updated 10/22/2004 10:18:27 AM ET 2004-10-22T14:18:27

Guest: Dean Johnson, Gary Casimir, Adam Nichols, David Boies, Theodore Olson

DAN ABRAMS, HOST:  Coming up—the battleground states.  The must-wins for President Bush and Senator Kerry.  Tonight we take on the legal battleground. 

(BEGIN VIDEOTAPE)

ABRAMS (voice-over):  From Ohio to Florida, Nevada to Pennsylvania, state-by-state we pinpoint the big legal issues in this election and ask the two lawyers who argue Bush v. Gore which issues in which states could make or break the election. 

And Scott Peterson’s attorneys call a judge to the stand who said the day before Laci was reported missing, a man came to his door asking for money.  The defense saying maybe this mystery beggar was casing the neighborhood. 

And the woman accusing Bill O’Reilly of sexual harassment speaking out, saying O’Reilly is mounting a sleaze campaign against her.  We’ll find out exactly what she’s saying. 

The program about justice starts now. 

(END VIDEOTAPE)

ABRAMS:  Hi everyone.  First up on the docket tonight, Scott Peterson’s murder trial from Laci sightings and baby Conner’s age to beggars in the Petersons’ neighborhood just days before Laci was reported missing.  The defense team not only chipping away at the state’s case, they’re piecing together its own evidence seemingly to try to prove that Laci was abducted while walking her dog. 

Let’s go right to the courthouse.  Live report from our friend KCRA reporter Edie Lambert who’s been in the court throughout the trial.  Take it away Edie. 

EDIE LAMBERT, KCRA REPORTER:  Dan, let’s start with the age of baby Conner.  That is a critical battleground in this case and we’ve seen it in court this afternoon.  The exchanges have been very heated.  First, let’s set up the background. 

The jury has already heard from the prosecution’s expert who said that baby Conner was likely killed on the exact day that Laci was reported missing.  Today they heard from the defense expert.  He is OB-GYN Dr.  Charles March.  He looked at the exact same medical records and he said he had a different day for Conner’s death.  December 29 at the very earliest. 

Of course, the defense will point out that by that time Scott would have been under fulltime surveillance.  If Conner died on December 29 or later there is no way that Scott could have been the perpetrator of that crime.  However, again I go back to this being an important witness.  The cross-examination has been tough and it’s been heated. 

D.A. Dave Harris has really put this doctor on the defensive, including getting him to admit that part of his calculation was based on a pregnancy test that Laci told a friend about the day after someone else’s baby shower.  He used that to calculate the date of conception.  And the cross-examination is still underway right now.  Again Dr. March, the most important witness today. 

Another witness we heard from earlier is a judge who presented possibly another theory who could have abducted Laci Peterson.  He lives in the same neighborhood as the Petersons and he said the night before Laci was reported missing a man knocked on his door and asked for money.  He thought it was suspicious and thought perhaps this man was casing the neighborhood looking for homes to rob during the holidays. 

And finally Dan, it looks like the defense may be adjusting their case.  Yesterday the judge told the jury they would definitely be in court for a rare day of testimony on Friday.  Today after some closed-door hearings he came out and said actually no court on Friday and it looks like everything is back on track.  The jury is still on schedule to get the case and begin deliberations on November 3.  Back you to. 

ABRAMS:  That’s before or after Scott Peterson takes the stand, Edie?  Just kidding.  All right.  Edie stick around for a minute.  Let me bring in to—criminal defense attorney Gary Casimir and former San Mateo County prosecutor Dean Johnson, who has been at that courthouse everyday.

All right.  Before I go to you guys, here’s what Mark Geragos has said about this issue of the age of the baby, crucial issue for the defense. 

(BEGIN VIDEO CLIP)

MARK GERAGOS, SCOTT PETERSON’S ATTORNEY:  The one thing he just won’t

deal with, they just will not get their arms or their head around is the

fact that that baby grew for anywheres from three to seven weeks.  They

can’t get around that and the fact of the matter is until they deal with

that, they’re never going to find out who did this

(END VIDEO CLIP)

ABRAMS:  Dean, this is crucial.  I mean if this defense team can show that that baby was born December 29 or afterwards, Scott Peterson couldn’t have done it. 

DEAN JOHNSON, FMR. SAN MATEO COUNTY PROSECUTOR:  Absolutely.  This is the crucial battleground for this case, and the make-or-break witness.  And this witness has testified that he disagrees with a former colleague, Dr.  Devore, who testified for the prosecution.  Dr. Devore said this baby had to have died before December 24, supports the prosecution theory.  Dr.  March has now shifted that six days and said the baby had to have died around December the 29th, which means Scott Peterson must be innocent. 

The problem is cross-examination.  For once, the prosecution has come forward with a cross-examination when they needed it.  They’re making Dr.  March look like a monkey.  He’s testified that contrary to all the medical records, what he’s relying upon for his critical date of conception is—excuse me—a statement by one of Laci’s friends about what Laci said at a baby shower. 

ABRAMS:  Yes. 

JOHNSON:  And he’s even got the date of the baby shower...

ABRAMS:  Gary, what kind of science is that? 

