Florida Supreme Court transcript: part 2

continued from Part 1

BOIES: But, Your Honour, the secretary of state's function is a ministerial function. She is not going to be the person who presides over the contest.

The contest, if there is one, is going to be a contest that is going to be before the circuit court, and, ultimately before this court.

HARDING: However, Mr. Boies, that brings us to the "may ignore" language in that statute. And wouldn't you have to agree that the "may ignored" does — "may" does connote some degree of discretion? And why isn't that discretion set on the basis of that she may ignore them if the acceptance of the amended certification would prejudice the other voters whose votes would be certified because they were already there and get timely counted in the Electoral College?

BOIES: I think, Your Honour, you could say — and this is not that different from what we have argued — that as long as the manual recounts will not impair the final certification in time to permit the selection of electors by December 12, that those manual recounts must be included. That is, the secretary of state's discretion, to the extent that she has any, would be discretion to say, "I need to have the results by this particular date in order to be sure that the results are included by December 12."

QUINCE: If that's the case then, should we be trying to determine also this whole issue about the faulty chads? Because I would assume that that would be a part of any contest that would be made of the recount. But if we're worried about this time limit, is that something that we should be concerned with now, and is it squarely before this court now?

BOIES: Your Honour, I think it is squarely before the court and I think the court must be concerned with it now, because I think that given the particular deadline, the wall, that is set up by the federal provision, that this court needs to act expeditiously to set the standard, because we don't think we have time...

QUINCE: And where would we find case law or whatever to tell us what this standard should be?

BOIES: Your Honour, I think you find it partly in Florida law, but I think you can also find it from the laws of other states that have dealt with these very same questions.

If you go back into Florida law, the test has always been the intent of the voter and that is written into Section 166, the manual recount provision. It talks about first the counters and then the canvassing board looking at the ballot to determine the intent of the voters.
QUINCE: So if that's the case, would it be your — would you be telling this court that any mark made by the voter would be evidence of that voter's intent and should be counted as such?

BOIES: I think so, Your Honour, and that is really what, for example, the Dilatant decision that we cite in our papers from the Supreme Court of Massachusetts, or the Illinios cases that we cited, or a number of the other cases that we cited have expressly held. That question has never been before this court directly, but that has been dealt with in the cases from other jurisdictions that we've cited that we would hope the court would find persuasive.

In addition, we cited, perhaps for obvious reasons, the statute from Texas, which provided statutory guidelines for defining that.

PARIENTE: Is the uniformity of how these manual recounts are conducted essential to the integrity of the process or also to the constitutionality of the statute?

BOIES: Your Honour, I think it is important to the integrity of the process. I think if you had very wide variations you could raise constitutional problems.

PARIENTE: Well, for example, if right now in Palm Beach County chads that are not detached at all, but I guess are these dimpled chads, are being counted, but in Broward County they're not counted, then does that say that one vote is being counted in one county and not in the other? If that's an argument, then what do you say to Governor Bush's argument and secretary of state's argument that for those counties that did not have manual recounts but also have punch cards, because I guess not all counties have the punch cards, that if those votes did not get manually recounted that that is unfairly giving certain counties a greater voice in this election than other counties?

BOIES: The first thing, Your Honour, is that any candidate could have requested a manual recount in any county, so that the manual recount provision is something that by statute is given to the candidates. And wherever there has been a manual recount requested, the counties have gone forward, and indeed some of the results that have already been certified have been results that included manual recounts.

PARIENTE: Do we know in Volusia County whether they used — what standard they used? Is that in the record?

BOIES: I do not believe that is in the record, Your Honour.

I would say that I think that it — for the reason that you point out, it is quite important that this court be as specific as possible in terms of the standard to be applied so that we will have uniformity. I also think, Your Honour, that if you concluded that it was essential to avoid unfairness or some kind of overweighting of one county's vote over another county's vote, this court has within its equitable power, to have a statewide recount, if you concluded that that was necessary.

WELLS: Well, along that line, I take it then if this court should hold that the 72 hour — the seven day period was not specifically enforceable, then you would say that there should be a window of opportunity for both sides to request recounts in additional counties?

BOIES: I think the court has the power to order that if it believes…

WELLS: Well, what is your position on it?

BOIES: Your Honour, we don't think that's necessary, because…

WELLS: So would you try to strictly enforce the 72-hour provision in 166?

BOIES: Well, the 72-hour provision in 166 had already passed by the time that the seven day period had passed...

WELLS: But the certification had not.

BOIES: But the certification had not, Your Honour. And it was for that reason that Vice President Gore informally, obviously, he didn't have the power that this court has, but informally proposed, as the court may or may not be aware, that he would be prepared to accept a statewide recount.

