you hear my question?"

By the end, Stafman had essentially abandoned his role of merely asking the witness questions, telling Schnick at one point that the Republican official changed the ballot applications to "save his hide."

Times staff writer Michael Finnegan contributed to this story.

USA: UPDATE 4-Fla. absentee ballot cases argued.
By John Whitesides
 
12/06/2000
Reuters English News Service
(C) Reuters Limited 2000.

 

TALLAHASSEE, Fla., Dec 6 (Reuters) - Republican lawyers on Wednesday battled two Florida lawsuits filed by Democratic voters that offered Vice President Al Gore some hope by seeking to have thousands of presidential election ballots thrown out.

The two cases arose from allegations of tampering with voter applications for absentee ballots in Florida's Martin and Seminole counties, which both went to Texas Gov. George W. Bush in the election.

Both suits were seen by legal experts as unlikely to succeed, but if one or both of them did, it would cost Bush thousands of votes, allowing Gore to overtake Bush in the state which both candidates must win to capture the presidency.

On Nov. 26, Florida certified the Texas governor as the state winner by just 537 votes out of 6 million cast.

Gore attorneys are challenging that certification and have appealed to the state Supreme Court against a state judge's ruling on Monday that rejected their bid to have thousands of ballots from other Florida counties counted by hand.

The Martin County and Seminole County cases were heard back-to-back on Wednesday in a courthouse in Florida's capital, Tallahassee.

In the Seminole lawsuit, Democratic voter Harry Jacobs alleged Republican tampering with absentee ballot applications and sought to have all 15,000 absentee votes in the county thrown out, which would cost Bush thousands of votes.

The lawsuit alleged the county's Republican supervisor of elections, Sandra Goard, let Republicans operate out of her office to modify more than 2,000 applications for absentee ballots to add missing voter identification numbers.

In doing so, the lawsuit says, Republicans "fraudulently caused the issuance of several thousand invalid absentee ballots" that were later cast in Seminole County, which is in central Florida just north of Orlando.

In court on Wednesday, attorney Gerald Richman, representing Jacobs, argued there was not simple carelessness but "intentional misconduct" on the part of Seminole elections officials that resulted in "absolutely, totally disparate treatment" of Democratic and Republican absentee voters.

TRIAL MOVES THROUGH LEGAL MAZE

Like the weekend trial of Gore's challenge to Florida's certified election results, the Seminole trial moved slowly through a maze of legal haggling and statistical probabilities as attorneys played to the national cable television audience viewing the trial.

Richman spent more than two hours reading transcripts from Goard's deposition even though her testimony was already in evidence. He told Judge Nikki Clark he wanted those watching the trial on television to know what Goard had said.

In her deposition, Goard said she had rejected some ballot requests that lacked voter identification numbers but allowed the Republicans to add the numbers to preprinted forms they had mailed out because the numbers were accidentally left off.

Bush attorney Barry Richard objected to the lengthy reading, pleading at one point: "I'm just getting tired."

He argued that the rejection of all the county's absentee ballots would punish voters who had done nothing but return a preprinted application form mailed to them by Republicans.

"There is no suggestion in this case that the voter did anything inappropriate," Richard said.

Richard remained confident the Republican arguments would prevail after testimony ended on Thursday.

"There was surely no proof of disparate treatment, there was no evidence that there was a single Democrat who was denied the ability to vote because of disparate treatment," Richard said. "I think this is nothing."

Republicans have argued there was no evidence of intentional fraud and there had been no tampering with the actual ballots, only the applications.

Clark said she would look at two issues in the case - whether the addition of the voter identification numbers was a sufficient reason to invalidate all ballots and whether Democrat and Republican voters were treated differently.

Testimony in the Seminole case ended on Wednesday evening and closing arguments were scheduled for Thursday afternoon.

MARTIN COUNTY TRIAL RESUMES

Less than an hour after the Seminole case adjourned, attorneys were back in the courtroom to begin testimony in the Martin County trial, which centers on 673 absentee ballot applications - out of 10,260 filed with the county - that were altered by Republican volunteers.

