Florida Supreme Court transcript: part 4

continued from part 3

And I would urge that the court not, after the election has been held, change the rules by which the election should be conducted.

WELLS: Mr. Carvin, I thank you. We should let Mr. Richard have his time, if he is going to use it.

CARVIN: One final point, he also represents ...

WELLS: Right.

CARVIN: ... Mr. Bush, and I just did want to bring the court's attention very quickly, if I could to 3 USC, Section 7, which makes it clear that the federal courts — federal law will not allow this court or the Florida legislature to change the rules of the election after the election has taken place, to avoid precisely the evil I have been discussing, which is that there will be ad hoc decision making that could be influenced by subjective or partisan concerns. Thank you.
WELLS: Thank you, Mr. Carvin.
Does Governor Bush have five more minutes for Mr. Richard? OK, thank you, sir.

RICHARD: May it please the court, when all is said and done, when questions posed by this court have been asked and answered, we come down to a single, final issue, which is this: What the appellants are asking this court to, and, in fact, what the court must do in order to arrive at the conclusion that they seek, is read a statute that says that returns must be filed by a date and time certain as though it said, "may be filed;" to read a statute that says that the secretary of state may accept late filed returns, as though it says, "must accept late files returned;" to disregard a statute that says that the secretary of state's opinion as to election matters is binding upon all those officers and agents within the election system; and to disregard the well-established and long-standing doctrines regarding clearly erroneous standard and implied repeal.

WELLS: Would you address the question that was posed before, that if we stop or if you have the seven-day cut off, do recounts stop at that point, or do recounts continue to be used as part of the contest?

RICHARD: Well, I think the recounts must stop if the seven-day cutoff occurs, unless the secretary of state in the exercise of the discretion that the Florida legislature has given her, determines that there is rationale reason for them to continue.

It is the job of the secretary of state, it has been reposed in her by the legislature and two constitutions. The United States Constitution and the Florida Constitution, in unusually explicit language, have delegated that decision, not to the state of Florida, not to the courts of the state of Florida, but to the legislature of the state of Florida.

RICHARD: And the legislature of the state of Florida has reposed that authority in the secretary of state.

Now, in order for us to do anything else, this court would have to disregard the most fundamental principles of separation of powers and do what this appellant — these appellants are asking, to step into the shoes of both the legislative and the executive branches, to rewrite these statutes, and to begin the process, which I suggest to this court is never-ending, of sitting as a determiner of an ultimate arbiter of the minutiae of facts that go into the election process.

WELLS: Justice Quince?

QUINCE: Yes. Would you agree that the parties, the party, meaning the political party, and the candidates have a right to request a manual recount? Correct?

RICHARD: They have a right to request it, although, interestingly, their request has no meaning under the statutes. It's entirely within the arbitrary discretion of the canvassing boards.

QUINCE: All right. And assuming that the canvass board says, "Yes, we will do this," how do you square that statute with the seven days? If in fact — supposed it's asked the very day after the election, yet for whatever reason it cannot be done, completed, by the seventh day. How do you read these two statutes together? How do you make sense of it?

RICHARD: Somebody, whatever the date may be, whatever it may be, there's going to be a date. It's to the legislature to decide what that date is.
And if somebody fails to reach it, some agency of the state of Florida must decide whether or not there was a rational, acceptable reason for failing to do so. The Florida legislature, which two constitutions have given that power to, has decreed that the agency that shall do it is the secretary of state, not the courts.

QUINCE: And what are the guidelines for the exercise of what you see as that discretion?

RICHARD: Well, the legislature has established no guidelines. The guidelines that this court has established, as long as institutional memory exists, is whether or not the exercise by that state agent is clearly erroneous. And I suggest to this court that the appellants have given this court no basis in this case for finding that the secretary of state's decision was clearly erroneous. That's the issue.

