WELLS, C.J., dissenting.
I join Justice Harding’s dissenting opinion except as to his conclusions with
regard to error by Judge Sauls and his conclusions as to the separateness of section
102.166 and 102.168, Florida Statutes (2000). I write separately to state my
additional conclusions and concerns.ഊ-41-
I want to make it clear at the outset of my separate opinion that I do not
question the good faith or honorable intentions of my colleagues in the majority.
However, I could not more strongly disagree with their decision to reverse the trial
court and prolong this judicial process. I also believe that the majority’s decision
cannot withstand the scrutiny which will certainly immediately follow under the
United States Constitution.
My succinct conclusion is that the majority’s decision to return this case to
the circuit court for a count of the under-votes from either Miami-Dade County or
all counties has no foundation in the law of Florida as it existed on November 7,
2000, or at any time until the issuance of this opinion. The majority returns the
case to the circuit court for this partial recount of under-votes on the basis of
unknown or, at best, ambiguous standards with authority to obtain help from
others, the credentials, qualifications, and objectivity of whom are totally
unknown. That is but a first glance at the imponderable problems the majority
creates.
Importantly to me, I have a deep and abiding concern that the prolonging of
judicial process in this counting contest propels this country and this state into an
unprecedented and unnecessary constitutional crisis. I have to conclude that thereഊ-42-
is a real and present likelihood that this constitutional crisis will do substantial
damage to our country, our state, and to this Court as an institution.
On the basis of my analysis of Florida law as it existed on November 7,
2000, I conclude that the trial court’s decision can and should be affirmed. Under
our law, of course, a decision of a trial court reaching a correct result will be
affirmed if it is supportable under any theory, even if an appellate court disagrees
with the trial court’s reasoning. Dade County School Bd. v. Radio Station
WQBA, 731 So. 2d 638, 644-645 (Fla. 1999). I conclude that there are more than
enough theories to support this trial court’s decision.
There are two fundamental and historical principles of Florida law that this
Court has recognized which are relevant here. First, at common law, there was no
right to contest an election; thus, any right to contest an election must be construed
to grant only those rights that are explicitly set forth by the Legislature. See
McPherson v. Flynn, 397 So. 2d 665, 668 (Fla. 1981). In Flynn, we held that, “[a]t
common law, except for limited application of quo warranto, there was no right to
contest in court any public election, because such a contest is political in nature
and therefore outside the judicial power.” Id. at 667.ഊ-43-
Second, this Court gives deference to decisions made by executive officials
charged with implementing Florida’s election laws. See Krivanek v. Take Back
Tampa Political Committee, 625 So. 2d 840 (Fla. 1993). In Krivanek, we said:
We acknowledge that election laws should generally be
liberally construed in favor of an elector. However, the judgment of
officials duly charged with carrying out the election process should
be presumed correct if reasonable and not in derogation of the law.
Boardman v. Esteva, 323 So.2d 259 (Fla.1975), cert. denied, 425 U.S.
967, 96 S. Ct. 2162, 48 L. Ed.2d 791 (1976). As noted in Boardman:
The election process is subject to legislative prescription
and constitutional command and is committed to the
executive branch of government through duly designated
officials all charged with specific duties.... [The]
judgments [of those officials] are entitled to be regarded
by the courts as presumptively correct and if rational and
not clearly outside legal requirements should be upheld
rather than substituted by the impression a particular
judge or panel of judges might deem more appropriate.
It is certainly the intent of the constitution and the
legislature that the results of elections are to be
efficiently, honestly and promptly ascertained by election
officials to whom some latitude of judgment is accorded,
and that courts are to overturn such determinations only
for compelling reasons when there are clear, substantial
departures from essential requirements of law.
Id. at 844-45. These two concepts are the foundation of my analysis of the present
case.
At the outset, I note that, after an evidentiary hearing, the trial court
expressly found no dishonesty, gross negligence, improper influence, coercion, orഊ-44-
fraud in the balloting and counting processes based upon the evidence presented. I
conclude this finding should curtail this Court’s involvement in this election
through this case and is a substantial basis for affirming the trial court.
