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Online NewsHour Special Report: Election
2000
Dec. 5, 2000:
Columnists
discuss the continuing courtroom battles
Text
of U.S. Supreme Court ruling
Dec. 4, 2000:
Four
former U.S. senators offer their perspective on the Election
2000 legal battle.
Dec. 4, 2000:
Four
former U.S. senators offer their perspective on the Election
2000 legal battle.
Dec. 1, 2000:
An
explanation of the Supreme Court hearing.
Dec. 1, 2000:
Legal
scholars examine the Supreme Court hearing.
Dec. 1, 2000:
Gigot
and Oliphant look at the election situation.
Nov. 30, 2000:
Debating
cameras in the Supreme Court.
Nov. 30, 2000:
Florida
legislators consider choosing electors.
Nov. 29, 2000:
The ongoing Florida
legal battles.
Nov. 28, 2000:
The campaigns file briefs
for the Supreme Court hearing.
Nov. 28, 2000:
Regional
commentators talk about the election.
Nov. 27, 2000:
Sen.
Joe Lieberman discusses his campaign's legal case.
Nov. 27, 2000:
GOP Gov.
Marc Racicot addresses the Gore challenge.
Nov. 27, 2000:
Shields and Brooks look at politics
after certification.
Nov. 24, 2000:
Shields
and Gigot discuss the political landscape in Florida.
Nov. 22, 2000:
Legal
Experts discuss the Florida Supreme Court ruling.
Nov. 22, 2000:
Shields
& Gigot assess the political ramifications of the Florida
Supreme Court decision.
Nov. 21, 2000:
Editorial
writers from across the country discuss Florida.
Nov. 20, 2000:
The
Florida Supreme Court hearing.
Nov. 20, 2000:
Journalists
Brooks, Broder and Oliphant discuss Florida.
Nov. 17, 2000:
The Florida Supreme Court halts
the vote certification.
Nov. 16, 2000:
Four
senators discuss this year's election.
Nov. 15, 2000:
Foreign
nations and markets react to the U.S. election deadlock.
Nov. 15, 2000:
Cultural
scholars assess the election deadlock.
Browse the NewsHour coverage of Politics
& Campaigns and Law.
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MR. BARRY RICHARD: May it please the court, I'm Barry Richard, on behalf
of George W. Bush and Richard Cheney.
CHIEF JUSTICE WELLS: Mr. Richard, let me start with my question that
I asked Mr. Boies. When this case was here before, counsel for Mr. Bush
did not present any argument on McPherson versus Blacker; yet, when
it got to the Supreme Court, counsel for Mr. Bush forcefully argued
McPherson versus Blacker. Now I note that it's not argued again here.
Is it the position of Mr. Bush that that case does not have any bearing
on this matter?
MR. RICHARD: Oh, 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.
CHIEF JUSTICE WELLS: Do we have the right to review the action of the
Circuit Court?
MR. 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 HARDING: But the legislature having plenary power said that
the Circuit Court will make that determination.
MR. 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 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?
MR. RICHARD: I think that this court has limited appellate jurisdiction
over --
JUSTICE ANSTEAD: And that the McPherson case, the federal McPherson
case, not this court's McPherson case, does not affect that appellate
jurisdiction.
MR. 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 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.
MR. 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 school teachers 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?
JUSTICE ANSTEAD: Referring -- referring to the substantial competent
evidence issue, isn't it highly unusual for a trial court to admit into
evidence certain documents that one party claims will be controlling
with reference to the claim they bring to the court, and yet never examine
those documents before making their decision? And didn't that happen
here with the trial court admitting the disputed ballots into evidence,
but yet never looking at those documents?
MR. RICHARD: Well, I think that the trial court admitted -- theoretically
admitted the ballots -- (laughs) -- the ballots for --
JUSTICE ANSTEAD: Theoretically, or did the -- I mean, the trial court
either did or did not admit the ballots into evidence.
MR. RICHARD: Well --
JUSTICE ANSTEAD: Did the trial court admit those into evidence?
MR. 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 ANSTEAD: Did the trial court examine those documents?
MR. 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. And this
leads to the core of Mr. --
JUSTICE PARIENTE: But let me -- then what does Subsection 8 mean? The
subsection that was specifically added in 1999 -- and you've told us
we've got to follow this statute. That -- the section that says the
circuit court is do "whatever is necessary to ensure" -- which
is rather unusual language to use in a statute -- "to ensure that
each allegation in the complaint is investigated, examined, or checked."
