Gore v. Harris (2000) Majority
No. SC00-2431
Supreme Court of
JUDGES: ANSTEAD, PARIENTE, LEWIS and QUINCE, J.J.,
concur. WELLS, C.J., dissents with an opinion. HARDING, J., dissents with an opinion,
in which SHAW, J., concurs.
OPINION: [*1247]
PER CURIAM.
We have for review a final judgment of a Leon County trial court certified by
the First District Court of Appeal as being of great public importance and
requiring immediate resolution by [**4] this Court. We have
jurisdiction. See art. V, § 3 (b)(5), Fla. Const. n1 The final judgment under
review denies all relief requested by appellants Albert Gore, Jr. and Joseph I.
Lieberman, the Democratic candidates for President and Vice President of the
United States, in their complaint contesting the certification of the state
results in the November 7, 2000, presidential election. n2 Although we find
that the appellants are entitled to reversal in part of the trial court's order
and are entitled to a manual count of the Miami-Dade County undervote, we agree
with the appellees that the ultimate relief would require a counting of the
legal votes contained within the undervotes in all counties where the undervote
has not been subjected to a manual tabulation. Accordingly, we reverse and
remand for proceedings consistent with this opinion.
I. BACKGROUND
On
On November 27, pursuant to the legislatively enacted "contest"
provisions, Gore filed a complaint in Leon County Circuit Court contesting the
certification on the grounds that the results certified by the Canvassing
Commission included "a number of illegal votes" and failed to include
"a number of legal votes sufficient to change or place in doubt the result
of the election." n5
Pursuant to the legislative scheme providing for an "immediate
hearing" in a contest action, the trial court held a two-day evidentiary
hearing on December 2 and 3, 2000, and on December 4, 2000, made an oral
statement in open court denying all relief and entered a final judgment
adopting the oral statement. The trial court did not make any findings as to
the factual allegations made in the complaint and did not reference any of the
testimony adduced in the two-day evidentiary hearing, other than to summarily
state that the plaintiffs failed to meet their burden of proof. Gore appealed
to the First District Court of Appeal, which certified the judgment to this
Court.
The appellants' election contest is based on five instances where the official
results certified involved either the rejection of a number of legal votes or
the receipt of a number of illegal votes. These five instances, as summarized
by the appellants' brief, are as follows:
[*1248]
(1) The rejection of 215 net votes for Gore identified in a manual count by the
Palm Beach Canvassing Board as reflecting the clear intent of the voters;
(2) The rejection of 168 net votes for Gore, identified in the partial recount
by the [**7] Miami-Dade County Canvassing Board.
(3) The receipt and certification after Thanksgiving of the election night
returns from Nassau County, instead of the statutorily mandated machine recount
tabulation, in violation of section 102.14, Florida Statutes, resulting in an
additional 51 net votes for Bush.
(4) The rejection of an additional 3300 votes in Palm Beach County, most of
which Democrat observers identified as votes for Gore but which were not
included in the Canvassing Board's certified results; and
(5) The refusal to review approximately 9000 Miami-Dade ballots, which the
counting machine registered as non-votes and which have never been manually
reviewed.
For the reasons stated in this opinion, we find that the trial court erred as a
matter of law in not including (1) the 215 net votes for Gore identified by the
Palm Beach County Canvassing Board n6 and (2) in not including the 168 net
votes for Gore identified in a partial recount by the Miami-Dade County Canvassing
Board. However, we find no error in the trial court's findings, which are mixed
questions of law and fact, concerning (3) the Nassau County Canvassing Board
and the (4) additional [**8] 3300 votes in Palm Beach County that
the Canvassing Board did not find to be legal votes. Lastly, we find the trial
court erred as a matter of law in (5) refusing to examine the approximately
9000 additional Miami-Dade ballots placed in evidence, which have never been
examined manually.
II. APPLICABLE LAW
Article II, section I, clause 2 of the United States Constitution, grants the
authority to select presidential electors "in such Manner as the
Legislature thereof may direct." The Legislature of this State has placed
the decision for election of President of the United States, as well as every
other elected office, in the citizens of this State through a statutory scheme.
These statutes established by the Legislature govern our decision today. We
consider these statutes cognizant of the federal grant of authority [**9]
derived from the United States Constitution and derived from 3 U.S.C. § 5
(1994) entitled "Determination of controversy as to appointment of
electors." That section provides:
If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.
