No. 00-949
IN THE
Supreme Court of the United States
GEORGE W. BUSH, ET AL.,
Petitioners,
v.
ALBERT GORE, JR., ET AL.,
Respondents.
Brief on the Merits of Katherine Harris, Florida Secretary of State,
Katherine Harris, Laurence C. Roberts, and Bob Crawford,
as Members of the Florida Elections Canvassing Commission
Deborah K. Kearney Joseph P. Klock, Jr.
General Counsel Counsel of Record
Kerey Carpenter John W. Little, III
Assistant General Counsel Thomas M. Karr
Florida Department of State Alvin F. Lindsay III
PL-02 The Capitol Arthur R. Lewis, Jr.
Tallahassee, FL 32399-0250 Gabriel Nieto
850.414.5536 Ricardo M. MartÃnez-Cid
Steel Hector & Davis LLP
Bill L. Bryant, Jr. 200 S. Biscayne Blvd.
Katz, Kutter, Haggler, Alderman Suite 4000
Bryant & Yon, P.A. Miami, FL 33131-2938
Highpoint Center, 12th Floor 305.577.7000
106 East College Avenue
Tallahassee, FL 32301
850.224.9634 Counsel for Respondents
Brief for Respondents Katherine Harris, Florida Secretary of
State, and Katherine Harris, Laurence C. Roberts, and Bob
Crawford, as Members of the Florida Elections Canvassing
Commission
I. Summary of the Argument
The Supreme Court of Florida created many new provisions
in Florida's election laws on November 21, 2000, by applying
common law and constitutional principles to change the
opportunities for and method of conducting a manual recount,
changing the dates for election certification, authorizing
amendments to previously-filed certifications even after the
statutory deadline had passed, removing much of the discretion
granted to the Secretary of State to administer Florida's electoral
system, and granting significantly expanded powers to local
canvassing boards. Palm Beach Canvassing Board v. Harris , 2000
WL 1725434 (Fla. Nov. 21, 2000) ("Harris I"), at 3. This Court
vacated that order and directed the Florida court to clarify its
reasoning, which it has not yet done.
The decision below, the Florida court's second regarding
the presidential election, while acknowledging the legislature's role,
expands upon, and continues to give effect to, its first order and
further encroaches upon the legislative scheme and the powers
delegated by the legislature to the Department of State, the Division
of Elections and the Elections Canvassing Commission. In
particular, the decision (i) continues to allow manual recounting
based on mere allegations of voter error, (ii) creates a new counting
methodology, unknown in the legislative scheme, which allows vote
tabulation equipment to be used to screen votes for manual
counting, and (iii) creates what is in effect an absolute right to a
manual recount whenever the number of ballots counted with no-
2
vote for an office exceed the margin of victory of one candidate. In
addition, the court continued to apply, and actually expanded, the
alternative certification deadline created in its previous order. As
noted by Chief Justice Wells in his dissent, the decision of the
Florida court "has no foundation in the law of Florida as it existed
on November 7, 2000, or at any time prior to the issuance of [the
decision below]." Gore v. Harris , 2000 WL 1800752 (Fla. Dec. 8,
2000) ("Harris II") , at 41 (Wells, C.J. dissenting).1
These actions by the Supreme Court of Florida do
significant violence to the legislative scheme, in direct contravention
of the exclusive grant of authority over presidential elections
granted to state legislatures, makes post hoc changes to the Florida
electoral system, and raises serious and far reaching concerns that
would have been avoided by applying the Florida legislative scheme
as written.
II. Statement of the Case and Procedural History
Both of the Florida Supreme Court's decisions Harris I and
Harris II make substantial changes to Florida's Election Code, as it
existed on November 7, 2000.
A. The November 21, 2000 Decision of the Florida
Supreme Court ( Harris I)
In Harris I , the Florida Supreme Court changed the election
law of Florida as it existed on November 7 in several material
respects:
1
The text of this opinion can be found at Tab A to Petitioner Bush's
Index of Exhibits.
3
* County canvassing boards now have the authority to amend
certified returns filed within the statutory deadline for up to 12
days after the deadline for certification of the election results
to accommodate manual recounting (i.e., the protest period
was extended from 7 to 19 days);
* The Commission now must accept amended election returns
filed after the statutory deadline so long as the filing does not
violate the Florida Supreme Court's judicially-created
alternative deadline of November 26, designed to
accommodate manual recounting in this election;
* The Commission now is to ignore its statutory duty to certify
election results based solely on the returns filed within the
seven-day deadline set by the Legislature, so that late-filed
amendments may be submitted to reflect manual recounts that
extend beyond the deadline;
* County canvassing boards now enjoy broad discretion to order
manual recounts in selected counties for a statewide election,
even where the "error in vote tabulation" (i.e., the failure of
the tabulation system) required under the statute has been
found not to exist, irrespective of whether the recount will
extend beyond the statutory deadline for filing election
returns; and
* Where a uniform system of automated counting was
previously in place, Florida's votes, including votes for the
electoral college, will now be decided based on standards
developed by individual canvassing boards in selected areas of
the state.
4
From the outset of Harris I , the Florida Supreme Court
made clear that "hyper-technical statutory requirements" must give
way to the right of suffrage implicit in the Florida Constitution. See
id. at *4 ("the will of the people, not hyper-technical reliance upon
statutory provisions, should be our guiding principle in election
cases."); Id. at *6 ("all political power is inherent in the people").
After reviewing the relevant portions of the Florida Election Code,
the court observed that:
the County canvassing Boards are required to submit
their returns to the Department by 5 p.m. of the
seventh day following the election. The statutes make
no provision for exceptions following a manual
recount. If a Board fails to meet the deadline, the
Secretary is not required to ignore the county's returns
but rather is permitted to ignore the returns within the
parameters of this statutory scheme. To determine the
circumstances under which the Secretary may lawfully
ignore returns filed pursuant to the provisions of
section 102.166 for a manual recount, it is necessary
to examine the interplay between our statutory and
constitutional law at both the state and federal levels.
Id. at *11 (emphasis added).
The court then looked to principles of Florida constitutional
law and stated that the judiciary must "attend with special vigilance
whenever the Declaration of Rights is in issue," and that "[t]he right
of suffrage is the preeminent right contained in the Declaration of
Rights, for without this basic freedom all others would be
diminished." Id. at *12. In accordance with these general
principles, the court held that "the Legislature may enact laws
regulating the electoral process . . . only if they impose no
5
`unreasonable or unnecessary' restraints on the right of suffrage."
Id.
Looking as well to the principles of Florida constitutional
law for guidance, the court concluded:
Because the right to vote is the pre-eminent right in
the Declaration of Rights of the Florida Constitution,
the circumstances under which the Secretary may
exercise her authority to ignore a county's returns filed
after the initial statutory date are limited. The
Secretary may ignore such returns only if their
inclusion will compromise the integrity of the electoral
process in either of two ways: (1) by precluding a
candidate, elector, or taxpayer from contesting the
certification of election pursuant to section 102.168;
or (2) by precluding Florida voters from participating
fully in the federal electoral process. In either such
case, this drastic penalty must be both reasonable and
necessary. But to allow the Secretary to summarily
disenfranchise innocent electors in an effort to punish
dilatory Board members, as she proposes in the
present case, misses the constitutional mark. The
constitution eschews punishment by proxy.
Id. at *15.
This Court subsequently granted Governor Bush's petition
for certiorari review to address whether the Florida court's decision
conflicted with federal constitutional and statutory law. Bush v.
Palm Beach Canvassing Board , 2000 WL 1731262 (U.S. Nov. 24,
2000). On December 4, 2000, this Court issued an opinion in
which it vacated the Florida Supreme Court's decision. Bush v.
6
Palm Beach County Canvassing Board, 2000 WL 1769093 at *4
(U.S. Dec. 4, 2000). In its decision, this Court asked the Florida
Supreme Court to clarify its opinion concerning its impact on the
legislature's power to select the method of appointing electors for
President and Vice President of the United States in light of 3
U.S.C. § 5 or article II of the U.S. Constitution. Id. In so doing,
the Court counseled:
Since § 5 contains a principle of federal law that would
assure finality of the State's determination if made
pursuant to a state law in effect before the election, a
legislative wish to take advantage of the "safe harbor"
would counsel against any construction of the Election
Code that Congress might deem to be a change in the
law.
