Florida Supreme Court transcript: part 3

continued from part 2

KLOCK: No, sir.

ANSTEAD: ... that is not really correct in the statute, that you have that much time before the certification of the results, in other words, to make that request?

KLOCK: You have the seven day period within which to handle all of the counting of the votes. The initial counting, if you have an automatic recount and if there is going to be a manual recount.
But the other point, Your Honour, that I think is very important to note is that we're not talking about a manual recount on a statewide basis; it's three selected counties.

ANSTEAD: Let me talk about the seven days, too, and ask for your help, and let's work by way of a hypothetical.

Are you suggesting by the language that has this seven day deadline, that if we had, for instance, in Dade County, that the election officials down there, after they'd compiled the vote and everything, and they were the only county outstanding, and that there was gross negligence then, that they all went off on vacation to the islands and just let the election returns sit there, and seven days passed, and eight days passed, and nine days, and 11 — you know, and so on, that the secretary of state, because of that seven day rule then, and the gross negligence of the election officials down there, would simply say, "That's it. Under the language of the legislature, I cannot count the votes from Dade County, the largest county in the state of Florida in the election returns." Is that what the position of the secretary of state is?

KLOCK: I don't believe so. Of course, that's not the situation we're in now.

ANSTEAD: Well, what is the position?

KLOCK: There's a case…

ANSTEAD: When we have a week pass, past the deadline of seven days, we have negligence on the part of the local officials, and they simply have not sent the results up to Tallahassee, what is the obligation of the secretary of state?

KLOCK: Judge, we don't know that there's a matter of negligence. The court's assuming that.

ANSTEAD: No, I'm saying in my hypothetical to assume it's negligence.

KLOCK: Well, we know from case law, if it's gross negligence, you know, if it's a matter of marking up ballots or something like that, that the court has specifically held that that can't be held against the voters.

KLOCK: But, Justice Anstead…

ANSTEAD: What would the secretary of state do? A week has passed, passed the seven day deadline, what would the secretary of state do?

KLOCK: If she hadn't noticed that the Dade County results weren't in for a week, I think, as a practical matter, the secretary of state would be a little bit more pro-active, that if the returns aren't in on a certain day, I'm sure inquiry would be made.

If it was clear to the secretary of state that there was gross negligence involved in not getting them in, she's bound by case law to accept them or, Your Honour, it would be raised in the context of a contest.

But if we could get back, respectfully, sir, to the situation that we're in here, the situation we're in here was not caused by the secretary. The difficulty we have here — all we need to do is to be able to certify the election. Once the election is certified, the contest period can begin. The petitioners are trying to conduct a contest proceeding prior to certification, not for legal reasons, for political reasons.

PARIENTE: How can a contest occur while the manual recount's still going on? As you just said, we don't know whether there is going to be an issue as to the integrity of how the recount was done, so how can that start before the recount, the manual recount, is completed?

KLOCK: Because, Justice Pariente, you have to read all the statutes together. And one of the clearest things when you look at the statutes is the mandatory nature of certain actions that have to be taken by the secretary. Not even the petitioners, Your Honour, could come up with some way of balancing between 166 and 168. And what the court is being asked to do is an extensive amount of legislation. I mean, you're going to have to do away with the seven day rule, you're going to have to abolish 166, you're going to have to do away with the secretary's discretion. And then the court enters the great universe of chad to decide, on the record that you have, whether or not two corners are enough or three corners are enough…

ANSTEAD: Well, I thought you said that the seven day rule does not apply, that the secretary of state has some obligation, if this seven day period passes, to contact the county and now inquire into the circumstances of why the seven days. And if she determines, for instance, that it's just the negligence of the local officials in failing to send the ballots up, that she can ignore the seven day time and accept votes.

KLOCK: Your Honour, I'm not specifically sure what the secretary would do. All I'm saying is the case law says, if it's gross negligence on the part of election officers, that the votes will be counted. We do not have a situation…

ANSTEAD: But you agree the seven day period is not absolutely then?

KLOCK: No, of course it's not absolute. Judge Lewis ruled that there was discretion the secretary had to exercise. And irrespective of how we may interpret 111 and 112, as "shall" or "may," we are operating under the ruling of Judge Lewis.

