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Election 2000: Former FEC Attorney Jan Baron Discusses Florida Recount

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

STEPHEN FRAZIER, CNN ANCHOR: As the recount continues in Florida, you heard our Jonathan Karl say both Democrats and Republicans are keeping a careful watch over that procedure. And there have been allegations of irregularities at the polls, and at least three voters have filed lawsuits asking for a new election.

The election observers for the Bush and Gore campaigns addressed the issue this morning here on CNN.

(BEGIN VIDEO CLIP)

JAMES BAKER, OBSERVER FOR BUSH CAMPAIGN: I haven't heard any allegations of fraud or that sort of thing. I've heard some suggestions that a ballot was confusing, a ballot that a Democratic -- elected Democrat election supervisor approved, a ballot that the former which had been used in prior elections. So I think we need to back off here a little bit in terms of threatening lawsuits, filing lawsuits and hurling charges.

WILLIAM DALEY, GORE CAMPAIGN CHAIRMAN: Oh, already there's been suits filed. And I would imagine this will continue for a while, as it should. The heart of our democracy is the election and people participating in the election. And as we move forward, some will try to create an air of crisis. There is no crisis, and that would be inappropriate and unfortunate if people try to do that.

(END VIDEO CLIP)

KAGAN: And now for a little more perspective on the recount in Florida, we're joined by Jan Baron. He is a former FEC attorney. He also served as general counsel of the Republican National Committee from 1989-1992.

Mr. Baron, good to see you. Thanks for joining us.

JAN BARON, FORMER FEC ATTORNEY: Good morning.

KAGAN: First of all, did you have a chance to hear Pat Buchanan's comments this morning. Now even he is saying he thinks a lot of the votes that came in for him in Palm Beach County actually were intended for Al Gore.

BARON: Well, that's going to be the $67,000 question here. Fortunately for Florida, they have a pretty good procedure in place under their laws. And they have, like many other states, a two-step process. The first step is what's called a recount, and that's going on right now. That is a fairly mechanical, mathematical process where they literally retabulate all the ballots that were cast on Tuesday.

KAGAN: And that was called for because a state law that says that if less than one-half of 1 percent difference between the two candidates, then you have to go ahead and recount. What if we go through this whole thing again and it's still the same way?

BARON: Well, we will have new figures released, according to Florida election officials, late today, and then we will compare the numbers that they released after the first count. There is a period of time of about 10 days in which the candidate or any voter in Florida can take a further legal step, which is to file a contest or to contest the election results, which they can do by filing a complaint with a trial court in the state of Florida.

KAGAN: And we're already getting word of some of those lawsuits being filed. If somebody does that, what is the burden of proof? What do they have to show in order to bring about some kind of action?

BARON: Right. Well, they have to show two things, and they have to prove it just like you would in any trial that goes on around the country. The first thing that they would have to prove is that there was something that went wrong, a misadministration or an error of some sort.

KAGAN: Does it have to be malicious?

BARON: It does not have to be malicious. I mean, mistakes happen and they would have to show that there are mistakes. If something that -- malicious did occur, if there was some fraud -- and there have been no allegations of fraud thus far -- then that -- evidence of that type of malfeasance can be presented as well.

But the second step is really the critical thing and usually the most difficult element to prove in these types of contest. And that is that the plaintiff has to demonstrate that there's a clear reverse result from the mistake or the fraud, that the election will come out differently.

So it's one thing to come in and prove that there was confusion or that there were mistakes, but the second element here is to prove that because of this confusion or because of the mistakes, certain votes clearly should be counted in a different way; either they should be counted because they were not counted before or they should be taken from the column of one candidate and put into the column of another candidate.

KAGAN: So this will...

BARON: And that requires very convincing evidence.

KAGAN: Real quickly, is there, then, precedent of an election being thrown out and then having -- maybe not on a presidential level -- but having an election all over again?

BARON: There is not any that I'm aware of in Florida and that is unusual. The last time I have heard of such an instance was in 1975 with the election for senator in the state of New Hampshire. And that's a slightly different legal procedure, but the United States Senate declared that the 1974 election in New Hampshire was inconclusive and they required New Hampshire to have a new election for senator.

KAGAN: I think the word you used there, "unusual," would certainly be applicable in this case. Jan Baron, thanks for stopping by and giving us some perspective. Really appreciate it.

BARON: My pleasure.

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