We are not urging that upon the court. But certainly that is something that we have indicated that we would accept. And we believe the court has the power to order that or to order, as the court suggests, a window…

QUINCE: Well, how do you think a statewide recount would impact on the whole idea of getting these things done before December 12, is it? And aren't we just adding another layer if we order a statewide recount?

BOIES: You could be, Your Honour. However, since the recount takes place county by county, it will proceed in parallel.
And since the most populous counties are the ones that are already under way, we believe that those recounts — it would be practical to do those recounts if the court felt it to be desirable.

SHAW: What would be...

WELLS: Mr. Shaw?

SHAW: What would be this court's authority to open up this window of opportunity when it has not been requested within the timeframe?

BOIES: Your Honour, that was the hesitancy on my part in answering the chief justice's question. I believe that the broad equitable power that this court has under the Constitution to assure that the election results really reflect who got the majority of the votes or a plurality of the votes would enable the court to do that.

The deadline has passed. I think particularly if you had a situation in which both candidates were prepared to accept that, you would have a situation in which the court would have the power.

SHAW: In the answer to the previous question, you indicated that you thought the secretary could set a final date to certify, provided — if it would interfere with her getting the vote in to the Electoral College on time.
SHAW: What would be her burden to justify this? Could she just say, "I need 10 days to get the vote in," and arbitrarily set that, or could she say, "I need 30 days," and completely close it out?

BOIES: Well, Your Honour, this court is, I think, experienced with reviewing the exercise of discretion in lower courts. And I think that when all is required is a ministerial act of preparing the papers to declare the winner, I would think this court would hold that that did not require very much time.

WELLS: Well, you keep referring to it as a ministerial act, but under 103.011 doesn't the secretary have a duty to protect Florida's electoral votes by getting the certification made?

BOIES: Yes, Your Honour. And what I meant to be saying was that, in order to get that certification made, she needs to have enough time to make that certification. But the fact that the certification is a ministerial act doesn't mean it's not important. It simply means that it's an act that, in our view, can be done relatively quickly, that she doesn't need five or 10 days to do it.

WELLS: Thank you.

You're in your rebuttal time.

BOIES: Thank you, Your Honour.

WELLS: And so, I think the time has now arrived when we would take our 10-minute recess.

I would announce, Mr. Hancock, that the marshal says that the clock went off three-and-a-half minutes too soon for you, so you will have that amount of time of rebuttal.

Thank you. And we'll be in recess for 10 minutes.

[Recess]

CLERK: Please be seated.

WELLS: We'll now hear from the counsel for respondents. And I believe Katherine Harris is the first respondent, represented by Mr. Klock.
KLOCK: Thank you, Mr. Chief Justice. We are also representing the canvassing board and Commissioner Crawford, who is here as well.

WELLS: That's the Elections Commission Canvassing Board under Chapter 102...

KLOCK: Yes. And for ease of confusion, perhaps, Mr. Chief Justice, we can refer to it as the commission.

I think if I could start with something that I think is a point that needs to be addressed. I believe that the problem that is created here really, and as the questions of the court go back and forth you can see it, the difficulty that we have here is not really a legal problem, it's a political problem.

We have a two-tiered process in Florida as far as election returns are concerned, and that has to do with, first, the county and the certification of ballots, and the second is the contest. And most of what you are being asked to deal with today is the problem that is created by the contest.

And if you think about it, it creates an enormous number of problems as far as the court is concerned, a number of which have been addressed by the different justices. But if we start out from the point that what we have here, the secretary has certified the first election returns that came in; then in between that time and Saturday, when she probably would have certified along with the commission, the overseas ballots, the stay was entered by the court and naturally is respected by both the canvassing board and by the secretary.

But the fact of the matter is that, until such time as the certification is made, the process of contesting the election cannot stand. The question raised both by the chief justice and by Justice Lewis, which is what is the impact of the two statutes, is very clear.

Mr. Boies said that, you know, it's all kind of one thing and you can really handle it one way or the other, but that's not true. For instance, the whole issue of the overseas soldiers' ballots can't be resolved until such time as the election returns are certified and a challenge can be made as to whatever standards are being used to not include those ballots.

There are a number of other things that can't occur until that happens.

And then the suggestion that the Supreme Court can set a date, although they're not willing to even suggest to you what that date should be, comes back to the point of what is it that they really need to have happen here.

For the secretary to be successful, all that has to occur is that the court lifts the stay and affirms or simply lets sit Judge Lewis order. For the petitioners here to succeed, a number of things have to occur.

WELLS: But Mr. Klock, let me get you to my concern.

KLOCK: Yes, sir.

WELLS: The concern that I have is that it's not—we have a long- standing policy out of courts of this state, that say that the real parties and interests here are the voters. Now, what I want to know is that what—and if this 112 has a provision which says that some voters votes may be ignored.

