Text Of Fla. High Court Hearing (2)

The text of Florida Supreme Court hearing continues below:

RICHARD: No, sir. We don't find ourselves in that posture. We find ourselves in a posture in which canvassing boards to which the legislature has delegated the authority have made decisions. And this is no different than any of the hundreds of cases that come to our district courts of appeal, and ultimately sometimes to this court, in which an administrative agency given discretion has exercised the discretion. And the rule for time in memorial has been that the standard of review is whether or not that agency has abused its discretion, one of the highest standards known to the law.

ANSTEAD: Well, we have a ruling here do we not? from a district court of appeal, on an application for mandamus that has said that the Dade County Canvassing Board had a mandatory duty to continue the counting of the ballots once they decided to have a recount, and that only because it could not meet a filing date, would they not grant a writ of mandamus. So indeed, we have a review, do we not, of the very specific canvassing board that made a decision here? And we have a legal ruling by a district court of appeal, as you say, that has held that they erred in that, that they did have a mandatory obligation to continue the count. How can we overturn that ruling?

RICHARD: The district court of appeal determined not to continue the count for two reasons. The first reason was that...

ANSTEAD: The district court of appeal or the canvassing board?

RICHARD: I'm sorry. The canvassing board determined not to continue the count for two reasons. The first reason was that after they had done the initial 1 percent, three precinct count, they found six votes difference in favor of Vice President Gore. The canvassing board made the determination that based upon that six votes, there was no reason to believe that there would be a change in the result of the election, one of the critical elements of Subsection 168.

Now that issue was tried before Judge Sauls, and he resolved conflicting evidence in favor of the fact...

ANSTEAD: Where is there any finding by Judge Sauls that the reason that the recount was discontinued in Dade County was because the canvassing board had initially decided that there would be no merit to having a recount? Was there such a finding?

RICHARD: He does not make that finding, but he does make the finding that there would not have been a difference in the result, and that was within his discretion to make that finding, because he had conflicting evidence and he resolved it.

ANSTEAD: Do you agree that, in the Third District's opinion, they only set out that there was a single reason, a single reason for stopping the recount? And that single reason was the inability to meet a deadline.

RICHARD: Yes, sir, and I will address that reason as well. But after...

ANSTEAD: Help me with the record in this case that we have where it hows a contrary finding or holding with that holding of the Third District Court of Appeal. In other words, where would I look in this record?

RICHARD: Yes, sir. Let me address both of your questions. And so, let me begin with the one that you ask.

The canvassing board, it is beyond dispute, made the decision not to continue because they determined that once this court had set a deadline of November 26, that they could not possibly meet that deadline.

Now I pause here to note that in retrospect they apparently made the right decision, because Palm Beach County, which is a smaller county, was well into their count as of that time and was unable to meet that deadline. And the law of this state from time in memorial says that no governmental agency and no person is required by law to engage in a futile act. That alone is sufficient to uphold the decision of the canvassing board because they clearly one cannot say that reasonable men could not differ as to the decision.

ANSTEAD: hold that thought for a moment, because in our earlier decision interpreting the statute with reference to the filing date, we in essence said that the secretary of state could refuse a filing by a particular county only if, one, it would interfere with the federal obligation to have the electors determined by a fixed date; or, two, that it would interfere with a contest.

Now, has there been any showing in this case that either of those issues applied to the decision by the canvassing board to stop their counting?

RICHARD: No, sir. But this court also said you must have votes by November 26. And the canvassing board, having made the decision, it was impossible had two choices. One was to not submit the not to continue the count. And the second was to send up a partial count, which according to the evidence before the board, would have cut off a substantial number not only of precincts that might have been significantly different than the result, but also that would have disenfranchised a particular minority within Dade County. One cannot say that reasonable men and women would not be able to differ as to the decision of that canvassing board.

The other point that I would like to make is that, subsequent to the decision of the Third District Court of Appeal, there was a trial. And in that trial Judge Sauls resolved conflicting evidence as to the question of whether in fact there would have been a change in the election regarding Dade County, and determined that there would not have been.

There was substantial...

PARIENTE: Just let me you keep on using the language that there should be a reasonable probability of a change, and you've said that, again, we've got to stick to the statute.

My reading of the statute says "sufficient to change or place in doubt the results of the election." "Place in doubt" is a different standard than "a reasonable probability of different result." Do you gree with that?

