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© The Associated Press, updated 3:46 p.m.
Text of a hearing Monday on the Florida recount before the Florida Supreme Court. Speakers include:
Chief Justice Charles Wells, Justice Harry Lee Anstead, Justice Major Harding, Justice R. Fred Lewis, Justice Peggy Quince, Justice Barbara Pariente, Justice Leander Shaw
Gore campaign attorneys David Boies and Dexter Douglass; former Secretary of State Warren M. Christopher
Bush campaign attorneys Joe Klock Jr., Barry Richard, Michael Carvin
Paul Hancock, Florida attorney general
Judge Thomas Barkdull, senior appellate judge, Florida Third District Court of Appeal
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CLERK: Ladies and gentlemen, the Florida Supreme Court. Please be seated.
WELLS: Good afternoon, ladies and gentlemen, and welcome to the Florida Supreme Court. The court is certainly aware of the historic nature of this session and is aware that this is a matter of utmost and vital importance to our nation, our state and our world.
And we ask that during these oral arguments that everyone -- we must expect everyone to remain in order during the entire time that we are hearing oral arguments today.
We would expect that we will have at the end of the appellants' initial argument a 10-minute recess, and at that point we would ask you to, if you intend to come back for the remainder of the argument, that you remain in the building and really in the courtroom, except to use the restroom facilities. That will facilitate us getting back to the argument immediately after the recess. And also anyone who leaves the building, we are unable to allow them to come back in for the remainder of the argument.
I would also like for the lawyers to have an understanding that the court of course has considered the papers carefully which each of you have filed.
We appreciate the diligence that counsel has taken in getting all of these issues framed and to us.
And since we have a limited amount of time here, we would ask that we get right to the heart of the matter as you see it, because we are fully cognizant of the facts and the procedures of the law that have brought you here.
So on the papers that the clerk has presented to me, it is my understanding that Mr. Butterworth's counsel will go first.
Please also, counsel, be cognizant of your time, so we respect the times that's been divided here.
BARKDULL: Chief Justice Wells and members of the court, please permit me to introduce Paul Hancock, who will present the argument for Attorney General Butterworth. Mr. Hancock is the deputy attorney general, formerly with the U.S. Justice Department for over a quarter of a century and the major part of his time in the Elections Department.
HANCOCK: Thank you.
Mr. Chief Justice and members of the court, I'm honored to be introduced to you by Judge Barkdull.
The constitution of the state of Florida establishes the attorney general as the chief legal officer of this state. As such, he has primary responsibility within the executive branch of government to interpret our laws.
This court has previously referred to the attorney general as the people's attorney, and I stand here on behalf of the attorney general in that capacity. I would summarize the views of the attorney general regarding the issues before this court in this manner:
Public officials have a responsibility to count and recognize the votes of all Floridians who voted in this presidential election. Factors such as administrative inconvenience, expediency or the limitations of vote-reading machines pale in comparison to protecting the voting rights of our citizens.
And, of course, the right to vote includes the right to have that vote counted. That right is applicable to all persons in our state, throughout the state, in each geographic region of the state, as well as to our residents who are temporarily absent from the state, outside of our boundaries, such as the men and women of the military.
The Florida constitution begins with a proposition which we submit should guide the resolution of these cases: All political power is inherent in the people. That means that our citizens are the owners of our government, and the role of public officials is to listen to their voices.
We do that in part through public elections. The right to vote is perhaps the most cherished right in our democracy. The real parties and interest to this lawsuit are not the presidential candidates nor the parties that support them.
WELLS: Mr. Hancock, excuse me for interrupting you, but let me ask you, are you prepared, or other counsel, and I would really like for counsel on both sides to pay attention to a concern of mine that I would like to lead in here, and that is that we recognize that the election was on Nov. 7 and that recounts have been going on in Broward County and Palm Beach County, and that there is this issue as to whether the recounts were permissible and whether they should be allowed, under Florida Statute 102.112, amended certifications based upon those recounts.
And what I am particularly concerned about is what prejudice is there to both the voters whose votes are -- already been certified pursuant to that, and the voters whose votes are within the recounted counties, under the total scheme of the state scheme and the federal scheme for the counting of Florida's electoral votes.
It seems from my reading that we have a continuum from Nov. 7 to some point in December. And that's when my concern is, and so I'd like to sort of get this hammered down to that framework.
HANCOCK: Yes, your honor, I will address that.
The starting point then is determining what the legal standard is, what votes should be counted, when can a county do a recount and when can it not do a recount, and what are the standards for doing that recount.
HANCOCK: And that raises the issue of the conflicting opinions that have been issued by the Division of Elections, of the secretary of state and the attorney general of the state of Florida.
The difference in those interpretations of the law -- and I want to say to you from the get-go that the attorney general and the secretary of state are friends and enjoy a cordial working relationship. The differences here are just professional differences involved with what Florida law means.
The view of the attorney general is that the state has a statutory structure that allows recounts in certain circumstances. Those circumstances are described by statute.
A candidate can request a recount, can request a recount in a county. The county officials then have the discretion to determine whether to allow that recount. If they exercise that discretion, it begins, as you know, with a sampling of the votes that were cast, reviewing at least 1 percent of the votes that were cast, to see whether that sample indicates that there may be a problem in the counting. If the sample indicates that there may be a problem in the counting, the county officials, according to the law, have options to select from.
QUINCE: Is the secretary of state involved at this point of the counting? Once the request is made, does the secretary of state play a part at that point?
HANCOCK: No, Justice Quince, the secretary of state does not. The secretary of state has very narrow authority in the conduct of elections. The law provides that counties conduct the elections. They submit those returns to the secretary of state. Pursuant to the Florida statutes, the secretary of state, nor the state canvassing board, cannot look beyond those returns.
PARIENTE: Is the right to a manual recount a right solely created by statute or is there a common law right that the citizens of the state have to request a manual recount?
HANCOCK: Justice Pariente, citizens don't have the right to request a manual recount or we might be recounting forever. But candidates do have a right, pursuant to the statute, to request a manual recount.
PARIENTE: Well, absent the statute, is there a right that would have existed, for example, prior to 1989, when the particular manual recount statute was enacted, to have requested a manual recount?
And the reason I'm asking that is because we're talking about rights of voters, yet the scheme puts the discretion as to whether to allow the recount, even the very first step, with individual boards. So already you have a situation where there can be lack of uniformity from county to county.
HANCOCK: Yes. And, again, we do have a situation where a substantial amount of discretion is delegated to the counties. That's not unusual among the states.
In fact, the one case I would cite to the court is the Roudebush v. Hartke case that was decided by the United States Supreme Court in 1972, involving the senatorial election in the state of Indiana in which Vance Hartke won. That was a very close election, it triggered -- a candidate requested a recount in one of Indiana's 92 counties. That was the issue that went before the United States Supreme Court.
In deciding that case, the United States Supreme Court noted: A recount is an integral part of the Indiana election process and is within the ambit of the broad powers delegated to the states by Article 1, Section 4 of the United States Constitution.
WELLS: Mr. Hancock, let me ask you, if I could refocus on the question that I was asking before, is that, there's the recount provision, which we recognize in the statute...
WELLS: ... it gives the counties' canvassing board that opportunity. There's also 111, which -- or 112, which says that there is a seven-day time period upon which those must be sent to the state. And that was done, as I understand it. But the question really revolves around amended certifications.
WELLS: And my question is specifically what is the attorney general's position as to the date in December that Florida's electoral votes would be prejudiced or not counted in the Electoral College if there is not a certification by the secretary -- by the Department of State under 103.011? What's the date, the outside date that we're looking at and which puts Florida's votes in jeopardy?
HANCOCK: Dec. 12, your honor, is my understanding. The Electoral College meets on Dec. 18. The issue -- and we have constitutional law professors here who can address this, but my understanding is it's December 12.
WELLS: OK. Now, if it's Dec. 12, under Title 3 of the U.S. Code in that Section V, it seems to indicate that in order for that December -- that six-day provision to have meaning, that all contests and controversies concerning the state votes must be resolved in order for the state's resolution to be final.
Now, would you fit that provision of the federal statute into the Florida provision so that we would have some guidance on what is really the prejudice?
HANCOCK: Well, we don't know what contest will arise. I think what this points to is the importance of this court using the full reach of its authority to establish procedures that ensure that this results in a process that, first of all, is fair; that is perceived as fair to the world; and in fact is fair, that it counts the vote of all people who attempted to exercise that vote.
At the same time, in light of the schedule that we face, I think it would be appropriate in the court -- and I refer the court to State v. Haskell, a 1916 decision of this court, in which the court expounded on its broad jurisdiction to correct election returns. If it doesn't correct election returns, elections are determined by county officials, not by voters.
So it's important, we submit, that the court use the full breadth of its authority to establish the standards that will judge the counts that are going on, what vote should be counted, perhaps the court should consider how they should be counted and to put the counting officials under some timetable so that ...
ANSTEAD: Let me return to a more mundane statutory issue and invite you to tell us what you perceive to be the purpose of the statutory provisions that require the secretary of state to give local election officials opinions about the statutory scheme for elections and election issues, and then bind those officials to follow those opinions. What do you perceive to be the purpose of those statutory provisions and their effects here?
HANCOCK: The purpose, your honor, is to provide uniformity and guidance to county election officials. We don't dispute the authority of the secretary of state's Division of Elections to issue those opinions. However, we do suggest that, in reviewing that, the actions of the secretary of state in issuing those opinions, that review here is de novo. It's not merely abuse of discretion; the question is whether she applied the correct standard of law.
And I will, if I may, quote to you. A long time ago, Justice John Marshall talked about the use of discretion in applying it to district courts. And John Marshall was reviewing a subpoena issued in the Aaron Burr litigation and in talking about discretion said that: "But a motion to its discretion is a motion not to its inclination, but to its judgment. And its judgment is to be guided by sound legal principles."
Our concern with the secretary of state's interpretation of Florida law, and everything that followed from that interpretation, is that it was not guided by sound, legal principles. It's flatly wrong. It elevates the machines over voters.
We have a situation in Palm Beach County where the election officials reported that 10,000 people, 10,000 ballots, did not record a vote for president. Now, that should raise an issue. I mean, maybe people went to the polls to vote for the speed train. But the logical assumption is that most people who went to the polls were there to vote for president and vice president.
And if 10,000 ballots don't have a vote for president or vice president, that raises an issue of what should be done. Fortunately, our state has a procedure for dealing with that, and that's the recount procedure.
We submit to the court, and it's plainly set forth in the statute, that in that recount, county officials should look at those ballots to discern the intent of the voter. That is a standard that's in the law that's in lockstep with every decision of this court for over 100 years on how we review election returns, and of how we reballot.
HARDING: But there is also a provision of that statute that says it should be done within seven days.
HANCOCK: Yes, Justice Harding, there is, and there is the following section after that says that the first section you cite says they shall be done in seven days or not counted, the next section says they may be counted if they are not done in seven days. So there is a conflict.
We submit that the election laws have to be read in their totality. Yes, counties should get their returns in in seven days, and they should work hard to do it. But the law also has provisions for recounts, and the statute allows at least three days for a candidate to request recounts. It then requires a sampling of ballots. It then requires, if a problem is found, a full recount.
HARDING: If we knock out the seven days, as you are suggesting, and we cut off the time limits, and then we're to set an outside barrier beyond which this section or these sections of the statutes govern statewide election, gubernatorial elections as well, what -- they don't have to -- I think the absentee ballots from overseas don't have to be counted in those in 10 days under federal law for a presidential election. What do we do with this statute if we reconstruct it as you are suggesting?
HANCOCK: Well, again, Justice Harding, I would suggest that the law needs to be read in its totality, that it's not physically possible under this law -- and it's not -- it's not surprising that this issue has arisen in our most populous counties, where it can't be done in a week. It simply -- under the statutory schedule, it can't be done in a week.
PARIENTE: Is that really something that we have in the record, that it can't be done, and what is the significance of 7(a) that requires as many county teams as necessary to manually recount? Why -- what evidence in the record is there that ...
