...CONT.
IX. THE PRESENT CASE
The trial court below properly concluded that the County
Canvassing Boards are required to submit their returns to the
Department by 5:00 p.m. of the seventh day following the
election and that the Department is not required to ignore the
amended returns but rather may count them. The court,
however, erred in holding that the Secretary acted within her
discretion in prematurely rejecting any amended returns that
would be the result of ongoing manual recounts. The
Secretary's rationale for rejecting the Board's returns was as
follows:
The Board has not alleged any facts or circumstances that
suggest the existence of voter fraud. The Board has not alleged
any facts or circumstances that suggest that there has been
substantial noncompliance with the state's statutory election
procedures, coupled with reasonable doubt as to whether the
certified results expressed the will of the voters. The Board has
not alleged any facts or circumstances that suggest that Palm
Beach County has been unable to comply with its election duties
due to an act of God, or other extenuating circumstances that
are beyond its control. The Board has alleged the possibility that
the results of the manual recount could affect the outcome of
the election if certain results obtain. However, absent an
assertion that there has been substantial noncompliance with the
law, I do not believe that the possibility of affecting the outcome
of the election is enough to justify ignoring the statutory
deadline. Furthermore, I find that the facts and circumstances
alleged, standing alone, do not rise to the level of extenuating
circumstances that justify a decision on my part to ignore the
statutory deadline imposed by the Florida Legislature.
Letter from Katherine Harris to Palm Beach Canvassing Board
(Nov. 15, 2000)(emphasis added).
We conclude that, consistent with the Florida election scheme,
the Secretary may reject a Board's amended returns only if the
returns are submitted so late that their inclusion will preclude a
candidate from contesting the certification or preclude Florida's
voters from participating fully in the federal electoral process.
The Secretary in the present case has made no claim that either
of these conditions apply at this point in time.
The above analysis is consistent with State ex rel. Chappell v.
Martinez, 536 So. 2d 1007 (Fla. 1988), wherein the Court
addressed a comparable recount issue. There, the total votes
cast for each of two candidates for a seat in the United State
House of Representatives were separated by less than one-half
of one percent; the county conducted a mandatory recount; the
Board's certification of results was not received by the
Department until two days after the deadline, although the
Board had telephoned the results to the Department prior to the
deadline; and the unsuccessful candidate sued to prevent the
Department from counting the late votes. The Court concluded
that the will of the electors supersedes any technical statutory
requirements:
[T]he electorate's effecting its will through its balloting, not the
hypertechnical compliance with statutes, is the object of holding
an election. "There is no magic in the statutory requirements. If
they are complied with to the extent that the duly responsible
election officials can ascertain that the electors whose votes are
being canvassed are qualified and registered to vote, and that
they do so in a proper manner, then who can be heard to
complain the statute has not been literally and absolutely
complied with?"
Chappell, 536 So. 2d at 1008-09 (quoting Boardman v. Esteva,
323 So. 2d 259, 267 (Fla. 1975)).
X. CONCLUSION
According to the legislative intent evinced in the Florida Election
Code, the permissive language of section 102.112 supersedes
the mandatory language of section 102.111. The statutory fines
set forth in section 102.112 offer strong incentive to County
Canvassing Boards to submit their returns in a timely fashion.
However, when a Board certifies its returns after the seven-day
period because the Board is acting in conformity with other
provisions of the Code or with administrative rules or for other
good cause, the Secretary may impose no fines. It is unlikely
that the Legislature would have intended to punish a Board for
complying with the dictates of the Code or some other law.
Because the right to vote is the pre-eminent right in the
Declaration of Rights of the Florida Constitution, the
circumstances under which the Secretary may exercise her
authority to ignore a county's returns filed after the initial
statutory date are limited. The Secretary may ignore such
returns only if their inclusion will compromise the integrity of the
electoral process in either of two ways: (1) by precluding a
candidate, elector, or taxpayer from contesting the certification
of election pursuant to section 102.168; or (2) by precluding
Florida voters from participating fully in the federal electoral
process. In either such case, this drastic penalty must be both
reasonable and necessary. But to allow the Secretary to
summarily disenfranchise innocent electors in an effort to punish
dilatory Board members, as she proposes in the present case,
misses the constitutional mark. The constitution eschews
punishment by proxy.
As explained above, the Florida Election Code must be
construed as a whole. Section 102.166 governs manual recounts
and appears to conflict with sections 102.111 and 102.112,
which set a seven day deadline by which County Boards must
submit their returns. Further, section 102.111, which provides
that the Secretary "shall" ignore late returns, conflicts with
section 102.112, which provides that the Secretary "may" ignore
late returns. In the present case, we have used traditional rules
of statutory construction to resolve these ambiguities to the
extent necessary to address the issues presented here. We
decline to rule more expansively, for to do so would result in this
Court substantially rewriting the Code. We leave that matter to
the sound discretion of the body best equipped to address it --
the Legislature.
Because of the unique circumstances and extraordinary
importance of the present case, wherein the Florida Attorney
General and the Florida Secretary of State have issued
conflicting advisory opinions concerning the propriety of
conducting manual recounts, and because of our reluctance to
rewrite the Florida Election Code, we conclude that we must
invoke the equitable powers of this Court to fashion a remedy
that will allow a fair and expeditious resolution of the questions
presented here.
Accordingly, in order to allow maximum time for contests
pursuant to section 102.168, amended certifications must be
filed with the Elections Canvassing Commission by 5 p.m. on
Sunday, November 26, 2000 and the Secretary of State and the
Elections Canvassing Commission shall accept any such
amended certifications received by 5 p.m. on Sunday,
November 26, 2000, provided that the office of the Secretary of
State, Division of Elections is open in order to allow receipt
thereof. If the office is not open for this special purpose on
Sunday, November 26, 2000, then any amended certifications
shall be accepted until 9 a.m. on Monday, November 27, 2000.
The stay order entered on November 17, 2000, by this Court
shall remain in effect until the expiration of the time for
accepting amended certifications set forth in this opinion. The
certificates made and signed by the Elections Canvassing
Commission pursuant to section 102.121 shall include the
amended returns accepted through the dates set forth in this
opinion.
It is so ordered. No motion for rehearing will be allowed.
WELLS, C.J., and SHAW, HARDING, ANSTEAD,
PARIENTE, LEWIS and QUINCE, JJ., concur. |