Historically, this Court has only been involved in elections when there have been
substantial allegations of fraud and then only upon a high threshold because of the
chill that a hovering judicial involvement can put on elections. This to me is the
import of this Court’s decision in Boardman v. Esteva, 323 So.2d 259 (Fla.1975).
We lowered that threshold somewhat in Beckstrom v. Volusia County Canvassing
Board, 707 So. 2d 720 (Fla. 1998), but we continued to require a substantial
noncompliance with election laws. That must be the very lowest threshold for a
court’s involvement.
Otherwise, we run a great risk that every election will result in judicial
testing. Judicial restraint in respect to elections is absolutely necessary because
the health of our democracy depends on elections being decided by voters–not by
judges. We must have the self-discipline not to become embroiled in political
contests whenever a judicial majority subjectively concludes to do so because the
majority perceives it is “the right thing to do.” Elections involve the other
branches of government. A lack of self-discipline in being involved in elections,
especially by a court of last resort, always has the potential of leading to a crisisഊ24 See § 102.166(1), Fla. Stat. (2000).
25 See § 102.166(4)(b), Fla. Stat. (2000).
-45-
with the other branches of government and raises serious separation-of-powers
concerns.
I find that the trial judge correctly concluded that plaintiffs were not entitled
to a manual recount. Petitioners filed this current election contest after protests in
Palm Beach and Miami-Dade Counties. Section 102.168, Florida Statutes, in its
present form is a new statute adopted by the Legislature in 1999. I conclude that
the present statutory scheme contemplates that protests of returns 24 and requests
for manual recounts 25 are first to be presented to the county canvassing boards.
See § 102.166, Fla. Stat. This naturally follows from the fact that, even with the
adoption of the 1999 amendments to section 102.168, the only procedures for
manual recounts are in the protest statute. Once a protest has been filed, a county
canvassing board then has the discretion, in accordance with the procedures set
forth in section 102.166(4), Florida Statutes, whether to order a sample limited
manual recount. See § 102.166(4)(c), Fla. Stat. (2000). Once the sample recount
is complete and the county canvassing board concludes that there was an error in
the vote tabulation that could affect the outcome of the election, sectionഊ26 Also problematic with the majority’s analysis is that the majority only requires that the
“under-votes” are to be counted. How about the “over-votes?” Section 101.5614(6) provides
that a ballot should not be counted “f an elector marks more names than there are persons to be
elected to an office,” meaning the voter voted for more than one person for president. The
underlying premise of the majority’s rationale is that in such a close race a manual review of
ballots rejected by the machines is necessary to ensure that all legal votes cast are counted. The
majority, however, ignores the over-votes. Could it be said, without reviewing the over-votes,
that the machine did not err in not counting them?
It seems patently erroneous to me to assume that the vote-counting machines can err
when reading under-votes but not err when reading over-votes. Can the majority say, without
having the over-votes looked at, that there are no legal votes among the over-votes?
-46-
102.166(5) instructs what must then be done. One option is to manually recount
all ballots. See § 102.166(5)(c), Fla. Stat. (2000).26
I believe that the contest and protest statutes must logically be read together.
The contest statute has significant references to the protest statute. If there is a
protest, a party authorized by the statute to file a contest must file a complaint
“within 5 days after midnight of the date the last county canvassing board
empowered to canvass the returns certifies the results of that particular election
following a protest pursuant to s. 102.166(1).” §102.168(2), Fla. Stat. (2000). In
the election contest, the canvassing board is the proper party defendant under
section 102.168(4). Further, under section 102.168(8), the circuit judge to whom
the contest is presented may fashion such orders as he or she deems necessary to
ensure that the allegations upon which the complaint is brought are investigated,
examined, or checked.ഊ-47-
I find correct the analysis undertaken in Broward County Canvassing Board
v. Hogan, 607 So. 2d 508 (Fla. 4th DCA 1992), a case recently cited by this Court
in Palm Beach County Canvassing Board v. Harris, 25 Fla. L. Weekly S1062 (Fla.