Id. at *3. The Florida Supreme Court has not yet responded to this
Court's mandate.
B. The Present Case ( Harris II)
On November 27, 2000, Vice President Albert Gore, Jr. and
Joseph I. Lieberman (the "Gore Respondents") filed an election
contest under section 102.168(3)(c), Florida Statutes (2000), one
day after the newly-created conclusion of the protest period. This
section provides that an unsuccessful candidate may contest an
election when there has been, among other things, a "rejection of a
number of legal votes sufficient to change or place in doubt the
result of the election." (Emphasis added.) After a two-day bench
trial, the trial court denied the Gore Respondents any relief and
entered a judgment in favor of the defendants. The Gore
Respondents immediately appealed. The intermediate district court
of appeals passed the case through to the Florida Supreme Court.
7
On review, the Florida Supreme Court reversed the trial
court in part and ordered that partial manual recounts previously
performed by the canvassing boards of Miami-Dade and Palm
Beach counties be counted notwithstanding the fact that they were
certified after the judicially-created deadline set in Harris I . 2
Moreover, the court ordered a statewide manual recount of the so-
called "undervotes" in all counties where the undervote had not
been subjected to a manual recount. Id. at 2. The court's decision
is bottomed on a holding that "a legal vote is one in which there is a
`clear indication of the intent of the voter'" (Id. at 25), which is
borrowed from section 101.5614(5). That provision deals with
counting of damaged or defective ballots, which are not at issue
here.3
III. Argument
2 This, of course, conflicts with the court's prior
ruling that all manual recounts had to be completed by 5 p.m. on
November 26, 2000. Even assuming the validity of the extension of
the protest period, these counties were not able to complete their
manual recounts on time and, therefore, should not have been able
to amend their certifications. See Fla. Stat. § 102.111 (2000).
3
The proceedings in the trial court upon remand, and the trial
court's order on remand entered before this Court's stay, are
contained in Respondent's Appendix. The trial judge was
constrained to a specific number of actions based upon the language
of Harris II.
8
A. The Decision below and in Harris I Dramatically
Changed the Purpose for Which Manual
Recounts May Be Used.
The Supreme Court of Florida's decision is a further
extension of its previous holding and reflects further developments
in the Florida Election Code. As noted by Chief Justice Wells in his
dissent below, there is no basis under the section 102.168 or any
other provision of the Election Code for a manual recount, let alone
a recount of only the so-called "undervotes," when there is no
justification other than voter error. The Gore Respondents cite no
4
instance in Florida election history when a manual recount was
conducted because of an allegation that the total number of
undervotes was greater than the margin of victory.5
Section 102.168, Florida Statutes, imposes a burden on the
contestant to show, among other things, that "legal votes sufficient
in number to change or place in doubt the result of the election"
were rejected. Fla. Stat. § 102.168(3)(c) (2000) (emphasis added).
4 See Harris II, at 41 (Wells, C.J. dissenting) ("My
succinct conclusion is that the majority's decision to return this case
to the circuit court for a count of the under-votes from either
Miami-Dade County or all counties has no foundation in the law of
Florida as it existed on November 7, 2000, or at any time until the
issuance of this opinion.").
5 The appellees cannot rely on Beckstrom v. Volusia
County Canvassing Bd., 707 So. 2d 720 (Fla. 1998). There, the
issue was not-as has been asserted-voter error, but rather
whether "fraud," "gross negligence" or "incompetence" by election
officials who re-marked ballots so that they could be counted by an
electronic scanner should void an election. Id. at 723-24.
9
In this case, legal votes were not rejected. "Legal votes," as that
term is used in section 102.168(3)(c), means votes properly
executed in accordance with the instructions provided to all
registered voters in advance of the election and in the polling
places. By properly executing their ballots, voters can ensure that
their vote will be counted by the tabulation machinery. Otherwise,
these same voters risk having their vote disregarded. No other
definition for "legal votes" fits the legislature's scheme.
The Division of Elections, charged with interpreting and
enforcing the Florida Election Code, has opined that there is no
basis in the legislature's scheme for a manual recount when there
are no allegations other than voter error. Consistent with the
statutory scheme for manual recounts, legislative history and prior
interpretation of the statute, the Division issued a formal advisory
opinion, stating that:
6
[a]n "error in the vote tabulation" means a counting
error in which the vote tabulation system fails to count
properly marked marksense or properly punched
punchcard ballots. Such an error could result from
incorrect election parameters, or an error in the vote
tabulation and reporting software of the voting system.
The inability of a voting system to read an improperly
marked marksense or improperly punched punchcard
ballot is not an error in the vote tabulation. Unless the
discrepancy between the number of votes determined
by the tabulation system and by the manual recount of
the sample precincts is caused by incorrect election
6 Although this opinion was written in the context of
an election protest, the basis of the opinion is equally applicable to
an election contest.
10
parameters or software errors, a county canvassing
board is not authorized to manually recount ballots for
the entire county, nor perform any action specified in
Section 102.166(5)(a) and (b) of the Florida Statutes.
Harris I JA 57. Both the plain language and legislative history of
Florida's election statutes indicate that the Division was correct: a
manual recount of the ballots is proper only when there has been a
failure of the vote tabulation system, i.e., the counting apparatus.
Fla. Stat. §102.166(5) (2000).
The legislature has set out an elaborate system to ensure
that all voters are educated on how to vote. In the weeks before
the November 7, 2000, general election, each registered voter in the
state was provided with a sample ballot and detailed instructions on
how to vote according to the method used in his precinct. Id. §
101.46. For the instruction of voters on election day, each polling
place is provided with instructions illustrating the manner of voting
with the particular system in use. By law, before entering the
voting booth, each voter is to be offered instruction in voting by use
of the instruction model, and each voter is to be given "ample
opportunity" to operate the model. Id. § 101.5611(a).
Additionally, a copy of the instructions was placed
prominently in each voting booth. For those areas using punch
cards, including Miami-Dade and Palm Beach counties, the
instructions explained how a voter was to select and punch out the
appropriate chad on the ballot. As is evident from the instructions
used in Palm Beach County, the instructions were clear and
complete. Harris Appendix to Response to Petition for Writ of
Certiorari in Case No. 00-836.
11
The voter instructions were designed to prevent both
undervoting and overvoting, and thus to ensure that each voter's
choices were tabulated. To prevent undervoting, the instructions
explained in oversize type that each voter must check his or her
ballot card to make sure that the desired punched positions were
fully perforated, and that no chad remained partially attached in the
selected punch positions. The instructions included this specific
action:
AFTER VOTING, CHECK YOUR BALLO T
CARD TO BE SURE YOUR VOTIN G
SELECTIONS ARE CLEAR LY AND CLEANLY
PUNCHED AND THERE ARE NO CHIPS LEFT
HANGING ON THE BACK OF THE CARD.
Id.7
To prevent overvoting, the instructions directed voters to
refrain from attempting to correct mistakes on ballots. Voters were
told to instead obtain a new ballot, on which their selections could
then be properly noted: "If you make a mistake, return your ballot
card and obtain another." Id. Any voter following this direction
would have cast only one vote for each office and his or her ballot
would have been at no risk of invalidation based on overvoting.
In case any voter, after entering the voting both, asks for
instructions about how to vote, two election officers who are not
members of the same political party shall assist and give
At no time, although frequently urged upon it, has the
7
Florida Supreme Court made any comment upon these instructions
and how they might impact the issue of voter intent.
12
instructions, then leaving the voter to vote in secret. Id. § 101.46.
The fact that this assistance is available is made clear in the
"NOTICE, Instructions to Voters" that are posted at all precincts.
Moreover, all inspectors, clerks, and deputy sheriffs are given
training classes for the purpose of instructing such persons in their
duties and responsibilities as election officials. Id. § 102.012(8). In
addition, sample ballots are furnished to each polling place as are a
number of reduced-size ballots that are made available to any voter
so requesting. Id. § 101.20.
When voters followed these instructions, the automatic
tabulation system accurately tabulated the ballots. Only the ballots
of those voters who, by their own actions, failed to clearly indicate
their elective choices would have been affected by the manual
recount at issue.
