Author: eMediaMillworks, Inc.
Posted on 12/07/2000
Text of the Florida Supreme Court hearing Thursday on the presidential election case, as transcribed by eMediaMillWorks, Inc,:
MARSHAL: Hear ye, hear ye, hear ye, the Supreme Court of the great state of Florida is now in session. All who have cause to plea, 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 v. 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's my understanding, Mr. Boies, that you're going to proceed first.
DAVID BOIES, GORE CAMPAIGN 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.
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 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.
And 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 in 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?
Would you please address that? And I would like the other counsel to address that.
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 an issue that needs immediate attention.
WELLS: I understand that jurisdiction.
My question is appellate review, where that is not expressly given in 168.
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.
WELLS: 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?
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.
WELLS: But 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 the court should not 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?
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're only going to apply this law to nonpresidential 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.
BOIES: 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 7.
WELLS: You would agree that when the United States Supreme Court has said that there is plenary power in the appointment of electors in the state legislature, that that means that they've got full power?
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 the 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 7. So I think there is a 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 7, there was an election on November 7.
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 received and were not, or in one case, were received and should not have been.
JUSTICE R. 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. We can look to other states. New Jersey has one 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 exist, 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 counted. Why would that not exist in other counties? And why would this not require if any judicial relief that be applied in a statewide undervote?
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 v. 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 counted.
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 - these were optical ballots, not punch card ballots - that they were optical ballots that had been defectively marked. That is, they had not used a No. 2 pencil, had been circled. But in some way, they had been defectively marked so that 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...
WELLS: Well, Mr. Boies - Justice Harding.
JUSTICE MAJOR HARDING: But why does that not have statewide application?
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.
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 - or potential federal and state constitutional questions, and that the vote would be in jeopardy.
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's never been a suggestion under the state law that you should have a recount where it was not requested.
HARDING: Go ahead.
WELLS: Mr. Boies, the 168, in its present form, has only been there since 1999.
Now, this court said in 1981 that there's no common law right to contest votes, that judicial restraint should be exercised, because of the fact that elections are political questions. We said right before that that courts would get involved if there were allegations of fraud. Now, we lowered that threshold somewhat in Beckstrom, by saying that courts would get involved if there was substantial noncompliance with election laws.
But 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 needs to be a count, because there were legal votes left out - not going through the canvassing boards, but legal votes left out - 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.
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.
BOIES: You had 215 ballots that are not included in 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 undervotes, 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 undervote in punch card equipment.
In fact, the court found - the 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 PEGGY QUINCE: 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, 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?
BOIES: We demonstrated, first, that there were a large number of ballots that were not counted by the punch card machines.
We demonstrated, second, that when you have a very closely 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. Ahmann, who testified that you had to have a manual recount in a close election.
QUINCE: 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 counted. If we're looking for accuracy, which is what has been the statement from day one, then 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, then the 17 other counties that also used punch cards?
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 interpretation, not only of the current version of 168, but prior versions of 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.
QUINCE: Well, we've never had a statewide contest, have we, in this state?
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 statute doesn't...
QUINCE: Are you saying, then...
BOIES: ... make a distinction.
QUINCE: Is there a connection, then, between the protest - these are the - 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?
BOIES: No, I think, Your Honor, a party could have brought a contest without having gone the 166 route.
QUINCE: But not of the ballots?
BOIES: No, I think you could contest the ballot. Even if you had not protested 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 in 166 protest would be a condition.
WELLS: However, further...
BOIES: However, we did both.
WELLS: Where there has been a protest, isn't 168 and 166 - aren't they 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. It 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?
BOIES: Because, Your Honor, the 168 statute clearly provides for the canvassing board to take certain actions. In 168, it's 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 the votes.
WELLS: Justice Shaw?
JUSTICE LEANDER SHAW: Can we return for a moment 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?
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. Ahmann, who is their witness, testified that you needed to have a manual review of the ballots. Mr. Burton, who is 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 counted 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 any board has looked at these issues, they've found ballots, they found votes.
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?
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 it in this or any other state.
Second, that under one 168, it's an abuse of the discretion standard. Again, we don't think there's any case that says, in terms of what a ballot means, whether a ballot does or does not reflect the 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.
WELLS: You are in your rebuttal time, but Justice Harding has one question.