GARY CASIMIR, CRIMINAL DEFENSE ATTORNEY:  Well, you know, those home pregnancy tests actually, Dan, are 90 percent or 98 percent reliable.  I’m not saying that, you know, this is the best way to go in terms of presenting to the jury...

ABRAMS:  Particularly when you’re talking...

(CROSSTALK)

ABRAMS:  ... about hearsay, right? 

(CROSSTALK)

CASIMIR:  I’m sorry...

(CROSSTALK)

JOHNSON:  Yes, yes, yes, but wait a minute Gary.

ABRAMS:  Hang on.  Hang on.  Particularly when you’re talking about hearsay, Gary, right?  I mean someone telling someone that’s the date I took my test and then the scientist effectively coming in and saying well that’s what I’m basing it on. 

CASIMIR:  Yes, obviously they’re using hearsay to do it.  There’s no doubt.  But you’ve got to remember what Geragos is trying to do here.  He doesn’t have to prove beyond a reasonable doubt that the baby was (UNINTELLIGIBLE) five days later.  He’s got to put a nice doctor up there with some scientific credentials to help make his case.  Remember he opened on this.  He had to put this guy—he had this guy all the time...

ABRAMS:  Oh yes.  No...

(CROSSTALK)

ABRAMS:  ... no question he was the right guy to put on.  I mean but no one is challenging Geragos for trying to make this argument.  What we’re going to do, though, is cut through this sort of superficial niceties and talk about whether it actually makes sense...

CASIMIR:  Well it doesn’t...

(CROSSTALK)

CASIMIR:  ... it’s not completely irrelevant or it doesn’t completely make no sense.  Most people...

ABRAMS:  It doesn’t make no sense. 

CASIMIR:  Let me explain, Dan.  Most people in this country use these pregnancy tests.  You can’t deny it.  It is clear most women in this country who think...

ABRAMS:  Yes.

CASIMIR:  ... they may be pregnant, use it.  They’re 98 percent reliable.  Trust me.  Women on the jury are looking at this evidence with particular interest...

ABRAMS:  All right.

CASIMIR:  ... because it is used by so many people...

JOHNSON:  Oh, but Gary...

ABRAMS:  Dean, final word on this issue...

JOHNSON:  But Gary, yes, first of all it’s double hearsay.  Secondly, let’s assume those pregnancy tests are reliable.  You’ve got to know when the pregnancy test was given and the doctor was asked you’re assuming that the pregnancy test was given on the same date as the baby shower.  What’s your basis for that assumption?  His answer?  You know how women are.  What?

CASIMIR:  What?

ABRAMS:  All right. 

(CROSSTALK)

CASIMIR:  ... absolutely true, but...

UNIDENTIFIED MALE:  What?

CASIMIR:  Dean, it would have to be before the baby shower then that helps their case. 

ABRAMS:  All right...

CASIMIR:  If it’s before the baby shower...

JOHNSON:  That’s not what...

ABRAMS:  All right, let me move on...

JOHNSON:  ... the good doctor...

ABRAMS:  ... to this issue about...

CASIMIR:  It’s either the day of or the day before.

ABRAMS:  Let me move on to this issue about this the judge who testified today that someone came to his door on December the 23rd, the day before Laci goes missing and is asking for money.  Dean, you know, how significant—how close did this judge live to where Laci and Scott lived? 

JOHNSON:  He lives sort of down the street and around the corner.  The neighborhood transitions from Covina to a somewhat more affluent neighborhood around the park.  It also, oddly enough though, is a fairly high-crime area.  There are a lot of transients; a lot of people who often will hit you up for money and this is just the theory de jour.  Now we have some mysterious guy who’s panhandling, claiming his girlfriend...

ABRAMS:  You know...

JOHNSON:  ... is stranded or something...

ABRAMS:  You know, Gary, look...

JOHNSON:  ... and it’s just—it’s another one of those theories...

ABRAMS:  Gary, I know what you’re going to say and you’re going to make the same point you made before, which is—it’s a fair point.  As a legal matter, it’s not Mark Geragos’ obligation to say what happened.  It’s only his obligation to say my guy didn’t do it.  Understood.  But with that said, there are a lot of theories being thrown out here and some of them are inconsistent with other ones.  Do you think that that’s not a problem? 

CASIMIR:  No I don’t think it’s a problem, not for the defense.  Not at all because, you know, everybody’s throwing theories out.  The prosecution has a theory of how this happened.  Unfortunately, for them they have to stick to it.  The defense does have what you say the opportunity just to attack it bit by bit.  But to have a judge put on the stand in front of a jury, he has got that credibility of being a judge. 

The idea overcasting this entire trial is that if not Scott, who?  Who could have done this if it wasn’t Scott?  And Geragos has to just be able to suggest listen, we’ve got transients walking around.  We’ve got people who are capable of committing crimes, breaking into your house, doing this sort of thing...

ABRAMS:  But Gary, think about...

(CROSSTALK)

ABRAMS:  ... think about that argument in like in New York City, right...

CASIMIR:  (UNINTELLIGIBLE)

ABRAMS:  ... and saying like there were a lot of people in New York City who could have committed this crime and then not saying why they actually did it.  Right?  I mean I would assume in every case then in New York City people could say have you been to some high-crime districts.  There are so much crime in big cities in America.  Think about the thousands of people who might have done this.