(Emphasis supplied).
This case today is controlled by the language set forth by the Legislature in
section 102.168, Florida Statutes (2000). Indeed, an important part of the
statutory election [**10] scheme is the State's provision for a
contest process, section 102.168, which laws were enacted by the Legislature
prior [*1249] to the 2000 election. n7 Although courts are, and
should be, reluctant to interject themselves in essentially political
controversies, the Legislature has directed in section 102.168 that an election
contest shall be resolved in a judicial forum. See § 102.168 (providing that
election contests not pertaining to either house of the Legislature may be
contested "in the circuit court"). This Court has recognized that the
purpose of the election contest statute is "to afford a simple and speedy
means of contesting election to stated offices." Farmer v. Carson, 110
Fla. 245, 251, 148 So. 557, 559 (1933).
In carefully construing the contest statute, no single statutory provision will
be construed in such a way as to render meaningless or absurd any other statutory
provision. See Amente v. Newman, 653 So. 2d 1030, 1032 (Fla. 1995). In
interpreting the various statutory components of the State's election process,
then, common-sense approach is required, so that the purpose of the statute is
to give effect to the legislative directions ensuring that the right to vote
will not be frustrated. Cf. Firestone v. News-Press Pub. Co., 538 So. 2d 457,
460 (Fla. 1989) (approving common-sense implementation of valid portion of
section 101.121, Florida Statutes (1985) -- which broadly read, in pertinent
part, that "no person who is not in line to vote may come [into] any
polling place from the opening to the closing of the polls, except the
officially designated watchers, the inspectors, the clerks of election, [*1250]
and the supervisor of elections or his deputy" -- so as not to exclude
persons accompanying aged or infirm voters, children of voting parents, doctors
entering the building to treat voters needing emergency care, or persons
bringing [**12] food or beverages to the election workers because
such activities are recognized as "incidental to the voting process and .
. . sometimes necessary to facilitate someone else's ability to vote").
Section 102.168(2) sets forth the procedures that must be followed in a contest
proceeding, providing that the contestant file a complaint in the circuit court
within ten days after certification of the election returns or five days after
certification following a protest pursuant to section 102.166(1), Florida
Statutes (2000), whichever occurs later. Section 102.168(3) outlines the
grounds for contesting an election, and includes: "Receipt of a number of
illegal votes or rejection of a number of legal votes sufficient to change or
place in doubt the result of the election." § 102.168(3)(c) (emphasis
added). Finally, section 102.168(8) authorizes the circuit court judge to
"fashion such orders as he or she deems necessary to ensure that each
allegation in the complaint is investigated, examined, or checked, to prevent
or correct any alleged wrong, and to provide any relief appropriate under the
circumstances." (Emphasis added.)
The Legislature substantially [**13] revised section 102.168 in 1999
n8. That amendment preserved existing rights of unsuccessful candidates and
made important additional changes to strengthen the protections provided to
unsuccessful candidates in a contest action to be determined.
n9 [*1251] Moreover, rather than restraining the actions of the
trial court hearing the contest, the legislative amendment codified the grounds
for contesting an election, entitled any candidate or elector to an immediate
hearing and provided the circuit judge with express authority to fashion such
orders as are necessary to ensure that each allegation in the complaint is
investigated, examined or checked. See Fla. H. R. Comm. on Election Reform, HB
291 (1999) Staff Analysis (February 3, 1999).
Although the right to contest an election is created by statute, it has been a
long-standing right since 1845 when the first election contest statute was
enacted. See ch. 38, art. 10, §§ 7-9 Laws of Fla. (1845). As well-established
in this State by our contest statute, "the right to a correct count of the
ballots in an election is a substantial right which it is the privilege of
every candidate for office to insist on, in every case where there has been a
failure to make a proper count, call, tally, or return of the votes as required
by law, and this fact has been duly established as the basis for granting such
relief." State ex rel. Millinor v. Smith, 107 Fla. 134, 139, 144 So. 333,
335 (1932) (emphasis added). The Staff Analysis of the 1999 legislative
amendment expressly endorses this important principle. Similarly, the Florida
House of Representatives Committee on Election Reform 1997 Interim Project on
Election Contests and Recounts expressly declared:
Recounts are an integral part of the election process. For one's vote, when
cast, to be translated into a true message, that vote must be accurately
counted, and if necessary, recounted. The moment [**16] an
individual's vote becomes subject to error in the vote tabulation process, the
easier it is for that vote to be diluted.