PARIENTE: ... it couldn't be done in a normal situation, understanding here are some claims that there was obstruction? But what evidence do we have that it couldn't be done within a seven-day period?
HANCOCK: I don't know that there's any evidence in the record. I think it's intuitive that with this many -- this big a task ...
To me, to us, to the attorney general, the important part is recognize the voters' rights.
The secretary of state refers to the problem as voter error. I submit to you that if a voter punches a hole in a ballot to indicate their choice, and the chad simply doesn't fall off for one reason or another, that is not voter error. That voter has cast a vote.
WELLS: Mr. Hancock, I think your time...
HANCOCK: Yes, thank you.
WELLS: Thank you very much.
ROGOW: Mr. Chief Justice, and may it please the court.
A week ago Sunday, the Palm Beach County Canvassing Board, around 2:30 in the morning, voted to do a full manual recount, after having done the initial 1 percent recount and determining that the figures extrapolated could have affected the outcome of the election. And they began that manual recount.
PARIENTE: As a part of your presentation, would you explain what prompted the board to ask for an opinion from the secretary of state?
ROGOW: There was concern on the board, at least from one member of the board, as to whether or not it was proper to do a full manual recount. And so that member of the board posed that question. The board then voted to ask the secretary of state for the opinion. And when the opinion was received, of course, the opinion was that there was not a right to do a full manual recount.
PARIENTE: Prior to that opinion, had there been precedent in Palm Beach County for performing manual recounts in cases other than machine error, such as in close elections?
ROGOW: Justice Pariente, I don't know the answer to that question of whether or not full manual recount -- certainly, nothing on the scope of this had been required before in Palm Beach County. But there was no question in the board's mind that, given the figures that they had seen, that the full manual recount was the proper decision for them.
They made that decision, and then, of course, the full manual recount was stopped when the secretary of state said that there was no basis for it.
PARIENTE: But was the concern that there was the question of what an error in vote tabulation meant? Or was the concern as to whether the error in vote tabulation could affect the outcome of the election, in requesting this -- in looking at the statute?
ROGOW: Justice Pariente, I don't think the concern was so much with what vote tabulation meant as it was with the fact that maybe there could be an argument made that vote tabulation was something other than the kind of error that they were seeing. They were seeing, obviously, in that 1 percent recount that people had voted. And they could see that the chads had been penetrated, and, therefore, they could discern the intent of the voter. And having done that, they decided then to move on to the full manual recount.
WELLS: Justice Lewis?
LEWIS: Mr. Rogow, do you have a suggestion or an interpretation for us to give meaning to the entire statutory scheme? Because we've got the 166, recount, but we also have the 168 section for contesting those results. And if this recount extends up until the eve of the reporting for the Electoral College, then we would then ride out, would we not, the provision for contesting what has occurred during this recount?
ROGOW: Justice Lewis, I don't know if you're asking me that as an officer of the court or as the counsel at this moment for the Palm Beach County Canvassing Board, because I'm in kind of an interesting position. The canvassing board filed this in the nature of an interpleader, this initial writ, and we really are not taking a position on the merits, the dispute between the attorney general and the secretary of state. We will follow whatever this court says the law is. And so I want to preface my answer by saying that.
WELLS: I think since you have a limited amount of time that you ought to direct your attention to the issues that your party has, and I would ask ...
ROGOW: And that ...
WELLS: ... one of the other counsel to note Justice Lewis' question and address that.
ROGOW: Yes, justice.
WELLS: It's an important question.
LEWIS: Did the canvassing board ask for the attorney general's opinion?
ROGOW: No. No.
LEWIS: How did that come about, to your knowledge?
ROGOW: It was provided. I think that a request had been made by other people for the attorney general's opinion, and the attorney general's opinion then, of course, became extant and known to the canvassing board.
I think from the canvassing board's position, the question is this: Does the recount count? Several hundred people have been working thousands of hours, several thousand hours, in doing this recount, Democrats and Republicans. It's being done in a way that is open, absolutely open to the public. It's televised, as a matter of fact. It is tedious work, but it is being done tenderly by the canvassing board, with care to try to protect the votes of the voters of Palm Beach County.
SHAW: Is there a certain point, Mr. Rogow, when the secretary can cut off the recount? For instance, if it would affect her getting the votes in to the Electoral College to be counted, could she cut off the recount?
ROGOW: I don't think she could cut off the recount on that basis, Justice Shaw. I think that what's interesting here is, of course, the certification which we made after seven days is really only a partial certification, because the absentee ballots are not due until three days later, 10 days after the election.
So the process is an open, ongoing process, and we think that the time, of course, is there to complete the process.
SHAW: Do you think she has any discretion, or are all of her duties ministerial?
ROGOW: Now, Justice Shaw, you ...
SHAW: That's the way you see it.
ROGOW: Now, Justice Shaw, you're placing me in an area in which I think I should defer to counsel for the participants.
WELLS: Thank you, Mr. Rogow.
The Broward County Canvassing Board counsel, Mr. Meyers.
MEYERS: Thank you, Justice Wells.
WELLS: Mr. Meyers, let me get directly to the method by which -- I know you've raised in your brief that there are some issues as to the standard, and then that's been changed since you filed your reply brief. What I am particularly interested in is the counting that's going on in Broward County. Do we have a situation in which there are certain votes that are going for the vice president and certain votes that are going for the governor about which there is no contest and votes in the middle in which there is a disagreement?
MEYERS: Yes, sir, that's correct.
WELLS: Are those votes being separated so that we know which votes are in the middle?
MEYERS: Yes, they are. They are being held separate. And initially the canvassing board in Broward County had used what we call the two-corner rule. So they went through the ballots and they initially just determined intent based upon two corners of the chad being removed. If they didn't find that, they kept the contested ballots separate. And based upon their decision yesterday, they intend to go back, just for process purposes. They don't want to start applying the new standard now until they finish going through and making the first cut.
PARIENTE: The two-corner rule that you've just announced or stated that the Broward County board is following, was that a standard that was in existence as of the date that this election took place, or is this something that has come up after the fact?
MEYERS: Justice Pariente, this is something that came up after the fact, based upon, as it turns out, what we believe to have been an early review of what the law requires.
PARIENTE: Well, have you -- has Broward County before this date done manual recounts?
PARIENTE: And if so, what standards did they apply?
MEYERS: I'm not aware of manual recounts, ma'am.
WELLS: Would you address Justice Lewis' question, if you could, as to how the 102.168 contest statute fits into this, where there are amended certifications? And can you contest at the point in time after the amended certifications?
MEYERS: Mr. Chief Justice, what I would prefer to do would be to defer to somebody who could answer that better than I can. What I'd like to try to bring to the court is our perspective in Broward County.
And Justice Pariente, you asked a question that I can answer and I know other people can't, so I'd like to stick to those issues if that would be OK, sir.
WELLS: Thank you.
MEYERS: You raised the provision about the number of counting teams. And the implication -- it wasn't directly stated in the secretary of state's brief -- is that we could just increase the number of counting teams and use our resources in order to get through this in seven days. That's not true, Justice Pariente. What happens is, we can have as many counting teams as we can find. And in fact, we have a bunch of them in our emergency operations center. But after the counting teams goes through their decision-making process, all of the ballots then go to a three member canvassing board. And the canvassing board is three members, whether it's a tiny county or it's a county the size of Broward County.
PARIENTE: When you say all the ballots, I thought only the ballots where the question of the voter's intent is -- needs to be resolved.
MEYERS: No, ma'am, actually all of the ballots, it's my understanding, are going back there.
What they're doing is they're confirming the vote, and then they're making decisions where there's a contest.
So basically, they're double-checking. They're actually manually recounting every ballot, I believe, 588,000. And then where there is a challenge or a contest, they're actually looking at each of those ballots. They can only proceed as fast as three people can proceed. And in Broward County, the counting teams are far ahead of the three-person canvassing board.
PARIENTE: There was a representation in one of the briefs that counting in Broward County would be completed as today. Is that not accurate?
MEYERS: That is no longer accurate, ma'am, based upon my understanding. That was based upon applying a mechanical two-corner rule. And we're going to have to go back, based upon what we believe is a correct interpretation of the law, to discern the intent of each ballot from the totality of the ballot.
HARDING: Isn't there something unusual about changing the rules in the middle of the game?
MEYERS: I don't think so, Justice Harding. I think the important thing is that we do what's right at the end. And this has been an evolving area since the ...
HARDING: But you made a deliberate decision as to how you're going to count them. Did you start out counting them that way?
MEYERS: Yes, sir, we did, but at the same time we kept the ballot separate in the event, as information unfolded.
And, Justice Harding, since that time, we've received direction from both Judge Labarga in Palm Beach County and from Judge Miller, who's handling a case for us down below, both of whom stated that our two-corner rule wouldn't be valid. And that's consistent with our understanding of law.
PARIENTE: By valid, do you mean too restrictive?
MEYERS: Too restrictive, ma'am. Our members of our canvassing board have stated that they can determine the intent of ballots in ways other than the two-corner rule. And, in fact, there are ballots that are not presently being tallied for one side or the other from which they can determine the intent.
WELLS: Thank you, Mr. Meyers.
MEYERS: Thank you very much.
WELLS: Counsel for Vice President Gore will be next.
DOUGLASS: Mr. Chief Justice, members of the court, I'm here to introduce the speaker today who will argue the case for us, Mr. David Boies, from the state of New York.
WELLS: Thank you.
BOIES: May it please the court, let me begin by addressing Justice Lewis' question as to how you reconcile a protest under Section 166 with a contest under 168, and how that all happens within a timeframe that allows both to coexist.
First, if you look at Section 102.111, it talks about having the returns come from the county by 5 p.m. seven days after the election. It then talks about, separate term, the "official returns"; after the official returns are in, you have a certification and then a declaration of the winner.
So you have the returns, you have the official returns, followed by a certification, and then a declaration of the winner.
In this particular case, the declaration of the winner would be under 103.011, which is the declaration of who are going to be the electors.
And under the statute, 5614, 101.5614, it talks in subsection 8 about the official returns, including not only the machine count, the initial returns, but also the absentee ballots, which obviously are coming in after the seven days, and the manually counted ballots, which are coming in after the seven days.
So we believe that if you read all of those sections together, what you have is a requirement of the counties to come forward with their returns seven days after the election; that those returns will then be supplemented by manual recounts, by absentee ballots; and then there will be an official return, and that official return will then be certified. And at that point, we believe, 168 contest takes place, if there's going to be one ...
LEWIS: How do we know ...
WELLS: Go ahead.
LEWIS: What I'm concerned about is the timing.
LEWIS: Let's assume that the absentees and recounts come to the eve of reporting day and there is insufficient time, just as a matter of fact, to conduct a contest. So then are we not eliminating 168 from our statutory scheme?
BOIES: I think you would be if that happened, your honor. I think there are two points. One is I think the same basic standard for the protest is the same basic standard for the contest, except that you don't have to worry about the timing of when the county is ...
WELLS: Well, Mr. Boies, let me focus back in following up on Justice Lewis' question. If the counsel for the attorney general is correct and Dec. 12 is the date by which the certification has to be made for the Electoral College, and as I read Section V of the U.S. Code, what that date means is that all of the controversies and contests in the state have to be finally determined by that date. Do you agree with that?
BOIES: I do, your honor.
WELLS: OK, in order for them to be conclusive in the Electoral College.
Now, if we have then contest under 168 or we have this protest going on in Broward County, for instance, where they got some votes in the middle, how is it going to work within that time period for the votes to get totally recounted? And then if Governor Bush wants to contest that, for him to get a contest finally resolved or isn't it -- now, let me pose my whole question -- isn't it something that the secretary of state, as the person who has to do the certification, should separate out those that are uncontested on both sides?
And then with the ones in the middle, there would have to be a determination made in the final certification, as to whether there was a -- you could get that finally determined or not, and how many votes you're talking about, and whether those votes in the middle would actually cause the election to be different. Do you get my drift?
