Justices defer on recount standard
By SHELBY OPPEL
© St. Petersburg Times, published December 23, 2000
TALLAHASSEE -- Just days before Christmas, the Florida Supreme Court has a gift for state lawmakers so angered by the court's decisions in the presidential election:
The task of creating a standard for hand recounting ballots should be left to the Legislature, the court wrote in an opinion released Friday.
In the unsigned opinion, the court noted that the call for a recount "could not possibly be met" because of the U.S. Supreme Court's demand for statewide standards and that the dispute be resolved by Dec. 12.
"Upon reflection, we conclude that the development of a specific, uniform standard necessary to ensure equal application and to secure the fundamental right to vote throughout the state of Florida should be left to the body we believe best equipped to study and address it, the Legislature," the Florida court wrote.
The opinion was the justices' response to the Dec. 12 decision by the U.S. Supreme Court, which said vote recounts in Florida couldn't continue in part because there was no such standard. The high court's ruling ended the five-week presidential contest between Vice President Al Gore and former Texas Gov. George W. Bush, and effectively decided the election for Bush.
After the drama finally concluded ten days ago, Florida Gov. Jeb Bush appointed a bipartisan Elections Task Force to investigate problems in the state's voting system and make recommendations before the Legislature meets next spring. House and Senate leaders have acknowledged the need for changes, but it's unclear how extensive their actions will be.
Five of the seven justices concurred in Friday's unsigned opinion. Chief Justice Charles T. Wells and Justice Major Harding supported the result only. And through individual opinions, Justices Leander Shaw and Barbara Pariente provided a glimpse of the court's thinking.
Shaw, generally considered one of the more liberal justices, surprised some court watchers when he dissented, with Wells and Harding, from the court's 4-3 decision to order a hand recount of more than 40,000 ballots statewide that did not register a vote for president when they were mechanically tallied.
The ruling, on Dec. 8, breathed new life into Gore's bid for the presidency, before the U.S. Supreme Court quashed that attempt four days later.
In Friday's opinion, Shaw explained: "I dissented because I felt that the recount, as formulated, lacked sufficient guidelines and could not be completed promptly and fairly."
But, Shaw wrote, he doubted that the Florida justices could have come up with a solution to satisfy the nation's highest court.
"Given the tenor of the opinion in Bush vs. Gore (the Dec. 12 ruling), I do not believe that the Florida Supreme Court could have crafted a remedy under these circumstances that would have met the due process, equal protection, and other concerns of the United States Supreme Court," Shaw wrote.
Shaw, appointed by Democratic Gov. Bob Graham and facing retirement in January 2003, wrote that "human failings" led to a "surreal" election:
"All the king's horses and all the king's men could not get a few thousand ballots counted. . . . We are a nation of men and women and, although we aspire to lofty principles, our methods at times are imperfect," he wrote.
Shaw, an African-American, also offered an eloquent tribute to the right to vote:
"It was not too far in our nation's past that throngs of citizens marched in the streets to protest the suppression of this right and risked being beaten with nightsticks and set upon with tear gas, fire hoses and dogs. Some were jailed. A few -- men, women and children -- were killed. The suppression of this right is now anathema to this nation."
Pariente, appointed by Democratic Gov. Lawton Chiles in 1997, issued a stronger warning and suggested specific solutions to lawmakers considering changes in state election law.
"What should concern all of us is not whether the uncounted votes were for President-elect Bush or for Vice President Gore, but that thousands of voters in Florida did not have their votes included in this state's presidential election," Pariente wrote.
Among Pariente's suggestions:
To consider including in state election law the "automatic" option for a candidate to request a statewide hand recount, in addition to the machine recount now required, when the margin of victory is less than one-half of a percent of votes cast.
To establish more specific standards to govern county canvassing boards' decisions to conduct hand recounts.
Pariente singled out Miami-Dade County, where the canvassing board's decision to stop a full manual recount meant that "some voters . . . whose votes were not recorded by machine never had their votes counted in this election," she wrote.
In a footnote to her opinion, Pariente included a 19th century poem by John Greenleaf Whittier, The Poor Voter on Election Day, that she wrote "echoes the importance of this fundamental right to vote as the great equalizer between all citizens."
The poem reads, in part: "To-day, alike are great and small/The nameless and the known/My palace is the people's hall/The ballot-box my throne!"
Justice Harry Lee Anstead, who has become the biggest target for Republican-led efforts to oust the Florida justices who joined rulings that favored Gore, did not write a separate opinion.
Florida Supreme Court ruling excerpts
Excerpts from the ruling by the Florida Supreme Court:
Unsigned opinion fully supported by Justices Leander Shaw, Harry Lee Anstead, Barbara Pariente, R. Fred Lewis and Peggy Quince.
"The per curiam opinion of the (U.S.) Supreme Court held that the Florida statutory standard for the manual examination of ballots violates equal protection rights. . . . The Supreme Court ultimately mandated that any manual recount be concluded by Dec. 12, 2000. . . . In light of the time of the release of the Supreme Court opinion, these tasks and this deadline could not possibly be met.
"Moreover, upon reflection, we conclude that the development of a specific, uniform standard necessary to ensure equal application and to secure the fundamental right to vote throughout the state of Florida should be left to the body we believe best equipped to study and address it, the Legislature."
Justice Leander Shaw's concurring opinion.
"This case has torn the nation and the judiciary. It is quintessentially divisive and confounding. The problem, I believe, lies not in the partisan nature of the issues but rather in the deeply rooted, and conflicting, legal principles that are involved.
"A fundamental principle underlying all legal proceedings is the search for the truth. Once the truth is uncovered, we assume that a remedy can be fashioned. The present case posed a simple question: Who won the presidential election in Florida? The answer, in the eyes of many, also was simple: The truth lies in the vaults and storage rooms throughout the state where the untabulated ballots of thousands of Floridians are sequestered.
"A second deeply rooted principle is the right of suffrage. The right to vote, and to have each vote counted, is a pre-eminent civil right and has been won at great cost. It was not too far in our nation's past that throngs of citizens marched in the streets to protest the suppression of this right and risked being beaten with nightsticks and set upon with tear gas, fire hoses and dogs. Some were jailed. A few -- men, women and children -- were killed. The suppression of this right is now anathema to the nation. The right to vote, and to have each vote counted, goes to the very heart of this case.
"Both the search for the truth and the right to vote are of paramount importance, but they are circumscribed by a higher, overarching concern -- the general welfare of our democracy. . . . Although the pursuit of the truth and the preservation of the right to vote are worthy goals, they cannot be achieved in a manner that contravenes these principles.
Justice Barbara Pariente's concurring opinion.
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