If it isn't to mean that the circuit court is to look at the very ballots
that have been brought to the court for investigation, what does that
statute -- what does that section mean in the context of this litigation?
MR. RICHARD: Your Honor, this brings us back to McPherson versus Blacker.
Neither -- the circuit court has no greater power than this court to
disregard the scheme that the legislature has provided us with. And
that scheme is crystal-clear. In fact, this court recognized it 10 days
ago in the Harris case, when it said the decision whether to conduct
a manual recount is vested in the sound discretion of the board and
cited Hogan (sp). The Hogan case was indeed precisely the same as this
case. It was a case in which the canvassing board elected not to conduct
a manual recount. And this court referenced that case, in which they
said that the application of Section 168 does not change the necessity
to show an abuse o discretion when it arrives at the court.
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.
JUSTICE LEWIS: Well, excuse -- counsel, you seem to be suggesting then
that you can never have a contest unless what has occurred has already
been through a protest process under 166. What would counsel do to circumstances
that come to light later? For example, the precincts of one -- the ballots
of one precinct just simply did not get included in the certification?
That would not be part of the protest. Situations where it comes to
light that violence is used to keep people away for the polls. That
would not come to light during a protest. Are you suggesting that those
kinds of circumstances then could not be addressed under a contest?
MR. RICHARD: No, sir. We don't find ourselves in that posture. We find
ourselves in a posture in which canvassing boards to which the legislature
has delegated the authority have made decisions, and this is no different
than any of the hundreds of cases that come to our District Courts of
Appeal, and ultimately sometimes to this court, in which an administrative
agency given discretion has exercised the discretion and the rule for
time immemorial has been that the standard of review is whether or not
that agency has abused its discretion, one of the highest standards
known to the law.
JUSTICE PARIENTE: So, if --
JUSTICE ANSTEAD: We have a ruling here, do we not, from a district court
of appeal, that on an application for mandamus that has said that the
Dade County Canvassing Board had a mandatory duty to continue the counting
of the ballots, once they decided to have a recount; and that only because
it could not meet a filing date, would they not grant a writ of mandamus.
So, indeed, we have a review, do we not, of the very specific canvassing
board that made a decision here, and we have a legal ruling by a District
Court of Appeal, as you say, that has held that they erred in that,
that they did have a mandatory obligation to continue the count. How
can we overturn that ruling?
MR. RICHARD: The District Court of Appeal determined not to continue
the count for two reasons. The first reason was that --
JUSTICE ANSTEAD: The District Court of Appeal or the canvassing board?
MR. RICHARD: I'm sorry. The canvassing board determined not to continue
the count for two reasons.
The canvassing board made the determination that, based upon that six
votes, there was no reason to believe that there would would be a change
in the result of the election, one of the critical elements of Subsection
168. Now, that issue was tried before Judge Sauls and he resolved conflicting
evidence in favor of the fact --
JUSTICE ANSTEAD: Where is there any finding by Judge Sauls that the
reason that the recount was discontinued in Dade County was because
the canvassing board had initially decided that there would be no merit
to having a recount? is there such a finding?
MR. RICHARD: He does not make that finding. But he does make the finding
that there would not have been a difference in the result, and that
was within his discretion to make that finding because he had conflicting
evidence and he resolved it.
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JUSTICE ANSTEAD: Do you agree that in the Third District's
opinion, that they only set out that there was a single reason, a single
reason for stopping the recount, and that single reason was the inability
to meet a deadline?
MR. RICHARD: Yes, sir. And I will address that reason as well. But --
JUSTICE ANSTEAD: Help me with the record in this case that we have, where
it shows a contrary finding or holding with that holding of the Third
District Court of Appeal.
MR. RICHARD: Well, let --
JUSTICE ANSTEAD: In other words --
MR. RICHARD: Yes, sir.
JUSTICE ANSTEAD: -- where would I look in this record?
MR. RICHARD: Let me address both of your questions. And so let me begin
with the one that you asked.
The canvassing board, it is beyond dispute, made the decision not to continue
because they determined that once this court had set a deadline of November
26th, that they could not possibly meet that deadline. Now, I pause here
to note that in retrospect, they apparently made the right decision, because
Palm Beach County, which is a smaller county, was well into their count
as of that time and was unable to meet that deadline. And the law of this
state from time immemorial says that no governmental agency and no person
is required by law to engage in a futile act. That alone is sufficient
to uphold the decision of the canvassing board, because they clearly --
one cannot say that reasonable mean could not differ as to that decision.
