Florida Supreme Court transcript: part 1

The transcript from the November 22 presidential election recount hearing at the Florida Supreme Court:

Part 1

Speakers for the Florida Supreme Court:
Chief Justice Charles Wells
Justice Harry Lee Anstead
Justice Major Harding
Justice R. Fred Lewis
Justice Peggy Quince
Justice Barbara Pariente
Justice Leander Shaw

Gore Campaign attorneys:
David Boies, Boies, Schiller & Flexner, LLP
Dexter Douglass, Douglass Law Firm

Former Secretary Warren M. Christopher,
O'Melveney and Myers

Bush Campaign attorneys:
Joe Klock, Jr., Steel, Hector & Davis
Barry Richard, Greenberg Traurig
Michael Carvin, Cooper & Carvin

Paul Hancock,
Attorney For Florida Attorney General

CLERK: Ladies and gentlemen, the Florida Supreme Court. Please be seated.

WELLS: Good afternoon, ladies and gentlemen, and welcome to the Florida Supreme Court. The court is certainly aware of the historic nature of this session and is aware that this is a matter of utmost and vital importance to our nation, our state and our world.

And we ask that during these oral arguments that everyone — we must expect everyone to remain in order during the entire time that we are hearing oral argument today.

We would expect that we will have at the end of the appellants' initial argument a 10-minute recess, and at that point we would ask you to, if you intend to come back for the remainder of the argument, that you remain in the building and really in the courtroom except to use the restroom facilities. And that will facilitate us getting back to the argument immediately after the recess. And also anyone who leaves the building, we are unable to allow them to come back in for the remainder of the argument.

I would also like for the lawyers to have an understanding that the court of course has considered the papers carefully which each of you have filed.

We appreciate the diligence that counsel has taken in getting all of these issues framed and to us.

And since we have a limited amount of time here, we would ask that we get right to the heart of the matter as you see it, because we are fully cognisance of the facts and the procedures of below that have brought you here.

So on the papers that the clerk has presented to me, it is my understanding that Mr. Butterworth's counsel will go first.

Mr. Barkdull?

Please also, counsel, be cognisant of your time, so we respect the times that's been divided here.

BARKDULL: Chief Justice Wells and members of the court, please permit me to introduce Paul Hancock, who will present the argument for Attorney General Butterworth. Mr. Hancock is the deputy attorney general, formerly with the U.S. Justice Department for over a quarter of a century and the major part of his time in the Elections Department.

Mr. Hancock?

HANCOCK: Thank you.

Mr. Chief Justice and members of the court, I'm honoured to be introduced to you by Judge Barkdull.

The constitution of the state of Florida establishes the attorney general as the chief legal officer of this state. As such, he has primary responsibility within the executive branch of government to interpret our laws.

HANCOCK: This court has previously referred to the attorney general as the people's attorney, and I stand here on behalf of the attorney general in that capacity. I would summarise the views of the attorney general regarding the issues before this court in this manner:

Public officials have a responsibility to count and recognise the votes of all Floridians who voted in this presidential election. Factors such as administrative inconvenience, expediency, or the limitations of vote reading machines, pale in comparison to protecting the voting rights of our citizens.

And, of course, the right to vote includes the right to have that vote counted. That right is applicable to all persons in our state, throughout the state, in each geographic region of the state, as well as to our residents who are temporarily absent from the state, outside of our boundaries, such as the men and women of the military.

The Florida constitution begins with a proposition which we submit should guide the resolution of these cases: All political power is inherent in the people. That means that our citizens are the owners of our government and the role of public officials is to listen to their voices.

We do that in part through public elections. The right to vote is perhaps the most cherished right in our democracy. The real parties and interest to this lawsuit are not the presidential candidates nor the parties that support them.

WELLS: Mr. Hancock, excuse me for interrupting you, but let me ask you, are you prepared, or other counsel, and I would really like for counsel on both sides to pay attention to a concern of mine that I would like to lead in here, and that is that we recognise that the election was on November 7 and that recounts have been going on in Broward County and Palm Beach County, and that there is this issue as to whether the recounts were permissible and whether there should be allowed under Florida Statute 102.112 amended certifications based upon those recounts.

