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HARDING, J., dissenting.
I would affirm Judge Sauls’ order because I agree with his ultimate
conclusion in this case, namely that the Appellants failed to carry their requisite
burden of proof and thus are not entitled to relief. However, in reaching his
conclusion, Judge Sauls applied erroneous standards in two instances. First, in
addressing the Appellants’ challenges of the election certifications in Miami-Dade
and Palm Beach Counties, the judge stated that “[t]he local boards have been
given broad discretion, which no court may overrule, absent a clear abuse of
discretion.” Applying this standard, the judge concluded that the Miami-Dade
County Canvassing Board did not abuse its discretion in any of its decisions in the
review and recounting process. While abuse of discretion is the proper standard
for assessing a canvassing board’s actions in a section 102.166 protest proceeding,
it is not applicable to this section 102.168 contest proceeding. Judge Sauls
improperly intertwined these two proceedings and the standards applicable to
each.
In 1999, the Florida Legislature extensively amended the contest statute to
specify the grounds authorized for contesting an election and to set up a time
frame for contests. See ch. 99-339, § 3, at 3547-49, Laws of Fla. The Legislature
also amended the protest statute by eliminating the role of the circuit courts inഊ-62-
protest proceedings. See id., §1, at 3546. The county canvassing boards have
been granted discretion to authorize a manual recount when requested by a
candidate, political party, or political committee who seeks to protest the returns of
an election as being erroneous. See § 102.166(4)(c), Fla. Stat. (2000) (“The
county canvassing board may authorize a manual recount.”) (emphasis added).
In contrast, a contest proceeding involves a legal challenge to the outcome
of an election. The circuit judge is statutorily charged with three tasks in a contest
proceeding: (1) to ensure that each allegation in the contestant’s complaint is
investigated, examined, or checked; (2) to prevent or correct any alleged wrong;
and (3) to provide any relief appropriate under such circumstances. See §
102.168(8), Fla. Stat. (2000). Where a contestant alleges that the canvassing
board has rejected a number of legal votes “sufficient to change or place in doubt
the result of the election” due to the board’s decision to curtail or deny a manual
recount, the circuit judge should examine this issue de novo and not under an
abuse of discretion standard. § 102.168(3)(c), Fla. Stat. (2000).
Second, Judge Sauls erred in concluding that a contestant under section
102.168(3)(c) must show a “reasonable probability that the results of the election
would have been changed.” Judge Sauls cited the First District Court of Appeal’s
decision in Smith v. Tynes, 412 So. 2d 925, 926 (Fla. 1 st DCA 1982), asഊ-63-
establishing this standard for election contests. However, as discussed above,
when the Legislature amended section 102.168 in 1999, it specified five grounds
for contesting an election, including the “[r]eceipt 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.) Smith v. Tynes, which was decided in
1982, addressed the pre-amendment statute which did not specify the grounds for
a contest. Thus, the current statutory standard controls here.
While I disagree with Judge Sauls on the standards applicable to this
election contest, I commend him for the way that he conducted the proceedings
below under extreme time constraints and pressure. Further, I believe that Judge
Sauls properly concluded that there was no authority to include the Palm Beach
County returns filed after the explicit deadline established by this Court.
I conclude that the application of the erroneous standards is not
determinative in this case. I agree with Judge Sauls that the Appellants have not
carried their burden of showing that the number of legal votes rejected by the
canvassing boards is sufficient to change or place in doubt the result of this
statewide election. That failure of proof controls the outcome here. Moreover, as
explained below, I do not believe that an adequate remedy exists under the
circumstances of this case.ഊ33 No-votes (ballots for which the no vote for Presidential electors was
recorded) exist throughout the state, not just in the counties selected by
Appellants. Of the 177,655 no-votes in the November 7, 2000, election in Florida,
28,492 occurred in Miami-Dade County and 29,366 occurred in Palm Beach
County. See Division of Elections, Voter Turnout Report, S-DX 41; Division of
Elections, General Election Results, S-DX 40.
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I conclude that Judge Sauls properly found that the evidence presented by
Appellants, even if believed, was insufficient to warrant any remedy under section
102.168.
The basis for Appellants claim for relief under section 102.168 is that there
is a “no-vote” problem, i.e., ballots which, although counted by machines at least
once, allegedly have not been counted in the presidential election. The evidence
showed that this no-vote problem, to the extent it exists, is a statewide problem.33
Appellants ask that only a subset of these no-votes be counted.
In a presidential election, however, section 102.168, by its title, is an
“Election” contest and, as such, it is not a local contest seeking to define the
correct winner of the popular vote in any individual county. The action is to
determine whether the Secretary of State certified the correct winner for the entire
State of Florida. By its plain language, section 102.168(1) provides that only the
“unsuccessful candidate” may contest an election. If this contest provision may be
invoked as to individual county results, as argued by Appellants, then Viceഊ-65-
President Gore’s choice of the three particular counties was improper because he
was not “unsuccessful” in those counties. I read the statute as applying to
statewide results in statewide elections. Thus, Vice President Gore, as the
unsuccessful candidate statewide, could contest the election results. However, in
this contest proceeding, Appellants had an obligation to show, by a preponderance
of the evidence, that the outcome of the statewide election would likely be
changed by the relief they sought.
