Florida Legislature to Hold Special Session to Appoint Electors
BERNARD SHAW, CNN ANCHOR: We are awaiting resumption of the Seminole County absentee ballot case in the courtroom of Judge Nikki Clark, Leon County Circuit Court judge. As soon as -- well, here she is.</s>JUDGE NIKKI CLARK, LEON COUNTY CIRCUIT COURT: Mr. Richman, are you closing your case?</s>GERALD RICHMAN, ATTORNEY FOR PLAINTIFF: We have just two minor items, no more witnesses, Your Honor. We've got to just introduce exhibit No. 1, which is just a handwritten chart from Sandra Goard that relates really to the photograph that shows where it was Mr. Leach was sitting.</s>UNIDENTIFIED MALE: No objection.</s>CLARK: Admitted.</s>UNIDENTIFIED MALE: No objection.</s>RICHMAN: And I believe that the exhibit No. 27 never got into evidence, according to our notations, and</s>CLARK: What is 27?</s>RICHMAN: Twenty-seven is the second protest form, I believe, that was signed by</s>CLARK: OK, I think I made it 20 through 27. But in -- if didn't, I intend to.</s>RICHMAN: OK,</s>CLARK: OK.</s>RICHMAN: And lastly, your honor, we would move that the</s>UNIDENTIFIED MALE: Brief response, your honor?</s>UNIDENTIFIED MALE: Well, same objection, your honor, for the record</s>CLARK: I'm not sure that the pleadings need to be amended in order for you to continue arguing your case.</s>RICHMAN: I would agree, your honor, but if they do in an abundance of caution we would simply ask that -- that the amendments conform with the...</s>CLARK: I don't think they do, and I'm going to deny that request. Do you have anything further at all on your case?</s>RICHMAN: Nothing further, your honor.</s>CLARK: Other motions?</s>TERRY YOUNG, SEMINOLE COUNTY CANVASSING BOARD ATTORNEY: Yes, your honor, on behalf Seminole County and Sandra Goard we would at this time make the motion for involuntary dismissal and direct</s>BARRY RICHARD, BUSH CAMPAIGN ATTORNEY: Your honor, George W. Bush and Richard Cheney join in the motion and also request for argument.</s>UNIDENTIFIED ATTORNEY: Your honor as the secretary of state elections commissioner.</s>UNIDENTIFIED ATTORNEY: Your honor, same with the Republican Party of Florida. We would rely on the arguments yesterday.</s>UNIDENTIFIED ATTORNEY: Your honor, the absentee voters also joined relying on our arguments in the memorandum and the arguments yesterday that the remedy requested is impossible to be granted by constitutional offer. There is no evidence to suggest that can be granted after this testimony.</s>CLARK: As to the motion for voluntary dismissal and/or motion for directed verdict, I will reserve ruling on that. Is the defense prepared to proceed with its case?</s>UNIDENTIFIED ATTORNEY: Yes, your honor.</s>CLARK: Call your first witness, please.</s>UNIDENTIFIED ATTORNEY: I believe Mr. Richard and I have reached a partial stipulation, I want to consult with him on one of the</s>YOUNG: Your honor, I believe Mr. Richard and I have reached a stipulation with respect to Mr. Jacob's testimony. Rather than calling him live or reading portions of his deposition in subject to Mr. Richman's objection that he made in the form of a motion (OFF- MIKE) relevance and materiality, I believe, which was stipulated, Mr. Jacobs, as admitted to deposition testimony that he donated approximately $50,000 of his own money to the Gore-Lieberman campaign; he financed the production of a television spot that was critical of Mr. Cheney, it cost him also approximately $50,000; and he solicited funds on behalf of the Gore-Lieberman campaign.</s>RICHMAN: Your honor, in response to that, what I reserved is an objection as to relevancy. Mr. Jacobs has not testified and he has no relationship to the issues involved in this case as to what he did because this case is submitted to your honor on the merits. So I object to that testimony going in. And also, one correction on the stipulation is no contribution was made to Gore-Lieberman, the contribution was made, as I understand it, to the Democratic National Committee.</s>UNIDENTIFIED ATTORNEY: That's fine.</s>RICHMAN: Still maintain the objection on the grounds of whether it's relevant to any issue whatsoever in this case.</s>UNIDENTIFIED ATTORNEY: Your honor, it's our position it's relevant to him as the plaintiff in the action and (OFF-MIKE) credited with respect to the prosecution of this action.</s>CLARK: I think that the evidence that you're speaking of, which was the subject of a motion (OFF-MIKE) yesterday -- I think that that evidence is relevant for cross-examination because it goes to possible proof of bias or interest. Is your client intending to take the stand at all? Are you calling his client?</s>RICHMAN: No, your honor, we're not. That's why I think it's totally irrelevant.</s>CLARK: Are you calling Mr. Jacobs?</s>UNIDENTIFIED ATTORNEY: My suggestion, to expedite this afternoon's trial was to so stipulate rather than me calling (OFF- MIKE) party for the purpose of cross-examining him on those points.</s>CLARK: And I understand that. My concern is that I believe that the evidence that you're intending to -- that you're seeking to introduce is only relevant as it goes to cross-examination of Mr. Jacobs' credibility. That is, that it can be introduced as proof of bias or interest, but I don't think it has any relevance otherwise.</s>RICHMAN: That's precisely our position, your honor.</s>UNIDENTIFIED ATTORNEY: Your honor, the next witness we will call is -- Mr. Johnson is going to read into the record and identify by name (OFF-MIKE) certain deposition testimony and read into the record certain pages and lines of that deposition and only those pages and lines for consideration by the court. We will not read any of the testimony whatsoever.</s>CLARK: Repeat it, then. This is deposition testimony of which witness?