Text Of Fla. High Court Hearing
Following is the text of the hearing on Thursday before the Florida Supreme Court:
MARSHAL: Hear ye, hear ye, hear ye, the Supreme Court of the great state of Florida is now in session. All who have cause to plea, draw near, give attention and you shall be heard.
God save these United States, the great state of Florida, and this honorable court.
Ladies and gentlemen, the Florida Supreme Court.
Please be seated.
CHIEF JUSTICE CHARLES WELLS: Good morning, and welcome once again to the Florida Supreme Court, where we will have oral argument this morning in the case of Gore v. Harris.
And as an introduction, as we did when we had oral argument in this court approximately 10 days ago in this case, we welcome the visitors here. Because of the limitations on time, it is absolutely necessary that we maintain order in the court at all times.
And we ask further that at the end of the argument, that counsel be allowed to leave the building, together with their parties, prior to the time that any of the visitors leave the building, and then hold all interviews outside the building.
Once again, counsel, we are in need because of the limited time to get right to the issues at hand. And so I believe it's my understanding, Mr. Boies, that you're going to proceed first.
DAVID BOIES, GORE CAMPAIGN ATTORNEY: Yes, Your Honor. Thank you. May it please the court: My name is David Boies and I represent the vice president and Senator Lieberman.
WELLS: Mr. Boies, let me start right off.
You know when the case was here previously in the protest part of the proceeding, no counsel for any party in briefs or in argument raised with this court the U.S. Supreme Court of McPherson v. Blacker, seemingly because counsel did not believe that it was important for our consideration. However, that case was forcefully argued to the U.S. Supreme Court and the U.S. Supreme Court has now called that case to this court's attention in the opinion that came out this Monday.
And now, once again, no counsel has argued that case to this court.
But I want to know from each counsel its importance here. My reading of that case is that the U.S. Supreme Court has said that the state legislature has plenary power, full power, in respect to appointment of presidential electors, and that power cannot be eroded even by the state constitution.
Now accepting that as controlling law, why does that not mean that the courts of this state can only be involved in resolving controversies in contests where the legislature explicit gives this court that power or a court that power, which it has not done in respect to presidential electors in 102.168?
And secondly, even if 102.168 is read to implicitly apply to presidential electors, why is it not judicial review given to the circuit court and not this court, since the only means by which there is a right to appellate review in Florida is through th state constitution?
Would you please address that? And I would like the other counsel to address that.
BOIES: Yes, Your Honor.
First, with respect to whether the appropriate forum is the district court of appeal or is this court, the district court of appeal has of course certified this issue as a matter of great public importance and an issue that needs immediate attention.
WELLS: I understand that jurisdiction.
My question is appellate review, where that is not expressly given in 168.
BOIES: We would say, Your Honor, that under 168 this court has the power to review both directly, because it has been certified up, and under this court's mandamus power, which we've also alternatively put forward in our brief.
WELLS: Where do we get our right to review the appellate review? From the rules and from the constitution. And doesn't that create a federal question?
BOIES: I don't think so, Your Honor, because what you're doing is you're reviewing, and reviewing in an ordinary judicial interpretation way, the statutes of this state. That is, I don't think the Constitution of the United States in any way means that the legislature has to sit both as a legislative body and a judicial body just because an election of presidential electors is involved.
WELLS: But why isn't this like sovereign immunity, where courts only have such power to resolve disputes and claims that is expressly given to it by the legislature? Where, if the legislature in this state says the court should not decide claims in excess of $100,000, those are matters that are taken to the legislature in a claims bill. Why isn't this analogous to that?
BOIES: Because what I would respectfully suggest, Your Honor, is that the legislature has provided this court with the authority to interpret these laws, that whenever the legislature passes a law, what the legislature is doing is passing a law that is known to be
going to be interpreted by the courts.
That is, in terms of Section 168, this is a law that the legislature did not say, "We're only going to apply this law to nonpresidential elections."
Prior to this case, I don't think anyone would have contemplated that this law did not apply to presidential elections, and certainly no one, not this court and not either party, so contemplated the last time we were here before the court.
This is a situation in which you have a statute that the legislature has passed that provides very specific remedies. And we think that those remedies are the remedies that this court has the jurisdiction to enforce, both in terms of appellate review and under its original mandamus authority.