And whether or not history ultimately looks kindly upon what we do here, I believe, will depend upon whether we have abandoned those principles of law and statutory construction and separation of powers that we have adhered to for so long.

PARIENTE: Does the statutory scheme contemplate that there be initial returns first filed within a certain period of time?

RICHARD: Well, the statutory scheme contemplates that there will be only two things, one set of returns filed seven days by 5 o'clock, seven days after the election, and a second set of returns mandated only because the federal law takes precedence over the states and because — only to the extent that there's a conflict, the state must therefore comply with it.
The suggestion by the appellants…

PARIENTE: But the secretary of state cannot certify official results until she receives the absentee ballots, and the official results also include manually counted ballots. Don't we also have to look at those portions of the statute and read them to come up with a logical hole in this case?

RICHARD: Justice Pariente, I would suggest that that is not the statutory scheme that the legislature given us. The suggestion by appellants that there can be continuous certifications and supplement certifications is not what the statute says. If you'll read the statute, it says there is one certification mandated by 5 p.m. seven days after the election, and that's the only one.

The only reason there's a second one for overseas absentee ballots is because the federal Congress has stepped in, as they have the right to do, and has said that the states must allow that. But only to that extent.

WELLS: Mr. Richard, your time is up. Thank you very, very much.

RICHARD: Thank you, Chief Justice.

WELLS: And on behalf of Mr. Butler, Mr. Mardenborough?

MARDENBOROUGH: Mr. Chief Justice, may it please the court, Your Honours, I'm here representing a voter, and I'd like to spend the next few minutes talking about what this entire process has really meant not from the voters in South Florida's perspective, but what it really means to the voters in the other 63 counties in the state of Florida.

And the first thing that I'd like to clear up is, Justice Parienti, you asked a question before that said something like, could the voters have asked for a recount? And they couldn't. There is no right under Florida statute that would allow the voters to ever ask for a recount under these circumstances. Now, unfortunately, we spent the last hour and a half to two hours, and certainly the last few weeks, listening to everybody trumpet the rights of the voters. But the rights of the voters aren't what this is about. This is about the crafty use of a statutory scheme in an attempt to skew election results. And that's just not appropriate.

The legislature set up a statutory scheme that puts two different levels of challenges to election returns. That's been talked about now for a while. The first part is the protest period. The protest period is a separate and distinct thing from the contest.

PARIENTE: But the protest can be asked for by any elector qualified to vote in the election.

MARDENBOROUGH: That's absolutely true, but that's not true when it comes down to the manual recount provision. If you look at subsection 4 of section 102.166, that provides only that a candidate, a political — well, in fact, when it's a person being voted for, it's just a candidate or a political party that can ask for a manual recount. A voter cannot ask for a manual recount.

PARIENTE: But they can — they have a right to protest.

MARDENBOROUGH: Well, they can ask — they can do the other portions of the protest provisions, but those do not include a manual recount right.

PARIENTE: Well, that's what you're — since section 1 was here before section 3 and 4, and since there were manual recounts in the state of Florida before 1989, we must assume that the right to protest carried with it a right, if the court decided, to have a manual recount.

MARDENBOROUGH: Well, if a court decided to have a manual recount, that may be true. But there's certainly not a right for a person, a voter, to go in and ask for a manual recount.
Just as you pointed out, subsection 4 was added later, but the legislature specifically restricted who could ask for it. Under the normal principle, though, that when a legislature identifies certain parties that can do something and they omit other parties…

SHAW: But here…

MARDENBOROUGH: …they appear to mean it.

SHAW: The canvassing board has authorised it, has it not?

MARDENBOROUGH: Where?

SHAW: Hasn't it authorised a manual recount?

MARDENBOROUGH: It is authorised manual — I'm sorry?

SHAW: We are passed the request period the canvassing board has authorised the manual recount.

MARDENBOROUGH: That's true, in the counties that we're talking about. But there was a request made in all of those counties by one of the statutorily permitted people within the 72 hours. Although some of these counties have just now made a decision, they were asked to do this two weeks ago or 10 days ago.