Plainly stated, the type of manual recount allowed-indeed,
required by the Florida Supreme Court-does not address the
failure of automated equipment to tabulate properly executed
ballots, the only purpose for which manual recounts were allowed
under Florida law as it existed on election day. The sole purpose of
the recount mandated by the Florida Supreme Court is to allocate
additional votes to certain candidates based on those ballots that
voters failed to execute properly even after receiving clear
instructions. To accomplish this result, small armies of local
government employees are left to divine, without clear standards to
guide them, the intent of electors who failed to clearly mark their
ballots. Florida law in no way compels such a result. See Fladell v.
Palm Beach Canvassing Board , 2000 WL 1763142 (Fla. Dec. 1,
2000) (rejecting challenge to Palm Beach County's so-called
"Butterfly Ballot"); Nelson v. Robinson, 301 So. 2d 508, 511 (Fla.
2d DCA 1974) ("Mere confusion does not amount to an
13
impediment to the voters' free choice if reasonable time and study
will sort it out.").
There can be no doubt that the Florida Supreme Court's
decision creates new rights and obligations. See Harris II at 55
(Wells, C.J., dissenting) ("Clearly, in a presidential election, the
Legislature has not authorized the courts of Florida to order partial
recounts, either in a limited number of counties or statewide. This
Court's order to do so appears to me to be in conflict with the
United States Supreme Court decision."). Again, the legislature
was well within its right to set forth a scheme whereby voters that
followed the proper procedure were deemed to have cast legal
votes. U.S. Const. art. II, § I. Those who did not follow
instructions ran the risk that their vote would not be counted. It is
critical to note that the no votes at issue here include ballots that
contain chads that for one reason or another were never fully
dislodged. Under the Election Code, these votes are not legal
votes. Moreover, there was absolutely no evidence that the ballots
were damaged.
Another indication that manual recounts are not available
for voter error is found in section 101.5606, Florida Statutes
(2000). This section requires that all electronic or
electromechanical voting systems used must be capable of correctly
counting votes. If the Florida Supreme Court is correct in its broad
definition of a legal vote, then there can no longer be any voting
machines because those machines will never be capable of counting
all the votes. The Florida Supreme Court's opinion relegates the
voting machines to a screening device used to locate undervotes
and is thus anathema to this section, among others, of the Code.
A simple reading of the Florida Supreme Court's decision,
especially under the light of Chief Justice Wells' powerful and
14
persuasive dissent, can lead to only three conclusions: (1) the
Florida Supreme Court made new law when it ordered a manual
recount based on unsubstantiated allegations of voter error; (2) the
court made new law by requiring that only the "undervotes" be
counted, instead of all ballots; and (3) the court made new law by
requiring a manual recount whenever the number of undervotes
exceeded the margin of victory.8
B. Although the Court below Created New and
Unprecedented Rights to Manual Ballot Counts,
it Created No Standards by Which Such Counts
Are to Be Conducted.
Because the Florida legislature never authorized manual
recounts to correct voter error, it has enacted no standards by
which to judge improperly executed machine ballots. The utter lack
of objective standards in the partial manual recount ordered by the
court below will inevitably lead to a chaotic counting process with
different counting methodologies being applied in different areas of
the state:
[T]he majority returns this case to the circuit court for
a recount with no standards. I do not, and neither will
8 In fact, that is what the court held. Id. at 23 ("Here,
there has been an undisputed showing of the existence of some
9,000 `under votes' in an election contest decided by a margin
measured in the hundreds. Thus, a threshold contest showing that
the result of an election has been placed in doubt, warranting a
manual count of all undervotes or `no vote registered' ballots, has
been made."). That is not what the statute says; this a new rule
enunciated by the Florida Supreme Court to facilitate selective
recounting.
15
the trial court, know whether to count or not count
ballots on the criteria used by the canvassing boards,
what those criteria are, or to do so on the basis of
standards divined by [the trial judge]. . . . It only
stands to reason that many times a reading of a ballot
by a human will be subjective, and the intent gleaned
from that ballot is only in the mind of the beholder.
This subjective counting is only compounded where no
standards exist or, as in this statewide contest, where
there are no statewide standards. . . .
Harris II at 56-57 (Wells, C.J., dissenting).
Other states that (unlike Florida) provide broad manual
recount rights for correction of voter error also generally provide
standards by which to judge the ballots. For example, Indiana
provides clear and definitive standards for manual counts of
erroneous ballots, requiring ballots with pierced or partially
detached chads to be counted and ballots with mere indentations to
be considered as having no vote. See Ind. Code Ann. § 3-12-1-9.5
(West 2000). The fact that Florida has no similar objective
standards underscores that the Florida Legislature did not intend
manual recounts to be used to correct voter error. Many states,
9
The only other conclusion would be that the legislature
9
chose to enact a system that is so fraught with subjectivity that it
denies due process and equal protection. A system that allows
votes to be evaluated differently based on where the voter resides
cannot stand. See Reynolds v. Sims, 377 U.S. 533, 563 (1964)
("Weighing the votes of citizens differently, by any method or
means, merely because of where they happen to reside, hardly
seems justifiable. One must be ever aware that the Constitution
forbids sophisticated as well as simplified modes of
16
like Florida, use manual recounts solely to confirm machine
calibration or correct machine failure. Additionally, states with
10
discrimination.").
10 See, e.g., Col. Rev. Stat. 10-10.5-102 (West 2000)
("Prior to any recount, the canvass board shall choose a precinct at
random and a test number of ballots on which to conduct a machine
count and a hand count of ballots. The precinct chosen shall have
at least fifty ballots for the count. If the results of the machine
count and the hand count are identical, then the recount shall be
conducted in the same manner as the original ballot count."); Iowa
Code Ann. § 50.48 (West 2000) ("If an electronic tabulating system
was used to count the ballots, the recount board may request the
commissioner to retabulate the ballots using the electronic
tabulating system. The same program used for tabulating the votes
on election day shall be used at the recount unless the program is
believed or known to be flawed"); Neb. Rev. Stat. § 32-119 (West
2000) ("The procedures for the recounting of ballots shall be the
same as those used for the counting of ballots on election day. . . .
Counties counting ballots by using a vote counting device shall first
recount the ballots by use of the device. If substantial changes are
found, the ballots shall then be manually counted in any precinct
which might reflect a substantial change."); W. Va. Code § 3-4A-
28 (West 2000) ("[Ballots . ..] shall be reexamined . . . in the
same manner . . . utilized in the original vote count . . . . During . .
. any requested recount, at least five percent of the precincts shall
be chosen at random and the ballot cards cast therein counted
manually. The same random selection shall also be counted by the
automatic tabulating equipment. If the variance between the
random manual recount and the automatic tabulating equipment
count of the same random ballots, is equal to or greater than one
percent, then a manual recount of all ballot cards shall be
17
liberal manual recount rights, unlike Florida, almost invariably
provide detailed standards by which to conduct those recounts.
11
Prior to the decision below and the Harris I decision, votes
in Florida were counted according to an objective system based on
approved and calibrated tabulation equipment. Under this system,
12
voters are required to indicate their votes in such a way that
properly functioning tabulating equipment will register the vote.
For this reason, voters were instructed to carefully check their
ballots for mistakes, as exemplified in the instructions used in Palm
Beach County and quoted supra. When voters followed these
instructions, the tabulation equipment accurately tabulated the
ballots according to their accepted operational parameters. Only
the ballots of those voters who, by their own actions, failed to
required.").
11 See, e.g., Cal. Elec. Code §§ 15628-15631(West
2000) (detailing exact procedures for manual recounts); Ind. Code
Ann. § 3-12-1-9.5 (West 2000) (detailing exact standards for
"chad irregularities"; Tex. Elec. Code Ann. § 127.130 (West 2000)
(detailing exact procedures for manual Counting, including "chad"
standards).
This automated equipment is regulated to ensure that a
12
standardized result occurs for all properly cast ballots. See Fla.
Stat. § 101.015. The Secretary has implemented this statute
through administrative rules that regulate the performance of
tabulating machines and designate a defined maximum error rate.
