Summary of Arguments to Florida Supreme Court - Al Gore Legal Brief
(NY Times, Sunday, Nov. 19)
nytimes.com
Following is the "Summary of Argument" from a brief filed yesterday by Vice President Al Gore's lawyers with the Florida Supreme Court. Abbreviations used in the filing are spelled out:
The question before this court is as fundamental as it is straightforward: whether lawfully cast and counted ballots are to be included in a vote total that will resolve an issue of paramount national importance — the selection of the president of the United States. The secretary of state is seeking to reject the ballots cast by hundreds (or perhaps even thousands) of citizens of this state, before the tabulation of those votes has even been completed. She is seeking to reject some — but oddly, not all — votes that have been tabulated through manual recounts, which are a lawful means for correcting errors in vote tallies, and thereby ascertaining the will of the voters. This court should hold that she cannot do so.
The secretary of state lacks discretion to selectively reject manual recounts as part of Florida's vote tally. Such a rejection is contrary to the Constitution's mandate that the election shall be determined by a plurality of the votes cast. See Florida Constitution, Article VI, Section 1. It is contrary to the statutory requirement that she determine which candidate for president received the highest number of votes. See Section 103.011, Florida Statutes (2000). It is contrary to the scheme of state statutes that authorize manual recounts and enumerate them as part of the official election returns.
It is contrary to the fundamental public policy of this state, as articulated by this court, which has held that "the electorate's effecting its will through balloting, not the hypertechnical compliance with statutes, is the object of holding an election." State of Florida on the Relation of Bill Chappel Jr. v. Martinez (Florida 1988). It is contrary to a democratic system that rests on elections being determined by the will of the people, not the whim of state officials.
To the extent that her rejection of these ballots rests on her opinion that such manual recounts are available only in cases of machine breakdown, that view is wholly unsupported by statute or case law. This view — articulated in the midst of litigation, in the heat of a political controversy, and contrary to the practice in this state for more than 150 years — is not entitled to any deference. The contrasting legal interpretation put forward by the attorney general of Florida is correct.
Even if the secretary of state does have discretion to disregard authorized manual recounts in some circumstances, her pre-emptive declaration that she will, in no event, accept manual recounts in this election, was an abuse of that discretion.
It can be in no way a sound exercise of discretion to reject a result that has not yet been proffered: no real balancing can be done when the weight of one side of the scale has yet to be ascertained. The secretary could not lawfully exercise discretion before learning the results of the recount.
Moreover, in making her determination, the secretary of state relied upon the wrong legal standard, and usurped a role delegated under Florida law to the county canvassing boards.
Additionally, acceptance of the secretary of state's rejection of the Counties request for time to complete their vote tallies would reward her for her own wrongdoing and contribution to any delays. Her issuance of a deadline, which was rejected by the courts of Florida; her issuance of a legal opinion directing a halt to the manual recounts, which has been rejected by two courts in Florida; asking this court to stop the manual recounts, which it declined to do; her requirement that counties comply with newly created administrative proceedings, which is under review here, all have delayed the manual recount process.
Taken as a whole, her approach has been Kafkaesque: she has tried time and again to direct the counties to stop counting — and then, once these directives have been set aside by the courts, she has sought to reject these votes because of the counties failure in obedience to her directives to complete the counts on a timely basis.
Machine reading of punch card ballots will predictably misread a certain percentage of ballots. In a close election, that percentage will affect the results of an election. The manual recount provisions of Florida law are a necessary component of making the use of the initial machine reading of punch card ballots comport with Article VI, Section 1 of the Florida Constitution and the Equal Protection and Due Process Clauses of the United States and Florida Constitutions.
Given the secretary of state's conduct in this matter, and the great public importance to citizens of this state — and indeed, of the nation — in having confidence that the vote totals ultimately certified in Florida reflect the will of the people of Florida, the balance of the equities tips heavily to petitioners side. This court should direct the secretary of state to include the results of the three manual recounts now under way in the certified election returns, or at the very least, it should instruct her not to certify the result until those manual recounts can be completed and properly reviewed.
To read or download the entire brief go to: flcourts.org
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