No. 00-836
_____________________________________________________
IN THE
SUPREME COURT OF THE UNITED STATES
_____________________________________________________
GEORGE W. BUSH,
Petitioner,
v.
PALM BEACH COUNTY CANVASSING BOARD, et al.
Respondents.
_________________________________
On Petition For Writ of Certiorari
to the Florida Supreme Court
_________________________________
BROWARD COUNTY CANVASSING BOARD'S AND
BROWARD COUNTY SUPERVISOR OF ELECTION'S
RESPONSE TO PETITION FOR WRIT OF CERTIORARI
EDWARD A. DION SAMUEL S. GOREN
County Attorney for Broward County Counsel of Record
Counsel of Record MICHAEL D. CIRULLO
ANDREW J. MEYERS Josias, Goren, Cherof, Doody &
Chief Appellate Counsel Ezrol, P.A.
NORMAN M. OSTRAU 3099 East Commercial Blvd.
Deputy County Attorney Suite 200
TAMARA M. SCRUDDERS Fort Lauderdale, Florida 33308
Assistant County Attorney Telephone: (954) 771-4500
JOSE ARROJO
Assistant County Attorney Counsel for the Broward County
Government Center, Suite 423 Supervisor of Elections
115 South Andrews Avenue
Fort Lauderdale, Florida 33301
Counsel for the Broward County Canvassing Board
STATEMENT OF THE CASE
After the November 7, 2000 general election, the Broward County Canvassing Board (the
"Board") conducted a statutorily-mandated machine recount of the votes cast for President/Vice
President. Consistent with the requirements of §102.166(4), Florida Statutes, the Board then
conducted a limited manual recount of the votes cast in three precincts, which comprised more than
one percent (1%) of the total votes cast in Broward County. The Board determined that the results
of the limited manual recount indicated an error in vote tabulation that could affect the outcome of
the election. As a result of this determination, the Board was statutorily required, pursuant to
§102.166(5)(c), Florida Statutes, to conduct a county-wide manual recount of all ballots in Broward
County cast for President of the United States.
The Board began its full manual recount on Wednesday, November 15, 2000, at 2:00p.m..
From that date, the Board worked continuously, without taking any days off, even for the
Thanksgiving holiday. Initially, the Board, as well as hundreds of county employees and party
observers, worked from 8:00 a.m. until 6:00 p.m. each day, but the Board increased its hours even
further as the recount continued, working several days from 8:00 a.m. until 11:00 p.m. After
working eleven (11) consecutive days, the manual recount concluded on Saturday, November 25,
2000 shortly before midnight.
As stated in the certifications attached hereto as Exhibits "A" and "B", which were filed with
the Secretary of State on November 8, 2000 and November 26, 2000, respectively, the manual
recount resulted in One Thousand Seven Hundred Twenty-One (1,721) additional valid votes being
included in the vote totals for Broward County.
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ARGUMENT
I. THE FLORIDA SUPREME COURT'S HOLDING DOES NOT
VIOLATE THE DUE PROCESS CLAUSE OR 3 U.S.C. §5.
Under 3 U.S.C. §5, a determination regarding the appointment of presidential electors
pursuant to Florida's Election Code "shall be conclusive" provided:
1. The applicable provisions of the Florida Election Code were "enacted prior to the day fixed
for appointment of the electors;" and
2. The determination is made by December 12, 2000, which is six days prior to the meeting of
the electors under 3 U.S.C. §7 (2000).
A. The Supreme Court of Florida Did Not Rewrite the Applicable Provisions of the
Florida Election Code.
The Florida Supreme Court decision did not impose post-election judicial limitations on state
executive officials. Nor did it impose judicially created standards for the determination of
controversies concerning the appointment of presidential electors. Rather, the Florida Supreme
Court's decision interpreted existing Florida statutes as required to harmonize the various provisions
of the Florida Election Code so as to give effect to the overall purpose and intent of Florida's
election laws. In the Court's own words, the decision of the Florida Supreme Court was "consistent
with the Florida election scheme."
It has long been the law in Florida that wherever it is possible to do so, a court must construe
statutory sections so they operate in harmony with each other. Palm Harbor Special Fire Control
District v. Kelly, 516 So.2d 249 (Fla. 1987). In this case, the Florida Supreme Court's decision does
exactly that, squaring the express language of Florida's statutory provisions governing the election
process with the intent and purpose behind those provisions. At the same time, the Florida Supreme
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Court ensured that each vote in counties utilizing manual recounts can be accurately counted, and
that Florida's ability to appoint its electors by December 12, 2000 will not be jeopardized.
