For the Election Canvassing Commission, Mr. Bryant. Or I beg your pardon, for Governor Bush, Michael Carvin.
Thank you, sir.
Bush campaign attorney Michael Carvin: May it please the court, as the colloquy today indicates, there is very clear procedure for resolving all the questions that the justices have asked, and that's set forth in the statute.
You set a firm deadline, and you make sure that everybody gets their votes in at the same time, and if there are any problems in terms of voter tabulation or the kinds of questions that we've done, you've got to keep to that deadline so you'll have time to do the election contest after that.
Pariente: May I ask you a question? Does this only come up, as far as this interpretation of the seven-day deadline, even though counties are wanting to do manual recounts as requested by the voters in that county, because this is a presidential election? In other words, is this requirement of the deadline on one end, going back to what Justice Wells has been asking, created because of the deadline on the other end?
Carvin: This comes up in all. I mean, there's a firm deadline for all statewide ...
Pariente: Well, would you think that we would want to, for all time's sake, interpret this statute that if, for example, in a legislative race it is a close race and the unsuccessful candidate has requested a manual recount under the statute and requested it on the sixth day, that we would say that, because that's not an extraordinary circumstances, it's a foreseen circumstance, that we would say, well, the secretary has the discretion to not recognize that manual recount and could declare the other person winner. Would that make sense in any other context than this presidential election?
Carvin: Oh, I think your case would be a easy hypothetical. If the losing candidate waited six days and gamed the system so that they backed the canvassing board so they couldn't do a manual recount until they requested it, then for that reason alone the canvassing board ...
Pariente: But the statute allows up to six � until certification is made on the seventh day. So the statute, if somebody was exercising their statutory right within seven days, you're saying that the secretary on the seventh day said, "Too bad. I'm not going to recognize it."
Carvin: Because it's not a statutory right, with all respect, Your Honor. It's an option that they provide to the counties.
The legislature has not preference for manual recounts as the most accurate way of determining votes, which is why they make it entirely optional. The only right and duty in the statute is the right of the state officials to have the election returns after seven days. That is a mandatory duty.
And they expressly contemplated that all counties, regardless of whether they were conducting manual recounts, would play by the same rules and get their election returns in on time.
Pariente: Well, the same rules really don't apply because only certain counties used punch cards, which is really what creates the problems in the three populous counties to the south. That's not the same problem with an optical scanner, correct?
So there's not uniformity even within this state as to the type of voting machine that is used or the procedures that are used in each county.
Carvin: We have complained about the ad hoc nature of the way in which votes are tallied in differential counties. That is a problem.
Pariente: When you say you've complained about it, where has that being complained?
Carvin: I'm sorry, in federal court, Your Honor. And I'm not trying to introduce that here.
Pariente: Let me ask you that question. Is there a constitutional attack on this statute being made?
Carvin: Well, we don't think you need reach the question, but, yes.
Pariente: Was that because you're requesting the federal courts to reach you and you don't think that the state court has it within its jurisdiction to decide whether a statute is being constitutionally applied?
Carvin: Oh, no, clearly state courts have that power. I'm simply making the point that there's a much simpler basis for deciding this case then going all the way to the U.S. Constitution, which is state law clearly prohibits the release that the petitioner's requesting, because state law makes it quite clear that they have no right to ignore the mandatory statutory deadline imposed upon them by state law.
They seek to rewrite the statutes, create a scheme that serves their personal problems or conveniences, but in doing so, they posit a hypothetical that cannot be found in the statute.
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: December 12 is the cut-off 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.
Wells: You're referring to the contest under 168?
Carvin: Precisely.
Wells: But how can those contests, under these circumstances, be made until the recounts are completed? I mean, why isn't it somewhat like a proffer, that you've got to proffer the evidence in the form of these recounts so we know what is in those recounts and whether there is a proper basis for their to be an amended certification?
