This
decision was
released around 10:10 EST today by the
Florida Supreme Court. The
ruling is that the
Secretary of State must
accept all
recounts until 5:00 P.M. November 26 or 9:00 A.M. November 27, depending on if she opens the
office on
Sunday for that
purpose. You will notice that I have
neglected to
include the footnotes. In truth, I am not feeling very well right now and I need some rest... I will put them up tomorrow...
Supreme Court of Florida
_____________________________________
Nos. SC00-2346, SC00-2348 & SC00-2349
______________________________________
PALM BEACH COUNTY CANVASSING BOARD,
Petitioner,
vs.
KATHERINE HARRIS, etc., et al.,
Respondents.
VOLUSIA COUNTY CANVASSING BOARD, et al.,
Appellants,
vs.
KATHERINE HARRIS, etc., et al.,
Appellees.
FLORIDA DEMOCRATIC PARTY,
Appellant,
vs.
KATHERINE HARRIS, etc., et al.,
Appellees.
November 21, 2000
PER CURIAM.
We have for review two related trial court orders appealed to the First District
Court of Appeal, which certified the orders to be of great public importance
requiring immediate resolution by this Court (Case Numbers SC00-2348 and SC00-2349). We have jurisdiction under article V, section 3(b)(5) of the Florida
Constitution. For the reasons set forth in this opinion, we reverse the orders of the
trial court.1
I. FACTS
A. The Election
On Tuesday, November 7, 2000, the State of Florida, along with the rest of
the United States, conducted a general election for the President of the United
States. The Division of Elections (“Division”) reported on Wednesday, November
8, that George W. Bush, the Republican candidate, had received 2,909,135 votes,
and Albert Gore Jr., the Democratic candidate, had received 2,907,351 votes.
Because the overall difference in the total votes cast for each candidate was less
than one-half of one percent of the total votes cast for that office (i.e., the difference
was 1,784 votes), an automatic recount was conducted pursuant to section 102.141(4), FloridaStatutes.2 The recount resulted in a
substantially reduced figure for the overall difference between the two candidates.
In light of the closeness of the election, the Florida Democratic Executive
Committee on Thursday, November 9, requested that manual recounts be
conducted in Broward, Palm Beach, and Volusia Counties pursuant to section
102.166, Florida Statutes (2000).3 Pursuant to section 102.166(4)(d), the county
canvassing boards of these counties conducted a sample manual recount of at least
one percent of the ballots cast. Initial manual recounts demonstrated the following:
In Broward County, a recount of one percent of the ballots indicated a net increase
of four votes for Gore; and in Palm Beach County, a recount of four sample
precincts yielded a net increase of nineteen votes for Gore. Based on these
recounts, several of the county canvassing boards determined that the manual
recounts conducted indicated “an error in the vote tabulation which could affect the
outcome of the election.” Based on this determination, several canvassing boards voted to conduct countywide manual recounts pursuant to section 102.166(5)(c).
B. The Appeal Proceedings
Concerned that the recounts would not be completed prior to the deadline set
forth in section 102.111(1), Florida Statutes (2000), requiring that all county returns
be certified by 5 p.m. on the seventh day after an election, the Palm Beach County
Canvassing Board, pursuant to section 106.23, Florida Statutes (2000), sought an
advisory opinion from the Division of Elections, requesting an interpretation of the
deadline set forth in sections 102.111 and 102.112. The Division of Elections
responded by issuing Advisory Opinion DE 00-10, stating that absent unforseen
circumstances, returns from the county must be received by 5 p.m. on the seventh
day following the election in order to be included in the certification of the statewide
results.
Relying upon this advisory opinion, the Florida Secretary of State (the
Secretary) issued a statement on Monday, November 13, 2000, that she would
ignore returns of the manual recounts received by the Florida Department of State
(the Department) after Tuesday, November 14, 2000, at 5:00 p.m. The Volusia
County Canvassing Board (the Volusia Board) on Monday, November 13, 2000,
filed suit in the Circuit Court of the Second Judicial Circuit in Leon County, Florida,
seeking declaratory and injunctive relief, and the candidates and the Palm Beach County Canvassing Board (the Palm Beach Board), among others, were allowed to
intervene. In its suit, the Volusia Board sought a declaratory judgment that it was
not bound by the November 14, 2000, deadline and also sought an injunction
barring the Secretary from ignoring election returns submitted by the Volusia Board
after that date.