But the problem here is the voters in the rest of the state of Florida couldn't do that. And we believe that that's probably not constitutional. We believe that it violates the equal protection rights of all of the people in the other counties in the state of Florida, because their right, to the extent that it is provided by a statue, to have their ballots looked at to see whether they made a complete punch through their punch card is dependent solely on where they live and whether or not they're lucky enough to have a candidate or political party asked to have somebody look at their cards.

And I understand that Governor Bush may have had good reasons and he may not trust the process and may not like the manual recounts. However, his decisions shouldn't affect the rights of the voters. Again, I think it was said earlier, the real parties in interest here are the voters, but they can't even ask for it.

PARIENTE: Is it your position that the right to have a manual recount should be open to any county where that decision is made by the county canvassing board?

MARDENBOROUGH: I'm not sure if I understand your question.

PARIENTE: Aren't you saying now that — the way that you're saying — you're raising a constitutional attack on the fact that voters do not have the right to request a manual recount. Is the remedy then — what is the remedy you're seeking? And if you sought it within this…

MARDENBOROUGH: Well, I need to be completely candid here. Because we were an intervener, that wasn't specifically asked for in this case. That has been addressed in Leon County Circuit last Friday, and that decision of Judge Clark has been appealed. I'm not asking you to rule on the constitutional issue.

What I'm pointing out, though, is that the scheme as it exists is unfair. And one of the things that it really comes down to is, if you look at the difference between a protest and a contest, you can find some fairness to take care of that. And here is why. If there is a protest, somebody goes to the local canvassing board, and says we want to pick in our little area, we think we can change the votes in this little part of the state, we think that in Palm Beach County we can change the votes. But that doesn't take into account that there may be a lot of changes that would happen if you did it through the rest of the state. It's a completely local decision that has statewide ramifications.

The legislature in its wisdom said these protests are going to have to be done — at least the results are going to have to be done within seven days. They said that the results have to be certified within seven days.

Now, we happen to take a different position on whether or not those manual recounts could go on.
It may be that the legislature intended that manual recounts can keep going, but they're of no use in that certification process. They may become evidence at some point in a contest.

The difference — and this is a fundamental and a critical difference in this case — is that when somebody is contesting the election, as it's been discussed before, they would be doing it in a Leon County Circuit Court because the statutes recognise that if an election is going to deal with or affect more than one county, it shouldn't be local, it's going to come up here and a judge here is going to have to make that ultimate decision under the case law that's been set forth by this court as to whether or not the results would change — whether any ultimate findings would change the results of the election.

That would mean that a judge wouldn't only be looking at: Did you end up getting a few more votes in a few select counties, chosen by a political party? But it would also take into account a consideration as to, well, what if that same standard had been applied to the rest of the state? If we got some more votes by checking punch cards in the heavily Democratic parties, what would have happened if the same thing had happened in the other counties?

And that's a factor that a judge could take in a contest, an election contest. And that's exactly why we believe that the Florida legislature provided for both a protest provision and a contest provision.

If this court were to take the protest provision the way that it's being suggested by the appellants, there's never any need for a contest. There would be absolutely no purpose in the Florida legislature having a section of Florida statutes that defines how an election contest works, because they're saying everything gets done before you even certify it.
They're saying the secretary of state has to sit back and cannot certify the winner until everybody's disagreements have already been resolved.

The problem is, there is no arbiter to make a decision about the disagreements. There is nobody who makes the factual decisions there. It's just local canvassing boards making decisions based on choices of candidates, whether or not to look at ballots again. There's nobody who's actually looking to see whether overall this is going to change the results of an election, and that's…

QUINCE: Well, why isn't it really what they're saying is that you don't have a contest, an election contest, until you have had the procedure that concerns a protest? Because there — certainly, you can go through this protest procedure and still get to the contest procedure.