BOIES: I do, your honor, and I think I agree, with maybe one exception, and that is the court talked about the secretary of state dealing with the votes in the middle. I think that under Florida law, those are first counted by the county canvassing boards, and then there is a judicial question as to whether those votes have been properly counted. But it is not -- that is not a question for the secretary of state.
I also think that this court certainly has the power to say, "What we're going to do is tell the county boards that you've got this amount of time to complete your recount." And at that point, those votes are then subject to being contested by Governor Bush or Vice President Gore, and those contests then take place in a timeframe that allows everything to be completed by Dec. 12.
So I think it is clearly within the power of this court to say, "In order to meet the date of Dec. 12, you've got to have all of your votes manually counted that are going to be included in this initial certification by a particular date."
And then the contest, if there is one, takes place between that date and Dec. 18.
HARDING: Do we have information in the record that can guide us? Do we know how long it's going to take to do these things? Are we just going to reach up from some inspiration and put it down in paper?
BOIES: Your honor, I think it is in between.
BOIES: I think there is some information in the record. But to be completely candid with the court, I believe that there is going to have to be a lot of judgment applied by the court, as well.
HARDING: Is this not something that the legislature tried to do in setting these time limits when the vote should be in and set up some reasonable -- what you contest is not reasonable, but some procedure? And isn't that what they've done?
BOIES: I don't think that is what they have done, your honor, because, if you look at Sections 102.111 and 102.112 together, just those two together, even leaving aside the manual recount provisions, what you see is that the legislature is saying you must get your returns in by seven days.
But then, the official returns -- and there's nothing in that statute that says the official returns have to be completed by seven days -- then the official returns as defined in statute to include the result not only of the initial returns, but of the manual recounted votes and of the absentee ballot votes that are not included in those first seven days.
I think when you see those provisions, even if you leave aside the manual recount provisions, you've got a statutory system that does not contemplate that seven days brings down a curtain.
HARDING: What is the time limit, then?
BOIES: Well, your honor, if I were sitting in your chair, that would be a difficult question for me. It is an even more difficult question standing where I am. I think all ...
HARDING: Well, it's also difficult for us, because this statute governs statewide election, and not necessarily only presidential ones.
BOIES: It does, your honor, but in a statewide election, you don't have quite the same problem.
In a statewide election, if you put off the decision, you are not disenfranchising the voters or potentially disenfranchising the voters as you may be in this case because of the federal deadline of having the electors selected. So this is a situation that is different than the usual situation that the court confronts.
And I think that if you -- picking up from what Justice Lewis said -- if you work backward from how much time you realistically need for a contest, that amount of time, working back from Dec. 12, could guide the court in determining what was the outer date from the time that the recount had to be completed.
HARDING: Justice Shaw?
SHAW: Why shouldn't the secretary of state be the person to set that date instead of a court? Why couldn't the secretary say that, "This is the timeframe that I need in order to fulfill my duty of getting the certification in" and set an arbitrary date?
BOIES: But, your honor, the secretary of state's function is a ministerial function. She is not going to be the person who presides over the contest.
The contest, if there is one, is going to be a contest that is going to be before the circuit court, and, ultimately, before this court.
HARDING: However, Mr. Boies, that brings us to the "may ignore" language in that statute. And wouldn't you have to agree that the "may ignore" does -- "may" does connote some degree of discretion? And why isn't that discretion set on the basis of that she may ignore them if the acceptance of the amended certification would prejudice the other voters whose votes would be certified because they were already there and get timely counted in the Electoral College?
BOIES: I think, your honor, you could say -- and this is not that different from what we have argued -- that as long as the manual recounts will not impair the final certification in time to permit the selection of electors by Dec. 12, that those manual recounts must be included.
BOIES: That is, the secretary of state's discretion, to the extent that she has any, would be discretion to say, "I need to have the results by this particular date in order to be sure that the results are included by Dec. 12."
QUINCE: If that's the case then, should we be trying to determine also this whole issue about the faulty chads? Because I would assume that that would be a part of any contest that would be made of the recount. But if we're worried about this time limit, is that something that we should be concerned with now, and is it squarely before this court now?
BOIES: Your honor, I think it is squarely before the court, and I think the court must be concerned with it now, because I think that given the particular deadline, the wall, that is set up by the federal provision, that this court needs to act expeditiously to set the standard, because we don't think we have time ...
QUINCE: And where would we find case law or whatever to tell us what this standard should be?
BOIES: Your honor, I think you find it partly in Florida law, but I think you can also find it from the laws of other states that have dealt with these very same questions.
If you go back into Florida law, the test has always been the intent of the voter, and that is written into Section 166, the manual recount provision. It talks about first the counters, and then the canvassing board, looking at the ballot to determine the intent of the voters.
QUINCE: So if that's the case, would it be your -- would you be telling this court that any mark made by the voter would be evidence of that voter's intent and should be counted as such?
BOIES: I think so, your honor, and that is really what, for example, the Delahunt decision that we cite in our papers from the Supreme Court of Massachusetts, or the Illinois cases that we cited, or a number of the other cases that we cited have expressly held. That question has never been before this court directly, but that has been dealt with in the cases from other jurisdictions that we've cited that we would hope the court would find persuasive.
In addition, we cited, perhaps for obvious reasons, the statute from Texas, which provided statutory guidelines for defining that.
PARIENTE: Is the uniformity of how these manual recounts are conducted essential to the integrity of the process or also to the constitutionality of the statute?
BOIES: Your honor, I think it is important to the integrity of the process. I think if you had very wide variations you could raise constitutional problems.
PARIENTE: Well, for example, if right now in Palm Beach County chads that are not detached at all, but I guess are these dimpled chads, are being counted, but in Broward County they're not counted, then does that say that one vote is being counted in one county and not in the other?
If that's an argument, then what do you say to Governor Bush's argument and the secretary of state's argument that for those counties that did not have manual recounts but also have punch cards, because I guess not all counties have the punch cards, that if those votes did not get manually recounted, that that is unfairly giving certain counties a greater voice in this election than other counties?
BOIES: The first thing, your honor, is that any candidate could have requested a manual recount in any county, so that the manual recount provision is something that by statute is given to the candidates. And wherever there has been a manual recount requested, the counties have gone forward, and indeed some of the results that have already been certified have been results that included manual recounts.
PARIENTE: Do we know in Volusia County whether they used -- what standard they used? Is that in the record?
BOIES: I do not believe that is in the record, your Honor.
I would say that I think that it -- for the reason that you point out -- it is quite important that this court be as specific as possible in terms of the standard to be applied so that we will have uniformity. I also think, your honor, that if you concluded that it was essential to avoid unfairness or some kind of overweighting of one county's vote over another county's vote, this court has within its equitable power to have a statewide recount, if you concluded that that was necessary.
WELLS: Well, along that line, I take it then if this court should hold that the 72-hour -- the seven-day period was not specifically enforceable, then you would say that there should be a window of opportunity for both sides to request recounts in additional counties?
BOIES: I think the court has the power to order that if it believes ...
WELLS: Well, what is your position on it?
BOIES: Your honor, we don't think that's necessary, because ...
WELLS: So would you try to strictly enforce the 72-hour provision in 166?
BOIES: Well, the 72-hour provision in 166 had already passed by the time that the seven-day period had passed ...
WELLS: But the certification had not.
BOIES: But the certification had not, your honor. And it was for that reason that Vice President Gore informally -- obviously, he didn't have the power that this court has -- but informally proposed, as the court may or may not be aware, that he would be prepared to accept a statewide recount.
We are not urging that upon the court. But certainly that is something that we have indicated that we would accept. And we believe the court has the power to order that or to order, as the court suggests, a window ...
QUINCE: Well, how do you think a statewide recount would impact on the whole idea of getting these things done before Dec. 12, is it? And aren't we just adding another layer if we order a statewide recount?
BOIES: You could be, your honor. However, since the recount takes place county by county, it will proceed in parallel.
BOIES: And since the most populous counties are the ones that are already under way, we believe that those recounts -- it would be practical to do those recounts if the court felt it to be desirable.
SHAW: What would be ...
WELLS: Mr. Shaw?
SHAW: What would be this court's authority to open up this window of opportunity when it has not been requested within the timeframe?
BOIES: Your honor, that was the hesitancy on my part in answering the chief justice's question. I believe that the broad equitable power that this court has under the Constitution to assure that the election results really reflect who got the majority of the votes or a plurality of the votes would enable the court to do that.
The deadline has passed. I think particularly if you had a situation in which both candidates were prepared to accept that, you would have a situation in which the court would have the power.
SHAW: In the answer to the previous question, you indicated that you thought the secretary could set a final date to certify, provided -- if it would interfere with her getting the vote in to the Electoral College on time.
What would be her burden to justify this? Could she just say, "I need 10 days to get the vote in," and arbitrarily set that, or could she say, "I need 30 days," and completely close it out?
BOIES: Well, your honor, this court is, I think, experienced with reviewing the exercise of discretion in lower courts. And I think that when all is required is a ministerial act of preparing the papers to declare the winner, I would think this court would hold that that did not require very much time.
WELLS: Well, you keep referring to it as a ministerial act, but under 103.011 doesn't the secretary have a duty to protect Florida's electoral votes by getting the certification made?
BOIES: Yes, your honor. And what I meant to be saying was that, in order to get that certification made, she needs to have enough time to make that certification. But the fact that the certification is a ministerial act doesn't mean it's not important. It simply means that it's an act that, in our view, can be done relatively quickly, that she doesn't need five or 10 days to do it.
WELLS: Thank you.
You're in your rebuttal time.
BOIES: Thank you, your honor.
WELLS: And so, I think the time has now arrived when we would take our 10-minute recess.
I would announce, Mr. Hancock, that the marshal says that the clock went off 31/2 minutes too soon for you, so you will have that amount of time of rebuttal.
Thank you. And we'll be in recess for 10 minutes.
CLERK: Please be seated.
WELLS: We'll now hear from the counsel for respondents. And I believe Katherine Harris is the first respondent, represented by Mr. Klock.
KLOCK: Thank you, Mr. Chief Justice. We are also representing the canvassing board and Commissioner Crawford, who is here as well.
WELLS: That's the Elections Commission Canvassing Board under Chapter 102...
KLOCK: Yes. And for ease of confusion, perhaps, Mr. Chief Justice, we can refer to it as the commission.
I think if I could start with something that I think is a point that needs to be addressed. I believe that the problem that is created here, really, and as the questions of the court go back and forth you can see it, the difficulty that we have here is not really a legal problem, it's a political problem.
We have a two-tiered process in Florida as far as election returns are concerned, and that has to do with, first, the counting and the certification of ballots, and the second is the contest. And most of what you are being asked to deal with today is the problem that is created by the contest.
And if you think about it, it creates an enormous number of problems as far as the court is concerned, a number of which have been addressed by the different justices. But if we start out from the point that what we have here, the secretary has certified the first election returns that came in; then in between that time and Saturday, when she probably would have certified, along with the commission, the overseas ballots, the stay was entered by the court and naturally is respected by both the canvassing board and by the secretary.
But the fact of the matter is that, until such time as the certification is made, the process of contesting the election cannot stand. The question raised both by the chief justice and by Justice Lewis, which is what is the impact of the two statutes, is very clear.
Mr. Boies said that, you know, it's all kind of one thing and you can really handle it one way or the other, but that's not true. For instance, the whole issue of the overseas soldiers' ballots can't be resolved until such time as the election returns are certified and a challenge can be made as to whatever standards are being used to not include those ballots.
There are a number of other things that can't occur until that happens.
And then the suggestion that the Supreme Court can set a date, although they're not willing to even suggest to you what that date should be, comes back to the point of what is it that they really need to have happen here.
For the secretary to be successful, all that has to occur is that the court lifts the stay and affirms or simply lets sit Judge Lewis' order. For the petitioners here to succeed, a number of things have to occur.
WELLS: But Mr. Klock, let me get you to my concern.
KLOCK: Yes, sir.
