’. . . That Vote Has to Be Counted’

Excerpts from a hearing Monday on the Florida recount before the Florida Supreme Court. Speakers include:

* Chief Justice Charles T. Wells

* Justice Harry Lee Anstead

* Justice Major Harding

* Justice Peggy Quince

* Justice Barbara Pariente

* Justice Leander J. Shaw Jr.

* Gore campaign attorney David Boies

* Bush campaign attorneys Barry Richard and Michael Carvin

* Joseph Klock Jr., attorney for Secretary of State Katherine Harris

* Paul Hancock, Florida deputy attorney general

* Bruce Rogow, attorney for the Palm Beach County election supervisor

* Andrew J. Meyers, attorney for Broward County

*

HANCOCK: Our concern with the secretary of state’s interpretation of Florida law, and everything that followed from that interpretation, is that it was not guided by sound, legal principles. It’s flatly wrong. It elevates the machines over voters.

We have a situation in Palm Beach County where the election officials reported that 10,000 people, 10,000 ballots, did not record a vote for president. Now, that should raise an issue. I mean, maybe people went to the polls to vote for the speed train. But the logical assumption is that most people who went to the polls were there to vote for president and vice president.

. . . We submit to the court, and it’s plainly set forth in the statute, that in that recount, county officials should look at those ballots to discern the intent of the voter. That is a standard that’s in the law that’s in lock-step with every decision of this court for over 100 years on how we review election returns, and of how we re-ballot.

HARDING: But there is also a provision of that statute that says it should be done within seven days.

HANCOCK: Yes, Justice Harding, there is, and there is the following section after that says that the first section you cite says they shall be done in seven days or not counted, the next section says they may be counted if they are not done in seven days. So there is a conflict.

We submit that the election laws have to be read in their totality. Yes, counties should get their returns in in seven days, and they should work hard to do it. But the law also has provisions for recounts, and the statute allows at least three days for a candidate to request recounts. It then requires a sampling of ballots. It then requires, if a problem is found, a full recount.

*

SHAW: Is there a certain point, Mr. Rogow, when the secretary [of state] can cut off the recount? For instance, if it would affect her getting the votes in to the electoral college to be counted, could she cut off the recount?

ROGOW: I don’t think she could cut off the recount on that basis, Justice Shaw. I think that what’s interesting here is, of course, the certification which we made after seven days is really only a partial certification, because the absentee ballots are not due until three days later, 10 days after the election.

So the process is an open, ongoing process, and we think that the time, of course, is there to complete the process.

*

PARIENTE: There was a representation in one of the briefs that counting in Broward County would be completed as of today. Is that not accurate?

MEYERS: That is no longer accurate, ma’am, based upon my understanding. That was based upon applying a mechanical two-corner rule. And we’re going to have to go back, based upon what we believe is a correct interpretation of the law, to discern the intent of each ballot from the totality of the ballot.

HARDING: Isn’t there something unusual about changing the rules in the middle of the game?

MEYERS: I don’t think so, Justice Harding. I think the important thing is that we do what’s right at the end. And this has been an evolving area since the--

HARDING: But you made a deliberate decision as to how you’re going to count them. Did you start out counting them that way?

MEYERS: Yes, sir, we did, but at the same time we kept the ballot separate in the event, as information unfolded.

And, Justice Harding, since that time, we’ve received direction from both Judge Labarga in Palm Beach County and from Judge Miller, who’s handling a case for us down below, both of whom stated that our two-corner rule wouldn’t be valid. And that’s consistent with our understanding of law.

PARIENTE: By valid, do you mean too restrictive?

MEYERS: Too restrictive, ma’am. Our members of our canvassing board have stated that they can determine the intent of ballots in ways other than the two-corner rule. And, in fact, there are ballots that are not presently being tallied for one side or the other from which they can determine the intent.

*

SHAW: Why shouldn’t the secretary of state be the person to set that date [for certifying votes] instead of a court? Why couldn’t the secretary say that, “This is the time frame that I need in order to fulfill my duty of getting the certification in” and set an arbitrary date?

BOIES: But, your honor, the secretary of state’s function is a ministerial function. She is not going to be the person who presides over the contest.

The contest, if there is one, is going to be a contest that is going to be before the Circuit Court, and, ultimately, before this court.