RICHARD: I'm not sure, Justice Pariente, but I don't think we need to address that issue at this time because there was virtually no evidence in the record upon which one could conclude there was no evidence of any single voting machine that misoperated. There was no evidence of any voter whose vote was not properly recorded.

PARIENTE: So your position is that, in the contest, that errors or undervoting, as we've been referring to it as that is, the failure of the machine to read a vote that might otherwise be properly cast for a candidate that it is not the role of the judiciary in a contest to evaluate undervotes. Is that your position today?

RICHARD: Well, my position is two-fold. The first one is...

PARIENTE: Is that one position, that this election contest statute does not vest within the judiciary the authority to review votes that were properly cast but never counted?

RICHARD: Well, number one, it is not the role of the judiciary to do so when a canvassing board has already done so and has made a reasonable decision, and that happened in Palm Beach County. And I can conceive of no standard that this or any other court would impose upon the Palm Beach County Canvassing Board...

PARIENTE: Let's stay with Dade County, where it's not disputed that 9,000 votes have been the subject of request since November 9 have never been counted.

RICHARD: I think it is disputed, Justice Pariente. All we know in Dade County is that the voting apparatus, which nobody proved was defective, determined that 9,000 votes were not properly recorded by the voter.

PARIENTE: But we know that in the first 20 percent, that 434-something, more or less, legal votes were recovered. We've already said that we shouldn't challenge Palm Beach County. We know that somewhere between, whether it was 174 to 215 votes were recovered. And Broward County, whose certification has been included, has several hundred votes, all with the same type of machine.

Are you really saying that the votes, the 9,000 votes in Dade County, which were the exact same votes that were looked at in Palm Beach County and Broward County, should not be looked at in a contest action?

RICHARD: Not at this point, Your Honor, for two reasons. The first is that the canvassing board made the judgment that at the deadline that this court set for everybody, they could not conceivably complete their count. And I would suggest to this court that based upon what the Florida legislature has told us, that they did not have the authority to submit a partial count, only a full count. And had they done so, they probably would have violated the federal Voting Rights Act and the United States Constitution. That's the first reason.

And this court has no basis in this record to determine that the canvassing board abused its discretion in making that decision.

WELLS: Let me get an understanding of what your position is that were talking about when we say "an undervote." Have these ballots been sent through the machine?

RICHARD: They have, Your Honor.

WELLS: I got from reading somewhere that what we're defining, or what's being argued here as an undervote are ballots which have not been manually counted. Is that...

RICHARD: That's correct, Your Honor. The record indicates that every one of these votes were sent through the machine. They were rejected by the machine because of the parameters that had been set. The machine determined that the votes had not been properly marked on the ballots.

LEWIS: Well, that goes to the rejection issue. You would agree with that? You're saying that they've gone through the equipment, so therefore they were not rejected. Is that a fair reading of your argument?

RICHARD: Yes, Your Honor, it's the same...

LEWIS: Let's go to the next statement. Let's take it one step further.

If that is contrary to Florida law, that those are considered to be rejected, do you agree with the standards that have been applied in other states with regard to very similar statutory language as to what you do to determine if there could be a change in the election or doubt as to the result in the election?

You look to see, as to first, just whether there's enough votes that were not counted, not as to who they would be for. Do you agree with that standard?

RICHARD: I don't agree that it applies under these circumstances, Your Honor.

LEWIS: The standard is what I'm looking to. You disagree with that standard? Or what standard would you have applied? If you assume that they were rejected, how does one prove that there would have been a change in result or doubt as to the result, if that's not been established?

RICHARD: Well, if we are in a circumstance in which it is appropriate to look at ballots, then it is the job of the canvassing board to do precisely what the Palm Beach canvassing board did, and that is to use the standard that the Palm Beach canvassing board used.

Now I pause here to point out that it's our belief that the Palm Beach canvassing board violated federal law because they changed the rule in midstream, and in fact, should not have counted any dimples.

But having said that, assuming that you're going to make a decision, you use the standard that the Pullen case used and that this court, by reference to Pullen, adopted as the appropriate standard.

The record suggests that that's exactly what the Palm Beach canvassing board did, but we never reached that stage.

There are 64 counties in the state of Florida that did no manual recount. And what Mr. Boies is suggesting is that everyone of those counties, simply because they had a punch card system, must automatically do a manual recount.

LEWIS: I'm not speaking of the standard of evaluating the ballot.

RICHARD: I'm sorry.