ANSTEAD: What was the position of the secretary of state going before Judge Lewis, as far as whether or not the seven day rule was absolute?

KLOCK: Your Honour, from looking at the record, it appears that they agreed that discretion of the secretary could be appropriate, that the "may" standard would probably trump the "shall" standard. That's my understanding of the position that he took.

I don't know that that legally is correct; that's the position that was taken.

And consequently, when the order came down, they lived with it. And that order, I might add, was perfectly happy — the petitioners were perfectly happy with that until such time as Judge Lewis ruled that the secretary had not abused her discretion.

WELLS: Justice Shaw has a question.

KLOCK: I'm sorry, sir.

SHAW: If the state of Florida has provided a protest procedure, can the secretary of state exercise her discretion under 102.112 so as to frustrate that procedure?

I'm afraid I don't understand the justice's question exactly. I'm sorry, I don't understand the question.

SHAW: Do you agree that under 102.112 that the secretary has some discretion? That would be your position that…

KLOCK: I would agree, Your Honour, that based on the record as it is, and the agreement of the secretary to be bound by that, she has the right to exercise discretion after she establishes standards.

SHAW: Can she exercise that discretion in such a fashion as to frustrate the scheme in which a protest can be lodged?

KLOCK: No, because the contest is under 168, Your Honour, not under 166.

SHAW: Not a contest, a protest.

KLOCK: With respect to a recount?

SHAW: Yes.

KLOCK: Your Honour, all the secretary can do is — she has the right to be able to establish criteria for determining whether or not a late filing will occur. She establishes those criteria drawn from precedents of courts. She then applied the requests against that and found them to be wanting.

As I said before, Your Honour, the entire problem could be solved if the certification had taken place on time because they had complied with the timing.

QUINCE: But aren't you…

KLOCK: That completely avoids…

WELLS: Justice Quince.

QUINCE: But doesn't that argument really blur the lines between a protest and contest?
Now, under 166, you can contest returns or protest returns within, you know, the 72 hour period or the seven day period under 166. Isn't that a completely different procedure from 168, which is the election contest? And it seems to me that your argument is blurring those two procedure.

KLOCK: No. And I apologise if it is, Justice Quince. I think that's exactly the central issue here.

The procedure with respect to certifying an election is, as has been said by the attorney general, mostly ministerial. What has happened here…

QUINCE: But once the certification is done, isn't that when the contest comes in?

KLOCK: Yes, ma'am.

QUINCE: OK.

But the protest is a different matter. You don't have to certify to have a protest.

KLOCK: We do not have any kind of procedure under Florida law for dealing with a full-fledged contest kind of action prior to certification. That's the difficulty we have here.

And that's the reason why the court is being asked to engage in extensive statutory rewrites, and then the entire issue of how you're going to make judgments with respect to these ballots.

WELLS: Mr. Klock, let me follow up on Justice Quince question. Why wouldn't it be, in this unique circumstance, a better thing to do to wait, and unless there is a specific reason that's going to prejudice Florida's certification to the Electoral College, wait and see to a point and time when the manual recounts are completed?

Allow those amended certifications to be made, and then there will be a point in time in which a determination can be made as to whether the contests in respect to those are going to jeopardise Florida's electoral vote.

KLOCK: Mr. Chief Justice, what you're talking about is making a value judgment as between whether or not the rights of 168 trump 166, on behalf of people. There's no suggestion anywhere here in the record that we have a problem with the voting machines or there was any fraud or anything else. What we're trying to do is to deal with the problem of people who did not follow instructions. The instructions were to put the stylus through the hole in the ballot; they did not follow those instructions.

Now, balanced against that, it's being suggested that the entire contest period should be stood on its head and that the secretary of state loses her ability to conduct her constitutional exercises, the legislature loses its ability. The attorney general, for instance, points out all of the states that have elaborate statutes to make judgments on manual recounts. Well, that's wonderful, except the Florida legislature hasn't done that yet. Is this court to do it?

HARDING: We've had cases dealing with this issue in Florida since the 1800s. And all of them, in some way, shape or form, come about because voters do not follow the instructions.

