Text of Florida Supreme Court Decision
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Supreme Court of Florida
Nos. SC00-2346, SC00-2348 & SC00-2349
PALM BEACH COUNTY CANVASSING BOARD,
Petitioner,
vs.
KATHERINE HARRIS, etc., et al., Respondents.
VOLUSIA COUNTY CANVASSING BOARD, et al.,
Appellants,
vs.
KATHERINE HARRIS, etc., et al., Appellees.
FLORIDA DEMOCRATIC PARTY, Appellant,
vs.
KATHERINE HARRIS, etc., et al., Appellees.
(November 21, 2000)
PER CURIAM.
We have for review two related trial court orders appealed to
the First District Court of Appeal, which certified the orders to
be of great public importance requiring immediate resolution by
this Court (Case Numbers SC00-2348 and SC00-2349). We
have jurisdiction under article V, section 3(b)(5) of the Florida
Constitution. For the reasons set forth in this opinion, we reverse
the orders of the trial court.
I. FACTS
A. The Election
On Tuesday, November 7, 2000, the State of Florida, along with
the rest of the United States, conducted a general election for
the President of the United States. The Division of Elections
("Division") reported on Wednesday, November 8, that George
W. Bush, the Republican candidate, had received 2,909,135
votes, and Albert Gore Jr., the Democratic candidate, had
received 2,907,351 votes. Because the overall difference in the
total votes cast for each candidate was less than one-half of one
percent of the total votes cast for that office (i.e., the difference
was 1,784 votes), an automatic recount was conducted pursuant
to section 102.141(4), Florida Statutes. The recount resulted in a
substantially reduced figure for the overall difference between
the two candidates.
In light of the closeness of the election, the Florida Democratic
Executive Committee on Thursday, November 9, requested that
manual recounts be conducted in Broward, Palm Beach, and
Volusia Counties pursuant to section 102.166, Florida Statutes
(2000). Pursuant to section 102.166(4)(d), the county
canvassing boards of these counties conducted a sample manual
recount of at least one percent of the ballots cast. Initial manual
recounts demonstrated the following: In Broward County, a
recount of one percent of the ballots indicated a net increase of
four votes for Gore; and in Palm Beach County, a recount of
four sample precincts yielded a net increase of nineteen votes
for Gore. Based on these recounts, several of the county
canvassing boards determined that the manual recounts
conducted indicated "an error in the vote tabulation which could
affect the outcome of the election." Based on this
determination, several canvassing boards voted to conduct
countywide manual recounts pursuant to section 102.166(5)(c).
B. The Appeal Proceedings
Concerned that the recounts would not be completed prior to the
deadline set forth in section 102.111(1), Florida Statutes (2000),
requiring that all county returns be certified by 5 p.m. on the
seventh day after an election, the Palm Beach County
Canvassing Board, pursuant to section 106.23, Florida Statutes
(2000), sought an advisory opinion from the Division of
Elections, requesting an interpretation of the deadline set forth in
sections 102.111 and 102.112. The Division of Elections
responded by issuing Advisory Opinion DE 00-10, stating that
absent unforseen circumstances, returns from the county must
be received by 5 p.m. on the seventh day following the election
in order to be included in the certification of the statewide
results.
Relying upon this advisory opinion, the Florida Secretary of
State (the Secretary) issued a statement on Monday, November
13, 2000, that she would ignore returns of the manual recounts
received by the Florida Department of State (the Department)
after Tuesday, November 14, 2000, at 5:00 p.m. The Volusia
County Canvassing Board (the Volusia Board) on Monday,
November 13, 2000, filed suit in the Circuit Court of the Second
Judicial Circuit in Leon County, Florida, seeking declaratory and
injunctive relief, and the candidates and the Palm Beach County
Canvassing Board (the Palm Beach Board), among others,
were allowed to intervene. In its suit, the Volusia Board sought
a declaratory judgment that it was not bound by the November
14, 2000, deadline and also sought an injunction barring the
Secretary from ignoring election returns submitted by the
Volusia Board after that date.
The trial court ruled on Tuesday, November 14, 2000, that the
deadline was mandatory but that the Volusia Board may amend
its returns at a later date and that the Secretary, after
"considering all attendant facts and circumstances," may
exercise her discretion in determining whether to ignore the
amended returns. Later that day, the Volusia Board filed a
notice of appeal of this ruling to the First District Court of
Appeal, and the Palm Beach Board filed a notice of joinder in
the appeal.