HARDI NG: Talking about looking at the ballots, I know they were introduced into evidence before the trial judge, and I probably asked this question as - 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?"
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.
HARDING: But nobody asked the court for permission to do that or showed him one of those ballots?
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.
WELLS: You're deeply in your rebuttal time, Mr. Boies.
DEXTER DOUGLASS, GORE CAMPAIGN ATTORNEY: I'll forego my time. I was going to address the remedies, in any event, and the court addressed the other question.
WELLS: Thank you, Mr. Douglass.
DOUGLASS: I'll reserve...
WELLS: Mr. Richard?
RICHARD: May it please the court, I'm Barry Richard, on behalf of George W. Bush and Richard Cheney.
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 v. Blacker. Yet, when it got to the Supreme Court, counsel for Mr. Bush forcefully argued McPherson v. 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?
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.
WELLS: Do we have the right to review the action of the circuit court?
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.
HARDING: But the legislature, having plenary power, said that the circuit court will make that determination.
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 v. Blacker is because in fact this court said the same thing in an earlier McPherson case, which Justice Wells referred to, McPherson v. 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 Votomatic machines are used.
JUSTICE HARRY LEE ANSTEAD: Well, 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?
RICHARD: I think that this court has limited appellate jurisdiction over...
ANSTEAD: And that the McPherson case, the federal McPherson case, not this court's McPherson case, does not affect that appellate jurisdiction?
RICHARD: No, sir. 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...
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.
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 labors, 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?
ANSTEAD: 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.
RICHARD: Well, I think that the trial court theoretically admitted the ballots. And the ballots were...
ANSTEAD: Theoretically or did the - the trial court either did or did not admit the ballots into evidence. Did the trial court admit those into evidence?
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. There was not a substantial dispute over whether or not the court could technically admit them into evidence.
ANSTEAD: Did the trial court examine those documents?
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...
JUSTICE BARBARA PARIENTE: 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 section that says: "If the circuit court is to 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 section mean in the context of this litigation?
RICHARD: Your Honor, this brings us back to McPherson v. Blacker. 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.
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 of 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.
LEWIS: Well, excuse me, counselor, you seem to be suggesting then that you can never have a contest unless what has occurred has already been through the protest process under 166. What would counsel do to circumstances that come to light later?
For example, 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 from the polls; that would not come to light during a protest.
Are you suggesting that those kinds of circumstances, then, cannot be addressed under a contest?
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 in memorial 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.
ANSTEAD: Well, we have a ruling here - do we not? - from a district court of appeal, 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.
ANSTEAD: 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?
RICHARD: The district court of appeal determined not to continue the count for two reasons.
RICHARD: The district court of appeal determined not to continue the count for two reasons. The first reason was that...
ANSTEAD: The district court of appeal or the canvassing board?
RICHARD: I'm sorry. The canvassing board determined not to continue the count for two reasons. The first reason was that after they had done the initial 1%, 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 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...
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? Was there such a finding?
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.
ANSTEAD: Do you agree that, in the Third District's opinion, 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.
RICHARD: Yes, sir, and I will address that reason as well. But after...
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. In other words, where would I look in this record?
RICHARD: Yes, sir. Let me address both of your questions. And so, let me begin with the one that you ask.
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 26, 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 in memorial 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 men could not differ as to the decision.
ANSTEAD: hold that thought for a moment, because in our earlier decision interpreting the statute with reference to the filing date, we in essence said that the secretary of state could refuse a filing 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?
RICHARD: No, sir. But this court also said you must have votes by November 26. 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.
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...
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 "sufficient to change or place in doubt the results of the election." "Place in doubt" is a different standard than "a reasonable probability of different result." Do you agree with that?
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.
PARIENTE: So your position is that, in the contest, that errors or undervoting, as we've been referring to it as - 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?
RICHARD: Well, my position is two-fold. The first one is...
PARIENTE: Is that one position, that this election contest statute does not vest within the judiciary the authority to review votes that were properly cast but never counted?
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...
PARIENTE: Let's stay with Dade County, where it's not disputed that 9,000 votes have been the subject of request since November 9 have never been counted.
RICHARD: 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.