CASIMIR:  Absolutely.  But there’s a big difference here and I’ll tell you what it is.  The perception is, if not him, who did it?  In fact and the other side of that is, in New York City, there are dozens of crimes, dozens of murders that go unsolved all the time and a husband doesn’t get arrested or the boyfriend or the brother.  So it’s not impossible that a stranger might have done the crime. 

ABRAMS:  No it’s not impossible. 

CASIMIR:  So that’s the point. 

ABRAMS:  All right.  It’s not impossible.  All right.  Edie—let me check in with Edie again.  All right.  Edie, what are we expecting?  They’re saying that they’re still going to finish this case by next week.  Does that include a prosecution rebuttal case?  Because the prosecution is still going to get an effort to respond, if they want to, to this defense testimony. 

LAMBERT:  You know there has been some speculation, Dan that the prosecutors would not put up a rebuttal case.  I think we heard very clearly today that they plan to.  One of the witnesses was on the stand, Kevin Berdalatto (ph), and the D.A. Rick Distaso said specifically can I ask three questions that were not included in direct just so I don’t have to call him back for my rebuttal case.  That suggests there will be a rebuttal case.  And my best guess I think is that we can infer the defense must be dropping witnesses here if they’re able to stay on the same timeline. 

ABRAMS:  Yes.  All right.  Well, look we expected a kind of short case from the defense.  They presented much of their case in the cross-examination of prosecution witnesses.  And according to people who were there, they, you know, they did as good a job as they could have and so maybe that’s just going to happen. 

All right.  Edie Lambert, Gary Casimir, Dean Johnson, thanks a lot.

Coming up, the woman accusing Bill O’Reilly of sexual harassment now says her 74-year-old father is ready to fight as well and that he’d like to challenge the Fox News host to a dual.  We’ll get the latest from the case with a reporter who just sat down with Andrea Mackris.

And attorneys deployed across the country to try to avoid or to repeat Bush v. Gore, depending on how you look at it.  The question, is this necessarily going to be decided in the courts?  We’ll do state-by-state.  We’ve got two attorneys who took each other on at the Supreme Court in 2000.

Your e-mails abramsreport@msnbc.com.  Please include your name and where you’re writing from.  I’ll respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, Bill O’Reilly’s former producer says the Fox News host is waging a sleaze campaign against her.  She’s speaking out.  We’ll talk about what she said, coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

RON GREEN, ATTORNEY FOR FOX NEWS & BILL O’REILLY:  No, is that she told a colleague from whom we have a sworn statement in August of 2004 that she had done the lawyer thing, was going to get $1 million from Bill O’Reilly and buy the apartment in New York City she always wanted and couldn’t afford. 

(END VIDEO CLIP)

ABRAMS:  That was Ron Green, an attorney for Bill O’Reilly and Fox News.  I talked to him last night about the sexual harassment suit brought by Andrea Mackris, a producer on O’Reilly’s show and the suit his clients are bringing against her for extortion.  Remember Andrea Mackris went public with her lawsuit last week and included some pretty racy details about explicit conversation she said she had with O’Reilly in person and on phone. 

But before her suit was even filed, O’Reilly and Fox slapped her with an extortion lawsuit claiming she and her attorney wanted $60 million in hush money.  Mackris has amended her complaint twice to include new allegations of retaliation, claiming O’Reilly and Fox cost her, her job.  They’ve launched a smear campaign against her.  They’re threatening her, et cetera. 

My next guest had a chance to speak with Andrea Mackris this week for her first extensive newspaper interview.  Adam Nichols with the New York “Daily News” joins me now.  Thanks a lot for coming on the program.  We appreciate it. 

ADAM NICHOLS, “NEW YORK DAILY NEWS”:  OK. 

ABRAMS:  All right.  So we had Mr. Green on the show yesterday and you know he’s basically saying look, this is all nonsense that she’s out to get him.  Did you get the sense that she knew or appreciated how much she was going to effectively be put on trial when she filed this lawsuit? 

NICHOLS:  No.  I got the impression, despite her working in television herself, I got the impression that she’s quite shocked by the extent of newspaper coverage and the TV coverage she’s been getting.  And she said it was never her intention to try the case in the media.  She wanted to settle it privately behind closed doors effectively. 

ABRAMS:  Does she seem—you know what is her sort of—we read your article.  How does she seem?  Does she seem angry?  Does she seem sad?  Does she seem like she still likes Bill O’Reilly? 

NICHOLS:  A bit of all of them, I think.  I think Ms. Mackris obviously had a lot of admiration for Bill O’Reilly before all of this happened.  But she says that he came out with these allegations and she’s very angry about those.  She also said she’s sad.  She’s sad that this had to happen and she’s sad that she no longer works at Fox News.  She said she misses her work colleagues and she misses...

ABRAMS:  Yes.

NICHOLS:  ... going into the newsroom there. 