The trial court ruled on Tuesday, November 14, 2000, that the deadline was
mandatory but that the Volusia Board may amend its returns at a later date and that
the Secretary, after “considering all attendant facts and circumstances,” may
exercise her discretion in determining whether to ignore the amended returns.4 Later that day, the Volusia Board filed a notice of appeal of this ruling to the First District
Court of Appeal, and the Palm Beach Board filed a notice of joinder in the appeal.
Subsequent to the circuit court’s order, the Secretary announced that she was
in receipt of certified returns (i.e., the returns resulting from the initial recount) from
all counties in the State. The Secretary then instructed Florida’s Supervisors of
Elections (Supervisors) that they must submit to her by 2 p.m., Wednesday,
November 15, 2000, a written statement of “the facts and circumstances” justifying
any belief on their part that they should be allowed to amend the certified returns
previously filed. Four counties submitted their statements on time. After
considering the reasons in light of specific criteria,5 the Secretary on Wednesday, November 15, 2000, rejected the reasons and again announced that she would not
accept the amended returns but rather would rely on the earlier certified totals for the
four counties. The Secretary further stated that after she received the certified
returns of the overseas absentee ballots from each county, she would certify the
results of the presidential election on Saturday, November 18, 2000.
On Thursday, November 16, 2000, the Florida Democratic Party and Albert
Gore filed a motion in [Circuit Court of the Second Judicial Circuit in Leon County,
Florida, seeking to compel the Secretary to accept amended returns. After
conducting a hearing, the court denied relief in a brief order dated Friday, November 17, 2000. 6 That day, both the Democratic Party and Gore appealed to the First
District Court of Appeal, which consolidated the appeals with the Volusia Board’s
appeal already pending there, and certified both of the underlying trial court orders
to this Court based on the Court’s “pass-through” jurisdiction.7 By orders dated
Friday, November 17, 2000, this Court accepted jurisdiction, set an expedited
briefing schedule, and enjoined the Secretary and the Elections Canvassing
Commission (Commission) from certifying the results of the presidential election
until further order of this Court.8
III. ISSUES
The questions before this Court include the following: Under what
circumstances may a Board authorize a countywide manual recount pursuant to
section 102.166(5); must the Secretary and Commission accept such recounts when
the returns are certified and submitted by the Board after the seven day deadline set
forth in sections 102.111 and 102.112?10
IV. LEGAL OPINION OF THE DIVISION OF ELECTIONS
The first issue this Court must resolve is whether a County Board may
conduct a countywide manual recount where it determines there is an error in vote
tabulation that could affect the outcome of the election. Here, the Division issued
opinion DE 00-13, which construed the language “error in vote tabulation” to
exclude the situation where a discrepancy between the original machine return and
sample manual recount is due to the manner in which a ballot has been marked or
punched.
Florida courts generally will defer to an agency’s interpretation of statutes and rules the agency is charged with implementing and enforcing.11 Florida courts,
however, will not defer to an agency’s opinion that is contrary to law.12 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).
Pursuant to section 102.166(4)(a), a candidate who appears on a ballot, a
political committee that supports or opposes an issue that appears on a ballot, or a
political party whose candidate’s name appeared on the ballot may file a written
request with the County Board for a manual recount. This request must be filed
with the Board before the Board certifies the election results or within seventy-two
hours after the election, whichever occurs later.13 Upon filing the written request for
a manual recount, the canvassing board may authorize a manual recount.14 The
decision whether to conduct a manual recount is vested in the sound discretion of
the Board.15 If the canvassing board decides to authorize the manual recount, the recount must include at least three precincts and at least one percent of the [total
votes cast for each candidate or issue, with the person who requested the recount
choosing the precincts to be recounted.16 If the manual recount indicates an “error
in the vote tabulation which could affect the outcome of the election,” the county
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.
102.166(5)(a)-(c), Fla. Stat. (2000) (emphasis added).
The issue in dispute here is the meaning of the phrase "error in the vote
tabulation" found in section 102.166(5). The Division opines that an “error in the
vote tabulation” only means a counting error resulting from incorrect election
parameters or an error in the vote tabulating software. We disagree.
The plain language of section 102.166(5) refers to an error in the vote
tabulation rather than the vote tabulation system. On its face, the statute does not
include any words of limitation; rather, it provides a remedy for any type of mistake
made in tabulating ballots. The Legislature has utilized the phrase "vote tabulation
system" and "automatic tabulating equipment" in section 102.166 when it intended to refer to the voting system rather than the vote count. Equating "vote tabulation"
with "vote tabulation system" obliterates the distinction created in section 102.166
by the Legislature.
