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Politics : Why is Gore Trying to Steal the Presidency? -- Ignore unavailable to you. Want to Upgrade?

To: Ellen who wrote (1251)	11/19/2000 2:10:28 PM
From: bosquedog	Respond to of 3887

jurist.law.pitt.edu Why is a recount being conducted in Florida? [updated November 16] First there was an "automatic recount." Florida law provides for an automatic recount when a candidate's margin of victory is not more than 0.5 percent of the total votes cast for the office. Although the recount in these circumstances is triggered automatically, the losing candidate can waive it. (In other circumstances where an automatic recount is not triggered, a candidate may demand a recount on grounds of error or fraud.) Next came recounts by request. Florida law gives any candidate a right to make a written request that a County Canvassing Board conduct a manual recount. Such a request must be made within 72 hours after midnight of the date of the election or prior to the time the Canvassing Board certifies the results, whichever is later. The Gore campaign made such a request in four counties (Volusia, Dade, Broward and Palm Beach); the Bush campaign did not request any manual recounts in Florida. The county Board may, but is not required to, authorize a manual recount. How should a county decide whether to grant a request for a manual recount? [updated November 16] As an initial matter, the local canvassing board of a county may authorize a limited manual recount of at least three precincts and at least one percent of the total votes cast for that candidate. If that limited recount "indicates an error in vote tabulation which could affect the outcome of the election," then a manual recount should be undertaken of all of the county's ballots. There is a dispute about what "an error in vote tabulation" encompasses. The Division of Elections of the Florida Secretary of State has opined that that term refers only to a counting error in the vote tabulation system, such as may be caused by a mechanical malfunction. The Florida Attorney General reads it more broadly to include the failure of a properly functioning mechanical system to read and count a ballot that might be able to be counted upon manual inspection, such as a ballot with incompletely punched-out chad. The Florida Supreme Court has been asked to resolve this controversy. If a county decides to conduct a manual recount, the recount is open to the public. The county must appoint "counting teams" of at least two voters each with, when possible, members of at least two political parties. If a counting team can't determine a voter's intent from inspecting the ballot, the team presents the ballot to the County Canvassing Board for a determination of the voter's intent. How long can the recount take? [updated November 17] This is yet another subject of dispute. The Florida Secretary of State originally took the position that Florida law requires that all counties submit their returns to her for certification by 5 p.m. on Tuesday, November 14. On November 14, Judge Terry Lewis ruled that the 5 p.m. deadline stands but that the Secretary of State must exercise sound discretion in accepting or rejecting returns that arrive after the deadline: "The secretary of state may ignore such late-filed returns but may not do so arbitrarily, rather only by the proper exercise of discretion after consideration of all appropriate facts and circumstances." Secretary of State Harris asked counties that were in the midst of recounts to submit justifications to her by 2 p.m. on Wednesday, November 15, explaining why she ought to consider their late-filed results. Several counties did so, asserting in part that the ongoing recounts demonstrated that the late-filed returns may well change the result of the election. Secretary Harris has exercised her discretion and rejected those requests. On November 17, Circuit Judge Lewis affirmed the exercise of that discretion, rejecting claims that she acted arbitrarily. A 1988 Florida Supreme Court decision [State ex rel. Chappell v. Martinez, 536 So. 2d 1007 (Fla. 1988)] held that the deadline for the certification process is not "an imperative, ministerial duty, involving no judgment on the part of the state canvassing commission." (quotations omitted). In that case, the court found that a county's telephone reporting of results before the deadline constituted substantial compliance with section 102.111 and that there was no basis to ignore the votes from Flagler County because the written certificate of the results did not arrive before the deadline. What does the Friday decision from Judge Lewis affirming the Secretary of State's decision to exclude returns from manual recounts in the certified totals mean? [added November 17] Judge Lewis was considering a point more of administrative law than of election law -- did this agency official make a decision that fell within the bounds of the discretion that the law gives to this official? These inquiries typically turn on the question of whether the decision was arbitrary (versus an exercise of reasoned judgment) and appears to be based on a consideration of the relevant factors (versus extraneous or inappropriate considerations). In making these judgments, a court does not substitute its judgment on how it would have resolved the question before the agency. Here, Judge Lewis concluded based "on the limited evidence presented, it appears that the Secretary has exercised her reasoned judgment to determine what relevant factors and criteria should be considered, applied them to the facts and circumstances pertinent to the individual counties involved, and made her decision." The decision does not necessarily foreclose a further request to the Secretary for inclusion of votes by a county upon the completion of a recount.