This is not a situation in which the Constitution of the United States has said, "A state legislature has to sit as a judicial body in enforcing the laws with respect to elections." It has merely said that the legislature can specify the manner of appointment o the electors incidentally, the manner of appointment, not the time of appointment.
BOIES: The time of appointment is something that is reserved for Congress. And we would suggest that Congress has set that time, and that time was November 7.
WELLS: You would agree that when the United States Supreme Court has said that there is plenary power in the appointment of electors in the state legislature, that that means that they've got full power?
BOIES: Well, Your Honor, I think they have the plenary power to determine the manner of the selection. I don't think they've got the plenary power to determine the time of choosing, because that, under the United States Constitution, is reserved to the Congress of the United States. And the Congress of the United States has selected the time of choosing, which was November 7. So I think there is a distinction between the time that the electors have to be chosen, and the manner that they have been chosen.
The legislature of this state, of course, selected the manner in which electors were to be chosen, and that manner was by direct election by the people. And pursuant to that decision by the state legislature and the decision by the Congress of the United States that the time of that selection was to be November 7, there was an election on November 7.
And we think that is the issue that is before the court now, which is a contest of that election, where we have identified separately five groups of ballots that we believe either should have received and were not, or in one case, were received and should not have been.
JUSTICE R. FRED LEWIS: If we accept this, your jurisdictional position, we get across the jurisdictional issue, the concept of rejection of legal votes is somewhat concerning. We can look to other states. New Jersey has one similar, although not identical. And the application becomes pretty clear when individuals are prohibited from tendering a ballot. However, it becomes less certain when there is something with regard to how that ballot is read.
Here you're challenging, it seems, a category of undervotes. And that's not the same as one person coming to the precinct seeking to vote. If the category exist, it seems as though it must exist statewide. If we have undervotes in one location and those are considered, then you've demonstrated that there's legal votes that have not been counted. Why would that not exist in other counties? And why would this not require if any judicial relief that be applied in a statewide undervote?
BOIES: I think there are two questions there. Let me try to address them separately.
The first question is whether a rejection of legal votes applies to the undervote category or whether it only applies when somebody comes to vote and is turned away. I think going back to 1917 in Darby v. State, this court has looked at the rejection of legal votes category as meaning where somebody has come, submitted a ballot, bu for some reason that ballot has not been counted.
In the early days, it was often that the X was on the wrong side of the paper or underneath the elector's name, or maybe it was circled instead of crossed out. And in each case, this court held that that was a rejection of a legal vote where the intent of the voter could be made clear.
Jumping from the early days to the most recent case, which is the Beckstrom case, in that case, the court looked at ballots these were optical ballots, not punch card ballots that they were optical ballots that had been defectively marked. That is, they had not used a No. 2 pencil, had been circled. But in some way, they had been defectively marked so that they could not be machine read. And this court held that those ballots could not be rejected.
So I think that in terms of what constitutes a rejection of legal votes under 168...
WELLS: Well, Mr. Boies Justice Harding.
JUSTICE MAJOR HARDING: But why does that not have statewide application?
BOIES: Your Honor, I think that it does have statewide application if anybody contests ballots other than in the particular categories that we have contested ballots.
HARDING: But Judge Sauls, in his order, referred to the opinion of the attorney general that indicated that if this type of result happened that there would be serious or potential federal and state constitutional questions, and that the vote would be in jeopardy.
BOIES: Your Honor, I think there are two points to that. First, if merely having a manual recount in some areas and not in others would make the election defective, then this election would already be defective, because there were manual recounts in a number of counties that were included in the certified results of the secretary of state.
Second, with respect to the attorney general's opinion, I think that opinion was pointed to the point that if a manual recount was requested and received in one place and requested and not received, pursuant to state law in another case, that would involve a disparity.
I don't think that opinion addresses the situation where you have a request in certain counties but no request in other counties.
There's never been a suggestion under the state law that you should have a recount where it was not requested.
HARDING: Go ahead.
WELLS: Mr. Boies, the 168, in its present form, has only been there since 1999.
Now, this court said in 1981 that there's no common law right to contest votes, that judicial restraint should be exercised, because of the fact that elections are political questions. We said right before that that courts would get involved if there were allegations of fraud. Now, we lowered that threshold somewhat in Beckstrom, by saying that courts would get involved if there was substantial noncompliance with election laws.
But what you're asking this court to do is to have the courts of this state get involed in any instance in which someone comes in and merely alleges that there needs to be a count, because there were legal votes left out not going through the canvassing boards, but legal votes left out and that would have to do with an election. Someone would say they lost by 130,000 votes in Dade County, and we'd have to have the court count those votes.