Nov. 21, 2000). In Hogan, the Fourth District Court of Appeal reversed the trial
court’s order granting a manual recount, in contravention of the county canvassing
board’s decision noting that:
Although section 102.168 grants the right of contest, it does
not change the discretionary aspect of the review procedures outlined
in section 102.166. The statute clearly leaves the decision whether or
not to hold a manual recount of the votes as a matter to be decided
within the discretion of the canvassing board.
Id. at 510. I do not believe there is any sound reason to conclude that the
Legislature’s adoption of revised section 102.168 in 1999 intended to change this
and provide for a duplicative recount by an individual circuit judge.
I also agree with the trial judge’s conclusion that in a statewide election the
only way a court can order a manual recount of ballots that were allegedly not
counted because of some irregularity or inaccuracy in the balloting or counting
process is to order that the votes in all counties in which those processes were
used be recounted. I do not find any legal basis for the majority of this Court to
simply cast aside the determination by the trial judge made on the proof presented
at a two-day evidentiary hearing that the evidence did not support a statewideഊ-48-
recount. To the contrary, I find the majority’s decision in that regard quite
extraordinary.
Section 102.168(3), Florida Statues (2000), states in pertinent part:
The grounds for contesting an election under this section are:
. . . .
(c) Receipt of a number of illegal votes or rejection of a
number of legal votes sufficient to change or place in doubt the result
of the election.
(Emphasis added.) In other words, to establish a cause of action, plaintiff must
allege an irregularity that places in doubt the result of the election. First, to
“contest” simply means to challenge. See Webster’s Dictionary 250 (10th ed.
1994). Second, section 102.168(5), provides:
A statement of the grounds of contest may not be rejected, nor
the proceedings dismissed, by the court for any want of form if the
grounds of contest provided in the statement are sufficient to clearly
inform the defendant of the particular proceeding or cause for which
the nomination or election is contested.
(Emphasis added.) Upon my reading of the statute, I conclude that the language
“grounds of contest” unambiguously means: a basis upon which a plaintiff can
establish a cause of action. This standard is simply the threshold that must be met
to bring forth the contest action. Thus, this standard is not the standard that the
judge must use in deciding whether a plaintiff who brings the contest has
successfully met his or her burden to order a recount or set aside election results.ഊ27 In addition, under a protest the threshold that must be met to order a recount must be
lower than that under a contest, which action can only be brought after certification of the
returns. Therefore, the threshold to successfully carry a contest must be higher than that of a
mere protest.
-49-
Although it is unclear from case law what standard must be satisfied in order to
grant appropriate relief, it undoubtedly cannot be a low standard. Recently, in
Beckstrom, this Court declined to invalidate an election despite a finding that the
canvassing board was grossly negligent and in substantial noncompliance with the
absentee voting statutes. See Beckstrom. Thus, merely stating the cause of action
under the contest statute does not entitle a party to a recount or require the court to
set aside an election. More must be required. This is especially true here, where,
as in Beckstrom, the trial judge found no dishonesty, gross negligence, improper
influence, coercion, or fraud in the balloting and counting processes. Thus, a
plaintiff’s burden in establishing grounds on which a circuit judge could order
relief of any kind was simply not met. It is illogical to interpret section
102.168(3)(c) to set such a low standard where a plaintiff merely has to allege a
cause of action to successfully carry the contest.27
Furthermore, even conceding that the trial judge at the outset applied an
erroneous “probability of doubt” standard in deciding that plaintiffs failed to meet
their burden of establishing a cause of action, the trial judge faced a conundrumഊ-50-
that must be adequately explained. Plaintiffs asked the trial judge to grant the very
remedy–a recount of the under-votes–he prays for without first establishing that
remedy was warranted. Before any relief is granted, a plaintiff must allege that
enough legal votes were rejected to place in doubt the results of the election.
However, in order for the plaintiffs to meet this burden, the under-vote ballots
must be preliminarily manually recounted. Following this logic to its conclusion
would require a circuit court to order partial manual recounts upon the mere filing
of a contest. This proposition plainly has no basis in law.
