|FLORIDA COURT BATTLES|
December 7, 2000
Betty Ann Bowser reports on today's court proceedings on manual recounts and absentee ballots.
JIM LEHRER: Another big step toward resolving who will be the next President was taken this morning in Tallahassee, Florida. The state Supreme Court heard arguments in a case that could finally decide it. Vice President Gore's lawyers sought to overturn a circuit court ruling against further recounts in two south Florida counties. Closing arguments were also heard today in two other circuit court trials over the legality of absentee ballots in two counties. Here's a Betty Ann Bowser report on the day's proceedings, including extended excerpts from the Supreme Court session.
BETTY ANN BOWSER: Florida Supreme Court Chief Justice Charles Wells kept Gore attorney David Boies and Bush attorney Barry Richards close to their allotted time, 30 minutes per side; and the two weren't given an opportunity to make speeches. Instead, they were peppered with questions the seven Justices asked with efficiency. Wells' first question to both attorneys concerned this week's opinion by the U.S. Supreme Court that the Florida high court may have overstepped its bounds when it extended by 12 days the state's certification deadline for declaring a presidential victor in Florida.
JUSTICE CHARLES WELLS: You know, when the case was here previously in the protest part of the proceeding, no counsel for any party, in briefs or in argument, raised with this court the U.S. Supreme Court case of "McPherson v. Blacker," seemingly because counsel did not believe that it was important for our consideration. However, that case was forcefully argued to the U.S. Supreme Court, and the U.S. Supreme Court has now called that case to this court's attention in the opinion that came out this Monday.
BETTY ANN BOWSER: In the 1892 case of "McPherson v. Blacker," the U.S. Supreme Court ruled that the U.S. Constitution authorizes the states to appoint electors only in such a manner as the legislature thereof may direct.
JUSTICE CHARLES WELLS: My reading of that case is that the U.S. Supreme Court has said that the state legislature has plenary power, full power, in respect to appointment of presidential electors, and that power cannot be eroded even by the state constitution. Now, accepting that as controlling law, why does that not mean that the courts of this state can only be involved in resolving controversies and contests where the legislature explicitly gives this court that power, or a court that power, which it has not done in respect to presidential electors in 102.168?
DAVID BOIES: Because what I would respectfully suggest, Your Honor, is that the legislature has provided this court with the authority to interpret these laws; that whenever the legislature passes a law, what the legislature is doing is passing a law that is known to be going to be interpreted by the courts. That is, in terms of Section 168, this is a law that the legislature did not say, "we are only going to apply this law to non-presidential elections." Prior to this case, I don't think anyone would have contemplated that this law did not apply to presidential elections, and certainly no one, not this court and not either party, so contemplated the last time we were here before the court.
This is a situation in which you have a statute that the legislature has passed that provides very specific remedies, and we think that those remedies are the remedies that this court has the jurisdiction to enforce, both in terms of appellate review and under its original mandamus authority. This is not a situation in which the Constitution of the United States has said a state legislature has to sit as a judicial body in enforcing the laws with respect to elections. It has merely said that the legislature can specify the manner of appointment of the electors.
BETTY ANN BOWSER: When it was his turn, Bush attorney Barry Richard disagreed with Boies.
JUSTICE CHARLES WELLS: Is it the position of Mr. Bush that that case does not have any bearing on this matter?
BARRY RICHARD: Well, Your Honor, I think that the case has substantial bearing on the matter. I think that what "McPherson v. Blacker" tells us is exactly as Your Honor suggested it, which is that this court does not have the ability, in this particular case involving presidential electors, to disregard the statutory scheme and fashion a remedy based upon extraordinary equitable powers of the court set forth in the Constitution.
BETTY ANN BOWSER: Justice Major Harding asked whether the Florida High Court had the authority to review the lower court decision that brought them all there today. That decision by circuit court Judge Sanders Sauls denied Vice President Gore's request to hand-count thousands of south Florida ballots.
JUSTICE MAJOR HARDING: Do we have the right to review the action of the circuit court?