Of those, 6,294 voted for Bush and 3,479 went for Gore.

The lawsuit, filed on behalf of a Martin County Democrat, alleged two top county Republican officials, Thomas Hauck and Charles Kane , a retired CIA employee, conspired with the county's supervisor of elections to correct absentee ballot applications filed with erroneous voter registration numbers.

"The fact is that these ballots were issued unlawfully and they never should have been voted," plaintiffs' attorney Edward Stafman said.

But Kane denied there was a conspiracy, and testified he felt responsible for erroneous voter registration numbers on pre-printed ballot applications the Republicans had mailed out to boost voter turnout. Similar cards were printed and mailed out by Democrats in the state.

"We didn't see this as altering. All we felt like we were doing was correcting a problem that was caused by the Republican Party of Florida," he said.

The trial was adjourned shortly after midnight EST, and the case was set to resume on Thursday at 8 a.m. (1300 GMT).

ELECTION 2000 / THE PRESIDENCY / All Eyes on Trial Over Absentees
Jessica Kowal. STAFF CORRESPONDENT
 
12/07/2000
Newsday
ALL EDITIONS
Page A05
(Copyright Newsday Inc., 2000)

Tallahassee, Fla.-Gov. George W. Bush's lead attorney confidently rested the defense last night in a contest of Florida's presidential election that could void 15,000 absentee ballots from Seminole County and give the lead to Vice President Al Gore.

So confident were Bush's attorneys that they presented no witnesses and only asked the judge to read excerpts from several depositions.

"There's no evidence that anybody did anything wrongful that affected the election," said Bush's lead attorney, Barry Richard. "I think that this is nothing here."

Leon County Circuit Court Judge Nikki Clark scheduled closing arguments for 1 p.m. today, after Bush's attorneys argue before the Florida Supreme Court in Gore's appeal of the election contest rejected Monday by Judge N. Sanders Sauls.

If Bush's attorneys have correctly assessed their chances, and if Clark refuses to invalidate any ballots, Gore's legal opportunities to win the election dwindle considerably.

Gore is not a plaintiff in the Seminole County case, which was brought by Harry Jacobs, a trial lawyer who donated $50,000 to Gore and the Democrats and spent another $50,000 to produce an advertisement critical of GOP vice-presidential candidate Dick Cheney.

Attorneys for Jacobs refused to handicap their chances, but pointed out that the Bush team has sought to downplay this case over the past few weeks. "We're very happy with our case," said attorney Eric Seiler. "These guys are good at saying there's nothing there. If they win, they win. If they lose, they lose."

The trial was lacking in courtroom drama, but the potential for a history-making decision made the case impossible to ignore.

All the attorneys agreed to the basic facts: In October, three employees of the state Republican Party were allowed to enter the Seminole County election supervisor's office, and over the course of two weeks, altered about 2,500 applications for absentee ballots by writing in the voter registration numbers. The applications, essentially postcards sent to voters by the state GOP, would have been nullified without this voter ID number.

More than 2,100 of these applications were processed (the others lacked some other piece of information) and 1,932 of these absentee voters returned their ballots and had their votes counted, attorneys said yesterday. Elections Supervisor Sandra Goard said Democrats did not ask to correct any of their ballot applications.

Bush won the county's absentee ballots by about 5,000 votes, so throwing all the ballots out would easily boost Gore over Bush's state-certified 537-vote lead.

Soon after the court convened, Clark defined the two key questions that will apparently guide her ruling: Should voters' absentee ballots be nullified because the Florida GOP altered the absentee ballot applications, and did the Seminole County elections supervisor treat the Republican Party and Democratic Party so differently as to compromise the integrity of the election.

Democratic lawyers read testimony from Goard, the elections supervisor for more than two decades, who let the GOP operatives fill in the missing voter numbers. Goard said she had never before allowed anyone outside her office to fill in information on the ballot applications, and said no one had asked to do so before this year.

