No. 00-949 IN THE Supreme Court of the United States GEORGE W. BUSH AND RICHARD CHENEY, Petitioners, v. ALBERT GORE, JR., et al., Respondents. On Writ Of Certiorari To The Supreme Court Of Florida PETITIONERS' APPENDIX MICHAEL A. CARVIN THEODORE B. OLSON COOPER, CARVIN & Counsel Of Record ROSENTHAL, P.L.L.C. DOUGLAS R. COX 1500 K Street, N.W. THOMAS G. HUNGAR Suite 200 GIBSON, DUNN & CRUTCHER LLP Washington, D.C. 20005 1050 Connecticut Avenue, N.W. (202) 220-9600 Washington, D.C. 20036 (202) 955-8500 BARRY RICHARD GREENBERG TRAURIG, P.A. BENJAMIN L. GINSBERG 101 East College Avenue PATTON BOGGS LLP Post Office Drawer 1838 2550 M Street, N.W. Tallahassee, FL 32302 Washington, D.C. 20037 (850) 222-6891 (202) 457-6000 [Additional counsel listed on inside front cover] Counsel for Petitioners Certiorari Granted December 9, 2000 GEORGE J. TERWILLIGER III WILLIAM K. KELLEY TIMOTHY E. FLANIGAN Notre Dame Law School WHITE & CASE LLP Notre Dame, IN 46556 601 13th Street, N.W. Washington, D.C. 20005 (202) 626-3600 i TABLE OF CONTENTS Page Opinion Of Supreme Court Of Florida, Gore v. Harris (No. SC00-2431) (Dec. 8, 2000)..................1a Order Of Final Judgment, Leon County Circuit Court, Gore v. Harris (No. 00-2808) (Dec. 4, 2000)............................................................57a Judge Sauls's Bench Ruling, Leon County Cir- cuit Court, Gore v. Harris (No. 00-2808) (Dec. 3, 2000)............................................................58a Opinion Of Supreme Court Of Florida, Palm Beach County Canvassing Board v. Harris (Nos. SC00-2346, SC00-2348 & SC00- 2349) (Nov. 21, 2000)..............................................66a Clarification Of Argument For Appellees George W. Bush And Dick Cheney, Su- preme Court Of Florida, Gore v. Harris (No. SC00-2431) (Dec. 7, 2000) ......................... 101a Amended Brief Of Appellees George W. Bush And Dick Cheney, Supreme Court Of Flor- ida, Gore v. Harris (No. SC00-2431) (Dec. 6, 2000)......................................................... 108a Third Party Complaint Of Defendants George W. Bush And Dick Cheney, Leon County Circuit Court, Gore v. Harris v. Broward County Canvassing Board (No. 00-2808) (Dec. 2, 2000)........................................ 111a Answer And Affirmative Defenses Of Defen- dants George W. Bush And Richard Cheney To Complaint To Contest Election, Leon County Circuit Court, Gore v. Harris (No. 00-2808) (Nov. 30, 2000)..................................... 118a ii Motion And Memorandum In Support Of De- fendants George W. Bush And Dick Che- ney's Motion To Dismiss For Lack Of Sub- ject Matter Jurisdiction, Failure To Name Indispensable Parties, And Failure To State A Claim, Leon County Circuit Court, Gore v. Harris (No. 00-2808) (Nov. 30, 2000) .......... 123a Relevant Constitutional And Statutory Provi- sions......................................................................... 127a U.S. CONST. art. II, § 1, cl. 2................................ 127a U.S. CONST. art. II, § 1, cl. 4................................ 127a U.S. CONST. amend. XII....................................... 127a U.S. CONST. amend. XIV..................................... 129a 3 U.S.C. § 1 ............................................................ 129a 3 U.S.C. § 2 ............................................................ 129a 3 U.S.C. § 5 ............................................................ 129a 3 U.S.C. § 6 ............................................................ 130a 3 U.S.C. § 15.......................................................... 131a FLA. CONST. art. V, § 3..........................................133a Fla. Stat. § 97.012...................................................136a Fla. Stat. § 102.111.................................................136a Fla. Stat. § 102.112.................................................137a Fla. Stat. § 102.141.................................................138a Fla. Stat. § 102.166.................................................138a Fla. Stat. § 102.168.................................................141a Fla. Stat. § 106.23.................................................. 144a 1a APPENDIX A Supreme Court of Florida ________ No. SC00-2431 ____________ ALBERT GORE, JR., and JOSEPH I. LIEBERMAN, Appellants, vs. KATHERINE HARRIS, as Secretary, etc., et al., Appellees. [December 8, 2000] PER CURIAM. We have for review a final judgment of a Leon County trial court certified by the First District Court of Appeal as being of great public importance and requir- ing immediate resolution by this Court. We have juris- diction. See art. V, § 3(b)(5), Fla. Const.1 The final judgment under review denies all relief requested by appellants Albert Gore, Jr. and Joseph I. Lieberman, the Democratic candidates for President and Vice President of the United States, in their complaint contesting the certification of the state results in the November 7, 2000, presidential election.2 Although we find that the appel- lants are entitled to reversal in part of the trial court's 1The parties have agreed that this appeal is properly before this Court. 2The appellants have alternatively styled their request for relief as a Petition for Writ of Mandamus or Other Writs. 2a order and are entitled to a manual count of the Miami- Dade County undervote, we agree with the appellees that the ultimate relief would require a counting of the legal votes contained within the undervotes in all coun- ties where the undervote has not been subjected to a manual tabulation. Accordingly, we reverse and remand for proceedings consistent with this opinion. I. BACKGROUND On November 26, 2000, the Florida Election Can- vassing Commission (Canvassing Commission) certified the results of the election and declared Governor George W. Bush and Richard Cheney, the Republican candi- dates for President and Vice President, the winner of Florida's electoral votes.3 The November 26, 2000, cer- tified results showed a 537-vote margin in favor of Bush.4 On November 27, pursuant to the legislatively en- acted "contest" provisions, Gore filed a complaint in Leon County Circuit Court contesting the certification on the grounds that the results certified by the Canvass- ing Commission included "a number of illegal votes" and failed to include "a number of legal votes sufficient to change or place in doubt the result of the election."5 Pursuant to the legislative scheme providing for an "immediate hearing" in a contest action, the trial court held a two-day evidentiary hearing on December 2 and 3, 2000, and on December 4, 2000, made an oral state- ment in open court denying all relief and entered a final judgment adopting the oral statement. The trial court did not make any findings as to the factual allegations made in the complaint and did not reference any of the 3See §§102.111 & .121, Florida Statutes (2000). 4Bush received 2,912,790 votes while Gore received 2,912,253 votes. 5See § 102.168(3)(c), Fla. Stat. (2000). 3a testimony adduced in the two-day evidentiary hearing, other than to summarily state that the plaintiffs failed to meet their burden of proof. Gore appealed to the First District Court of Appeal, which certified the judgment to this Court. The appellants' election contest is based on five in- stances where the official results certified involved ei- ther the rejection of a number of legal votes or the re- ceipt of a number of illegal votes. These five instances, as summarized by the appellants' brief, are as follows: (1) The rejection of 215 net votes for Gore identified in a manual count by the Palm Beach Canvassing Board as reflecting the clear intent of the voters; (2) The rejection of 168 net votes for Gore, identified in the partial recount by the Miami- Dade County Canvassing Board. (3) The receipt and certification after Thanks- giving of the election night returns from Nassau County, instead of the statutorily mandated ma- chine recount tabulation, in violation of section 102.14, Florida Statutes, resulting in an addi- tional 51 net votes for Bush. (4) The rejection of an additional 3300 votes in Palm Beach County, most of which Democrat observers identified as votes for Gore but which were not included in the Canvassing Board's certified results; and (5) The refusal to review approximately 9000 Miami-Dade ballots, which the counting ma- chine registered as non-votes and which have never been manually reviewed. For the reasons stated in this opinion, we find that the trial court erred as a matter of law in not including (1) the 215 net votes for Gore identified by the Palm 4a Beach County Canvassing Board6 and (2) in not includ- ing the 168 net votes for Gore identified in a partial re- count by the Miami-Dade County Canvassing Board. However, we find no error in the trial court's findings, which are mixed questions of law and fact, concerning (3) the Nassau County Canvassing Board and the (4) additional 3300 votes in Palm Beach County that the Canvassing Board did not find to be legal votes. Lastly, we find the trial court erred as a matter of law in (5) re- fusing to examine the approximately 9000 additional Miami-Dade ballots placed in evidence, which have never been examined manually. II. APPLICABLE LAW Article II, section I, clause 2 of the United States Constitution, grants the authority to select presidential electors "in such Manner as the Legislature thereof may direct." The Legislature of this State has placed the de- cision for election of President of the United States, as well as every other elected office, in the citizens of this State through a statutory scheme. These statutes estab- lished by the Legislature govern our decision today. We consider these statutes cognizant of the federal grant of authority derived from the United States Constitution and derived from 3 U.S.C. § 5 (1994) entitled "Determi- nation of controversy as to appointment of electors." That section provides: If any State shall have provided, by laws en- acted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appoint- ment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at 6Bush claims in his brief that the audited total is 176 votes. We make no determination as to which of these two numbers are accu- rate but direct the trial court to make this determination on remand. 