MARDENBOROUGH: Certainly. However, the legislature wrote both of those provisions. The legislature said there's going to be a protest provision, but the legislature also wrote that there is a seven day deadline for getting the certifications in.

And for this court to — the first step this court has to take in interpreting that statute is, can you read that whole thing together? Can you look at chapter 102 and can you ready it in a way that all of the provisions actually make sense so you don't have to just ignore one of them? Because you're being asked to ignore the seven-day rule.

You can read that entire statute together in a way that makes perfect sense by simply recognising that the protest period, which conceivably could even be asked for after certification takes place, because they've got 72 hours from the time that the results are certified, so if somebody certifies the results and…

QUINCE: I thought the provision was 72 hours or before the votes are certified. It seems to me that that provision doesn't allow for the protest once the votes are certified.

MARDENBOROUGH: I'm sorry, I don't have the specific…

WELLS: Those time standards are in the alternative with the later date prevailing, are they not?

MARDENBOROUGH: Right. Yes.

QUINCE: So you either have the 72 hours or the time of certification?

MARDENBOROUGH: Right.

QUINCE: I think that it's certainly conceivable — and, in fact, I think the only reasonable assumption is that the legislature knew that sometimes there were going to be protest that were going to be going on and that the legislature recognised that sometimes there were going to be manual recounts that were going on, and it still chose to leave the seven day deadline in there.

They didn't eliminate the seven day deadline and when they — I see my time is up.

WELLS: Thank you, Mr. Mardenborough.

Mr. Hancock, as I indicated, I think you have three-and-a-half minutes. And I would pose this question to you, and I'd like for Mr. Boies to also respond to it.

In Section 5 of Title 3, they specifically refer to contest, in that it's for final determination of any controversy or contest concerning the appointment of electors of such state.

Now, under our statute, which is 168, those contests cannot begin, as your opponents say, until such time as the ballots are certified, under its express language.

Now, why isn't it correct that we are jeopardising with each passing day Florida being able to have its votes counted in the Electoral College, if we don't allow the certification?

HANCOCK: Because the first — the 168 provisions do not relieve county officials of certifying election results correctly in the first instance. We know here, from Palm Beach County's situation, as Justice Quince points out, that people have cast ballots that under the laws of this state, opinions of this court, are valid votes; they have not yet been counted.

Once that final count is done, then the procedure for contests kicks in. That is a completely different procedure. That places a burden on a plaintiff to prove that the election results are wrong.

Again, however, in the first instance, that burden is on the county election officials to certify a correct result.

If I may correct, Justice Anstead, Professor Rogow has asked me to correct a statement he made to you. In fact, the Palm Beach County Canvassing Commission did request the attorney general to issue the legal advisory opinion that was issued on the 14th.

HARDING: Mr. Hancock, we have — the chief justice has asked a question, and I don't know whether you want to use your time to rebut your co-counsel or not, but where do we find, from this record, the limits that we are to set in making a determination that we've been asked to say the votes have to be in by a certain time so that the contest provisions can kick in?
Where do we find, from what has been filed before us, the wisdom to do that?

HANCOCK: Justice Shaw suggested giving that authority to the secretary of state. We would suggest if the court considers that, that the court sets standards. The standards should be that the counties are entitled. And the paramount interest in doing this is to recognise voter intent. The counties should be given all reasonable opportunities to complete the process, consistent with the time obligations, in a manner that recognises voter intent.

HARDING: Is it the position of the attorney general that — although we don't have Miami as a part of this case, it's been mentioned several times — that they have just not decided to start their manual recount until today. Would that fall within a "reasonable limitation," to say this is just too late to do that?

HANCOCK: Your Honour, I'm not sure of all the facts in Miami. My understanding was that they requested — they first — there was a request, they decided not to do it and then reconsidered that request. I'm not sure — obviously, the request has to be timely to be considered.