After extensive ballot fraud in the 1997 Miami mayoral election, Florida's Republican-led legislature in 1998 toughened the rules on absentee ballot applications and absentee ballots. Election statutes now list nine pieces of information that should appear on absentee ballot request forms, including a voter's signature, a witness' signature, and the voter's birthdate, address and voter registration number.

Attorneys for Bush have said the legislature's list of these items was intended to give direction to officials, without making those rules "mandatory." Attorneys for the plaintiff point to language in the statute that says voters "must" include that information.

Attorneys for the plaintiff began with two witnesses, a housepainter who volunteers for the Democratic Party and an appliance repairman and sometime candidate for local office in Seminole County, who both testified that the county elections chief did not let them bend election rules in the past.

The plaintiff's third witness was a former U.S. Treasury economist, J. Bradford DeLong, who used a statistical analysis of the absentee ballots to give the judge a few options if throwing out all 15,000 absentee ballots appeared too draconian.

The case has forced Bush's attorneys to flip-flop their arguments from all previous lawsuits, where they sought to prevent any counting of disputed ballots from south Florida. Ever since the election, the Bush team has said officials must follow the letter of Florida election statutes, arguing, for example, that Secretary of State Katherine Harris had no choice but to adhere to a seven-day deadline to accept election results.

But in the Seminole case, Bush attorney Richard has argued that the Florida legislature intended that "statutes should be liberally construed" so more voters could participate, exactly the opposite position he had taken in Sauls' courtroom.

Gore and his attorneys have kept their distance from this case, knowing that an effort to throw out thousands of votes would appear hypocritical given their insistence that every vote must be counted.

Meanwhile, nearly 10,000 absentee ballots from Martin County are being challenged in a similar suit. Lawyers for Bush asked Circuit Judge Terry Lewis to dismiss the case, saying that while ID numbers were added to ballot applications, there were no improper votes cast.

Courtroom Drama Begins in Case Asking Seminole to Toss Ballots
By Nicholas Kulish and Joni James
 
12/07/2000
The Wall Street Journal
Page A28
(Copyright (c) 2000, Dow Jones & Company, Inc.)

TALLAHASSEE, Fla. -- The latest courtroom drama in Florida's disputed presidential election got under way, with the lawyer for an aggrieved Democratic voter urging a judge to toss out more than 15,000 mostly Republican absentee ballots from Seminole County because they were tainted by "intentional wrongdoing."

By allowing Republican operatives to fill in missing information on thousands of already-signed but incomplete applications, Seminole 's elections supervisor Sandra Goard engaged in "a breach in the integrity and sanctity of the election process," said Gerald Richman, who represents the case's Democratic plaintiff.

Ms. Goard has denied ill motives or trying to help George W. Bush win. But Bush campaign attorney Barry Richard focused his defense on the paucity of evidence that any ballots in question were actually fraudulent. There is "no statute and no common-law authority that suggests the motive of an official has any bearing on the validity of a ballot," Mr. Richman said.

The opening statements outlined the issues at play in two separate trials that opened over similar allegations concerning the handling of absentee -ballot applications. The other case involves Martin County; in an unusual but practical move, the two cases took turns being aired during the day, with many of the same lawyers, but different judges.

Few facts are in dispute in the cases: Election supervisors in the two counties allowed Republican operatives to fill in voter identification numbers on applications that otherwise would have been rejected as incomplete -- actions the Democratic plaintiffs alleged violated laws aimed at preventing fraud.

The real dispute is whether the circumstances warrant the most-severe remedy sought by the Democrats -- tossing out a total of 24,988 votes. That would give Vice President Al Gore a net gain of 7,612 votes and a relatively comfortable lead over George W. Bush, who is now ahead by just a few hundred votes. The Democratic plaintiffs face a tough task in persuading the judges to, in effect, hand the election to the vice president -- if only because it is impossible to segregate ballots from voters who completed the applications themselves, so all would have to be tossed to cleanse the outcome of allegedly tainted ballots.