WELLS: The concern that I have is that it's not -- we have a long-standing policy out of courts of this state, that say that the real parties and interests here are the voters. Now, what I want to know is that: What, and if, this 112 has a provision which says that some voters' votes may be ignored?
And what I am concerned about is, what is the boundaries upon which the secretary or the commission could exercise its discretion and have those voters ignored? And I pose to you that in this particular presidential election, doesn't it revolve around the Electoral College and the fact that the prejudice that is involved here is the prejudice of not allowing Florida's votes to get counted?
KLOCK: Well, Mr. Chief Justice, the beginning point here is that there are 6 million voters, of course. And the focus here is on 72,000 of them in three selected counties.
The attorney general started out by saying that the attorney general's position is that all the votes in the state of Florida be counted. But that of course is not what is under way at this point.
The problem with respect to the electoral votes in Florida only occurs if the status quo is maintained, if the votes cannot be certified, if the contest procedure cannot begin.
WELLS: Well, would they have to be certified today?
KLOCK: Well ...
WELLS: Under the federal scheme, is there a mandatory certification today?
KLOCK: Well, Mr. Chief Justice, it's governed by Florida law, as far as certification is concerned.
WELLS: But what I'm concerned about is the ramifications under the federal statutes, which, as your opposition says here, is Dec. 12, or six days before Dec. 18.
Now, what I want to know is, on what date does the secretary take the position that her duty to certify those votes is going to be jeopardized? And what is the basis of that jeopardy if the votes aren't certified on X date?
KLOCK: Respectfully, Mr. Chief Justice, the secretary is governed by the Florida statutes.
She is mandated to certify the election results seven days after the election and then to pick up the overseas ballots later.
Now, the question that you're asking, I can't exactly answer, because what you're now balancing is the right of the counting process versus the right of the contest process. Your honor, I don't know how to answer that question.
WELLS: What I'm concerned about is the rights of those voters who may not have their votes counted if we don't honor the recounted votes and the rights of all the voters who might have their rights denied if the certification doesn't get in within the time limit and on the basis that it will be accepted under Title V of the 3 U.S. Code.
KLOCK: But, respectfully, sir, at this point and time, the only bar to that is the stay order that has been entered by this court. If the stay order is lifted, the votes can be certified. Once the votes are certified, then a contest can take place, if anyone wants to take a contest, and that may have to be done on an expedited basis.
But the fact of the matter is ...
I'm sorry, sir.
WELLS: Go ahead.
KLOCK: The fact of the matter is, is that all of the relief that is being sought here by these folks is basically relief that should be in the context of a contest when it's possible to have a record.
A lot of the questions asked by Justice Pariente that have to do with record kinds of facts, there are no answers to, because there, of course, is the most fluid of records in this case.
WELLS: Haven't the local canvassing boards followed the statutes in regard to having a request for a recount, and then making a count for three precincts or 1 percent, and then making a determination that on that basis a manual recount would follow?
KLOCK: Justice Harding ...
HARDING: Haven't they followed the statute?
KLOCK: Justice Harding, what the statute basically says is, you're supposed to certify seven days after the vote is taken. If there is going to be a request -- if the secretary has discretion, which Judge Lewis, of course, found that she does, then that discretion has to be exercised either to permit or not permit late filings.
Reasons were given to the secretary. She sent a letter out. She asked for the reasons. They provided the reasons by 2 p.m. on the day after, on Wednesday, I believe. And then she promptly responded after applying them against a set of criteria that she had developed to exercise her discretion.
PARIENTE: When did she develop those criteria?
KLOCK: You're asking me as a matter of fact, your honor? Starting within probably an hour after Judge Lewis entered his decision, she asked for input on the kinds of criteria that would be appropriate for her to exercise her jurisdiction -- her discretion.
PARIENTE: Is that rather unusual as for -- way for an agency head to come up with decision in this state, to just come up with something within a few hours, as to whether to allow something or not allow something?
KLOCK: Well, Justice Pariente, I was kind of refreshed, because the agency had actually asked for legal advice on it, and what the legal standards would be for her to properly exercise her discretion, and she was pushing against a deadline. So I considered it excellent, frankly.
PARIENTE: But she didn't really exercise her discretion. What was said was that a reason to -- that she was not going to recognize as a reason for late filing manual recounts being conducted in accordance with 166. That was no discretion exercise. It was in accordance with her prior legal decision that recounts that were not based on machine errors were not going to be allowed, and that was what she announced the day before.
KLOCK: Well, your honor, the decision -- the opinions that come out from the Division of Elections, Mr. Roberts' group, is not exactly the secretary. The secretary is the one that had the obligation under the statute to exercise her discretion in this case.
And what she basically did was, she looked at the various criteria in challenging an election, and she looked at other criteria as well, and she said that a manual recount that is undertaken solely to solve voter error is not the kind of thing that is sufficient to allow a breakdown of that deadline scheme.
PARIENTE: All right ...
KLOCK: That was the reasonable exercise of her discretion.
PARIENTE: Is the secretary saying that the reason that these manual recounts were not going to -- or are not going to be allowed is because they're too late; that is, they were not in within seven days after the election?
KLOCK: Well, two things, your honor. First, what she was saying is ...
PARIENTE: Is that number one?
KLOCK: Well, as you know, Volusia County complied, with 200,000 voters. In three days they did the recount. And ...
PARIENTE: So we have within the state's recounts one county that has counted those votes by hand, correct?
KLOCK: That is correct. And, Justice Pariente, as well, the secretary and the canvassing board have no right to go beyond the certificate that comes from the canvassing board. And Volusia County did a manual recount, irrespective of what the secretary may think legally that she -- that the board had the right to do that. Once those returns are certified, the secretary -- neither the secretary nor the canvassing board can go behind them.
So this entire problem that we have here today, irrespective of whether you buy into the concept that the secretary has the right to establish standards and has the right to exercise her discretion, which we believe she does both under the case law and as a result of the order she was responding to from Judge Lewis, the fact is this problem could have been resolved if the people asking for a manual recount, right or wrong, had completed the manual recount within the time period set forth, as they did in Volusia County.
PARIENTE: So the secretary, then, would have counted those votes within the totals, if they had been submitted by Nov. 14 at 5 o'clock?
KLOCK: Neither the secretary nor the canvassing board has the power not to, Justice Pariente. They would have to do that.
Now, you asked the question earlier as to whether or not there's any history as far as Broward County is concerned. Since of course there's not a record, I can't respond there, but there is one case which is the Broward County v. Hogan case, where the issue went up to the 4th District Court of Appeal on whether or not the canvassing board's decision not to conduct a recount was within their discretion, and they held it was. So I know at least on that one occasion that they did not exercise their right to conduct a recount.
And you have to understand that the position of the secretary simply has to do with her understanding as to how the statutes are written. If you go back to the '88 race between Senator Mack and Lieutenant Governor McKay, the issue there was the problems that had arisen with the mechanical voting machines. That is the reason why the statutory amendments were created.
And if you look through the statute -- and taking a respectful exception to the position of the attorney general -- wherever you see tabulation, they're basically referring to machine or electromagnetic, or however it's phrased, kinds of review of returns and not actual counting, which is referred to differently.
But the position of the secretary is, if you look at those statutes, you can't simply pull the one subsection with respect to manual recounting out and pretend it's its own section. The fact of the matter is, is that the procedure is that if you have an automatic recount, which of course is done mechanically, you can then ask for -- the candidate and the party, not a voter -- can ask for a manual recount. The manual recount, you have to go through the 1 percent and the three precincts.
ANSTEAD: Does the secretary, though, play any role in determining whether or not there shall be a manual recount in any county?
KLOCK: Absolutely not, sir.
ANSTEAD: And so who has the authority and responsibility for that?
KLOCK: The canvassing board of the county has the responsibility in response to a request from a candidate or a political party to conduct a manual recount, which is this test.
ANSTEAD: Well, under the circumstances that we have here then, is it, in essence, the secretary of state, who has no authority to determine that, overruling a decision by the proper body that has the authority to do that, to do it. Isn't that what the net effect of this is?
KLOCK: To the contrary, Justice Anstead...
ANSTEAD: Well, if the secretary is saying, "I'm not going to count the recount" that started very late in the process and at a time in a large county where effectively the recount could not be completed before the seven days were up, isn't that the net effect?
KLOCK: Justice, I don't know that the recount couldn't be done in that period of time. And of course, we have no trial record to know whether the recount could be done in that time ...
ANSTEAD: Don't we also end up sort of discriminating between small counties and large counties. If we take Dade County, for instance, and Okaloosa County, clearly there is going to be a vast difference in the time that it takes Dade County to do that manual recount compared to a small county. Would you agree?
KLOCK: Justice Anstead, yes. May I continue?
KLOCK: The fact of the matter is, the Florida legislature has all of this in front of it. It has an election code that understands that there is voting, that there's automatic recounting of voting, and that there are provisions for manual counting. They have considered all of that; it is part of the scheme. It has to be done in seven days. There is nothing ...
ANSTEAD: How do we know that they considered this specific issue with reference to a recount that has not started, for instance, until six days after the election, and that they contemplated that in mandating that everything be in in seven days? How do we know that they considered that?
KLOCK: Well, Justice Anstead, I'm sure they probably didn't consider the fact that someone would commence a recounting when it was ...
ANSTEAD: Well, the scheme allows for that, does it not? The scheme allows for a request for a recount very late in the process.
KLOCK: If you are permitted to initiative something at any point and time, and it has to be turned in at a certain time, that is the same basic rule that I had in high school with term papers. You can start the term paper the night before, if you want to, but it is unlikely that you'll be able to turn it in the next day when it's due.
So by giving that right to initiate the recount at that time, that really is an illusory right. In other words ... No, sir.
ANSTEAD: ... that is not really correct in the statute, that you have that much time before the certification of the results, in other words, to make that request?
KLOCK: You have the seven-day period within which to handle all of the counting of the votes. The initial counting, if you have an automatic recount and if there is going to be a manual recount.
But the other point, your honor, that I think is very important to note is that we're not talking about a manual recount on a statewide basis; it's three selected counties.
ANSTEAD: Let me talk about the seven days, too, and ask for your help, and let's work by way of a hypothetical.
Are you suggesting, by the language that has this seven-day deadline, that if we had, for instance, in Dade County, that the election officials down there, after they'd compiled the vote and everything, and they were the only county outstanding, and that there was gross negligence then, that they all went off on vacation to the islands and just let the election returns sit there, and seven days passed, and eight days passed, and nine days, and 11 -- you know, and so on, that the secretary of state, because of that seven-day rule then, and the gross negligence of the election officials down there, would simply say, "That's it. Under the language of the legislature, I cannot count the votes from Dade County, the largest county in the state of Florida, in the election returns." Is that what the position of the secretary of state is?
KLOCK: I don't believe so. Of course, that's not the situation we're in now.
ANSTEAD: Well, what is the position?
KLOCK: There's a case ...
ANSTEAD: When we have a week pass, past the deadline of seven days, we have negligence on the part of the local officials, and they simply have not sent the results up to Tallahassee, what is the obligation of the secretary of state?
KLOCK: Judge, we don't know that there's a matter of negligence. The court's assuming that.
ANSTEAD: No, I'm saying in my hypothetical to assume it's negligence.
KLOCK: Well, we know from case law, if it's gross negligence, you know, if it's a matter of marking up ballots or something like that, that the court has specifically held that that can't be held against the voters.
KLOCK: But, Justice Anstead ...
ANSTEAD: What would the secretary of state do? A week has passed, past the seven-day deadline, what would the secretary of state do?
KLOCK: If she hadn't noticed that the Dade County results weren't in for a week, I think, as a practical matter, the secretary of state would be a little bit more proactive, that if the returns aren't in on a certain day, I'm sure inquiry would be made.
If it was clear to the secretary of state that there was gross negligence involved in not getting them in, she's bound by case law to accept them or, your honor, it would be raised in the context of a contest.