Sections 101.5614(5) and (6) also support the proposition that the "error in
vote tabulation" encompasses more than a mere determination of whether the vote
tabulation system is functioning. Section 101.5614(5) provides that "no vote shall
be declared invalid or void if there is a clear indication of the intent of the voter as
determined by the canvassing board." Conversely, section 101.5614(6) provides
that any vote in which the Board cannot discern the intent of the voter must be
discarded. 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.
Moreover, section 102.141(4), which outlines the Board's responsibility in the
event of a recount, states that the Board "shall examine the counters on the machines
or the tabulation of the ballots cast in each precinct in which the office or issue
appeared on the ballot and determine whether the returns correctly reflect the votes
cast." § 102.141, Fla. Stat. (2000) (emphasis added). Therefore, an “error in the
vote tabulation” includes a discrepancy between the number of votes determined by
a voter tabulation system and the number of voters determined by a manual count of a sampling of precincts pursuant to section 102.166(4).
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. Thus, we find that the Division’s opinion DE 00-13 regarding the ability of
county canvassing boards to authorize a manual recount is contrary to the plain
language of the statute.
Having concluded that the county canvassing boards have the authority to
order countywide manual recounts, we must now determine whether the
Commission 17 must accept a return after the seven-day deadline set forth in sections
102.111 and 102.112 under the circumstances presented.
V. THE APPLICABLE LAW
The abiding principle governing all election law in Florida is set forth in article
I, section 1, Florida Constitution:
SECTION 1. Political power.-All political power is
inherent in the people. The enunciation herein of certain
rights shall not be construed to deny or impair others
retained by the people.
Art. I, § 1, Fla. Const. The constitution further provides that elections shall be
regulated by law:
SECTION 1. Regulation of elections.-All elections
by the people shall be by direct and secret vote. General
elections shall be determined by a plurality of votes cast.
Registration and elections shall, and political party
functions may, be regulated by law; however, the
requirements for a candidate with no party affiliation or for
a candidate of a minor party for placement of the
candidate’s name on the ballot shall be no greater than the
requirements for a candidate of the party having the largest
number of registered voters.
Art. VI, § 1, Fla. Const. (emphasis added).
The Florida Election Code (“Code”), contained in chapters 97-106, Florida
Statutes (2000), sets forth specific criteria regulating elections. The Florida
Secretary of State is the chief election officer of the state and is charged with general
oversight of the election system.18 The Supervisor of Elections (“Supervisor”) in
each county is an elected official 19 and is charged with appointing two Election Boards for each precinct within the county prior to an election.20 Each Election
Board is composed of inspectors and clerks,21 all of whom must be residents of the
county,22 and is charged with conducting the voting in the election, counting the
votes,23 and certifying the results to the Supervisor 24 by noon of the day following
the election.25 The County Canvassing Board (“Canvassing Board” or “Board”),
which is composed of the Supervisor, a county court judge, and the chair of the
board of county commissioners,26 then canvasses the returns countywide,27 reviews
the certificates,28 and transmits the returns for state and federal officers to the
Florida Department of State (“Department”) by 5:00 p.m. of the seventh day
following the election.29 No deadline is set for filing corrected, amended, or supplemental returns.
The Elections Canvassing Commission (“Canvassing Commission” or
“Commission”), which is composed of the Governor, the Secretary of State, and
the Director of the Division of Elections, canvasses the returns statewide, determines
and declares who has been elected for each office, and issues a certificate of
election for each office as soon as the results are compiled.30 If any returns appear
to be irregular or false and the Commission is unable to determine the true vote for a
particular office, the Commission certifies that fact and does not include those
returns in its canvass.31 In determining the true vote, the Commission has no
authority to look beyond the county’s returns.32 A candidate or elector can
“protest” the returns of an election as being erroneous by filing a protest with the
appropriate County Canvassing Board.33 And finally, a candidate, elector, or
taxpayer can “contest” the certification of election results by filing a post-certification action in circuit court within certain time limits 34 and setting forth
specific grounds.35
VI. STATUTORY AMBIGUITY
The provisions of the Code are ambiguous in two significant areas. First, the
time frame for conducting a manual recount under section 102.166(4) is in conflict
with the time frame for submitting county returns under sections 102.111 and
102.112. Second, the mandatory language in section 102.111 conflicts with the
permissive language in 102.112.
A. The Recount Conflict
Section 102.166(1) states that "any candidate for nomination or election, or any elector qualified to vote in the election related to such candidacy shall have the
right to protest the returns of the election as being erroneous by filing with the
appropriate canvassing board a sworn written protest." The time period for filing a
protest is "prior to the time the canvassing board certifies the results for the office
being protested or within 5 days after midnight of the date the election is held,
whichever is later.
