by Jake Tapper
Telephone: 202/863-8000
Facsimile: 202/863-8603
Andrew Pincus
c/o Gore/Lieberman Recount
430 S. Capitol St.
Washington, DC 20003
Telephone: 202/863-8000
Facsimile: 202/863-8603
Kendall Coffey
Florida Bar No. 259861
2665 S. Bayshore Drive, Suite 200
Miami, FL 33133
Telephone: 305/285-0800
Facsimile: 305/285-0257
David Boies
Boies, Schiller & Flexner LLP
80 Business Park Drive, Suite 110
Armonk, New York 10504
Telephone: 914/273-9800
Facsimile: 914/273-9810
Jeffrey Robinson
Baach Robinson & Lewis
One Thomas Circle, Suite 200
Washington, DC 20003
Telephone: 202/833-7205
Facsimile: 202/466-5738
Mark R. Steinberg
2272 Live Oak Drive West
Los Angeles, CA 90068
Telephone: 323/466-4009
Benedict E. Kuehne
Florida Bar No. 233293
Sale & Kuehne, P.A.
100 S.E. 2d Street, Suite 3550
Miami, FL 33131-2154
Telephone: 305/789-5989
Facsimile: 305/789-5987
John J. Corrigan, Jr.
896 Beacon St.
Boston, MA 02215
Telephone: 617/247-3800
Facsimile: 617/867-9224
Dennis Newman
580 Pearl St.
Reading, MA 01867
Telephone: 781/944-0345
Facsimile: 617-742-6880
COUNSEL FOR ALBERT GORE, JR., AND JOSEPH I. LIEBERMAN
INTRODUCTION
This case is before this Court on remand from the U.S. Supreme Court, which has returned the case for further proceedings “not inconsistent with this opinion.” Bush v. Gore, No. 00-949, Slip op. 13 (U.S. Dec. 12, 2000). An appropriate response to the U.S. Supreme Court’s decision is a clarification of key points of statutory construction under Florida state law. The U.S. Supreme Court suggested that this Court has held that in a Presidential election, Florida law places primacy on trying to meet the so-called “safe harbor” provision in 3 U.S.C. s5 (which is never even mentioned in the Florida statutes) rather than on ensuring the fundamental democratic principle that the will of the people not be frustrated in accurately ascertaining the outcome of a popular election. Id. at 12. Yet this Court has never so held, and Florida’s elections laws cannot remotely bear such a construction. This Court should respond to the U.S. Supreme Court’s remand with a statement of Florida law that clarifies this point.
The U.S. Supreme Court has identified limited equal protection problems with the recount of undervotes this Court had ordered to complete a full and fair tally of the votes cast in this election. It has indicated, in particular, that a recount could be conducted consistent with the Fourteenth Amendment if two conditions were met: (1) adoption of “adequate statewide standards for determining what is a legal vote”; (2) “practicable procedures to implement them [and] orderly judicial review of any disputed matters that might arise.” Id. at 11. The Court’s opinion also suggests some need to address the question of so-called “overvote” ballots. As discussed below, these conditions could be met by an immediate order of this Court, and a full and accurate tally of the votes could be achieved, just as this Court directed as a matter of state law five days ago.
At bottom, the issue here is whether this Court—on a fundamental issue of state law which it holds the definitive authority to construe—believes that a mere “legislative wish to take advantage of the ‘safe harbor’” afforded by federal law, Bush v. Palm Beach County Canvassing Bd., No. 00-836, Slip op. 6 (Dec. 4, 2000), trumps the intent of the Legislature, which runs deeply and constantly through Florida’s elections law: i.e., that “the right of Florida’s citizens to vote and to have elections determined by the will of Florida’s voters [are] important policy concerns of the Florida Legislature in acting Florida’s elections code.” Palm Beach County Canvassing Bd. v. Harris, Nos. SC00-2346, et al., Slip op. 31 (Fla. Dec. 11, 2000). The proposition is particularly unpersuasive now that the Legislature has provided powerful new evidence in its current special session that it is more concerned about making a selection of electors than in meeting the supposed December 12th “safe harbor” deadline.