Acknowledging the severity of the remedy, the plaintiffs offered an alternative: With the help of a statistics expert, James Bradford DeLong, a professor of economics at the University of California at Berkeley, the plaintiff lawyers suggested erasing votes based on the number of disputed ballot applications, proportionately allocating the lost votes for each candidate by a formula taking into account that most of the allegedly tainted applications came from Republicans.

Under heated cross-examination, Mr. DeLong conceded that his calculations didn't include any allowances for voters who might have gone to the polls anyway if they hadn't received their absentee ballots because of defective applications. Republicans called only one witness, an attorney who inspected all Seminole absentee -ballot requests and found that some citizens whose requests had been turned down voted anyway.

The trials opened in separate courtrooms, with the two judges agreeing not to conduct proceedings simultaneously to accommodate lawyers involved in both. In the Martin County case, Judge Terry P. Lewis heard preliminary motions before sunup and recessed about 8:30 a.m., so the lawyers could file next door to the Seminole trial, before Judge Nikki Ann Clark. The judges subsequently agreed to share the same courtroom. Judge Clark heard testimony until 7 p.m. last night and scheduled oral arguments for today at 1 p.m. Judge Lewis reconvened the Martin County case at 8:10 p.m. and began hearing witness testimony.

Attorneys seeking to throw out the disputed ballots in Seminole County, on behalf of local Democrat and party donor Harry Jacobs and other voters, made some headway with their witnesses but didn't score any significant victories. The plaintiff's team attempted to show that Ms. Goard, the elections supervisor, in the past had been a stickler who refused to cut corners. An unsuccessful Democratic county-commission candidate told the court he once failed to persuade Ms. Goard to allow him to alter incomplete qualification petitions. "That was stated plainly that that was against the law; she could not allow that," Dean Ray testified.

Steven Hall, campaign manager for a local Democrat, testified that Seminole elections officials told him that any absentee applications lacking the voter registration number "would not be tolerated." In a deposition read in court, Republican Ronald Livingston said he was told in 1998 that "no one could add any information to an absentee -ballot request" when he tried to amend his own.

The law requiring applications to include voter registration numbers was enacted in the wake of absentee -ballot fraud in the 1997 Miami mayoral race. Both parties routinely send party loyalists mostly completed absentee -ballot applications to boost turnout, but those sent out by the GOP this year mistakenly left off the numbers.

Two Absentee Ballot Cases Argued in Fla. Courtrooms
Peter Slevin and James V. Grimaldi
 
12/07/2000
The Washington Post
FINAL
Page A25
Copyright 2000, The Washington Post Co. All Rights Reserved

TALLAHASSEE, Dec. 6 -- Lawyers for Democratic voters battled in two courtrooms today to prove that Republican election supervisors delivered an unfair advantage to Texas Gov. George W. Bush by allowing GOP workers to correct misprinted absentee ballot forms.

While Bush attorneys insisted that the work was a mere secretarial chore, ensuring that ballots would reach the citizens who had requested them, Democrats asserted that election workers in Seminole and Martin counties broke the law. As a result, they argue, thousands of absentee ballots there should be invalidated.

No final result was reached in the two cases, the latest of a dwindling number of chances for Vice President Gore to overtake Bush in the contest for Florida's 25 electoral votes. A similar case involving Bay County is being considered by a third Leon County judge.

The challenge for the Democrats, whose quest has been endorsed by Gore although he has not formally joined the case, is to show that the actions of GOP supervisors of elections broke the rules and changed the outcome of the presidential race. If so, the lawyers contend, the judges should throw out 25,000 ballots, even though most were properly cast.

"The real issue in this case is . . . to show that this was intentional and not merely carelessness or negligence," said Gerald Richman, who represents the Seminole County Democrat who filed the challenge. He spoke of the "felonious conduct" of elections workers and contended there was "absolutely, totally disparate treatment."

In a camera-studded Tallahassee courtroom now familiar to CNN and C-SPAN viewers, Richman today presented witnesses who described how Election Supervisor Sandra Goard allowed a Republican Party worker to use a desk inside her offices to correct 1,932 misprinted requests for absentee ballots.