Section 102.166(4)(a), the operative subsection in this case, further provides
that, in addition to any protest, "any candidate whose name appeared on the
ballot . . . or any political party whose candidates' names appeared on the ballot may
file a written request with the county canvassing board for a manual recount"
accompanied by the “reason that the manual recount is being requested.” Section
102.166(4)(b) further provides that the written request may be made prior to the
time the Board certifies the returns or within seventy-two hours after the election,
whichever occurs later:36
(4)(a) Any candidate whose name appeared on the
ballot, any political committee that supports or opposes an
issue which appeared on the ballot, or any political party
whose candidates’ names appeared on the ballot may file a
written request with the county canvassing board for a
manual recount. The written request shall contain a
statement of the reason the manual recount is being
requested.
(b) Such request must be filed with the canvassing
board prior to the time the canvassing board certifies the
results for the office being protested or within 72 hours
after midnight of the date the election was held, whichever
occurs later.
§ 102.166, Fla. Stat. (2000) (emphasis added).
A Board “may” authorize a manual recount 37 and such a recount must include
at least three precincts and at least one percent of the total votes cast for the
candidate.38 The following procedure then applies:
(5) If the manual recount indicates an error in the
vote tabulation which could affect the outcome of the election, the county 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.
(6) Any manual recount shall be open to the public.
(7) Procedures for a manual recount are as follows:
(a) The county canvassing board shall appoint as
many counting teams of at least two electors as is
necessary to manually recount the ballots. A counting
team must have, when possible, members of at least two
political parties. A candidate involved in the race shall not
be a member of the counting team.
(b) If a counting team is unable to determine a
voter’s intent in casting a ballot, the ballot shall be
presented to the county canvassing board for it to
determine the voter’s intent.
§ 102.166, Fla. Stat. (2000).
Under this scheme, a candidate can request a manual recount at any point
prior to certification by the Board and such action can lead to a full recount of all
the votes in the county. Although the Code sets no specific deadline by which a
manual recount must be completed, logic dictates that the period of time required to
complete a full manual recount may be substantial, particularly in a populous county,
and may require several days. The protest provision thus conflicts with section
102.111 and 102.112, which state that the Boards “must” submit their returns to the
Elections Canvassing Commission by 5:00 p.m. of the seventh day following the election or face penalties. For instance, if a party files a pre-certification protest on
the sixth day following the election and requests a manual recount and the initial
manual recount indicates that a full countywide recount is necessary, the recount
procedure in most cases could not be completed by the deadline in sections
102.111 and 102.112, i.e., by 5:00 p.m. of the seventh day following the election.
B. The “Shall” and “May” Conflict
In addition to the conflict in the above statutes, sections 102.111 and 102.112
contain a dichotomy. Section 102.111, which sets forth general criteria governing
the State Canvassing Commission, was enacted in 1951 as part of the Code and
provides as follows:
102.111 Elections Canvassing Commission.-
(1) Immediately after certification of any election by
the county canvassing board, the results shall be
forwarded to the Department of State concerning the
election of any federal or state officer. The Governor, the
Secretary of State, and the Director of the Division of
Elections shall be the Elections Canvassing Commission.
The Elections Canvassing Commission shall, as soon as
the official results are compiled from all counties, certify
the returns of the election and determine and declare who
has been elected for each office. In the event that any
member of the Elections Canvassing Commission is
unavailable to certify the returns of any election, such
member shall be replaced by a substitute member of the
Cabinet as determined by the Director of the Division of
Elections. If the county returns are not received by the
Department of State by 5 p.m. of the seventh day following an election, all missing counties shall be ignored,
and the results shown by the returns on file shall be
certified.
§ 102.111, Fla. Stat. (2000) (emphasis added).
The Legislature in 1989 revised chapter 102 to include section 102.112, which
provides that returns not received after a certain date “may” be ignored and that
members of the County Board “shall” be fined:
102.112 Deadline for submission of county returns
to the Department of State; penalties.-
(1) The county canvassing board or a majority
thereof shall file the county returns for the election of a
federal or state officer with the Department of State
immediately after the certification of the election results.
Returns must be filed by 5 p.m. on the 7th day following
the first primary and general election and by 3 p.m. on the
3rd day following the second primary. If the returns are
not received by the department by the time specified, such
returns may be ignored and the results on file at that time
may be certified by the department.