And what I am particularly concerned about is what prejudice is there to both the voters whose votes are — already been certified pursuant to that, and the voters whose votes are within the recounted counties, under the total scheme of the state scheme and the federal scheme for the counting of Florida's electoral votes.

It seems from my reading that we have a continuum from November 7 to some point in December. And that's when my concern is, and so I'd like to sort of get this hammered down to that framework.

HANCOCK: Yes, Your Honour, I will address that.

The starting point then is determining what the legal standard is, what votes should be counted, when can a county do a recount and when can it not do a recount, and what are the standards for doing that recount.

And that raises the issue of the conflicting opinions that have been issued by the Division of Elections, of the secretary of state and the attorney general of the state of Florida.

The difference in those interpretations of the law—and I want to say to you from the get-go that the attorney general and the secretary of state are friends and enjoy a cordial working relationship. The differences here are just professional differences involved with what Florida law means.

The view of the attorney general is that the state has a statutory structure that allows recounts in certain circumstances. Those circumstances are described by statue.

A candidate can request a recount, can request a recount in a county. The county officials then have the discretion to determine whether to allow that recount. If they exercise that discretion, it begins, as you know, with a sampling of the votes that were cast, reviewing at least 1 percent of the votes that were cast, to see whether that sample indicates that there may be a problem in the counting. If the sample indicates that there may be a problem in the counting, the county officials, according to the law, have options to select from.

And what...

QUINCE: Is the secretary of state involved at this point of the counting? Once the request is made, does the secretary of state play a part at that point?

HANCOCK: No, Justice Quince, the secretary of state does not. The secretary of state has very narrow authority in the conduct of elections. The law provides that counties conduct the elections. They submit those returns to the secretary of state. In pursuant to the Florida statutes, the secretary of state, nor the state canvassing board, cannot look beyond those returns.
PARIENTE: Is the right to a manual recount a right solely created by statute or is there a common law right that the citizens of the state have to request a manual recount?

HANCOCK: Justice Pariente, citizens don't have the right to request a manual recount or we might be recounting forever. But candidates do have a right, pursuant to the statute, to request a manual recount.

PARIENTE: Well, absent the statute, is there a right that would have existed, for example, prior to 1989, when the particular manual recount statute was enacted, to have requested a manual recount?

And the reason I'm asking that is because we're talking about rights of voters, yet the scheme puts the discretion as to whether to allow the recount, even the very first step, with individual boards. So already you have a situation where there can be lack of uniformity from county to county.

HANCOCK: Yes. And, again, we do have a situation where a substantial amount of discretion is delegated to the counties. That's not unusual among the states.

In fact, the one case I would cite to the court is the Roudebush v. Hartke case that was decided by the United States Supreme Court in 1972, involving the senatorial election in the state of Indiana in which Vance Hartke won. That was a very close election, it triggered — a candidate requested a recount in one of Indiana's 92 counties. That was the issue that went before the United States Supreme Court.
In deciding that case, the United States Supreme Court noted: A recount is an integral part of the Indiana election process and is within the ambit of the broad powers delegated to the states by Article 1, Section 4 of the United States Constitution.

WELLS: Mr. Hancock, let me ask you, if I could refocus on the question that I was asking before, is that, there's the recount provision, which we recognise in the statute...

HANCOCK: Right.

WELLS: ... it gives the counties' canvassing board that opportunity. There's also 111, which—or 112, which says that there is a seven day time period upon which those must be sent to the state. And that was done, as I understand it. But the question really revolves around amended certifications.

HANCOCK: Right.

WELLS: And my question is specifically what is the attorney general's position as to the date in December that Florida's electoral votes would be prejudiced or not counted in the Electoral College if there is not a certification by the secretary—by the Department of State under 103.011? What's the date, the outside date that we're looking at and which puts Florida's votes in jeopardy?

HANCOCK: December 12, Your Honour, is my understanding. The Electoral College meets on December 18. The issue—and we have constitutional law professors here who can address this, but my understanding is it's December 12...