Furthermore, with voting statistics tracing a decline in voter turnout and in
increase in public skepticism, every effort should be made to ensure the
integrity of the electoral process.
Integrity is particularly crucial at the tabulation stage because many
elections occur in extremely competitive jurisdictions, where very close
election results are always possible. In addition, voters and the media expect
rapid and accurate tabulation of election returns, regardless of whether the
election is close or one sided. Nonetheless, when large numbers of votes are to
be counted, it can be [*1252] expected that some error will occur in
tabulation or in canvassing.
Id. at 15 (footnotes omitted). It is with the recognition of these legislative
realities and abiding principles that we address whether the trial court made
errors of law in rendering its decision.
III. ORDER ON REVIEW
Vice President Gore claims that the trial court erred in the following three
ways: (1) The trial court held that an election contest proceeding was
essentially an appellate proceeding [**17] where the County
Canvassing Board's decision must be reviewed with an "abuse of
discretion," rather than "de novo," standard of review; (2) The
court held that in a contest proceeding in a statewide election a court must
review all the ballots cast throughout the state, not just the contested
ballots; (3) The court failed to apply the legal standard for relief expressly
set forth in section 102.168(3)(c).
A. The Trial Court's Standard of Review
The Florida Election Code sets forth a two-pronged system for challenging vote
returns and election procedures. The "protest" and
"contest" provisions are distinct proceedings. A protest proceeding
is filed with the County Canvassing Board and addresses the validity of the
vote returns. The relief that may be granted includes a manual recount. The
Canvassing Board is a neutral ministerial body. See Morse v. Dade County
Canvassing Board, 456 So. 2d 1314 (Fla 3d DCA 1984). A contest proceeding, on
the other hand, is filed in circuit court and addresses the validity of the
election itself. Relief that may be granted is varied and can be extensive. No
appellate relationship exists between a "protest" and a
"contest"; a [**18] protest is not a prerequisite for a
contest. Cf. Flack v. Carter, 392 So. 2d 37 (Fla. 1st DCA 1980) (holding that
an election protest under section 102.166 was not a condition precedent to an
election contest under section 102.168). Moreover, the trial court in the
contest action does not sit as an appellate court over the decisions of the
Canvassing Board. Accordingly, while the Board's actions concerning the
elections process may constitute evidence in a contest proceeding, the Board's
decisions are not to be accorded the highly deferential "abuse of
discretion" standard of review during a contest proceeding.
In the present case, the trial court erroneously applied an appellate abuse of
discretion standard to the Boards' decisions. The trial court's oral order
reads in relevant part:
The local boards have been given broad discretion which no Court may overrule,
absent a clear abuse of discretion.
Gore v. Harris, slip op., No. 00-2808 (Fla. 2d Cir. Ct. Dec. 4, 2000)
(Proceedings at 10). The trial court further noted: "The court further
finds that the Dade Canvassing Board did not abuse its discretion. . . . The
Palm Beach County Board did not abuse its discretion [**19] in its
review and recounting process." n10 In applying the abuse of discretion
standard of review to the Boards' actions, the trial court relinquished an
improper degree of its own authority to the Boards. This was error.
B. Must all the Ballots be Counted Statewide?
Appellees contend that even if a count of the undervotes in Miami-Dade were
appropriate, section 102.168, Florida Statutes (2000), requires a count of all
votes in Miami-Dade County and the entire state as opposed to a selected number
of votes challenged. However, the plain language of section 102.168 refutes
Appellees' argument.
Section 102.168(2) sets forth the procedures that must be followed in a contest
proceeding, providing that the contestant file a complaint in the circuit court
within [*1253] ten days after certification of the election returns
or five days after certification following a protest pursuant
to [**20] section 102.166(1), whichever occurs later. Section
102.168(3) outlines the grounds for contesting an election, and includes:
"Receipt of a number of illegal votes or rejection of a number of legal
votes sufficient to change or place in doubt the result of the election."
§ 102.168(3)(c) (emphasis added). Finally, section 102.168(8) authorizes the circuit
court judge to "fashion such orders as he . . . deems necessary to ensure
that each allegation in the complaint is investigated, examined, or checked, to
prevent or correct any alleged wrong, and to provide any relief appropriate
under the circumstances."