But if we could get back, respectfully, sir, to the situation that we're in here: the situation we're in here was not caused by the secretary. The difficulty we have here -- all we need to do is to be able to certify the election. Once the election is certified, the contest period can begin. The petitioners are trying to conduct a contest proceeding prior to certification, not for legal reasons, for political reasons.
PARIENTE: How can a contest occur while the manual recount's still going on? As you just said, we don't know whether there is going to be an issue as to the integrity of how the recount was done, so how can that start before the recount, the manual recount, is completed?
KLOCK: Because, Justice Pariente, you have to read all the statutes together. And one of the clearest things when you look at the statutes is the mandatory nature of certain actions that have to be taken by the secretary. Not even the petitioners, your honor, could come up with some way of balancing between 166 and 168. And what the court is being asked to do is an extensive amount of legislation.
I mean, you're going to have to do away with the seven-day rule, you're going to have to abolish 166, you're going to have to do away with the secretary's discretion. And then the court enters the great universe of chad to decide, on the record that you have, whether or not two corners are enough or three corners are enough...
ANSTEAD: Well, I thought you said that the seven-day rule does not apply, that the secretary of state has some obligation, if this seven-day period passes, to contact the county and now inquire into the circumstances of why the seven days. And if she determines, for instance, that it's just the negligence of the local officials in failing to send the ballots up, that she can ignore the seven-day time and accept votes.
KLOCK: Your honor, I'm not specifically sure what the secretary would do. All I'm saying is the case law says, if it's gross negligence on the part of election officers, that the votes will be counted. We do not have a situation ...
ANSTEAD: But you agree the seven-day period is not absolute then?
KLOCK: No, of course it's not absolute. Judge Lewis ruled that there was discretion the secretary had to exercise. And irrespective of how we may interpret 111 and 112, as "shall" or "may," we are operating under the ruling of Judge Lewis.
ANSTEAD: What was the position of the secretary of state going before Judge Lewis, as far as whether or not the seven-day rule was absolute?
KLOCK: Your honor, from looking at the record, it appears that they agreed that discretion of the secretary could be appropriate, that the "may" standard would probably trump the "shall" standard. That's my understanding of the position that he took.
I don't know that that legally is correct; that's the position that was taken.
And consequently, when the order came down, they lived with it. And that order, I might add, was perfectly happy -- the petitioners were perfectly happy with that until such time as Judge Lewis ruled that the secretary had not abused her discretion.
WELLS: Justice Shaw has a question.
KLOCK: I'm sorry, sir.
SHAW: If the state of Florida has provided a protest procedure, can the secretary of state exercise her discretion under 102.112 so as to frustrate that procedure?
KLOCK: I'm afraid I don't understand the justice's question exactly. I'm sorry, I don't understand the question.
SHAW: Do you agree that under 102.112 that the secretary has some discretion? That would be your position that ...
KLOCK: I would agree, your honor, that based on the record as it is, and the agreement of the secretary to be bound by that, she has the right to exercise discretion after she establishes standards.
SHAW: Can she exercise that discretion in such a fashion as to frustrate the scheme in which a protest can be lodged?
KLOCK: No, because the contest is under 168, your honor, not under 166.
SHAW: Not a contest, a protest.
KLOCK: With respect to a recount?
KLOCK: Your honor, all the secretary can do is, she has the right to be able to establish criteria for determining whether or not a late filing will occur. She establishes those criteria drawn from precedents of courts. She then applied the requests against that and found them to be wanting.
As I said before, your honor, the entire problem could be solved if the certification had taken place on time because they had complied with the timing.
QUINCE: But aren't you ...
KLOCK: That completely avoids ...
WELLS: Justice Quince.
QUINCE: But doesn't that argument really blur the lines between a protest and contest?
Now, under 166, you can contest returns or protest returns within, you know, the 72-hour period or the seven-day period under 166. Isn't that a completely different procedure from 168, which is the election contest? And it seems to me that your argument is blurring those two procedures.
KLOCK: No. And I apologize if it is, Justice Quince. I think that's exactly the central issue here.
The procedure with respect to certifying an election is, as has been said by the attorney general, mostly ministerial. What has happened here ...
QUINCE: But once the certification is done, isn't that when the contest comes in?
KLOCK: Yes, ma'am.
But the protest is a different matter. You don't have to certify to have a protest.
KLOCK: We do not have any kind of procedure under Florida law for dealing with a full-fledged contest kind of action prior to certification. That's the difficulty we have here.
And that's the reason why the court is being asked to engage in extensive statutory rewrites, and then the entire issue of how you're going to make judgments with respect to these ballots.
WELLS: Mr. Klock, let me follow up on Justice Quince's question. Why wouldn't it be, in this unique circumstance, a better thing to do to wait, and unless there is a specific reason that's going to prejudice Florida's certification to the Electoral College, wait and see to a point and time when the manual recounts are completed?
WELLS: Allow those amended certifications to be made, and then there will be a point in time in which a determination can be made as to whether the contests in respect to those are going to jeopardize Florida's electoral vote.
KLOCK: Mr. Chief Justice, what you're talking about is making a value judgment as between whether or not the rights of 168 trump 166, on behalf of people. There's no suggestion anywhere here in the record that we have a problem with the voting machines or there was any fraud or anything else. What we're trying to do is to deal with the problem of people who did not follow instructions. The instructions were to put the stylus through the hole in the ballot; they did not follow those instructions.
Now, balanced against that, it's being suggested that the entire contest period should be stood on its head and that the secretary of state loses her ability to conduct her constitutional exercises, the legislature loses its ability. The attorney general, for instance, points out all of the states that have elaborate statutes to make judgments on manual recounts. Well, that's wonderful, except the Florida legislature hasn't done that yet. Is this court to do it?
HARDING: We've had cases dealing with this issue in Florida since the 1800s. And all of them, in some way, shape or form, come about because voters do not follow the instructions.
And in all of those cases that I have read, when you can look at the ballot, even though it is improperly marked and even though the voter did not follow the instruction, but you can tell the intent of the voter from that ballot, that that vote has to be counted.
KLOCK: And Mr. Justice Harding, I would suggest to you that all of those cases that you have seen have been a voting contest. And the difficulty we have here, as I say again, the court is being brought into something it need not be brought into. This is not a legal problem; this is a political problem.
If the voting is certified, everyone can then proceed with a contest. The difficulty is the political problem that is created.
HARDING: How would you proceed, Mr. Klock, that this matter would be resolved? If it is challenged, then we would order a recount or some court would order a recount?
KLOCK: Could you do that, yes, your honor, that's -- but you'd have a record, for instance.
HARDING: Isn't that discretion given to the canvassing board under the statute?
KLOCK: The canvassing board is free -- I mean, the manual recounts are going on right now. And I believe irrespective of what this court had said, the manual recounts could go on. They may well be material in a later contest.
It doesn't mean that because someone starts a manual recounting process, that the rest of the Florida statutory scheme stands still and waits for them to come back from vacation or whatever it is they're doing.
And the record shows that, in one case, there was somebody off on vacation for four days. Miami-Dade has just started today, maybe, their count after having had, apparently, hearings every couple of days over the last two weeks. It is now -- at this point in time, we are almost two weeks beyond the election.
HARDING: Isn't part of that, though, that the secretary of state said, "You cannot go forward and have this recount."
KLOCK: I think the record shows that no one paid any attention to the opinion of the secretary of state, your honor. Clearly, in Palm Beach County they didn't; it's in the record in the circuit court that they didn't pay attention. And as far as Broward County is concerned, I don't know precisely what they did or didn't do.
But the issue here -- again, this, of course, completely avoids the issue that has not yet been indulged by the court, although it was raised by one of the justices, is how about the folks in the other 64 counties that don't have the benefit of having their ballots flexed and recounted and dropped on the floor and all the other things that are occurring with respect to the ballots in the three counties that are being counted?
WELLS: Thank you, Mr. Klock.
KLOCK: Thank you.
WELLS: Your time is up.
For the Election Canvassing Commission, Mr. Bryant. Or I beg your pardon, for Governor Bush, Michael Carvin.
Thank you, sir.
CARVIN: May it please the court, as the colloquy today indicates, there is very clear procedure for resolving all the questions that the justices have asked, and that's set forth in the statute.
You set a firm deadline, and you make sure that everybody gets their votes in at the same time, and if there are any problems in terms of voter tabulation or the kinds of questions that we've done, you've got to keep to that deadline so you'll have time to do the election contest after that.
PARIENTE: May I ask you a question? Does this only come up, as far as this interpretation of the seven-day deadline, even though counties are wanting to do manual recounts as requested by the voters in that county, because this is a presidential election? In other words, is this requirement of the deadline on one end, going back to what Justice Wells has been asking, created because of the deadline on the other end?
CARVIN: This comes up in all. I mean, there's a firm deadline for all statewide ...
PARIENTE: Well, would you think that we would want to, for all time's sake, interpret this statute that if, for example, in a legislative race it is a close race and the unsuccessful candidate has requested a manual recount under the statute and requested it on the sixth day, that we would say that, because that's not an extraordinary circumstances, it's a foreseen circumstance, that we would say, well, the secretary has the discretion to not recognize that manual recount and could declare the other person winner. Would that make sense in any other context than this presidential election?
CARVIN: Oh, I think your case would be an easy hypothetical. If the losing candidate waited six days and gamed the system so that they backed the canvassing board so they couldn't do a manual recount until they requested it, then for that reason alone the canvassing board ...
PARIENTE: But the statute allows up to six -- until certification is made on the seventh day. So the statute, if somebody was exercising their statutory right within seven days, you're saying that the secretary on the seventh day said, "Too bad. I'm not going to recognize it."
CARVIN: Because it's not a statutory right, with all respect, your honor. It's an option that they provide to the counties.
The legislature has no preference for manual recounts as the most accurate way of determining votes, which is why they make it entirely optional. The only right and duty in the statute is the right of the state officials to have the election returns after seven days. That is a mandatory duty.
And they expressly contemplated that all counties, regardless of whether they were conducting manual recounts, would play by the same rules and get their election returns in on time.
PARIENTE: Well, the same rules really don't apply because only certain counties used punch cards, which is really what creates the problems in the three populous counties to the south. That's not the same problem with an optical scanner, correct?
So there's not uniformity even within this state as to the type of voting machine that is used or the procedures that are used in each county.
CARVIN: We have complained about the ad hoc nature of the way in which votes are tallied in differential counties. That is a problem.
PARIENTE: When you say you've complained about it, where has that been complained?
CARVIN: I'm sorry, in federal court, your honor. And I'm not trying to introduce that here.
PARIENTE: Let me ask you that question. Is there a constitutional attack on this statute being made?
CARVIN: Well, we don't think you need reach the question, but, yes.
PARIENTE: Was that because you're requesting the federal courts to reach you and you don't think that the state court has it within its jurisdiction to decide whether a statute is being constitutionally applied?
CARVIN: Oh, no, clearly state courts have that power. I'm simply making the point that there's a much simpler basis for deciding this case than going all the way to the U.S. Constitution, which is, state law clearly prohibits the release that the petitioner's requesting, because state law makes it quite clear that they have no right to ignore the mandatory statutory deadline imposed upon them by state law.
They seek to rewrite the statutes, create a scheme that serves their personal problems or conveniences, but in doing so, they posit a hypothetical that cannot be found in the statute.
WELLS: Mr. Carvin, let me roll my initial concern, as stated by you, and -- tell me when Florida's certification would be in jeopardy if the certification is not made by that date?
CARVIN: Well, it's clearly in jeopardy now.
WELLS: Why is that?
CARVIN: Dec. 12 is the cutoff date.
WELLS: Why is it in jeopardy now?
CARVIN: Because if they're not certified, then there is no way to come to an accurate statewide count. And that, as we've seen over the last 10 days, is an enormous undertaking.
So if we continue to delay the certification process -- remember that deadline is not the end of the process for finding accuracy, it is the beginning of the process for finding accuracy.
WELLS: You're referring to the contest under 168?
WELLS: But how can those contests, under these circumstances, be made until the recounts are completed? I mean, why isn't it somewhat like a proffer, that you've got to proffer the evidence in the form of these recounts so we know what is in those recounts and whether there is a proper basis for there to be an amended certification?