PARIENTE: But we know that in the first 20%, that 434-something, more or less, legal votes were recovered. We'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 were the exact same votes that were looked at in Palm Beach County and Broward County, should not be looked at in a contest action?
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.
WELLS: Let me get an understanding of what your position is that we're talking about when we say "an undervote." Have these ballots been sent through the machine?
RICHARD: They have, Your Honor.
WELLS: I got from reading somewhere that what we're defining, or what's being argued here as an undervote are ballots which have not been manually counted. Is that...
RICHARD: That's correct, Your Honor. The record indicates that every one of these votes were 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.
LEWIS: Well, that goes to the rejection issue.
LEWIS: You would agree with 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?
RICHARD: Yes, Your Honor, it's the same...
LEWIS: Let's go to the next statement. Let's take it one step further.
If that 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 doubt as to the result in the election?
You look to see, as to first, just whether there's enough votes that were not counted, not as to who they would be for. Do you agree with that standard?
RICHARD: I don't agree that it applies under these circumstances, Your Honor.
LEWIS: The standard is what I'm looking to. 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, if that's not been established?
RICHARD: Well, 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 counted any dimples.
But having said that, assuming that you're going to make a decision, you use the standard that the Pullen case used and that this court, by reference to Pullen, 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 no manual recount. And what Mr. Boies is suggesting is that everyone of those counties, simply because they had a punch card system, must automatically do a manual recount.
LEWIS: I'm not speaking of the standard of evaluating the ballot.
RICHARD: I'm sorry.
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?
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.
ANSTEAD: Well, if you accept that first prong, that Justice Lewis has asked you if you have agreed with 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 that - 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.
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 that preliminary step.
RICHARD: No, sir. I emphatically disagree with that.
ANSTEAD: All right. And do you disagree on the basis of applying that standard? Or do you disagree...
RICHARD: No, sir.
ANSTEAD: ... on the basis that they haven't met that standard?
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 Votomatic machines are inherently unreliable. And so, in essence, what Mr. Boies is saying to this court is any time there's a Votomatic 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...
WELLS: Justice Shaw has a question.
RICHARD: Yes, sir.
WELLS: And then I think your time...
SHAW: I think it's in line with Justice Anstead's question. Seemingly early on, Judge Sauls set a threshold and said 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 had not been met.
Is that a correct...
RICHARD: That's correct, Your Honor. That's correct.
SHAW: ... statement.
What did you see the threshold as being?
RICHARD: Well, it's being 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 voters' 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.
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 ejection of votes. And it seems to me that the statute, Subsection 3, says "rejection of votes which may put in doubt the result of the election." And so, that is not that you have demonstrate that the election really - that I'm going to win, but it is in doubt that I did not win.
Isn't that a different standard? I'm really having a problem with the reasonable probability of a different result standard that Judge Sauls talks about versus the rejection of votes that would put the election in doubt. Could you please explain the difference in the two?
RICHARD: I don't think it's necessary to distinguish, given the razor-thin record we have in this case.
RICHARD: 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 that was used in this case.
WELLS: We better give Mr. Klock a chance...
RICHARD: If I may, Your Honor, there's just one other issue, too, that I think we cannot lose sight of.
WELLS: I want to warn counsel, we're going to observe our time limits here, so you and Mr. Klock proceed, but...
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, it 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.
WELLS: Mr. Klock?
JOE KLOCK, JR, BUSH CAMPAIGN ATTORNEY: 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 6 of the slip that says, "Since Section 5 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 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...
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 has certain fixed dates or a calendar in place, and that we have interpreted the statute to be certain that the votes are counted and finally counted before that fixed date comes into play? Why doesn't that take care of that?
KLOCK: Justice Anstead, I don't think that there's...
ANSTEAD: I don't know that you're saying that it doesn't. I'm asking you.
KLOCK: Justice Anstead, I think the problem is, there's no way of reading Harris. I mean, Harris was not limited to dealing with presidential election contests.
KLOCK: Obviously, the Supreme Court of Florida was dealing with issues that had to do with the Florida election code.
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?
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 then deal with other elections. I think the difficult...
ANSTEAD: Well, 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?
KLOCK: Your Honor, I don't think that there really is. I think Harris is a substantial departure. If the test...