As explained above, section 102.168(3)(c) explicitly contemplates contests
based upon a "rejection of a number of legal votes sufficient to change
the outcome of an election." Logic dictates that to bring a challenge
based upon the rejection of a specific number of legal votes under section
102.168(3)(c), the contestant must establish the "number of legal
votes" which the county canvassing board failed to count This number,
therefore, under the plain language of the statute, is limited to the votes identified
and challenged under section 102.168(3)(c), rather than the
entire [**21] county. Moreover, counting uncontested votes in a
contest would be irrelevant to a determination of whether certain uncounted
votes constitute legal votes that have been rejected. On the other hand, a
consideration of "legal votes" contained in the category of
"undervotes" identified statewide may be properly considered as
evidence in the contest proceedings and, more importantly, in fashioning any
relief.
We do agree, however, that it is absolutely essential in this proceeding and to
any final decision, that a manual recount be conducted for all legal votes in
this State, not only in Miami-Dade County, but in all Florida counties where
there was an undervote, and, hence a concern that not every citizen's vote was
counted. This election should be determined by a careful examination of the
votes of Florida's citizens and not by strategies extraneous to the voting
process. This essential principle, that the outcome of elections be determined
by the will of the voters, forms the foundation of the election code enacted by
the Florida Legislature and has been consistently applied by this Court in
resolving elections disputes.
We are dealing with the essence of the structure of our
democratic [**22] society; with the interrelationship, within that
framework, between the United States Constitution and the statutory scheme
established pursuant to that authority by the Florida Legislature. Pursuant to
the authority extended by the United States Constitution, in section 103.011,
Florida Statutes (2000), the Legislature has expressly vested in the citizens
of the State of Florida the right to select the electors for President and Vice
President of the United States:
Electors of President and Vice President, known as presidential electors, shall be elected on the first Tuesday after the first Monday in November of each year the number of which is a multiple of 4. Votes cast for the actual candidates for President and Vice President shall be counted as votes cast for the presidential electors supporting such candidates. The Department of State shall certify as elected the presidential electors of the candidates for President and Vice President who receive the highest number of votes.
Id. In so doing, the Legislature has placed the election of presidential
electors squarely in the hands of Florida's voters under the general election
laws of [**23] Florida. n11 [*1254] Hence, the
Legislature has expressly recognized the will of the people of Florida as the
guiding principle for the selection of all elected officials in the State of
Florida, whether they be county commissioners or presidential electors.
When an election contest is filed under section 102.168, Florida Statutes
(2000), the contest statute charges trial courts to:
fashion [**24] such orders as he or she deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances.
Id. (emphasis added). Through this statute, the Legislature has granted trial
courts broad authority to resolve election disputes and fashion appropriate
relief. In turn, this Court, consistent with legislative policy, has pointed to
the "will of the voters" as the primary guiding principle to be
utilized by trial courts in resolving election contests:
The real parties in interest here, not in the legal sense but in realistic terms, are the voters. They are possessed of the ultimate interest and it is they whom we must give primary consideration. The contestants have direct interests certainly, but the office they seek is one of high public service and of utmost importance to the people, thus subordinating their interests to that of the people. Ours is a government of, by and for the people. Our federal and state constitutions guarantee the right of the people to take an active part in the process of that government, which for most [**25] of our citizens means participation via the election process. The right to vote is the right to participate; it is also the right to speak, but more importantly the right to be heard.