WELLS: OK. Now, if it's December 12, under Title 3 of the U.S. Code in that Section V, it seems to indicate that in order for that December—that six day provision to have meaning, that all contests and controversies concerning the state votes must be resolved in order for the state's resolution to be final.
Now, would you fit that provision of the federal statute into the Florida provision so that we would have some guidance on what is really the prejudice?

HANCOCK: Well, we don't know what contest will arise. I think what this points to is the importance of this court using the full reach of its authority to establish procedures that ensure that this results in a process that, first of all, is fair; that is perceived as fair to the world; and in fact is fair, that it counts the vote of all people who attempted to exercise that vote.

At the same time, in light of the schedule that we face, I think it would be appropriate in the court — and I refer the court to State v. Haskell, a 1916 decision of this court, in which the court expounded on its broad jurisdiction to correct election returns. If it doesn't correct election returns, elections are determined by county officials, not by voters.

So it's important, we submit, that the court use the full breadth of its authority to establish the standards that will judge the counts that are going on, what vote should be counted, perhaps the court should consider how they should be counted and to put the counting officials under some timetable so that...
ANSTEAD: Let me return to a more mundane statutory issue and invite you to tell us what you perceive to be the purpose of the statutory provisions that require the secretary of state to give local election officials opinions about the statutory scheme for elections and election issues, and then bind those officials to follow those opinions. What do you perceive to be the purpose of those statutory provisions and their effects here?

HANCOCK: The purpose, Your Honour, is to provide uniformity and guidance to county election officials. We don't dispute the authority of the secretary of state's Division of Elections to issue those opinions. However, we do suggest that, in reviewing that, the actions of the secretary of state in issuing those opinions, that review here is de novo. It's not merely abuse of discretion, the question is whether she applied the correct standard of law.

And I will, if I may, quote to you. A long time ago, Justice John Marshall talked about the use of discretion in applying it to district courts. And John Marshall was reviewing a subpoena issued in the Aaron Burr litigation and in talking about discretion said that, "But a motion to its discretion is a motion not to its inclination, but to its judgment. And its judgment is to be guided by sound legal principles."
[possible lapse in transmission]
HARDING: If we knock out the seven days, as you are suggesting, and we cut off the time limits, and then we're to set an outside barrier beyond which this section or these sections of the statutes govern statewide election, gubernatorial elections as well, what — they don't have to—I think the absentee ballots from overseas don't have to be counted in those in 10 days under federal law for a presidential election. What do we do with this statute if we reconstruct it as you are suggesting?

HANCOCK: Well, again, Justice Harding, I would suggest that the law needs to be read in its totality, that it's not physically possible under this law — and it's not — it's not surprising that this issue has arisen in our most populous counties, where it can't be done in a week. It's simply, under the statutory schedule, it can't be done in a week.

PARIENTE: Is that really something that we have in the record, that it can't be done, and what is the significance of 7(a) that requires as many county teams as necessary to manually recount? Why — what evidence in the record is there that...

HANCOCK: No.

PARIENTE: … it couldn't be done in a normal situation, understanding here are some claims that there was obstruction? But what evidence do we have that it couldn't be done within a seven day period?

HANCOCK: I don't know that there's any evidence in the record. I think it's intuitive that with this many—this big a task... : To me, to us, to the attorney general, the important part is recognise the voters' rights.

The secretary of state refers to the problem as voter error. I submit to you that if a voter punches a hole in a ballot to indicate their choice, and the chad [the small pieces of paper produced by punches]simply doesn't fall off for one reason or another, that is not voter error. That voter has cast a vote.

WELLS: Mr. Hancock, I think your time…

HANCOCK: Yes, thank you.

WELLS: Thank you very much.

Mr. Rogow?

ROGOW: Mr. Chief Justice, and may it please the court.

A week ago Sunday, the Palm Beach County Canvassing Board, around 2:30 in the morning, voted to do a full manual recount, after having done the initial 1 percent recount and determining that the figures extrapolated could have affected the outcome of the election. And they began that manual recount.

PARIENTE: As a part of your presentation, would you explain what prompted the board to ask for an opinion from the secretary of state?