HARDING: However, Mr. Boies, that brings us to the “may ignore” language in that statute. And wouldn’t you have to agree that the “may ignore” does--”may” does connote some degree of discretion? And why isn’t that discretion set on the basis of that she may ignore them if the acceptance of the amended certification would prejudice the other voters whose votes would be certified because they were already there and get timely counted in the electoral college?

BOIES: I think, your honor, you could say--and this is not that different from what we have argued--that as long as the manual recounts will not impair the final certification in time to permit the selection of electors by Dec. 12, that those manual recounts must be included. That is, the secretary of state’s discretion, to the extent that she has any, would be discretion to say, “I need to have the results by this particular date in order to be sure that the results are included by Dec. 12.”

QUINCE: If that’s the case then, should we be trying to determine also this whole issue about the faulty chads? Because I would assume that that would be a part of any contest that would be made of the recount. But if we’re worried about this time limit, is that something that we should be concerned with now, and is it squarely before this court now?

BOIES: Your honor, I think it is squarely before the court, and I think the court must be concerned with it now, because I think that given the particular deadline, the wall, that is set up by the federal provision, that this court needs to act expeditiously to set the standard, because we don’t think we have time. . . .

*

BOIES: If you go back into Florida law, the test [for recording a vote] has always been the intent of the voter, and that is written into Section 166, the manual recount provision. It talks about first the counters--and then the [county] canvassing board--looking at the ballot to determine the intent of the voters.

QUINCE: So if that’s the case, would it be your--would you be telling this court that any mark made by the voter would be evidence of that voter’s intent and should be counted as such?

BOIES: I think so, your honor, and that is really what, for example, the Delahunt decision that we cite in our papers from the Supreme Court of Massachusetts, or the Illinois cases that we cited, or a number of the other cases that we cited, have expressly held.

That question has never been before this court directly, but that has been dealt with in the cases from other jurisdictions that we’ve cited that we would hope the court would find persuasive.

In addition, we cited, perhaps for obvious reasons, the statute from Texas, which provided statutory guidelines for defining that.

PARIENTE: Is the uniformity of how these manual recounts are conducted essential to the integrity of the process or also to the constitutionality of the statute?

BOIES: Your honor, I think it is important to the integrity of the process. I think if you had very wide variations you could raise constitutional problems.

*

WELLS: But Mr. Klock, let me get you to my concern.

KLOCK: Yes, sir.

WELLS: The concern that I have is that it’s not--we have a long-standing policy out of courts of this state that say that the real parties and interests here are the voters. Now, what I want to know is that: What, and if, this 112 has a provision which says that some voters’ votes may be ignored?

And what I am concerned about is, what [are] the boundaries upon which the secretary or the commission could exercise its discretion and have those voters ignored? And I pose to you that in this particular presidential election, doesn’t it revolve around the electoral college and the fact that the prejudice that is involved here is the prejudice of not allowing Florida’s votes to get counted?

*

WELLS: But what I’m concerned about is the ramifications under the federal statutes, which, as your opposition says here, is Dec. 12, or six days before Dec. 18.

Now, what I want to know is, on what date does the secretary [of state] take the position that her duty to certify those votes is going to be jeopardized? And what is the basis of that jeopardy if the votes aren’t certified on X date?

KLOCK: Respectfully, Mr. Chief Justice, the secretary is governed by the Florida statutes.

She is mandated to certify the election results seven days after the election and then to pick up the overseas ballots later.

Now, the question that you’re asking, I can’t exactly answer, because what you’re now balancing is the right of the counting process versus the right of the contest process. Your honor, I don’t know how to answer that question.

WELLS: What I’m concerned about is the rights of those voters who may not have their votes counted if we don’t honor the recounted votes and the rights of all the voters who might have their rights denied if the certification doesn’t get in within the time limit. . . .

*

ANSTEAD: Does the secretary [of state], though, play any role in determining whether or not there shall be a manual recount in any county?

KLOCK: Absolutely not, sir.

ANSTEAD: And so who has the authority and responsibility for that?

KLOCK: The canvassing board of the county has the responsibility in response to a request from a candidate or a political party to conduct a manual recount, which is this test.

ANSTEAD: Well, under the circumstances that we have here then, is it, in essence, the secretary of state, who has no authority to determine that, overruling a decision by the proper body that has the authority to do that, to do it. Isn’t that what the net effect of this is?

KLOCK: To the contrary, Justice Anstead. . . .