As I have stated, I conclude in the case at bar that sections 102.166 and
106.168 must be read in pari materia. My analysis in this regard is bolstered in
situations, as here, where there was an initial protest filed in a county pursuant to
section 102.166 and a subsequent contest of that same county’s return pursuant to
section 102.168. It appears logical to me that a circuit judge in a section 102.168
contest should review a county canvassing board’s determinations in a section
102.166 protest under an abuse-of-discretion standard. I see no other reason why
the county canvassing board would be a party defendant if the circuit court is not
intended to evaluate the canvassing board’s decisions with respect to manual
recount decisions made in a section 102.166 protest. Finally, it is plain to me that
it is only in section 102.166 that there are any procedures for manual recountsഊ28 I am persuaded that even with these procedures manual recounts by the canvassing
board are constitutionally suspect. See Touchston v. McDermott, No. 00-15985 (U.S. 11th Cir.
Dec. 6, 2000) (Tjoflat, J., dissenting). This would be compounded by giving that power to an
individual circuit judge and providing him or her with no standards.
-51-
which address the logistics of a recount, including who is to conduct the count,
that it is to take place in public, and what is to be recounted.28
The majority quotes section 101.5614(5) for the proposition of settling how
a county canvassing board should count a vote. The majority states that “[n]o 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.” § 101.5614(5), Fla. Stat. (2000).
Section 101.5614(5), however, is a statute that authorizes the creation of a
duplicate ballot where a “ballot card . . . is damaged or defective so that it cannot
properly be counted by the automatic tabulating equipment.” There is no basis in
this record that suggests that the approximately 9000 ballots from Miami-Dade
County were damaged or defective.
Laying aside this problem and assuming the majority is correct that section
101.5614(5) correctly annunciates the standard by which a county canvassing
board should judge a questionable ballot, section 101.5614(5) utterly fails to
provide any meaningful standard. There is no doubt that every vote should be
counted where there is a “clear indication of the intent of the voter.” The problemഊ29 See n. 5.
-52-
is how a county canvassing board translates that directive to these punch cards.
Should a county canvassing board count or not count a “dimpled chad” where the
voter is able to successfully dislodge the chad in every other contest on that ballot?
Here, the county canvassing boards disagree. Apparently, some do and some do
not. Continuation of this system of county-by-county decisions regarding how a
dimpled chad is counted is fraught with equal protection concerns which will
eventually cause the election results in Florida to be stricken by the federal courts
or Congress.29
Based upon this analysis and adhering to the interpretation of the 1992
Hogan case, I conclude the circuit court properly looked at what the county
canvassing boards have done and found that they did not abuse their discretion.
Regarding Miami-Dade County, I find that the trial judge properly concluded that
the Miami-Dade Canvassing Board did not abuse its discretion in deciding to
discontinue the manual recount begun on November 19, 2000. Evidence
presented at trial indicated that the Miami-Dade Board made three different
decisions in respect to manual recounts. The first decision was not to count, the
second was to count, and the third was not to count. The third decision was based
upon the determination by the Miami-Dade Board that it could not make theഊ-53-
November 26, 2000, deadline set by this Court in Harris and that it did not want to
jeopardize disenfranchising a segment of its voters. The law does not require
futile acts. See Haimovitz v. Robb, 130 Fla. 844; 178 So. 827 (1937). Section
102.166(5)(c) requires that, if there is a manual recount, all of the ballots have to
be recounted. I cannot find that the Miami-Dade Board’s decision that all the
ballots could not be manually recounted between November 22 and November 26,
2000, to be anything but a decision based upon reality. Moreover, not to count all
of the ballots if any were to be recounted would plainly be changing the rules after
the election and would be unfairly discriminatory against votes in the precincts in
which there was no manual recount. Thus, I agree with the trial court that the
Miami-Dade Board did not abuse its discretion in discontinuing the manual
recount.
In respect to the Palm Beach County Canvassing Board, I likewise find that
the trial judge did not err in finding that the Palm Beach Board was within its
discretion in rejecting the approximately 3300 votes in which it could not discern
voter intent. As set forth in Boardman, the county canvassing boards are vested
with the responsibility to make judgments on the validity of ballots, and its
determinations will be overturned only for compelling reasons when there areഊ-54-
clear, substantial departures from essential requirements of law. See id., 323 So.
2d at 268 n 5. Petitioners have not met this burden.