5a least six days before the time fixed for the meet- ing of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is con- cerned. (Emphasis supplied). This case today is controlled by the language set forth by the Legislature in section 102.168, Florida Stat- utes (2000). Indeed, an important part of the statutory election scheme is the State's provision for a contest process, section 102.168, which laws were enacted by the Legislature prior to the 2000 election.7 Although 7In a substantial and dramatic change of position after oral argu- ment in this case, Bush contends in his "Motion for Leave To File Clarification of Argument" that section 102.168 cannot apply in the context of a presidential election. However, this position is in stark contrast to his position both in this case and in the prior ap- peal. In fact, in Oral Argument on December 7, 2000, counsel for Bush agreed that the contest provisions contained in the Florida Election Code have placed such proceedings within the arena for judicial determination, which includes the established procedures for appellate review of circuit court determinations. Further, Bush's counsel, Michael Carvin, in the prior Oral Argument in Palm Beach Canvassing Board v. Harris, in arguing against allowing manual recounts to continue in the protest phase, stated that he did not think there would be any problem in producing...that kind of evidence in an election contest procedure...instead of having every court in Florida resolving on an ad hoc basis the kinds of ballots that are valid and not valid, you would be centralizing the factual inquiry in one court in Leon County. So you would bring some orderliness to the proc- ess, and they would be able to resolve that evidentiary 6a courts are, and should be, reluctant to interject them- selves in essentially political controversies, the Legisla- question. One way or another, a court's going to have re- solve it. (emphasis supplied). Moreover, the Answer Brief of Bush in Case Nos. SC00-2346, 2348, and 2849 (Nov. 18, 2000 a page 18 states that "to implement Petitioners' desired policy of manual recounts at all costs, the Court is asked to . . . (5) substitute the certification process of Section 102.111 and Section 102.112 for the contested election process of Section 102.168 as the means for determining the accuracy of the vote tallies." (emphasis supplied). In addition, the December 5, 2000 brief of Amici curiae of the Florida House of Representatives and the Florida Senate, in case nos. SC00- 2346, SC00-2348 & SC00-2349 (Dec. 5, 2000) at 8 "The Secre- tary's opinion was also consistent with the fact that the statutory protests that can lead to manual recounts are county-specific com- plaints about a particular county's machines, whereas a complaint about punchcards generally undercounting votes really raises a statewide issue that should be pursued, if at all, only in a statewide contest." (emphasis supplied). Finally the Amended Answer Brief of the Secretary of State asserted that [p]etitioner has confused a pre-certification election pro- test (section 102.166) with a post-certification contest (section 102.168). such facts and circumstances are usu- ally discovered and raised in a contest action that cannot begin until after the election is certified. The Legislature imposed a deadline for certification because of the short time frame within which to begin and conclude an election contest. Petitioners are, in effect, asking this Court to de- lay the commencement of election contest actions, if any, by improperly using the protest procedures to contest the election before certification. Because the facts and circum- stances concerning voter error and ballot design in Palm Beach County are more properly raised in a contest ac- tion, these facts were not relevant to the Secretary's deci- sion to certify the election. Her decision triggered the time for bringing any election contest actions. (emphasis sup- plied). 7a ture has directed in section 102.168 that an election con- test shall be resolved in a judicial forum. See § 102.168 (providing that election contests not pertaining to either house of the Legislature may be contested "in the circuit court"). This Court has recognized that the purpose of the election contest statute is "to afford a simple and speedy means of contesting election to stated offices." Farmer v. Carson, 110 Fla. 245, 251, 148 So. 557, 559 (1933). In carefully construing the contest statute, no single statutory provision will be construed in such a way as to render meaningless or absurd any other statutory provi- sion. See Amente v. Newman, 653 So. 2d 1030, 1032 (Fla. 1995). In interpreting the various statutory com- ponents of the State's election process, then, a com- mon-sense approach is required, so that the purpose of the statute is to give effect to the legislative directions ensuring that the right to vote will not be frustrated. Cf. Firestone v. News-Press Pub. Co., 538 So. 2d 457, 460 (Fla. 1989) (approving common-sense implementation of valid portion of section 101.121, Florida Statutes (1985)-- which broadly read, in pertinent part, that "no person who is not in line to vote may come [into] any polling place from the opening to the closing of the polls, except the officially designated watchers, the in- spectors, the clerks of election, and the supervisor of elections or his deputy"-- so as not to exclude persons accompanying aged or infirm voters, children of voting parents, doctors entering the building to treat voters needing emergency care, or persons bringing food or beverages to the election workers because such activities are recognized as "incidental to the voting process and . . . sometimes necessary to facilitate someone else's ability to vote"). Section 102.168(2) sets forth the procedures that must be followed in a contest proceeding, providing that the contestant file a complaint in the circuit court within ten days after certification of the election returns or five 8a days after certification following a protest pursuant to section 102.166(1), Florida Statutes (2000), whichever occurs later. Section 102.168(3) outlines the grounds for contesting an election, and includes: "Receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election." § 102.168(3)(c) (emphasis added). Fi- nally, section 102.168(8) authorizes the circuit court judge to "fashion such orders as he or she deems neces- sary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or cor- rect any alleged wrong, and to provide any relief appro- priate under the circumstances." (Emphasis added.) The Legislature substantially revised section 102.168 in 1999.8 That amendment preserved existing rights of unsuccessful candidates and made important additional changes to strengthen the protections pro- vided to unsuccessful candidates in a contest action to be determined.9 Moreover, rather than restraining the ac- 8Viewed historically, section 102.168 did not always provide for contests of the type we consider today. As originally enacted, section 102.168 simply provided a mechanism for ouster of elected local officials. Under that version of the statute, election chal- lenges were limited to county offices, and only the person claiming to have been rightfully elected to the position could challenge the election. See Ch. 38, Art. 10, §§ 7, 8, 9 (1845). 9The following language of section 102.168, Florida Statutes was changed in 1999 (words stricken are deletions; words underlined are additions): (1) Except as provided in s. 102.171, the certification of election or nomination of any person to office, or of the re- sult on any question submitted by referendum, may be contested in the circuit court by any unsuccessful candi- date for such office or nomination thereto or by any elector qualified to vote in the election related to such candidacy, or by any taxpayer, respectively. (2) Such contestant shall file a complaint, together with the fees prescribed in chapter 28, with the clerk of the cir- 9a cuit court within 10 days after midnight of the date the last county canvassing board empowered to canvass the returns certifies the results of the election being contested or within 5 days after midnight of the date the last county canvassing board empowered to canvass the returns certi- fies the results of that particular election following a pro- test pursuant to s. 102.166(1), whichever occurs later. ad- journs, and (3) The complaint shall set forth the grounds on which the contestant intends to establish his or her right to such office or set aside the result of the election on a submitted referendum. The grounds for contesting an election under this section are: (a) Misconduct, fraud, or corruption on the part of any election official or any member of the canvassing board sufficient to change or place in doubt the result of the elec- tion. (b) Ineligibility of the successful candidate for the nomination or office in dispute. (c) Receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election. (d) Proof that any elector, election official, or canvass- ing board member was given or offered a bribe or reward in money, property, or any other thing of value for the purpose of procuring the successful candidate's nomina- tion or election or determining the result on any question submitted by referendum. (e) Any other cause or allegation which, if sustained, would show that a person other than the successful candi- date was the person duly nominated or elected to the office in question or that the outcome of the election on a ques- tion submitted by referendum was contrary to the result declared by the canvassing board or election board. (4) The canvassing board or election board shall be the proper party defendant, and the successful candidate shall be an indispensable party to any action brought to contest the election or nomination of a candidate. 10a tions of the trial court hearing the contest, the legislative amendment codified the grounds for contesting an elec- tion, entitled any candidate or elector to an immediate hearing and provided the circuit judge with express au- thority to fashion such orders as are necessary to ensure that each allegation in the complaint is investigated, examined or checked. See Fla. H. R. Comm. on (5) A statement of the grounds of contest may not be rejected, nor the proceedings dismissed, by the court for any want of form if the grounds of contest provided in the statement are sufficient to clearly inform the defendant of the particular proceeding or cause for which the nomina- tion or election is contested. (6) A copy of the complaint shall be served upon the defendant and any other person named therein in the same manner as in other civil cases under the laws of this state. Within 10 days after the complaint has been served, the defendant must file an answer admitting or denying the al- legations on which the contestant relies or stating that the defendant has no knowledge or information concerning the allegations, which shall be deemed a denial of the allega- tions, and must state any other defenses, in law or fact, on which the defendant relies. If an answer is not filed within the time prescribed, the defendant may not be granted a hearing in court to assert any claim or objection that is re- quired by this subsection to be stated in an answer. (7) Any candidate, qualified elector, or taxpayer pre- senting such a contest to a circuit judge is entitled to an immediate hearing. However, the court in its discretion may limit the time to be consumed in taking testimony, with a view therein to the circumstances of the matter and to the proximity of any succeeding primary or other elec- tion. (8) The circuit judge to whom the contest is presented may fashion such orders as he or she deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances. Ch. 99-339, § 3, Laws of Florida. 