JUSTICE ANSTEAD: But would you hold that -- hold that thought for a moment,
because in our earlier decision interpreting the statutes with reference
to the filing date, we, in essence, said that the secretary of state could
refuse a filing -- okay? -- by a particular county only if, one, it would
interfere with the federal obligation to have the electors determined
by a fixed date; or two, that it would interfere with a contest.
Now, has there been any showing in this case that either of those issues
applied to the decision by the canvassing board to stop their counting?
MR. RICHARD: No, sir. But this court also said you must have your votes
in by November 26th, and the canvassing board, having made the decision
it was impossible, had two choices; one was to not submit the -- not to
continue the count, and the second was to send up a partial count, which
according to the evidence before the board would have cut off a substantial
number not only of precincts that might have been significantly different
than the result, but also that would have disenfranchised a particular
minority within Dade County. One cannot say that reasonable men and women
would not be able to differ as to the decision of that canvassing board.
But the other point that I would like to make is that subsequent to the
decision of the Third District Court of Appeal, there was a trial, and
in that trial, Judge Sauls resolved conflicting evidence as to the question
of whether in fact there would have been a change in the election regarding
Dade County, and determined that there would not have been. There was
substantial --
JUSTICE PARIENTE: Just let me -- you keep on using the language that there
should be a reasonable probability of a change. And you've said that,
again, we've got to stick to the statute. 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?
MR. 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 PARIENTE: So your position is that in the contest, that errors,
or undervoting, 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 undervotes? Is that your position today?
MR. RICHARD: Well, my position is twofold. The first one --
JUSTICE PARIENTE: Well, is that one position; that is that this election
contest statute does not vest within the judiciary the authority to
review votes that were properly cast but never coUnited?
MR. 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 PARIENTE: Let's just refer to -- let's stay with Dade County
--
MR. RICHARD: Okay.
JUSTICE PARIENTE: -- where it's undisputed that 9,000 votes, that have
been the subject of requests since November 9th, have never been coUnited.
MR. RICHARD: Oh, I think it is disputed, Justice Pariente. All we know
in Dade County is that the voting apparatus, which nobody proved was
defective, determined that 9,000 votes were not properly recorded by
the voter.
JUSTICE PARIENTE: But we know that in the first 20 percent, that 434-something
-- more or less -- legal votes were recovered. You've already said that
we shouldn't challenge Palm Beach County. We know that somewhere between
-- whether it was 174 to 215 votes were recovered. And Broward County,
whose certification has been included, has several hundred votes, all
with the same type of machine. Are you really saying that the votes,
the 9,000 votes in Dade County, which are the exact same votes that
were looked at in Palm Beach County and Broward County, should not be
looked at in a contest action?
MR. RICHARD: Not at this point, Your Honor, for two reasons. The first
is that 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. That's the first reason.
And this court has no basis in this record to determine that the canvassing
board abused its discretion in making that decision.
JUSTICE PARIENTE: That's our --
JUSTICE WELLS: But let me get an understanding of what your position
is that we're talking about when we say an "undervote." Are
these votes -- have these ballots been sent through the machine?
MR. RICHARD: They have, Your Honor.
JUSTICE WELLS: I got from reading somewhere that what we're defining
or what's being argued here as an "undervote" is a -- are
ballots which have not been manually coUnited. Is that --
MR. RICHARD: That's correct, Your Honor. The record indicates that every
one of these votes was sent through the machine. They were rejected
by the machine because of the parameters that had been set. The machine
determined that the votes had not been properly marked on the ballots.
JUSTICE LEWIS: Well, that goes to the rejection issue. You would agree
with that? Is that -- that you're saying that they've gone through the
equipment, so therefore they were not rejected? Is that a fair reading
of your argument?
MR. RICHARD: Yes, Your Honor. It's the same --
JUSTICE LEWIS: Okay. Let's go to the one next statement, and let's take
it one step further. If that is not accepted or is contrary to Florida
law -- that those are considered to be rejected -- do you agree with
the standards that have been applied in other states, with regard to
very similar statutory language, as to what you do to determine if there
could be a change in the election or a doubt as the result in the election
-- i.e., look to see as to, first, just whether there's enough votes
that were not coUnited, not as to who they would be for. Do you agree
with that standard?