And in all of those cases that I have read, when you can look at the ballot, even though it is improperly marked and even though the voter did not follow the instruction, but you can tell the intent of the voter from that ballot, that that vote has to be counted.

KLOCK: And Mr. Justice Harding, I would suggest to you that all of those cases that you have seen have been a voting contest. And the difficulty we have here, as I say again, the court is being brought into something it need not be brought into. This is not a legal problem; this is a political problem.

If the voting is certified, everyone can then proceed with a contest. The difficulty is the political problem that is created.

HARDING: How would you proceed, Mr. Klock — that this matter would be resolved? If is challenged, then we would order a recount or some court would order a recount?

KLOCK: Could you do that, yes, Your Honour, that's — but you'd have a record, for instance.

HARDING: Isn't that discretion given to the canvassing board under the statute?

KLOCK: The canvassing board is free — I mean, the manual recounts are going on right now. And I believe irrespective of what this court had said, the manual recounts could go on. They may well be material in a later contest.

It doesn't mean that because someone starts a manual recounting process, that the rest of the Florida statutory scheme stands still and waits for them to come back from vacation of whatever it is they're doing.

And the record shows that, in one case, there was somebody off on vacation for four days. Miami-Dade has just started today, maybe, their count after having had, apparently, hearings every couple of days over the last two weeks. It is now — at this point in time, we are almost two weeks beyond the election.

HARDING: Isn't part of that, though, that the secretary of state said, "You cannot go forward and have this recount."

KLOCK: I think the record shows that no one paid any attention to the opinion of the secretary of state, Your Honour. Clearly, in Palm Beach County they didn't; it's in the record in the circuit court that they didn't pay attention. And as far as Broward County is concerned, I don't know precisely what they did or didn't do.

But the issue here — again, this, of course, completely avoids the issue that has not yet been indulged by the court, although it was raised by one of the justices, is how about the folks in the other 64 counties that don't have the benefit of having their ballots flexed and recounted and dropped on the floor and all the other things that are occurring with respect to the ballots in the three counties that are being counted?

WELLS: Thank you, Mr. Klock.

KLOCK: Thank you.

WELLS: Your time is up.

For the Election Canvassing Commission, Mr. Bryant. Or I beg your pardon, for Governor Bush, Michael Carvin.

Thank you, sir.

CARVIN: May it please the court, as the colloquy today indicates, there is very clear procedure for resolving all the questions that the justices have asked, and that's set forth in the statute.

You set a firm deadline, and you make sure that everybody gets their votes in at the same time, and if there are any problems in terms of voter tabulation or the kinds of questions that we've done, you've got to keep to that deadline so you'll have time to do the election contest after that.

PARIENTE: May I ask you a question? Does this only come up, as far as this interpretation of the seven day deadline, even though counties are wanting to do manual recounts as requested by the voters in that county, because this is a presidential election? In other words, is this requirement of the deadline on one end, going back to what Justice Wells has been asking, created because of the deadline on the other end?

CARVIN: This comes up in all. I mean, there's a firm deadline for all statewide…

PARIENTE: Well, would you think that we would want to, for all time's sake, interpret this statute that if, for example, in a legislative race it is a close race and the unsuccessful candidate has requested a manual recount under the statute and requested it on the sixth day, that we would say that, because that's not an extraordinary circumstances, it's a foreseen circumstance, that we would say, well, the secretary has the discretion to not recognise that manual recount and could declare the other person winner. Would that make sense in any other context than this presidential election?
CARVIN: Oh, I think your case would be a easy hypothetical. If the losing candidate waited six days and gamed the system so that they backed the canvassing board so they couldn't do a manual recount until they requested it, then for that reason alone the canvassing board...

PARIENTE: But the statute allows up to six — until certification is made on the seventh day. So the statute, if somebody was exercising their statutory right within seven days, you're saying that the secretary on the seventh day said, "Too bad. I'm not going to recognise it."

CARVIN: Because it's not a statutory right, with all respect, Your Honour. It's an option that they provide to the counties.

The legislature has not preference for manual recounts as the most accurate way of determining votes, which is why they make it entirely optional. The only right and duty in the statute is the right of the state officials to have the election returns after seven days. That is a mandatory duty.