And what I am concerned about is, what is the boundaries upon which the secretary or the commission could exercise its discretion and have those voters ignored. And I pose to you that in this particular presidential election, doesn't it revolve around the Electoral College and the fact that the prejudice that is involved here is the prejudice of not allowing Florida's votes to get counted?
KLOCK: Well, Mr. Chief Justice, the beginning point here is that there are 6 million voters, of course. And the focus here is on 72,000 of them in three selected counties.

The attorney general started out by saying that the attorney general's position is that all the votes in the state of Florida be counted. But that of course is not what is under way at this point.

The problem with respect to the electoral votes in Florida only occurs if the status quo is maintained, if the votes cannot be certified, if the contest procedure cannot begin.

WELLS: Well, would they have to be certified today?

KLOCK: Well...

WELLS: Under the federal scheme, is there a mandatory certification today?

KLOCK: Well, Mr. Chief Justice, it's governed by Florida law, as far as certification is concerned.

WELLS: But what I'm concerned about is the ramifications under the federal statutes, which, as your opposition says here, is December 12, or six days before December 18.

Now, what I want to know is on what date does the secretary take the position that her duty to certify those votes is going to be jeopardised? And what is the basis of that jeopardy if the votes aren't certified on X date?

KLOCK: Respectfully, Mr. Chief Justice, the secretary is governed by the Florida statutes.
She is mandated to certify the election results seven days after the election and then to pick up the overseas ballots later.

Now, the question that you're asking, I can't exactly answer, because what you're now balancing is the right of the counting process versus the right of the contest process. Your Honour, I don't know how to answer that question.

WELLS: What I'm concerned about is the rights of those voters who may not have their votes counted if we don't honour the recounted votes and the rights of all the voters who might have their rights denied if the certification doesn't get in within the time limit and on the basis that it will be accepted under Title V of the 3 U.S. Code.

KLOCK: But, respectfully, sir, at this point and time, the only bar to that is the stay order that has been entered by this court. If the stay order is lifted, the votes can be certified. Once the votes are certified, then a contest can take place, if anyone wants to take a contest, and that may have to be done on an expedited basis.

But the fact of the matter is...

KLOCK: I'm sorry, sir.

WELLS: Go ahead.

KLOCK: The fact of the matter is, is that all of the relief that is being sought here by these folks is basically relief that should be in the context of a contest when it's possible to have a record.

A lot of the questions asked by Justice Pariente that have to do with record kinds of facts, there are no answers to because there, of course, is the most fluid of records in this case.

WELLS: Haven't the local canvassing boards followed the statutes in regard to having a request for a recount, and then making a count for three precincts or 1 percent, and then making a determination that on that basis a manual recount would follow?

KLOCK: Justice Harding…

HARDING: Haven't they followed the statute?

KLOCK: Justice Harding, what the statute basically says is, you're supposed to certify seven days after the vote is taken. If there is going to be a request — if the secretary has discretion, which Judge Lewis, of course, found that she does, then that discretion has to be exercised either to permit or not permit late filings.

Reasons were given to the secretary. She sent a letter out. She asked for the reasons. They provided the reasons by 2 p.m. on the day after, on Wednesday, I believe. And then she promptly responded after applying them against a set of criteria that she had developed to exercise her discretion.

PARIENTE: When did she develop those criteria?

KLOCK: You're asking me as a matter of fact, Your Honour? Starting within probably an hour after Judge Lewis entered his decision, she asked for input on the kinds of criteria that would be appropriate for her to exercise her jurisdiction — her discretion.

PARIENTE: Is that rather unusual as for — way for an agency head to come up with decision in this state, to just come up with something within a few hours, as to whether to allow something or not allow something?

KLOCK: Well, Justice Pariente, I was kind of refreshed because the agency had actually asked for legal advise on it and what the legal standards would be for her to properly exercise her discretion, and she was pushing against a deadline. So I considered it excellent, frankly.

PARIENTE: But she didn't really exercise her discretion. What was said was that a reason to — that she was not going to recognise as a reason for late filing manual recounts being conducted in accordance with 166. That was no discretion exercise. It was in accordance with her prior legal decision that recounts that were not based on machine errors were not going to be allowed, and that was what she announced the day before.
KLOCK: Well, Your Honour, the decision — the opinions that come out from the Division of Elections, Mr. Roberts' group, is not exactly the secretary. The secretary is the one that had the obligation under the statute to exercise her discretion in this case.

And what she basically did was, she looked at the various criteria in challenging an election, and she looked at other criteria as well, and she said that a manual recount that is undertaken solely to solve voter error is not the kind of thing that is sufficient to allow a breakdown of that deadline scheme.

PARIENTE: All right…

KLOCK: That was the reasonable exercise of her discretion.

PARIENTE: Is the secretary saying that the reason that these manual recounts were not going to — or are not going to be allowed is because they're too late; that is, they were not in within seven days after the election?

