It is to be noted that Sauls' decision, IF IT IS ALLOWED TO STAND, has provided a very nice way out of any constitutional crisis. He found that the Local board certifications must be determinative. That is the subtext of what Harris has been saying all along.
On appeal, should the FSC wish an easy way to justify his decision, again without touching any constitutional issues, would be to say that because Boies did not introduce the ballots themselves, the Sauls court was justified in not finding any "illegal" ballots.
Let me clarify: Boies entered all 9000-13000 ballots into evidence, but he did NOT introduce a single one individually to show that that ballot should have counted. He spoke about the ones that were counted.
The problem in the presentation of the case is that the one's that were counted, did not change the outcome, and under the statute, therefore, the original certification stands.
Boies generally alluded to the uncounted to the uncounted ballots, without introducing at least some of them one at a time. This may be a fatal flaw in the evidence, in meeting the high burden of proof, in light of the weakness of the statistical evidence. If Sauls found that the stat evidence was rebutted or was not credible, HE need not go further.
It could then be said, it was up to Boies to present at least some of the uncounted ballots.
Entered: This ___ day of ____, 2000.
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Duke, J. |