MR. RICHARD: I don't agree that it applies under these circumstances,
Your Honor.
JUSTICE LEWIS: The standard is what I'm looking to. Do you disagree
with that standard? Or what standard would you have applied? If you
assume that they were rejected, how does one prove that there would
have been a change in result or doubt as to the result --
MR. RICHARD: Well, if --
JUSTICE LEWIS: -- (if it ?) has not been established?
MR. RICHARD: If we are in a circumstance in which it is appropriate
to look at ballots, then it is the job of the canvassing board to do
precisely what the Palm Beach Canvassing Board did, and that is to use
the standard that the Palm Beach Canvassing Board used. Now, I pause
here to point out that it's our belief that the Palm Beach Canvassing
Board violated federal law because they changed the rule in midstream
and, in fact, should not have coUnited any dimples. But having said that,
assuming that you are going to make a decision, you use the standard
that the Polin (sp) case used and that this court, by reference to Polin
(sp), adopted as the appropriate standard. The record suggests that
that's exactly what the Palm Beach Canvassing Board did. But we never
reached that stage. There are 64 counties in the state of Florida that
did not manual recount. And what Mr. Boies is suggesting is that every
one of those counties, simply because they had a punch-card system,
must automatically do a manual recount.
JUSTICE LEWIS: I'm not speaking of the standard of evaluating the ballot.
MR. RICHARD: Yes, sir.
JUSTICE LEWIS: I'm speaking of the standard with regard to how does
one demonstrate that there would be sufficient to change or place in
doubt. For example, New Jersey seems to suggest that -- in interpreting
a very similar statute -- that you would look to just see if there's
enough votes there, and assume that they would be for the challenging
candidate, and that is enough to place -- that it could change the results.
Are you suggesting a different standard than that?
MR. 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.
JUSTICE ANSTEAD: Well, if you accept that first prong that Justice Lewis
has asked you if you have agreed with, and at least, and I'm not sure
whether -- it seems that you have said that you do agree with, and that
is that other courts have said that first you have to show that there
are a sufficient number of contested or challenged or questionable ballots
that would make a difference. Now if you do accept that standard that
has been set out in some other state courts' decisions, wouldn't you
agree that at least -- and for that preliminary step, that the plaintiffs
here have met that? That is, they have submitted that there are, like,
9,000, or whatever the number is, challenged ballots, and that there
is a difference in the outcome of the election that is presently measured
only in hundreds of ballots.
MR. RICHARD: No.
JUSTICE ANSTEAD: So at least that preliminary step of saying the number
of challenged ballots would place in question the outcome of the election,
that they've at least met the preliminary step?
MR. RICHARD: No, sir, I emphatically disagree with that.
JUSTICE ANSTEAD: All right. Now do you disagree on the basis of applying
that standard --
MR. RICHARD: No, sir.
JUSTICE ANSTEAD: -- or do you disagree on the basis that they haven't
met that standard?
MR. RICHARD: They have not met their burden of proof. And the reason
is, the only thing they did was put two witnesses on the stand to say
that they were speculating that Votamatic machines are inherently unreliable.
And so in essence what Mr. Boies is saying to this court is any time
there's a Votamatic machine in a close election, and somebody says,
"Count all the ballots," you must do so. This court, in the
Fladell case several days ago, said that voter confusion and voter mistake
is not sufficient to throw out a ballot --
JUSTICE WELLS: Justice Shaw has a question.
MR. RICHARD: Yes, sir.
JUSTICE WELLS: And then I think your time --
JUSTICE SHAW: I think it's in line with Justice Anstead's question.
Seemingly early on Judge Sauls set a threshold and said that, in effect,
that the plaintiffs could not prevail even if no evidence was put on
until they met this threshold. And ultimately, he decided that he did
not have to look at the ballots because that threshold has not been
met. Is that a correct statement?
MR. RICHARD: That's correct, Your Honor. That's correct.
JUSTICE SHAW: What did you see the threshold as being?
MR. RICHARD: Well, it's been the same as every plaintiff carries in
every case, and that is to bring in sufficient evidence to meet the
elements of the case; in this instance, to show that there was any reason
to believe that any voter was denied the right to vote because of something
other than the voter's own fault. There was not a single shred of evidence
in this case on a single voter to show that. There was nothing here
but the speculation of two witnesses that Votomatic machines do not
always show the voter's intent. That's all there was.
