From Drudge.
Fri Dec 08 2000 18:27:24 ET
Key Quotes from the Dissents:
Chief Justice Wells' Dissent
* "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 undervotes 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." (p. 41)
* "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 there is real and present
likelihood that this constitutional crisis will do substantial damage to our country, our
state and to this Court as an institution." (p. 41-42)
* "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)." (p. 42)
* "[A]fter an evidentiary hearing, the trial court expressly found no dishonesty, gross
negligence, improper influence, coercion, or 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." (p. 43-44)
* "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."
. . . 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 crisis with the other branches of government
and raises serious separation-of-powers concerns." (p. 44-45)
* "[T]he 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 statewide recount. To the contrary, I find the majority's
decision in that regard quite extraordinary." (p. 47-48)
* "[I]n 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." (p. 49)
* "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. . . . 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." (p. 50)
* "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." (p. 52)
* "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 undervoted
ballots. (p. 54)
* "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." (p. 55)
* "Laying aside the constitutional infirmities of this Court's action today, what the
majority actually creates is an overflowing basket of practical problems." (p. 55)
* "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 ballot. I
must regrettably conclude that the majority ignores the magnitude of its decision." (p. 57)
* "To me, it is inescapable that there is no practical way for the contest to continue for
the good of this country and state." (p. 58)
Harding and Shaw Dissent
* "[T]he 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." (p. 66)
* "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, presumably because there was no authority for such action
and nothing in the record to guide the Court in setting such standards. The same
circumstances exist in this case." (p. 67-68)
* "[T]he 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. . . . The uncertainty of the outcome
of this election will be greater under the remedy afforded by the majority than the
uncertainty that now exists." (p. 68)
* "The 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.'" (p. 69) |