If instead, as we believe, this Court’s recent provision for a “manual recount” of undervotes to determine accurately the rightful winner of this election should not be “eviscerated and rendered meaningless” by a time limit that is not mandatory, but should “accommodate the manual recount,” id. at 22, then the Florida Supreme Court has the lawful authority, on remand, to correct this misunderstanding about Florida law, and to order a resumption of the manual recounts, to be completed within 48 hours. Coupled with the few basic steps discussed below, this Court could exercise such authority properly under the U.S. Supreme Court’s remand, and in so doing, would vindicate democracy and the rule of law in Florida before the Electoral College convenes on December 18, 2000.
I. THE CLEAR AND CONSISTENT INTENT OF FLORIDA LAW IS THAT ELECTIONS MUST FAITHFULLY REFLECT THE POPULAR WILL.
Three days ago, this Court stressed the importance “to remind ourselves that the Florida Legislature has expressly vested in the voters of Florida the authority to elect the presidential electors who will ultimately participate in choosing a president.” Palm Beach County, supra, Slip op. 31 (citing 103.011, Fla. Stat. (2000)). In that case, the Court held that an arguably mandatory deadline “must be construed in a flexible manner to accommodate the manual recount” needed to ensure an accurate count of the votes cast in this very election. Id. at 22. In large part, the Court reached this conclusion because of the “important policy concerns of the Florida Legislature in enacting Florida’s election code” to preserve and protect “the right of Florida’s citizens to vote and to have elections determined by the will of Florida’s voters.” Id. at 31.
Nor, as this Court noted, was this the first time that an apparent deadline in the Florida election laws was extended to accommodate competing policy concerns. In particular, the overseas ballots must be counted if they are received any time up to ten days after the election pursuant to an administrative rule that balanced competing concerns of related federal and state laws. Id. at 25.
Moreover, this Court has repeatedly stressed that the fundamental purpose of Florida’s election laws is to determine and effectuate the will of the people. See, e.g., Harris, Slip op. 31 (Fla. Dec. 11, 2000) (“Courts must not lose sight of the fundamental purpose of election laws: The laws are intended to facilitate and safeguard the right of each voter to express his or her will in the context of our representative democracy”); Chappell v. Martinez, 536 So. 2d 1007, 1008 (Fla. 1988) (the people effecting their will through “balloting, not the hypertechnical compliance with statutes, is the object of holding elections”); Boardman v. Esteva, 323 So. 2d 259, 267 (Fla. 1975) (“It is the policy of the law to prevent as far as possible the disenfranchisement of electors who have cast their ballots in good faith”) (quotation omitted), cert. denied, 425 U.S. 967 (1976).
Thus, where putative deadlines or matters of administrative convenience would cause legal votes cast not to be counted or otherwise frustrate the will of the people, they must give way to this paramount concern. See, e.g., Harris II, Slip op. 22. The same overriding concern with enfranchising as many citizens as possible is reflected in Florida’s universal standard for determining the legal validity of ballots that are cast in elections. See e.g., Darby v. State, 75 So. 411, 412 (Fla. 1917) (ballot marked to plainly indicate voter’s intent should be counted “unless some positive provision of law would be thereby violated”); State ex rel. Carpenter v. Barber, 198 So. 49 (Fla. 1940) (vote should be counted “if the will and intention of the voter can be determined�
��); Nuccio v. Williams, 120 So. 310 (Fla. 1929). Hence, in a case of allegedly mismarked ballots, this Court held that the Florida courts “should not frustrate the will of the voters.” Beckstrom v. Volusia County Canvassing Bd., 707 So. 2d 720, 726 (Fla. 1998).
Weighing against this bedrock policy of Florida law is not the need to comply with any firm, mandatory deadline, but consideration of a voluntary choice of whether to strive to meet a provision of federal law that both parties have agreed offers only encouragement and some penumbral protection for the electoral votes that Florida submits to Congress. As the U.S. Supreme Court noted: “The parties before us agree that whatever else may be the effect of [3 U.S.C. §5], it creates a ‘safe harbor’ for a State insofar as congressional consideration of its electoral votes is concerned.” Bush I, Slip op. 6. The parties were unable to find any more meaning or substance in this provision, which has been characterized as “all carrot and no stick.” Indeed, this year 21 states did not even bother to submit their paperwork to the National Archives by the prescribed date.See District, 29 States Submit Electors, AP Online (Dec. 12, 2000). One reason for this unconcern may be that a successful challenge to a state’s electors requires the concurrent of both chambers in Congress, which is virtually impossible if different parties control the two chambers when Congress meets to count the electoral votes, as is true this year.
