| November 21, 2000 THE ELECTION -- VOLUME V I just read the Florida Supreme Court's decision. I haven't felt this gullible since I bet money that the OJ jury would convict. It is difficult to explain how nakedly political this decision is. I am sure that the seven justices are convinced that they acted with Solomonic wisdom and fashioned a just and fair resolution. On the other hand, that is probably another example of my gullibility -- they probably know exactly what they are doing. In order to reach the result it did, the Court had to go out of its way to find for Gore on every issue before it. Let's get to it. 1. The Court begins by saying the following: "We consistently have adhered to the principle that the will of the people is the paramount consideration. Our goal remains the same as it was a quarter of a century ago, i.e., to reach the result that reflects the will of the voters, whatever that might be." Whoever thought that the Supreme Court's goal was to figure out what the Florida legislature intended when it passed its election laws is sadly mistaken. No, the goal is to reach the result that reflects the "will of the voters." You can see where this is going already. In any event, keep the idea of the "will of the voters" in your mind. 2. The Court then goes to the definition of "error in vote tabulation" in the context of a request for a manual recount. As a reminder, the Secretary of State, the official officer responsible for administering elections in Florida, is of the opinion that "error in vote tabulation" refers to defects in the tabulation machinery. The Attorney General, who has historically refused to give opinions on election issues and deferred to the Secretary of State, is of the opinion that "error in vote tabulation" refers to any difference between the machine count and the sample hand count. The Court acknowledges that the Florida courts generally defer to the agency responsible for implementing and enforcing a law, but not in this case: "Florida courts, however, will not defer to an agency's opinion that is contrary to law. We conclude that the Division's advisory opinion regarding vote tabulation is contrary to law because it contravenes the plain meaning of section 102.166(5)." The Court then cribs the argument from the Attorney General and believes the "error" is an error in the vote tabulation and not the vote tabulation system, which means any difference between the machine count and a hand count. Please understand, this is nakedly political. The statute does not have a plain meaning -- it is plainly ambiguous -- it is unclear whether the manual recounts may be done by selective counties solely because an election is close and a candidate wants to count hanging chads -- that is precisely the unresolved issue that caused the counties to ask for an opinion in the first place. Therefore, to simply dismiss the Secretary of State's opinion as "contrary" to the "plain meaning" is outrageous. The Court then compounds the problem by stating the following, which really sums up the entire problem with the Court's opinion (and Gore's position): "Taken together, these sections suggest that "error in the vote tabulation" includes errors in the failure of the voting machinery to read a ballot and not simply errors resulting from the voting machinery." A few paragraphs later, the Court repeats itself: "Although error cannot be completely eliminated in any tabulation of the ballots, our society has not yet gone so far as to place blind faith in machines. In almost all endeavors, including elections, humans routinely correct the errors of machines. For this very reason Florida law provides a human check on both the malfunction of tabulation equipment and error in failing to accurately count the ballots." This is critical and cannot be overemphasized. Remember, all punch ballot machines, which are authorized by the Florida election code, are going to overlook hanging chads (never mind dimpled ballots), which are indisputably legal votes in the state of Florida. Therefore, by definition, if you follow the Court's unbelievable reasoning, all ballot tallies in the State of Florida that are derived solely from machine counts must be "erroneous." Now think about this, please. The Court, only pages earlier, said the paramount issue is "will of the voters." By any reasonable interpretation, the "will of the voters" must include all the voters, right? However, the result of the opinion is that the election in Florida will be decided by "unerroneous" manual counts in four selective counties, plus erroneous counts in the remaining 63 counties that did not do manual recounts!! ?!!" The Court is essentially stating that the certified results are going to be wrong!! How can this be the "will of the voters" in an election decided by a handful of votes?! Can this possibly be what the Florida legislature intended when it permitted individual county canvassing boards to do manual recounts if there is an "error in the vote tabulation?" This is insane, which is why the Secretary of State's interpretation is the only interpretation that makes sense after careful analysis -- manual recounts may only be done by local canvassing boards if the machines are not working properly. If an election is really close and the hanging chads need to be counted, a court can always order a manual recount (presumably statewide) if necessary as part of an election contest. But that is apparently not the view of the Court. 