Appellants failed, however, to provide any meaningful statistical evidence
that the outcome of the Florida election would be different if the “no-vote” in
other counties had been counted; their proof that the outcome of the vote in two
counties would likely change the results of the election was insufficient. It would
be improper to permit Appellants to carry their burden in a statewide election by
merely demonstrating that there were a sufficient number of no-votes that could
have changed the returns in isolated counties. Recounting a subset of counties
selected by the Appellants does not answer the ultimate question of whether a
sufficient number of uncounted legal votes could be recovered from the statewide
“no-votes” to change the result of the statewide election. At most, such a
procedure only demonstrates that the losing candidate would have had greater
success in the subset of counties most favorable to that candidate.ഊ-66-
Moreover, assuming that there may be some shortfall in counting the votes
cast with punch card ballots, such a problem is only properly considered as being
systemic with the punch card system itself, and any remedy would have had to be
statewide. Any other remedy would disenfranchise tens of thousands of other
Florida voters, as I have serious concerns that Appellant’s interpretation of
102.168 would violate other voters’ rights to due process and equal protection of
the law under the Fifth and Fourteenth Amendments to the United States
Constitution.
As such, I would find that the selective recounting requested by Appellant is
not available under the election contest provisions of section 102.168. Such an
application does not provide for a more accurate reflection of the will of the voters
but, rather, allows for an unfair distortion of the statewide vote. It is patently
unlawful to permit the recount of “no-votes” in a single county to determine the
outcome of the November 7, 2000, election for the next President of the United
States. We are a nation of laws, and we have survived and prospered as a free
nation because we have adhered to the rule of law. Fairness is achieved by
following the rules.
Finally, even if I were to conclude that the Appellant’s allegations and
evidence were sufficient to warrant relief, I do not believe that the rules permit anഊ34 See Palm Beach County Canvassing Bd. v. Harris, Nos. SC00-2346, SC00-2348,
SC00-2349 (Fla. Nov. 21, 2000), vacated by Bush v. Palm Beach Canvassing Bd., 531 U.S. ____
(2000).
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adequate remedy under the circumstances of this case. This Court, in its prior
opinion, and all of the parties agree that election controversies and contests must be
finally and conclusively determined by December 12, 2000. See 3 U.S.C. § 5. This
Court is “not required to do a useless act nor are we required to act if it is
impossible for us to grant effectual relief.” State v. Strasser, 445 So. 2d 322, 322
(Fla. 1983). See also Hoshaw v. State, 533 So. 2d 886, 887 (Fla. 3d DCA 1988)
(“The law does not require futile acts.”); International Fidelity Ins. Co. v. Prestige
Rent-A-Car, Inc., 715 So. 2d 1025, 1028 (Fla. 5th DCA 1998) (“Florida law does
not require trial courts to enter orders which are impossible to execute or which
require parties to perform acts that cannot be of any force or effect.”). Clearly, the
only remedy authorized by law would be a statewide recount of more than 170,000
“no-vote” ballots by December 12. Even if such a recount were possible, speed
would come at the expense of accuracy, and it would be difficult to put any faith or
credibility in a vote total achieved under such chaotic conditions. In order to
undertake this unprecedented task, the majority has established standards for
manual recounts–a step that this Court refused to take in an earlier case,34
presumably because there was no authority for such action and nothing in theഊ-68-
record to guide the Court in setting such standards. The same circumstances exist
in this case. All of the parties should be afforded an opportunity to be heard on this
very important issue.
While this Court must be ever mindful of the Legislature’s plenary power to
appoint presidential electors, see U.S. Const. art. II, § 1, cl. 2, I am more concerned
that the majority is departing from the essential requirements of the law by
providing a remedy which is impossible to achieve and which will ultimately lead
to chaos. In giving Judge Sauls the option to order a statewide recount, the
majority permits a remedy which was not prayed for, which is based upon a
premise for which there is no evidence, and which presents Judge Sauls with
options to order entities (i.e. local canvassing boards) to conduct recounts when
they have not been served, have not been named as parties, but, most importantly,
have not had the opportunity to be heard. In effect, the majority is allowing the
results of the statewide election to be determined by the manual recount in Miami-Dade
County because a statewide recount will be impossible to accomplish. Even
if by some miracle a portion of the statewide recount is completed by December 12,
a partial recount is not acceptable. The uncertainty of the outcome of this election
will be greater under the remedy afforded by the majority than the uncertainty that
now exists.ഊThe circumstances of this election call to mind a quote from football
coaching legend Vince Lombardi: “We didn’t lose the game, we just ran out of
time.”
SHAW, J., concurs. |