CARVIN: Well, there's two problems with that, your honor. One is, in court, not only one side gets to make a proffer. And here we're talking only about counties selected by one political party.
So at the end of the day, if we continue to wait until Miami-Dade finishes its recount and Broward finally chooses the standards for determining which ballots it will count, we will not have any better understanding of how many votes were cast and for whom in the presidential election, because we've only looked at a selective subset of the counties in this state.
If you were doing a recount in a municipal proceeding, I don't think anyone would take seriously the notion that, "Well, we've had some problems with our machine, so what we're going to do is recount in three of the 67 precincts here, and then we'll know who the winner is."
No, obviously you have to recount or apply the same standards throughout all 67 precincts so you can come to a judgment as to who indeed is the winner.
PARIENTE: Well, was it requested in the other 64 counties?
CARVIN: No. Notwithstanding their devotion to the manual recount as the only means of assessing voter intent in counting all votes, the Democrats did not request all 67 counties.
PARIENTE: Was there something that prevented your client from requesting recounts in the other counties?
CARVIN: Yes. They believe the process is inherently flawed and unconstitutional. But moreover, it doesn't matter if they requested it, because as I...
PARIENTE: Are you asking us to resolve that issue as to -- that is, if -- even if we said that everyone has a chance or a window period to request a recount in whatever other counties are in question, are you saying that it is the position of -- you're representing Governor Bush?
CARVIN: Yes, I am.
PARIENTE: The position of Governor Bush that he would not go along with wanting recounts in the other counties because the process is flawed?
CARVIN: No, your honor. I think we should follow the process that's set out in the statutes.
PARIENTE: But I'm asking you that question: Is that -- you're saying that recounts weren't requested because there was a belief that the process was flawed.
PARIENTE: What part of the process was flawed?
CARVIN: Well, as has been indicated, we think the process is entirely subjective, subject to mischief, and most important ...
PARIENTE: The manual recount process?
CARVIN: Well, the process, for example, that we were discussing in Broward County, today.
PARIENTE: But is it the manual recount process that's inherently flawed?
PARIENTE: And isn't that the exact process that is set forth by -- as has been represented to us, as the statutes reveal, in Texas law, for this exact process to take place where there's manual recounts? And that those are preferred over the machine recounts?
CARVIN: I really don't know what Texas law is. I know in Florida, though, there is no preference for manual recounts over machine recounts.
ANSTEAD: But the statute provides the opportunity for a manual recount.
CARVIN: Right, but it requires ...
ANSTEAD: So the legislative -- if that is the case, then the legislature should delete that from the statute.
CARVIN: No, no, obviously they coexist quite comfortably. It says you've got to get your returns in in seven days. That's the mandatory part of the statute. You have an option to do a manual recount or two other things, if you find that there is a problem. Or you don't have to do a manual recount at all.
PARIENTE: So you wouldn't have objected if the county had completed it within seven days, the manual recount?
CARVIN: Oh, yes, no, it's -- I want to really emphasize the point here, that notwithstanding petitioner's position, the secretary did not express any preference for machine counts over manual recounts. She expressed a preference for timely returns over those that were two or three weeks late, whenever they will come in. There are manual recounts in the certified numbers that she will certify when and if this injunction is lifted.
There is no preference because the secretary, like the legislature, was agnostic as to whether or not you used the machine recount or a manual recount. They made no judgment as to which one was more accurate, which is really the basic flaw in petitioner's argument. They want this court, on the basis of no evidence, to enter a judicial fiat that the only way to discern voters' intent is through manual recounts.
But we do know what the voters' intent is, at least presumptively, because we have certified returns from 67 counties sitting in the secretary's office. Those votes have been tallied and calculated in precisely the same way that every Florida election, up until this time, has been calculated, and no one has ever suggested that it is somehow inherently flawed.
ANSTEAD: What is the purpose, then, of having a statutory scheme that allows for manual recounts at the option of these local canvassing boards?
CARVIN: I assume it's because in some circumstances, maybe, manual recount, the legislators thought, would be preferable. And they said, "Look, if in your circumstance you want to do this way, go ahead and do it. But you've got to do two things, if that's your preferred course. The first is, you have to do it quick. And if you have problems doing it quick, you need to assign enough people to get the job done."
We understand, obviously, that larger counties are going to have a lot more votes to count, but we also understand that larger counties have a lot more money and resources and staff that they can devote.
ANSTEAD: So effectively, if you're asked on the sixth day to do it, the answer has to be no in a large county because it can't be done.
CARVIN: Remember, your honor ...
ANSTEAD: Would you just answer that question?
CARVIN: I would ...
ANSTEAD: Effectively, if you're asked on the sixth day -- that is, the local canvassing board -- the answer has to be no because in a large county it can't be done.
CARVIN; I would think that's true, but who is that unfair to? The candidate -- the losing candidate who has waited and waited and waited before he even asked that this process begins? Surely if he thinks a manual recount will affect the outcome of the election, it's utterly improbable that that he will wait until the time when the recount can't be done before he even makes the request.
So I don't think that's a glitch in the statutory scheme.
ANSTEAD: Have you researched the statutes in other states to compare them to Florida's?
CARVIN: I'm not aware of whether they're mandatory or not. I know that there's never ...
ANSTEAD: No, I'm just asking whether you have researched other states to see whether they have comparable statutory schemes. Have you?
CARVIN: No, I'm not aware of ...
ANSTEAD: I mean, you haven't researched other states is what your answer is?
CARVIN: No, no, I'm ...
ANSTEAD: You haven't, OK.
CARVIN: I was thinking ...
SHAW: Did I understand your previous answer to be that you would not be interested in opening up this window of opportunity under any circumstances since you believe that the system is flawed?
CARVIN: Your honor ...
SHAW: Was that your answer?
CARVIN: My answer is that anything which departs from the rules that were set before Nov. 7, before the election, by the Florida legislature, would be a gross abuse of discretion and impermissible.
And that's why we have deadlines, and that's why we have uniform rules, because we want election contests to be decided, not in this fevered partisan environment where everyone knows that the way they proceed in counting ballots, or whether they use a two-corner rule versus a dimpled ballot, it may well affect the outcome of the election, because that introduces subjectivity and partisanship into it.
And that is why it is very important that we follow the rules that are set forth in the statute that were written by the legislature long ago ...
ANSTEAD: But there are also rules in the recount process too; that it's open, and that there be people there for both parties, and that there be an opportunity to observe what happens, and that it is an open and fair system, subject to people's differing opinions, but it's not closed?
CARVIN: Yes. And, of course, if that is the preferred methodology. At the end of the day, if you grant the relief petitioners seek, only three counties or four counties will have gone through that open and fair process; 63 counties will not have.
And if petitioners are correct, that machine recounts are somehow inherently unreliable, and for some reason they are disproportionately rejecting ballots with the name Gore on them rather than the name Bush on them, then those people will have been disenfranchised.
The point I'm trying to make is, at the end of this long and arduous journey as we wait for Dade County's returns to come in, we'll be in no better position to know who the true winner is in Florida then than we are today.
And that's exactly why the legislature said, look, here's what you do: Take all the returns in, pursuant to a methodology that we've used for decades; certify those results. If petitioners have the kinds of proof that they assert they have in their brief, then it should be fairly simply matter to show that legal votes illegally were rejected by the machines and it could affect the outcome of the election.
PARIENTE: So you have no objection, then, to these manual recounts to be going on while at the same time a contest is filed?
CARVIN: I have no objection, but I will point out that the law doesn't contemplate superfluous acts. Now, obviously, once ...
LEWIS: Wait. Wait. Wait.
You're going back to -- excuse me.
You seem to be saying, on one side, that you don't need to go through this process. Then on the other hand, you're coming back in and suggesting, well, it would be improper to go through the recounts. And then you're saying that, no, you don't have to go through the recounts because that's part of the contest process.
I mean, at some point we have to understand which is it. Is it part of the contest? Is it to stop? What's to happen?
CARVIN: Yes. And I would again go back to the legislative scheme, and I've been confusing on this I'll try and clarify it.
What I am saying is that the certification process doesn't, as petitioners have acknowledged, involve the secretary in determining the accuracy of the votes up front. The certification process gives to the county boards the ability to conduct a manual recount so long as they do it in a timely manner.
LEWIS: And what happens if it's not there in seven days?
CARVIN: Well, here we ...
LEWIS: Should they stop?
CARVIN: No. What we have here, which is they do have certified returns on file. And obviously, if they can't finish the job, then those are the returns that declare the winner.
LEWIS: What do they do with the recount? Does it stop?
CARVIN: I would think that would certainly make sense, but I don't think the legislature contemplated that eventuality because I don't think the legislature ever contemplated people continuing to count past the time that the votes were tallied.
LEWIS: If it stops, then it cannot be part of the contest then, correct?
CARVIN: Oh, well, what I meant by a contest is what they would do is ...
LEWIS: Under 168.
CARVIN: Yes, exactly.
LEWIS: So it cannot be -- if it stops, how can it still be part of a contest? That's what I don't understand.
CARVIN: Oh, no, I'm sorry. I think your proof in a 168 would not be, again, on these chads and all of that. I think you would point out, which they claim they can do, that the machines have improperly counted.
LEWIS: But you wouldn't have the recount to prove that, correct?
CARVIN: Well, obviously, if the machines -- the margin of error of the machines is so bad that they can't accurately predict the winner, then you would be able to show, under the 168 procedure, that the margin of error is such that it wouldn't affect the -- it could affect the outcome of the election.
LEWIS: But you would not have the recount, correct?
CARVIN: Oh, I don't -- no, but I don't see -- think there would be any problem in producing -- just so I'm quite clear, Mr. Justice, that -- producing that kind of evidence in an election contest procedure.
You could go through -- I mean, as I understand it, we're almost through in Broward and these other places, and instead of having every court in Florida resolving on an ad hoc basis the kinds of ballots that are valid and not valid, you would be centralizing that factual inquiry in one court in Leon County. So you would bring some orderliness to the process, and they would be able to resolve that evidentiary question.
One way or another, a court's going to have to resolve it.
WELLS: Justice Quince?
QUINCE: Let me ask you, really simply, on a machine-counted ballot, where someone has gone to the polls and they have punched the hole properly, but for whatever reason the chad didn't fall out, are you saying, under your analysis of this -- and even if this happened to half of the ballots in the county -- that there is nothing that can be done?
CARVIN: No, obviously, if there was a machine malfunction that...
QUINCE: No, I'm not saying there is a machine malfunction. I am simply saying that the person punched the hole, whatever hole they wanted to punch, but, for whatever reason, the chad did not fall out, what would we do with all of those ballots?
CARVIN: I think we'd have to know whether or not the ballot -- the hole didn't fall out because the person punched and the machine malfunctioned and it didn't go out, or whether the person intended to punch where the hole was.
LEWIS: That's the crux of the matter.
CARVIN: And that's ...
LEWIS: It's not a machine malfunction, is it, when the punch -- falls down?
CARVIN: My only point is, your honor, you don't have the voter in front of you; you have the ballot in front of you. And what you need to do is -- what's been going on is, look at the ballot, pursuant to some objective criteria, and determine whether or not the punch, if you will, is sufficiently strong, showing that the voter intended to do that, to figure out whether or not they intended it.
But as we know, and as the colloquy before indicates, that is a standardless and subjective inquiry, which there are no Florida rules on, and that is why they are asking you for some guidance.
My point is: How can this court, after the election has been held, start deciding -- resetting the statutory deadlines, reanalyzing statutory terms for resolving empirical questions of the sort that you're discussing, and redoing everything that reflects a considered judgment that's already in the election code?
QUINCE: But that still sounds like you're coming back to all of these ballots would just be not counted, all of those voters would be disenfranchised.
CARVIN: No, no. And I want to make it quite clear. If they did a timely manual recount, all of those ballots would be included in.
Now, let's assume that they would not. Let's assume that they were not.
