Facts Amidst the Confusion
Tuesday, November 14, 2000
By Sharon Kehnemui
FOXNews.com has compiled a list of frequently asked
questions and provided answers in an effort to help users
sort through the confusion and minutiae of the Florida
recount process.
What was the outcome of the legal challenge to extend the
vote certification deadline to allow hand recount of
ballots to continue?
On Monday, Florida Secretary of State Katherine Harris, a
Republican and head of the Florida Elections Division,
said that Florida elections law does not allow her to
extend the deadline for certifying the results of the
vote. That deadline was scheduled for 5 p.m. on Tuesday.
Four counties were at different stages of hand counting
ballots — Broward, Miami-Dade, Volusia and Palm Beach.
The Gore campaign, along with Volusia and Palm Beach
Counties, sued to extend that deadline until all the hand
counts were finished.
Leon County Circuit Judge Terry Lewis, a Democrat
appointed in 1998 by late Gov. Lawton Chiles, ruled on
Tuesday afternoon that neither he nor Secretary of State
Harris can change the statute, which explicitly says that
there is a 5 p.m. Tuesday certification deadline. Lewis
did leave open a window that would allow Harris to accept
"supplemental or corrective returns" at her discretion.
"The secretary of state may ignore such late filed
returns but may not do so arbitrarily, rather only by the
proper exercise of discretion," Lewis said in a ruling
read to reporters by Court Administrator Terre Cass.
Volusia County filed an appeal to the ruling.
What are the conflicting opinions about the hand count in
Palm Beach?
Palm Beach suspended its recount Tuesday morning — just
as it was about to begin — after receiving conflicting
advisory opinions from the Secretary of State's office
and the State's Attorney General on how to proceed.
Clay Roberts, Florida's Director of Elections, wrote an
advisory opinion to the Palm Beach County canvassing
board that said unless a mechanical malfunction occurred
in the machine count, it is illegal under Florida law to
recount the votes by hand.
However, Florida Attorney General Robert Butterworth,
Gore's state campaign chairman, advised the county
canvassing board to proceed with the hand count because a
discrepancy between a hand count and a machine count is
considered an error.
The attorney general's opinion was distributed despite
his own Web site's acknowledgement under Title IV of
state law that the attorney general will not issue
opinions "when an opinion request is received on a
question falling within statutory jurisdiction of some
other state agency." In such cases, "the request will
either be transferred to that agency or the requesting
party will be advised to contact the other agency. For
example, questions concerning the Code of Ethics for
Public Officers and Employees are answered by the Florida
Commission on Ethics; questions arising under the Florida
Election Code should be directed to the Division of
Elections in the Department of State."
The Palm Beach county canvassing board decided late
Tuesday to send in its automatic vote count to meet the
certification deadline while at the same time restarting
its manual recount in spite of the Division of Elections
ruling that a manual recount is illegal. The canvassing
board decided to file a petition with the Florida Supreme
Court to determine which ruling was correct. Broward
County joined in the petition.
What is the Bush campaign's plan now?
Early on Tuesday, the Bush campaign told the Gore
campaign it would accept the vote — including the manual
recount up until 5 p.m. Tuesday and the overseas ballots
due by 5 p.m. Friday — in exchange for the Gore campaign
ceasing its lawsuit to extend the 5 p.m. Tuesday
deadline. William Daley, Gore's campaign chairman,
immediately rejected the offer.
Judge Lewis then decided that discretion for the recount
deadline was left to Secretary of State Harris. Harris
decided that there was no exception to the 5 p.m. Tuesday
deadline.
The Bush campaign therefore feels that it won the ruling
and is waiting to see if the four counties hand counting
the ballots comply with the deadline.
What is the Gore campaign's plan now?
On Tuesday afternoon, when Judge Lewis decided that it is
up to Harris to keep the 5 p.m. deadline in place,
Volusia County and Gore campaign attorneys immediately
authorized an appeal with the First District Court.
About an hour and a half after the ruling, the two
parties decided that it would not pursue an appeal. After
closer reading of Judge Lewis's ruling, Gore campaign
recount monitor William Christopher and attorney David
Boies said that the ruling favors them because it limits
the secretary of state from arbitrarily ignoring
"supplemental and corrective" filings.
On Tuesday, the Gore campaign also went to court to seek
a Writ of Mandamus to compel Broward county to continue
the hand recount which it had suspended after the county
conducted a sample recount and learned of no significant
deviation in the numbers calculated by the machine count.
The campaign also was going to go to court to compel Palm
Beach County to conduct its hand recount but the
canvassing board decided to send in the automatic count
and restart the hand count for a later revised
submission.
Gore attorney Kendall Coffey also testified before the
Miami-Dade canvassing board Tuesday morning, which agreed
that it will conduct a hand count of three precincts, or
1 percent of the vote. The Gore campaign wants to include
191 undervotes — votes not registered by the ballot
counting machine because of weak hole punches. There are
no rules on whether partially punched holes count as
votes or not. This will be left to personal discretion of
the canvassing board.
The Miami-Dade canvassing Board gave the Bush campaign 30
minutes after its decision to add precincts to the hand
recount in the county because the three precincts chosen
by the canvassing board voted for Gore by 91 percent.
They did not.
What lawsuits are being filed by voters?
Six voters in Palm Beach have filed a consolidated claim
that the ballots were so confusing that their votes were
not counted and they were disenfranchised, or denied the
right to vote.
So far, five judges, Stephen A. Rapp, Katherine Brunson,
Edward Fine, Thomas H. Barkdull, III, and Peter D. Blanc,
all Palm Beach County Circuit Court judges, recused
themselves. Rapp recused himself last week because one of
the six complainants asked him to do so after accusing of
making anti-Democratic remarks in the past. Rapp said
that the charges were untrue but recused himself anyway.
Fine recused himself because he had discussed the case
with a lawyer of one of the plaintiffs, Brunson because
another plaintiff's lawyer had represented her husband in
an unrelated case; Barkdull because his father works as
senior council to the attorney general and is working on
issues directly related to the case; and Blanc because
two attorneys for plaintiffs in the case had served as
treasurers on his campaign to be reelected this year.
The case, originally scheduled to be heard at 1 p.m. EST
Tuesday, was given to Judge Jorge Labarga. It has not yet
begun.
Why are the counties required to certify the votes by
Tuesday evening when overseas ballots are allowed to be
counted through Friday?
Florida statute says, "The county canvassing board or a
majority thereof shall file the county returns for the
election of a federal or state officer with the
Department of State immediately after certification of
the election results. Returns must be filed by 5 p.m. on
the 7th day following the first primary and general
election.
"If the county returns are not received by the Department
of State by 5 p.m. of the seventh day following an
election, all missing counties shall be ignored, and the
results shown by the returns on file shall be certified."
The law also allows overseas ballots to be counted by
November 17 as long as they are postmarked by election
day November 7. The rule takes into consideration the
travel time required for air mail whereas the ballots on
the ground were counted immediately following the
election.
In 1996, 2,000 Florida ballots came from overseas.
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