JUSTICE QUINCE: Where in the statute is that standard, that you have
to show that a mistake was made through no fault of the voter? It seems
to me that we've gotten off of what the standard is for showing the
rejection of votes. And it seems to me that the statute, Subsection
3, says that rejection of votes which may put in doubt the result of
the election. And so that is not that you have to demonstrate that the
election really -- that I'm going to win, but it is in doubt that I
did not win.
So isn't that a different standard? I'm really having a problem with
the reasonable probability of a different result standard, that Judge
Sauls talked about, versus the rejection of votes that would put the
election in doubt. Could you please explain the difference in the two?
Or is there?
MR. RICHARD: Justice, I don't think it's necessary for us to distinguish,
given the razor-thin record we have in this case. The only way that
one can conclude that either of those standards was not met in this
case, based upon this record, is to conclude that in every case in which
a Votomatic Machine is used and the race is close, that we must manually
recount in every county that used those machines, because that's what
the evidence was that was used in this case.
CHIEF JUSTICE WELLS: We'd better give Mr. Klock a chance --
MR. RICHARD: If I may, Your Honor, there is just one other issue, too,
that I think we cannot lose sight of.
CHIEF JUSTICE WELLS: I want to warn counsel, we're going to observe
our time limits here, so you and Mr. Klock can proceed, but --
MR. RICHARD: This will take one second, Your Honor, and that is that
you also have to establish the second element, which is that whatever
standard you use that would have changed the result of the election,
if you look at the evidence here and you look at the lower court judge's
determination, no matter which standard you use, there was insufficient
evidence to indicate that; and this court cannot reverse the lower court
judge unless there is a complete lack of substantial competent evidence
in the record to support his decision, regardless of the standard. Thank
you.
CHIEF JUSTICE WELLS: Mr. Klock?
MR. KLOCK: May it please the court, I think I remember the first question.
We did not argue Blacker in the Supreme Court on behalf of the secretary
and the canvassing commission, but I think the answer to your question
is this, that the judiciary obviously has the appellate power to review
what a circuit court does.
There is a constriction, however, and I think that constriction is picked
up in the language of the Supreme Court, and that has to do with the
concern in this kind of election, having to do with presidential electors,
which is different than the other kinds of elections, for instance,
referred to by Justice Anstead, and that is the language on page six
of the slip that says, "Since section five contains a principle
of federal law that would assure finality of the state's determination
if made pursuant to a state law in effect before the election, a legislative
wish to take advantage of the safe harbor would counsel against any
construction of the election code that Congress might deem to be a change
in the law." So I would suggest that is the restriction that you
would have.
The legislature has the power to select electors. In Florida, the legislature
has allowed the people to make that choice.
But I think, Mr. Chief Justice, that what you need to do is you need
to be careful in terms of construing statutes or remedies to not do
anything that would constitute a change in the law, because if that
is done, then that places in jeopardy either the safe harbor, if the
Supreme Court limits itself to that, or the concept that any kind of
change of law as required by Section 5.
JUSTICE ANSTEAD: Why hasn't that been accomplished in our previous decision
that gave due regard to the fact that you have a federal scheme that
is -- has certain fixed dates or a calendar in place and that we have
interpreted the statute to be certain that the votes are coUnited and
finally coUnited before that fixed date comes into play? Why doesn't
that take care of that?
MR. KLOCK: Justice Anstead, I don't think there's --
JUSTICE ANSTEAD: (Inaudible) -- I don't know that you're saying that
it doesn't. I'm asking you.
MR. KLOCK: No, Justice Anstead, I think the problem is there's no way
of reading Harris. I mean, Harris -- Harris was not limited to dealing
with presidential election contest, obviously. The Supreme Court of
Florida was dealing with issues that had to do with the Florida Election
Code.
JUSTICE ANSTEAD: And the Florida Election Code, as enacted by the legislature,
is a single election code, is it not? That is that the Florida legislature,
after submitting to the voters of Florida the authority to pick their
presidential electors, has not said, "We're going to have one election
code now to review that election, and we're going to have another election
code to review all other elections," have they?
MR. KLOCK: Your Honor, the Florida Election Code is a short form for
including all the various statutes that deal with elections in Florida.