What is important, however, is that a mere “safe harbor” provision designed to offer encouragement to the states cannot sensibly be transformed into a deadly vortex that sucks into its maw the rights of voters, the rights of candidates, and all of the legal and democratic procedures established under Florida state law. Noting that all provisions of the Florida election statutes must be read in pari materia, this Court held that a “comprehensive reading” of the laws “required that there be time for an elections contest pursuant to section 102.168.” Harris II, Slip op. 30 n.22. As a matter of statutory construction, therefore, this Court fashioned a remedial system carefully designed to safeguard the mandatory judicial contest provided by the Florida Legislature. And this Court recently reiterated the principle “that the primary consideration in an election contest is whether the will of the people has been effected.” Perez v. Marti, 2000 Fla. App. LEXIS 11542, at *5 (Fla. 3d DCA Nov. 3, 2000). Once again, there is nothing to commend a reading of Florida law that would cast overboard the contest proceeding, and with it any hope of an accurate rendition of the people’s will, merely for an ephemeral date that need not even be followed, has no practical effect in this instance, and in fact is widely ignored. See Submit Electors, AP Online, supra, at 2 (“the law does not require penalties if that deadline passes,” but “lists of electors should be sent to the archives ‘as soon as practicable’ on or after Dec. 12”).
The U.S. Supreme Court’s opinion rests on a confused reading of Florida law that this Court should clarify. While, as the U.S. Supreme Court held, there is doubtlessly a “legislative wish to take advantage of the [Title 3’s] ‘safe harbor’” Harris., Slip op. 6, that “safe harbor” cannot be transformed from a shield for this State into a sword dangling above this Court. Moreover, the assertion that “the Florida Supreme Court has said that the Florida Legislature intended to obtain the safe-harbor benefits of 3 U.S.C. §5,” Id., Slip op. 12., comes from a passage in Harris II that does not even support the statement. Under Florida law, judicial contests, along with the rights of voters and candidates they are designed to safeguard, cannot be terminated to achieve compliance with an administrative deadline that approximately half the states honor only in the breach.
On remand, this Court may want to consider the U.S. Supreme Court’s opinion as effectively certifying the following question to the Florida Supreme Court: “Does Florida law hold that the state may select electors by December 12, 2000, or does Florida law hold that the state shall select electors by that date?
The answer here, as it was in Harris II, must be informed by the importance in Florida law of preserving and protecting the will of the voters. And that answer must be that Florida law makes compliance with the safe harbor date preferable, but not compulsory. As Justice Breyer noted, though the proceedings to date rendered it impossible to qualify for the “safe harbor,” it would be possible to complete all manual recounts necessary to conclude the contest proceeding by December 18, 2000, the date the Electoral College convenes. The Court did not disagree, but expressed the view that it was bound by the Florida Supreme Court’s supposed construction of Florida law to end all such proceedings on December 12. Bush II, Slip op. 12. 1
II. THE U.S. SUPREME COURT HAS HELD THAT TWO CONDITIONS MUST BE MET FOR ANY RECOUNT: ADEQUATE STANDARDS, AND PRACTICABLE PROCEDURES WITH JUDICIAL OVERSIGHT.
The U.S. Supreme Court held that recounts previously ordered by this Court require more clarity before they can proceed. In particular, the Court held that the recounts required adoption of “adequate statewide standards for determining what is a legal vote,” as well as “practicable procedures to implement them [and] orderly judicial review of any disputed matters that might arise.” Bush II, Slip op. 11. Both conditions can be readily met and the recounts promptly concluded.