ABRAMS:  What about the allegation that this was all a setup?  That she worked at Fox, she goes to CNN and some of her—some of the O’Reilly supporters are saying look she decided she was either going to write a book or she was going to, you know, get back at O’Reilly.  She goes back to Fox.  She has this thing planned so she can make some money and that she went forward with it.  How did she respond to that? 

NICHOLS:  Well she told me she had no ax at all to grind with Bill O’Reilly and she said she went back to Fox because she wasn’t happy at CNN.  That was the only reason for it and...

ABRAMS:  What about the fact, though, that she said she was sexually abused—sorry, not sexually abused—that there was harassment...

NICHOLS:  Harassment...

ABRAMS:  ... yes, earlier before she left to go to CNN, so then why’d she go back? 

NICHOLS:  Yes, she said—she did talk about that.  She said this harassment was there but it was a much smaller level.  When she went back after CNN, went back to Fox, she said it ratcheted up and it became—it crossed the boundaries, she said.  It became too much of a problem and she decided she had to do something about it. 

NICHOLS:  Does she have tapes? 

NICHOLS:  She won’t tell me. 

ABRAMS:  Do you know why they won’t talk about—I mean I don’t really get it...

NICHOLS:  Well...

ABRAMS:  ... why they won’t admit whether they have tapes or not.

NICHOLS:  Her lawyer and Andrea herself both says this is in their court now; they want to handle the timetable.  They want to release this stuff when they’re ready to do it.  They say they won’t have their hand forced by Bill O’Reilly and by Bill O’Reilly’s legal team.  So—but first of all, I mean they’re not accepting (UNINTELLIGIBLE).  They haven’t said publicly we have tapes.  They’re not saying they have and they’re not denying they have.

ABRAMS:  Yes.  I don’t know what to make of...

(CROSSTALK)

ABRAMS:  All right.  But basically, it sounds like—did you did you come into this sort of thinking one side or the other might be more right about it? 

NICHOLS:  No, I’m neutral in this.  I’ll speak to both sides and I’ll report what both sides are telling us.

ABRAMS:  Yes.  Well that’s what we’re doing.  We had Mr. Green on, the attorney for Bill O’Reilly.  We had him on yesterday.  Adam Nichols...

NICHOLS:  Yes.

ABRAMS:  ... spoke with Ms. Mackris and have him on today.  Adam, thanks a lot for taking the time.  We really appreciate it.

NICHOLS:  OK, no problem.

ABRAMS:  Coming up, how can you forge this?  Florida election officials counting, recounting votes in the 2000 presidential election.  Lot of states trying to take precautions to—so it doesn’t happen again.  But are they really?  We get some thoughts from two attorneys that took the 2000 election all the way to the U.S. Supreme Court about how big a disaster this one might or might not become. 

(COMMERCIAL BREAK)

ABRAMS:  You’ve heard a lot about battleground states where polls say the presidential election might be decided.  We’re going to look at some of the legal battles in those battleground states to assess if these issues really could determine the outcomes, if it’s that close.  Some of the fights underway already with less than two weeks to go, lawyers for both political parties and their allied interest groups are smelling blood.  Literally thousands of lawyers heading to polling places at swing states around the country. 

On November 2 they will be looking for legal issues that could throw a state’s Electoral College votes to their party’s side.  Now you can blame the states for not doing enough to make sure that the voting systems in the 2000 election battles didn’t repeat itself or you can blame the Supreme Court for the seemingly vague Bush v. Gore decision, which suggests that states must have a uniform system for recounting votes, even though many still don’t. 

Who better to discuss the state-by-state battles than the two men who argued the Bush v. Gore case at the U.S. Supreme Court.  David Boies was lead counsel for Vice President Al Gore in that fight and he has also served as the government’s special trial counsel in its suit against Microsoft.  He’s taught law at NYU and Cardoza Law School and is the author of “Courting Justice: From New York Yankees vs. Major League Baseball to Bush vs. Gore”.  It also includes some nice photos you’ll want to take a look at.  And Ted Olson, Solicitor General for much of President George W.  Bush’s term.  Mr. Olson has argued 41 cases in front of the U.S. Supreme Court including Bush v. Gore.  He’s also served as an assistant attorney general and for many years was President Ronald Reagan’s personal lawyer. 

It is an honor to have the two of you on the program.  Thanks a lot for coming on.  Appreciate it. 

UNIDENTIFIED MALE:  Thank you.

ABRAMS:  OK.  Let’s take a look at where the key fights are being fought across the country and where major legal battles may break out.  NBC News battleground states, the polls are tight in all of them.  The states we’re focusing on with regard to legal battles Florida, Ohio, Pennsylvania, Nevada, Colorado.  We’ll start where we left off in 2000 with Florida.  Polls have Senator Kerry trailing President Bush 45 to 48 percent, within the margin of error of plus or minus four percent. 

At stake, Florida’s 27 electoral votes.  The issues start where we left off in 2000, voting machines.  Florida switched to optical scanners that read paper ballots and an ATM like touch screen screens, but touch screens don’t produce paper receipts, which critics say are essential if a recount is called for again.  That’s triggered a suit that’s in front of the state’s high court.  There’s also a suit over voter registrations. 