HARDING: And under the circumstances of this case, do you have an opinion as to whether that would be timely?

HANCOCK: I don't have an opinion.

One other point, if I could. Justice Pariente expressed concern about the dilution of votes with recounts. Obviously, no one's vote is diluted in a legal sense by counting other valid votes. We are concerned, as you are, about other counties that don't have this process.
One remedy that the court might consider is having a recount statewide. The problem is, as you correctly point out, is on counties using machinery to vote punch cards. It would be appropriate, perhaps, to review those punch cards in those instances where a vote for president or vice president was not recorded to determine whether the intent of the voter could be ascertained. That would not be a major burden on any county of the state. And those counties with optical scanners would probably find that the ballots were being read properly.

PARIENTE: Could you comment — oh, I'm sorry.

Could you comment on the federal statute that was referred to as to whether this court in fact does have the authority? Or are we treading into the separation of powers by making such a determination in this case?

HANCOCK: No, this court clearly has the power. In the Hartke v. Roudebush in the United States Supreme Court, which was another — was a United States Senate election, clearly said that that was a matter that was left to the discretion of the state, pursuant to the same article of the Constitution that's at issue here.

WELLS: Thank you, Mr. Hancock.

Mr. Boies?

BOIES: Your Honour, let me make two preliminary points. One, I want the court to understand what the nature of the other side's argument is. They say that what they want to do is have a contest. But what they have said and what they have said also even to this court, although maybe not as directly as they might, is their view is, once the results are certified, then the recount becomes superfluous, and ought to stop. And, second, that as soon as the results are certified, the secretary of state can, under 103.011, declare who the electors are.
And it is their view that when that declaration of the electors has been declared, it's over with.

So one thing that I would urge the court is that when there is a deadline so that a contest can start, that the court stay the declaration, under 103.011, so that we're not faced with an argument that says it's all over and the contest has become irrelevant.

WELL: But you would have to agree that at some point in time between now and December 12 or 11 or whenever it is, that Florida's votes are going to be in jeopardy.

BOIES: Your Honour, I think they need not be, for the following reason. We don't believe that Section 111 or 112 or Chapter 102 says there is one and only one certification. That's wheat they argued, but you won't find that anywhere in the statute.

In fact, in 102.111, what you find is a discussion of returns, the returns, and then the official returns. And the official returns, as we've said before, is defined in 101.5614 Subsection 8 as being returns that include not only the initial returns, but the absentee ballots and the manually counted ballots.
There is nothing, in our view of the statute, that precludes them making a contest under 168 of the certification that has already been filed with respect to the votes other than the manually recounted votes.

WELLS: The statute says it's the last certification, the last county canvassing board certification. That's what 168 says.

BOIES: Yes. And the last county certification for every county, except these three. And they talking about the overseas ballots and they were talking about other things they said they wanted a contest. Except for the three counties, the last county certification in those counties has already been made. And each of these three counties have also made the initial certification on 5 p.m. last Tuesday.

We think that there's nothing in the statutory provisions that prevents a contest with respect to what's already been certified from going forward while the supplemental returns from the manually recounted ballots are also going forward.

PARIENTE: But there's no way for it, presuming that it's Governor Bush that would have the right to contest the manual recounts that are being conducted in at least two out of the three counties, for there to be a record in order to contest that, those have to be completed.
BOIES: Absolutely right, Your Honour. And in order to allow him to contest the manually recounted ballots, you must have a deadline for that, too.

My only point was…

PARIENTE: Now we go back to this. Deadline is not in the statute. How do we have the authority to set a deadline?

BOIES: Because what this court, I would respectfully suggest, has to do is to reconcile the entire statutory scheme. And the statutory scheme, long before there was this election, provided for manual recounts.

And this court, I suggest, cannot presume that the legislature meant to provide for these manual recounts and yet to make that an illusory right by having a circumstance where they could not be practically taken care of in what was the most important election that this state has perhaps ever seen.