Boardman v. Esteva, 323 So. 2d 259, 263 (Fla. 1975) (emphasis added). For
example, the Legislature has mandated that no vote shall be ignored "if
there is a clear indication of the intent of the voter" on the ballot,
unless it is "impossible to determine the elector's choice. . . ." §
101.5614(5)-(6) Fla. Stat. (2000). Section 102.166(7), Florida Statutes (2000),
also provides that the focus of any manual examination of a ballot shall be to
determine the voter's intent. The clear message from this legislative policy is
that every citizen's vote be counted whenever possible, whether in an election
for a local commissioner or an election for President of the United States. n12
The demonstrated problem of not counting legal votes inures to any county
utilizing a counting system which results in undervotes and "no registered
vote" ballots. In a countywide election, one would not simply examine such
categories of ballots from a single precinct to insure the reliability and
integrity of the countywide vote. Similarly, in this statewide election, review
should not be limited to less than all counties whose tabulation has resulted
in such categories of ballots. Relief would not be "appropriate under
[the] circumstances" if it failed to address the "otherwise valid
exercise of the right of a citizen to vote" of all those citizens of this
State [*1255] who, being similarly situated, have had their legal
votes rejected. This is particularly important in a Presidential election,
which implicates both State and uniquely important national interests. The
contestant here satisfied the threshold requirement by demonstrating that, upon
consideration of the thousands of undervote or "no registered vote"
ballots presented, the number of legal votes therein were sufficient to at
least place in doubt the result of the election. However, a final decision as
to the result of the [**27] statewide election should only be
determined upon consideration of the legal votes contained within the undervote
or "no registered vote" ballots of all Florida counties, as well as
the legal votes already tabulated.
C. The Plaintiffs Burden of Proof
It is immediately apparent, in reviewing the trial court's ruling here, that
the trial court failed to apply the statutory standard and instead applied an
improper standard in determining the contestant's burden under the contest
statute. The trial court began its analysis by stating:
It is well established and reflected in the opinion of Judge Joanos and Smith
v. Tine n13 [sic], that in order to contest election results under Section
102.168 of the Florida Statutes, the Plaintiff must show that, but for the
irregularity, or inaccuracy claimed, the result of the election would have been
different, and he or she would have been the winner.
It is not enough to show a reasonable possibility that election results could
have been altered by such irregularities, or inaccuracies, rather, a reasonable
probability that the results of the election would have been changed must be
shown.
In this case, there is no credible statistical [**28] evidence, and
no other competent substantial evidence to establish by a preponderance of a
reasonable probability that the results of the statewide election in the State
of Florida would be different from the result which has been certified by the
State Elections Canvassing Commission.
This analysis overlooks and fails to recognize the specific and material
changes to the statute which the Legislature made in 1999 that control these
proceedings. While the earlier version, [**29] like the current
version, provided that a contestant shall file a complaint setting forth
"the grounds on which the contestant intends to establish his or her right
to such office or set aside the result of the election," the prior version
did not specifically enumerate the "grounds for contesting an election
under this section." Those grounds, as contained in the 1999 statute, now
explicitly include, in subsection (c), the "receipt of a number of illegal
votes or rejection of a number of legal votes sufficient to change or place in
doubt the result of the election." (Emphasis supplied.) Assuming that
reasonableness is an implied component of such a doubt standard, n14 the
determination of whether the plaintiff has met his or her burden of proof to
establish that the result of an election is in doubt is a far different
standard than the "reasonable probability" standard, which was
applicable to contests under the old version of the statute, and erroneously
applied and articulated as a "preponderance of a reasonable
probability" standard [*1256] by the trial court here. A person
authorized to contest an election is required to demonstrate that there have
been legal votes [**30] cast in the election that have not been
counted (here characterized as "undervotes" or "no vote
registered" ballots) and that available data n15 shows that a number of
legal votes would be recovered from the entire pool of the subject ballots
which, if cast for the unsuccessful candidate, would change or place in doubt
the result of the election. Here, there has been an undisputed showing of the
existence of some 9,000 "under votes" in an election contest decided
by a margin measured in the hundreds. Thus, a threshold contest showing that
the result of an election has been placed in doubt, warranting a manual count
of all undervotes or "no vote registered" ballots, has been made.
LEGAL VOTES
Having first identified the proper standard of review, we turn now to the
allegations of the complaint filed in this election contest To test the
sufficiency of those allegations and the proof, it is essential to understand
what, under Florida law, may constitute a "legal vote," and what
constitutes rejection of such vote.
Section 101.5614(5), Florida Statutes (2000), 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." Section 101.5614(6)
provides, conversely, that any vote in which the board cannot discern the
intent of the voter must be discarded. Lastly, section 102.166(7)(b) provides
that, "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." This legislative emphasis on
discerning the voter's intent is mirrored in the case law of [**32]
this State, and in that of other states.