ANSTEAD: Well, if the secretary is saying, “I’m not going to count the recount” that started very late in the process and at a time in a large county where effectively the recount could not be completed before the seven days were up, isn’t that the net effect?

KLOCK: Justice, I don’t know that the recount couldn’t be done in that period of time. And of course, we have no trial record to know whether the recount could be done in that time--

ANSTEAD: Don’t we also end up sort of discriminating between small counties and large counties? If we take [Miami-] Dade County, for instance, and Okaloosa County, clearly there is going to be a vast difference in the time that it takes Dade County to do that manual recount compared to a small county. . . .

*

HARDING: We’ve had cases dealing with this issue [voter intent] in Florida since the 1800s. And all of them, in some way, shape or form, come about because voters do not follow the instructions.

And in all of those cases that I have read, when you can look at the ballot, even though it is improperly marked and even though the voter did not follow the instruction, but you can tell the intent of the voter from that ballot, that that vote has to be counted.

KLOCK: And Mr. Justice Harding, I would suggest to you that all of those cases that you have seen have been a voting contest. And the difficulty we have here, as I say again, the court is being brought into something it need not be brought into. This is not a legal problem; this is a political problem.

If the voting is certified, everyone can then proceed with a contest. The difficulty is the political problem that is created.

HARDING: How would you proceed, Mr. Klock, that this matter would be resolved? If it is challenged, then we would order a recount or some court would order a recount?

KLOCK: Could you do that, yes, your honor, that’s--but you’d have a record, for instance.

HARDING: Isn’t that discretion given to the canvassing board under the statute?

KLOCK: The canvassing board is free--I mean, the manual recounts are going on right now. And I believe irrespective of what this court had said, the manual recounts could go on. . . .

*

WELLS: Mr. Carvin, let me roll my initial concern, as stated by you, and--tell me when Florida’s certification would be in jeopardy if the certification is not made by that date?

CARVIN: Well, it’s clearly in jeopardy now.

WELLS: Why is that?

CARVIN: Dec. 12 is the cutoff date.

WELLS: Why is it in jeopardy now?

CARVIN: Because if they’re not certified, then there is no way to come to an accurate statewide count. And that, as we’ve seen over the last 10 days, is an enormous undertaking.

So if we continue to delay the certification process--remember that deadline is not the end of the process for finding accuracy, it is the beginning of the process for finding accuracy.

*

Pariente asked if Bush opposed hand counts because the process of hand-counting is flawed.

CARVIN: No, your honor. I think we should follow the process that’s set out in the statutes.

PARIENTE: But I’m asking you that question: Is that--you’re saying that recounts weren’t requested because there was a belief that the process was flawed.

CARVIN: Right.

PARIENTE: What part of the process was flawed?

CARVIN: Well, as has been indicated, we think the process is entirely subjective, subject to mischief, and most important--

PARIENTE: The manual recount process?

CARVIN: Well, the process, for example, that we were discussing in Broward County, today.

PARIENTE: But is it the manual recount process that’s inherently flawed?

CARVIN: Yes.

PARIENTE: And isn’t that the exact process that is set forth by--as has been represented to us, as the statutes reveal, in Texas law, for this exact process to take place where there’s manual recounts? And that those are preferred over the machine recounts?

CARVIN: I really don’t know what Texas law is. I know in Florida, though, there is no preference for manual recounts over machine recounts.

*

QUINCE: . . . [When] someone has gone to the polls and they have punched the hole properly, but for whatever reason the chad didn’t fall out, are you saying, under your analysis of this--and even if this happened to half of the ballots in the county--that there is nothing that can be done?

CARVIN: No, obviously, if there was a machine malfunction that--

QUINCE: No, I’m not saying there is a machine malfunction. I am simply saying that the person punched the hole, whatever hole they wanted to punch, but, for whatever reason, the chad did not fall out, what would we do with all of those ballots?

CARVIN: I think we’d have to know whether or not the ballot--the hole didn’t fall out because the person punched and the machine malfunctioned and it didn’t go out, or whether the person intended to punch where the hole was.

*

RICHARD: . . . And whether or not history ultimately looks kindly upon what we do here, I believe, will depend upon whether we have abandoned those principles of law and statutory construction and separation of powers that we have adhered to for so long.

*

BOIES: . . . I’m not urging in any way that this court do anything that will imperil Florida’s electoral votes. What I am asking is that the court use its power to make sure that all the votes of the voters in Florida that have been cast for those elections are counted.