ROGOW: There was concern on the board, at least from one member of the board, as to whether or not it was proper to do a full manual recount. And so that member of the board posed that question. The board then voted to ask the secretary of state for the opinion. And when the opinion was received, of course, the opinion was that there was not a right to do a full manual recount.

PARIENTE: Prior to that opinion, had there been precedent in Palm Beach County for performing manual recounts in cases other than machine error, such as in close elections? ROGOW: Justice Pariente, I don't know the answer to that question of whether or not full manual recount—certainly, nothing on the scope of this had been required before in Palm Beach County. But there was no question in the board's mind that, given the figures that they had seen, that the full manual recount was the proper decision for them.

They made that decision, and then, of course, the full manual recount was stopped when the secretary of state said that there was no basis for it.

PARIENTE: But was the concern that there was the question of what an error in vote tabulation meant? Or was the concern as to whether the error in vote tabulation could affect the outcome of the election, in requesting this—in looking at the statute?

ROGOW: Justice Pariente, I don't think the concern was so much with what vote tabulation meant as it was with the fact that maybe there could be an argument made that vote tabulation was something other than the kind of error that they were seeing. They were seeing, obviously, in that 1 percent recount that people had voted. And they could see that the chads had been penetrated, and, therefore, they could discern the intent of the voter. And having done that, they decided then to move on to the full manual recount.

WELLS: Justice Lewis?

LEWIS: Mr. Rogow, do you have a suggestion or an interpretation for us to give meaning to the entire statutory scheme? Because we've got the 166, recount, but we also have the 168 section for contesting those results. And if this recount extends up until the eve of the reporting for the Electoral College, then we would then ride out, would we not, the provision for contesting what has occurred during this recount?

ROGOW: Justice Lewis, I don't know if you're asking me that as an officer of the court or as the counsel at this moment for the Palm Beach County Canvassing Board, because I'm in kind of an interesting position. The canvassing board filed this in the nature of an inter- pleader, this initial writ, and we really are not taking a position on the merits, the dispute between the attorney general and the secretary of state. We will follow whatever this court says the law is. And so I want to preface my answer by saying that.

WELLS: I think since you have a limited amount of time that you ought to direct your attention to the issues that your party has and I would ask...

ROGOW: And that...

WELLS: ... one of the other counsel to note Justice Lewis' question and address that.

ROGOW: Yes, Justice.

WELLS: It's an important question.

LEWIS: Did the canvassing board ask for the attorney general's opinion?

ROGOW: No. No.

LEWIS: How did that come about, to your knowledge?

ROGOW: It was provided. I think that a request had been made by other people for the attorney general's opinion, and the attorney general's opinion then, of course, became extant and known to the canvassing board.

I think from the canvassing board's position, the question is this: Does the recount count? Several hundred people have been working thousands of hours, several thousand hours, in doing this recount, Democrats and Republicans. It's being done in a way that is open, absolutely open to the public.

ROGOW: It's televised, as a matter of fact. It is tedious work, but it is being done tenderly by the canvassing board, with care to try to protect the votes of the voters of Palm Beach County.

SHAW: Is there a certain point, Mr. Rogow, when the secretary can cut off the recount? For instance, it if would affect her getting the votes in to the Electoral College to be counted, could she cut off the recount?

ROGOW: I don't think she could cut off the recount on that basis, Justice Shaw. I think that what's interesting here is, of course, the certification which we made after seven days is really only a partial certification, because the absentee ballots are not due until three days later, 10 days after the election.

So the process is an open, ongoing process, and we think that the time, of course, is there to complete the process.

SHAW: Do you think she has any discretion, or are all of her duties ministerial?

ROGOW: Now, Justice Shaw, you...

SHAW: That's the way you see it.

ROGOW: Now, Justice Shaw, you're placing me in an area in which I think I should defer to counsel for the participants.

WELLS: Thank you, Mr. Rogow.

The Broward County Canvassing Board counsel, Mr. Meyers.

MEYERS: Thank you, Justice Wells.

