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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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COURT OFFICIAL: Hear ye, hear ye, hear ye. The Supreme Court of the
Great State of Florida is now in session. All who have cause to plead,
draw near, give attention and you shall be heard. God save these United
States, the Great State of Florida, and this honorable court.
Ladies and gentlemen, the Florida Supreme Court. Please be seated.
CHIEF JUSTICE CHARLES WELLS: Good morning and welcome, once again, to
the Florida Supreme Court, where we will have oral argument this morning
in the case of Gore versus Harris. And as an introduction, as we did
when we had oral argument in this court approximately 10 days ago in
this case, we welcome the visitors here. Because of the limitations
on time, it is absolutely necessary that we maintain order in the court
at all times. And we ask further that, at the end of the argument, that
counsel be allowed to leave the building, together with their parties,
prior to the time that any of the visitors leave the building, and then
hold all interviews outside the building.
Once again, counsel, we are in need, because of the limited time, to
get right to the issues at hand. And so -- I believe, it is my understanding,
Mr. Boies, that you are going to proceed first.
MR. DAVID BOIES [Gore attorney]: Yes, Your Honor. Thank you. May it
please the court, my name is David Boies and I represent the vice president
and Senator Lieberman.
CHIEF JUSTICE WELLS: Mr. Boies, let me start right off. 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 versus 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.
Now, once again, no counsel has argued that case to this court. But
I want to know from each counsel its importance here. 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 explicit gives this court that power,
or a court that power, which it has not done in respect to presidential
electors in 102.168?
And secondly, even if 102.168 is read to implicitly apply to presidential
electors, why is it not judicial review given to the circuit court and
not this court, since the only means by which there is a right to appellate
review in Florida is through the state constitution?
Now, would you please address that? And I would like the other counsel
to address that.
MR. BOIES: Yes, Your Honor.
First, with respect to whether the appropriate forum is the District
Court of Appeal or is this court, the District Court of Appeal has,
of course, certified this issue as a matter of great public importance
and a issue that needs immediate attention.
CHIEF JUSTICE WELLS: I understand that jurisdiction. My question is
appellate review, where that is not expressly given in 168.
MR. BOIES: We would say, Your Honor, that under 168, this court has
the power to review both directly because it has been certified up and
under this court's mandamus power, which we've also alternatively put
forward in our brief.
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| Court
jurisdiction |
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JUDGE HARDING: Where is it -- where do we get our right
to review the appellate review? From the rules and from the Constitution.
And doesn't that create a federal question?
MR. BOIES: I don't think so, Your Honor, because what you're doing is
you're reviewing, and reviewing in an ordinary judicial interpretation
way, the statutes of this state. That is, I don't think the Constitution
of the United States in any way means that the legislature has to sit
both as a legislative body and a judicial body just because an election
of presidential electors is involved.
CHIEF JUSTICE WELLS: Why isn't this like sovereign immunity, where
courts only have such power to resolve disputes and claims that is expressly
given to it by the legislature, where, if the legislature in this state
says courts are not to decide claims in excess of $100,000, those are
matters that are taken to the legislature in a claims bill? Why isn't
this analogous to that?
MR. 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.
Incidentally, the manner of appointment, not the time of appointment.
The time of appointment is something that is reserved for Congress,
and we would suggest that Congress has set that time, and that time
was November 7th.
CHIEF JUSTICE WELLS: You would agree that when the United States Supreme
Court has said that there is plenary power in the appointment of the
electors in the state legislature, that that means that they've got
full power.
MR. BOIES: Well, Your Honor, I think they have the plenary power to
determine the manner of the selection. I don't think they've got plenary
power to determine the time of choosing because that under the United
States Constitution is reserved to the Congress of the United States.
And the Congress of the United States has selected the time of choosing,
which was November 7th.
So I think there is distinction between the time that the electors have
to be chosen and the manner that they have been chosen.
The legislature of this state, of course, selected the manner in which
electors were to be chosen, and that manner was by direct election by
the people. And pursuant to that decision by the state legislature and
the decision by the Congress of the United States that the time of that
selection was to be November 7th, there was an election on November
7th. And we think that is the issue that is before the court now, which
is a contest of that election, where we have identified separately five
groups of ballots that we believe either should have been received and
were not, or, in one case, were received and should not have been, under
specific Florida state law.
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| Rejecting
legal votes |
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JUSTICE FRED LEWIS: If we accept this, your jurisdictional
position, we get across the jurisdictional issue, the concept of rejection
of legal votes is somewhat concerning. And we can look to other states.
New Jersey has a similar, although not identical -- and the application
becomes pretty clear when individuals are prohibited from tendering a
ballot.
However, it becomes less certain when there is something with
regard to how that ballot is read. Here you're challenging, it seems,
a category of undervotes, and
that's not the same as one person coming to the precinct seeking to vote.
If the category exists, it seems as though it must exist statewide. If
we have undervotes in one location, and those are
considered, then you've demonstrated that there's legal votes that have
not been coUnited. Why would not exist in other counties, and why would
this not require, if any judicial relief, that be applied in a statewide
undervote?