I also agree with the trial judge that the Election Canvassing Commission
(Commission) did not abuse its discretion in refusing to accept either an amended
return reflecting the results of a partial manual recount or a late amended return
filed by the Palm Beach Board. I conclude that it is plain error for the majority to
hold that the Commission abused its discretion in enforcing a deadline set by this
Court that recounts be completed and certified by November 26, 2000. I conclude
that this not only changes a rule after November 7, 2000, but it also changes a rule
this Court made on November 26, 2000.
As I stated at the outset, I conclude that this contest simply must end.
Directing the trial court to conduct a manual recount of the ballots violates
article II, section 1, clause 2 of the United States Constitution, in that neither this
Court nor the circuit court has the authority to create the standards by which it will
count the under-voted ballots. The Constitution reads in pertinent part: “Each
State shall appoint, in such Manner as the Legislature thereof may direct, a
Number of Electors.” Art. II, § 1, cl. 2, U.S. Const. The Supreme Court has
described this authority granted to the state legislatures as “plenary.” See
McPherson v. Blacker, 146 U.S. 1, 7 (1892). “Plenary” is defined as “full, entire,ഊ-55-
complete, absolute, perfect, [and] unqualified.” Black’s Law Dictionary 1154 (6th
ed. 1990).
The Legislature has given to the county canvassing boards–and only these
boards–the authority to ascertain the intent of the voter. See § 102.166(7)(b), Fla.
Stat. (2000). Just this week, the United States Supreme Court reminded us of the
teachings from Blacker when it said:
[Art. II, §1, cl. 2] does not read that the people or the citizens shall
appoint, but that ‘each State shall’; and if the words ‘in such manner
as the legislature thereof may direct,’ had been omitted, it would seem
that the legislative power of appointment could not have been
successfully questioned in the absence of any provision in the state
constitution in that regard. Hence the insertion of those words, while
operating as a limitation upon the State in respect of any attempt to
circumscribe the legislative power, cannot be held to operate as a
limitation on that power itself.”
Bush v. Palm Beach Canvassing Bd., No. 00-836, slip op. at 4-5 (U.S. Dec. 4,
2000) (quoting Blacker, 146 U.S. at 7). Clearly, in a presidential election, the
Legislature has not authorized the courts of Florida to order partial recounts, either
in a limited number of counties or statewide. This Court’s order to do so appears
to me to be in conflict with the United States Supreme Court decision.
Laying aside the constitutional infirmities of this Court’s action today, what
the majority actually creates is an overflowing basket of practical problems.
Assuming the majority recognizes a need to protect the votes of Florida’sഊ30 As the Supreme Court recently noted, 3 U.S.C § 5 creates a safe harbor provision
regarding congressional consideration of a state’s electoral votes should all contests and
controversies be resolved at least six days prior to December 18, 2000, if made pursuant to the
state of the law as it existed on election day. See Bush at 6. There is no legislative suggestion
that the Florida Legislature did not want to take advantage of this safe harbor provision.
31 See § 102.166(6), Fla. Stat. (2000).
-56-
presidential electors,30 the entire contest must be completed “at least six days
before” December 18, 2000, the date the presidential electors meet to vote. See 3
U.S.C. § 5 (1994). The safe harbor deadline day is December 12, 2000. Today is
Friday, December 8, 2000. Thus, under the majority’s time line, all manual
recounts must be completed in five days, assuming the counting begins today.
In that time frame, all questionable ballots must be reviewed by the judicial
officer appointed to discern the intent of the voter in a process open to the public.31
Fairness dictates that a provision be made for either party to object to how a
particular ballot is counted. Additionally, this short time period must allow for
judicial review. I respectfully submit this cannot be completed without taking
Florida’s presidential electors outside the safe harbor provision, creating the very
real possibility of disenfranchising those nearly six million voters who were able
to correctly cast their ballots on election day.
Another significant problem is that the majority returns this case to the
circuit court for a recount with no standards. I do not, and neither will the trialഊ-57-
judge, know whether to count or not count ballots on the criteria used by the
canvassing boards, what those criteria are, or to do so on the basis of standards
divined by Judge Sauls. A continuing problem with these manual recounts is their
reliability. It only stands to reason that many times a reading of a ballot by a
human will be subjective, and the intent gleaned from that ballot is only in the
mind of the beholder. This subjective counting is only compounded where no
standards exist or, as in this statewide contest, where there are no statewide
standards for determining voter intent by the various canvassing boards, individual
judges, or multiple unknown counters who will eventually count these ballots.