WELLS: Mr. Meyers, let me get directly to the method by which — I know you've raised in your brief that there are some issue as to the standard, and then that's been changed since you filed your reply brief. What I am particularly interested in is the counting that's going on in Broward County. Do we have a situation in which there are certain votes that are going for the vice president and certain votes that are going for the governor about which there is no contest and votes in the middle in which there is a disagreement?
MEYERS: Yes, sir, that's correct.

WELLS: Are those votes being separated so that we know which vote are in the middle?

MEYERS: Yes, they are. They are being held separate. And initially the canvassing board in Broward County had used what we call the two-corner rule. So they went through the ballots and they initially just determined intent based upon two corners of the chad being removed. If they didn't find that, they kept the contested ballots separate. And based upon their decision yesterday, they intend to go back, just for process purposes. They don't want to start applying the new standard now until they finish going through and making the first cut.

PARIENTE: The two-corner rule that you've just announced or stated that the Broward County board is following, was that a standard that was in existence as of the date that this election took place, or is this something that has come up after the fact?

MEYERS: Justice Pariente, this is something that came up after the fact, based upon, as it turns out, what we believe to have been an early review of what the law requires.

PARIENTE: Well, have you—has Broward County before this date done manual recounts? PARIENTE: And if so, what standards did they apply?

MEYERS: I'm not aware of manual recounts, ma'am.

WELLS: Would you address Justice Lewis' question, if you could, as to how the 102.168 contest statute fits into this, where there are amended certifications? And can you contest at the point in time after the amended certifications?

MEYERS: Mr. Chief Justice, what I would prefer to do would be to defer to somebody who could answer that better than I can. What I'd like to try to bring to the court is our perspective in Broward County.

And Justice Pariente, you asked a question that I can answer and I know other people can't, so I'd like to stick to those issues if that would be OK, sir.

WELLS: Thank you.

MEYERS: You raised the provision about the number of counting teams. And the implication, if wasn't directly stated in the secretary of state's brief, is that we could just increase the number of counting teams and use our resources in order to get through this in seven days. That's not true, Justice Pariente. What happens is, we can have as many counting teams as we can find. And in fact, we have a bunch of them in our emergency operations centre. But after the counting teams goes through their decision-making process, all of the ballots then go to a three member canvassing board. And the canvassing board is three members, whether it's a tiny county or it's a county the size of Broward County.

PARIENTE: When you say all the ballots, I thought only the ballots where the question of the voter's intent is — needs to be resolved.

MEYERS: No, ma'am, actually all of the ballots, it's my understanding, are going back there.
What they're doing is they're confirming the vote, and then they're making decisions where there's a contest.

So basically, they're double-checking. They're actually manually recounting every ballot, I believe, 588,000. And then where there is a challenge or a contest, they're actually looking at each of those ballots. They can only proceed as fast as three people can proceed. And in Broward County, the counting teams are far ahead of the three- person canvassing board.

PARIENTE: There was a representation in one of the briefs that counting in Broward County would be completed as today. Is that not accurate?

MEYERS: That is no longer accurate, ma'am, based upon my understanding. That was based upon applying a mechanical two-corner rule. And we're going to have to go back, based upon what we believe is a correct interpretation of the law, to discern the intent of each ballot from the totality of the ballot.

HARDING: Isn't there something unusual about changing the rules in the middle of the game?

MEYERS: I don't think so, Justice Harding. I think the important thing is that we do what's right at the end. And this has been an evolving area since the...

HARDING: But you made a deliberate decision as to how you're going to count them. Did you start out counting them that way?

MEYERS: Yes, sir, we did, but at the same time we kept the ballot separate in the event, as information unfolded.

And, Justice Harding, since that time, we've received direction from both Judge Labarga in Palm Beach County and from Judge Miller, who's handling a case for us down below, both of whom stated that our two-corner rule wouldn't be valid. And that's consistent with our understanding of law.

PARIENTE: By valid, do you mean too restrictive?
MEYERS: Too restrictive, ma'am. Our members of our canvassing board have stated that they can determine the intent of ballots in ways other than the two-corner rule. And, in fact, there are ballots that are not presently being tallied for one side or the other from which they can determine the intent.

WELLS: Thank you, Mr. Meyers.

MEYERS: Thank you very much.

