.... CONT.
penalties. For instance, if a
party files a pre-certification protest on the sixth day following
the election and requests a manual recount and the initial manual
recount indicates that a full countywide recount is necessary,
the recount procedure in most cases could not be completed by
the deadline in sections 102.111 and 102.112, i.e., by 5:00 p.m.
of the seventh day following the election.
B. The "Shall" and "May" Conflict
In addition to the conflict in the above statutes, sections 102.111
and 102.112 contain a dichotomy. Section 102.111, which sets
forth general criteria governing the State Canvassing
Commission, was enacted in 1951 as part of the Code and
provides as follows:
102.111 Elections Canvassing Commission.–
(1) Immediately after certification of any election by the county
canvassing board, the results shall be forwarded to the
Department of State concerning the election of any federal or
state officer. The Governor, the Secretary of State, and the
Director of the Division of Elections shall be the Elections
Canvassing Commission. The Elections Canvassing Commission
shall, as soon as the official results are compiled from all
counties, certify the returns of the election and determine and
declare who has been elected for each office. In the event that
any member of the Elections Canvassing Commission is
unavailable to certify the returns of any election, such member
shall be replaced by a substitute member of the Cabinet as
determined by the Director of the Division of Elections. 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.
§ 102.111, Fla. Stat. (2000) (emphasis added).
The Legislature in 1989 revised chapter 102 to include section
102.112, which provides that returns not received after a certain
date "may" be ignored and that members of the County Board
"shall" be fined:
102.112 Deadline for submission of county returns to the
Department of State; penalties.–
(1) 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 the certification
of the election results. Returns must be filed by 5 p.m. on the
7th day following the first primary and general election and by 3
p.m. on the 3rd day following the second primary. If the returns
are not received by the department by the time specified, such
returns may be ignored and the results on file at that time may
be certified by the department.
(2) The department shall fine each board member $200 for each
day such returns are late, the fine to be paid only from the board
member's personal funds. Such fines shall be deposited into the
Election Campaign Financing Trust fund, created by s. 106.32.
(3) Members of the county canvassing board may appeal such
fines to the Florida Elections Commission, which shall adopt
rules for such appeals.
§ 102.112, Fla. Stat. (2000) (emphasis added).
The above statutes conflict. Whereas section 102.111 is
mandatory, section 102.112 is permissive. While it is clear that
the Boards must submit returns by 5 p.m. of the seventh day
following the election or face penalties, the circumstances under
which penalties may be assessed are unclear.
VII. LEGISLATIVE INTENT
Legislative intent–as always–is the polestar that guides a court's
inquiry into the provisions of the Florida Election Code. Where
the language of the Code is clear and amenable to a reasonable
and logical interpretation, courts are without power to diverge
from the intent of the Legislature as expressed in the plain
language of the Code. As noted above, however, chapter 102 is
unclear concerning both the time limits for submitting the results
of a manual recount and the penalties that may be assessed by
the Secretary. In light of this ambiguity, the Court must resort to
traditional rules of statutory construction in an effort to
determine legislative intent.
First, it is well-settled that where two statutory provisions are in
conflict, the specific statute controls the general statute. In the
present case, whereas section 102.111 in its title and text
addresses the general makeup and duties of the Elections
Canvassing Commission, the statute only tangentially addresses
the penalty for returns filed after the statutory date, noting that
such returns "shall" be ignored by the Department. Section
102.112, on the other hand, directly addresses in its title and text
both the "deadline" for submitting returns and the "penalties" for
submitting returns after a certain date; the statute expressly
states that such returns "may" be ignored and that dilatory
Board members "shall" be fined. Based on the precision of the
title and text, section 102.112 constitutes a specific penalty
statute that defines both the deadline for filing returns and the
penalties for filing returns thereafter and section 102.111
constitutes a non-specific statute in this regard. The specific
statute controls the non-specific statute.
Second, it also is well-settled that when two statutes are in
conflict, the more recently enacted statute controls the older
statute. In the present case, the provision in section 102.111
stating that the Department "shall" ignore returns was enacted
in 1951 as part of the Code. On the other hand, the penalty
provision in section 102.112 stating that the Department "may"
ignore returns was enacted in 1989 as a revision to chapter 102.
