| November 16, 2000 THE ELECTION -- VOLUME II I have had the chance to read some of the briefs concerning the right of the counties to conduct manual recounts, and the corresponding right of the Secretary of State to ignore supplementary returns. Assuming the overseas absentees break in favor of Gore, Bush has won the election. The only way Gore can win is if the Florida Supreme Court enters the most nakedly political decision in American history. Gore's arguments are much weaker than I originally thought -- they border on the frivolous. As a reminder, under Florida law, the election votes have been certified, subject to the overseas absentees. Palm Beach and Broward counties have indicated they want to supplement their respective totals pursuant to a manual recount, but the Secretary of State has stated she will not accept their totals because they will be late, and there is no cause to be late. There are two separate issues (and two separate lawsuits): (1) whether Palm Beach and Broward can even perform manual recounts, and (2) whether the Secretary of State can ignore the results of the recounts. The two issues, however, are intertwined, because, in essence, the Secretary of State has said she is going to ignore the recounts because the counties should not be performing recounts. The issue of whether the counties can even perform manual recounts is presently pending before the Florida Supreme Court. Palm Beach, in a strange maneuver, has essentially asked for an advisory opinion from the Court concerning whether it may conduct a manual count, because it has received conflicting opinions from the Secretary of State and the Attorney General. Leaving aside certain very important jurisdictional issues which may be decisive, the Secretary of State argues as follows: 1. Because the Secretary of State (and not the Attorney General) is the administrative agency charged with ultimate jurisdiction over election procedures, the Court must defer to the Secretary's interpretation of the statute as long as it is reasonable. The Florida case law is pretty clear that the Secretary's interpretation cannot be overturned unless it is "clearly erroneous," or "merely because the courts might prefer another view of the statute." Other courts have stated that "If an agency's interpretation is one of several permissible alternatives, it must be upheld despite the existence of reasonable alternatives," and "The reviewing court will defer to any interpretation within the range of possible interpretation." Therefore, the Secretary does not need to have the best interpretation, or even a very good one, so long as it is reasonable and not out of left field. As long as the Florida Supreme Court plays fair, the Secretary has a lot of leeway. Gore barely addresses this issue. He implies that the Secretary should not be given any deference, because "an agency has no power to declare a statute void or otherwise unenforceable." That is pure hyperbole -- the Secretary is merely giving an opinion that Gore doesn't like. 2. The fundamental issue is whether there is an "error in the vote tabulation." The Secretary states that "tabulation" is a term of art that under Florida law specifically refers to a result reached by an electronic count. The legislature uses the term "recount" (and not "retabulate") to refer to manual counts. Therefore, when determining whether there is an "error in the vote tabulation," the county is to determine whether the count reached is different than the count that would be reached if the electronic equipment is working properly. Since the electronic equipment, when working properly, does not pick up improperly punched ballots (i.e. hanging chads), it makes no sense to say that there is an "error" in the electronic "tabulation" merely because the improperly punched ballots are not counted. Again, Gore does not address this issue squarely. He emphasizes that votes may be counted even if they are not read by the machine. That is true, but that rule only comes into play once you get to do a recount -- it is not a reason to do a recount. He does not offer any explanation how an electronic tabulation can ever not be erroneous under his interpretation of the statute. 3. As further evidence, the Secretary points to the structure of the relevant statute, which says: "If the manual recount indicates an error in the vote tabulation which could affect the outcome of the election, the country canvassing board shall: (a) Correct the error and recount the remaining precincts with the vote tabulation system; (b) Request the Department of State to verify the tabulation software; or (c) Manually recount all ballots." The Secretary points out these are not alternatives, but a sequence to be undertaken by the county to correct an error in the underlying machinery or software. If an error is indicated, the county is to first "correct the error" and then recount using the mechanical system (this is an obvious reference to a mechanical problem). If the error cannot be easily corrected, the county is to contact the Secretary to verify the software (again, an obvious reference to a mechanical problem). Finally, if the "error" cannot be quickly fixed, the county may do a manual recount. Again, all of this makes sense if the statute is addressing mechanical problems that cause an incorrect count. Gore jumps on the point that the three options are in the disjunctive, and that manual recounts, unlike the first two options, are unrelated to mechanical problems. But that is not exactly right, since manual recounts will have to be done in certain cases where the electronic defect cannot be easily fixed. Therefore, while Gore may be capable of demonstrating that his interpretation may be correct, he cannot prove that the Secretary's interpretation is not correct. Therefore, the Court should not overturn her interpretation. 3. The Secretary further bolsters her case by pointing out that the statute was passed in 1989 after a Senate race in 1988 in which there were accusations that the mechanical equipment failed to work properly and miscounted properly submitted votes. There is nothing in the legislative history of the statute that provides that a county may do a hand recount to pick up improperly punched ballots. (In fact, there are now stories with interviews of the legislators that drafted the statute, including Democrats. They support the Secretary. http://www.nationalreview.com/document/document111600.shtml). Gore never address the legislative history of the statute. 4. Finally, and this is also important, the Secretary points out something rather obvious -- in the case of close elections (the reason stated by the counties to do a manual recount), the election code provides a remedy -- an automatic state-wide electronic recount. Therefore, it is not the job of individual country canvassing boards to unilaterally decide that because the state-wide election is close, they are going to do a manual recount to find new votes. Gore never addresses this argument. Although not specifically spelled out by the Secretary, perhaps the best reason that country canvassing boards are not permitted to do manual recounts in close elections is to prevent the very sequence of events that has occurred in this election. Al Gore immediately asked for a recount in four selective Democratic counties. Why should those four counties get to decide the election? Why should hanging chads be counted in Democratic counties, but not Republican counties? We then have the spectacle of the Broward County commission vote not to do a recount, be immediately sued by Gore, and then have one of the commissioners change his vote under incredible political pressure. Not a pretty picture. Gore's biggest problem in his argument is the same as his biggest political problem. Gore's brief is an eloquent plea that every vote counts and should be counted. Fine. So why did Gore only request a manual recount in four Democratic counties out of 67 counties? Shouldn't the votes of the other 64 counties be recounted? The hypocrisy undercuts his argument entirely. In summary, under Florida law, the mere existence of a state-wide close election does not permit individual county commissions to choose to do manual recounts. This is not merely a possible interpretation, which is sufficient under state law for the Secretary's interpretation to be given deference, it is the correct interpretation. Unless the Florida Supreme Court goes political (the Court consists of seven judges appointed by Democrats), Bush has won the election. Thank you for listening. DS |