WELLS: Counsel for Vice President Gore will be next.

Mr. Douglass?

DOUGLASS: Mr. Chief Justice, members of the court, I'm here to introduce the speaker today who will argue the case for us, Mr. David Boies from the state of New York.

Mr. Boies?

WELLS: Thank you.

Mr. Boies?

BOIES: May it please the court, let me begin by addressing Justice Lewis' question as to how you reconcile a protest under Section 166 with a contest under 168, and how that all happens within a timeframe that allows both to coexist.

First, if you look at Section 102.111, it talks about having the returns come from the county by 5 p.m. seven days after the election. It then talks about, separate term, the "official returns;" after the official returns are in, you have a certification and then a declaration of the winner.

So you have the returns, you have the official returns, followed by a certification, and then a declaration of the winner.

In this particular case, the declaration of the winner would be under 103.011, which is the declaration of who are going to be the electors.

BOIES: And under the statute, 5614, 101.5614, it talks in subsection 8 about the official returns, including not only the machine count, the initial returns, but also the absentee ballots, which obviously are coming in after the seven days, and the manually counted ballots, which are coming in after the seven days.

So we believe that if you read all of those sections together, what you have is a requirement of the counties to come forward with their returns seven days after the election; that those returns will then be supplemented by manual recounts, by absentee ballots; and then there will be an official return, and that official return will then be certified. And at that point, we believe, 168 contest takes place, if there's going to be one...

LEWIS: How do we know...

WELLS: Go ahead.

LEWIS: What I'm concerned about is the timing.

BOIES: Yes.

LEWIS: Let's assume that the absentees and recounts come to the eve of reporting day and there is insufficient time, just as a matter of fact, to conduct a contest. So then are we not eliminating 168 from our statutory scheme?

BOIES: I think you would be if that happened, Your Honour. I think there are two points. One is I think the same basic standard for the protest is the same basic standard for the contest, except that you don't have to worry about the timing of when the county is...
WELLS: Well, Mr. Boies, let me focus back in following up on Justice Lewis' question. If the counsel for the attorney general is correct and December 12 is the date by which the certification has to be made for the Electoral College, and as I read Section V of the U.S. Code, what that date means is that all of the controversies and contest in the state have to be finally determined by that date. Do you agree with that?

BOIES: I do, Your Honour.

WELLS: OK, in order for them to be conclusive in the Electoral College.

Now, if we have then contest under 168 or we have this protest going on in Broward County, for instance, where they got some votes in the middle, how is it going to work within that time period for the votes to get totally recounted? And then if Governor Bush wants to contest that, for him to get a contest finally resolved or isn't it — now, let me pose my whole question — isn't it something that the secretary of state, as the person who has to do the certification, should separate out those that are uncontested on both sides? And then with the ones in the middle, there would have to be a determination made in the final certification, as to whether there was a — you could get that finally determined or not, and how many votes you're talking about, and whether those votes in the middle would actually cause the election to be different. Do you get my drift?

BOIES: I do, Your Honour, and I think I agree, with maybe one exception, and that is the court talked about the secretary of state dealing with the votes in the middle. I think that under Florida law, those are first counted by the county canvassing boards, and then there is a judicial question as to whether those votes have been properly counted. But it is not — that is not a question for the secretary of state.

I also think that this court certainly has the power to say, "What we're going to do is tell the county boards that you've got this amount of time to complete your recount." And at that point, those votes are then subject to being contested by Governor Bush or Vice President Gore, and those contests then take place in a timeframe that allows everything to be completed by December 12.

So I think it is clearly within the power of this court to say, "In order to meet the date of December 12, you've got to have all of your votes manually counted that are going to be included in this initial certification by a particular date." I do, Your Honour, and I think I agree, with maybe one exception, and that is the court talked about the secretary of state dealing with the votes in the middle. I think that under Florida law, those are first counted by the county canvassing boards, and then there is a judicial question as to whether those votes have been properly counted. But it is not — that is not a question for the secretary of state.

I also think that this court certainly has the power to say, "What we're going to do is tell the county boards that you've got this amount of time to complete your recount." And at that point, those votes are then subject to being contested by Gover