(2) The department shall fine each board member
$200 for each day such returns are late, the fine to be paid
only from the board member’s personal funds. Such fines
shall be deposited into the Election Campaign Financing
Trust fund, created by s. 106.32.
(3) Members of the county canvassing board may
appeal such fines to the Florida Elections Commission,
which shall adopt rules for such appeals.
§ 102.112, Fla. Stat. (2000) (emphasis added).
The above statutes conflict. Whereas section 102.111 is mandatory, section 102.112 is permissive. While it is clear that the Boards must submit returns by 5
p.m. of the seventh day following the election or face penalties, the circumstances
under which penalties may be assessed are unclear.
VII. LEGISLATIVE INTENT
Legislative intent-as always-is the polestar that guides a court’s inquiry into
the provisions of the Florida Election Code.39 Where the language of the Code is
clear and amenable to a reasonable and logical interpretation, courts are without
power to diverge from the intent of the Legislature as expressed in the plain language
of the Code.40 As noted above, however, chapter 102 is unclear concerning both
the time limits for submitting the results of a manual recount and the penalties that
may be assessed by the Secretary. In light of this ambiguity, the Court must resort
to traditional rules of statutory construction in an effort to determine legislative
intent.41
First, it is well-settled that where two statutory provisions are in conflict, the
specific statute controls the general statute.42 In the present case, whereas section 102.111 in its title and text addresses the general makeup and duties of the Elections
Canvassing Commission, the statute only tangentially addresses the penalty for
returns filed after the statutory date, noting that such returns “shall” be ignored by
the Department. Section 102.112, on the other hand, directly addresses in its title
and text both the “deadline” for submitting returns and the “penalties” for submitting
returns after a certain date; the statute expressly states that such returns “may” be
ignored and that dilatory Board members “shall” be fined. Based on the precision
of the title and text, section 102.112 constitutes a specific penalty statute that defines
both the deadline for filing returns and the penalties for filing returns thereafter and
section 102.111 constitutes a non-specific statute in this regard. The specific statute
controls the non-specific statute.
Second, it also is well-settled that when two statutes are in conflict, the more
recently enacted statute controls the older statute.43 In the present case, the
provision in section 102.111 stating that the Department “shall” ignore returns was
enacted in 1951 as part of the Code. On the other hand, the penalty provision in
section 102.112 stating that the Department “may” ignore returns was enacted in
1989 as a revision to chapter 102. The more recently enacted provision may be
viewed as the clearest and most recent expression of legislative intent.
Third, a statutory provision will not be construed in such a way that it renders
meaningless or absurd any other statutory provision.44 In the present case, section
102.112 contains a detailed provision authorizing the assessment of fines against
members of a dilatory County Canvassing Board. The fines are personal and
substantial, i.e., $200 for each day the returns are not received. If, as the Secretary
asserts, the Department were required to ignore all returns received after the
statutory date, the fine provision would be meaningless. For example, if a Board
simply completed its count late and if the returns were going to be ignored in any
event, what would be the point in submitting the returns? The Board would simply
file no returns and avoid the fines. But, on the other hand, if the returns submitted
after the statutory date would not be ignored, the Board would have good reason to
submit the returns and accept the fines. The fines thus serve as an alternative
penalty and are applicable only if the Department may count the returns.
Fourth, related statutory provisions must be read as a cohesive whole.45 As
stated in Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452,
455 (Fla. 1992), "all parts of a statute must be read together in order to achieve a
consistent whole. Where possible, courts must give effect to all statutory provisions and construe related statutory provisions in harmony with another." In
this regard we consider the provisions of section 102.166 and 102.168.
Section 102.166 states that a candidate, political committee, or political party
may request a manual recount any time before the County Canvassing Board
certifies the results to the Department and, if the initial manual recount indicates a
significant error, the Board “shall” conduct a countywide manual recount in certain
cases. Thus, if a protest is filed on the sixth day following an election and a full
manual recount is required, the Board, through no fault of its own, will be unable to
submit its returns to the Department by 5:00 p.m. on the seventh day following the
election. In such a case, if the mandatory provision in section 102.111 were given
effect, the votes of the county would be ignored for the simple reason that the
Board was following the dictates of a different section of the Code. The Legislature
could not have intended to penalize County Canvassing Boards for following the
dictates of the Code.
And finally, when the Legislature enacted the Code in 1951, it envisioned that
all votes cast during a particular election, including absentee ballots, would be
submitted to the Department at one time and would be treated in a uniform fashion.