11a amined or checked. See Fla. H. R. Comm. on Election Reform, HB 291 (1999) Staff Analysis (February 3, 1999). Although the right to contest an election is created by statute, it has been a long-standing right since 1845 when the first election contest statute was enacted. See ch. 38, art. 10, §§ 7-9 Laws of Fla. (1845). As well- established in this State by our contest statute, "[t]he right to a correct count of the ballots in an election is a substantial right which it is the privilege of every candi- date for office to insist on, in every case where there has been a failure to make a proper count, call, tally, or re- turn of the votes as required by law, and this fact has been duly established as the basis for granting such re- lief." State ex rel. Millinor v. Smith, 107 Fla. 134, 139, 144 So. 333, 335 (1932) (emphasis added). The Staff Analysis of the 1999 legislative amendment expressly endorses this important principle. Similarly, the Florida House of Representatives Committee on Election Re- form 1997 Interim Project on Election Contests and Re- counts expressly declared: Recounts are an integral part of the election process. For one's vote, when cast, to be trans- lated into a true message, that vote must be ac- curately counted, and if necessary, recounted. The moment an individual's vote becomes sub- ject to error in the vote tabulation process, the easier it is for that vote to be diluted. Furthermore, with voting statistics tracing a decline in voter turnout and in increase in public skepticism, every effort should be made to en- sure the integrity of the electoral process. Integrity is particularly crucial at the tabula- tion stage because many elections occur in ex- tremely competitive jurisdictions, where very close election results are always possible. In addition, voters and the media expect rapid and 12a accurate tabulation of election returns, regard- less of whether the election is close or one sided. Nonetheless, when large numbers of votes are to be counted, it can be expected that some error will occur in tabulation or in can- vassing. Id. at 15 (footnotes omitted). It is with the recognition of these legislative realities and abiding principles that we address whether the trial court made errors of law in rendering its decision. III. ORDER ON REVIEW Vice President Gore claims that the trial court erred in the following three ways: (1) The trial court held that an election contest proceeding was essentially an appel- late proceeding where the County Canvassing Board's decision must be reviewed with an "abuse of discretion," rather than "de novo," standard of review; (2) The court held that in a contest proceeding in a statewide election a court must review all the ballots cast throughout the state, not just the contested ballots; (3) The court failed to apply the legal standard for relief expressly set forth in section 102.168(3)(c). A. The Trial Court's Standard of Review The Florida Election Code sets forth a two-pronged system for challenging vote returns and election proce- dures. The "protest" and "contest" provisions are dis- tinct proceedings. A protest proceeding is filed with the County Canvassing Board and addresses the validity of the vote returns. The relief that may be granted includes a manual recount. The Canvassing Board is a neutral ministerial body. See Morse v. Dade County Canvass- ing Board, 456 So. 2d 1314 (Fla. 3d DCA 1984). A contest proceeding, on the other hand, is filed in circuit court and addresses the validity of the election itself. Relief that may be granted is varied and can be exten- sive. No appellate relationship exists between a "pro- test" and a "contest"; a protest is not a prerequisite for a 13a contest. Cf. Flack v. Carter, 392 So. 2d 37 (Fla. 1st DCA 1980) (holding that an election protest under sec- tion 102.166 was not a condition precedent to an elec- tion contest under section 102.168). Moreover, the trial court in the contest action does not sit as an appellate court over the decisions of the Canvassing Board. Ac- cordingly, while the Board's actions concerning the elections process may constitute evidence in a contest proceeding, the Board's decisions are not to be accorded the highly deferential "abuse of discretion" standard of review during a contest proceeding. In the present case, the trial court erroneously ap- plied an appellate abuse of discretion standard to the Boards' decisions. The trial court's oral order reads in relevant part: The local boards have been given broad dis- cretion which no Court may overrule, absent a clear abuse of discretion. Gore v. Harris, No. 00-2808 (Fla. 2d Cir. Ct. Dec. 4, 2000) (Proceedings at 10). The trial court further noted: "The court further finds that the Dade Canvassing Board did not abuse its discretion. . . . The Palm Beach County Board did not abuse its discretion in its review and re- counting process."10 In applying the abuse of discretion standard of review to the Boards' actions, the trial court relinquished an improper degree of its own authority to the Boards. This was error. B. Must all the Ballots be Counted Statewide? Appellees contend that even if a count of the under- votes in Miami-Dade were appropriate, section 102.168, Florida Statutes (2000), requires a count of all votes in Miami-Dade County and the entire state as opposed to a selected number of votes challenged. However, the 10Gore v. Harris, No. 00-2808 (Fla. 2d Cir. Ct. Dec. ___, 2000) (Proceedings at 10-11). 14a plain language of section 102.168 refutes Appellees' argument. Section 102.168(2) sets forth the procedures that must be followed in a contest proceeding, providing that the contestant file a complaint in the circuit court within ten days after certification of the election returns or five days after certification following a protest pursuant to section 102.166(1), whichever occurs later. Section 102.168(3) outlines the grounds for contesting an elec- tion, and includes: "Receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election." § 102.168(3)(c) (emphasis added). Finally, section 102.168(8) authorizes the circuit court judge to "fashion such orders as he . . . deems necessary to ensure that each allegation in the complaint is investigated, exam- ined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under the circumstances." As explained above, section 102.168(3)(c) explicitly contemplates contests based upon a "rejection of a num- ber of legal votes sufficient to change the outcome of an election." Logic dictates that to bring a challenge based upon the rejection of a specific number of legal votes under section 102.168(3)(c), the contestant must estab- lish the "number of legal votes" which the county can- vassing board failed to count. This number, therefore, under the plain language of the statute, is limited to the votes identified and challenged under section 102.168(3)(c), rather than the entire county. Moreover, counting uncontested votes in a contest would be irrele- vant to a determination of whether certain uncounted votes constitute legal votes that have been rejected. On the other hand, a consideration of "legal votes" con- tained in the category of "undervotes" identified state- wide may be properly considered as evidence in the con- test proceedings and, more importantly, in fashioning any relief. 15a We do agree, however, that it is absolutely essential in this proceeding and to any final decision, that a man- ual recount be conducted for all legal votes in this State, not only in Miami-Dade County, but in all Florida coun- ties where there was an undervote, and, hence a concern that not every citizen's vote was counted. This election should be determined by a careful examination of the votes of Florida's citizens and not by strategies extrane- ous to the voting process. This essential principle, that the outcome of elections be determined by the will of the voters, forms the foundation of the election code enacted by the Florida Legislature and has been consis- tently applied by this Court in resolving elections dis- putes. We are dealing with the essence of the structure of our democratic society; with the interrelationship, within that framework, between the United States Constitution and the statutory scheme established pursuant to that authority by the Florida Legislature. Pursuant to the authority extended by the United States Constitution, in section 103.011, Florida Statutes (2000), the Legislature has expressly vested in the citizens of the State of Flor- ida the right to select the electors for President and Vice President of the United States: Electors of President and Vice President, known as presidential electors, shall be elected on the first Tuesday after the first Monday in Novem- ber of each year the number of which is a multi- ple of 4. Votes cast for the actual candidates for President and Vice President shall be counted as votes cast for the presidential electors support- ing such candidates. The Department of State shall certify as elected the presidential electors of the candidates for President and Vice Presi- dent who receive the highest number of votes. 