See Fla. Admin. Code. R. 1S-2.015.
18
clearly indicate their elective choices would have been affected by
the manual recounts at issue below.
Thus, the use of automated tabulation according to uniform
performance standards for the tabulation equipment provided both
uniformity and objectivity. Moreover, the equipment is accurate so
long as ballots are properly executed. For these reasons, the
Florida legislature chose to rely principally on automated
equipment, with manual recounts being one of a series of remedies
to be employed only when the equipment fails to operate as
intended.
The decision below throws out the standardized system
created by the legislature in favor of undisciplined and result-
selective manual counting for the sake of divining the intent of
improperly executed ballots. The only "standard" by which this is
to be guided is found in Florida Statutes section 101.5614, which
provides that a "damaged or defective ballot" may not be discarded
"if there is a clear indication of the intention of the voter as
determined by the [county] canvassing board." With nothing
13
more than this vague concept to guide the counting, the court
below would have a trial judge enlist hundreds of independent
counters throughout the state to recount the votes. Yet, there will
be no objective standards for these persons to apply during the
counting process. The practical effect of the decision below will be
that numerous teams of counters will exercise vast unchecked
The ballots that were ordered recounted are not damaged
13
or defective. The failure to count these ballots stems from the
failure of voters to execute the ballots as instructed, not from
defects in the ballots themselves. Thus, the cited statute has no
application to the ballots at issue. Harris II, Slip. Op. at 52 (Wells,
C.J. dissenting).
19
discretion to review improperly executed ballots, and will create ad
hoc standards for judging those ballots.
Moreover, the partial nature of the recount forces the vote
tabulation equipment to be used as, essentially, a screening device
to find undervotes. The equipment was not designed for this
14
function. The type of counting the court below directed would
require special software to be installed in the tabulation machines.
And, because of the short time frame involved, there would be no
time for the machines and their software to be evaluated for
accuracy by the Division of Election as required by section 101.015
and its implementing regulations. Thus, if the decision below were
to stand, the voting machines would be used for a purpose that has
no basis in the legislative scheme and the resulting recount would
be of questionable accuracy as it is impossible to know whether the
machines would be accurate in their selection of undervotes for
counting.
In his dissent below, Chief Justice Wells correctly
recognized that (i) section 101.5614, the statute cited as the
appropriate "standard" for manual recounts, was never intended by
the Florida legislature to apply to a recount of improperly executed
ballots intended to correct for voter error and (ii) the lack of any
This partial counting approach results in a different
14
counting method applying to 64 predominantly Republican
counties vis a vis the heavily populated and overwhelmingly
Democratic Broward and Palm Beach Counties, which underwent
full manual recounts. It also creates voter differentiation within
Florida's largest county, Miami-Dade, where 139 heavily
Democratic precincts underwent full manual recounts while the
remaining 635 largely Republican precincts were to only have
manual recounts of undervotes.
20
objective criteria by which to conduct the recount raises serious
federal concerns:
The majority quotes section 101.5614(5) for the
proposition of settling how a county canvassing board
should count a vote. The majority states that "[n]o
vote shall be declared invalid or void if there is a
clear indication of the intent of the voter as
determined by the canvassing board." § 101.5614(5),
Fla. Stat. (2000). Section 101.5614(5), however, is a
statute that authorizes the creation of a duplicate
ballot where a "ballot card . . . is damaged or
defective so that it cannot properly be counted by the
automatic tabulating equipment." There is no basis in
this record that suggests that the approximately 9000
ballots from Miami-Dade County were damaged or
defective.
Laying aside this problem and assuming the majority
is correct that section 101.5614(5) correctly
annunciates the standard by which a county canvassing
board should judge a questionable ballot, section
101.5614(5) utterly fails to provide any meaningful
standard. There is no doubt that every vote should be
counted where there is a "clear indication of the intent
of the voter." The problem is how a county canvassing
board translates that directive to these punch cards.
Should a county canvassing board count or not count
a "dimpled chad" where the voter is able to
successfully dislodge the chad in every other contest
on that ballot? Here, the county canvassing boards
disagree. Apparently, some do and some do not.
Continuation of this system of county-by-county
decisions regarding how a dimpled chad is counted is
21
fraught with equal protection concerns which will
eventually cause the election results in Florida to be
stricken by the federal courts or Congress.
Harris II at 51-52 (Wells, C.J. dissenting).
C. Th e Harris II Decision Further Modifies th e
Legislative Scheme Meant to Ensure Timel y
Election Results.
The Harris II decision has further modified the statutory
election certification scheme. The Florida Supreme Court expanded
the extension on the seven-day statutory deadline imposed by sections
102.111 and 102.112, Florida Statutes, that it had granted in Harris
I. Though the Florida Supreme Court held in Harris I that the seven-
day deadline should be extended to 19 days in Presidential elections
(and presumably longer in local elections), the Harris II court held
that results received after the statutory and Harris I deadline had to
be included in the Election Canvassing Commission's certification.
The ramifications of this continuing duty to re-certify election results
is directly counter to section 102.111, Florida Statutes, and th
15 e
legislative desire to ensure a timely resolution of election disputes.
Additionally, the Harri s II decision modified the then existing
rule in Florida that county canvassing boards are responsible for
determining the number of votes cast for each candidate, Fla. Stat. §
102.141 (2000), and once a canvassing board certifies results, those
That section reads, in pertinent part, that "[i]f the county
15
returns are not received by 5 p.m. of the seventh day following the
election, all missing counties shall be ignored, and the results shown
by the returns on file shall be certified." Fla. Stat. § 102.111
(2000).
22
results are presumed to be correct. See, e.g., Boardman v. Esteva,
323 So. 2d 259, 268 (Fla. 1976) ("[E]lected officials are presumed to
perform their duties in a proper and lawful manner . . . . [Accordingly]
returns certified by election officials are presumed to be correct.").
D. The Proceedings On Remand Demonstrate the
Serious Flaws in Harris II's Demands
The most cursory review of the proceedings in the Leon
County Circuit Court that followed the remand in Harris II (R.A. 1 -
___), demonstrate the number of changes in the law, lack of
standards, and deviations from Florida law in existence on November
7, 2000. Despite extensive objections by both the Secretary and the
co-respondents, as well as the Bush petitioners, the Circuit Judge was
unable to do more than simply follow the Florida Supreme Court's
directions. (R.A. 1- ___). Thus, with just hours' notice, more than 60
canvassing boards were assembled and instructed to begin counting
only ballots with undervotes for President, with some counties having
manually counted all votes, some counties having manually counted
some votes, and some counties having manually counted no-votes. In
addition, no counts were made of all of the votes, nor were counts
made of over-votes. Harris II ordered the inclusion of partial returns
from some counties, as well as some returns, like Palm Beach
County's that had never been certified at all, as well as ordering
Miami-Dade County votes to be "counted" in Leon County by the
Supervisor of Elections or such other personnel ordered by the circuit
judge. Unable to allow legal arguments and challenges because of time
constraints, the circuit court allowed the filing of written objections to
the proceedings. (Respondents' 31 objections are set forth in R.A. __
- __).
In short, until the entry of this Court's stay of Saturday,
December 9, everybody was counting everywhere, under whatever
23
standards they established, without regard to any statutorily-defined
criteria.
IV. Conclusion
The Gore Respondents will argue that the decision below is
garden-variety statutory construction. The order below, though
couched in terms of statutory construction, is actually a significant
departure from the pre-election legislative scheme. When "judicial
construction of a statute is unexpected and indefensible by reference
to the law which had been expressed," it constitutes a change in the
law. Bouie v. City of Columbia, 378 U.S. 347, 354 (1964). The
changes outlined above have no basis in the legislative enactments and
constitute such a change.
24
Respectfully submitted,
Deborah K. Kearney Joseph P. Klock, Jr.
General Counsel Counsel of Record
Kerrey Carpenter John W. Little, III
Assistant General Counsel Thomas M. Karr
Florida Department of State Alvin F. Lindsay III
PL-02 The Capitol Arthur R. Lewis, Jr.
Tallahassee, FL 32399-0250 Gabriel Nieto
850.414.5536 Ricardo M. MartÃnez-Cid
Steel Hector & Davis, LLP
Bill L. Bryant, Jr. 200 S. Biscayne Blvd.