Section 97.012(1) states that it is the Secretary’s responsibility to “obtain and
maintain uniformity in the application, operation, and interpretation of the election laws.” Chapter 101 provides that all votes, including absentee ballots, must be
received by the Supervisor no later than 7 p.m. on the day of the election. Section
101.68(2)(d) expressly states that “the votes on absentee ballots shall be included
in the total vote of the county.” Chapter 102 requires that the Board submit the
returns by 5 p.m. on the seventh day following the election.
The Legislature thus envisioned that when returns are submitted to the
Department, the returns “shall” embrace all the votes in the county, including
absentee ballots. This, of course, is not possible because our state statutory
scheme has been superseded by federal law governing overseas voters;46 overseas
ballots must be counted if received no later than ten days following the election (i.e.,
the ballots do not have to be received by 7 p.m. of the day of the election, as
provided by state law).47 In light of the fact that overseas ballots cannot be counted until after the seven day deadline has expired, the mandatory language in section
102.111 has been supplanted by the permissive language of section 102.112.
Further, although county returns must be received by 5 p.m. on the seventh
day following an election, the "official results" that are to be compiled in order to
certify the returns and declare who has been elected must be construed in pari
materia with section 101.5614(8), which specifies that "write-in, absentee and
manually counted results shall constitute the official return of the election."
(Emphasis added.)
Under this statutory scheme, the County Canvassing Boards are required to
submit their returns to the Department by 5 p.m. of the seventh day following the
election. The statutes make no provision for exceptions following a manual recount.
If a Board fails to meet the deadline, the Secretary is not required to ignore the
county’s returns but rather is permitted to ignore the returns within the parameters of
this statutory scheme. To determine the circumstances under which the Secretary
may lawfully ignore returns filed pursuant to the provisions of section 102.166 for a
manual recount , it is necessary to examine the interplay between our statutory and
constitutional law at both the state and federal levels.
IX. THE PRESENT CASE
The trial court below properly concluded that the County Canvassing Boards
are required to submit their returns to the Department by 5:00 p.m. of the seventh
day following the election and that the Department is not required to ignore the
amended returns but rather may count them. The court, however, erred in holding
that the Secretary acted within her discretion in prematurely rejecting any amended
returns that would be the result of ongoing manual recounts. The Secretary’s
rationale for rejecting the Board’s returns was as follows:
The Board has not alleged any facts or circumstances that
suggest the existence of voter fraud. The Board has not
alleged any facts or circumstances that suggest that there
has been substantial noncompliance with the state’s
statutory election procedures, coupled with reasonable
doubt as to whether the certified results expressed the will of the voters. The Board has not alleged any facts or
circumstances that suggest that Palm Beach County has
been unable to comply with its election duties due to an
act of God, or other extenuating circumstances that are
beyond its control. The Board has alleged the possibility
that the results of the manual recount could affect the
outcome of the election if certain results obtain. However,
absent an assertion that there has been substantial
noncompliance with the law, I do not believe that the
possibility of affecting the outcome of the election is
enough to justify ignoring the statutory deadline.
Furthermore, I find that the facts and circumstances
alleged, standing alone, do not rise to the level of
extenuating circumstances that justify a decision on my
part to ignore the statutory deadline imposed by the
Florida Legislature.
Letter from Katherine Harris to Palm Beach Canvassing Board (Nov. 15,
2000)(emphasis added).
We conclude that, consistent with the Florida election scheme, the Secretary
may reject a Board’s amended returns only if the returns are submitted so late that
their inclusion will preclude a candidate from contesting the certification or preclude
Florida’s voters from participating fully in the federal electoral process. The
Secretary in the present case has made no claim that either of these conditions apply
at this point in time.
The above analysis is consistent with State ex rel. Chappell v. Martinez, 536
So. 2d 1007 (Fla. 1988), wherein the Court addressed a comparable recount issue. There, the total votes cast for each of two candidates for a seat in the United State
House of Representatives were separated by less than one-half of one percent; the
county conducted a mandatory recount; the Board’s certification of results was not
received by the Department until two days after the deadline, although the Board had
telephoned the results to the Department prior to the deadline; and the unsuccessful
candidate sued to prevent the Department from counting the late votes. The Court
concluded that the will of the electors supersedes any technical statutory
requirements:
The electorate’s effecting its will through its balloting,
not the hypertechnical compliance with statutes, is the
object of holding an election. “There is no magic in the
statutory requirements. If they are complied with to the
extent that the duly responsible election officials can
ascertain that the electors whose votes are being
canvassed are qualified and registered to vote, and that
they do so in a proper manner, then who can be heard to
complain the statute has not been literally and absolutely
complied with?”
