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Stick to Your Guns
After the automatic machine recount mandated by statute was complete (which occurred due to the less than one-half of 1 percent margin between the candidates),
the Gore campaign filed a protest by petitioning for manual recounts in four heavily Democratic counties only: Palm Beach, Miami-Dade, Broward, and Volusia.
By statute, the canvassing boards could grant such a request by ordering a sample recount that had to "include at least three precincts and at least 1 percent of the total votes cast" for the candidate who had petitioned for the recount,
or on whose account a political party had made such a request. If the sample recount indicated "an error in the vote tabulation which could affect the outcome of the election," the canvassing boards were required to choose from three options, one of which was a manual recount of all ballots cast in that county.
As these four cherry-picked counties completed their sample recounts, questions arose concerning whether the results of those sample recounts showed "an error in the vote tabulation which could affect the outcome of the election,"
so as to require these counties to choose one of the three courses of action.
Two counties, Broward and Palm Beach, requested advisory opinions from my Division of Elections on this matter.
Section 106.23(2) of the Florida Statutes authorizes the Division of Elections to issue opinions upon such requests and states that "the opinion, until amended or revoked, shall be binding on any person or organization who sought the opinion or with reference to whom the opinion was sought." The division's opinion was crystal-clear, based on the language of the protest statute. "An error in the vote tabulation" occurred when a vote counting machine failed to count a properly marked ballot. "An error in the vote tabulation"
did not refer to circumstances involving voter error, in which a vote counting machine had refused to tabulate an incorrectly marked ballot.
The division's opinion did not state that manual recounts designed to correct voter error could not occur at all. The opinion did not preclude the possibility that a court could properly order such manual recounts as part of a contest proceeding. The opinion merely indicated that manual recounts to correct voter error were not permissible during the protest phase.
U.S. Court of Appeals Judge and University of Chicago Law School Senior Lecturer
Richard A. Posner, in his book on the recount controversy, Breaking the Deadlock,
agrees with the Division of Elections' rationale in this matter. He reasons,
"Voter error is not tabulator error; the voter is not the tabulator of the vote." He argues that the Florida Supreme Court's "mistaken interpretation of 'error in the vote tabulation'" drove its decision extending the deadline for counties to certify their final results from November 14 to November 26.
While the Florida Supreme Court held that an irreconcilable conflict existed between the protest statute's November 14 deadline and its provision for manual recounts (which, presumably, would take longer), Judge Posner states,
If, as the election officials ruled, ["error in the vote tabulation"]
refers only to a breakdown of the tabulating process[meaning that]
unspoiled ballots have not been counted the hand recount should not take much time at all. It will be obvious at a glance which candidate received the vote on those ballots. Judgment, interpretation, disagreement, objection,
challenge, and resulting delay come into play only when, because the ballot was spoiled, the voter's intention is an enigma.
Judge Posner continues,
The only thing that could make the seven-day period for the submission of a county's votes unreasonably short (other than extraordinary circumstances such as fraud or some natural disaster) would be a desire to recover spoiled ballots as votes, a process that is time-consuming because of its subjectivity.
In the exercise of her discretion to interpret and apply the statute, the secretary of state was entitled to conclude that wanting to recover votes from ballots spoiled by the voter was not a proper reason for the extension of the statutory deadline¾especially in a Presidential election, in which delay in certifying the results of the election could cause chaos.
Ultimately, our opinion regarding the type of recounts Florida law permitted diverges from Judge Posner's thesis; we disagree with his argument that the
Florida Supreme Court did not have the authority to order a statewide recount to remedy voter error, even in the contest proceeding. Nevertheless, his thorough,
incisive reasoning provides welcome support for the Division of Elections' advisory opinion, which we have always known to be correct, but which has been the subject of misplaced and misinformed scorn and ridicule.
When the four-justice majority of the Florida Supreme Court ordered a belated statewide recount on December 8 (without declaring uniform counting standards,
which we had requested the court to declare weeks earlier in a motion that the court denied), they capped a stunning month-long display of judicial gymnastics.
Our system of governance is based upon a balance of power amongst our three branches of government: the executive, the legislative, and the judicial. By law these branches are mandated to perform separate duties. The executive branch administers the law; the legislative branch writes the law; and the judicial branch interprets the law. When the four-justice majority of the Supreme Court joined their three dissenting colleagues to issue the court's first ruling,
which extended the deadline for submission of county returns and delayed certification until November 26 (thereby writing new law, not interpreting the law), they abandoned traditional judicial decorum, chiding me for being too much of a stickler about the law-as if this trait somehow constituted a defect in character. They said, "The will of the people, not a hyper-technical reliance on statutory provisions, should be our guiding principle in election cases." They ruled that certification constituted such a significant event, with such momentous implications for Al Gore's ability to obtain a "full and fair" (for only four Democratic majority counties) manual recount, that they had no choice but to legislate from the bench and change the law.
Once this ruling had transformed the legislature's orderly process for settling election disputes into a chaotic free-for-all, this four-justice majority of the Florida Supreme Court reversed themselves, deciding in their December 8
decision that certification meant nothing. They added uncertified recount totals that Palm Beach County submitted after the new deadline the court had created to the totals the Elections Canvassing Commission certified on November 26.
They added partial recount returns to the certified total that Miami-Dade County never even submitted.
When the damage had already been done to the cause of an orderly, fair statewide recount, the four-justice majority finally agreed with what my office had told them just before they eviscerated the November 14 deadline: that certification operated merely as a procedural milepost between the protest and contest phases of a cohesive legislative plan to settle election disputes. Certification had no impact on any person's right to pursue a manual recount of any sort or scope.
To their everlasting credit, the dissenters to the December 8 decision, Chief
Justice Charles Wells, Justice Leander Shaw, and Justice Major Harding, remained consistent. I did not agree with their prior decision to move the November 14
deadline to November 26, but I immensely respected their courage as they stood fast in their convictions while the other four justices flip-flopped.
Justice Shaw issued a statement that echoes my feelings about this controversy.
In his concurring opinion to the court's order dismissing Al Gore's contest pursuant to the directions of the U.S. Supreme Court, Justice Shaw stated as follows:
Both the search for the truth and the right to vote are of paramount importance,
but they are circumscribed by a higher, overarching concern-the general welfare of our democracy. The general welfare is informed by our law. The law infuses the fabric of our society and breathes life into all our legal principles.
Inherent in the law are the basic concepts of fairness, reliability, and predictability,
and the constitutional safeguards of due process and equal protection were designed to promote these interests. Although the pursuit of the truth and the preservation of the right to vote are worthy goals, they cannot be achieved in a manner that contravenes these principles.
I was determined throughout the entire recount controversy to stand fast and firm on an immutable principle of American justice: the rule of law. I could not allow circumstances to alter this conviction, even though I knew I confronted a no-win situation. When I was assailed in the press, when I was besieged with lawsuits, when I was hammered by special-interest groups, and when I was mocked by pundits and late night comedians, I felt that my first and foremost duty was to cling to my convictions, do my job, follow the law, and stick to my guns.
The rule of law, after all, is an essential aspect of American liberty.
Excerpted from Center of the Storm by Katherine Harris. Copyright ©
2002 by Katherine Harris. Excerpted by permission of Nelson Current, a division of
Thomas Nelson, Inc. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher. For more information,