And they expressly contemplated that all counties, regardless of whether they were conducting manual recounts, would play by the same rules and get their election returns in on time.

PARIENTE: Well, the same rules really don't apply because only certain counties used punch cards, which is really what creates the problems in the three populous counties to the south. That's not the same problem with an optical scanner, correct?
So there's not uniformity even within this state as to the type of voting machine that is used or the procedures that are used in each county.

CARVIN: We have complained about the ad hoc nature of the way in which votes are tallied in differential counties. That is a problem.

PARIENTE: When you say you've complained about it, where has that being complained?

CARVIN: I'm sorry, in federal court, Your Honour. And I'm not trying to introduce that here.

PARIENTE: Let me ask you that question. Is there a constitutional attack on this statute being made?

CARVIN: Well, we don't think you need reach the question, but, yes.

PARIENTE: Was that because you're requesting the federal courts to reach you and you don't think that the state court has it within its jurisdiction to decide whether a statute is being constitutionally applied?

CARVIN: Oh, no, clearly state courts have that power. I'm simply making the point that there's a much simpler basis for deciding this case then going all the way to the U.S. Constitution, which is state law clearly prohibits the release that the petitioner's requesting, because state law makes it quite clear that they have no right to ignore the mandatory statutory deadline imposed upon them by state law.

They seek to rewrite the statutes, create a scheme that serves their personal problems or conveniences, but in doing so, they posit a hypothetical that cannot be found in the statute.

WELLS: Mr. Carvin, let me roll my initial concern, as stated by you, and—tell me when Florida's certification would be in jeopardy if the certification is not made by that date?

CARVIN: Well, it's clearly in jeopardy now.

WELLS: Why is that?

CARVIN: December 12 is the cut-off date.

WELLS: Why is it in jeopardy now?
CARVIN: Because if they're not certified, then there is no way to come to an accurate statewide count. And that, as we've seen over the last 10 days, is an enormous undertaking.

So if we continue to delay the certification process—remember that deadline is not the end of the process for finding accuracy, it is the beginning of the process for finding accuracy.

WELLS: You're referring to the contest under 168?

CARVIN: Precisely.

WELLS: But how can those contests, under these circumstances, be made until the recounts are completed? I mean, why isn't it somewhat like a proffer, that you've got to proffer the evidence in the form of these recounts so we know what is in those recounts and whether there is a proper basis for their to be an amended certification?

CARVIN: Well, there's two problems with that, Your Honour. One is, in court, not only one side gets to make a proffer. And here we're talking only about counties selected by one political party.

So at the end of the day, if we continue to wait until Miami-Dade finishes its recount and Broward finally chooses the standards for determining which ballots it will count, we will not have any better understanding of how many votes were cast and for whom in the presidential election, because we've only looked at a selective subset of the counties in this state.

If you were doing a recount in a municipal proceeding, I don't think anyone would take seriously the notion that, Well, we've had some problems with our machine, so what we're going to do is recount in three of the 67 precincts here, and then we'll know who the winner is.
No, obviously you have to recount or apply the same standards throughout all 67 precincts so you can come to a judgment as to who indeed is the winner.

PARIENTE: Well, was it requested in the other 64 counties?

CARVIN: No. Notwithstanding their devotion to the manual recount as the only means of assessing voter intent in counting all votes, the Democrats did not request all 67 counties.

PARIENTE: Was there something that prevented your client from requesting recounts in the other counties?

CARVIN: Yes. They believe the process is inherently flawed and unconstitutional. But moreover, it doesn't matter if they requested it, because as I...

PARIENTE: Are you asking us to resolve that issue as to—that is, if—even if we said that everyone has a chance or a window period to request a recount in whatever other counties are in question, are you saying that it is the position of—you're representing Governor Bush?

CARVIN: Yes, I am.

PARIENTE: The position of Governor Bush that he would not go along with wanting recounts in the other counties because the process is flawed?

CARVIN: No, Your Honour. I think we should follow the process that's set out in the statutes.

PARIENTE: But I'm asking you that question: Is that—you're saying that recounts weren't requested because there was a belief that the process was flawed.

CARVIN: Right.

PARIENTE: What part of the process was flawed?