Chappell, 536 So. 2d at 1008-09 (quoting Boardman v. Esteva, 323 So. 2d 259, 267
(Fla. 1975)).
X. CONCLUSION
According to the legislative intent evinced in the Florida Election Code, the permissive language of section 102.112 supersedes the mandatory language of
section 102.111. The statutory fines set forth in section 102.112 offer strong
incentive to County Canvassing Boards to submit their returns in a timely fashion.
However, when a Board certifies its returns after the seven-day period because the
Board is acting in conformity with other provisions of the Code or with
administrative rules or for other good cause, the Secretary may impose no fines. It
is unlikely that the Legislature would have intended to punish a Board for complying
with the dictates of the Code or some other law.
Because the right to vote is the pre-eminent right in the Declaration of Rights
of the Florida Constitution, the circumstances under which the Secretary may
exercise her authority to ignore a county’s returns filed after the initial statutory date
are limited. The Secretary may ignore such returns only if their inclusion will
compromise the integrity of the electoral process in either of two ways: (1) by
precluding a candidate, elector, or taxpayer from contesting the certification of
election pursuant to section 102.168; or (2) by precluding Florida voters from
participating fully in the federal electoral process. In either such case, this drastic
penalty must be both reasonable and necessary. But to allow the Secretary to
summarily disenfranchise innocent electors in an effort to punish dilatory Board
members, as she proposes in the present case, misses the constitutional mark. The constitution eschews punishment by proxy.
As explained above, the Florida Election Code must be construed as a whole.
Section 102.166 governs manual recounts and appears to conflict with sections
102.111 and 102.112, which set a seven day deadline by which County Boards must
submit their returns. Further, section 102.111, which provides that the Secretary
“shall” ignore late returns, conflicts with section 102.112, which provides that the
Secretary “may” ignore late returns. 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.56
Accordingly, in order to allow maximum time for contests pursuant to section
102.168, amended certifications must be filed with the Elections Canvassing
Commission by 5 p.m. on Sunday, November 26, 2000 and the Secretary of State
and the Elections Canvassing Commission shall accept any such amended
certifications received by 5 p.m. on Sunday, November 26, 2000, provided that the
office of the Secretary of State, Division of Elections is open in order to allow
receipt thereof. If the office is not open for this special purpose on Sunday,
November 26, 2000, then any amended certifications shall be accepted until 9 a.m.
on Monday, November 27, 2000. The stay order entered on November 17, 2000,
by this Court shall remain in effect until the expiration of the time for accepting
amended certifications set forth in this opinion. The certificates made and signed by
the Elections Canvassing Commission pursuant to section 102.121 shall include the
amended returns accepted through the dates set forth in this opinion.
It is so ordered. No motion for rehearing will be allowed.
WELLS, C.J., and SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS and
QUINCE, JJ., concur.
Three Cases Consolidated:
Case No. SC00-2346
Original Proceeding - Prohibition
Denise D. Dytrych, Palm Beach County Attorney, and James C. Mize, Jr., Andrew
J. McMahon and Gordon Selfridge, Assistant Palm Beach County Attorneys, West
Palm Beach, Florida; and Bruce Rogow and Beverly A. Pohl of Bruce S. Rogow,
P.A., Fort Lauderdale, Florida,
for Petitioners
Deborah K. Kearney, General Counsel, and Kerey Carpenter, Assistant General
Counsel, Florida Department of State, Tallahassee, Florida; and Joseph P. Klock,
Jr., Jonathan Sjostrom, Victoria L. Weber, John W. Little, III, Donna E. Blanton,
Gabriel E. Nieto, Elizabeth C. Daley, Arthur R. Lewis, Jr. and Elizabeth J. Maykut