More than 10,000 voter registration forms were discarded after election officials ruled they were improperly filed, even though they were signed under oath.  Labor unions and voting rights groups sued to reverse that.  The State Supreme Court has heard arguments in the case.  And there’s one issue just resolved by the high court, but still a major issue around the country, provisional ballots.  Basically voters think they are registered but aren’t listed when they show up at their polling place, they’ll be issued a provisional ballot, one that will count once their eligibility is confirmed.

Florida secretary of state ruled those provisional ballots should be discarded if voters show up in the wrong precinct.  The state’s high court agreed with the secretary on Monday.  How significant, David, do you think are going to be the issues in Florida? 

DAVID BOIES, GORE 2000 RECOUNT ATTORNEY:  I think the issues are significant.  You can’t tell how significant until you know how close the margin is.  For example, take provisional ballots.  If the margin of victory is larger than the number of provisional ballots, then the issues with respect to provisional ballots aren’t very significant.  But if there are more provisional ballots than the margin of victory, then you’re going to have to look at each one of those provisional ballots and attempt to determine whether the voter was or was not qualified to vote.  That could be very complicated. 

ABRAMS:  Ted, what about Florida?  Are we going to see a repeat? 

THEODORE OLSON, BUSH 2000 RECOUNT ATTORNEY:  Well I hope not.  And the issue of provisional ballots need not be a major problem.  If the process works, if people are only allowed to cast those provisional ballots in legitimate circumstances where they show up at the right precinct and they find—they think they’re registered and they’re not.  Hopefully, that won’t be a substantial number of situations.  Lawyers can always find potential arguments and potential issues.  I don’t think that unless they’re legitimate issues the courts will allow the election to be held up for a long period of time. 

ABRAMS:  What about the issue of the voting machines?  What about the fact that, you know, one of the questions was recounts in Florida, they don’t have a paper trail with some of these new electronic voting systems.  Ted, potential problem?

OLSON:  Well potential, yes, I guess it’s a potential problem.  Although there’s no system that’s perfect.  And when you use optical scanners, they may—people might not mark the ballots properly.  When you use punch cards, you saw what happened last time.  Every one of these systems is subject to human frailty and human error.  As David and I have been talking about in other circumstances, if the rules are set up and understood and clearly applied fairly across the board, much of this can be avoided. 

ABRAMS:  But you know that’s what we say sort of, David, in every election.  We say look we hope that there can be rules.  And yet some people are still saying the lessons of 2000 weren’t learned in Florida. 

BOIES:  I think that’s right.  But I do want to underscore what Ted says.  I think everybody who wants to avoid a repeat of 2000, I think that’s both Republicans and Democrats, ought to focus on setting the rules as precisely as possible before Election Day and before we know exactly how it cuts. 

ABRAMS:  So these lawsuits now are OK?  You’d rather have them now than later? 

BOIES:  Much rather have them now than later. 

ABRAMS:  Do you agree with that Ted? 

OLSON:  Yes, I do.  And I think that it’s very important for these rules to be worked out because—to underscore David’s point, if you don’t know who’s going to benefit by a certain rule you tend to draw the rule fairly.  Each side can agree well we’ll apply it this way.  If those things can be worked out in advance and then applied rigorously, a lot of these problems should not occur. 

ABRAMS:  Let me take a quick break.  I’m going to both of you to stick around.  A lot more to talk about.

Coming up, it’s not just Florida having these issues.  It’s happening across the country—Ohio, Pennsylvania and Nevada.  We’ll tackle the legal issues in those battleground states as well. 

And a lot of you with some very strong opinions on our segment last night about an initiative in Alaska to legalize marijuana.  Your e-mails abramsreport@msnbc.com.  Please include your name and where you’re writing from.  I respond at the end of the show.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, Ted Olson and David Boies argued Bush v. Gore in front of the U.S. Supreme Court in 2000.  We’ll talk to them about what states will be the legal battlegrounds in this election, but first the headlines.

(NEWS BREAK)

(BEGIN VIDEO CLIP)

BOIES:  We have not at any time over the last 35 days engaged in attacks on the courts.  We’ve not engaged in an attempt to reargue cases once they were over with.  Where we’ve had an appeal we’ve taken that appeal.  There is no appeal from the United States Supreme Court. 

(END VIDEO CLIP)

ABRAMS:  That was Vice President Al Gore’s lawyer, David Boies, conceding defeat in December 2000 when the Supreme Court ruled for George W. Bush and against Al Gore.  With both parties now lining up lawyers and issues in key states for next month’s election, we’re going to spend the rest of the hour looking at the big legal battles in major battleground states with the legal gladiators who fought the Bush v. Gore battle. 

And again, my guest the attorney you just say acknowledging he’d made the last appeal possible, David Boies, and the attorney who won for George W. Bush, former Solicitor General Ted Olson.  Let’s move into Ohio.  Ohio, like Florida, lot of controversy over these provisional ballots where people can vote while their status is checked. 

We’re going state-by-state to the legal battlegrounds.  Next stop, Ohio where President Bush and Senator Kerry neck in neck in the polls.  Three major issues have really grabbed the spotlight in Ohio legally.  The Republican Secretary of State J. Kenneth Blackwell under fire.  Just last month he issued a directive to county boards of election saying that voter registration forms must be printed on—quote—“white uncoated paper of not less than 80 pound text weight”.