Katz, Kutter, Haggler, Alderman Suite 4000
Bryant & Yon, P.A. Miami, FL 33131-2938
Highpoint Center, 12 Floor
th 305.577.7000
106 East College Avenue
Tallahassee, FL 32301
850.224.9634
By: ________________________
Joseph P. Klock, Jr.
Counsel of Record
25
IN THE CIRCUIT COURT
OF THE SECOND JUDICIAL CIRCUIT,
IN AND FOR LEON COUNTY, FLORIDA.
CASE NO.00-2808
ALBERT GORE, JR., et al.,
Plaintiffs,
vs.
KATHERINE HARRIS, as Secretary of State,
STATE OF FLORIDA, et al.,
Defendants.
______________________________________X
IN RE: Motions Hearing
BEFORE:HONORABLE TERRY LEWIS
Circuit Court Judge
DATE: Friday, December 9, 2000
TIME: Commenced:8:35 p.m.
Concluded: 11:39 p.m.
LOCATION: Leon County Courthouse
Courtroom 3D
Tallahassee, Florida
REPORTED BY: B. J. QUINN, RPR, CMR, CP
Certified Realtime Reporter
Notary Public in and for the
State of Florida at Large
{2}
1 APPEARANCES:
2 Representing the Plaintiff:
3 DAVID BOIES, ATTORNEY AT LAW
80 Business Park Drive, Suite 110
4 Armonk, New York 10504
5 DEXTER DOUGLASS, ATTORNEY AT LAW
211 East Call Street
6 Tallahassee, Florida 32301
7 MITCHELL W. BERGER, ATTORNEY AT LAW
215 South Monroe Street, Suite 705
8 Tallahassee, Florida 32301
9 STEVEN ZACK, ATTORNEY AT LAW
10 KENDALL COFFEY, ATTORNEY AT LAW
11 Representing the Defendant:
12 PHILIP BECK, ATTORNEY AT LAW
1899 Wynkoop Street, 8th Floor
13 Denver, Colorado 80202
14 IRVIN TERRELL, ATTORNEY AT LAW
1299 Pennsylvania Avenue, NW
15 Washington, D.C. 20004-2400
16 BARRY RICHARD, ATTORNEY AT LAW
101 East College Avenue
17 Tallahassee, Florida 32301
18 GEORGE J. TERWILLIGER, III, ATTORNEY AT LAW
601 13th Street, NW
19 Suite 600 South
Washington, D.C. 20005-3807
20
21 Representing the Secretary of State:
22 JOSEPH KLOCK, JR, ATTORNEY AT LAW
-and-
23 JON SJOSTROM, ATTORNEY AT LAW
-and-
24 DEBORAH KEARNEY, ATTORNEY AT LAW
200 South Biscayne Boulevard
25 Miami, Florida 33131-2398
{3}
1 Representing Miami-Dade Canvassing Board:
2 MURRAY GREENBURG, ATTORNEY AT LAW
111 Northwest First Street
3 Miami, Florida 33128
4 Representing Canvassing Board:
5 GARY RUTLEDGE, ATTORNEY AT LAW
215 South Monroe Street, Suite 420
6 Tallahassee, Florida32301
7 Representing Intervenors, Carr, et al.:
8 WILLIAM KEMPER JENNINGS, ATTORNEY AT LAW
9 Three Clifford Drive
Shalimar, Florida 32579
10
11 Representing Intervenors, Cruce, et al.:
12 FRANK MYERS, ESQUIRE
215 South Monroe Street, Suite 700
13 Tallahassee, Florida 32301
14
15* * * * *
16
17
18
19
20
21
22
23
24
25
{4}
1 INDEX
2 ITEMPAGE
3 PROCEEDINGS COMMENCEMENT 5
4 CERTIFICATE OF REPORTER 66
5
6 * * * * *
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
{5}
1 PROCEEDINGS
2 (REPORTING STARTED AFTER HEARING COMMENCED.)
3 THE COURT: What's your Plan B?
4 MR. BECK: I think it would be good to reflect this
5 over the evening, because I know you're going to need a
6 Plan B, and I don't think you need to decide that tonight.
7 What you need to decide tonight, is that people in the
8 counties shouldn't be segregated in the ballots, in the way
9 that makes our life more difficult.
10In terms of what needs to be counted, we think that,
11 first of all, the Supreme Court opinion sometimes talks about
12 undervotes.
13And by our count, through -- in the most recent machine
14 run statewide, there are 64,780 undervotes.
15Those are votes, those are ballots, where nobody
16 punched through the chad for any presidential candidate. The
17 Supreme Court elsewhere talks about counting all the
18 nonvotes.
19The nonvotes is a broader category. That also includes
20 the ballots where people punched through for two candidates.
21 There's 175,660 of those nonvotes. So we have to sort that
22 through.
23We think, also, that it is --
24THE COURT: What does the Supreme Court say that I
25 should do about nonvotes?
{6}
1MR. BECK: I haven't been able to figure that out,
2 frankly, Your Honor. I just know they refer to nonvotes on
3 page 39. And nonvotes, to those who sat through the trial,
4 is a broader category. And those may have to be examined, as
5 well, to see if you can discern voter intent from the
6 nonvotes.
7There are also, we have said in this litigation, if
8 you're going to start counting dimples as votes, then perhaps
9 you need to look at all the ballots, because if somebody
10 punched through successfully for George Bush, but then
11 dimpled one for Al Gore, then if that dimple counts as a vote
12 on the other ballots, it ought to count as a vote on all the
13 other ballots, and that would create an overvote situation.
14 So there's that problem, as well.
15But focusing now on the undervotes, we think that you
16 need to look at all of the undervotes in Miami-Dade County,
17 including the 20 percent that were already looked at by the
18 Canvassing Board. And the reason for that, Your Honor, is
19 that it now becomes a judicial function to make sure that
20 they are all treated under the same standard using the same
21 factors.
22We have a real serious problem in Miami-Dade County,
23 where we had a Canvassing Board that applied a very, very
24 loose approach of divining voter intent.
25And they only went through 20 percent of the precincts,
{7}
1 and the 20 percent of the precincts happened to be
2 overwhelmingly Democratic. That's just the sequence they did
3 them in. Now, and they came up with a number of votes that
4 they divined, and Al he Gore picked up a whole bunch of
5 votes.
6And, now, unless Your Honor looks at that, again, we're
7 going to start looking at the other 80 percent. And someone
8 is going to be using a different approach that was used for
9 the 20 percent that's heavily Democratic.
10The remaning 80 percent, according to the regular votes
11 that came in was actually 52 percent Bush, 48 percent Gore.
12So if someone was going to use a real meaningful
13 standard for the Republican parts of that county, then those
14 voters, including a lot of Hispanic voters, who tended to
15 vote Republican in this last election, are going to have
16 their votes evaluated under a standard that's different than
17 was used for the Democrats.
18That creates big problems under the Voting Rights Act
19 for a protected group, like Hispanic Americans, the equal
20 protection clause for everybody, as well as 3 US Code
21 Section (5).
22So we believe that the Court is required to include
23 that 20 percent of the Miami votes so that all the votes are
24 counted in the same way.
25We also believe that Broward, which underwent a manual
{8}
1 recount, those votes also need to be examined by whoever the
2 Court determines should do the examining, using the factors
3 that the Court identifies as appropriate.
4What we had in Broward was testimony in this record
5 that they used different standards at different times during
6 the manual counts, and that the standards were much, much
7 looser than, say, the ones that were attempted to be applied
8 in Palm Beach.
9So Broward was a very heavily Democratic county, voted
10 heavily for Al Gore. It picks up hundreds of votes in this
11 process in the Canvassing Board, and uses a standard that was
12 not used in Palm Beach, which I believe is not going to be
13 the one that Your Honor sets for the rest of the state.
14So we think that the Broward votes have to be
15 reevaluated, using the same factors that Your Honor, we
16 think, will have to be identifying for the rest of the state.
17 Otherwise we've got the same problems identified before.
18 Different people's votes are treated differently, depending
19 on where they live. And whether their Canvassing Board is
20 all Democrats or has a mix.