I must regrettably conclude that the majority ignores the magnitude of its
decision. The Court fails to make provision for: (1) the qualifications of those
who count; (2) what standards are used in the count–are they the same standards
for all ballots statewide or a continuation of the county-by-county constitutionally
suspect standards; (3) who is to observe the count; (4) how one objects to the
count; (5) who is entitled to object to the count; (6) whether a person may object to
a counter; (7) the possible lack of personnel to conduct the count; (8) the fatigue
of the counters; and (9) the effect of the differing intra-county standards.
This Court’s responsibility must be to balance the contest allegations
against the rights of all Florida voters who are not involved in election contests toഊ-58-
have their votes counted in the electoral college. To me, it is inescapable that
there is no practical way for the contest to continue for the good of this country
and state.
I am persuaded that Justice Terrell was correct in 1936 when he said:
This court is committed to the doctrine that extraordinary relief
will not be granted in case where it plainly appears that although the
complaining party may be ordinarily entitled to it, if the granting of
such relief in the particular case will result in confusion and disorder
and will produce an injury to the public which outweighs the
individual right of the complainant to have the relief he seeks.
State v. Wester, 126 Fla. 49, 54, 170 So. 736, 738-39 (1936) (citations omitted;
emphasis added).
For a month, Floridians have been working on this problem. At this point, I
am convinced of the following.
First, there have been an enormous number of citizens who have expended
heroic efforts as members of canvassing boards, counters, and observers, and as
legal counsel who have in almost all instances, in utmost good faith attempted to
bring about a fair resolution of this election. I know that, regardless of the
outcome, all of us are in their debt for their efforts on behalf of representative
democracy.ഊ-59-
Second, the local election officials, state election officials, and the courts
have been attempting to resolve the issues of this election with an election code
which any objective, frank analysis must conclude never contemplated this
circumstance. Only to state a few of the incongruities, the time limits of sections
102.112, 102.166, and 102.168 and 3 U.S.C. §§ 1, 5, and 7 simply do not
coordinate in any practical way with a presidential election in Florida in the year
2000. Therefore, section 102.168, Florida Statues, is inconsistent with the remedy
being sought here because it is unclear in a presidential election as to: (1) whether
the candidates or the presidential electors should be party to this election contest;
(2) what the possible remedy would be; and (3) what standards to apply in
counting the ballots statewide.
Third, under the United States Supreme Court’s analysis in Bush v. Palm
Beach County Canvassing Board, wherein the Supreme Court calls to our attention
McPherson v. Blacker, 146 U.S. 1 (1892), there is uncertainty as to whether the
Florida Legislature has even given the courts of Florida any power to resolve
contests or controversies in respect to presidential elections.
Fourth, there is no available remedy for the petitioners on the basis of these
allegations. Quite simply, courts cannot fairly continue to proceed withoutഊ32 The election is a tie, so let’s get on with it,” St. Petersburg Times, Dec. 3, 2000, at 3D.
-60-
jeopardizing the votes and rights of other citizens through a further count of these
votes.
I must take seriously the counsel of the Supreme Court in Bush:
Since [3 U.S.C.] §5 contains a principle of federal law that would
assure finality of the State’s determination if made pursuant to a state
law in effect before the election, a legislative wish to take advantage
of the “safe harbor” would counsel against any construction of the
Election Code that Congress might deem to be a change in the law.
Id. at 6.
This case has reached the point where finality must take precedence over
continued judicial process. I agree with a quote from John Allen Paulos, a
professor of mathematics at Temple University, when he wrote that, “[t]he margin
of error in this election is far greater than the margin of victory, no matter who
wins.”32 Further judicial process will not change this self-evident fact and will
only result in confusion and disorder. Justice Terrell and this Court wisely
counseled against such a course of action sixty-four years ago. I would heed that
sound advice and affirm Judge Sauls. |