MR. BOIES: I think there are two questions there. Let me try to address
them separately. The first question is whether a rejection of legal votes
applies to the undervote category, or whether it only applies when somebody
comes to vote and is turned away. I think going back to 1917, in Darby
against State, this court has looked at the rejection of legal votes category
as meaning where somebody has come, submitted a ballot, but for some reason
that ballot has not been coUnited. In the early days it was often that
the X was on the wrong side of the paper or underneath the elector's name,
or maybe it was circled instead of crossed out. And in each case, this
court held that that was a rejection of a legal vote where the intent
of the voter could be made
clear.
Jumping from the early days to the most recent case, which is the Beckstrom
case, in that case the court looked at ballots that -- these were optical
ballots, not punch-card ballots, but they were optical ballots that had
been defectively marked; that is they had not been used a No. 2 pencil,
they'd been circled, or filled in a name, but in some way they had been
defectively marked so they could not be machine read. And this court held
that those ballots could not be rejected.
So I think that in terms of what constitutes a rejection of legal votes
under 168 --
JUSTICE HARDING: Mr. Boies?
CHIEF JUSTICE WELLS: Justice Harding.
JUSTICE HARDING: But why does that not have statewide application?
MR. BOIES: Your Honor, I think that it does have statewide application,
if anybody contests ballots other than in the particular categories that
we have contested ballots.
JUSTICE HARDING: But Judge Sauls, in his order, referred to the opinion
of the attorney general that indicated that if this type of result happened,
that there would be serious potential of federal and state constitutional
questions and that the vote would be in jeopardy.
MR. BOIES: Your Honor, I think there are two points to that. First,
if merely having a manual recount in some areas and not in others would
make the election defective, then this election would already be defective
because there were manual recounts in a number of counties that were
included in the certified results of the secretary of state.
Second, with respect to the attorney general's opinion, I think that
opinion was pointed to the point that if a manual recount was requested
and received in one place and requested and not received, pursuant to
state law, in another case, that would involve a disparity. I don't
think that opinion addresses the situation where you have a request
in certain counties but no request in other counties. There has never
been a suggestion under the state law that you should have a recount
where it was not requested.
CHIEF JUSTICE WELLS: But Mr. -- go ahead. Mr. Boies, the 168, in its
present form, has only been there since 1999. Now, this court said in
1981 that there is no common law right to contest votes; that judicial
restraint should be exercised, because of the fact that elections are
political questions. We said in (Borden ?), right before that, that
we would get involved, courts would get involved, if there were allegations
of fraud. Now, we lowered that threshold somewhat in Beckstrom by saying
that we would get involved, the courts would get involved, if there
was substantial noncompliance with election laws.
But aren't 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
MR. 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 coUnited. You had 168 ballots
in Dade County that were coUnited 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 undervotes,
you find ballots that can clearly have a discernible intent of the voter
found from them, and yet they are not coUnited.
This is a situation in which the evidence is clear and undisputed, that
there are voter errors and machine errors that create this undervote
in punch-card equipment. In fact, the court found, District Court, the
trial court, found at page 10 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."
This is a situation --
JUSTICE QUINCE: Well, what do you contend, then, is the standard that
you have -- that we have to apply to this in order to get a recount?
There are two issues here. One is whether or not you demonstrated you
were entitled to a recount of those 9,000 votes, and the other issue
is whether or not you would actually win the contest
MR. BOIES: Right.
JUSTICE QUINCE: -- which I think are two different issues. So what is
the standard to apply to the first one? That is, are you entitled to
a recount? And what did you demonstrate to the trial court that you
contend to us demonstrates that entitlement?
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Requiring
a manual recount |
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MR. BOIES: We demonstrated, first, that there were a large
number of ballots that were not coUnited by the punch card machines. We
demonstrated, second, that when you have a very close election, you have
to have a manual review of those ballots in order to have an accurate
tally. That was not just our expert; that was their expert, Mr. Amon (sp),
who testified that you had to have a manual recount in a close election.
JUSTICE BARBARA PARIENTE: Why wouldn't that apply to all the other counties,
at least the punch card counties, where there are undervotes, and those
votes also haven't been coUnited? If we're looking for accuracy, which
is what has been the statement from day one, then why haven't -- why isn't
the request made and why wouldn't it be proper for any court, if they're
going to order any relief, to count the undervotes in all of the counties
where, at the very least, punch card systems were operating? In other
words, is there something different about Dade, Broward, and Palm Beach,
and their use of the punch card than the 17 other counties that also used
punch cards?
MR. BOIES: I think the first difference is that that's where ballots were
contested. That's where first a manual recount was requested, and that's
where ballots were contested. And throughout
the interpretation not only of the current version of 168 but prior versions
of the contest statute, this and other courts have looked not at the entire
type of ballot that may have been involved, but only those ballots that
were actually contested by a party.