21So it's my big concern about consistent standards. And
22 then, also, Judge, less controversially, I believe, we got a
23 ruling today from Pensacola concerning Overseas ballots, the
24 Military ballots, that the Democrats had initially succeeded
25 in including. And now the Overseas and Military people
{9}
1 should have their votes counted even though they don't have a
2 postmark on the ballot. We'll be giving Your Honor a copy of
3 the opinion.
4I haven't seen it, yet, but I understand it was
5 favorable to the overseas voters. So those votes will have
6 to be included in the tally, as well.
7We believe that as to where it should be counted,
8 consistent with our position, that the Court should be doing
9 the counting, or at least under the direct supervision of
10 Your Honor, if you're going to use personnel here, that the
11 votes ought to be shipped up here.
12We also believe, lastly, on the procedures that, the
13 counting ought to be done in the Sunshine, with observers
14 from each side present. These are going to be factual
15 determinations that are going to be made by somebody under
16 the auspices of the Court. And there are go to be disputes
17 like there were in front of the Canvassing Boards, over
18 whether this stray mark is a vote for Al Gore, or whether it
19 isn't a vote for Al Gore, and we're going to have to be heard
20 on that. So we're going to have to have some mechanism,
21 where we can have observers present, both sides, obviously.
22And we believe that, under Florida law, since this is,
23 essentially, a taking of evidence and an examination of
24 evidence in Court, that needs to be done in the Sunshine.
25Now, Your Honor --
{10}
1THE COURT: Tell me some specifics on that. How many
2 people? What would they do?
3MR. BECK: I guess, Your Honor, I don't know, yet, what
4 Your Honor is going to order in terms of who is going to be
5 counting these votes. But I think we basically need to have,
6 for each person or group of people who are counting a set of
7 ballots.
8I think we need one observer from each side, who has
9 the opportunity to be heard. And we need this transcribed so
10 that, ballot by ballot, if there are disputes, those can be
11 resolved.
12It may be that Your Honor, takes an approach of
13 allowing others to do the first cut. And then disputed
14 ballots, you'll examine yourself.
15But if you're going to do that, I think we're going to
16 need a record so that Your Honor can name this evaluation.
17 And even if Your Honor, decides: I'm not going to look at
18 any ballots, we still need a record, because we're still
19 entitled to appeal.
20And I don't think that the Supreme Court created a
21 whole new mechanism where not only do we have new people
22 doing a manual recount, but it's conclusive that we're not
23 allowed, even though it's done in the course of a lawsuit, to
24 ever have an appeal or that.
25So we're going to need to have court reporters
{11}
1 transcribing objections and arguments and records being kept,
2 of which ballots are in dispute. So you can resolved that,
3 or some other judge, or some other Court, can resolve it.
4On the question of standards, Your Honor, I guess what
5 I'll do, since I don't know exactly how comprehensive Your
6 Honor's order is going to be tonight I'd like to give you a
7 preview of what our position is, with the caveat that, since
8 we didn't know Judge Sauls was going to be recusing himself,
9 I didn't come ready with a two-hour evidentiary presentation.
10 But let me tell you what I think the evidence showed in this
11 case concerning standards.
12THE COURT: I want to hear from Mr. Douglass and you.
13 And it's ten of nine. And I may want to come back and hear
14 some evidence on it, but, really, based upon what you heard,
15 and the evidence, what criteria should be applied, in your
16 mind?
17MR. BECK: That's what I'll say, without getting into
18 the evidentiary discussion. I apologize, but we have to say
19 that, both from a legal point of view as well as a factual
20 point of view, we think the criteria are: If you
21 successfully punch the chad through all the way, or if you
22 dislodge the chad partially. So that it's what is so-called
23 a hanging chad. I trust Your Honor has sort of seen enough
24 in the newspapers to know what a hanging chad is.
25THE COURT: Yes, sir.
{12}
1MR. BECK: But that is a fair indication of voter
2 intent. We think the standard ought to be that a dimple or
3 indentation is not something from which you can discern voter
4 intent. Now, Judge, I want to go to the next step, to
5 Plan B.
6If Your Honor decides that you're going to articulate a
7 standard, whether people are going to take into account
8 dimples and indentations, here is what I think the factors
9 are: Number one, the indentation has to come in a stylus,
10 not from a fingernail or a finger.
11And believe it or not, we had evidence, Your Honor, you
12 can tell when it comes from a stylus, and when it's just
13 other some stray marking. When it comes from a stylus, it
14 leaves, basically a fingerprint of a stylus. There will be a
15 circular dimple that is the same diameter of the stylus, and
16 you can tell.
17So, number one, the only dimples that ought to even be
18 considered, is if they come from a stylus.
19Number two is, the stray or so-called rogue dimple;
20 that is, where there's a dimple next to George Bush's name,
21 or Al Gore's name, but the voter managed to successfully vote
22 in the rest of the races, that that is not an indication of
23 voter intent. And it is, in fact, at least as consistent and
24 more consistent with the hypothesis that the voter chose to
25 affirmatively not to vote for Al Gore or George Bush.
{13}
1We only heard from one voter. He put his stylus in, he
2 thought about it, searched his soul and brought it out. So
3 that's a man who chose not to vote. If you count that as a
4 vote, you disenfranchise that man.
5He's got a right not to vote for either one, we all
6 love our candidates. But I read in the paper there are a lot
7 of people who are not as crazy about either one of them, so
8 they chose not to vote.
9So a stray or rogue dimple is not a vote. And that
10 simply is pretty consistently the rule throughout the
11 country. And I hope tomorrow to have an opportunity to
12 present you with the law, as well as the facts on this.
13Now, we also did hear evidence from our expert, as well
14 as theirs that, occasionally what happens is people don't
15 insert the ballot in what's called a throat. Instead they
16 put it on top of the device, and then they are never able to
17 punch the chads through.
18But both experts said, in that event, you'll see a
19 pattern of dimpled chads. Because there's nothing magic
20 about Al Gore, all the way down the ballot they will have
21 failed to punch the chad through, or in almost all of the
22 races.
23So we believe that if you're going to be looking at
24 dimples, which you should not do, that you should only count
25 the dimples where there is a pattern of clear attempts, but
{14}
1 failures to punch the chad through.
2That is the kind of standard that was attempted to be
3 applied in Palm Beach County to varying degrees of success at
4 different times. It's the kind of standard that was applied
5 in the Illinois case, and in the Pullen case, and it's also
6 the kind of standard embodied in some regulations from around
7 the country.
8We think dimples shouldn't count. But if you're going
9 to count them, that's a fair indication of voter intent, that
10 the rogue dimples ought not to be counted.
11And one thing we feel very strongly about, Your Honor,
12 what happened in Broward County was just awful. They said:
13 This person voted for a whole bunch of Democrats; and,
14 therefore, I can read his mind and tell that indentation next
15 to "Al Gore" was really a vote for Al Gore.
16We feel like trying to read his mind based on what he
17 did in other races is really improper. Because at the
18 presidential race, in particular, people decide not to vote
19 for the head of the ticket or they switch parties, or cross
20 other parties, because they often vote for the man, and the
21 future of the woman, rather than the party. And they have
22 second thoughts, and they often say: I'm a loyal Democrat,
23 but I can't stomach Al Gore. Or, I'm a local Republican, but
24 don't like George Bush. But when you describe intent based
25 on what they did in other races, you disenfranchise those
{15}
1 people and water down all the votes of other people in
2 Florida.
3So that's my shorthand version of what we think the
4 factors would be. And we hope Your Honor would give us an
5 opportunity to summarize the evidence on it, because there
6 was quite a lot of evidence in the trial record on this.
7THE COURT: When do you envision in your procedure that
8 actual counts would begin?
9MR. BECK: Well, I think that they ought to begin -- I
10 assume Your Honor wants to move forward expeditiously and not
11 on a leisurely basis. So I think people ought to be working
12 on the weekends here, and I think that the counties ought to
13 be reporting to the Court on their success in segregating the
14 undervotes, and ought to be reporting to the Court the
15 numbers, so that we have it in the record here of the new
16 tabulation, whatever this may be used for in the future, of
17 Gore votes, Bush votes, all the other candidates, and the
18 number of undervotes.
