Text Of Fla. High Court Hearing (3)

The text of Florida Supreme Court hearing continues below:

LEWIS: Now, is it impossible for this court to apply that to the facts that we have, without doing a change in the law?

KLOCK: Yes, Your Honor, because the problem is that you have to create a pile of law to do it. You have to do a number of things. You have to first find that in a presidential race where you are electing 27 electors, that you can do it on a county-by-county basis. Then you have to figure out a way of having the contest statute used to establish a standard when the only standard that applies anywhere for a manual recount, which, as we argued before the court previously, was limited to the situations in 166, which were brought about because of mechanical problems but put that aside.

The only basis, and it's the common law, obviously, to have a manual recount is in Section 166. And that calls for finding the voter's intent. But it also adds three specific people that are on a uniform basis throughout the state. The combination of whatever the voter's intent is, plus the three people, is what is done there.

We go from there to a circuit judge in Leon County who then, I suppose, has to come up with a standard that is not articulated in the law.

And as Your Honor pointed out, each time you asked the question, you talked about legislation in other states. That's where it has to come from.

There is no indication that the Florida legislature intended, by acknowledging and respecting the power of the state judiciary to interpret laws, that the judiciary would be in a position of having to create the standards that would be applied in this kind of situation, and that's the problem we have.

WELLS: Mr. Klock, I think your time is up. Thanks very much.

Mr. Boies, I will give you one extra minute since Mr. Klock's answer to that question exceeded...

BOIES: Thank you, Your Honor.

Let me begin by emphasizing what I think all three counsel who have spoken today agree on: First is that this court has jurisdiction over this case. Second, that 168 applies to presidential elections. A third point that I think there is agreement on, and that is that this court should not change the law. It may have to interpret the law that exists; it should not change the law.

WELLS: Mr. Boies, let me ask you about another the part of that U.S. Supreme Court opinion of Monday that Mr. Klock just referred to, and that is that the U.S. Supreme Court did say that 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.

However, doesn't that also mean that, if we're going to take advantage of Section 5, that all of these contests have to be concluded, as you told me before, when we were here before, by December the 12th? And we don't have a remedy here that can do that by December the 12th.

BOIES: Your Honor I think you do have remedy that can do that by December 12. I think, first, almost all of the issues in terms of number of issues, although not in terms of number of the ballots, are now legal issues before the court. The 215 ballots in net votes for Vice President Gore have already been identified as legal votes by the Palm Beach canvassing board and are not disputed by the defendants.

PARIENTE: On that, there was in Governor Bush's brief, a reference to an audited return that showed 174.

And since numbers seem to be pretty critical here, when there's such a small difference, do you agree with that later number from Palm Beach County?

BOIES: We don't agree to it, but even their offer of proof, which was submitted after the trial was over, and which is where that number comes from, I think only related to the number submitted as of 5 p.m. The 215 number is a number that goes through 90 minutes afterwards, when they completed their count.

PARIENTE: And that information is in this record?

BOIES: That's in the record. It's in the Palm Beach answer to paragraph 60 of the complaint, and it was in Judge Burton's testimony at page 278 of the trial transcript.

PARIENTE: And the only reason that was rejected was because of the deadline that this court had set of November 26 for the certification?

BOIES: Yes. And as this court said in Harris, the certification is one process, but the contest is another process. If those votes existed and had never been certified or never been counted, but we knew those votes were there, under the contest procedure, they would have to be included.

ANSTEAD: Let me ask you another question, realizing time is short, but going back to a couple of the questions that Justice Lewis asked about the purpose of this particular provision in the contest statute, as far as legal votes not being counted or illegal votes being counted.

Why do you think it would be that the legislature would set out a totally different scheme for recounts to be decided by local canvassing boards in one section, and, therefore, have a procedure in place for recounts and undervotes and that kind of thing, and yet still reserve in a contest statute allowing a circuit court to do it all over again or to do it in any case?

Does that remedy make sense in an overall scheme here? I want you to address that question.

And then my second question to you is: Why wouldn't we conclude here that, at most, all that you have demonstrated in the trial court is a possibility that there may be a difference in the outcome? Because as you have conceded, no one has looked at the 9,000 votes that you're talking about. Could you answer those two questions?

BOIES: With respect to the reason for 166 and 168, we believe that 168 was intended by the legislature to promote the certification process, to get that process done, and that's the responsibility of the canvassing boards.