CARVIN: Well, as has been indicated, we think the process is entirely subjective, subject to mischief, and most important...

PARIENTE: The manual recount process?

CARVIN: Well, the process, for example, that we were discussing in Broward County, today.

PARIENTE: But is it the manual recount process that's inherently flawed?

CARVIN: Yes.

PARIENTE: And isn't that the exact process that is set forth by — as has been represented to us, as the statutes reveal, in Texas law, for this exact process to take place where there's manual recounts? And that those are preferred over the machine recounts?

CARVIN: I really don't know what Texas law is. I know in Florida, though, there is no preference for manual recounts over machine recounts.

ANSTEAD: But the statute provides the opportunity for a manual recount.

CARVIN: Right, but it requires...

ANSTEAD: So the legislative—if that is the case, then the legislature should delete that from the statute.

CARVIN: No, no, obviously they coexist quite comfortably. It says you've got to get your returns in in seven days. That's the mandatory part of the statute. You have an option to do a manual recount or two other things, if you find that there is a problem. Or you don't have to do a manual recount at all.

PARIENTE: So you wouldn't have objected if the county had completed it within seven days, the manual recount?

CARVIN: Oh yes, no it's—I want to really emphasise the point here, that notwithstanding petitioner's position, the secretary did not express any preference for machine counts over manual recounts. She expressed a preference for timely returns over those that were two or three weeks late, whenever they will come in. There are manual recounts in the certified numbers that she will certify when and if this injunction is lifted.

There is no preference because the secretary, like the legislature, was agnostic as to whether or not you used the machine recount or a manual recount. They made no judgment as to which one was more accurate, which is really the basic flaw in petitioner's argument. They want this court, on the basis of no evidence, to enter a judicial fiat that the only way to discern voters' intent is through manual recounts.
But we do know what the voters' intent is, at least presumptively, because we have certified returns from 67 counties sitting in the secretary's office. Those votes have been tallied and calculated in precisely the same way that every Florida election, up until this time, has been calculated, and no one has ever suggested that it is somehow inherently flawed.

ANSTEAD: What is the purpose, then, of having a statutory scheme that allows for manual recounts at the option of these local canvassing boards?

CARVIN: I assume it's because in some circumstances maybe manual recount, the legislators thought, would be preferable. And they said, "Look, if in your circumstance you want to do this way, go ahead and do it. But you've got to do two things, if that's your preferred course. The first is, you have to do it quick. And if you have problems doing it quick, you need to assign enough people to get the job done."

We understand, obviously, that larger counties are going to have a lot more votes to count, but we also understand that larger counties have a lot more money and resources and staff that they can devote.

ANSTEAD: So effectively, if you're asked on the sixth day to do it, the answer has to be no in a large county because it can't be done.

CARVIN: Remember, Your Honour…

ANSTEAD: Would you just answer that question?

CARVIN: I would…

ANSTEAD: Effectively, if you're asked on the sixth day — that is, the local canvassing board — the answer has to be no because in a large county it can't be done.

CARVIN; I would think that's true, but who is that unfair to? The candidate — the losing candidate who has waited and waited and waited before he even asked that this process begins? Surely if he thinks a manual recount will affect the outcome of the election, it's utterly improbable that that he will wait until the time when the recount can't be done before he even makes the request.

So I don't think that's a glitch in the statutory scheme.
ANSTEAD: Have you researched the statutes in other states to compare them to Florida's?

CARVIN: I'm not aware of whether they're mandatory or not. I know that there's never…

ANSTEAD: No, I'm just asking whether you have researched other states to see whether they have comparable statutory schemes. Have you?

CARVIN: No, I'm not aware of...

ANSTEAD: I mean, you haven't researched other states, is what your answer is?

CARVIN: No, no, I'm…

ANSTEAD: You haven't, OK.

CARVIN: I was thinking…

SHAW: Did I understand your previous answer to be that you would not be interested in opening up this window of opportunity under any circumstances since you believe that the system is flawed?

CARVIN: Your Honour…

SHAW: Was that your answer?

CARVIN: My answer is that anything which departs from the rules that were set before November 7, before the election by the Florida legislature, would be a gross abuse of discretion and impermissible.