LEWIS: I'm speaking of the standard with regard t how does one demonstrate that there would be sufficient to change or place in doubt?

For example, New Jersey seems to suggest that in interpreting a very similar statute, that you would look to just see if there's enough votes there, and assume that they would be for the challenging candidate. And that is enough to place that it could change the results.

Are you suggesting a different standard than that?

RICHARD: No, I think the standard is the same standard of burden that every plaintiff carries in every case, which is to come into court and to prove that there is something wrong with some ballot or some machine somewhere, and that there are enough of those that we can say that, whatever we call it, it would place the election in doubt. This plaintiff did not do so.

ANSTEAD: Well, if you accept that first prong, that Justice Lewis has asked you if you have agreed with at least, and I'm not sure whether it seems that you have said that you do agree with. And that is, that other courts have said that first you have to show that there are a sufficient number of contested or challenged or questionable ballots, that would make a difference.

Now, if you do accept that standard that has been set out in some other state courts' decisions, wouldn't you agree that at least that and for that preliminary step, that the plaintiffs here have met that. That is, they have submitted that there are like 9,000, or whatever the number is, challenged ballots, and that there is a difference in the outcome of the election that is presently measured only in hundreds of ballots.

So at least that preliminary step of saying the number of challenged ballots would place in question the outcome of the election, that they've at least met that preliminary step.

RICHARD: No, sir. I emphatically disagree with that.

ANSTEAD: All right. And do you disagree on the basis of applying that standard? Or do you disagree...

RICHARD: No, sir.

ANSTEAD: ... on the basis that they haven't met that standard?

RICHARD: They have not met their burden of proof. And the reason is, the only thing they did was put two witnesses on the stand to say that they were speculating that Votomatic machines are inherently unreliable. And so, in essence, what Mr. Boies is saying to this court is any time there's a Votomatic machine in a close election and somebody says count all the ballots, you must do so.

This court in the Fladell case several days ago said that voter confusion and voter mistake is not sufficient to throw out a ballot...

WELLS: Justice Shaw has a question.

RICHARD: Yes, sir.

WELLS: And then I think your time...

SHAW: I think it's in line with Justice Anstead's question. Seemingly early on, Judge Sauls set a threshold and said in effect that the plaintiffs could not prevail even if no evidence was put on until they met this threshold.

And ultimately, he decided that he dd not have to look at the ballots because that threshold had not been met.

Is that a correct...

RICHARD: That's correct, Your Honor. That's correct.

SHAW: ... statement.

What did you see the threshold as being?

RICHARD: Well, it's being the same as every plaintiff carries in every case, and that is to bring in sufficient evidence to meet the elements of the case.

In this instance, to show that there was any reason to believe that any voter was denied the right to vote, because of something other than the voters' own fault. There was not a single shred of evidence in this case on a single voter to show that. There was nothing here but the speculation of two witnesses that Votomatic machines do not always show the voter's intent. That's all there was.

QUINCE: Where in the statute is that standard, that you have to show that a mistake was made through no fault of the voter? It seems to me that we've gotten off of what the standard is for showing the ejection of votes. And it seems to me that the statute, Subsection 3, says "rejection of votes which may put in doubt the result of the election." And so, that is not that you have demonstrate that the election really that I'm going to win, but it is in doubt that I did not win.

Isn't that a different standard? I'm really having a problem with the reasonable probability of a different result standard that Judge Sauls talks about versus the rejection of votes that would put the election in doubt. Could you please explain the difference in the two?

RICHARD: I don't think it's necessary to distinguish, given the razor-thin record we have in this case. The only way that one can conclude that either of those standards was not met in this case, based upon this record, is to conclude that in every case in which a Votomatic machine is used and the race is close, that we must manually recount in every county that used those machines, because that's what the evidence that was used in this case.

WELLS: We better give Mr. Klock a chance...

RICHARD: If I may, Your Honor, there's just one other issue, too, that I think we cannot lose sight of.

WELLS: I want to warn counsel, we're going to observe our time limits here, so you and Mr. Klock proceed, but...

RICHARD: This will take one second, Your Honor, and that is that you also have to establish the second element, which is that whatever standard you use, it would have changed the result of the election.

If you look at the evidence here and you look at the lower court judge's determination, no matter which standard you use, there was insufficient evidence to indicate that. And this court cannot reverse the lower court judge unless there is a complete lack of substantial, competent evidence in the record to support his decision, regardless of the standard.