KLOCK: Well, two things, Your Honour. First, what she was saying is…

PARIENTE: Is that number one?

KLOCK: Well, as you know, Volusia County complied, with 200,000 voters. In three days they did the recount. And…

PARIENTE: So we have within the state's recounts one county that has counted those votes by hand, correct?

KLOCK: That is correct. And, Justice Pariente, as well, the secretary and the canvassing board have no right to go beyond the certificate that comes from the canvassing board. And Volusia County did a manual recount, irrespective of what the secretary may think legally that she — that the board had the right to do that. Once those returns are certified, the secretary — neither the secretary nor the canvassing board can go behind them.

So this entire problem that we have here today, irrespective of whether you buy into the concept that the secretary has the right to establish standards and has the right to exercise her discretion, which we believe she does both under the case law and as a result of the order she was responding to from Judge Lewis, the fact is this problem could have been resolved if the people asking for a manual recount, right or wrong, had completed the manual recount within the time period set forth, as they did in Volusia County.

PARIENTE: So the secretary, then, would have counted those votes within the totals, if they had been submitted by November 14 at 5 o'clock?

KLOCK: Neither the secretary nor the canvassing board has the power not to, Justice Pariente. They would have to do that.

Now, you asked the question earlier as to whether or not there's any history as far as Broward County is concerned. Since of course there's not a record, I can't respond there, but there is one case which is the Broward County v. Hogan case, where the issue went up to the 4th District Court of Appeal on whether or not the canvassing board's decision not to conduct a recount was within their discretion, and they held it was. So I know at least on that one occasion that they did not exercise their right to conduct a recount.

And you have to understand that the position of the secretary simply has to do with her understanding as to how the statutes are written. If you go back to the '88 race between Senator Mack and Lieutenant Governor McKay, the issue there was the problems that had arisen with the mechanical voting machines. That is the reason why the statutory amendments were created.

And if you look through the statute — and taking a respectful exception to the position of the attorney general — wherever you see tabulation, they're basically referring to machine or electromagnetic, or however it's phrased, kinds of review of returns and not actual counting, which is referred to differently.

KLOCK: But the position of the secretary is, if you look at those statutes, you can't simply pull the one subsection with respect to manual recounting out and pretend it's its own section. The fact of the matter is, is that the procedure is that if you have an automatic recount, which of course is done mechanically, you can then ask for — the candidate and the party, not a voter — can ask for a manual recount. The manual recount, you have to go through the 1 percent and the three precincts.

ANSTEAD: Does the secretary, though, play any role in determining whether or not there shall be a manual recount in any county?

KLOCK: Absolutely not, sir.

ANSTEAD: And so who has the authority and responsibility for that?

KLOCK: The canvassing board of the county has the responsibility in response to a request from a candidate or a political party to conduct a manual recount, which is this test.

ANSTEAD: Well, under the circumstances that we have here then, is it, in essence, the secretary of state, who has no authority to determine that, overruling a decision by the proper body that has the authority to do that, to do it. Isn't that what the net effect of this is?

KLOCK: To the contrary, Justice Anstead…

ANSTEAD: Well, if the secretary is saying, "I'm not going to count the recount" that started very late in the process and at a time in a large county where effectively the recount could not be completed before the seven days were up, isn't that the net effect?

KLOCK: Justice, I don't know that the recount couldn't be done in that period of time. And of course, we have no trial record to know whether the recount could be done in that time…

ANSTEAD: Don't we also end up sort of discriminating between small counties and large counties.
If we take Dade County, for instance, and Okaloosa County, clearly there is going to be a vast difference in the time that it takes Dade County to do that manual recount compared to a small county. Would you agree?

KLOCK: Justice Anstead, yes. May I continue?

ANSTEAD: Yes.

KLOCK: The fact of the matter is, the Florida legislature has all of this in front of it. It has an election code that understands that there is voting, that there's automatic recounting of voting, and that there are provisions for manual counting. They have considered all of that; it is part of the scheme. It has to be done in seven days. There is nothing…

ANSTEAD: How do we know that they considered this specific issue with reference to a recount that has not started, for instance, until six days after the election, and that they contemplated that in mandating that everything be in in seven days? How do we know that they considered that?

KLOCK: Well, Justice Anstead, I'm sure they probably didn't consider the fact that someone would commence a recounting when it was…

ANSTEAD: Well, the scheme allows for that, does it not? The scheme allows for a request for a recount very late in the process.

KLOCK: If you are permitted to initiative something at any point and time, and it has to be turned in at a certain time, that is the same basic rule that I had in high school with term papers. You can start the term paper the night before, if you want to, but it is unlikely that you'll be able to turn it in the next day when it's due.

ANSTEAD: So by giving that right to initiate the recount at that time, that really is an illusory right. In other words…