There is one collection of laws that deal with that, but there are different
provisions that deal with presidential elections in 103 than deal with
other elections. I think the difficult --
JUSTICE ANSTEAD: So in terms of any of the issues that we've
been talking about as far as counting votes and ballots and filing them
and returns and all of those things, there is simply a single scheme,
is there not?
MR. KLOCK: Your Honor, I don't think that there really is. I think Harris
is a substantial departure. If the test --
JUSTICE ANSTEAD: Tell me where there is a separate scheme for considering
the outcome of the electors for president. And this proceedings is a
good example of this, and that is that we've had a contest, okay, filed
in the Circuit Court. Do you agree that the contest statute applies
to the selection, the election by the people of Florida of their presidential
electors?
MR. KLOCK: I think that the contest statute can apply in this situation,
if it's applied properly.
JUSTICE ANSTEAD: Okay, does it apply?
MR. KLOCK: Yes.
JUSTICE ANSTEAD: Okay. And it is a contest statute that applies to all
elected officials, does it not?
MR. KLOCK: No. No. But, Your Honor, the problem is, is that you then
can't take the next step. The fact is the court can't change the law.
If the court changes the law, then you run afoul of Section 5 and the
safe harbor --
JUSTICE LEWIS: But you're not suggesting that the interpretation or
construction of a sentence is a change in law, are you? Because the
first time -- if a dispute arises, somebody must say, if the legislature
has written a sentence and two sides don't agree, it seems as though
a court must try to do its best to see what that legislature wanted
done.
MR. KLOCK: But, Justice Lewis, there's just so much baggage the word
"interpretation" can carry on its back before it becomes more
of a change than it is an interpretation. And that's the situation we
have here. And not unfairly to the court; again, the court was dealing
with the situation in front of it. But interpretation, going from 7
days to 19 days, that's a lot of baggage for the word to carry in that
regard.
I think that the Harris decision was bottomed on a number of principles;
common law principles, equitable principles, constitutional principles.
But forget all that, if you want to. If you want to try to go back to
just statutory construction, you have a problem because the interpretation
is sufficiently broad that I think fairly viewed, it constitutes a change
in the law under Section 5 of Title III.
CHIEF JUSTICE WELLS: Thank you, Mr. --
JUSTICE LEWIS: But we're today just looking at 168. That's what I'm
looking at, is the one sentence that seems to be the really dispute
here, and that is whether legal votes were rejected and it would have
made or changed the result or placed in doubt the result.
Now, is it impossible for this court to apply that to the facts that
we have without doing a change in the law?
MR. KLOCK: Yes, Your Honor, because the problem is, is that you have
to create a pile of law to do it. You have to do a number of things.
You have to first find that in a presidential race where you are electing
27 electors, that you can do it on a county-by-county basis. Then you
have to figure out a way of having the contest statute used to establish
a standard when the only standard that applies anywhere for a manual
recount -- which, as we argued before the court previously, was limited
to the situations in 166, which were brought about because of mechanical
problems -- but put that aside. The only basis -- and it's dehors the
common law, obviously -- to have a manual recount is in Section 166.
And that calls for finding the voters' intent, but it also adds three
specific people that are on a uniform basis throughout the state. The
combination of whatever the voters' intent is, plus the three people,
is what is done there.
We go from there to a circuit judge in Leon County, who then, I suppose,
has to come up with a standard that is not articulated in the law. And
as Your Honor pointed out, each time you asked the question, you talked
about legislation in other states. That's where it has to come from.
There is no indication that the Florida legislature intended, by acknowledging
and respecting the power of the state to interpret laws, that the judiciary
would be in a position of having to create the standards that would
be applied in this kind of situation. And that's the problem we have.
CHIEF JUSTICE WELLS: Mr. Klock, we think your time is up.
MR. KLOCK: I'm sorry, sir.
CHIEF JUSTICE WELLS: Thank you very much.
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Mr. Boies, I will give you one extra minute, since Mr. Klock's
answer to that question --
MR. BOIES: Thank you, Your Honor. Let me begin by emphasizing what I think
all three counsel who have spoken today agree on: first is that this court
has jurisdiction over this case; second, that 168 applies to presidential
elections; a third point that I think there is agreement on, and that
is that this court should not change the law. It may have to interpret
the law that exists. It should not change the law.
CHIEF JUSTICE WELLS: Mr. Boies, let me ask you about another part of that
U.S. Supreme Court opinion of Monday that Mr. Klock just referred to,
and that is that the U.S. Supreme Court did say that a legislative wish
to take advantage of the safe harbor would counsel against any construction
of the election code that Congress might deem to be a change in the law.