The more recently enacted provision may be viewed as the
clearest and most recent expression of legislative intent.
Third, a statutory provision will not be construed in such a way
that it renders meaningless or absurd any other statutory
provision. In the present case, section 102.112 contains a
detailed provision authorizing the assessment of fines against
members of a dilatory County Canvassing Board. The fines are
personal and substantial, i.e., $200 for each day the returns are
not received. If, as the Secretary asserts, the Department were
required to ignore all returns received after the statutory date,
the fine provision would be meaningless. For example, if a
Board simply completed its count late and if the returns were
going to be ignored in any event, what would be the point in
submitting the returns? The Board would simply file no returns
and avoid the fines. But, on the other hand, if the returns
submitted after the statutory date would not be ignored, the
Board would have good reason to submit the returns and accept
the fines. The fines thus serve as an alternative penalty and are
applicable only if the Department may count the returns.
Fourth, related statutory provisions must be read as a cohesive
whole. As stated in Forsythe v. Longboat Key Beach Erosion
Control Dist., 604 So. 2d 452, 455 (Fla. 1992), "all parts of a
statute must be read together in order to achieve a consistent
whole. Where possible, courts must give effect to all statutory
provisions and construe related statutory provisions in harmony
with another." In this regard we consider the provisions of
section 102.166 and 102.168.
Section 102.166 states that a candidate, political committee, or
political party may request a manual recount any time before the
County Canvassing Board certifies the results to the
Department and, if the initial manual recount indicates a
significant error, the Board "shall" conduct a countywide
manual recount in certain cases. Thus, if a protest is filed on the
sixth day following an election and a full manual recount is
required, the Board, through no fault of its own, will be unable to
submit its returns to the Department by 5:00 p.m. on the seventh
day following the election. In such a case, if the mandatory
provision in section 102.111 were given effect, the votes of the
county would be ignored for the simple reason that the Board
was following the dictates of a different section of the Code.
The Legislature could not have intended to penalize County
Canvassing Boards for following the dictates of the Code.
And finally, when the Legislature enacted the Code in 1951, it
envisioned that all votes cast during a particular election,
including absentee ballots, would be submitted to the
Department at one time and would be treated in a uniform
fashion. Section 97.012(1) states that it is the Secretary's
responsibility to "[o]btain and maintain uniformity in the
application, operation, and interpretation of the election laws."
Chapter 101 provides that all votes, including absentee ballots,
must be received by the Supervisor no later than 7 p.m. on the
day of the election. Section 101.68(2)(d) expressly states that
"the votes on absentee ballots shall be included in the total vote
of the county." Chapter 102 requires that the Board submit the
returns by 5 p.m. on the seventh day following the election.
The Legislature thus envisioned that when returns are submitted
to the Department, the returns "shall" embrace all the votes in
the county, including absentee ballots. This, of course, is not
possible because our state statutory scheme has been
superseded by federal law governing overseas voters; overseas
ballots must be counted if received no later than ten days
following the election (i.e., the ballots do not have to be received
by 7 p.m. of the day of the election, as provided by state law).
In light of the fact that overseas ballots cannot be counted until
after the seven day deadline has expired, the mandatory
language in section 102.111 has been supplanted by the
permissive language of section 102.112.
Further, although county returns must be received by 5 p.m. on
the seventh day following an election, the "official results" that
are to be compiled in order to certify the returns and declare
who has been elected must be construed in pari materia with
section 101.5614(8), which specifies that "write-in, absentee and
manually counted results shall constitute the official return of the
election." (Emphasis added.)
Under this statutory scheme, the County Canvassing Boards are
required to submit their returns to the Department by 5 p.m. of
the seventh day following the election. The statutes make no
provision for exceptions following a manual recount. If a Board
fails to meet the deadline, the Secretary is not required to ignore
the county's returns but rather is permitted to ignore the returns
within the parameters of this statutory scheme. To determine
the circumstances under which the Secretary may lawfully
ignore returns filed pursuant to the provisions of section 102.166
for a manual recount, it is necessary to examine the interplay
between our statutory and constitutional law at both the state
and federal levels.
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