November 20, 2000
| JIM LEHRER: The presidential election went before the Florida
Supreme Court in Tallahassee today. Lawyers for Vice President Gore argued
for including hand recounts in new final tallies. Governor Bush's lawyers
argued the opposite. Meanwhile, a lower court judge refused to order a
new election in Palm Beach County because of allegations the ballot was
confusing, and hand recounts continued in Palm Beach and Broward counties,
while Miami-Dade County began its hand tally. Statewide Governor Bush
continues to lead Vice President Gore by 930 votes after absentee ballots
were tabulated over the weekend. We go now to extended excerpts from the
state Supreme Court proceedings this afternoon. Betty Ann Bowser reports.
BETTY ANN BOWSER: The Florida Supreme Court convened at 2:00 PM Eastern Time in Tallahassee.
CLERK: Hear ye, hear ye, hear ye. The Supreme Court of the great state of Florida is now in session.
BETTY ANN BOWSER: Of the seven Justices on the high court, six were appointed by Democratic Governors. One was jointly appointed by a Democratic Governor who died in office, then approved by Governor-elect Jeb Bush who followed him. Before the court today were several key questions including: When and how should manual recounts be done; should Florida election officials wait until the hand counts are completed before certifying the final tally. And did Secretary of State Katherine Harris use proper discretion in attempting to enforce a deadline for submission of all vote counts seven days after the election? Each side had one hour to make its arguments. Chief Justice Charles Wells began by taking note of the significance of the occasion.
CHIEF JUSTICE CHARLES WELLS: Good afternoon, ladies and gentlemen. And welcome to the Florida Supreme Court. The court is certainly aware of historic nature of this session and is aware that this is a matter of utmost and vital importance to our nation, our state and our world.
BETTY ANN BOWSER: First to be heard was Democratic attorney Paul Hancock on behalf of the Florida attorney general. He was asked by Chief Justice Wells what the impact would be of certifying late returns from the hand count.
CHIEF JUSTICE CHARLES WELLS: The question really revolves around amended certifications.
SPOKESMAN: My question is specific: What is the attorney general's position as to the date in December that the Florida's electoral votes would be prejudiced or not counted in the electoral college if there is not a certification by the secretary...by the Department of State under 103.011. What's the date -- outside date that we're looking at in which puts Florida's votes in jeopardy?
PAUL HANCOCK: December 12, Your Honor, is my understanding. The electoral college meets on December 18. The issue... and we have constitutional law professors here who can address this, but my understanding is it's December 12 when...
CHIEF JUSTICE CHARLES WELLS: Okay. Now, if it's December 12, under Title III of the U.S. Code, in that Section 5, it seems to indicate that in order for that December... that six-day provision to have meaning, that all contests and controversies concerning the state votes must be resolved in order for the state's resolution to be final. Now, would you fit that provision of the federal statute into the Florida provision so that we would have some guidance on what is really the prejudice?
JOHN HANCOCK: Well, we don't know what contests will arise. I think what this points to is the importance of this court using the full reach of its authority to establish procedures that ensure that this results in a process that, first of all, is fair; that is perceived as fair to the world, and in fact is fair; that it counts the vote of all people who attempted to exercise that vote.
BETTY ANN BOWSER: Vice President Gore's attorney, David Boies, was asked how to avoid placing Florida's 25 electoral votes in jeopardy.
CHIEF JUSTICE CHARLES WELLS: How is it going to work within that time period for the votes to get totally recounted, and then, if Governor Bush wants to contest that, for him to get a contest finally resolved? Or isn't it-- now let me... I'll pose my whole question-- isn't it something that the secretary of state, as the person who has to do the certification, should separate out those that are uncontested on both sides, and then with the ones in the middle, there would have to be a determination made in the final certification as to whether there was a... you could get that finally determined or not, and how many votes you're talking about, and whether those votes in the middle would actually cause the election to be different. Do you get my drift?