JUSTICE PARIENTE: We've never had a statewide contest, have we? In this
state?
MR. BOIES: Well, actually back in 1916 in the gubernatorial race, there
was an attempt to bring a contest by mandamus to this court. But in the
modern era -- I think the court is right -- you have not had a statewide
contest, but the --
JUSTICE PARIENTE: So are you saying then --
MR. BOIES: -- doesn't make a distinction.
JUSTICE PARIENTE: Is there a connection, then, between the protest --
these are the one -- you contested these ballots through
the original protest. So, do you have to have done that in order to bring
a contest? A party could not bring a contest without having gone under
Section 166 previously?
MR. BOIES: No, I think, Your Honor, a party could have brought a contest
without having gone the 166 route.
JUSTICE PARIENTE: But not of the ballots?
MR. BOIES: No, I think you could contest the ballots, even if you had
not protested the ballots, I think 168 and 166 are alternative remedies,
and I think this court so held the last time we were before it. That those
are alternative remedies, and I don't think a 166 protest would be a condition.
JUSTICE WELLS: However, where there --
MR. BOIES: However, we did both.
JUSTICE WELLS: Where there has been a protest, isn't 168 and 166 -- aren't
inextricably linked? I mean, what we've got is that you bring the complaint
within five days after the protest has been completed by the last canvassing
board. The party defendant in the action is the County Canvassing Board
and the Election Canvassing Board. Seems to me that that statute now,
since 1999, contemplates an evaluation of the County Canvassing Board
if there has been a protest. Why is that not true?
MR. BOIES: Because, Your Honor, the 168 statute clearly provides for the
canvassing board to take certain actions. In 168, it's a protest, or --
er, excuse me -- a contest of the election, and there is no discretion
or other responsibilities, given the canvassing board there.
The contest period is a period that, as I think this court last held when
we were before it, is designed to allow any candidate to challenge judicially
the vote, and it provides alternative approaches. One approach is, of
course, misconduct. That's subsection (a). But subsection (c), which is
what we're providing, simply talks about the rejection of a sufficient
number of --
JUSTICE SHAW: Can we return --
MR. BOIES: -- (legal?) votes.
CHIEF JUSTICE WELLS: Justice Shaw.
JUSTICE SHAW: Can we return for a moment to Justice -- to Judge Sauls'
order. He makes certain findings. For instance, he finds that there
was no credible statistical evidence and no other competent, substantial
evidence to establish by a preponderance of a reasonable probability
that the results of a statewide election in the state of Florida would
have been different. Do you see that as a finding of fact or a finding
of law?
MR. BOIES: Well, Your Honor, I think that it's a mixed question of law
and fact to the extent that it relates to the factual issue . For example,
at page 442 of the transcript, Mr. Amun (sp), who was their witness,
testified that you needed to have a manual review of the ballots. Mr.
Burton, who was their witness, Judge Burton, who was their witness,
testified that they were able to identify 215 ballots where they could
clearly ascertain the intent of the voters that had not been coUnited
by the machines. We have 9,000 ballots in Miami-Dade that are alleged
-- that have not been registered by the machine that have never been
manually reviewed. Every time --
JUSTICE SHAW: But when you --
MR. BOIES: -- any board has looked at these issues, they've found ballots.
They've found votes.
JUSTICE SHAW: But when you put on experts and the judge listens to these
experts and then he makes a determination based upon that, normally
isn't that a question of fact that --
MR. BOIES: It is, Your Honor, but here the court expressly based its
conclusion on three errors of law. First, that you have to do a statewide
recount, which we think there is no support for in this or any other
state. Second, that under 168 it's an abuse of discretion standard.
Again, we don't think that there is any case that says, in terms of
what a ballot means, whether a ballot does or does not reflect a voter's
intent, that is something that, in the judicial proceeding of a contest,
discretion resides in the canvassing board. And third, that in order
to even look at the ballots which are already admitted into evidence
in the case, you have to show a reasonable probability that you will
change the election before you even look at the ballots. And, again,
we think that is inconsistent, first with the standard in 168 which
says "or place in doubt," and is inconsistent with the way
a trial goes, which is that you look at the evidence before you reach
that conclusion.
CHIEF JUSTICE WELLS: You are in your rebuttal time, but Justice Harding
has one question.
JUSTICE HARDING: Talking about looking at the ballots, I know they were
introduced into evidence before the trial judge and I probably asked
this question as a -- well, I was going to say "old," but
as a former trial judge 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"?
MR. 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 HARDING: And but nobody asked the court for permission to do
that, or showed him one of those ballots?
MR. 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.
CHIEF JUSTICE WELLS: You're deeply in your rebuttal time, Mr. Boies.
MR. DOUGLASS: (Off mike.)
CHIEF JUSTICE WELLS: I'm sorry?
MR. DOUGLASS: (Off mike.) I'll forego my time. I was going to -- (off
mike) -- in any event, and the court -- (off mike) -- the other witnesses.
CHIEF JUSTICE WELLS: Thank you, Mr. Douglass.
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