While his aides say he ordered this in an effort to prevent shredding, Democrats say it’s an attempt to keep newly registered voters, the majority of whom are Democrats, from having their votes counted.  Meanwhile, Blackwell also being sued by the ACLU, challenging the use of punch card ballots, saying the old technology could cause errors that might lead to undercounting of minority votes. 

Remember, only about 30 percent of the voting population there is

going to be using new electronic machines.  And speaking of the machines,

one of the biggest manufacturers, Ohio-based Diebold and their CEO Walden

O’Dell accused of bias in a 2003 fundraising letter.  He vowed to—quote

·         “deliver Ohio’s electoral votes to the president.”

So, let’s figure out if any of these are going to have an impact in Ohio.  David, any of these significant issues, again, that you think could lead to a major battle if it comes down to Ohio? 

BOIES:  Well I think the attempt to bar registrations because they were not on exactly the kind of paper that the election official wanted them to be on would be a problem if people were actually prevented from voting on that ground.  I don’t think that’s going to happen.  I think the courts are making clear that that’s not going to happen. 

With respect to provisional ballots, I agree with what Ted said earlier, and that is that if the rules are pretty clear ahead of time, probably the number of provisional ballots are not going to be so great that they really will determine the election.  If that happens, it becomes a non-issue. 

ABRAMS:  Do you see—Ted, do you expect that in Ohio they’re going to have most of these issues resolved by November the 2nd

OLSON:  I hope so.  I understood—and I’m not an expert on these particular issues, but I understood that one of the issues in Ohio was whether or not a provisional ballot, that is to say, someone whose not on the registration list when he shows up to vote, can cast a ballot that’s put in an envelope and kept and counted later if necessary.  One issue there was whether or not you could cast that in a precinct other than the correct precinct.

ABRAMS:  Right.

OLSON:  That’s an important issue because if you’re not in the right precinct you may not be able to vote for a member of Congress or some other official because you don’t belong in that particular area.  And the issue was whether or not you could only count the provisional ballot if it was cast in the right precinct and I hope that gets resolved.  And I think it will get resolved before the election so that will not be a problem. 

ABRAMS:  But it’s getting resolved in different ways in different states, is it not?  I mean isn’t that a concern when you look at the big picture?  If different states are taking the exact same issue like the provisional ballot issue and some are saying yes, you can come to the wrong district and others are saying no, I guess the answer would be that’s what happens in these kinds of elections.

OLSON:  Well it does—and the Supreme Court acknowledged that.  There can be different systems of voting and different systems of counting provided that they’re being done fairly and uniformly.  And if a lot of discretion is vested in ballot counter, that discretion has to be exercised according to standards.  This issue about the right precinct or the wrong precinct is in the courts now.  I understand it’s in the courts of appeals with respect to Ohio.  Hopefully, that will all get worked out before the election. 

ABRAMS:  All right.  Let me move on to what I think is the most interesting as a legal matter of the legal battles—Colorado.  The state has nine electoral votes and right now John Kerry is trailing by 43 to 49.  What makes Colorado so important legally?  A ballot initiative would change the winner take all Electoral College to a system that splits the Electoral College votes between the candidates based on the popular vote. 

That would be the only state in the country to only divide it.  Some states—there are a couple of states where you get two if you win and then you can divide them—this would be the only state to divide it strictly along popular vote.  Ted, what do you make of the fact that they’re having this decided on the same day that they are voting for president? 

OLSON:  Well, it’s unfortunate that they’re doing that.  I think that the citizens of Colorado will probably reject that measure, because it would mean practically every election would be five Electoral College votes for one candidate and four for the other, which means that candidates would decide whether to campaign in Colorado or not based upon a margin of one electoral vote.  I think that the citizens will probably reject this and—but the other issue there is that the Constitution provides that the legislator of a state shall select the manner in which electors are selected. 

It doesn’t provide for popular elections.  Now that may be constitutional.  It may not be constitutional.  I hope that doesn’t become an issue and that Colorado citizens can take it out of the realm of an issue by defeating it. 

ABRAMS:  But if they don’t, David, I mean look, if this system had been in place in 2000, Al Gore would have won the election.  And that means that if this happens again, there could certainly be a legal fight over the issue that Ted is talking to, potentially among others. 

BOIES:  I agree it could be.  It certainly would have been last time.  I think it’s a little harder to envision how it becomes a critical issue this time, because I don’t think it’s going to come down to those four electoral votes.  But it might and if it did, I certainly agree with Ted that it’s unfortunate that it’s being changed right now.  So that we’re not going to know with certainty whether it’s valid or invalid. 

ABRAMS:  Is that a legal problem?  Do you see that as a potential legal problem as well as a practical one? 

BOIES:  I don’t.  There is—there’s various law about how in order to qualify for the so-called Safe Harbor...

(CROSSTALK)

BOIES:  ... you’ve got to have procedures that are in effect on Election Day.  And there’s a metaphysical question as to whether something that is decided on Election Day for that election is in effect on Election Day. 