Each form was correctly completed and signed by a voter, but because of a mistake by the company that produced the cards for the Republican Party, some were missing the required voter identification number. GOP staffer Michael A. Leach spent about 15 days correcting the forms by hand as election workers delivered them to him.

Seminole County lawyer Terry Young maintained that virtually no Democratic voter was hurt by Leach's actions. Although 742 ballot request cards were not processed, Young said most were from residents who eventually voted in person or obtained absentee ballots in another way. Only 70 to 80 people did not vote; not all were Democrats or qualified to vote in Seminole , Young said.

"The plaintiffs have done an absolutely excellent job . . . of making a mountain out of a molehill," Young said. "This case is being brought for one reason: to change the outcome of the election."

Young disputed the notion that Goard had consciously favored the Republicans to the harm of the Democrats and Gore. He noted that the ballot request forms sent to Democrats did not have a misprint. The Democratic Party, he said, "didn't need any help, they didn't ask for any help, they didn't make a mistake."

There was no fraud, lawyers for the Bush campaign argued. They said it would be a "draconian" solution to throw out all 15,215 Seminole County and 9,773 Martin County absentee ballots even if there were a technical violation of Florida's absentee voting laws.

"This is not a case where dead people voted. No votes were bought here," said Daryl Bristow, a Houston lawyer representing Bush. "The plaintiffs wish to suppress the votes of . . . innocents."

In keeping with the breakneck pace as the deadline nears for selecting representatives to the electoral college, lawyers for the two campaigns began doing battle at 7:10 a.m., just as the Tallahassee sun was cracking the horizon. The duel stretched into the night as the judges staggered their sessions to accommodate lawyers who appeared in both trials.

After Circuit Judge Terry P. Lewis spent 80 minutes on pretrial motions in the Martin County case, Circuit Judge Nikki Ann Clark convened in the courtroom next door and quickly outlined the key questions as she saw them in Seminole County.

First, she said, the court must conclude whether alterations in the ballot request forms can invalidate absentee ballots themselves. Second, she said must rule whether the two political parties were treated equally. If the ruling favors the Democratic challengers, she must figure out how to correct the error.

The two sides rested shortly after 7 p.m., and Clark set closing arguments for 1:00 p.m. Thursday.

In the course of the day, witnesses for Richman and his client, Democratic activist Harry N. Jacobs, spoke of what they called unfair treatment by Goard and her staff. Steven W. Hall, manager of a local Democratic campaign, said he visited Goard's office for information on absentee ballot applications and "did not feel welcome." Nor was he allowed the wide access that Leach enjoyed.

Democrat Dean Ray, a frequent candidate for office in Seminole County, testified that he had been prohibited by Goard from making corrections to voter identification numbers on his petition to run for county commissioner. He said he thought some names had been rejected because they lacked such a number.

"You tried to get those back for the purpose of correcting them?" Richman asked.

"That's correct," Hall replied.

After the election, when word emerged about the GOP corrections, an angry registered Republican, Ronald Paul Livingston, called Goard to complain about what he perceived as rule-breaking. Livingston said in pretrial questioning that he was "appalled."

"She said, 'Hey, if you don't like it, file a protest,' " Livingston said in a sworn deposition read in court.

If Clark rules against Seminole County and the Bush campaign, she must design a solution, aware that the state Supreme Court favors the right of voters to be heard if voting errors are only technical. Richman proposed that if the judge is unwilling to discard all the absentee ballots, she should apply a formula for rejecting a smaller number of votes.

Of the 1,932 requests that were altered, Richman said, 1,833 were submitted by registered Republicans, while 54 were sent by registered Democrats. A University of California at Berkeley statistician testified that 1,504 of the ballots resulting from the altered cards would have gone to Bush.

Barry Richard, an attorney for Bush, scoffed at the notion, saying there is no way to know how each voter voted.

"Wouldn't it be easier," Richard said, "if we just adopted your formula and skipped all this voting business?"