of Steel, Hector & Davis, LLP, Tallahassee, Florida, for the Elections Canvassing
Commission; Robert A. Butterworth, Attorney General, pro se, Paul F. Hancock,
Deputy Attorney General, and George Waas, Assistant Attorney General,
Tallahassee, Florida, and Cecile Luttmer Dykas, Assistant Attorney General, Fort
Lauderdale, Florida; and Terrell C. Madigan, Harold R. Mardenborough, Jr.,
Christopher Barkas and Matt Butler of McFarlain, Wiley, Cassedy & Jones, P.A.,
Tallahassee, Florida,
for Respondents
Barry Richard of Greenberg, Traurig, P.A., Tallahassee, Florida; Michael A. Carvin
of Cooper, Carvin & Rosenthal, PLLC, Washington, DC; Benjamin L. Ginsberg of
Patton, Boggs, LLP, Washington, DC; Alex M. Azar II of Wiley, Rein & Fielding,
Washington, DC; George J. Terwilliger, III and Timothy E. Flanigan of White &
Case, LLP, Washington, DC; and R. Ted Cruz, Bush-Cheney Recount Committee,
Austin, Texas,
for Honorable George W. Bush, Intervenor
Edward A. Dion, County Attorney for Broward County, Norman M. Ostrau,
Deputy County Attorney, Andrew J. Meyers, Chief Appellate Counsel, and Tamara
M. Scrudders and Jose Arrojo, Assistant County Attorneys, Fort Lauderdale,
Florida; and Samuel S. Goren, James A. Cherof and Michael D. Cirullo of Josias,
Goren, Cherof, Doody & Ezrol, P.A., Fort Lauderdale, Florida,
for The Broward County Canvassing Board and Jane Carroll, as Broward
County Supervisor of Elections, Intervenors
Case No. SC00-2348
Appeal of Judgment of Circuit Court, in and for Leon County, Terry P. Lewis,
Judge, Case No. 00-2700 - Certified by the District Court of Appeal,
First District, Case Nos. 1D00-4467/1D00-4501
Denise D. Dytrych, Palm Beach County Attorney, and James C. Mize, Jr., Andrew
J. McMahon and Gordon Selfridge, Assistant Palm Beach County Attorneys, West
Palm Beach, Florida; Bruce Rogow and Beverly A. Pohl of Bruce S. Rogow, P.A.,
Fort Lauderdale, Florida, for Canvassing Board for Palm Beach County; and W.
Dexter Douglass of the Douglass Law Firm, Tallahassee, Florida; John D.C.
Newton, II of Berger Davis & Singerman, Tallahassee, Florida; Mitchell W. Berger
of Berger Davis & Singerman, Fort Lauderdale, Florida; David Boies of Boies,
Schiller & Flexner, LLP, Armonk, New York; Karen Gievers, of Karen Gievers,
P.A., Tallahassee, Florida; Lyn Utrecht and Eric Kleinfeld of Ryan, Phillips, Utrecht
and MacKinnon, Washington, DC; Andrew J. Pincus and Ronald A. Klain,
Washington, DC; and Laurence Tribe, Cambridge, Massachusetts, for Albert A.
Gore, Jr. and Florida Democratic Party,
Appellants
Deborah K. Kearney, General Counsel, and Kerey Carpenter, Assistant General
Counsel, Florida Department of State, Tallahassee, Florida; and Joseph P. Klock,
Jr., Jonathan Sjostrom, Victoria L. Weber, John W. Little, III, Donna E. Blanton,
Gabriel E. Nieto, Elizabeth C. Daley, Arthur R. Lewis, Jr. and Elizabeth J. Maykut of Steel, Hector & Davis LLP, Tallahassee, Florida, for the Elections Canvassing
Commission,
for Appellees
Case No. SC00-2349
Appeal of Judgment of Circuit Court, in and for Leon County, Terry P. Lewis,
Judge, Case No. 00-2700 - Certified by the District Court of Appeal,
First District, Case Nos. 1D00-4506
W. Dexter Douglass of the Douglass Law Firm, Tallahassee, Florida; John D.C.
Newton, II of Berger Davis & Singerman, Tallahassee, Florida; Mitchell W. Berger
of Berger Davis & Singerman, Fort Lauderdale, Florida; David Boies of Boies,
Schiller & Flexner, LLP, Armonk, New York; Karen Gievers, of Karen Gievers,
P.A., Tallahassee, Florida; Lyn Utrecht and Eric Kleinfeld of Ryan, Phillips, Utrecht
and MacKinnon, Washington, DC; Andrew J. Pincus and Ronald A. Klain,
Washington, DC; and Laurence Tribe, Cambridge, Massachusetts,
for Appellants
Deborah K. Kearney, General Counsel, and Kerey Carpenter, Assistant General
Counsel, Florida Department of State, Tallahassee, Florida; and Joseph P. Klock,
Jr., Jonathan Sjostrom, Victoria L. Weber, John W. Little, III, Donna E. Blanton,
Gabriel E. Nieto, Elizabeth C. Daley, Arthur R. Lewis, Jr. and Elizabeth J. Maykut
of Steel, Hector & Davis, LLP, Tallahassee, Florida, for the Elections Canvassing
Commission,
for Appellees