16a Id. In so doing, the Legislature has placed the election of presidential electors squarely in the hands of Florida's voters under the general election laws of Florida.11 Hence, the Legislature has expressly recognized the will of the people of Florida as the guiding principle for the selection of all elected officials in the State of Florida, whether they be county commissioners or presidential electors. When an election contest is filed under section 102.168, Florida Statutes (2000), the contest statute charges trial courts to: fashion such orders as he or she deems neces- sary to ensure that each allegation in the com- plaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances. Id. (emphasis added). Through this statute, the Legisla- ture has granted trial courts broad authority to resolve election disputes and fashion appropriate relief. In turn, this Court, consistent with legislative policy, has pointed to the "will of the voters" as the primary guiding princi- ple to be utilized by trial courts in resolving election contests: [T]he real parties in interest here, not in the le- gal sense but in realistic terms, are the voters. They are possessed of the ultimate interest and 11In other words, the Legislature has prescribed a single election scheme for local, state and federal elections. The Legislature has not, beyond granting to Florida's voters the right to select presi- dential electors, indicated in any way that it intended that a differ- ent (and unstated) set of election rules should apply to the selection of presidential electors. Of course, because the selection and par- ticipation of Florida's electors in the presidential election process is subject to a stringent calendar controlled by federal law, the Florida election law scheme must yield in the event of a conflict. 17a it is they whom we must give primary consid- eration. The contestants have direct interests certainly, but the office they seek is one of high public service and of utmost importance to the people, thus subordinating their interests to that of the people. Ours is a government of, by and for the people. Our federal and state constitu- tions guarantee the right of the people to take an active part in the process of that government, which for most of our citizens means participa- tion via the election process. The right to vote is the right to participate; it is also the right to speak, but more importantly the right to be heard. Boardman v. Esteva, 323 So. 2d 259, 263 (Fla. 1975) (emphasis added). For example, the Legislature has mandated that no vote shall be ignored "if there is a clear indication of the intent of the voter" on the ballot, unless it is "impossible to determine the elector's choice . . . ." § 101.5614(5)-(6) Fla. Stat. (2000). Section 102.166(7), Florida Statutes (2000), also provides that the focus of any manual examination of a ballot shall be to determine the voter's intent. The clear message from this legislative policy is that every citizen's vote be counted whenever possible, whether in an election for a local commissioner or an election for President of the United States.12 12In the election contest at issue here, this Court can do no more than see that every citizen's vote be counted. But it can do no less. In a scenario somewhat analogous to that presented here, and in an election contest for a seat in the United States House of Represen- tatives, the contesting candidate sought to exclude some 11,000 votes from being counted because the votes were not timely re- ported to the Secretary of State. See State ex rel. Chappell v. Mar- tinez, 536 So. 2d 1007. This Court, in a unanimous opinion au- thored by Justice McDonald, refused to exclude the votes and held that the contesting candidate "has presented no compelling reason 18a The demonstrated problem of not counting legal votes inures to any county utilizing a counting system which results in undervotes and "no registered vote" ballots. In a countywide election, one would not simply examine such categories of ballots from a single precinct to insure the reliability and integrity of the countywide vote. Similarly, in this statewide election, review should not be limited to less than all counties whose tabulation has resulted in such categories of ballots. Relief would not be "appropriate under [the] circumstances" if it failed to address the "otherwise valid exercise of the right of a citizen to vote" of all those citizens of this State who, being similarly situated, have had their legal votes rejected. This is particularly important in a Presi- dential election, which implicates both State and uniquely important national interests. The contestant here satisfied the threshold requirement by demonstrat- ing that, upon consideration of the thousands of under- vote or "no registered vote" ballots presented, the num- ber of legal votes therein were sufficient to at least place in doubt the result of the election. However, a final de- cision as to the result of the statewide election should only be determined upon consideration of the legal votes contained within the undervote or "no registered vote" ballots of all Florida counties, as well as the legal votes already tabulated. C. The Plaintiff's Burden of Proof It is immediately apparent, in reviewing the trial court's ruling here, that the trial court failed to apply the statutory standard and instead applied an improper stan- dard in determining the contestant's burden under the contest statute. The trial court began its analysis by stat- ing: for disenfranchising the 11,000 residents of Flagler County who cast their ballots on November 8." Id. at 1009. 19a [I]t is well established and reflected in the opinion of Judge Joanos and Smith v. Tine[13] [sic], that in order to contest election results un- der Section 102.168 of the Florida Statutes, the Plaintiff must show that, but for the irregularity, or inaccuracy claimed, the result of the election would have been different, and he or she would have been the winner. It is not enough to show a reasonable possi- bility that election results could have been al- tered by such irregularities, or inaccuracies, rather, a reasonable probability that the results of the election would have been changed must be shown. In this case, there is no credible statistical evidence, and no other competent substantial evidence to establish by a preponderance of a reasonable probability that the results of the statewide election in the State of Florida would be different from the result which has been cer- tified by the State Elections Canvassing Com- mission. This analysis overlooks and fails to recognize the specific and material changes to the statute which the Legislature made in 1999 that control these proceedings. While the earlier version, like the current version, pro- vided that a contestant shall file a complaint setting forth "the grounds on which the contestant intends to establish his or her right to such office or set aside the result of 13Smith v. Tynes, 412 So. 2d 925 (Fla. 1st DCA 1982) (involving allegations of enumerated acts asserted to constitute fraud and misrepresentation to the electorate sufficient to produce a different result) (citing Nelson v. Robinson, 301 So. 2d 508 (Fla. 2d DCA 1974), cert. denied, 303 So. 2d 21 (Fla. 1974) (involving a post- election challenge to a form of ballot which listed the candidates for a single office in alphabetical order using the same color ink, but on different lines)). 20a the election," the prior version did not specifically enu- merate the "grounds for contesting an election under this section." Those grounds, as contained in the 1999 stat- ute, now explicitly include, in subsection (c), the "[r]eceipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election." (Emphasis supplied.) Assuming that reasonableness is an implied component of such a doubt standard,14 the determination of whether the plaintiff has met his or her burden of proof to estab- lish that the result of an election is in doubt is a far dif- ferent standard than the "reasonable probability" stan- dard, which was applicable to contests under the old version of the statute, and erroneously applied and ar- ticulated as a "preponderance of a reasonable probabil- ity" standard by the trial court here. Where, as here, a person authorized to contest an election is required to demonstrate that there have been legal votes cast in the election that have not been counted (here characterized as "undervotes" or "no vote registered" ballots) and that available data15 shows that, applying an analysis of the historical recovery rate of legal votes within those un- dervotes or "no vote registered" ballots, by extrapola- tion, a number of legal votes would be recovered from the entire pool of the subject ballots which, if cast for the unsuccessful candidate, would change or place in doubt the result of the election. Here, there has been an undisputed showing of the existence of some 9,000 "un- der votes" in an election contest decided by a margin measured in the hundreds. Thus, a threshold contest 14Cf. Standard Jury Instructions in Criminal Cases, 697 So. 2d 84, 90 (Fla. 1997) (approving standard jury instruction regarding "rea- sonable doubt," which is "not a mere possible doubt, a speculative, imaginary or forced doubt," and which "may arise from the evi- dence, conflict in the evidence or the lack of evidence"). 15In this case, the circuit court did not review the ballot presented as evidence. 21a 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. LEGAL VOTES Having first identified the proper standard of re- view, we turn now to the allegations of the complaint filed in this election contest. To test the sufficiency of those allegations and the proof, it is essential to under- stand what, under Florida law, may constitute a "legal vote," and what constitutes rejection of such vote. Section 101.5614(5), Florida Statutes (2000), pro- vides 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." Section 101.5614(6) provides, conversely, that any vote in which the board cannot discern the intent of the voter must be discarded. Lastly, section 102.166(7)(b) pro- vides that, "[i]f a counting team is unable to determine a voter's intent in casting a ballot, the ballot shall be pre- sented to the county canvassing board for it to determine the voter's intent." This legislative emphasis on discern- ing the voter's intent is mirrored in the case law of this State, and in that of other states. This Court has repeatedly held, in accordance with the statutory law of this State, that so long as the voter's intent may be discerned from the ballot, the vote consti- tutes a "legal vote" that should be counted. See McAlpin v. State ex rel. Avriett, 155 Fla. 33, 19 So. 2d 420 (1944); see also State ex rel. Peacock v. Latham, 25 Fla. 69, 70, 169 So. 597, 598 (1936) (holding that the elec- tion contest statute "affords an efficient available rem- edy and legal procedure by which the circuit court can investigate and determine, not only the legality of the votes cast, but can correct any inaccuracies in the count of the ballots by having them brought into the court and examining the contents of the ballot boxes if properly preserved"). As the State has moved toward electronic 22a voting, nothing in this evolution has diminished the longstanding case law and statutory law that the intent of the voter is of paramount concern and should always be given effect if the intent can be determined. Cf. Board- man v. Esteva, 323 So. 2d 259 (Fla. 