ANSTEAD: Tell me where there is a separate scheme for considering the outcome of the electors for president. This proceeding is a good example of this. And that is, that we've had a contest filed under circuit court; do you agree that the contest statute applies to the selection, the election, by the people of Florida of their presidential electors?
KLOCK: I think that the contest statue can apply in this situation, if it's applied properly.
LEWIS: But does it apply?
LEWIS: OK. And it is a contest statute that applies to all elected officials, does it not?
KLOCK: No, but, Your Honor, the problem 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.
LEWIS: But you're not suggesting that the interpretation or construction of a sentence is a change of law, are you?
KLOCK: The problem, Justice Lewis is...
LEWIS: The first time, if a dispute arises, somebody must say, if the legislature has written the 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.
KLOCK: But Justice Lewis, there is just so much baggage the word "interpretation" can carry on its back...
KLOCK: ... 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 seven 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 of 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 if fairly viewed, it constitutes a change in the law under Section 5 of Title 3.
LEWIS: Today, just looking at 168 - that's what I'm looking at, is the one sentence that seems to be the real dispute here, and that is whether legal votes were rejected, and it would have made or changed the result or place in doubt the result.
LEWIS: Now, is it impossible for this court to apply that to the facts that we have, without doing a change in the law?
KLOCK: Yes, Your Honor, because the problem 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 the common law, obviously, to have a manual recount is in Section 166. And that calls for finding the voter's intent. But it also adds three specific people that are on a uniform basis throughout the state. The combination of whatever the voter's 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 judiciary 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.
WELLS: Mr. Klock, I think your time is up. Thanks very much.
Mr. Boies, I will give you one extra minute since Mr. Klock's answer to that question exceeded...
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.
WELLS: Mr. Boies, let me ask you about another - the 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 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.
BOIES: Your Honor, I think you do have remedy that can do that by December 12. 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 have already been identified as legal votes by the Palm Beach canvassing board and are not disputed by the defendants.
PARIENTE: 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's such a small difference, do you agree with that later number from Palm Beach County?
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 p.m. The 215 number is a number that goes through 90 minutes afterwards, when they completed their count.
PARIENTE: And that information is in this record?
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.
PARIENTE: And the only reason that was rejected was because of the deadline that this court had set of November 26 for the certification?
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 counted, but we knew those votes were there, under the contest procedure, they would have to be included.
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 counted or illegal votes being counted.
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 remedy make sense in an overall scheme here? 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?
BOIES: With respect to 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.
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 good 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 that 215 and the 168, and that gets you up to 383...
WELLS: You still have to get to the Dade votes, do you not...
BOIES: You still do, but at that point, you're down to 100 votes, Your Honor. When you get to the Dade County vote, you're down to 100 votes.
BOIES: And remember, Dade County was finding about one out of every four undervotes to be a vote, under procedures approved by the court.
WELLS: But Mr. Boies, if we're looking at this through the protest statute, then it's certain that the only recount, manual recount, that could be done under the statute would be to recount all the ballots. That's specifically what the statute says, is it not?
BOIES: Your Honor...
WELLS: Shall recount manually, recount all the ballots.
BOIES: What the Dade County board had done is to say, before they stopped on November 22, they had decided what they were going to do is count all the undervotes. We think that would have been an acceptable...
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.
BOIES: But 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 recounted. If neither party requested the others to be manually recounted, 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 they didn't have time.
WELLS: Is that undisputed on this record, or do you agree with Mr. Richard, your colleague here?
ANSTEAD: That is, that he says that that is not the only reason that there was not a recount in Dade County?
BOIES: I don't think there's any other reason on the record, Your Honor. First, Miami-Dade questioned whether to do the manual recount. They then decided to do a manual recount. They were undertaking a manual recount. On the morning of December 22, they said they were going to manually recount all of the undervotes. They then stopped 12 hours later.
WELLS: Is the transcript of all three of those decisions by the Dade County canvassing board in the record?
BOIES: It's in the record. It is, Your Honor.
PARIENTE: And 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 7, what is the time parameter for being able to complete a count of those undervotes?
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.
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, of 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. And that we're now here on December the 7, with December the 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?
BOIES: Two points, Your Honor: First, there's 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. If they didn't ask for a recount, and, therefore, there should be recount anyway, even if they didn't ask for it.
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 we ask that you 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.
MARSHAL: Please rise.