BOIES: Your Honor, I don't think that's what we're arguing. This is not a situation in which somebody has simply come in and said, "We've lost. We'd like to have a recount under the contest statute."
This is a situation in which we have identified specific votes, many of which were agreed by the district court were votes in which you could clearly discern the voter's intent.
BOIES: You had 215 ballots that are not included in the certified results in Palm Beach County where the circuit court found on undisputed evidence that there was a clear voter intent expressed on those ballots, and they were not counted.
You had 168 ballots in Dade County that were counted before that county prematurely stopped its count, where the circuit court found that these were ballots that expressed the voter's intent, that the canvassing board had properly identified those ballots.
So these are ballots where we know that if you look at the undervotes, you find ballots that can clearly have a discernible intent of the voter found from them. And yet, they are not counted.
This is a situation in which the evidence is clear and undisputed, that there are voter errors and machine errors that create this undervote in punch card equipment.
In fact, the court found the district court, the trial court found at page 10 of the opinion that this had been known to county officials for many years. So this is not a situation in which you simply have somebody coming in and saying, "We lost, and we want to have another chance at it." This is a situation...
JUSTICE PEGGY QUINCE: What do you contend, then, is the standard that you have that we have to apply to this in order to get a recount?
There are two issues here. One is whether or not you demonstrated you were entitled to a recount of those 9,000 votes. And the other issue is whether or not you would actually win the contest, which I think are two different issues.
So what is the standard to apply to the first one? That is, are you entitled to a recount? And what did you demonstrate to the trial court that you contend to us demonstrates that entitlement?
BOIES: We demonstrated, first, that there were a large number of ballots that were not counted by the punch card machines.
We demonstrated, second, that when you have a very closely election, you have to have a manual review of those ballots in order to have an accurate tally. That was not just our expert; that was their expert, Mr. Ahmann, who testified that you had to have a manual recount in a close election.
QUINCE: Wy wouldn't that apply to all the other counties, at least the punch card counties, where there are undervotes, and those votes also haven't been counted. If we're looking for accuracy, which is what has been the statement from day one, then why isn't the request made? And why wouldn't it be proper for any court, if they're going to order any relief, to count the undervotes in all of the counties where, at the very least, punch card systems were operating?
In other words, is there something different about Dade, Broward and Palm Beach, and their use of the punch card, then the 17 other counties that also used punch cards?
BOIES: I think the first difference is that that's where ballots were contested. That's where first a manual recount was requested, and that's where ballots were contested.
And throughout interpretation, not only of the current version of 168, but prior versions of contest statute, this and other courts have looked not at the entire type of ballot that may have been involved, but only those ballots that were actually contested by a party.
QUINCE: Well, we've never had a statewide contest, have we, in this state?
BOIES: Well, actually back in 1916 in the gubernatorial race there was an attempt to bring a contest by mandamus to this court. But in the modern era, I think the court is right, you have not had a statewide contest. But the statute doesn't...
QUINCE: Are you saying, then...
BOIES: ... make a distinction.
QUINCE: Is there a connection, then, between the protest these are the you contested these ballots through the original protest. So do you have to have done that in order to bring a contest? A party could not bring a contest without having gone under Section 166 previously?
BOIES: No, I think, Your Honor, a party could have brought a contest without having gone the 166 route.
QUINCE: But not of the ballots?
BOIES: No, I think you could contest the ballot. Even if you had not protested ballots, I think 168 and 166 are alternative remedies. And I think this court so held the last time we were before it, that those are alternative remedies. And I don't think in 166 protest would be a condition.
WELLS: However, further...
BOIES: However, we did both.
WELLS: Where there has been a protest, isn't 168 and 166 aren't they inextricably linked? I mean, what we've got is that you bring the complaint within five days after the protest has been completed by the last canvassing board; the party defendant in the action is the county canvassing board and the election canvassing board. It seems to me that that statute now, since 1999, contemplates an evaluation of the county canvassing board if there has been a protest. Why is that not true?
BOIES: Because, Your Honor, the 168 statute clearly provides for the canvassing board to take certain actions. In 168, it's a contest of the election, and there is no discretion or other resposibilities given the canvassing board there.