1975), cert. denied, 425 U.S. 967 (1976) (recognizing the overarching prin- ciple that, where voters do all that statutes require them to do, they should not be disfranchised solely because of failure of election officials to follow directory statutes). Not surprisingly, other states also have recognized this principle. Cf. Delahunt v. Johnston, 671 N.E. 2d 1241 (Mass. 1996) (holding that a vote should be counted as a legal vote if it properly indicates the voter's intent with reasonable certainty); Duffy v. Mortensen, 497 N.W.2d 437 (S.D. 1993) (applying the rule that every marking found where a vote should be should be treated as an intended vote in the absence of clear evi- dence to the clear contrary); Pullen v. Mulligan, 561 N.E.2d 585 (Ill. 1990) (holding that votes could be re- counted by manual means to the extent that the voter's intent could be determined with reasonable certainty, despite the existence of a statute which provided that punch card ballots were to be recounted by automated tabulation equipment). Accordingly, we conclude that a legal vote is one in which there is a "clear indication of the intent of the voter." We next address whether the term "rejection" used in section 102.168(3)(c) includes instances where the County Canvassing Board has not counted legal votes. Looking at the statutory scheme as a whole, it appears that the term "rejected" does encompass votes that may exist but have not been counted. As explained above, in 1999, the Legislature substantially revised the contest provision of the Election Code. See H.R. Comm. on Election Reform, HB 281 (February 3, 1999). One of the revisions to the contest provision included the codification of the grounds for contesting an elec- tion. See id. at 7. The House Bill noted that one of the 23a grounds for contesting an election at common law was the "Receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election." As noted above, the contest statute ultimately contained this ground for con- testing the results of an election. To further determine the meaning of the term "rejec- tion", as used by the Legislature, we may also look to Florida case law. In State ex rel. Clark v. Klingensmith, 121 Fla. 297, 163 So. 704 (1935), an individual who lost an election brought an action for quo warranto challeng- ing his opponent's right to hold office. The challenger challenged twenty-two ballots, which he divided into four groups. One of these groups included three ballots that the challenger claimed had not been counted. See 121 Fla. at 298, 163 So. at 705. This Court concluded that "the rejection of votes from legal voters, not brought about by fraud, and not of such magnitude as to demonstrate that a free expression of the popular will has been suppressed," is insufficient to void an election, "at least unless it be shown that the votes rejected would have changed the result." 121 Fla. at 300, 163 So. at 705. Therefore, the Court appears to have equated a "rejection" of legal votes with the failure to count legal votes, while at the same time recognizing that a suffi- cient number of such votes must have been rejected to merit relief. This notion of "rejected" is also in accor- dance with the common understanding of rejection of votes as used in other election cases. In discussing the facts in Roudebush v. Hartke, 405 U.S. 15 (1972), the United States Supreme Court explained: If a recount is conducted in any county, the vot- ing machine tallies are checked and the sealed bags containing the paper ballots are opened. The recount commission may make new and in- dependent determinations as to which ballots shall be counted. In other words, it may reject 24a ballots initially counted and count ballots ini- tially rejected. Id. This also comports with cases from other jurisdictions that suggest that a legal vote will be deemed to have been "rejected" where a voting machine fails to count a ballot, which has been executed in substantial compli- ance with applicable voting requirements and reflects, the clear intent of the voter to express a definite choice. See In re Matter of the Petition of Katy Gray-Sadler, 753 A.2d 1101, 1105-06 (N.J. 2000); Moffat v. Blaiman, 361 A.2d 74, 77 (N.J. Super. Ct. App. Div. 1976). Here, then, it is apparent that there have been suffi- cient allegations made which, if analyzed pursuant to the proper standard, compel the conclusion that legal votes sufficient to place in doubt the election results have been rejected in this case. THIS CASE We must review the instances in which appellants claim that they established that legal votes were rejected or illegal voters were included in the certifications. The refusal to review approximately 9,000 addi- tional Miami-Dade Ballots, which the counting machine registered as non-votes and which have never been manually reviewed. On November 9, 2000, the Miami-Dade County Democratic Party made a timely request under section 102.166 for a manual recount.16 After first deciding against a full manual recount, the Miami-Dade County Canvassing Board voted to begin a manual recount of all 16On November 9, 2000, a manual recount was requested on behalf of Vice-President Gore in four counties - Miami-Dade, Broward, Palm Beach and Volusia. Broward County and Volusia County timely completed a manual recount. It is undisputed that the re- sults of the manual recounts in Volusia County and Broward County were included in the statewide certifications. 25a ballots cast in Miami-Dade County for the Presidential election, and the manual recount began on November 19, 2000. On November 21, 2000, this Court issued its decision in Palm Beach Canvassing Board v. Harris, 25 Fla. L. Weekly S1062 (Fla. Nov. 21, 2000), stating that amended certifications must be filed by 5 p.m. on Sunday, November 26, 2000. The Miami-Dade Can- vassing Board thereafter suspended the manual recount and voted to use the election returns previously com- piled. Earlier that day, the panel had decided to limit its recount to the 10,750 "undervotes," that is, ballots on which no vote was registered by counting machines. The Board's stated reason for the suspension of the manual recount was that it would be impossible to com- plete the recount before the deadline set forth by this Court. At the time that the Board suspended the re- count, approximately 9,000 of the 10,750 undervotes had not yet been reviewed. In the two days that the Board had counted ballots, the Board identified 436 ad- ditional legal votes (from 20 percent of the precincts, representing 15 percent of the votes cast) which the ma- chines failed to register, resulting in a net vote of 168 votes for Gore. Nonetheless, in addition to suspending further recounting, the Board also determined that it would not include the additional 436 votes that had been tabulated in its partially completed recount. Specifically as to Miami-Dade County, the trial court found: [A]lthough the record shows voter error, and/or, less than total accuracy, in regard to the punchcard voting devices utilized in Miami- Dade and Palm Beach Counties, which these counties have been aware of for many years, these balloting and counting problems cannot support or effect any recounting necessity with respect to Miami-Dade County, absent the es- tablishment of a reasonable probability that the 26a statewide election result would be different, which has not been established in this case. The Court further finds that the Dade Can- vassing Board did not abuse its discretion in any of its decisions in its review in recounting proc- esses. This statement is incorrect as a matter of law. In fact, as the Third District determined in Miami-Dade County Democratic Party v. Miami-Dade County Canvassing Board, 25 Fla. L. Weekly D2723 (Fla. 3d DCA Nov. 22, 2000), the results of the sample manual recount and the actual commencement of the full manual recount trig- gered the Canvassing Board's "mandatory obligation to recount all of the ballots in the county." In addition, the circuit court was bound at the time it ruled to follow this appellate decision. This Court has determined the deci- sions of the district courts of appeal represent the law of this State unless and until they are overruled by this Court, and therefore, in the absence of interdistrict con- flict, district court decisions bind all Florida trial courts. See Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992). However, regardless of this error, we again note the focus of the trial court's inquiry in an election contest authorized by the Legislature pursuant to the express statutory provisions of section 102.168 is not by appel- late review to determine whether the Board properly or improperly failed to complete the manual recount. Rather, as expressly set out in section 102.168, the court's responsibility is to determine whether "legal votes" were rejected sufficient to change or place in doubt the results of the election. Without ever examin- ing or investigating the ballots that the machine failed to register as a vote, the trial court in this case concluded that there was no probability of a different result. First, as we stated the trial court erred as a matter of law in utilizing the wrong standard. Second, and more impor- tantly, by failing to examine the specifically identified group of uncounted ballots that is claimed to contain the 27a rejected legal votes, the trial court has refused to address the issue presented. Appellants have also been denied the very evidence that they have relied on to establish their ultimate entitlement to relief.17 The trial court has presented the plaintiffs with the ultimate Catch-22, ac- ceptance of the only evidence that will resolve the issue but a refusal to examine such evidence. We also note that whether or not the Board could have completed the manual recount by November 26, 2000, or whether the Board should have fulfilled its responsibility and com- pleted the full manual recount it commenced, the fact remains that the manual recount was not completed through no fault of the Appellant.18 3300 Votes in Palm Beach County Appellants also contend that the trial court erred in finding that they failed to satisfy their burden of proof with respect to the 3,300 votes that the Palm Beach County Canvassing Board reviewed and concluded did 17The Miami-Dade Canvassing Board stated as its reasons that it stopped an ongoing manual recount because it determined that it could not meet this Court's certification deadline. However, noth- ing in this Court's prior opinion nor the statutory scheme govern- ing manual recounts would have prevented the Board from con- tinuing after certification the manual recount that it had properly started. The Canvassing Board is a neutral ministerial body. See Morse v. Dade County Canvassing Board, 456 So. 2d 1314 (Fla. 3d DCA 1984). Therefore, although the Board may have acted in a neutral fashion, the fact remains that three other Boards (Bro- ward, Palm Beach and Volusia) completed the recounts. 