Subsequent to the circuit court's order, the Secretary announced
that she was in receipt of certified returns (i.e., the returns
resulting from the initial recount) from all counties in the State.
The Secretary then instructed Florida's Supervisors of Elections
(Supervisors) that they must submit to her by 2 p.m.,
Wednesday, November 15, 2000, a written statement of "the
facts and circumstances" justifying any belief on their part that
they should be allowed to amend the certified returns previously
filed. Four counties submitted their statements on time. After
considering the reasons in light of specific criteria, the Secretary
on Wednesday, November 15, 2000, rejected the reasons and
again announced that she would not accept the amended returns
but rather would rely on the earlier certified totals for the four
counties. The Secretary further stated that after she received
the certified returns of the overseas absentee ballots from each
county, she would certify the results of the presidential election
on Saturday, November 18, 2000.
On Thursday, November 16, 2000, the Florida Democratic Party
and Albert Gore filed a motion in Circuit Court of the Second
Judicial Circuit in Leon County, Florida, seeking to compel the
Secretary to accept amended returns. After conducting a
hearing, the court denied relief in a brief order dated Friday,
November 17, 2000. That day, both the Democratic Party and
Gore appealed to the First District Court of Appeal, which
consolidated the appeals with the Volusia Board's appeal
already pending there, and certified both of the underlying trial
court orders to this Court based on the Court's "pass-through"
jurisdiction. By orders dated Friday, November 17, 2000, this
Court accepted jurisdiction, set an expedited briefing schedule,
and enjoined the Secretary and the Elections Canvassing
Commission (Commission) from certifying the results of the
presidential election until further order of this Court.
II. GUIDING PRINCIPLES
Twenty-five years ago, this Court commented that the will of
the people, not a hyper-technical reliance upon statutory
provisions, should be our guiding principle in election cases:
The real parties in interest here, not in the legal sense but in
realistic terms, are the voters. They are possessed of the
ultimate interest and it is they whom we must give primary
consideration. The contestants have direct interests certainly,
but the office they seek is one of high public service and of
upmost importance to the people, thus subordinating their
interest to that of the people. Ours is a government of, by and
for the people. Our federal and state constitutions guarantee the
right of the people to take an active part in the process of that
government, which for most of our citizens means participation
via the election process. The right to vote is the right to
participate; it is also the right to speak, but more importantly the
right to be heard. We must tread carefully on that right or we
risk the unnecessary and unjustified muting of the public voice.
By refusing to recognize an otherwise valid exercise of the right
of a citizen to vote for the sake of sacred, unyielding adherence
to statutory scripture, we would in effect nullify that right.
Boardman v. Esteva, 323 So. 2d 259, 263 (Fla. 1975) (emphasis
added). We consistently have adhered to the principle that the
will of the people is the paramount consideration. Our goal today
remains the same as it was a quarter of a century ago, i.e., to
reach the result that reflects the will of the voters, whatever that
might be. This fundamental principle, and our traditional rules of
statutory construction, guide our decision today.
III. ISSUES
The questions before this Court include the following: Under
what circumstances may a Board authorize a countywide
manual recount pursuant to section 102.166(5); must the
Secretary and Commission accept such recounts when the
returns are certified and submitted by the Board after the seven
day deadline set forth in sections 102.111 and 102.112?
IV. LEGAL OPINION OF THE DIVISION OF ELECTIONS
The first issue this Court must resolve is whether a County
Board may conduct a countywide manual recount where it
determines there is an error in vote tabulation that could affect
the outcome of the election. Here, the Division issued opinion
DE 00-13, which construed the language "error in vote
tabulation" to exclude the situation where a discrepancy
between the original machine return and sample manual recount
is due to the manner in which a ballot has been marked or
punched.
Florida courts generally will defer to an agency's interpretation
of statutes and rules the agency is charged with implementing
and enforcing. Florida courts, however, will not defer to an
agency's opinion that is contrary to law. We conclude that the
Division's advisory opinion regarding vote tabulation is contrary
to law because it contravenes the plain meaning of section
102.166(5).