The contest period is a period that, as I think this court last held when we were before it, is designed to allow any candidate to challenge judicially the vote, and it provides alternative approaches. One approach is of course misconduct. That's subsection A. But subsection C, which is what we're providing, simply talks about the rejection of a sufficient number of the votes.
WELLS: Justice Shaw?
JUSTICE LEANDER SHAW: Can we return for a moment to Judge Sauls' order. He makes certain findings. For instance, he finds that there was no credible statistical evidence and no other competent substantial evidence to establish by a preponderance of a reasonable probability that the results of a statewide election in the state of Florida would have been different. Do you see that as a finding of fact or a finding of law?
BOIES: Well, Your Honor, I think that it's a mixed question of law and fact. To the extent that it relates to the factual issue, for example, at page 442 of the transcript, Mr. Ahmann, who is their witness, testified that you needed to have a manual review of the ballots. Mr. Burton, who is their witness, Judge Burton, who was their witness, testified that they were able to identify 215 ballots where they could clearly ascertain the intent of the voters that had not been counted by the machines.
We have 9,000 ballots in Miami-Dade that are alleged that have not been registered by the machine, that have never been manually reviewed.
Every time any board has looked at these issues, they've found ballots, they found votes.
SHAW: But when you put on experts and the judge listens to these experts and then he makes a determination based upon that, normally isn't that a question of fact?
BOIES: It is, Your Honor, but here the court expressly based its conclusion on three errors of law:
First, that you have to do a statewide recount, which we think there is no support for it in this or any other state.
Second, that under one 168, it's an abuse of the discretion standard. Again, we don't think there's any case that says, in terms of what a ballot means, whether a ballot does or does not reflect the voter's intent, that is something that, in the judicial proceeding of a contest, discretion resides in the canvassing board.
And third, that in order to even look at the ballots, which are already admitted into evidence in the case, you have to show a reasonable probability that you will change the election, before you even look at the ballots. And again, we think that is inconsistent, first, with the standard in 168, which says "or place in doubt," and is inconsistent with the way a trial goes, which is that you look at the evidence before you reach that conclusion.
WELLS: You are in your rebuttal time, but Justice Harding has one question.
HARDI NG: Talking about looking at the ballots, I know they were introuced into evidence before the trial judge, and I probably asked this question as well, I was going to say "old," but as a former trial judge. Did anyone ever pick up one of the ballots and hold it up and show it to the judge and say, "This is an example of a ballot which was rejected but which a vote is reflected?"
BOIES: Not a particular ballot, Your Honor. We offered the groupings of ballots that we had segregated. All of those, of course, in order to prevent contamination, were not given to the lawyers. They were kept under the control of the clerk of the court.
HARDING: But nobody asked the court for permission to do that or showed him one of those ballots?
BOIES: Not an individual one, although we did tender them in evidence and we did ask him repeatedly to look at the ballots as part of the evidence.
WELLS: You're deeply in your rebuttal time, Mr. Boies.
DEXTER DOUGLASS, GORE CAMPAIGN ATTORNEY: I'll forego my time. I was going to address the remedies, in any event, and the court addressed the other question.
WELLS: Thank you, Mr. Douglass.
DOUGLASS: I'll reserve...
WELLS: Mr. Richard?
BARRY RICHARD, BUSH CAMPAIGN ATTORNEY: May it please the court, I'm Barry Richard, on behalf of George W. Bush and Richard Cheney.
WELLS: Mr. Richard, let me start with my question that I asked Mr. Boies. When this case was here before, counsel for Mr. Bush did not present any argument on McPherson v. Blacker. Yet, when it got to the Supreme Court, counsel for Mr. Bush forcefully argued McPherson v. Blacker. Now I note that it's not argued again here. Is it the position of Mr. Bush that that case does not have any bearing on this matter?
RICHARD: Well, Your Honor, I think that the case has substantial bearing on the matter. I think that what McPherson v. Blacker tells us is exactly as Your Honor suggested it, which is that this court does not have the ability in this particular case, involving presidential electors, to disregard the statutory scheme and fashion a remedy based upon extraordinary equitable powers of the court set forth in the constitution.
WELLS: Do we have the right to review the action of the circuit court?
RICHARD: Indeed, you do, Your Honor, but we come here in a significantly different posture than we did before. What we come here with now is belied by the nature of the litigants and the public interest. In fact, this is nothing more than a garden-variety appeal from a final judgment by a lower court that reviewed after an entire, full evidentiary hearing.
HARDING: But the legislature, having plenary power, said that the circuit court will make that determination.