18On Thanksgiving Day, November 23, 2000, an Emergency Peti- tion for Writ for Mandamus was filed in which Gore sought to compel the Miami-Dade Canvassing Board to continue with the manual recount. Although we denied relief on that same day, in our order denying this relief, the Court specifically stated that the denial was "without prejudice to any party raising any issue pre- sented in the writ in any future proceeding." Accordingly, at the time that we denied mandamus relief we clearly contemplated that this claim could be raised in a contest action. 28a not constitute "legal votes" pursuant to section 102.168(3)(c). However, unlike the approximately 9,000 ballots in Miami-Dade that the County Canvassing Board did not manually recount, the Palm Beach County Canvassing Board did complete a manual recount of these 3,300 votes and concluded that, because the intent of the voter in these 3,300 ballots was not discernable, these ballots did not constitute "legal votes." After a two-day trial in this case, the circuit court concluded: [W]ith respect to the approximately 3,300 Palm Beach County ballots of which plaintiffs seek review, the Palm Beach Board properly exer- cised its discretion in its counting process and has judged those ballots which plaintiffs wish this court to again judge de novo. . . . The Palm Beach County board did not abuse its discretion in its review and recounting process. Further, it acted in full compliance with the order of the circuit court in and for Palm Beach County. We find no error in the trial court's determination that appellants did not establish a preliminary basis for relief as to the 3300 Palm Beach County votes because the appellants have failed to make a threshold showing that "legal votes" were rejected. Although the protest and contest proceedings are separate statutory provi- sions, when a manual count of ballots has been con- ducted by the Canvassing Board pursuant to section 102.166, the circuit court in a contest proceeding does not have the obligation de novo to simply repeat an oth- erwise-proper manual count of the ballots. As stated above, although the trial court does not review a Can- vassing Board's actions under an abuse of discretion standard, the Canvassing Board's actions may constitute evidence that a ballot does or does not qualify as a legal vote. Because the appellants have failed to introduce any evidence to refute the Canvassing Board's determi- nation that the 3300 ballots did not constitute "legal votes," we affirm the trial court's holding as to this is- 29a sue. This reflects the proper interaction of section 102.166 governing protests and manual recounts and section 102.168 governing election contests. Whether the vote totals must be revised to include the legal votes actually identified in the Palm Beach County and Miami-Dade County manual recounts? Appellants claim that the certified vote totals must be amended to include legal votes identified as being for one of the presidential candidates by the County Can- vassing Boards of Palm Beach County and Miami-Dade during their manual recounts. After working for a pe- riod of many days, the Palm Beach County Canvassing Board conducted and completed a full manual recount in which the Board identified a net gain of 215 votes for Gore.19 As discussed above, the Miami-Dade Canvass- ing Board commenced a manual recount but did not complete the recount. During the partial recount it iden- tified an additional legal votes, of which 302 were for Gore and 134 were for Bush, resulting in a net gain of 168 votes for Gore. The circuit court concluded as to Palm Beach County that there was not any "authority to include any returns submitted past the deadline established by the Florida Supreme Court in this election." This conclu- sion was erroneous as a matter of law. The deadline of November 26, 2000, at 5 p.m. was established in order to allow maximum time for contests pursuant to section 102.168. The deadline was never intended to prohibit legal votes identified after that date through ongoing manual recounts to be excluded from the statewide offi- cial results in the Election Canvassing Commission's certification of the results of a recount of less than all of a county's ballots. In the same decision we held that all returns must be considered unless their filing would ef- fectively prevent an election contest from being con- 19Bush asserted that the audited total is 176 votes. 30a ducted or endanger the counting of Florida's electors in the presidential election. As to Miami-Dade County, in light of our holding that the circuit court should have counted the undervote, we agree with appellants that the partial recount results should also be included in the total legal votes for this election. Because the county canvassing boards identi- fied legal votes and these votes could change the out- come of the election, we hold that the trial court erred in rejecting the legal votes identified in the Miami-Dade County and Palm Beach County manual recounts. These votes must be included in the certified vote totals. We find that appellants did not establish that the Nassau County Canvassing Board acted improperly. CONCLUSION Through no fault of appellants, a lawfully com- menced manual recount in Dade County was never completed and recounts that were completed were not counted. Without examining or investigating the ballots that were not counted by the machines, the trial court concluded there was no reasonable probability of a dif- ferent result. However, the proper standard required by section 102.168 was whether the results of the election were placed in doubt. On this record there can be no question that there are legal votes within the 9,000 un- counted votes sufficient to place the results of this elec- tion in doubt. We know this not only by evidence of statistical analysis but also by the actual experience of recounts conducted. The votes for each candidate that have been counted are separated by no more than ap- proximately 500 votes and may be separated by as little as approximately 100 votes. Thousands of uncounted votes could obviously make a difference. Although in all elections the Legislature and the courts have recognized that the voter's intent is para- mount, in close elections the necessity for counting all legal votes becomes critical. However, the need for ac- 31a curacy must be weighed against the need for finality. The need for prompt resolution and finality is especially critical in presidential elections where there is an outside deadline established by federal law. Notwithstanding, consistent with the legislative mandate and our prece- dent, although the time constraints are limited, we must do everything required by law to ensure that legal votes that have not been counted are included in the final elec- tion results.20 As recognized by the Florida House of Representatives Committee on Election Reform 1997 Interim Project on Election Contests and Recounts: [A]ll election contests and recounts can be traced to either an actual failure in the election system or a perception that the system has failed. Public confidence in the election process is essential to our democracy. If the voter can- not be assured of an accurate vote count, or an election unspoiled by fraud, they will not have faith in other parts of the political process. Nonetheless, it is inevitable that legitimate doubts of the validity and accuracy of election outcomes will arise. It is crucial, therefore, to have clearly defined legal mechanisms for con- testing or recounting election results. Id. at 21 (emphasis supplied) (footnote omitted). 20This Presidential election has demonstrated the vulnerability of what we believe to be a bedrock principle of democracy: that every vote counts. While there are areas in this State which implement systems (such as the optical scanner) where the margins of error, and the ability to demonstrably verify those margins of error, are consistent with accountability in our democratic process, in these election contests based upon allegations that functioning punch- card voting machines have failed to record legal votes, the demon- strated margins of error may be so great to suggest that it is neces- sary to reevaluate utilization of the mechanisms employed as a viable system. 32a Only by examining the contested ballots, which are evidence in the election contest, can a meaningful and final determination in this election contest be made. As stated above, one of the provisions of the contest statute, section 102.168(8), provides that the circuit court judge may "fashion such orders as he . . . deems necessary to ensure that each allegation in the complaint is investi- gated, examined or checked, to prevent any alleged wrong, and to provide any relief appropriate under such circumstances. (emphasis supplied). In addition to the relief requested by appellants to count the Miami-Dade undervote, claims have been made by the various appellees and intervenors that be- cause this is a statewide election, statewide remedies would be called for. As we discussed in this opinion, we agree. While we recognize that time is desperately short, we cannot in good faith ignore both the appel- lant's right to relief as to their claims concerning the uncounted votes in Miami-Dade County nor can we ig- nore the correctness of the assertions that any analysis and ultimate remedy should be made on a statewide ba- sis.21 We note that contest statutes vest broad discretion in the circuit court to "provide any relief appropriate under 21The dissents would have us throw up our hands and say that be- cause of looming deadlines and practical difficulties we should give up any attempt to have the election of the presidential electors rest upon the vote of Florida citizens as mandated by the Legisla- ture. While we agree that practical difficulties may well end up controlling the outcome of the election we vigorously disagree that we should therefore abandon our responsibility to resolve this elec- tion dispute under the rule of law. We can only do the best we can to carry out our sworn responsibilities to the justice system and its role in this process. We, and our dissenting colleagues, have sim- ply done the best we can, and remain confident that others charged with similar heavy responsibilities will also do the best they can to fulfill their duties as they see them. 33a the circumstances." Section 102.168(5). Moreover, because venue of an election contest that covers more than one county lies in Leon County, see 102.1685, Florida Statutes (2000), the circuit court has jurisdiction, as part of the relief it order, to order the Supervisor of Elections and the Canvassing Boards, as well as the nec- essary public officials, in all counties that have not con- ducted a manual recount or tabulation of the undervotes in this election to do so forthwith, said tabulation to take place in the individual counties where the ballots are located.22 Accordingly, for the reasons stated in this opinion, we reverse the final judgment of the trial court dated December 4, 2000, and remand this cause for the circuit court to immediately tabulate by hand the approximate 9,000 Miami-Dade ballots, which the counting machine registered as non-votes, but which have never been manually reviewed, and for other relief that may thereaf- ter appear appropriate. The circuit court is directed to enter such orders as are necessary to add any legal votes to the total statewide certifications and to enter any or- ders necessary to ensure the inclusion of the additional legal votes for Gore in Palm Beach County23 and the 168 additional legal votes from Miami-Dade County. 