Carvin: Well, there's two problems with that, Your Honor. One is, in court, not only one side gets to make a proffer. And here we're talking only about counties selected by one political party.
So at the end of the day, if we continue to wait until Miami-Dade finishes its recount and Broward finally chooses the standards for determining which ballots it will count, we will not have any better understanding of how many votes were cast and for whom in the presidential election, because we've only looked at a selective subset of the counties in this state.
If you were doing a recount in a municipal proceeding, I don't think anyone would take seriously the notion that, Well, we've had some problems with our machine, so what we're going to do is recount in three of the 67 precincts here, and then we'll know who the winner is.
Carvin: No, obviously you have to recount or apply the same standards throughout all 67 precincts so you can come to a judgment as to who indeed is the winner.
Pariente: Well, was it requested in the other 64 counties?
Carvin: No. Notwithstanding their devotion to the manual recount as the only means of assessing voter intent in counting all votes, the Democrats did not request all 67 counties.
Pariente: Was there something that prevented your client from requesting recounts in the other counties?
Carvin: Yes. They believe the process is inherently flawed and unconstitutional. But moreover, it doesn't matter if they requested it, because as I ...
Pariente: Are you asking us to resolve that issue as to � that is, if � even if we said that everyone has a chance or a window period to request a recount in whatever other counties are in question, are you saying that it is the position of � you're representing Governor Bush?
Carvin: Yes, I am.
Pariente: The position of Governor Bush that he would not go along with wanting recounts in the other counties because the process 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.
Anstead: But the statute provides the opportunity for a manual recount.
Carvin: Right, but it requires ...
Anstead: So the legislative � if that is the case, then the legislature should delete that from the statute.
Carvin: No, no, obviously they coexist quite comfortably. It says you've got to get your returns in in seven days. That's the mandatory part of the statute. You have an option to do a manual recount or two other things, if you find that there is a problem. Or you don't have to do a manual recount at all.
Pariente: So you wouldn't have objected if the county had completed it within seven days, the manual recount?
Carvin: Oh yes, no it's � I want to really emphasize the point here, that notwithstanding petitioner's position, the secretary did not express any preference for machine counts over manual recounts. She expressed a preference for timely returns over those that were two or three weeks late, whenever they will come in. There are manual recounts in the certified numbers that she will certify when and if this injunction is lifted.
There is no preference because the secretary, like the legislature, was agnostic as to whether or not you used the machine recount or a manual recount. They made no judgment as to which one was more accurate, which is really the basic flaw in petitioner's argument. They want this court, on the basis of no evidence, to enter a judicial fiat that the only way to discern voters' intent is through manual recounts.
Carvin: But we do know what the voters' intent is, at least presumptively, because we have certified returns from 67 counties sitting in the secretary's office. Those votes have been tallied and calculated in precisely the same way that every Florida election, up until this time, has been calculated, and no one has ever suggested that it is somehow inherently flawed.
Anstead: What is the purpose, then, of having a statutory scheme that allows for manual recounts at the option of these local canvassing boards?
Carvin: I assume it's because in some circumstances maybe manual recount, the legislators thought, would be preferable. And they said, "Look, if in your circumstance you want to do this way, go ahead and do it. But you've got to do two things, if that's your preferred course. The first is, you have to do it quick. And if you have problems doing it quick, you need to assign enough people to get the job done."
We understand, obviously, that larger counties are going to have a lot more votes to count, but we also understand that larger counties have a lot more money and resources and staff that they can devote.
Anstead: So effectively, if you're asked on the sixth day to do it, the answer has to be no in a large county because it can't be done.
Carvin: Remember, Your Honor ...
Anstead: Would you just answer that question?
Carvin: I would ...
Anstead: Effectively, if you're asked on the sixth day � that is, the local canvassing board � the answer has to be no because in a large county it can't be done.