Thank you.

WELLS: Mr. Klock?

JOE KLOCK, JR, BUSH CAMPAIGN ATTORNEY: May it please the cout:

I think I remember the first question.

We did not argue Blacker in the Supreme Court on behalf of the secretary and the canvassing commission, but I think the answer to your question is this, that the judiciary obviously has the appellate power to review what a circuit court does.

There is a constriction, however, and I think that constriction is picked up in the language of the Supreme Court. And that has to do with the concern in this kind of election, having to do with presidential electors, which is different than the other kinds of elections, for instance, referred to by Justice Anstead, and that is the language on page 6 of the slip that says, "Since Section 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."

So I suggest that is the restriction that you would have. The legislature has the power to select electors. In Florida, the legislature has allowed the people to make that choice.

But I think, Mr. Chief Justice, that what you need to do, is you need to be careful in terms of construing statutes or remedies to not do anything that would constitute a change in the law, because if that is done, then that places in jeopardy either the safe harbor, if the Supreme Court limits itself to that, or the concept that any kind of change of law...

ANSTEAD: Why hasn't that been accomplished in our previous decision that gave due regard to the fact that you have a federal scheme that has certain fixed dates or a calendar in place, and that we have interpreted the statute to be certain that the votes are counted and finally counted before that fixed date comes into play? Why doesn't that take care of that?

KLOCK: Justice Anstead, I don't think that there's...

ANSTEAD: I don't know that you're saying that it doesn't. I'm asking you.

KLOCK: Justice Anstead, I think the problem is, there's no way of reading Harris. I mean, Harris was not limited to dealing with presidential election contests.

KLOCK: Obviously, the Supreme Court of Florida was dealing with issues that had to do with the Florida election code.

ANSTEAD: And the Florida election code, as enacted by the legislature, is a single election code, is it not?

That is, that the Florida legislature, after submitting to the voters of Florida the authority to pick their presidential electors has not said, "We're going to have one election code now to review that election, and we're going to have another election code to review all other elections," have they?

KLOCK: Your Honor, the Florida election code is a short form for including all the various statutes that deal with elections in Florida. There is one collection of laws tat deal with that, but there are different provisions that deal with presidential elections in 103 then deal with other elections. I think the difficult...

ANSTEAD: Well, in terms of any of the issues that we've been talking about, as far as counting votes and ballots and filing them and returns and all of those things, there is simply a single scheme, is there not?

KLOCK: Your Honor, I don't think that there really is. I think Harris is a substantial departure. If the test...

ANSTEAD: Tell me where there is a separate scheme for considering the outcome of the electors for president. This proceeding is a good example of this. And that is, that we've had a contest filed under circuit court; do you agree that the contest statute applies to the selection, the election, by the people of Florida of their presidential electors?

KLOCK: I think that the contest statue can apply in this situation, if it's applied properly.

LEWIS: But does it apply?

KLOCK: Yes.

LEWIS: OK. And it is a contest statute that applies to all elected officials, does it not?

KLOCK: No, but, Your Honor, the problem is that you then can't take the next step. The fact is, the court can't change the law. If the court changes the law, then you run afoul of Section 5 and the safe harbor.

LEWIS: But you're not suggesting that the interpretation or construction of a sentence is a change of law, are you?

KLOCK: The problem, Justice Lewis is...

LEWIS: The first time, if a dispute arises, somebody must say, if the legislature has written the sentence and two sides don't agree, it seems as though a court must try to do its best to see what that legislature wanted done.

KLOCK: But Justice Lewis, there is just so much baggage the word "interpretation" can carry on its back...

LEWIS: OK.

KLOCK: ... before it becomes more of a change than it is an interpretation, and that's the situation we have here. And not unfairly to the court, again; the court was dealing with the situation in front of it.

But interpretation going from seven days to 19 days, that's a lot of baggage for the word to carry in that regard.

I think that the Harris decision was bottomed on a number of principles: common law principles, equitable principles, constitutional principles.

But forget all of that, if you want to. If you want to try to go back to just statutory construction, you have a problem because the interpretation is sufficiently broad that I think if fairly viewed, it constitutes a change in the law under Section 5 of Title 3.

LEWIS: Today, just looking at 168 that's what I'm looking at, is the one sentence that seems to be the real dispute here, and that is whether legal votes were rejected, and it would have made or changed the result or place in doubt the result.

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