However, doesn't that also mean that if we're going to have -- take advantage
of Section 5, that all of these contests have to be concluded, as you
told me before when we were here before, by December the 12th? And we
don't have a remedy here that can do that by December the 12th.
MR. BOIES: Your Honor, I think you do have a remedy that can do that by
December 12th. I think, first, almost all of the issues -- in terms of
number of issues, although not in terms of number of the ballots -- are
now legal issues before the court. The 215 ballots in net votes for Vice
President Gore that have already been identified as legal votes by the
Palm Beach Canvassing Board and are not disputed by the defendants --
JUSTICE PARIENTE: Just -- on that, there was, in Governor Bush's brief,
a reference to an audited return that showed 174, and since numbers seem
to be pretty critical here when there is such a small difference, do you
agree with that later number from Palm Beach County?
MR. BOIES: We don't agree to it, but even their offer of proof, which
was submitted after the trial was over and which is where that number
comes from, I think, only related to the number submitted as of 5:00 p.m.
The 215 number is a number that goes through 90 minutes afterwards, when
they completed their count.
JUSTICE PARIENTE: And that information is in this record?
MR. BOIES: That's in the record. It's in the Palm Beach answer to paragraph
60 of the complaint and it was in Judge Burton's testimony at page 278
of the trial transcript.
JUSTICE PARIENTE: And the only reason that was reject was because of
the deadline that this court had set of November 26th for the certification.
MR. BOIES: Yes. And as this court said in Harris, the certification
is one process, but the contest is another process. If those votes existed
and had never been certified or never been coUnited, but we knew those
votes were there, under the contest procedure, they would have to be
included.
JUSTICE ANSTEAD: Let me ask you another question, realizing time is
short. But going back to a couple of the questions that Justice Lewis
asked about the purpose of this particular provision in the contest
statute as far as legal votes not being coUnited or illegal votes being
coUnited, why do you think it would be that the legislature would set
out a totally different scheme for recounts to be decided by local canvassing
boards in one section and therefore have a procedure in place for recounts
and undervotes and that kind of thing, and yet still reserve in a contest
statute allowing a circuit court to do it all over again or to do it
in any case? Does that really -- does that really make sense in an overall
scheme here?
Now I want you to address that question, and then my second question
to you is, why wouldn't we conclude here that at most, all that you
have demonstrated in the trial court is a possibility that there may
be a difference in the outcome, because as you have conceded, no one
has looked at the 9,000 votes that you're talking about. Could you answer
those two questions?
MR. BOIES: Sure. With respect for the reason for 166 and 168, we believe
that 168 was intended by the legislature to promote the certification
process, to get that process done, and that's the responsibility of
the canvassing boards.
The first reason was the after they had done the initial 1 percent,
three-precinct count, they found six votes difference in favor of Vice
President Gore. The canvassing board made the determination that, based
upon that six votes, there was no reason to believe that there would
would be a change in the result of the election, one of the critical
elements of Subsection 168. Now, that issue was tried before Judge Sauls
and he resolved conflicting evidence in favor of the fact --
JUSTICE ANSTEAD: Where is there any finding by Judge Sauls that the
reason that the recount was discontinued in Dade County was because
the canvassing board had initially decided that there would be no merit
to having a recount? Is there such a finding?
MR. BOIES: He does not make that finding. But he does make the finding
that there would not have been a difference in the result, and that
was within his discretion to make that finding because he had conflicting
evidence and he resolved it.
JUSTICE ANSTEAD: Do you agree that in the Third District's opinion,
that they only set out that there was a single reason, a single reason
for stopping the recount, and that single reason was the inability to
meet a deadline?
MR. BOIES: Yes, sir. And I will address that reason as well. But --
JUSTICE ANSTEAD: Help me with the record in this case that we have,
where it shows a contrary finding or holding with that holding of the
Third District Court of Appeal.
MR. BOIES: Well, let --
JUSTICE ANSTEAD: In other words --
MR. BOIES: Yes, sir.
JUSTICE ANSTEAD: -- where would I look in this record?