</s>UNIDENTIFIED ATTORNEY: This is deposition testimony of employees of the office of the supervisor of elections, my client taken by Mr. Richman and some portions of other questions asked by other counsel.</s>CLARK: And you're reading excerpts from those?</s>UNIDENTIFIED ATTORNEY: We're not going to read the excerpts, we're just going to identify in the records -- into the record, the portions that we would like considered, no different than the excerpts handed up by Mr. Richman.</s>CLARK: OK, I'll ask you just to take your time doing that, so that the clerk can be handing me the depositions as you identify which portions you want me to consider.</s>UNIDENTIFIED ATTORNEY: Mr. Johnson will take great care in that.</s>CLARK: I'm sorry, what's your name?</s>THOMAS JOHNSON, ATTORNEY: Thomas Johnson.</s>CLARK: OK; Mr. Johnson, I've been advised that we don't have depositions that have been -- that are in file.</s>SHAW: As we watch what is happening in the courtroom of Judge Nikki Clark, we want to call in David Cardwell and Kenneth Gross, CNN election analysts, to talk about something very dramatic that occurred here and we carried live just a short while ago: the Republican leaders of the Florida legislature indicating that they're going to call a special session. And this is step one to potentially naming a slate of electors to come to Washington, and potentially the state of Florida could have two different slates of elector.</s>KENNETH GROSS, CNN ELECTION LAW ANALYST: That is a very dramatic development. We've seen it brewing for days now, and now the Senate leader has come on board, and it's something they are committed to doing. And this is really the first time we've seen this happen in well over a century. The idea here is that the will of the people is the state law in Florida. That's who's supposed to pick the electors. And now the state legislature is just going to pick them apparently. And that is a dramatic clash of the judiciary, which may rule one way, and the legislature ruling another, which is a separation of powers issue. That's something we haven't seen in any of our lifetimes.</s>SHAW: David, your thoughts?</s>DAVID CARDWELL, CNN ELECTION LAW ANALYST: Well, as Ken mentioned, we've seen this coming for some time. There's been a lot of discussion about the legislature going into special session. I found the timing to be quite interesting. There had been reports of it primarily from House Speaker Tom Feeney for several days, but it's interesting that they had their press conference and signed their proclamation late in the day before the oral arguments before the Florida Supreme Court tomorrow on the appeal from Judge Sauls' ruling denying the contest by the Gore campaign. I believe this was another effort by the legislature to kind of send a signal to the Florida Supreme Court saying, don't forget about us, we're over here on the other side of the street from you, and if we don't like what you do, we may try to overturn it legislatively. And the schedule they've laid out is to convene on Friday so that they can get organized and have their initial introduction of bills or a joint resolution, have a committee meeting on Monday so they don't have to suspend the rules, and then bring it before the legislature on Wednesday, which is after December 12th and when they think they can act unilaterally.</s>SHAW: Well, both of you gentlemen step back for a moment and reflect on what the leader of the Democrats in the House, Lois Frankel, said in a news conference that we carried live a short while ago. She alluded to the fact that there's a love-hate relationship between the Republican- controlled legislature and the Florida Supreme Court, but then at one point she said that it's wrong for the Florida legislature to elect the next president of the United States, and she said that history would not treat Florida kindly. Historically, how significant is what's happening now?</s>GROSS: This is very significant historically. In fact, the last time we had a legislature pick electors as a permanent matter or at least during a period of time was South Carolina. That was from 1824 to 1860. That was before the Civil War. There are a few other isolated instances in the 1800s, as Colorado was entering the Union when they didn't have enough time to have a vote, they picked the slate of legislators. But those were just little aberrational instances. Nebraska did it. So this is very, very historic, and I think is going to have repercussions.</s>SHAW: A thought from you, David?</s>CARDWELL: Something we should -- yes, something we should keep in mind is that the so-called "certificate of ascertainment," which is the document signed by the governor, Jeb Bush, which identifies the electors that have been selected by Florida pursuant to state law has already been transmitted and received by the archivist of the United States in accordance with federal law. What remains to be seen is does the legislature, if they do take action, basically just adopt the same slate of electors, send two slates up to Washington: one which would be certified by the governor, and the other, which would be approved by the legislature.</s>SHAW: And one of the Republican leaders indicated that he didn't know whether it was clear at this point whether Governor Bush would have to sign whatever it is they conclude legislatively. Our live coverage...</s>CARDWELL: That's true...</s>SHAW: ... of what's happening -- yes, please, go ahead.</s>CARDWELL: I was going to say that's true, because there are two different federal statutes that they're operating under between the certificate sent by the governor and the legislation taking action after December 12th. So there is kind, as we've come to expect throughout this election, there's a little bit of legal uncertainty there.</s>SHAW: A dramatic and interesting turn of events. Our live coverage of what's happening in Florida will resume in a moment.