Then they would be in precisely the same position as all the other voters in Florida. But I don't think the people in those 63 counties were disenfranchised, because the legislature did not believe that manual recounts were the only proper way of discerning the voter's intent. And for the court to disagree with that would require this court to ...
QUINCE: Well, what other way would you determine the voter's intent? If it's not picked up by the machine, and you don't do it manually, how do you determine?
CARVIN: The question is accurately assessing the number of votes. And you only get to the question of the voter's intent, either in a contest election or in the protest election under 166. And I would think you would do it presumably in the same way in both contests. My only point is, there are no standards established by federal law, which is why we have ad hoc switching back and forth.
And I would urge that the court not, after the election has been held, change the rules by which the election should be conducted.
WELLS: Mr. Carvin, I thank you. We should let Mr. Richard have his time, if he is going to use it.
CARVIN: One final point, he also represents...
CARVIN: ... Mr. Bush, and I just did want to bring the court's attention very quickly, if I could, to 3 USC, Section 7, which makes it clear that the federal courts -- federal law will not allow this court or the Florida legislature to change the rules of the election after the election has taken place, to avoid precisely the evil I have been discussing, which is that there will be ad hoc decision making that could be influenced by subjective or partisan concerns.
CARVIN: Thank you.
WELLS: Thank you, Mr. Carvin.
Does Governor Bush have five more minutes for Mr. Richard? OK, thank you, sir.
RICHARD: May it please the court, when all is said and done, when questions posed by this court have been asked and answered, we come down to a single, final issue, which is this: What the appellants are asking this court to, and, in fact, what the court must do in order to arrive at the conclusion that they seek, is read a statute that says that returns must be filed by a date and time certain as though it said, "may be filed"; to read a statute that says that the secretary of state may accept late filed returns as though it says, "must accept late files returned"; to disregard a statute that says that the secretary of state's opinion as to election matters is binding upon all those officers and agents within the election system; and to disregard the well-established and long-standing doctrines regarding clearly erroneous standard and implied repeal.
WELLS: Would you address the question that was posed before, that if we stop or if you have the seven-day cutoff, do recounts stop at that point, or do recounts continue to be used as part of the contest?
RICHARD: Well, I think the recounts must stop if the seven-day cutoff occurs, unless the secretary of state in the exercise of the discretion that the Florida legislature has given her, determines that there is rational reason for them to continue.
It is the job of the secretary of state, it has been reposed in her by the legislature and two constitutions. The United States Constitution and the Florida Constitution, in unusually explicit language, have delegated that decision, not to the state of Florida, not to the courts of the state of Florida but to the legislature of the state of Florida.
And the legislature of the state of Florida has reposed that authority in the secretary of state.
Now, in order for us to do anything else, this court would have to disregard the most fundamental principles of separation of powers and do what this appellant -- these appellants are asking, to step into the shoes of both the legislative and the executive branches, to rewrite these statutes and to begin the process, which I suggest to this court is never-ending, of sitting as a determiner of an ultimate arbiter of the minutiae of facts that go into the election process.
WELLS: Justice Quince?
QUINCE: Yes. Would you agree that the parties, the party, meaning the political party, and the candidates have a right to request a manual recount? Correct?
RICHARD: They have a right to request it, although, interestingly, their request has no meaning under the statutes. It's entirely within the arbitrary discretion of the canvassing boards.
QUINCE: All right. And assuming that the canvass board says, "Yes, we will do this," how do you square that statute with the seven days? If in fact -- supposed it's asked the very day after the election, yet for whatever reason it cannot be done, completed, by the seventh day. How do you read these two statutes together? How do you make sense of it?
RICHARD: Somebody, whatever the date may be, whatever it may be, there's going to be a date. It's to the legislature to decide what that date is.
And if somebody fails to reach it, some agency of the state of Florida must decide whether or not there was a rational, acceptable reason for failing to do so. The Florida legislature, which two constitutions have given that power to, has decreed that the agency that shall do it is the secretary of state, not the courts.
QUINCE: And what are the guidelines for the exercise of what you see as that discretion?
RICHARD: Well, the legislature has established no guidelines. The guidelines that this court has established, as long as institutional memory exists, is whether or not the exercise by that state agent is clearly erroneous. And I suggest to this court that the appellants have given this court no basis in this case for finding that the secretary of state's decision was clearly erroneous. That's the issue.
And whether or not history ultimately looks kindly upon what we do here, I believe, will depend upon whether we have abandoned those principles of law and statutory construction and separation of powers that we have adhered to for so long.
PARIENTE: Does the statutory scheme contemplate that there be initial returns first filed within a certain period of time?
RICHARD: Well, the statutory scheme contemplates that there will be only two things, one set of returns filed seven days by 5 o'clock, seven days after the election, and a second set of returns mandated only because the federal law takes precedence over the states and because -- only to the extent that there's a conflict, the state must therefore comply with it.
The suggestion by the appellants ...
PARIENTE: But the secretary of state cannot certify official results until she receives the absentee ballots, and the official results also include manually counted ballots. Don't we also have to look at those portions of the statute and read them to come up with a logical hole in this case?
RICHARD: Justice Pariente, I would suggest that that is not the statutory scheme that the legislature has given us. The suggestion by appellants that there can be continuous certifications and supplement certifications is not what the statute says. If you'll read the statute, it says there is one certification mandated by 5 p.m. seven days after the election, and that's the only one.
The only reason there's a second one for overseas absentee ballots is because the federal Congress has stepped in, as they have the right to do, and has said that the states must allow that. But only to that extent.
WELLS: Mr. Richard, your time is up. Thank you very, very much.
RICHARD: Thank you, Chief Justice.
WELLS: And on behalf of Mr. Butler, Mr. Mardenborough?
MARDENBOROUGH: Mr. Chief Justice, may it please the court, yourhonors, I'm here representing a voter, and I'd like to spend thenext few minutes talking about what this entire process has reallymeant not from the voters in South Florida's perspective, but whatit really means to the voters in the other 63 counties in the stateof Florida.
And the first thing that I'd like to clear up is, JusticeParienti, you asked a question before that said something like,could the voters have asked for a recount? And they couldn't. Thereis no right under Florida statute that would allow the voters toever ask for a recount under these circumstances.
WELLS: And on behalf of Mr. Butler, Mr. Mardenborough?
MARDENBOROUGH: Mr. Chief Justice, may it please the court, yourhonors, I'm here representing a voter, and I'd like to spend thenext few minutes talking about what this entire process has reallymeant not from the voters in South Florida's perspective, but whatit really means to the voters in the other 63 counties in the stateof Florida.
And the first thing that I'd like to clear up is, Justice Parienti, you asked a question before that said something like, could the voters have asked for a recount? And they couldn't. There is no right under Florida statute that would allow the voters to ever ask for a recount under these circumstances.
MARDENBOROUGH: Now, unfortunately, we spent the last hour and a half to two hours, and certainly the last few weeks, listening to everybody trumpet the rights of the voters. But the rights of the voters aren't what this is about. This is about the crafty use of a statutory scheme in an attempt to skew election results. And that's just not appropriate.
The legislature set up a statutory scheme that puts two different levels of challenges to election returns. That's been talked about now for a while. The first part is the protest period. The protest period is a separate and distinct thing from the contest.
PARIENTE: But the protest can be asked for by any elector qualified to vote in the election.
MARDENBOROUGH: That's absolutely true, but that's not true when it comes down to the manual recount provision. If you look at subsection 4 of section 102.166, that provides only that a candidate, a political _ well, in fact, when it's a person being voted for, it's just a candidate or a political party that can ask for a manual recount. A voter cannot ask for a manual recount.
PARIENTE: But they can _ they have a right to protest.
MARDENBOROUGH: Well, they can ask _ they can do the other portions of the protest provisions, but those do not include a manual-recount right.
PARIENTE: Well, that's what you're _ since section 1 was here before section 3 and 4, and since there were manual recounts in the state of Florida before 1989, we must assume that the right to protest carried with it a right, if the court decided, to have a manual recount.
MARDENBOROUGH: Well, if a court decided to have a manual recount, that may be true. But there's certainly not a right for a person, a voter, to go in and ask for a manual recount.
Just as you pointed out, subsection 4 was added later, but the legislature specifically restricted who could ask for it. Under the normal principle, though, that when a legislature identifies certain parties that can do something and they omit other parties ...
SHAW: But here ...
MARDENBOROUGH: ... they appear to mean it.
SHAW: The canvassing board has authorized it, has it not?
SHAW: Hasn't it authorized a manual recount?
MARDENBOROUGH: It is authorized manual _ I'm sorry?
SHAW: We are past the request period. The canvassing board has authorized the manual recount.
MARDENBOROUGH: That's true, in the counties that we're talking about. But there was a request made in all of those counties by one of the statutorily permitted people within the 72 hours. Although some of these counties have just now made a decision, they were asked to do this two weeks ago or 10 days ago.
But the problem here is the voters in the rest of the state of Florida couldn't do that. And we believe that that's probably not constitutional. We believe that it violates the equal protection rights of all of the people in the other counties in the state of Florida, because their right, to the extent that it is provided by a statue, to have their ballots looked at to see whether they made a complete punch through their punch card is dependent solely on where they live and whether or not they're lucky enough to have a candidate or political party asked to have somebody look at their cards.
And I understand that Governor Bush may have had good reasons and he may not trust the process and may not like the manual recounts. However, his decisions shouldn't affect the rights of the voters. Again, I think it was said earlier, the real parties in interest here are the voters, but they can't even ask for it.
PARIENTE: Is it your position that the right to have a manual recount should be open to any county where that decision is made by the county canvassing board?
MARDENBOROUGH: I'm not sure if I understand your question.
PARIENTE: Aren't you saying now that _ the way that you're saying _ you're raising a constitutional attack on the fact that voters do not have the right to request a manual recount. Is the remedy then _ what is the remedy you're seeking? And if you sought it within this ...
MARDENBOROUGH: Well, I need to be completely candid here. Because we were an intervener, that wasn't specifically asked for in this case. That has been addressed in Leon County Circuit last Friday, and that decision of Judge Clark has been appealed. I'm not asking you to rule on the constitutional issue.
What I'm pointing out, though, is that the scheme as it exists is unfair. And one of the things that it really comes down to is, if you look at the difference between a protest and a contest, you can find some fairness to take care of that. And here is why. If there is a protest, somebody goes to the local canvassing board and says, "We want to pick in our little area; we think we can change the votes in this little part of the state; we think that in Palm Beach County, we can change the votes." But that doesn't take into account that there may be a lot of changes that would happen if you did it through the rest of the state. It's a completely local decision that has statewide ramifications.
The legislature in its wisdom said these protests are going to have to be done _ at least the results are going to have to be done within seven days. They said that the results have to be certified within seven days.
Now, we happen to take a different position on whether or not those manual recounts could go on.
It may be that the legislature intended that manual recounts can keep going, but they're of no use in that certification process. They may become evidence at some point in a contest.
The difference _ and this is a fundamental and a critical difference in this case _ is that when somebody is contesting the election, as it's been discussed before, they would be doing it in a Leon County Circuit Court because the statutes recognize that if an election is going to deal with or affect more than one county, it shouldn't be local; it's going to come up here and a judge here is going to have to make that ultimate decision under the case law that's been set forth by this court as to whether or not the results would change _ whether any ultimate findings would change the results of the election.
That would mean that a judge wouldn't only be looking at: "Did you end up getting a few more votes in a few select counties, chosen by a political party?" But it would also take into account a consideration as to, "Well, what if that same standard had been applied to the rest of the state? If we got some more votes by checking punch cards in the heavily Democratic parties, what would have happened if the same thing had happened in the other counties?"
And that's a factor that a judge could take in a contest, an election contest. And that's exactly why we believe that the Florida legislature provided for both a protest provision and a contest provision.
If this court were to take the protest provision the way that it's being suggested by the appellants, there's never any need for a contest. There would be absolutely no purpose in the Florida legislature having a section of Florida statutes that defines how an election contest works, because they're saying everything gets done before you even certify it.