A. Adequate Standards for Determining Votes
The proper standard for counting the remaining votes must be consistent with and determined by the Florida Legislature’s direction that “[n]o vote shall be declared invalid or void if there is a clear indication of the intent of the voter.” Fla. Stat. §101.5614(5). It is a fairly straightforward task to provide more specificity to this general standard pursuant to the broad authority vested in the courts under Florida law governing contests. See §102.168(8), Fla. Stat. (2000). 2 The touchstone, of course, as in any case where the U.S. Supreme Court has remanded to the state courts to cure an equal protection violation, is to impose a remedy that is best calculated to carry out the intent of the legislature. Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 152-53 (1980). 3
In determining the appropriate standard to govern the manual count, the U.S. Supreme Court has decided that in dealing with inanimate objects like ballots,“[t]he search for intent can be confined by specific rules designed to ensure uniform treatment.” Bush II, Slip op. 7. Thus, the necessary clarification does not result in abandoning or moving away from the general “intent of the voter” standard, which could raise its own constitutional problems, but merely making this standard more specific and objective.
In identifying the appropriate standard for determining voter intent under section 101.5614(5), this Court is guided by its own recent opinions construing the statutes, which do not permit restrictions that would substantially limit the number of ballots counted and thereby contradict the Legislature’s intent. Again, this Court has just emphasized “the right of Florida’s citizens to vote and to have elections determined by the will of Florida’s voters as important policy concerns of the Florida Legislature in enacting Florida’s election code. Harris II, Slip op. at 31. The recount provision specifically “strives to strengthen rather than dilute the right to vote by securing, as nearly as humanly possible, an accurate and true reflection of the will of the electorate.” Id. at 17 n.4 (quotation omitted). We believe that there are two possible approaches for setting such standards.
1. Meaningful Guidance Can be Found in Texas Law
This Court can derive guidance from other state statutes regarding the appropriate uniform standard for determining “intent of the voter” on punchcard ballots.
For example, the Texas Election Code provides such specific guidance while remaining consistent with Florida law’s “intent of the voter” standard. Under Texas Election Code 127-130(d), a vote is to be counted if:
(1) at least two corners of the chad are detached:
(2) light is visible through the hole;
(3) an indentation on the chad from the stylus or other object is present and indicates a clearly ascertainable intent of the voter to vote; [or]
(4) the chad reflects by other means a clearly ascertain
able intent of the voter to vote.
Under the Texas standard, an “indentation of the chad” on the ballot, see id., indicates the intent to cast a vote; the failure to puncture the ballot indicates only a physical failure by the voter or the stylus to express that intent by dislodging the chad. These substandards would serve to clarify Florida law and accommodate the Legislature’s direction that the “intent of the voter” must be determined with the U.S. Supreme Court’s interpretation of the Equal Protection Clause in this case. This approach would be consistent with Florida law, but would provide the added specificity that the U.S. Supreme Court held to be a prerequisite for going forward.
2. Alternatively, This Court Should Clarify That Any Indentation on the Ballot to Indicate Voter Intent Satisfies Florida Law
Alternatively, plaintiffs thus urge this Court to adopt a uniform standard recognizing indentations on punchcard ballots as clear expressions of voter intent. This approach is supported by the Massachusetts Supreme Court’s interpretation of a similar statutory standard. As the Court held, the trial judge concluded that a vote should be recorded for a candidate if the chad was not removed but an impression was made on or near it. We agree with that conclusion.” Delahunt v. Johnston, 671 N.E.2d 1241, 1243 (Mass. 1996) (emphasis added). The Court continued:
It is, of course, true that a voter who failed to push a stylus through the ballot and thereby create a hole in it could have done a better job of expressing his or her intent. Such a voter should not automatically be disqualified, however, like a litigant or one seeking favors from the government, because he or she failed to comply strictly with announced procedures. The voters are the owners of the government, and our rule that we seek to discern the voter’s intention and to give it effect reflects the proper relation between government and those to whom it is responsible. Id.
The Massachusetts Court also rejected as “unpersuasive” the argument that such indentations did not reflect an intent of the voter, viz., that “voters started to express a preference in the congressional contest, made an impression on a punch card, but pulled the stylus back because they really did not want to express a choice in that contest.” Id. As the Court recognized in language particularly apt to the present circumstances, such a scenario was implausible: “The large number of ballots with discernible impressions makes such an inference unwarranted, especially in a hotly contested election.” Id.