Carvin: I would think that's true, but who is that unfair to? The candidate � the losing candidate who has waited and waited and waited before he even asked that this process begins? Surely if he thinks a manual recount will affect the outcome of the election, it's utterly improbable that that he will wait until the time when the recount can't be done before he even makes the request.
So I don't think that's a glitch in the statutory scheme.
Anstead: Have you researched the statutes in other states to compare them to Florida's?
Carvin: I'm not aware of whether they're mandatory or not. I know that there's never ...
Anstead: No, I'm just asking whether you have researched other states to see whether they have comparable statutory schemes. Have you?
Carvin: No, I'm not aware of ...
Anstead: I mean, you haven't researched other states, is what your answer is?
Carvin: No, no, I'm ...
Anstead: You haven't, OK.
Carvin: I was thinking ...
Shaw: Did I understand your previous answer to be that you would not be interested in opening up this window of opportunity under any circumstances since you believe that the system is flawed?
Carvin: Your Honor ...
Shaw: Was that your answer?
Carvin: My answer is that anything which departs from the rules that were set before November 7, before the election by the Florida legislature, would be a gross abuse of discretion and impermissible.
And that's why we have deadlines, and that's why we have uniform rules, because we want election contests to be decided, not in this fevered partisan environment where everyone knows that the way they proceed in counting ballots, or whether they use a two-corner rule versus a dimpled ballot, it may well affect the outcome of the election, because that introduces subjectivity and partisanship into it.
And that is why it is very important that we follow the rules that are set forth in the statute that were written by the legislature long ago ...
Anstead: But there are also rules in the recount process too, that it's open, and that there be people there for both parties, and that there be an opportunity to observe what happens, and that it is an open and fair system, subject to people's differing opinions but it's not closed?
Carvin: Yes. And, of course, if that is the preferred methodology. At the end of the day, if you grant the relief petitioners seek, only three counties or four counties will have gone through that open and fair process; 63 counties will not have.
And if petitioners are correct, that machine recounts are somehow inherently unreliable, and for some reason they are disproportionately rejecting ballots with the name Gore on them rather than the name Bush on them, then those people will have been disenfranchised.
The point I'm trying to make is, at the end of this long and arduous journey as we wait for Dade County's returns to come in, we'll be in no better position to know who the true winner is in Florida then than we are today.
And that's exactly why the legislature said, look, here's what you do: Take all the returns in, pursuant to a methodology that we've used for decades; certify those results. If petitioners have the kinds of proof that they assert they have in their brief, then it should be fairly simply matter to show that legal votes illegally were rejected by the machines and it could affect the outcome of the election.
Pariente: So you have no objection, then, to these manual recounts to be going on while at the same time a contest is filed?
Carvin: I have no objection, but I will point out that the law doesn't contemplate superfluous acts. Now, obviously, once ...
Lewis: Wait. Wait. Wait.
You're going back to � excuse me.
You seem to be saying, on one side, that you don't need to go through this process. Then on the other hand, you're coming back in and suggesting, well, it would be improper to go through the recounts. And then you're saying that, no, you don't have to go through the recounts because that's part of the contest process.
I mean, at some point we have to understand which is it. Is it part of the contest? Is it to stop? What's to happen?
Carvin: Yes. And I would again go back to the legislative scheme, and I've been confusing on this I'll try and clarify it.
What I am saying is that the certification process doesn't, as petitioners have acknowledged, involve the secretary in determining the accuracy of the votes up front. The certification process gives to the county boards the ability to conduct a manual recount so long as they do it in a timely manner.
Lewis: And what happens if it's not there in seven days?
Carvin: Well, here we ...
Lewis: Should they stop?
Carvin: No. What we have here, which is they do have certified returns on file. And obviously, if they can't finish the job, then those are the returns that declare the winner.
Lewis: What do they do with the recount? Does it stop?
Carvin: I would think that would certainly make sense, but I don't think the legislature contemplated that eventuality because I don't think the legislature ever contemplated people continuing to count past the time that the votes were tallied.