And that's why we have deadlines, and that's why we have uniform rules, because we want election contests to be decided, not in this fevered partisan environment where everyone knows that the way they proceed in counting ballots, or whether they use a two-corner rule versus a dimpled ballot, it may well affect the outcome of the election, because that introduces subjectivity and partisanship into it.

And that is why it is very important that we follow the rules that are set forth in the statute that were written by the legislature long ago…

ANSTEAD: But there are also rules in the recount process too, that it's open, and that there be people there for both parties, and that there be an opportunity to observe what happens, and that it is an open and fair system, subject to people's differing opinions but it's not closed?

CARVIN: Yes. And, of course, if that is the preferred methodology. At the end of the day, if you grant the relief petitioners seek, only three counties or four counties will have gone through that open and fair process; 63 counties will not have.

And if petitioners are correct, that machine recounts are somehow inherently unreliable, and for some reason they are disproportionately rejecting ballots with the name Gore on them rather than the name Bush on them, then those people will have been disenfranchised.

The point I'm trying to make is, at the end of this long and arduous journey as we wait for Dade County's returns to come in, we'll be in no better position to know who the true winner is in Florida then than we are today.

And that's exactly why the legislature said, look, here's what you do: Take all the returns in, pursuant to a methodology that we've used for decades; certify those results. If petitioners have the kinds of proof that they assert they have in their brief, then it should be fairly simply matter to show that legal votes illegally were rejected by the machines and it could affect the outcome of the election.

PARIENTE: So you have no objection, then, to these manual recounts to be going on while at the same time a contest is filed?

CARVIN: I have no objection, but I will point out that the law doesn't contemplate superfluous acts. Now, obviously, once…
LEWIS: Wait. Wait. Wait.

You're going back to — excuse me.

You seem to be saying, on one side, that you don't need to go through this process. Then on the other hand, you're coming back in and suggesting, well, it would be improper to go through the recounts. And then you're saying that, no, you don't have to go through the recounts because that's part of the contest process.

I mean, at some point we have to understand which is it. Is it part of the contest? Is it to stop? What's to happen?

Yes. And I would again go back to the legislative scheme, and I've been confusing on this I'll try and clarify it.

What I am saying is that the certification process doesn't, as petitioners have acknowledged, involve the secretary in determining the accuracy of the votes up front. The certification process gives to the county boards the ability to conduct a manual recount so long as they do it in a timely manner.

LEWIS: And what happens if it's not there in seven days?

CARVIN: Well, here we…

LEWIS: Should they stop?

CARVIN: No. What we have here, which is they do have certified returns on file. And obviously, if they can't finish the job, then those are the returns that declare the winner.

LEWIS: What do they do with the recount? Does it stop?

CARVIN: I would think that would certainly make sense, but I don't think the legislature contemplated that eventuality because I don't think the legislature ever contemplated people continuing to count past the time that the votes were tallied.

LEWIS: If it stops, then it cannot be part of the contest then, correct?

CARVIN: Oh, well, what I meant by a contest is what they would do is…

LEWIS: Under 168.

CARVIN: Yes, exactly.


LEWIS: So it cannot be — if it stops, how can it still be part of a contest? That's what I don't understand.

CARVIN: Oh, no, I'm sorry. I think your proof in a 168 would not be, again, on these chads and all of that. I think you would point out, which they claim they can do, that the machines have improperly counted.
LEWIS: But you wouldn't have the recount to prove that, correct?

CARVIN: Well, obviously, if the machines — the margin of error of the machines is so bad that they can't accurately predict the winner, then you would be able to show, under the 168 procedure, that the margin of error is such that it wouldn't affect the — it could affect the outcome of the election.

LEWIS: But you would not have the recount, correct?

CARVIN: Oh, I don't — no, but I don't see — think there would be any problem in producing — just so I'm quite clear, Mr. Justice, that—producing that kind of evidence in an election contest procedure.

You could go through — I mean, as I understand it, we're almost through in Broward and these other places, and instead of having every court in Florida resolving on an ad hoc basis the kinds of ballots that are valid and not valid, you would be centralising that factual inquiry in one court in Leon County. So you would bring some orderliness to the process, and they would be able to resolve that evidentiary question.

One way or another,