RICHARD: Well, I agree with you, Your Honor. And I would not suggest to this court that the circuit court is not subject to any appeal. I believe that the circuit court is subject to appeal, but in a very limited fashion.
And I also think that one reason thawe have not placed emphasis upon McPherson v. Blacker is because in fact this court said the same thing in an earlier McPherson case, which Justice Wells referred to, McPherson v. Flynn, in which this court said, since there is no common law right to contest elections, any statutory grant must necessarily be construed to grant only such rights as are explicitly set out by the legislature.
The legislature in Section 168 has given us five, and only five, grounds for an election contest, and one of them is not that there is a close election in which Votomatic machines are used.
JUSTICE HARRY LEE ANSTEAD: Well, the bottom line, if I understand it, though, of your answer to the chief justice's question is that this court does have appellate jurisdiction over the trial court's ruling. Do I understand that to be your answer?
RICHARD: I think that this court has limited appellate jurisdiction over...
ANSTEAD: And that the McPherson case, the federal McPherson case, not this court's McPherson case, does not affect that appellate jurisdiction?
RICHARD: No, sir. I certainly believe that this court has the ability to review what a circuit court did, to determine whether the circuit court violated the traditional rules...
ANSTEAD: Much in the way we would be reviewing it if it was another vote, a county commissioner, or an election for some other office, a member of Congress, and a contest was brought.
RICHARD: Precisely, Your Honor. The court is the great leveler, in the sense that it doesn't make any difference whether we're talking about school teachers and labors, or presidents and kings, the rules are the same.
And the rules in this case are very clear. There are two questions that this court must answer: Was there substantial, competent evidence in the record below to support the judge's findings? And did the judge properly apply long-established law?
ANSTEAD: Referring to the substantial, competent evidence issue, isn't it highly unusual for a trial court to admit into evidence certain documents that one party claims will be controlling, with reference to the claim they bring to the court, and yet never examine those documents before making their decision. And didn't that happen here with the trial court admitting the disputed ballots into evidence, but yet never looking at those documents.
RICHARD: Well, I think that the trial court theoretically admitted the ballots. And the ballots were...
ANSTEAD: Theoretically or did the the trial court either did or did not admit the ballots into evidence. Did the trial court admit those into evidence?
RICHARD: My recollection is that the trial court did. There were thousands of ballots which were embargoed. And my recollection is that the trial court did. There was not a substantial dispute over whether or not the court could technically admit them into evidence.
ANSTEAD: Did the trial court examine those documents?
RICHARD: No, Your Honor, because I think there was no basis in law for the trial court to do that until after the plaintiff had carried its burden of proving that there was some necessity to do so. And this leads to the core of...
JUSTICE BARBARA PARIENTE: Then what does Subsection 8 mean, the subsection that was specifically added in 1999? And you've told us we've got to follow this statute.
That section that says: "If the circuit court is to do whatever is necessary to ensure," which is rather unusual language to use in a statute, "to ensure that each allegation in the complaint is investigated, examined or checked."
If it isn't to mean that the circuit court is to look at the very ballots that have been brought to the court for investigation, what does that section mean in the context of this litigation?
RICHARD: Your Honor, this brings us back to McPherson v. Blacker. The circuit court has no greater power than this court to disregard the scheme that the legislature has provided us with, and that scheme is crystal clear. In fact, this court recognized it 10 days ago in the Harris case when it said, "The decision whether to conduct a manual recount is vested in the sound discretion of the board," and cited Hogan.
The Hogan case was indeed precisely the same as this case. It was a case in which the canvassing board elected not to conduct a manual recount, and this court referenced that case in which they said that the application of Section 168 does not change the necessity to show an abuse of discretion when it arrives at the court.
We had an absolute failure on the part of the plaintiffs here. This court gave the plaintiffs the opportunity to have a trial to prove their case, and it was an absolute failure in the record of this case to establish an abuse of discretion by any of the challenged canvassing boards.
LEWIS: Well, excuse me, counselor, you seem to be suggesting then that you can never have a contest unless what has occurred has already been through the protest process under 166. What would counsel do to circumstances that come to light later?
For example, the ballots of one precinct just simply did not get included in the certification; that would not be part of the protest. Situations where it comes to light that violence is used to keep people away from the polls; that would not come to light during a protest.
Are you suggesting that those kinds of circumstances, then, cannot be addressed under a contest?