BARRY RICHARD: Indeed you do, Your Honor. But we come here in a significantly different posture than we did before. What we come here with now is belied by the nature of the litigants and the public interest. In fact, this is nothing more than a garden variety appeal from a final judgment by a lower court that reviewed after an entire full evidentiary hearing.
JUSTICE MAJOR HARDING: But the legislature, having plenary power, said that the circuit court will make that determination.
BARRY RICHARD: Well, I agree with you, Your Honor, and I would not suggest to this court that the circuit court is not subject to any appeal. I believe that the circuit court is subject to appeal, but in a very limited fashion. And I also think that one reason that we have not placed emphasis upon "McPherson versus Blacker" is because, in fact, this court said the same thing in an earlier McPherson case, which Justice Wells referred to, "McPherson versus Flynn," in which this court said since there is no common-law right to contest elections; any statutory grant must necessarily be construed to grant only such rights as are explicitly set out by the legislature. The legislature, in Section 168, has given us five and only five grounds for an election contest, and one of them is not that there is a close election in which votamatic machines are used.
JUSTICE LEE ANSTEAD: Well, the bottom... The bottom line, if I understand it, though, of your answer to the Chief Justice's question is that this court does have appellate jurisdiction over the trial court's ruling. Do I understand that to be your answer?
BARRY RICHARD: I think that this court has limited appellate jurisdiction over...
JUSTICE LEE ANSTEAD: And that the McPherson case-- the federal McPherson case, not this court's McPherson case-- does not affect that appellate jurisdiction?
BARRY RICHARD: No, no, sir. I believe that... I certainly believe that this court has the ability to review what a circuit court did to determine whether the circuit court violated the traditional rules...
JUSTICE LEE ANSTEAD: Much in the way we would be reviewing it if it was another vote, a county commissioner or an election for some other office, a member of Congress, and a contest was brought.
BARRY RICHARD: Precisely, Your Honor. The court is the great leveler in the sense that it doesn't make any difference whether we're talking about schoolteachers and laborers or presidents and kings; the rules are the same. And the rules in this case are very clear. There are two questions that this court must answer: Was there substantial, competent evidence in the record below to support the judge's findings? And did the judge properly apply long-established law?
BETTY ANN BOWSER: Boies argued there was ample evidence to support a manual recount.
JUSTICE CHARLES WELLS: What you're asking this court to do is to have the courts of this state get involved in any instance in which someone comes in and merely alleges that there would... there needs to be a count because there were legal votes left out-- not going through the canvassing boards, but legal votes left out-- and then... And that would have to do with an election. Someone would say they lost by 130,000 votes in Dade County, and we'd have to have the court count those votes.
DAVID BOIES: Your Honor, I don't think that's what we're arguing. This is not a situation in which somebody has simply come in and said, "we've lost; we'd like to have a recount under the contest statute." This is a situation in which we have identified specific votes, many of which were agreed by the district court were votes in which you could clearly discern the voter's intent. You had 215 ballots that are not included the certified results in Palm Beach County where the circuit court found, on undisputed evidence, that there was a clear voter intent expressed on those ballots, and they were not counted. You had 168 ballots in Dade County that were counted before that county prematurely stopped its count, where the circuit court found that these were ballots that expressed the voter's intent; that the canvassing board had properly identified those ballots.
So these are ballots where we know that if you look at the under votes, you find ballots that can clearly have a discernible intent of the voter found from them, and yet they are not counted. This is a situation in which the evidence is clear and undisputed that there are voter errors and machine errors that create this under vote in punch-card equipment. In fact, the court found-- district court, the trial court-- found at page ten of the opinion that this had been known to county officials for many years. So this is not a situation in which you simply have somebody coming in and saying, "we lost and we want to have another chance at it."
BETTY ANN BOWSER: And part of Boies' argument was that Judge Sauls didn't look at crucial evidence, the 15,000 ballots Sauls ordered trucked up to Tallahassee for possible review.
JUSTICE MAJOR HARDING: Did anyone ever pick up one of the ballots and hold it up and show it to the judge and say, "this is an example of a ballot which was rejected but which a vote is reflected"?