22We are mindful of the fact that due to the time constraints, the count of the undervotes places demands on the public servants throughout the State to work over this week-end. However, we are confident that with the cooperation of the officials in all the coun- ties, the remaining undervotes in these counties can be accom- plished within the required time frame. We note that public offi- cials in many counties have worked diligently over the past thirty days in dealing with exigencies that have occurred because of this unique historical circumstance arising from the presidential elec- tion of 2000. We commend those dedicated public servants for attempting to make this election process truly reflect the vote of all Floridians. 23See discussion at n.6, supra. 34a Because time is of the essence, the circuit court shall commence the tabulation of the Miami-Dade ballots immediately. The circuit court is authorized, in accor- dance with the provisions of section 102.168(8), to be assisted by the Leon County Supervisor of Elections or its sworn designees. Moreover, since time is also of the essence in any statewide relief that the circuit court must consider, any further statewide relief should also be or- dered forthwith and simultaneously with the manual tabulation of the Miami-Dade undervotes. In tabulating the ballots and in making a determina- tion of what is a "legal" vote, the standards to be em- ployed is that established by the Legislature in our Elec- tion Code which is that the vote shall be counted as a "legal" vote if there is "clear indication of the intent of the voter." Section 101.5614(5), Florida Statutes (2000). It is so ordered. ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur. WELLS, C.J., dissents with an opinion. HARDING, J., dissents with an opinion, in which SHAW, J., concurs. NO MOTION FOR REHEARING WILL BE ALLOWED. WELLS, C.J., dissenting. I join Justice Harding's dissenting opinion except as to his conclusions with regard to error by Judge Sauls and his conclusions as to the separateness of section 102.166 and 102.168, Florida Statutes (2000). I write separately to state my additional conclusions and con- cerns. I want to make it clear at the outset of my separate opinion that I do not question the good faith or honor- able intentions of my colleagues in the majority. How- ever, I could not more strongly disagree with their deci- 35a sion to reverse the trial court and prolong this judicial process. I also believe that the majority's decision can- not withstand the scrutiny which will certainly immedi- ately follow under the United States Constitution. My succinct conclusion is that the majority's deci- sion 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. The majority returns the case to the circuit court for this partial recount of under-votes on the basis of unknown or, at best, ambiguous stan- dards with authority to obtain help from others, the cre- dentials, qualifications, and objectivity of whom are to- tally unknown. That is but a first glance at the impon- derable problems the majority creates. Importantly to me, I have a deep and abiding con- cern that the prolonging of judicial process in this count- ing contest propels this country and this state into an unprecedented and unnecessary constitutional crisis. I have to conclude that there is a real and present likeli- hood that this constitutional crisis will do substantial damage to our country, our state, and to this Court as an institution. On the basis of my analysis of Florida law as it ex- isted on November 7, 2000, I conclude that the trial court's decision can and should be affirmed. Under our law, of course, a decision of a trial court reaching a cor- rect result will be affirmed if it is supportable under any theory, even if an appellate court disagrees with the trial court's reasoning. Dade County School Bd. v. Radio Station WQBA, 731 So. 2d 638, 644-645 (Fla. 1999). I conclude that there are more than enough theories to support this trial court's decision. There are two fundamental and historical principles of Florida law that this Court has recognized which are relevant here. First, at common law, there was no right 36a to contest an election; thus, any right to contest an elec- tion must be construed to grant only those rights that are explicitly set forth by the Legislature. See McPherson v. Flynn, 397 So. 2d 665, 668 (Fla. 1981). In Flynn, we held that, "[a]t common law, except for limited applica- tion of quo warranto, there was no right to contest in court any public election, because such a contest is po- litical in nature and therefore outside the judicial power." Id. at 667. Second, this Court gives deference to decisions made by executive officials charged with implementing Florida's election laws. See Krivanek v. Take Back Tampa Political Committee, 625 So. 2d 840 (Fla. 1993). In Krivanek, we said: We acknowledge that election laws should generally be liberally construed in favor of an elector. However, the judgment of officials duly charged with carrying out the election process should be presumed correct if reasonable and not in derogation of the law. Boardman v. Esteva, 323 So. 2d 259 (Fla. 1975), cert. denied, 425 U.S. 967, 96 S. Ct. 2162, 48 L. Ed. 2d 791 (1976). As noted in Boardman: The election process is subject to legislative prescription and constitutional command and is committed to the executive branch of government through duly designated of- ficials all charged with specific duties.... [The] judgments [of those officials] are en- titled to be regarded by the courts as pre- sumptively correct and if rational and not clearly outside legal requirements should be upheld rather than substituted by the impression a particular judge or panel of judges might deem more appropriate. It is certainly the intent of the constitution and the legislature that the results of elections are to be efficiently, honestly and 37a promptly ascertained by election officials to whom some latitude of judgment is ac- corded, and that courts are to overturn such determinations only for compelling reasons when there are clear, substantial departures from essential requirements of law. Id. at 844-45. These two concepts are the foundation of my analysis of the present case. At the outset, I note that, after an evidentiary hear- ing, the trial court expressly found no dishonesty, gross negligence, improper influence, coercion, or fraud in the balloting and counting processes based upon the evi- dence presented. I conclude this finding should curtail this Court's involvement in this election through this case and is a substantial basis for affirming the trial court. Historically, this Court has only been involved in elections when there have been substantial allegations of fraud and then only upon a high threshold because of the chill that a hovering judicial involvement can put on elections. This to me is the import of this Court's deci- sion in Boardman v. Esteva, 323 So. 2d 259 (Fla. 1975). We lowered that threshold somewhat in Beckstrom v. Volusia County Canvassing Board, 707 So. 2d 720 (Fla. 1998), but we continued to require a substantial non- compliance with election laws. That must be the very lowest threshold for a court's involvement. Otherwise, we run a great risk that every election will result in judicial testing. Judicial restraint in respect to elections is absolutely necessary because the health of our democracy depends on elections being decided by voters­not by judges. We must have the self-discipline not to become embroiled in political contests whenever a judicial majority subjectively concludes to do so be- cause the majority perceives it is "the right thing to do." Elections involve the other branches of government. A lack of self-discipline in being involved in elections, especially by a court of last resort, always has the poten- 38a tial of leading to a crisis with the other branches of gov- ernment and raises serious separation-of-powers con- cerns. I find that the trial judge correctly concluded that plaintiffs were not entitled to a manual recount. Peti- tioners filed this current election contest after protests in Palm Beach and Miami-Dade Counties. Section 102.168, Florida Statutes, in its present form is a new statute adopted by the Legislature in 1999. I conclude that the present statutory scheme contemplates that pro- tests of returns24 and requests for manual recounts25 are first to be presented to the county canvassing boards. See § 102.166, Fla. Stat. This naturally follows from the fact that, even with the adoption of the 1999 amend- ments to section 102.168, the only procedures for man- ual recounts are in the protest statute. Once a protest has been filed, a county canvassing board then has the dis- cretion, in accordance with the procedures set forth in section 102.166(4), Florida Statutes, whether to order a sample limited manual recount. See § 102.166(4)(c), Fla. Stat. (2000). Once the sample recount is complete and the county canvassing board concludes that there was an error in the vote tabulation that could affect the outcome of the election, section 102.166(5) instructs what must then be done. One option is to manually re- count all ballots. See § 102.166(5)(c), Fla. Stat. (2000).26 24See § 102.166(1), Fla. Stat. (2000). 25See § 102.166(4)(b), Fla. Stat. (2000). 