DAVID BOIES: I do, Your Honor, and I think I agree, with maybe one exception, and that is the court talked about the secretary of state dealing with the votes in the middle. I think that under Florida law, if those are first counted by the county canvassing boards and then there is a judicial question as to whether those votes have been properly counted, but it is not... That is not a question for the secretary of state. I also think that this court certainly has the power to say what we're going to do is tell the county boards that you've got this amount of time to complete your recount, and at that point, those votes are then subject to being contested by Governor Bush or Vice President Gore, and those contests then take place in a time frame that allows everything to be completed by December 12. So I think it is clearly within the power of this court to say, in order to meet the date of December 12, you've got to have all of your votes manually counted that are going to be included in this initial certification by a particular date, and then the contest, if there is one, takes place between that date and December 18.
CHIEF JUSTICE CHARLES WELLS: Do we have information in the record that can guide us? Do we know how long to take to do these things reach up from some inspiration? Are we just going to reach up between. I think... reach down...
DAVID BOIES: Your Honor, I think it is in-between. I think there is some information in the record. But to be completely candid with the court, I believe that there is going to have to be a lot of judgment applied by the court as well.
JUSTICE LEANDER SHAW: Why shouldn't the secretary of state be the person to set a date instead of a court? Why couldn't the secretary say that this is the time frame that I need in order to fulfill my duty of getting the certification in, and set an arbitrary date?
DAVID BOIES: But Your Honor, the secretary of state's function is a ministerial function. She is not going to be the person who presides over the contest. The contest, if there is one, is going to be a contest that is going to be before the circuit court, and ultimately before this...
CHIEF JUSTICE CHARLES WELLS: However, Mr. Boies, that brings us to the "may ignore" language in that statute. And wouldn't you have to agree that the "may ignore"... "May" does connote some degree of discretion? And why isn't that discretion set on the basis of that she may ignore them if they're going... if the acceptance of the amended certification would prejudice the other voters whose votes would be certified because they were already there and get timely counted in the electoral college?
DAVID BOIES: I think, Your Honor, you could say -- and this is not that different from what we have argued -- that as long as the manual recounts will not impair the final certification in time to permit the selection of electors by December 12, that those manual recounts must be included. That is, the secretary of state's discretion, to the extent that she has any, would be discretion to say, "I need to have the results by this particular date in order to be sure that the results are included by December 12."
CHIEF JUSTICE CHARLES WELLS: Well, you keep referring to it as a ministerial act but under 1003.011 doesn't the secretary have a duty to protect Florida's electoral votes by getting the certification made?
DAVID BOIES: Yes, Your Honor. And what I meant to be saying was that in order to get that certification made, she needs to have enough time to make that certification. But the fact that the certification is a ministerial act doesn't mean it's not important. It simply means that it's an act that, in our view, can be done relatively quickly; that she doesn't need five or ten days to do it.
BETTY ANN BOWSER: After a brief recess, the Republicans had their turn beginning with Joseph Klock, attorney for the secretary of state.
JOSEPH KLOCK: The difficulty that we have here is not really a legal problem; it's a political problem. We have a two-tiered process in Florida, as far as election returns are concerned, and that has to do with, first, the counting and the certification of ballots, and the second is the contest. And most of what you are being asked to deal with today is the problem that is created by the contest. And if you think about it, it creates an enormous number of problems as far as the court is concerned, a number of which have been addressed by the different Justices.
CHIEF JUSTICE CHARLES WELLS: The concern that I have is that it's not... that we have a long-standing policy out of other courts of this state that say that the real parties in interest here are the voters. Now, what I want to know is that what... and this 112 has a provision which says that some voters' votes may be ignored. And what I am concerned about is what is the boundaries on which the secretary or the commission could exercise its discretion and have those voters ignored, and I pose to you that in this particular presidential election, isn't it... doesn't it revolve around the electoral college and the fact that the prejudice that's involved here is the prejudice of not allowing Florida's votes to get counted?
JOSEPH KLOCK: Well, Mr. Chief Justice, the beginning point here is that there are six million voters, of course, and the focus here is on 72,000 of them in three selected counties. The attorney general started out by saying that the attorney general's position is that all the votes in the state of Florida be counted, but that, of course, is not what is underway at this point. The problem with respect to the electoral votes in Florida only occurs if the status quo is maintained, if the votes cannot be certified, if the contest procedure cannot begin.
BETTY ANN BOWSER: One of the issues was whether the secretary of state exercised discretion in deciding not to certify hand-counted votes received after the Tuesday deadline. Her attorney said she did.