DAVID BOIES: Not a particular ballot, Your Honor. We offered the groupings of ballots that we had segregated-- all of those, of course, in order to prevent contamination, were not given to the lawyers. They were kept under the control of the clerk of the court.
JUSTICE MAJOR HARDING: But nobody asked the court for permission to do that, or showed him one of those ballots?
DAVID BOIES: Not an individual one, although we did tender them in evidence and we did ask him repeatedly to look at the ballots as part of the evidence.
BETTY ANN BOWSER: Attorney Barry Richard was asked about those unexamined ballots.
JUSTICE LEE ANSTEAD: Did the trial court admit those into evidence?
BARRY RICHARD: My recollection is that the trial court did. There were thousands of ballots which were embargoed, and my recollection is that the trial court did. It was not a substantial dispute over whether or not the court could technically admit them into evidence.
JUSTICE LEE ANSTEAD: Did the trial court examine those documents?
BARRY RICHARD: No, Your Honor, because I think there was no basis in law for the trial court to do that until after the plaintiff had carried its burden of proving that there was some necessity to do so. We had an absolute failure on the part of the plaintiffs here. This court gave the plaintiffs the opportunity to have a trial to prove their case, and it was an absolute failure in the record of this case to establish an abuse of discretion by any of the challenged canvassing boards.
BETTY ANN BOWSER: And Richard agreed with Judge Sauls' ruling that the gore attorneys did not meet their burden of proof.
BARRY RICHARD: No. I think the standard is the same standard of burden that every plaintiff carries in every case, which is to come into court and to prove that there is something wrong with some ballot or some machine somewhere, and that there are enough of those that we can say that whatever we call it, it would place the election in doubt. This plaintiff did not do so.
BETTY ANN BOWSER: Richard was asked what burden the Gore attorneys needed to meet.
JUSTICE BARBARA PARIENTE: My reading of the statute says that it's... Says sufficient to change or place in doubt the results of the election. "Place in doubt" is a different standard than "a reasonable probability of a different result." Do you agree with that?
BARRY RICHARD: I'm not sure, Justice Pariente, but I don't think we need to address that issue at this time because there was virtually no evidence in the record upon which one could conclude... there was no evidence of any single voting machine that misoperated; there was no evidence of any voter whose vote was not properly recorded.
JUSTICE BARBARA PARIENTE: So your position is that in the contest, that errors, or under voting, as we've been referring to it, that is the failure of the machine to read a vote that might otherwise be properly cast for a candidate; that it is not the role of the judiciary in a contest to evaluate under votes? Is that your position today?
BARRY RICHARD: Well, number one, it is not the role of the judiciary to do so when a canvassing board has already done so and has made a reasonable decision, and that happened in Palm Beach County. And I can conceive of no standard that this or any other court would impose upon the Palm Beach County canvassing board...
JUSTICE BARBARA PARIENTE: Let's just refer to... Let's stay with Dade County.
BARRY RICHARD: Okay.
JUSTICE BARBARA PARIENTE: Where it's undisputed that 9,000 votes that have been the subject of requests since November 9 have never been counted.
BARRY RICHARD: The canvassing board made the judgment that, at the deadline that this court set for everybody, they could not conceivably complete their count, and I would suggest to this court that, based upon what the Florida legislature has told us, that they did not have the authority to submit a partial count, only a full count. And had they done so, they probably would have violated the federal Voting Rights Act and the United States Constitution.
BETTY ANN BOWSER: As the chief representative for the plaintiff in the case, Attorney Boies was allowed to close the hearing. That was when several of the Justices expressed their concern that time was running out on the electoral process in Florida.
JUSTICE CHARLES WELLS: All of these contests have to be concluded, as you told me before when we were here before, by December 12. And we don't have a remedy here that can do that by December 12.
JUSTICE BARBARA PARIENTE: In terms of the remedy, and now specifically as to the Miami-Dade votes that you are contesting, what is the... we're here today, December 7. What is the time parameter for being able to complete a count of those under votes?