26Also problematic with the majority's analysis is that the majority only requires that the "under-votes" are to be counted. How about the "over-votes?" Section 101.5614(6) provides that a ballot should not be counted "[i]f an elector marks more names than there are persons to be elected to an office," meaning the voter voted for more than one person for president. The underlying premise of the majority's rationale is that in such a close race a manual review of ballots rejected by the machines is necessary to ensure that all legal 39a I believe that the contest and protest statutes must logically be read together. The contest statute has sig- nificant references to the protest statute. If there is a protest, a party authorized by the statute to file a contest must file a complaint "within 5 days after midnight of the date the last county canvassing board empowered to canvass the returns certifies the results of that particular election following a protest pursuant to s. 102.166(1)." §102.168(2), Fla. Stat. (2000). In the election contest, the canvassing board is the proper party defendant under section 102.168(4). Further, under section 102.168(8), the circuit judge to whom the contest is presented may fashion such orders as he or she deems necessary to en- sure that the allegations upon which the complaint is brought are investigated, examined, or checked. I find correct the analysis undertaken in Broward County Canvassing Board v. Hogan, 607 So. 2d 508 (Fla. 4th DCA 1992), a case recently cited by this Court in Palm Beach County Canvassing Board v. Harris, 25 Fla. L. Weekly S1062 (Fla. Nov. 21, 2000). In Hogan, the Fourth District Court of Appeal reversed the trial court's order granting a manual recount, in contraven- tion of the county canvassing board's decision noting that: Although section 102.168 grants the right of contest, it does not change the discretionary as- pect of the review procedures outlined in section 102.166. The statute clearly leaves the decision whether or not to hold a manual recount of the votes cast are counted. The majority, however, ignores the over- votes. Could it be said, without reviewing the over-votes, that the machine did not err in not counting them? It seems patently erroneous to me to assume that the vote- counting machines can err when reading under-votes but not err when reading over-votes. Can the majority say, without having the over-votes looked at, that there are no legal votes among the over- votes? 40a votes as a matter to be decided within the discretion of the canvassing board. Id. at 510. I do not believe there is any sound reason to conclude that the Legislature's adoption of revised sec- tion 102.168 in 1999 intended to change this and pro- vide for a duplicative recount by an individual circuit judge. I also agree with the trial judge's conclusion that in a statewide election the only way a court can order a manual recount of ballots that were allegedly not counted because of some irregularity or inaccuracy in the balloting or counting process is to order that the votes in all counties in which those processes were used be recounted. I do not find any legal basis for the major- ity of this Court to simply cast aside the determination by the trial judge made on the proof presented at a two- day evidentiary hearing that the evidence did not support a statewide recount. To the contrary, I find the major- ity's decision in that regard quite extraordinary. Section 102.168(3), Florida Statues (2000), states in pertinent part: The grounds for contesting an election under this section are: . . . . (c) Receipt of a number of illegal votes or re- jection of a number of legal votes sufficient to change or place in doubt the result of the elec- tion. (Emphasis added.) In other words, to establish a cause of action, plaintiff must allege an irregularity that places in doubt the result of the election. First, to "contest" simply means to challenge. See Webster's Dictionary 250 (10th ed. 1994). Second, section 102.168(5), pro- vides: 41a A statement of the grounds of contest may not be rejected, nor the proceedings dismissed, by the court for any want of form if the grounds of contest provided in the statement are suffi- cient to clearly inform the defendant of the par- ticular proceeding or cause for which the nomi- nation or election is contested. (Emphasis added.) Upon my reading of the statute, I conclude that the language "grounds of contest" unam- biguously means: a basis upon which a plaintiff can establish a cause of action. This standard is simply the threshold that must be met to bring forth the contest ac- tion. Thus, this standard is not the standard that the judge must use in deciding whether a plaintiff who brings the contest has successfully met his or her burden to order a recount or set aside election results. Although it is unclear from case law what standard must be satis- fied in order to grant appropriate relief, it undoubtedly cannot be a low standard. Recently, in Beckstrom, this Court declined to invalidate an election despite a finding that the canvassing board was grossly negligent and in substantial noncompliance with the absentee voting stat- utes. See Beckstrom. Thus, merely stating the cause of action under the contest statute does not entitle a party to a recount or require the court to set aside an election. More must be required. This is especially true here, where, as in Beckstrom, the trial judge found no dishon- esty, gross negligence, improper influence, coercion, or fraud in the balloting and counting processes. Thus, a plaintiff's burden in establishing grounds on which a circuit judge could order relief of any kind was simply not met. It is illogical to interpret section 102.168(3)(c) to set such a low standard where a plaintiff merely has to allege a cause of action to successfully carry the con- test.27 27In addition, under a protest the threshold that must be met to order a recount must be lower than that under a contest, which 42a Furthermore, even conceding that the trial judge at the outset applied an erroneous "probability of doubt" standard in deciding that plaintiffs failed to meet their burden of establishing a cause of action, the trial judge faced a conundrum that must be adequately explained. Plaintiffs asked the trial judge to grant the very remedy­ a recount of the under-votes­he prays for without first establishing that remedy was warranted. Before any relief is granted, a plaintiff must allege that enough legal votes were rejected to place in doubt the results of the election. However, in order for the plaintiffs to meet this burden, the under-vote ballots must be preliminarily manually recounted. Following this logic to its conclu- sion would require a circuit court to order partial manual recounts upon the mere filing of a contest. This proposi- tion plainly has no basis in law. As I have stated, I conclude in the case at bar that sections 102.166 and 106.168 must be read in pari mate- ria. My analysis in this regard is bolstered in situations, as here, where there was an initial protest filed in a county pursuant to section 102.166 and a subsequent contest of that same county's return pursuant to section 102.168. It appears logical to me that a circuit judge in a section 102.168 contest should review a county can- vassing board's determinations in a section 102.166 pro- test under an abuse-of-discretion standard. I see no other reason why the county canvassing board would be a party defendant if the circuit court is not intended to evaluate the canvassing board's decisions with respect to manual recount decisions made in a section 102.166 pro- test. Finally, it is plain to me that it is only in section 102.166 that there are any procedures for manual re- counts which address the logistics of a recount, includ- action can only be brought after certification of the returns. There- fore, the threshold to successfully carry a contest must be higher than that of a mere protest. 43a ing who is to conduct the count, that it is to take place in public, and what is to be recounted.28 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 indica- tion of the intent of the voter as determined by the can- vassing board." § 101.5614(5), Fla. Stat. (2000). Sec- tion 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 approxi- mately 9000 ballots from Miami-Dade County were damaged or defective. Laying aside this problem and assuming the major- ity is correct that section 101.5614(5) correctly annunci- ates 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 trans- lates 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 fraught with equal protection con- 28I am persuaded that even with these procedures manual recounts by the canvassing board are constitutionally suspect. See Touch- ston v. McDermott, No. 00-15985 (U.S. 11th Cir. Dec. 6, 2000) (Tjoflat, J., dissenting). This would be compounded by giving that power to an individual circuit judge and providing him or her with no standards. 44a cerns which will eventually cause the election results in Florida to be stricken by the federal courts or Con- gress.29 Based upon this analysis and adhering to the inter- pretation of the 1992 Hogan case, I conclude the circuit court properly looked at what the county canvassing boards have done and found that they did not abuse their discretion. Regarding Miami-Dade County, I find that the trial judge properly concluded that the Miami-Dade Canvassing Board did not abuse its discretion in decid- ing to discontinue the manual recount begun on Novem- ber 19, 2000. Evidence presented at trial indicated that the Miami-Dade Board made three different decisions in respect to manual recounts. The first decision was not to count, the second was to count, and the third was not to count. The third decision was based upon the determi- nation by the Miami-Dade Board that it could not make the November 26, 2000, deadline set by this Court in Harris and that it did not want to jeopardize disenfran- chising a segment of its voters. The law does not re- quire futile acts. See Haimovitz v. Robb, 130 Fla. 844; 178 So. 827 (1937). Section 102.166(5)(c) requires that, if there is a manual recount, all of the ballots have to be recounted. I cannot find that the Miami-Dade Board's decision that all the ballots could not be manu- ally recounted between November 22 and November 26, 2000, to be anything but a decision based upon reality. Moreover, not to count all of the ballots if any were to be recounted would plainly be changing the rules after the election and would be unfairly discriminatory against votes in the precincts in which there was no manual recount. Thus, I agree with the trial court that the Miami-Dade Board did not abuse its discretion in discontinuing the manual recount