I think that the standard is exactly the standard that the chief justice has referred to, which is when will the date be such that passing that date endangers the ability of certifying and finalising any contest that may result so that votes of Florida are not in peril? And I believe that that's not an issue in this particular situation, because the counties have said that, "If you'll tell us what the standard is and leave us free from interference, we can get this done in a matter of days."

Now, Broward County stopped because they were told to stop.
Then they started again after this court said they could start. And you know what happened? A Republican official or Republican attorney subpoenaed the canvassing boards to a circuit court and the counting had to stop.

WELLS: That's not part of this record...

BOIES: But, Your Honour, what is part of — actually, I think, the court could probably take judicial notice of what happens in a circuit court.

But I think the thing that's important for the court to understand is that this is a process that if people will simply get out of the way and let it continue, can be done in a matter of days.

This court could — if the court would just give the county canvassing boards…

QUINCE: Where in the record would we find that it could be completed in a matter of days?

BOIES: Well, Your Honour, in the — I think it's Exhibit G, to one of the — to the exhibit that was filed in the circuit court, Judge Lewis' court, that is now part of this record, you have the letters from the various counties, Broward, Dade and Palm Beach. And I think that the Broward County letter, for example, includes an estimate of that. It also includes a detailed statement as to why they had not gotten it done before. And that is in the record.

I also think another way of approaching it, is to say: We'll give the standard to apply; we'll tell you to get it done in seven days. If the court were able to do that, you would certainly have enough time after that to complete a contest.

And I'm not urging in any way that this court do anything that will imperil Florida's electoral votes. What I am asking is that the court use its power to make sure that all the votes of the voters in Florida that have been cast for those elections are counted.

WELLS: But would you agree that if the court lifted the injunction and allowed the certification to made that absolutely there wouldn't be any imperil as to Florida's votes?

BOIES: I would agree with that, except to the extend that if you did it in a way that permitted them then to declare the electors under 103.011, what you would have done is you would have electors that were not, in our view, the electors elected by the people.

PARIENTE: Well, are those two different statutes then? Is that the only problem, 103.011? Or is it the certification under 102.111?

BOIES: I think that if the court were to make clear that the certification under 103.011, the declaration of the electors, was stayed pending the result of any contest, and were to make clear that the manual recount continues and will be considered, I think under those circumstances, having whatever certification is required under 102.111 to permit the contest period to begin would not prejudice anyone. We believe that that period can already be taken advantage of. That is, we believe that because 102.111 refers to both results and official results—and official results is defined elsewhere to include manually recounted votes as well as the initial return. And the contest statute does not depend on the official results being certified, but on the results being certified.

I think our view is that, under the current statutory scheme, they can or anyone can file a contest with respect to the votes that have been certified.

Obviously, you're entirely correct that even with respect to the recounted votes, those have to be done within a time period that allows a contest of those votes. But because those are a relatively small number of votes, that is a period of time that we are well within. So that, I think, one solution that would prejudice no one would be to provide that a party could file a contest with respect to the votes that have already been certified, that is, the non-manually recounted votes, right now — because they're not the official results, but they have been certified — and to provide that the manual recount would be completed within seven days of the courts order defining what the standard is.

WELLS: Mr. Boies, I think your time is up.

BOIES: Thank you very much, Your Honour.

WELLS: The court is very appreciative and indebted to counsel for each side who has worked so hard and long on the presentations here and on what has been presented to this court for the court's benefit in attempting to arrive at a fair and just solution in this case.

We also are very appreciative to our guests who have been here in the courtroom for the argument today.

I make one final request of you, and that is that we now recede from the courtroom on the basis that all counsel be permitted to exit the courtroom and the building, so that all post-argument interviews will be conducted not in the rotunda here but outside the building. And then, our visitors will be asked, for security purposes, to exit the building after all counsel have exited the building.

Thank you and the court will be in recess.

[End of transcript]