Lewis: If it stops, then it cannot be part of the contest then, correct?
Carvin: Oh, well, what I meant by a contest is what they would do is ...
Lewis: Under 168.
Carvin: Yes, exactly.
Lewis: So it cannot be � if it stops, how can it still be part of a contest? That's what I don't understand.
Carvin: Oh, no, I'm sorry. I think your proof in a 168 would not be, again, on these chads and all of that. I think you would point out, which they claim they can do, that the machines have improperly counted.
Lewis: But you wouldn't have the recount to prove that, correct?
Carvin: Well, obviously, if the machines � the margin of error of the machines is so bad that they can't accurately predict the winner, then you would be able to show, under the 168 procedure, that the margin of error is such that it wouldn't affect the � it could affect the outcome of the election.
Lewis: But you would not have the recount, correct?
Carvin: Oh, I don't � no, but I don't see � think there would be any problem in � just so I'm quite clear, Mr. Justice, that � producing that kind of evidence in an election contest procedure.
You could go through � I mean, as I understand it, we're almost through in Broward and these other places, and instead of having every court in Florida resolving on an ad hoc basis the kinds of ballots that are valid and not valid, you would be centralizing that factual inquiry in one court in Leon County. So you would bring some orderliness to the process, and they would be able to resolve that evidentiary question.
One way or another, a court's going to have to resolve it.
Wells: Justice Quince?
Quince: Let me ask you, really simply, on a machine-counted ballot, where 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 there 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.
Lewis: That's the crux of the matter.
Carvin: And that's ...
Lewis: It's not a machine malfunction, is it when the punch � falls down?
Carvin: My only point is, Your Honor, you don't have the voter in front of you; you have the ballot in front of you. And what you need to do is what's been going on, is look at the ballot, pursuant to some objective criteria, and determine whether or not the punch, if you will, is sufficiently strong, showing that the voter intended to do that, to figure out whether or not they intended it.
But as we know, and as the colloquy before indicates, that is a standardless and subjective inquiry, which there are no Florida rules on, and that is why they are asking you for some guidance.
My point is: How can this court, after the election has been held, start deciding � resetting the statutory deadlines, reanalyzing statutory terms for resolving empirical questions of the sort that you're discussing, and redoing everything that reflects a considered judgment that's already in the election code?
Quince: But that still sounds like you're coming back to all of these ballots would just be not counted, all of those voters would be disenfranchised.
Carvin: No, no. And I want to make it quite clear. If they did a timely manual recount, all of those ballots would be included in.
Now, let's assume that they would not. Let's assume that they were not.
Carvin: Then they would be in precisely the same position as all the other voters in Florida. But I don't think the people in those 63 counties were disenfranchised, because the legislature did not believe that manual recounts were the only proper way of discerning the voter's intent. And for the court to disagree with that would require this court to ...
Quince: Well, what other way would you determine the voter's intent? If it's not picked up by the machine and you don't do it manually, how do you determine?
Carvin: The question is accurately assessing the number of votes. And you only get to the question of the voter's intent, either in a contest election or in the protest election under 166. And I would think you would do it presumably in the same way in both contests. My only point is, there are no standards established by federal law, which is why we have ad hoc switching back and forth.
And I would urge that the court not, after the election has been held, change the rules by which the election should be conducted.
Wells: Mr. Carvin, I thank you. We should let Mr. Richard have his time, if he is going to use it.
Carvin: One final point, he also represents ...
Wells: Right.
Carvin: ... Mr. Bush, and I just did want to bring the court's attention very quickly, if I could to 3 USC, Section 7, which makes it clear that the federal courts � federal law will not allow this court or the Florida legislature to change the rules of the election after the election has taken place, to avoid precisely the evil I have been discussing, which is that there will be ad hoc decision making that could be influenced by subjective or partisan concerns.