JOSEPH KLOCK: She sent a letter out. She asked for the reasons. They provided the reasons by 2:00 PM on the day after, on Wednesday, I believe, and then she promptly responded after applying them against a set of criteria that she had developed to exercise her discretion.
JUSTICE BARBARA PARIENTE: When did she develop those criteria?
JOSEPH KLOCK: You're asking me as a matter of fact, Your Honor? Starting within probably an hour after Judge Lewis entered his decision, she asked for input on the kinds of criteria it would be appropriate for her to exercise her jurisdiction -- her discretion.
JUSTICE BARBARA PARIENTE: Is that rather unusual for a way for an agency head to come up with a decision in this state to come up within a few hours as to allow something or not to allow something?
JOSEPH KLOCK: Well, Justice Pariente, I was kind of refreshed because the agency had actually asked for legal advice on it and what the legal standards would be for her to properly exercise her discretion, and she was pushing against a deadline. So, I considered it excellent, frankly.
JUSTICE BARBARA PARIENTE: But she didn't really exercise her discretion. What was said was that a reason to -- that she was not going to recognize as a reason for late filing manual recounts being conducted in accordance with 166. That was no discretion exercised. It was in accordance with her prior legal decision that recounts that were not based on machine errors were not going to be allowed, and that was what she announced the day before.
JOSEPH KLOCK: Well, Your Honor, the decision... the opinions that come out from the division of elections, Mr. Roberts' group, is not exactly the secretary. The secretary is the one that had the obligation under the statute to exercise her discretion in this case.
CHIEF JUSTICE CHARLES WELLS: Why wouldn't it be in this unique circumstance a better thing to do to wait unless there is a specific reason that's going to prejudice Florida's certification to the electoral college, wait and see to a point in time when the manual recounts are completed, allow those amended certifications to be made and then there will be a point in time in which a determination can be made as to whether the contest in respect to those are going to jeopardize Florida's electoral vote?
JOSEPH KLOCK: On behalf of people, there's no suggestion anywhere here in the record that we have a problem with the voting machines or there was any fraud or anything else. What we're trying to do is to deal with a problem of people who did not follow instructions. The instructions were to put the stylus through the hole in the ballot. They did not follow those instructions. Now, balanced against that it's being suggested that the entire contest period should be stood on its head and that the secretary of state loses her ability to conduct her constitutional exercises.
JUSTICE MAJOR HARDING: We've had cases dealing with this issue in Florida since the 1800s. And all of them in some way, shape or form come about because voters do not follow the instructions. And in all of those cases that I have read, when you can look at the ballot-- even though it is improperly marked and even though the voter did not follow the instruction, but you can tell the intent of the voter from that ballot-- that that vote has to be counted.
JOSEPH KLOCK: And Mr. Justice Harding, I would suggest to you that all of those cases that you have seen have been a voting contest, and the difficulty we have here, as I say again, the court is being brought into something it need not be brought into. This is not a legal problem. This is a political problem.
BETTY ANN BOWSER: Governor Bush's attorney, Michael Carvin, emphasized the importance of adhering to a deadline.
MICHAEL CARVIN: May it please the court -- as the colloquy today indicates, there is a very clear procedure for resolving all the questions the Justices have asked, and that's set forth in the statute. You set a firm deadline. And you make sure that everybody gets their votes in at the same time and if there are any problems in terms of voter tabulation or the kinds of questions that we've done, you've got to keep to that deadline so you'll have time to do the election contest after that.
SPOKESMAN: Let me roll my initial concern as stated by you. Tell me when Florida's certification would be in jeopardy if the certification is not made by that date.
SPOKESMAN: Well it's clearly in jeopardy now.
SPOKESMAN: Why is that?
SPOKESMAN: December 12 is the cut-off date.
SPOKESMAN: Why is it in jeopardy now?
SPOKESMAN: Because if they're not certified, then there is no way to come to an accurate statewide count, and that -- as we've seen over the last ten days -- is an enormous undertaking. So if we continue to delay the certification process, remember that deadline is not the end of the process for finding accuracy. It is the beginning of the process for finding accuracy.
BETTY ANN BOWSER: Four of the seven Justices must agree on the court's written ruling, which could come as early as tomorrow.