MARDENBOROUGH: They're saying the secretary of state has to sit back and cannot certify the winner until everybody's disagreements have already been resolved.
The problem is, there is no arbiter to make a decision about the disagreements. There is nobody who makes the factual decisions there. It's just local canvassing boards making decisions based on choices of candidates, whether or not to look at ballots again. There's nobody who's actually looking to see whether overall this is going to change the results of an election, and that's ...
QUINCE: Well, why isn't it really what they're saying is that you don't have a contest, an election contest, until you have had the procedure that concerns a protest? Because there _ certainly, you can go through this protest procedure and still get to the contest procedure.
MARDENBOROUGH: Certainly. However, the legislature wrote both of those provisions. The legislature said there's going to be a protest provision, but the legislature also wrote that there is a seven-day deadline for getting the certifications in.
And for this court to _ the first step this court has to take in interpreting that statute is, can you read that whole thing together? Can you look at chapter 102, and can you read it in a way that all of the provisions actually make sense so you don't have to just ignore one of them? Because you're being asked to ignore the seven-day rule.
You can read that entire statute together in a way that makes perfect sense by simply recognizing that the protest period, which conceivably could even be asked for after certification takes place, because they've got 72 hours from the time that the results are certified, so if somebody certifies the results and ...
QUINCE: I thought the provision was 72 hours or before the votes are certified. It seems to me that that provision doesn't allow for the protest once the votes are certified.
MARDENBOROUGH: I'm sorry, I don't have the specific ...
WELLS: Those time standards are in the alternative with the later date prevailing, are they not?
MARDENBOROUGH: Right. Yes.
QUINCE: So you either have the 72 hours or the time of certification?
QUINCE: I think that it's certainly conceivable _ and, in fact, I think the only reasonable assumption is that the legislature knew that sometimes there were going to be protests that were going to be going on and that the legislature recognized that sometimes there were going to be manual recounts that were going on, and it still chose to leave the seven-day deadline in there.
They didn't eliminate the seven-day deadline, and when they _ I see my time is up.
WELLS: Thank you, Mr. Mardenborough.
Mr. Hancock, as I indicated, I think you have 3 1/2 minutes. And I would pose this question to you, and I'd like for Mr. Boies to also respond to it:
In Section 5 of Title 3, they specifically refer to contest, in that it's for final determination of any controversy or contest concerning the appointment of electors of such state. Now, under our statute, which is 168, those contests cannot begin, as your opponents say, until such time as the ballots are certified, under its express language.
Now, why isn't it correct that we are jeopardizing with each passing day Florida being able to have its votes counted in the Electoral College, if we don't allow the certification?
HANCOCK: Because the first _ the 168 provisions do not relieve county officials of certifying election results correctly in the first instance. We know here, from Palm Beach County's situation, as Justice Quince points out, that people have cast ballots that under the laws of this state, opinions of this court, are valid votes; they have not yet been counted.
Once that final count is done, then the procedure for contests kicks in. That is a completely different procedure. That places a burden on a plaintiff to prove that the election results are wrong. Again, however, in the first instance, that burden is on the county election officials to certify a correct result.
If I may correct, Justice Anstead, Professor Rogow has asked me to correct a statement he made to you. In fact, the Palm Beach County Canvassing Commission did request the attorney general to issue the legal advisory opinion that was issued on the 14th.
HARDING: Mr. Hancock, we have _ the chief justice has asked a question, and I don't know whether you want to use your time to rebut your co-counsel or not, but where do we find, from this record, the limits that we are to set in making a determination that we've been asked to say the votes have to be in by a certain time so that the contest provisions can kick in?
Where do we find, from what has been filed before us, the wisdom to do that?
HANCOCK: Justice Shaw suggested giving that authority to the secretary of state. We would suggest if the court considers that, that the court sets standards. The standards should be that the counties are entitled. And the paramount interest in doing this is to recognize voter intent. The counties should be given all reasonable opportunities to complete the process, consistent with the time obligations, in a manner that recognizes voter intent.
HARDING: Is it the position of the attorney general that _ although we don't have Miami as a part of this case, it's been mentioned several times _ that they have just not decided to start their manual recount until today. Would that fall within a "reasonable limitation," to say this is just too late to do that?
HANCOCK: Your honor, I'm not sure of all the facts in Miami. My understanding was that they requested _ they first _ there was a request, they decided not to do it and then reconsidered that request. I'm not sure _ obviously, the request has to be timely to be considered.
HARDING: And under the circumstances of this case, do you have an opinion as to whether that would be timely?
HANCOCK: I don't have an opinion.
One other point, if I could. Justice Pariente expressed concern about the dilution of votes with recounts. Obviously, no one's vote is diluted in a legal sense by counting other valid votes. We are concerned, as you are, about other counties that don't have this process.
One remedy that the court might consider is having a recount statewide. The problem is, as you correctly point out, is on counties using machinery to vote punch cards. It would be appropriate, perhaps, to review those punch cards in those instances where a vote for president or vice president was not recorded to determine whether the intent of the voter could be ascertained. That would not be a major burden on any county of the state. And those counties with optical scanners would probably find that the ballots were being read properly.
PARIENTE: Could you comment _ oh, I'm sorry.
Could you comment on the federal statute that was referred to as to whether this court in fact does have the authority? Or are we treading into the separation of powers by making such a determination in this case?
HANCOCK: No, this court clearly has the power. In the Hartke v. Roudebush in the United States Supreme Court, which was another _ was a United States Senate election _ clearly said that that was a matter that was left to the discretion of the state, pursuant to the same article of the Constitution that's at issue here.
WELLS: Thank you, Mr. Hancock.
BOIES: Your Honor, let me make two preliminary points. One, I want the court to understand what the nature of the other side's argument is. They say that what they want to do is have a contest. But what they have said, and what they have said also even to this court, although maybe not as directly as they might, is their view is, once the results are certified, then the recount becomes superfluous and ought to stop. And, second, that as soon as the results are certified, the secretary of state can, under 103.011, declare who the electors are.
BOIES: And it is their view that when that declaration of the electors has been declared, it's over with.
So one thing that I would urge the court is that when there is a deadline so that a contest can start, that the court stay the declaration, under 103.011, so that we're not faced with an argument that says it's all over and the contest has become irrelevant.
WELLS: But you would have to agree that at some point in time between now and Dec. 12 or 11 or whenever it is, that Florida's votes are going to be in jeopardy.
BOIES: Your honor, I think they need not be, for the following reason. We don't believe that Section 111 or 112 or Chapter 102 says there is one and only one certification. That's what they argued, but you won't find that anywhere in the statute.
In fact, in 102.111, what you find is a discussion of returns, the returns, and then the official returns. And the official returns, as we've said before, is defined in 101.5614 Subsection 8 as being returns that include not only the initial returns, but the absentee ballots and the manually counted ballots.
There is nothing, in our view of the statute, that precludes them making a contest under 168 of the certification that has already been filed with respect to the votes other than the manually recounted votes.
WELLS: The statute says it's the last certification, the last county canvassing board certification. That's what 168 says.
BOIES: Yes. And the last county certification for every county, except these three. And they talking about the overseas ballots, and they were talking about other things, they said they wanted a contest. Except for the three counties, the last county certification in those counties has already been made. And each of these three counties have also made the initial certification on 5 p.m. last Tuesday.
We think that there's nothing in the statutory provisions that prevents a contest with respect to what's already been certified from going forward while the supplemental returns from the manually recounted ballots are also going forward.
PARIENTE: But there's no way for it, presuming that it's Governor Bush that would have the right to contest the manual recounts that are being conducted in at least two out of the three counties, for there to be a record in order to contest that, those have to be completed.
BOIES: Absolutely right, your honor. And in order to allow him to contest the manually recounted ballots, you must have a deadline for that, too.
My only point was ...
PARIENTE: Now we go back to this. Deadline is not in the statute. How do we have the authority to set a deadline?
BOIES: Because what this court, I would respectfully suggest, has to do is to reconcile the entire statutory scheme. And the statutory scheme, long before there was this election, provided for manual recounts.
And this court, I suggest, cannot presume that the legislature meant to provide for these manual recounts and yet to make that an illusory right by having a circumstance where they could not be practically taken care of in what was the most important election that this state has perhaps ever seen.
I think that the standard is exactly the standard that the chief justice has referred to, which is when will the date be such that passing that date endangers the ability of certifying and finalizing any contest that may result so that votes of Florida are not in peril? And I believe that that's not an issue in this particular situation, because the counties have said that, "If you'll tell us what the standard is and leave us free from interference, we can get this done in a matter of days."
Now, Broward County stopped because they were told to stop. Then they started again after this court said they could start. And you know what happened? A Republican official or Republican attorney subpoenaed the canvassing boards to a circuit court and the counting had to stop.
WELLS: That's not part of this record ...
BOIES: But, your honor, what is part of _ actually, I think, the court could probably take judicial notice of what happens in a circuit court.
But I think the thing that's important for the court to understand is that this is a process that if people will simply get out of the way and let it continue, can be done in a matter of days.
This court could, if the court would, just give the county canvassing boards ...
QUINCE: Where in the record would we find that it could be completed in a matter of days?
BOIES: Well, your honor, in the _ I think it's Exhibit G, to one of the, to the exhibit that was filed in the circuit court, Judge Lewis' court, that is now part of this record, you have the letters from the various counties, Broward, Dade and Palm Beach. And I think that the Broward County letter, for example, includes an estimate of that. It also includes a detailed statement as to why they had not gotten it done before. And that is in the record.
I also think another way of approaching it, is to say: "We'll give the standard to apply; we'll tell you to get it done in seven days." If the court were able to do that, you would certainly have enough time after that to complete a contest.
And I'm not urging in any way that this court do anything that will imperil Florida's electoral votes. What I am asking is that the court use its power to make sure that all the votes of the voters in Florida that have been cast for those elections are counted.
WELLS: But would you agree that if the court lifted the injunction and allowed the certification to be made that absolutely there wouldn't be any imperil as to Florida's votes?
BOIES: I would agree with that, except to the extent that if you did it in a way that permitted them then to declare the electors under 103.011, what you would have done is you would have electors that were not, in our view, the electors elected by the people.
PARIENTE: Well, are those two different statutes then? Is that the only problem, 103.011? Or is it the certification under 102.111?
BOIES: I think that if the court were to make clear that the certification under 103.011, the declaration of the electors, was stayed pending the result of any contest, and were to make clear that the manual recount continues and will be considered, I think under those circumstances, having whatever certification is required under 102.111 to permit the contest period to begin would not prejudice anyone.
BOIES: We believe that that period can already be taken advantage of. That is, we believe that because 102.111 refers to both results and official results, and official results is defined elsewhere to include manually recounted votes as well as the initial return. And the contest statute does not depend on the official results being certified, but on the results being certified.
I think our view is that, under the current statutory scheme, they can or anyone can file a contest with respect to the votes that have been certified.
Obviously, you're entirely correct that even with respect to the recounted votes, those have to be done within a time period that allows a contest of those votes. But because those are a relatively small number of votes, that is a period of time that we are well within.
So that, I think, one solution that would prejudice no one would be to provide that a party could file a contest with respect to the votes that have already been certified, that is, the nonmanually recounted votes, right now _ because they're not the official results, but they have been certified _ and to provide that the manual recount would be completed within seven days of the court's order defining what the standard is.
WELLS: Mr. Boies, I think your time is up.
BOIES: Thank you very much, your honor.
WELLS: The court is very appreciative and indebted to counsel for each side who has worked so hard and long on the presentations here and on what has been presented to this court for the court's benefit in attempting to arrive at a fair and just solution in this case.
We also are very appreciative to our guests who have been here in the courtroom for the argument today.
I make one final request of you, and that is that we now recede from the courtroom on the basis that all counsel be permitted to exit the courtroom and the building, so that all post-argument interviews will be conducted not in the rotunda here but outside the building. And then, our visitors will be asked, for security purposes, to exit the building after all counsel have exited the building.
Thank you and the court will be in recess.
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