3. The Court then goes on to interpret the requirement that the county certification be sent to the Secretary of State by the seventh day after the election. The Court believes there is a conflict in that parties are permitted to request a manual recount up until the later of 72 hours after the election or the time the county must certify the votes (i.e. seven days after the election), but a manual recount, especially in large counties, may not be able to be completed in that timeframe. This is a conflict only in the mind of the Florida Supreme Court. First, if they were to interpret "error in vote tabulation" as limited to error in the machinery, there is no conflict, because the Secretary has stated she would accept late returns in that case. But even under the Court's interpretation of "error in vote tabulation," there is no conflict. Under the Florida election laws, county canvassing boards are to immediately certify their counts. In other words, I am willing to bet that when the Florida legislature passed section 102.166, they thought that counties would be certifying their counts within 72 hours (and not at the last minute). Therefore, they thought that the latest that anybody would be requesting a manual recount would be at the 72 hour mark, which would give the county at least four days to do a recount if they thought it appropriate. (BTW, the Court picked up on a David Boies argument regarding "official returns" as including absentees and manual recounts, implying that manual recounts could come in after the seven day limit. However, if the county certified the votes on day 2, agreed to do a manual recount on day 3, and then sent in the manual recounts on day 6, that would explain why the definition of "official returns" would have to include manual recounts together with the certified amount. The seven day rule would not be affected.) Furthermore, the 72 hour requirement to request a manual recounts is more stringent than the 5-day time limit for general "protests." Is there any other reason for such a tighter time limit other than to make sure manual recounts are started immediately so as to meet the 7-day deadline for certification? What this all means is that the Court made absolutely no effort to reconcile the statutes, or to give any deference to the Secretary of State's interpretation. The Court simply announced that there was a conflict and proceeded accordingly. (I should also say the Bush attorneys did not make any of these arguments. They did not do a good job at all explaining how the statutes worked together, and instead simply relied on the "plain meaning" of the statutes.) 4. The Court then engages in an extensive analysis of the Secretary's discretion to ignore late-filed returns. In summary, the "right to vote" is paramount. Therefore, the Court holds: "Based on the foregoing, we conclude that the authority of the Florida Secretary of State to ignore amended returns submitted by a County Canvassing Board may be lawfully exercised only under limited circumstances as we set forth in this opinion." The Court then goes on to say that the only time the Secretary may ignore late returns is when the failure to submit the returns will either (1) preclude a party from "contesting" the election, or (2) preclude Florida voters from participating in the federal electoral process. The Court then notes that the Secretary did not make any such argument in the present case (that's right -- because the Secretary attempted to read the statute instead of the minds of the Florida Supreme Court, she has no right to determine when certification is appropriate in the present case). In other words, the Secretary has absolutely no discretion to ignore late returns, because such an act would disenfranchise voters, and we cannot have that (at least in four counties!). 5. Finally, in an attempt to show that is has a sense of humor, the Court writes the following: "In the present case, we have used traditional rules of statutory construction to resolve these ambiguities to the extent necessary to address the issues presented here. We decline to rule more expansively, for to do so would result in this Court substantially rewriting the Code. We leave that matter to the sound discretion of the body best equipped to address it -- the Legislature. Because of the unique circumstances and extraordinary importance of the present case, wherein the Florida Attorney General and the Florida Secretary of State have issued conflicting advisory opinions concerning the propriety of conducting manual recounts, and because of our reluctance to rewrite the Florida Election Code, we conclude that we must invoke the equitable powers of this Court to fashion a remedy that will allow a fair and expeditious resolution of the questions presented here." The Court then set a deadline of November 26 at 5:00 for amended returns. This is all unbelievable. The only saving grace of this is that the Court has absolutely destroyed Al Gore's political career. There is now no chance he is going to concede. If he wins, it will be because dimpled ballots are counted, and military ballots without postmarks will be excluded. Good luck, Al. By the way, with respect to dimpled ballots, I presume that Al is going to find his votes. To get an idea of how ridiculous this is, look at what is going on in Palm Beach. When Palm Beach first decided to do its recount, it spent hours discussing the appropriate standard. They finally decided to exclude dimpled ballots. The Democrats immediately sued. The trial judge issued a ruling that said, in effect, Palm Beach cannot categorically exclude dimpled ballots, but there is no requirement that they be included. I interpret this ruling to mean that the law of Florida is that it is against the law to have any standard at all in determining the voter's intent when examining a ballot. Presumably, the canvassing board must be entirely subjective and ad hoc. Think about that. Thank you for listening. DS |