DAVID BOIES: The record shows that the canvassing boards were doing about 300 an hour, 250 to 300 an hour. That was with three people looking at every ballot. That was obviously slower than it would be if it were being done by one judicial officer. We believe these ballots can be counted in the time available. Obviously time is getting very short. We have been trying to get these ballots counted, as this court knows, for many weeks now.
CHIEF JUSTICE LEE ANSTEAD: With the chief's indulgence, one last question, and it really ties in to something actually that you brought before the court in the first oral argument that we had here, and that is this problem that continues to reoccur in the case of not having recounts in other counties where the same voting mechanisms were used, and where there may have been under votes, but that the proportion of votes, for instance, may have favored your opponent. We are now here on December 7 with December 12, you know, fast approaching. At the last proceeding, neither side took us up on... whether it was an offer or not, at least it was a concern of the court in terms of the appearance of fairness or equity. How can we resolve an issue like that at this late date?
DAVID BOIES: Two points, Your Honor. First, there has never been a rule that says you have to recount all the ballots in an election contest. In fact, every case that we've cited has been a case, including the Beckstrom case, where only the contested ballots were reviewed. To make a different rule would be a change in the law. The second point is that every party has a right to contest, but no party is required to contest. What the sense seems to be is that somehow Governor Bush's campaign should be protected from Governor Bush's lawyers; that they didn't ask for a recount and, therefore, there should be recount anyway, even if they didn't ask for it.
JUSTICE CHARLES WELLS: Thank you, Mr. Boies. I think your time is up.
BETTY ANN BOWSER: Immediately following the hearing, Republican attorney Barry Richard said he thought the proceedings had gone well.
RICHARD BARRY: I thought that the court thoroughly analyzed the issues. They had a good grasp on what needs to be considered and I was pleased with the argument.
BETTY ANN BOWSER: Gore Attorney David Boies said he was pleased as well. He was asked what he'll do after December 12, the date on which Florida law says electors must be picked for the electoral college.
REPORTER: Will you say here today that December 12 is the drop-dead date?
DAVID BOIES: The Florida Supreme Court sets the drop-dead date, and they don't make arguments for me, and I don't make decisions for them. But I think that... I think that what they have consistently said is that they expect this to be over by December 12. We believe it can be over by December 12. And if they come out with an order that says we're not going to count any ballots, that's going to resolve it by December 12. If they come out with an order that says we are going to count the ballots and we're going to start now, we believe that can be resolved by December 12.
BETTY ANN BOWSER: While the legal drama was unfolding in the Florida Supreme Court, closing arguments were heard in two other courtrooms across the street. Democrats from Martin County were challenging 10,000 absentee ballots, while Democrats from Seminole County were challenging 15,000 absentee ballots. Both plaintiffs claiming Republican officials tampered with ballot applications. Late this afternoon, Judge Nikki Clark laid out what she wanted to hear from attorneys representing the plaintiff in the Seminole County case.
JUDGE NIKKI CLARK: What I want you to do is show me where there was differential treatment. It seems to me what happened was that the supervisor of elections allowed the Republicans to come in and alter the ballot request forms. The testimony seems to indicate that the supervisor of elections didn't offer that to the Democrats, but it also seemed that the Democrats didn't ask for that. So talk to me about that issue and show me where in the record the facts would be one way or the other.
GERALD RICHMAN: Absolutely. The Democrats didn't know what was going on. No Democrats, no independents had any idea that this was going on until October 30, when it came out publicly, and at the time it happened on October 30, it was already essentially too late to do anything.
BETTY ANN BOWSER: Attorney Terry Young, who represented the Seminole County canvassing board, said Republicans officials broke no laws, and appealed to Judge Clark not to throw the absentee ballots out.
TERRY YOUNG: There is no doubt that what is at the heart of this case is politics. All we want is and what all the Seminole County officials want is the clear unequivocal voices of the Seminole County voters to be heard. They cast their votes, they participated, and they don't want to be discounted or thrown out or silenced in any way.
BETTY ANN BOWSER: Because the issues in the cases are so similar, the two judges are expected to consult with each other before rendering decisions, which could come as early as Tomorrow.