19And then once those are segregated, you know, when it
20 should begin, I'm assuming Your Honor is not going to take me
21 up on my suggestion that they all get shipped down to your
22 courtroom and you look at them all.
23So I think, then, we're talking about, you know,
24 the day after that.
25But I don't know who Your Honor is going to decide
{16}
1 should look at these votes.
2THE COURT: Whoever, that is.
3MR. BECK: Whoever looks at them, I think ought to be
4 looking at them. Basically, as soon as the Court is
5 satisfied they've segregated these in a proper way and
6 recorded the tabulations in a proper way, and as soon as we
7 can get a court reporter and observers from either side
8 there.
9So I'm anticipating that some counties may be able to
10 do that process, and conceivably start, you know, tomorrow
11 afternoon. I don't know if they can get it done that fast or
12 not.
13We also have a whole issue of -- I think the Supreme
14 Court ordered that every county, including the ones that use
15 optical scanners, have to go through this process:
16And I'll tell you, I haven't given a moment's thought
17 to what an undervote is, what the implication is in an
18 optical scanning county.
19We need to talk to the Court about that. There are
20 some counties with very view undervotes. And it may be an
21 easier task. So the short answer is: As soon as Your Honor
22 has been satisfied that they've been properly segregated and
23 tabulated, and we can get observers there, then I think the
24 counting would begin.
25Now, let me also say that we actually intend to seek a
{17}
1 stay of this entire matter from the Florida Supreme Court and
2 the United States Supreme Court, because I think that it
3 can't possibly result in anything that's actually meaningful
4 and helpful. And all it's go to do is create constitutional
5 difficulty.
6So, but in the meantime, we want to be cooperative with
7 the Supreme Court. So that's what I think ought to be done.
8We're just now thinking about who are we going to draft
9 to be observers. I don't know whether it's true. My wife
10 told me that she was watching television before I came over
11 here, and that she heard that the Democrats had chartered a
12 plane and were flying in 100 lawyers from Washington to act
13 as observers.
14So I suppose we'll have to round up volunteers on our
15 side. I don't have a toll free number to call. But we're
16 going to have to get volunteers on our side, as well, lawyers
17 who are going to be with each one of these counters, lodging
18 objections and making arguments.
19THE COURT: Anything else?
20MR. BECK: No, Your Honor.
21MR. KLOCK: Your Honor, we have objections to what the
22 Republicans are suggesting.
23THE COURT: The Republicans are suggesting -- I'd like
24 the objections, but I'd rather focus on the positive. You
25 tell me what you want to do.
{18}
1MR. KLOCK: If I can explain why. I don't mean to be
2 mean or problematical. But you have the desirable position
3 of not only reporting to the Supreme Court of Florida, but
4 also having the Eleventh Circuit Court of Appeals and the
5 United States Supreme Court watching what is going on, having
6 orders simultaneously filed in Washington and Atlanta.
7Our concern is to preserve the record for a review
8 before the Eleventh Circuit Court of Appeals and also the
9 United States Supreme Court.
10And, Your Honor, I'll understand if you don't want to
11 hear it, and we'll just file it in writing. But one thing
12 I'd like to start out with that's problematical, if you turn
13 to page 38 of the slip of the Supreme Court, they say:
14 "Moreover, because the venue of an election contest that
15 covers more than county, lies in Leon County, the Circuit
16 Court has jurisdiction, as part of the relief it ordered,"
17 presumably, "to order the Supervisor of Elections and the
18 Canvassing Boards, as well as the other necessary public
19 officials in all counties that have not conducted a manual
20 recount or tabulation of the undervotes in this election, to
21 do so forthwith. Said tabulation is to take place in the
22 individual counties where the ballots are located." That's
23 what they ordered you to do.
24You'll recall the argument put forth before that
25 indicated that the only provision for a manual recount
{19}
1 provides for three people that are designated by office.
2And, Your Honor, the identity of those people are very
3 important, because, for instance, in Dade County, the
4 supervisor of elections, who is one of the three, is a
5 registered Independent.
6If you look down here further, after the Supreme Court
7 has said that you're supposed to do it in the county where
8 the votes were cast, they then go on, on page 39, to suggest
9 that, because time is of the essence, the Circuit Court with
10 respect to the Miami-Dade ballots is to go forward and be
11 assisted by the Leon County Supervisor of Elections, or its
12 sworn designees, directly contradictory to the paragraph
13 before. And it's my understanding -- I've never met the
14 man -- that he is an elected official who ran as a Democrat.
15Now, Your Honor, if you look at the transcript when you
16 have the opportunity to look through, you'll find that the
17 number of votes that are generated through this divining
18 process seems to be tied not only to the number of registered
19 voters of each party in the county, but also who is looking
20 at it.
21So our view would be, and we would reiterate and
22 respectfully disagree with our colleagues that are
23 representing the Republicans, that it must be done by the
24 Canvassing Boards, the standards have to be established by
25 the Canvassing Boards there.
{20}
1And if the Court is going to overlook that, that's
2 fine. But it can't be done the way that it's being suggested
3 that it be done. That would be improper with the statutes.
4 Now, we have a number of objections I'd be happy to go into,
5 but --
6THE COURT: The positive thing that you suggest I do is
7 have the Canvassing Boards in the county do the manual
8 recount?
9MR. KLOK: Yes, Your Honor.
10THE COURT: Okay.
11MR. KLOCK: And then, Your Honor, also with respect to,
12 you know, certain other points that we can raise, we can do
13 it now or later. But the Secretary -- the Division of
14 Elections has issued two advisories to the supervisors. And
15 I'll pass one up to the Court, if I may, and pass one around
16 here, with the Court's approval.
17And, Your Honor, what our hope is, is we have advised
18 the supervisor of elections they should watch TV so if there
19 is anything that is ordered from the bench, that it can be
20 immediately implemented.
21But, Your Honor there is going to have to be a need to
22 deal with those issues. I assume these people are going to
23 comply without being served. But you never know. And that's
24 something that the Court has to consider, as well.
25Another point the Court has to consider is that, you
{21}
1 know, this process has now extended -- the protest/contest
2 period, which apparently ran together -- for a longer period
3 of time. And when, Judge, is to be the appellate review of
4 this process if everything has to be done by midnight on the
5 12th?
6So Your Honor also has to give some thought to a cutoff
7 point. And as has been argued before also under the
8 statutes, if you don't have a complete count done, it is not
9 fair to include them.
10And, Your Honor, I would, again, refer black to the
11 testimony that was taken at the trial, where they
12 demonstrated in Miami-Dade County, where the numbering of the
13 precincts starts with one, not surprisingly, starts over by
14 the coast, that heavily Democratic precincts with over an
15 80 percent Democratic content were counted in the first 135
16 that they did where they stopped, and then the rest of the
17 county went 53 percent, as opposed to a higher number, I
18 believe 53 percent for Governor Bush.
19So, consequently, if you don't do the entire county,
20 again, you're skewing the votes. So you do have to
21 respectfully figure out a way to have all of these people in
22 all of these counties get everything done. So it's either
23 everything or nothing. And we'd also suggest that the whole
24 state has to be done, or they can't be permitted. There is a
25 statutory provision that says you can't have partial
{22}
1 recounts.
2THE COURT: When you say, "all the votes," are you
3 talking about all of the votes, or all of the undervotes?
4MR. KLOCK: Our position is all of the votes, that's
5 plan A, which Your Honor has indicated you don't have a great
6 deal of affection for.
7THE COURT: Plan A was that I personally look at
8 everything.
9MR. KLOK: This was a modified plan A. This is more
10 attractive. But the fact is, again, all the votes have to be
11 looked at, because the overvotes are just as significant as
12 the undervotes, because as you go through the process, if the
13 chads flip this way, they can flip that way.
14THE COURT: I'm going by a very narrow thing, and what
15 the Supreme Court told me to do is what would be done.
16MR. KLOCK: I'll be happy to put all of our objections
17 in writing, I just don't want the Court to claim its
18 sandbagged later on if these objections are raised.