MR. BOIES: Let me address both of your questions. And so let me begin
with the one that you asked. The canvassing board, it is beyond dispute,
made the decision not to continue because they determined that once
this court had set a deadline of November 26th, that they could not
possibly meet that deadline. Now, I pause here to note that in retrospect,
they apparently made the right decision, because Palm Beach County,
which is a smaller county, was well into their count as of that time
and was unable to meet that deadline. And the law of this state from
time immemorial says that no governmental agency and no person is required
by law to engage in a futile act. That alone is sufficient to uphold
the decision of the canvassing board, because they clearly -- one cannot
say that reasonable mean could not differ as to that decision. As this
court held in Harris, once that certification is done, the responsibility
shifts from the canvassing boards to the courts.
Now, there aren't very many contests. Usually people accept the results
of the canvassing boards. You have a contest only when some party believes
that they've got a legitimate reason for it. And that goes to the second
question that you asked, and that is, why do we believe we've shown
what we've shown? And we've shown the 215 and the 168, and that gets
you up to three hundred eighty --
JUSTICE ANSTEAD (?): You still have to get to the Dade County votes,
do you not?
MR. BOIES: You still do, but at that point you're down to 100 votes,
Hour Honor.
JUSTICE ANSTEAD (?): Well --
MR. BOIES: When you get to the Dade County votes, you're down to 100
votes. And remember, Dade County was finding about one out of every
four undervotes to be a vote.
CHIEF JUSTICE WELLS: But Mr. --
MR. BOIES: Under procedures approved by the court.
CHIEF JUSTICE WELLS: -- Boies, let me -- if we're looking at this through
the protest statute, then it's certain that the only recount, manual
recount that there could be done by the -- under the statute would be
to recount all the ballots. That's specifically what the statute says,
is it not?
MR. BOIES: Your Honor --
CHIEF JUSTICE WELLS: Shall recount, manually recount all the ballots.
MR. BOIES; What the Dade County board had done is to say, before they
stopped on November 22nd, they had decided what they were going to do
was count all the undervotes. We think that would have been an acceptable
--
CHIEF JUSTICE WELLS: But that would definitely be a change in the law,
because the statute says they can only -- if they decide upon a manual
recount, manually recount all the ballots.
MR. BOIES: But I -- I think that's right, Your Honor. I think that you
could interpret the law that way. I think you could also interpret the
law in the sense of saying all the ballots that were requested to be
manually recoUnited. If neither party requested the others to be manually
recoUnited, and if the machine was recording votes, I don't think you
would necessarily, under that statute, have to interpret it that you
would have to do that.
In any event, the court below ruled that the Dade County board had discretion
to make the decisions that it made. One of the decisions that it made,
that the district court below, the trial court below said it had the
discretion to make, was the decision to simply manually recount the
undervotes. And they stopped only because the didn't have time. And
--
JUSTICE ANSTEAD: Is that undisputed on this record; or do you agree
with Mr. Richard, your colleague here?
MR. BOIES: On what?
JUSTICE ANSTEAD: That is that he says that that is not the only
reason that there was not a recount in Dade County.
MR. BOIES: I don't think there's any other reason on the record, Your
Honor. First, Miami-Dade questioned whether to do a manual recount;
they then decided to do a manual recount. They were undertaking a manual
recount; on the morning of December (sic) 22, they said they were going
to manually recount all of the undervotes. They then stopped 12 hours
later.
CHIEF JUSTICE WELLS: Is the transcript of all three of those decisions
by the Dade County Canvassing Board in the record?
MR. BOIES: Is in the record. It is, Your Honor.
JUSTICE PARIENTE: Speaking of time, and going back to what Justice Wells
was asking, in terms of the remedy, and now specifically as to the Miami
Dade votes that you are contesting, what is the time -- we're here today,
December 7th. What is the time parameter for being able to complete
a count of those undervotes?
MR. 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
coUnited in the time available. Obviously, time is getting very short.
We have been trying to get these ballots coUnited, as this court knows,
for many weeks now.
JUSTICE 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 undervotes, but that the proportion of votes, for
instance, may have favored your opponent.
We are now here on December the 7th with December the 12th, 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?
MR. 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.
CHIEF JUSTICE WELLS: Thank you, Mr. Boies. I think your time is up.
We very much appreciate all counsels' assistance in the court's resolution
of this matter. Now, per the instructions at the beginning, if everyone
will remain seated until counsel and the parties have exited the building,
and then I'll -- we ask that you be -- will recede in an orderly way,
and we appreciate very much the order and seriousness with which everyone
has addressed this matter. The court will be in recess.
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