(CROSSTALK)

BOIES:  But all that does is cost you the Safe Harbor.  It doesn’t make it illegal.  I think the real question is the one Ted identifies, which is does this satisfy Article Two in that it is—is it or is it not something where the legislature has in effect established the manner of voting.  That’s the real constitutional issue. 

ABRAMS:  All right.  Let me take a quick break.  We are going to continue in a moment.

(COMMERCIAL BREAK)

ABRAMS:  We’re back.  We’re continuing to talk about the battleground states, some of the legal issues.  We’re talking to David Boies and Ted Olson.  We’ve lost Ted Olson due to some technical activities but David Boies is still with us.  So we move on to Pennsylvania.  In Pennsylvania, Senator Kerry has a one percent point lead over President Bush -- 46 to 45 percent.  This state’s outcome could hinge on votes coming far, far away from the key stone state. 

In fact, they’re not even in America.  The Department of Justice has sued Pennsylvania election officials, saying they should give overseas voters two more weeks to cast their ballots.  The state’s ballots were delayed because of a legal dispute about whether to include Ralph Nader among the candidates.  And there are five different methods of voting, paper ballots, punch cards, lever machines, optical scan and electrical systems that could make a proposed new state law which requires an automatic recount nearly impossible. 

So the question, David, you know, how—five different systems.  Look, that’s not that—I mean it’s a lot of different systems, but every state, it seems, has different kinds of voting systems there.  What about this other issue with the Department of Justice suing for extra time? 

BOIES:  Well I think it’s right that the people who have the right to vote but are living abroad ought to have enough time to get their ballots cast.  One of the things that we argued in 2000 was that everybody who was a qualified voter ought to have an opportunity both to cast their vote and have that vote counted.  And particularly where the ballots have been delayed through no fault of the people residing abroad, I think enough time needs to be given them so that they can actually get their votes in to be counted. 

ABRAMS:  And what about the fact that there are—you know there now

·         there’s this new law in Pennsylvania, which is basically the same law as existed in Florida which mandates a recount if the election is really close.  How do you have the kind of recount that the court in Bush v. Gore had talked about if you’ve got five different types of systems to recount?

    

BOIES:  Well, if you really take the Bush v. Gore decision as prevailing law, if you really believe it means what it says in terms of its ruling, which is that you cannot have different voters in the same state in a situation where one has a greater chance of having their vote counted accurately than another, you could not have this multitude of machines.  Because it’s absolutely clear that your chance of having your vote counted accurately...

ABRAMS:  Yes.

BOIES:  ... if you’re in a punch card county is materially different than your chance of having your vote counted accurately...

(CROSSTALK)

BOIES:  ... if it’s an optical character recognition count...

ABRAMS:  I completely agree.  I know that if Ted Olson was here, he would say well no that the court was actually talking about changing the—a court changing the system after the fact but...

BOIES:  No, there are two different issues, OK.

ABRAMS:  Yes.

BOIES:  One is the issue that the three-judge opinion led by Scalia, Rehnquist and Thomas that was a new law argument.  That said they changed the law. 

ABRAMS:  Right. 

BOIES:  The five-member majority opinion, the opinion that the five...

ABRAMS:  Yes.

BOIES:  ... did not say they changed the law.  What they said was that under the way it was being operated, different canvassing boards in different counties were using different standards to determine what was a vote. 

ABRAMS:  Right.  All right...

BOIES:  Now...

ABRAMS:  Let me just move on.  I’ve got one more state here and then we’re going to talk about—let me just go to Nevada real quick, another battleground state.  Five electoral votes up for grabs.  President Bush now has a 10-point lead over Senator Kerry.  President Clinton expected to head there to campaign for Kerry there. 

Two major legal issues there.  Number one, Nevada seems to have an answer to the problems with electronic machines, a paper printout of each ballot cast.  It worked for a primary in the state.  But now come worries of problems with paper jams, unsecured printer cables, understaffed precincts when the turnout is larger on Election Day.  Also, a serious accusation earlier this month from a voter registration worker, claiming a company that registered thousands of voters in Las Vegas and Reno destroyed many, many forms coming from Democratic voters.

Democratic Party sued to reopen registration for residents, but those

·         for those cities.  A judge said no.  All right.  Let’s assume for a moment, though, David for argument’s sake, Nevada becomes a crucial issue.  Any post election battle that will go on there on these issues? 

BOIES:  I don’t think there’s any post election ballot or argument with respect to the destruction of registration.  That’s wrong.  It shouldn’t have happened.  On the other hand, individual isolated acts like that occur in a lot of states and sometimes occur on the Republican side and sometimes occur on the Democratic side.  I don’t think that’s a basis for challenging the result on Election Day.  I think the issue of paper jams and paper trails may make for confusion and even chaos on Election Day, but again, that should not be a basis for challenging the results. 

ABRAMS:  Bottom line, David, do you think—I mean I know you hope that this doesn’t end up in the courts, but do you think it’s going to end up in the courts? 

BOIES:  If it’s close—if it’s as close as last time, despite everything that everybody is trying to do it could.  But I think both sides are better prepared this time.  I think last election caught people a little bit by surprise.  This year, each side is lawyered up—maybe over-lawyered up. 

ABRAMS:  Yes.