By providing that the Secretary of State was required to accept amended certifications from
the county canvassing boards, the Florida Supreme Court's holding did nothing more than interpret
Florida law in a manner to allow for what was intended-- to permit enough time for pre-certification
manual recounts as well as post-certification contests. The Court recognized that Florida's Election
Code contains no deadlines for filing corrected, amended or supplemental vote returns. The Court
further recognized that while Florida statutes specifically provide for manual recounts, the recounts
could not be accomplished in larger counties, like Broward County, within the seven (7) day period
contained in §102.166, Florida Statutes (2000).
This latter recognition was confirmed by the actual experience of the Broward County
Canvassing Board, which required eleven (11) consecutive arduous days, working long hours
without a break, to accurately complete the recount of approximately 588,000 ballots in Broward
County. As a result, more than 1,700 votes from Broward County not previously counted were
included in the final vote total certified by the Secretary of State on November 26, 2000. The
inclusion of those votes is what was intended by the Legislature when it provided for a procedure
for manual recounts. That goal was accomplished in Broward County, with absolutely no impact
on any other part of the election process.
The provisions of the Florida Election Code, upon which the manual recount vote total was
based, were enacted by the Florida Legislature prior to the day fixed for appointment of the electors.
As such, the final vote totals from Broward County was determined consistent with 3 U.S.C. §5.
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B. Contrary to Petitioner's Assertions, Neither the Decision of the Supreme Court of
Florida Nor the Board's Manual Recount Thwart the Will of the Electorate.
In its introduction, Petitioner asserts that the decision of the Supreme Court of Florida
"appears designed to thwart the will of the electorate . . .." To the contrary, the will of the electorate
can only be determined by counting all votes as to which the clear intent of the voter can be
determined. Given the problems clearly evident with machine vote tabulation in Broward County,
the Board determined that the manual recount was necessary to determine the true vote totals.
Petitioner further argues that the efforts of the Broward County Canvassing Board were
"unrestrained by statutory guidance[.]" This allegation is simply not true. Florida Statute
§101.5614(5) provides: "No 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." This statutory mandate guided all
decisions of the Broward County Canvassing Board.
Petitioner also asserts that the act of manually recounting ballots, which requires handling
of the ballots, undermined the physical integrity of the ballots. There is no evidence before this
Court to support that bald assertion. Petitioner's failure to cite to any record support equates to an
admission that none exists.
II. THE FLORIDA SUPREME COURT'S DECISION IS NOT
INCONSISTENT WITH ARTICLE II, SECTION 1, CLAUSE
2 OF THE CONSTITUTION.
As indicated in Section I of this Response, the Florida Supreme Court decision is consistent
with Florida Statutes enacted before the election was held. The argument in Section I is incorporated
here as Broward County Canvassing Board's response to Question II presented by the Petitioner.
It is further submitted that, based on those arguments, the Florida Supreme Court's decision is not
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inconsistent with Article II, Section 1, clause 2 of the Constitution.
III. IF THIS COURT WERE TO FIND THAT THE FLORIDA
SUPREME COURT'S DECISION DOES NOT COMPLY WITH
3 U.S.C. §5, MORE THAN 1,700 VOTERS WOULD BE
NEEDLESSLY DISENFRANCHISED.
The Broward County Canvassing Board has invested substantial time and effort in
painstakingly examining each ballot cast in Broward County to determine the true intent of each
voter and to reach an accurate count of votes cast. The Board's efforts were consistent with Florida
law and pursuant to the clear direction of the Florida Supreme Court.
The direct result of any decision reversing the Florida Supreme Court will be the
disenfranchisement of more than 1,700 Broward County voters who validly and lawfully filled in
ballots which would be rendered meaningless solely because of the limitations of the county's
machine counting system.
CONCLUSION
Wherefore the Broward County Canvassing Board respectfully requests this Court deny the
writ of certiorari requested by Petitioners, allowing Broward County's amended certification to
stand.
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Respectfully submitted,
EDWARD A. DION
Broward County Attorney
Governmental Center, Suite 423
115 South Andrews Avenue
Ft. Lauderdale, Florida 33301
Telephone: (954) 357-7600
Facsimile: (954) 357-7641
By:
EDWARD A. DION
Florida Bar No. 267732
Counsel of Record
ANDREW J. MEYERS
Chief Appellate Counsel
Florida Bar No. 709816
NORMAN M. OSTRAU
Deputy County Attorney
Florida Bar No. 273971
TAMARA M. SCRUDDERS
Assistant County Attorney
Florida Bar No. 868426
JOSE ARROJO
Assistant County Attorney
Florida Bar No. 744808
Counsel for Broward County Canvassing Bd.
SAMUEL S. GOREN
MICHAEL D. CIRULLO
Josias, Goren, Cherof, Doody & Ezrol, P.A.
3099 East Commercial Blvd., Suite 200
Fort Lauderdale, Florida 33308
By: __________________________
SAMUEL S. GOREN
Fla. Bar No. 205850
MICHAEL D. CIRULLO
Fla. Bar No. 973180
Counsel for Broward County Supervisor of
Elections
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