As this court eld in Harris, once that certification is done, the responsibility shifts from the canvassing boards to the courts.

Now, there aren't very many contests. Usually people accept the results of the canvassing boards. You have a contest only when some party believes that they've got a good reason for it.

And that goes to the second question that you asked, and that is, why do we believe we've shown what we've shown? And we've shown that 215 and the 168, and that gets you up to 383...

WELLS: You still have to get to the Dade votes, do you not...

BOIES: You still do, but at that point, you're down to 100 votes, Your Honor. When you get to the Dade County vote, you're down to 100 votes. And remember, Dade County was finding about one out of every four undervotes to be a vote, under procedures approved by the court.

WELLS: But Mr. Boies, if we're looking at this through the protest statute, then it's certain that the only recount, manual recount, that could be done under the statute would be to recount all the ballots. That's specifically what the statute says, is it not?

BOIES: Your Honor...

WELLS: Shall recount manually, recount all the ballots.

BOIES: What the Dade County board had done is to say, before they stopped on November 22, they had decided what they were going to do is count all the undervotes. We think that would have been an acceptable...

WELLS: But that would definitely be a change in the law. Because the statute says they can only if they decide upon a manual recount, manually recount all the ballots.

BOIES: But I think that's right, Your Honor. I think that you could interpret the law that way. I think you could also interpret the law in the sense of saying all the ballots that were requested to be manually recounted. If neither party requested the others to be manually recounted, and if the machine was recording votes, I don't think you would necessarily, under that statute, have to interpret it that you would have to do that.

In any event, the court below ruled that the Dade County board had discretion to make the decisions that it made. One of the decisions that it made, that the district court below, the trial court below, said it had the discretion to make was the decision to simply manually recount the undervotes. And they stopped only because they didn't have time.

WELLS: Is that undisputed on this record, or do you agree with Mr. Richard, your colleague here?

ANSTEAD: That is, that he says that that is not the only reason that there was not a recount in Dade County?

BOIES: I don't think there's any other reason on the record, Your Honor. First, Miami-Dade questioned whether to do the manual recount. They then decided to do a manual recount. They were undertaking a manual recount. On the morning of December 22, they said they were going to manually recount all of the undervotes. They then stopped 12 hours later.

WELLS: Is th transcript of all three of those decisions by the Dade County canvassing board in the record?

BOIES: It's in the record. It is, Your Honor.

PARIENTE: And speaking of time, and going back to what Justice Wells was asking, in terms of the remedy, and now specifically as to the Miami-Dade votes that you are contesting, what is the time we're here today, December 7, what is the time parameter for being able to complete a count of those undervotes?

BOIES: The record shows that the canvassing boards were doing about 300 an hour, 250 to 300 an hour. That was with three people looking at every ballot. That was obviously slower than it would be if it were being done by one judicial officer.

We believe these ballots can be counted in the time available. Obviously, time is getting very short. We have been trying to get these ballots counted, as this court knows, for many weeks now.

ANSTEAD: With the chief's indulgence, one last question. And it really ties in to something actually that you brought before the court in the first oral argument that we had here, and that is, of this problem that continues to reoccur in the case of not having recounts in other counties where the same voting mechanisms were used and where there may have been undervotes, but that the proportion of votes, for instance, may have favored your opponent. And that we're now here on December the 7, with December the 12, you know, fast approaching. At the last proceeding neither side took us up on, whether it was an offer or not, at least it was a concern of the court in terms of the appearance of fairness or equity, how can we resolve an issue like that at this late date?

BOIES: Two points, Your Honor: First, there's never been a rule that says you have to recount all the ballots in an election contest. In fact, every case that we've cited has been a case, including the Beckstrom case, where only the contested ballots were reviewed. To make a different rule would be a change in the law.

The second point is that every party has a right to contest, but no party is required to contest. What the sense seems to be is that somehow Governor Bush's campaign should be protected from Governor Bush's lawyers. If they didn't ask for a recount, and, therefore, there should be recount anyway, even if they didn't ask for it.

WELLS: Thank you, Mr. Boies, I think your time is up.

We very much appreciate all counsels' assistance in the court's resolution of this matter. Now, per the instructions at the beginning, if everyone will remain seated until counsel and the parties have exited the building.

And then we ask that you recede in an orderly way.

And we appreciate very much the order and seriousness with which everyone has addressed this matter.

The court will be in recess.

MARSHAL: Please rise.

(End of Hearing)