BOIES:  But I think one of the things that that means is that people are going to solve more of those problems ahead of time and even on Election Day so that you don’t have to fight about it afterwards. 

ABRAMS:  David Boies, author of the new book “Courting Justice”. 

Great to see you again.  Thank you very much.

BOIES:  Good to see you. 

ABRAMS:  And to Ted Olson, we apologize for (UNINTELLIGIBLE).  Thank you both for coming on the program. 

BOIES:  Thank you. 

ABRAMS:  Take a break.  Back in a moment.

And also a reminder—not take a break—until Election Day we’re going to keep on top of the legal issues that could impact the election.  You can get more information on NBC’s “Make Your Vote Count” project on our Web site, abramsreport.msnbc.com.  While you’re there, sign up for our newsletter.  You will know ahead of time the stories we are covering each day. 

Coming up, voter fraud.  Why are the criminal punishments so soft if this could ruin our country’s ability to have a fair election?  It’s my “Closing Argument”.   

(COMMERCIAL BREAK)

ABRAMS:  One of the big issues facing in this election voter fraud.  I say the punishment needs to be tougher.  It’s my “Closing Argument”.

(COMMERCIAL BREAK)

ABRAMS:  My “Closing Argument”—my simple suggestion to help remedy the increasing concerns about voter fraud and other illegal elections shenanigans.  Stiffen the criminal penalties.  It’s amazing that we still treat voting criminals with kid gloves.  In some states the only punishment is a fine.  This is the type of crime where the punishment might actually deter crime. 

So first, let there be fair warning that the sentences are changing.  Then hope that in and of itself will prevent voting thuggery.  The accused are often local party officials or volunteers who would quickly learn about the changes and hopefully appreciate what it might mean for them.  Those who still intentionally try to corrupt the system would then feel the weight of the criminal justice system fall upon them. 

Think about it.  Treason can subject you to the death penalty, but often voter fraud results in no time behind bars if it’s prosecuted at all.  They’re not equal.  But trying to cheat the voters in this country out of a fair election is in my mind a lesser form of treason.  The punishments vary from state to state, but generally the maximum isn’t more than five years in prison and a fine.  Most of the time it means no actual prison time at all. 

Now I’m not talking about putting away someone who mistakenly registers a second time after moving.  I’m talking about cases where partisans intentionally destroy voter registration forms, bribe people to vote for a particular candidate or you know, those being investigated for registering over 40 times.  This issue, this crime may ultimately undermine the voters’ faith in our president and the world’s faith in our system.  So I ask, why is such despicable behavior still considered such a minor crime? 

I’ve had my say, now it’s time for “Your Rebuttal”.  Last night on the program, marijuana, in a valid measure in Alaska that would remove criminal penalties for all marijuana possession, sale, et cetera, as long as the government regulates the sale of the drug.  I said even though I appreciate the arguments on the other side, I hope it passes to allow Alaska to serve as a test case to see if it really does lead to more tax revenues that can be used to prevent kids from using drugs and allow law enforcement to better focus on more serious crimes. 

From Florida Atlantic University, Dan Alexander in Boca Raton.  “I was skeptical that an anchor of a major news source could be as open minded as you appear to be.  The marijuana legalization debate is a no-brainer.”

Well thanks, Dan, but I’ve got to tell you, it’s not a no-brainer for me.  I think it makes a lot of sense to just make all these recreational drugs illegal and not start down the road of deciding which ones yes, which ones no.  But I’m willing to give it a chance if the voters of Alaska want it in their state. 

The former chief of demand reduction in the DEA John Lunt writes, “Marijuana is responsible for sending thousands of young people into rehab and tons of thousands of people to emergency rooms on an annual basis.  Why would anyone in their right mind want to legalize a drug like this?”

Also last night my “Closing Argument” on political attack ads and what you can do to try and stop them. 

Jeffrey Feldman in Los Angeles.  “Dan, I agree with what you said regarding the undo influence that negative campaign ads have on our political process.  However, I believe that it’s the mass that gives them their legitimacy and gives the issues they address their prominence within the political debate.  It seems that the more outlandish and inaccurate the attack, the more attention the media gives it.”

Fair point, Jeffrey.  It’s both.  We do have work to do as well.

Finally, Rod Rees in Silver City, New Mexico.  “Is it an attack ad if the content is true?  I think not.  Let’s distinguish instead between ads that speak the truth and those that speak falsely.”

The problem is sometimes your definition of what’s true and what is not depends on your politics.  So, you know, I just had to draw the line somewhere, although I agree with you that it’s partly the media’s responsibility to try and assess what’s actually true in these ads and what’s not. 

Your e-mails abramsreport@msnbc.com.  We go through them at the end of every show.

Coming up next, “HARDBALL” with Chris Matthews.  Thanks for watching and I will see you tomorrow. 

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

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Copy: Content and programming copyright 2004 MSNBC.  ALL RIGHTS RESERVED.  Transcription Copyright 2004 FDCH e-Media, Inc.  (f/k/a Federal Document Clearing House Inc., eMediaMillWorks, Inc.), ALL RIGHTS  RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user‘s personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon MSNBC and FDCH e-Media, Inc.‘s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.

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