Another Florida?

This is a partial transcript from "On the Record," Oct. 21, 2004, that has been edited for clarity.

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GRETA VAN SUSTEREN, HOST: What else is waiting for us on November 2? Joining us from Los Angeles is Rick Hasen an election law professor from Loyola Law School. And here in Washington is election law analyst Ken Gross. And Ken, of course, spent a lot of time with me in — I’m talking about Florida four years ago so let me start with you Ken.

Any risk we’re going to have a Florida-like problem this November 2?

KEN GROSS, ELECTION LAW ANALYST: Unfortunately we are seeing symptoms already of the possibility of Florida-like problems. We have punch cards. They’re going to be used by three out of every four voters in Ohio, the same kind of technology that was used in Florida.

And we have some new features now, something called the provisional ballot, which is going to be given out to people whose names aren’t on the rolls when they come to the polls and there’s been litigation in almost all the important swing states over that alone.

VAN SUSTEREN: Rick, what do you think? Do you agree with Ken that we’re going to have potentially problems?

RICK HASEN, ELECTION LAW EXPERT: Well, I think that there’s a potential for problems but what we really need is a perfect storm. What has to come together is a problem on Election Day in a place that matters to the electoral council, a battleground state.

It has to be a big enough problem that it makes a difference. If there are 300 votes that for some reason don’t get counted but the margin is 10,000, it’s not going to make a difference in the outcome of the election.

VAN SUSTEREN: Except what Ken just said that caught my attention is the famous name Ohio and that’s the state when you look at the polls, you know, it’s neck-and-neck in Ohio, Rick.

HASEN: Yes, it is neck-and-neck in Ohio. One of the big questions, which Ken mentioned, is this provisional ballot question. There’s going to be a hearing next week before the Sixth Circuit Court of Appeals on this question of whether or not certain of these provisional ballots can be counted and I look at this as he most dangerous issue.

We’re going to go into election day potentially not knowing what the rules are going to be for a whole stack of ballots that are going to need to be counted afterwards to see which are valid and which are not.

VAN SUSTEREN: You know, Ken, it’s hard to imagine that we can’t get this right. I mean we certainly were on notice four years ago of this problem.

GROSS: This was so slow in the works. The Congress passed legislation called the Help America Vote Act. They allocated $3.9 billion but that didn’t mean the money was there. It took a while for the money to be appropriated. Then it has to be allocated by an agency, the Elections Assistance Commission, which they didn’t get together until this year.

So, the money never got to the places that they needed it to upgrade the equipment in many instances and the voter registration rolls, 41 states have asked for waivers to bring their equipment up to snuff.

So, people are going to walk into the polls, say okay I want to vote and they’ll go "You’re not here," and then you’re going to get this provisional ballot and maybe it will count. Maybe it won’t count depending on whether that process is administered correctly.

VAN SUSTEREN: What about the electronic touch screen voting that they have in Florida, Ken?

GROSS: Well, it will certainly be better than the butterfly ballots and the hanging chads, but they’ve been running tests on that. Theresa LePore, the designer of the butterfly ballot herself is still in Palm Beach. She’s run a couple of tests on the electronic equipment.

It blew up a few times during the trial. There have been problems already because they’re voting now. They’re already voting in Florida, so it’s no — it’s by no means a perfect solution.

VAN SUSTEREN: Rick do you like the early voting idea? I mean Florida has already started their voting.

HASEN: Well, in the one sense it’s good that people are having a convenient way to cast their ballots. I think we’re seeing in some states 20 to 30 percent of people casting absentee ballots.

Making voting easier is a good thing to the extent that we want to get maximum turnout. Then there are other questions that arise in terms of the security of the ballots, and so we still need to keep our eye on the process now, not just on election day but for a two-week period before election day as well.

VAN SUSTEREN: And, of course, the Amendment 36 in Colorado in the event that there’s a division in terms of how to — explain what that is.

GROSS: Well, that’s an interesting provision. They have a ballot on the ballot — a ballot measure on the ballot in Colorado that says if it’s close and this passes all nine votes, electoral votes from Colorado won’t go to the winner. They’ll split them.

So, say Bush wins by a small margin, he would get five and Kerry would get four. Well, if that happened in Colorado last time with Bush and Gore, those four votes, even as a loser in Colorado would have been enough to bring Gore over the top.

Now, I don’t know if this is going to pass. Recent polls have indicated that that provision may not go through and, if it does go through and it makes a difference, there will be litigation over that as well.

You have to remember the one real difference is we have 10,000 lawyers on the ground for each party, 2,000 Democrat lawyers and 2,000 Republican lawyers in Florida alone. With that many lawyers you’re going to see legal action.

VAN SUSTEREN: And, of course, there are going to be two more lawyers, you and I, Ken, we’re going to be doing the coverage here on November 2 for FOX News on the legal problems if there are any that night. Gentlemen, thank you both very much.

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