Pursuant to section 102.166(4)(a), a candidate who appears on
a ballot, a political committee that supports or opposes an issue
that appears on a ballot, or a political party whose candidate's
name appeared on the ballot may file a written request with the
County Board for a manual recount. This request must be filed
with the Board before the Board certifies the election results or
within seventy-two hours after the election, whichever occurs
later. Upon filing the written request for a manual recount, the
canvassing board may authorize a manual recount. The decision
whether to conduct a manual recount is vested in the sound
discretion of the Board. If the canvassing board decides to
authorize the manual recount, the recount must include at least
three precincts and at least one percent of the total votes cast
for each candidate or issue, with the person who requested the
recount choosing the precincts to be recounted. If the manual
recount indicates an "error in the vote tabulation which could
affect the outcome of the election," the county canvassing
board "shall":
(a) Correct the error and recount the remaining precincts with
the vote tabulation system;
(b) Request the Department of State to verify the tabulation
software; or
(c) Manually recount all ballots.
§ 102.166(5)(a)-(c), Fla. Stat. (2000) (emphasis added).
The issue in dispute here is the meaning of the phrase "error in
the vote tabulation" found in section 102.166(5). The Division
opines that an "error in the vote tabulation" only means a
counting error resulting from incorrect election parameters or an
error in the vote tabulating software. We disagree.
The plain language of section 102.166(5) refers to an error in
the vote tabulation rather than the vote tabulation system. On its
face, the statute does not include any words of limitation; rather,
it provides a remedy for any type of mistake made in tabulating
ballots. The Legislature has utilized the phrase "vote tabulation
system" and "automatic tabulating equipment" in section 102.166
when it intended to refer to the voting system rather than the
vote count. Equating "vote tabulation" with "vote tabulation
system" obliterates the distinction created in section 102.166 by
the Legislature.
Sections 101.5614(5) and (6) also support the proposition that
the "error in vote tabulation" encompasses more than a mere
determination of whether the vote tabulation system is
functioning. Section 101.5614(5) provides that "no vote shall be
declared invalid or void if there is a clear indication of the intent
of the voter as determined by the canvassing board."
Conversely, section 101.5614(6) provides that any vote in which
the Board cannot discern the intent of the voter must be
discarded. Taken together, these sections suggest that "error in
the vote tabulation" includes errors in the failure of the voting
machinery to read a ballot and not simply errors resulting from
the voting machinery.
Moreover, section 102.141(4), which outlines the Board's
responsibility in the event of a recount, states that the Board
"shall examine the counters on the machines or the tabulation of
the ballots cast in each precinct in which the office or issue
appeared on the ballot and determine whether the returns
correctly reflect the votes cast." § 102.141, Fla. Stat. (2000)
(emphasis added). Therefore, an "error in the vote tabulation"
includes a discrepancy between the number of votes determined
by a voter tabulation system and the number of voters
determined by a manual count of a sampling of precincts
pursuant to section 102.166(4).
Although error cannot be completely eliminated in any tabulation
of the ballots, our society has not yet gone so far as to place
blind faith in machines. In almost all endeavors, including
elections, humans routinely correct the errors of machines. For
this very reason Florida law provides a human check on both the
malfunction of tabulation equipment and error in failing to
accurately count the ballots. Thus, we find that the Division's
opinion DE 00-13 regarding the ability of county canvassing
boards to authorize a manual recount is contrary to the plain
language of the statute.
Having concluded that the county canvassing boards have the
authority to order countywide manual recounts, we must now
determine whether the Commission must accept a return after
the seven-day deadline set forth in sections 102.111 and 102.112
under the circumstances presented.
V. THE APPLICABLE LAW
The abiding principle governing all election law in Florida is set
forth in article I, section 1, Florida Constitution:
SECTION 1. Political power.–All political power is inherent in
the people. The enunciation herein of certain rights shall not be
construed to deny or impair others retained by the people.
Art. I, § 1, Fla. Const. The constitution further provides that
elections shall be regulated by law:
SECTION 1. Regulation of elections.–All elections by the
people shall be by direct and secret vote. General elections shall
be determined by a plurality of votes cast. Registration and
elections shall, and political party functions may, be regulated by
law; however, the requirements for a candidate with no party
affiliation or for a candidate of a minor party for placement of
the candidate's name on the ballot shall be no greater than the
requirements for a candidate of the party having the largest
number of registered voters.
Art. VI, § 1, Fla. Const. (emphasis added).