19Finally, with respect to the standard, with respect to
20 what Mr. Beck raised, the only testimony -- they had an
21 expert that the Democrats put on. He was asked the following
22 several questions. He was asked: If you pick up a ballot
23 and you go to the presidential race, and you see a hole
24 punched through all the way, and you see a dimple below it,
25 and another candidate, how do you read that? And he said,
{23}
1 well, there's no question. The dimple is a mistake, and the
2 punch-through is correct.
3The next question: Well, if you pick up a ballot, and
4 there is only a dimple, and he said: Well, if it's only a
5 dimple, you count that as a vote.
6Now, how Your Honor, something that is a mistake in one
7 instance, then becomes not a mistake in another instance, I
8 think points to the fact that anything having to do with a
9 dimple should be immediately suspect, especially since we
10 don't have any standards.
11And I don't understand how you can have a standard if
12 something is or is not a mistake or a vote, depending on what
13 you want to do, which gets us back, again, Your Honor, to the
14 Canvassing Boards that have to make these determinations. I
15 guess with some sort of Court supervision.
16And if Your Honor wants, we'll put other objections
17 into writing and file them in the morning. We want them in
18 the record, and we want Your Honor to be able to look at
19 them.
20And, in addition, I would ask, with respect to what one
21 of the appellate courts is looking at, that is the
22 Eleventh Circuit Court of Appeals, we want to pass up a copy
23 of the Touchtone decision, and its dissent. And particularly
24 call Your Honor's attention to the dissent of
25 Judge Cholak (phonetic) for Your Honor to look at.
{24}
1I had asked for copies of each of the opinions to be
2 brough over, and, apparently they brought over twice as many
3 of one.
4I'll also hand up the Seagull opinion. And the other
5 objections, we'll file in writing.
6THE COURT: And I appreciate that many of you may have
7 objections to what needs to be done. My only concern is I'm
8 going to try to do what's been directed. I fully expect you
9 to make your objections on the record.
10But if we have to of the this done, what's the best way
11 to do it?
12Finally, also, I was just handed this. This is an
13 order of the United States District Judge for the Northern
14 District of Florida which commands that Military ballots that
15 are, as the language says -- if I can read this from the
16 ordering clause: "Accordingly the Court hereby orders any
17 state statute, regulation administrative rule, or procedure,
18 that rejects a federal write-in ballot which has been signed
19 pursuant to the oath provided therein, (a), solely because
20 the ballot envelope does not have an APO, FPO or foreign,
21 postmark; or, (b), solely because there was no need for an
22 application for a state absentee ballot, conflicts with
23 federal law. It is further odered that all federal write-in
24 ballots objected to for the above-stated reasons, are
25 declared valid, this 8th day of December, 2000, by Judge
{25}
1 Leahy Collier (phonetic), United States District Court,
2 which, of course, is binding upon the Secretary of the
3 Canvassing Commission. So we'll be in that process, as well,
4 Your Honor.
5MR. BECK: Your Honor, there were a couple of points
6 that I either didn't make, or didn't make clear, but I'll at
7 least make them short.
8The first one is that on the question of whether there
9 was a statewide standard as to not counting dimples and
10 indentations, there was, we believe, a statewide standard in
11 practice, in effect, which was to count, fully dislodged
12 chads, only, and that the Palm Beach regulation was a
13 recognition of that.
14It's not so much that the Palm Beach regulation governs
15 statewide, but it is a reflection of the fact that,
16 statewide, that was the practice and standard.
17So if this Court now articulates a standard that allows
18 dimples and indentations to be counted, that will be a new
19 and different approach and standard than was in place in the
20 Court -- in the state, although not written up in the state
21 regulations; and, therefore, would violate 3 US Code
22 Section 5.
23THE COURT: When you say at statewide standard, where
24 did it come from?
25MR. BECK: I think where it came from is probably the
{26}
1 instructions that came with the machine, and the instructions
2 that came from the manufacturer, and that the way that votes
3 are tallied, using the Votomatic machine is that somebody
4 dislodges the chad fully, then the light shines through and
5 it counts as a vote for Al Gore or for George Bush.
6And no one has ever, previous to this in Florida,
7 counted ballots any other way. No one had ever, previous to
8 this, using Votomatic ballots, ever used the standard of
9 indentations or anything else. So it was a machine count of
10 the ballots with fully dislodged chads. And to do something
11 other than that is a new and different standard, is your our
12 position on that.
13Secondly Your Honor --
14THE COURT: It's sort of like a common usage, or common
15 practice, as opposed to some standard proposed?
16MR. BECK: It was not a legislatively -- it was not
17 written in the statute, but it was -- when the officials who
18 determined how votes were to be counted and tabulated brought
19 the Votomatic machines, and followed the instructions from
20 the Votomatic manufacturer, and put the instructions on the
21 back of the voting booth, telling the voters what counts as a
22 vote, and having the instructions in the ballots.
23And what the instructions in the ballots say, and on
24 the back of the voting booth say, is that in order to vote,
25 you must fully dislodge the chad.
{27}
1And it says that, if I haven't fully dislodged the chad
2 you have to pull it off. So there, in fact, were written
3 standards in the form of the instructions that were at the
4 polling place on the wall, and in the back of the booth. We
5 saw it on television. I don't know if you were paying
6 attention to that part of the testimony.
7And is written on the ballots, themselves. So the
8 voters are instructed in language adopted by all the local
9 officials across the state who use these machines.
10So the standard is in writing, adopted by the local
11 boards and given to the voters. So we do believe we have
12 written standards that say: To vote, you dislodge the chad
13 completely, otherwise it's not going to count as a vote.
14So now to change that, we think would be a change in
15 the law and, in effect, in the written standards, which would
16 violate the federal statutes.
17And we can elaborate on that tomorrow, if you want.
18Then lastly, Judge, whatever procedure you adopt, and
19 whomever you delegate the task to of reviewing the ballots,
20 in the first instance, we think that for all challenged
21 ballots, those should be segregated further, identified by
22 number in some way, a record kept of the objections, and the
23 arguments made, and those should come to Your Honor from
24 around the state.
25I don't know how many there's going to be, but they --
{28}
1 I think if the standards are articulated clearly enough, I
2 don't think there's going to be very many nonvotes that are
3 transformed into votes. If, in fact, the factors are
4 identified correctly, there's very few people who put the
5 ballot on top of the machine and leave a pattern, because
6 they don't follow the instructions.
7So it's not going to be that big an issue, I don't
8 think, if the factors are clearly articulated.
9But whatever they are, we think that disputes need to
10 be resolved, in the last analysis, by this Court, rather than
11 by your -- whoever you delegate the initial counting to,
12 because the Canvassing Boards are not given any discretion in
13 the contest. They're not mentioned in the contest.
14And if the Supreme Court has decided to order, or to
15 suggest to Your Honor that you can enlist their aid, we think
16 that's a mistake. We think it creates horrible
17 constitutional problems. But if you go down that road, then
18 at the very least, there has to be some judicial review of
19 these determinations that are being made by nonjudicial
20 officers.
21So we hope all of the challenged ballots will be
22 bundled up, segregated, brought here to Tallahassee, and then
23 we can have a hearing and go through them.
24THE COURT: Mr. Myers? I'll give everybody a chance.
25MR. MYERS: May it please the Court, as you may not be
{29}
1 aware, I represented West Florida Intervenors in this action.
2 Early on in this litigation we had asked the Court to do a
3 statewide manual recount and asked the Court to take a
4 statewide perspective.
5If the Court looks at page 38 of the Florida Supreme
6 Court's decision, you'll see the Florida Supreme Court has
7 agreed with the Intervenor's position that a statewide count
8 should been done. So presumably they agreed with some of the
9 positions we presented.
10I wanted to answer Your Honor's question about votes
11 that are no votes, or not undervotes, in other words, the
12 overvotes, and perhaps the Military ballots, or any other
13 absentee ballots.
14I took some time to look through the Florida Supreme
15 Court's order, Your Honor, to determine whether you should be
16 ordering a recount of those.
17If the Court looks at page 39, you'll see that the
18 Florida Supreme Court has directed you to enter such orders
19 as are necessary to add any legal votes to the total
20 statewide certifications, any legal votes, Your Honor.
21And if you look back, you'll see on page 16 of that
22 decision that the Florida Supreme Court also agreed, it says,