The Florida Election Code ("Code"), contained in chapters
97–106, Florida Statutes (2000), sets forth specific criteria
regulating elections. The Florida Secretary of State is the chief
election officer of the state and is charged with general
oversight of the election system. The Supervisor of Elections
("Supervisor") in each county is an elected official and is
charged with appointing two Election Boards for each precinct
within the county prior to an election. Each Election Board is
composed of inspectors and clerks, all of whom must be
residents of the county, and is charged with conducting the
voting in the election, counting the votes, and certifying the
results to the Supervisor by noon of the day following the
election. The County Canvassing Board ("Canvassing Board"
or "Board"), which is composed of the Supervisor, a county
court judge, and the chair of the board of county commissioners,
then canvasses the returns countywide, reviews the certificates,
and transmits the returns for state and federal officers to the
Florida Department of State ("Department") by 5:00 p.m. of the
seventh day following the election. No deadline is set for filing
corrected, amended, or supplemental returns.
The Elections Canvassing Commission ("Canvassing
Commission" or "Commission"), which is composed of the
Governor, the Secretary of State, and the Director of the
Division of Elections, canvasses the returns statewide,
determines and declares who has been elected for each office,
and issues a certificate of election for each office as soon as the
results are compiled. If any returns appear to be irregular or
false and the Commission is unable to determine the true vote
for a particular office, the Commission certifies that fact and
does not include those returns in its canvass. In determining the
true vote, the Commission has no authority to look beyond the
county's returns. A candidate or elector can "protest" the
returns of an election as being erroneous by filing a protest with
the appropriate County Canvassing Board. And finally, a
candidate, elector, or taxpayer can "contest" the certification of
election results by filing a post-certification action in circuit court
within certain time limits and setting forth specific grounds.
VI. STATUTORY AMBIGUITY
The provisions of the Code are ambiguous in two significant
areas. First, the time frame for conducting a manual recount
under section 102.166(4) is in conflict with the time frame for
submitting county returns under sections 102.111 and 102.112.
Second, the mandatory language in section 102.111 conflicts
with the permissive language in 102.112.
A. The Recount Conflict
Section 102.166(1) states that "any candidate for nomination or
election, or any elector qualified to vote in the election related to
such candidacy shall have the right to protest the returns of the
election as being erroneous by filing with the appropriate
canvassing board a sworn written protest." The time period for
filing a protest is "prior to the time the canvassing board certifies
the results for the office being protested or within 5 days after
midnight of the date the election is held, whichever is later.
Section 102.166(4)(a), the operative subsection in this case,
further provides that, in addition to any protest, "any candidate
whose name appeared on the ballot . . . or any political party
whose candidates' names appeared on the ballot may file a
written request with the county canvassing board for a manual
recount" accompanied by the "reason that the manual recount is
being requested." Section 102.166(4)(b) further provides that
the written request may be made prior to the time the Board
certifies the returns or within seventy-two hours after the
election, whichever occurs later:
(4)(a) Any candidate whose name appeared on the ballot, any
political committee that supports or opposes an issue which
appeared on the ballot, or any political party whose candidates'
names appeared on the ballot may file a written request with the
county canvassing board for a manual recount. The written
request shall contain a statement of the reason the manual
recount is being requested.
(b) Such request must be filed with the canvassing board prior
to the time the canvassing board certifies the results for the
office being protested or within 72 hours after midnight of the
date the election was held, whichever occurs later.
§ 102.166, Fla. Stat. (2000) (emphasis added).
A Board "may" authorize a manual recount and such a recount
must include at least three precincts and at least one percent of
the total votes cast for the candidate. The following procedure
then applies:
(5) If the manual recount indicates an error in the vote
tabulation which could affect the outcome of the election, the
county canvassing board shall:
(a) Correct the error and recount the remaining precincts with
the vote tabulation system;
(b) Request the Department of State to verify the tabulation
software; or
(c) Manually recount all ballots.
(6) Any manual recount shall be open to the public.
(7) Procedures for a manual recount are as follows:
(a) The county canvassing board shall appoint as many counting
teams of at least two electors as is necessary to manually
recount the ballots. A counting team must have, when possible,
members of at least two political parties. A candidate involved
in the race shall not be a member of the counting team.
(b) If a counting team is unable to determine a voter's intent in
casting a ballot, the ballot shall be presented to the county
canvassing board for it to determine the voter's intent.
§ 102.166, Fla. Stat. (2000).
Under this scheme, a candidate can request a manual recount at
any point prior to certification by the Board and such action can
lead to a full recount of all the votes in the county. Although the
Code sets no specific deadline by which a manual recount must
be completed, logic dictates that the period of time required to
complete a full manual recount may be substantial, particularly
in a populous county, and may require several days. The protest
provision thus conflicts with section 102.111 and 102.112, which
state that the Boards "must" submit their returns to the
Elections Canvassing Commission by 5:00 p.m. of the seventh
day following the election or face
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