This Court has repeatedly held, in accordance with the statutory law of this
State, that so long as the voter's intent may be discerned from the ballot, the
vote constitutes a "legal vote" that should be counted. See McAlpin
v. State ex rel. Avriett, 155 Fla. 33, 19 So. 2d 420 (1944); see also State ex
rel. Peacock v. Latham, 125 Fla. 69, 70, 169 So. 597, 598 (1936) (holding that
the election contest statute "affords an efficient available remedy and
legal procedure by which the circuit court can investigate and determine, not
only the legality of the votes cast, but can correct any inaccuracies in the
count of the ballots by having them brought into the court and examining the
contents of the ballot boxes if properly preserved"). As the State has
moved toward electronic voting, nothing in this evolution has diminished the
long-standing case law and statutory law that the intent of the voter is of
paramount concern and should always be given effect if the intent can be
determined. Cf. Boardman v. Esteva, 323 So. 2d 259 (Fla. 1975), cert. denied,
425 U.S. 967, 48 L. Ed. 2d 791, 96 S. Ct. 2162 (1976) [**33]
(recognizing the overarching principle that, where voters do all that statutes
require them to do, they should not be disfranchised solely because of failure
of election officials to follow directory statutes).
Not surprisingly, other states also have recognized this principle. Cf.
Delahunt v. Johnston, 423 Mass. 731, 671 N.E.2d 1241 (Mass. 1996) (holding that
a vote should be counted as a legal vote if it properly indicates the voter's
intent with reasonable certainty); Duffy v. Mortenson, 497 N.W.2d 437 (S.D.
1993) (applying the rule that every marking found where a vote should be should
be treated as an intended vote in the absence of clear evidence to the clear
contrary); Pullen v. Mulligan, 138 Ill. 2d 21, 561 N.E.2d 585, 149 Ill. Dec.
215 (Ill. 1990) (holding that votes could be recounted by [*1257]
manual means to the extent that the voter's intent could be determined with
reasonable certainty, despite the existence of a statute which provided that
punch card ballots were to be recounted by automated tabulation equipment).
Accordingly, we conclude that a legal vote is one in which there is a
"clear indication of the intent of the [**34] voter." We
next address whether the term "rejection" used in section
102.168(3)(c) includes instances where the County Canvassing Board has not
counted legal votes. Looking at the statutory scheme as a whole, it appears
that the term "rejected" does encompass votes that may exist but have
not been counted. As explained above, in 1999, the Legislature substantially
revised the contest provision of the Election Code. See H.R. Comm. on Election
Reform, HB 281 (February 3, 1999). One of the revisions to the contest
provision included the codification of the grounds for contesting an election.
See id. at 7. The House Bill noted that one of the grounds for contesting an
election at common law was the "Receipt of a number of illegal votes or
rejection of a number of legal votes sufficient to change or place in doubt the
result of the election." As noted above, the contest statute ultimately
contained this ground for contesting the results of an election.
To further determine the meaning of the term "rejection", as used by
the Legislature, we may also look to Florida case law. In State ex rel. Clark
v. Klingensmith, 121 Fla. 297, 163 So. 704 (1935), an
individual [**35] who lost an election brought an action for quo
warranto challenging his opponent's right to hold office. The challenger
challenged twenty-two ballots, which he divided into four groups. One of these
groups included three ballots that the challenger claimed had not been counted.
See 121 Fla. at 298, 163 So. at 705. This Court concluded that "the
rejection of votes from legal voters, not brought about by fraud, and not of
such magnitude as to demonstrate that a free expression of the popular will has
been suppressed," is insufficient to void an election, "at least
unless it be shown that the votes rejected would have changed the result."
121 Fla. at 300, 163 So. at 705. Therefore, the Court appears to have equated a
"rejection" of legal votes with the failure to count legal votes,
while at the same time recognizing that a sufficient number of such votes must
have been rejected to merit relief This notion of "rejected" is also
in accordance with the common understanding of rejection of votes as used in
other election cases. In discussing the facts in Roudebush v. Hartke, 405 U.S.
15, 31 L. Ed. 2d 1, 92 S. Ct. 804 (1972), the United States [**36]
Supreme Court explained:
If a recount is conducted in any county, the voting machine tallies are checked
and the sealed bags containing the paper ballots are opened. The recount
commission may make new and independent determinations as to which ballots
shall be counted. In other words, it may reject ballots initially counted and
count ballots initially rejected. Id.
This also comports with cases from other jurisdictions that suggest that a
legal vote will be deemed to have been "rejected" where a voting
machine fails to count a ballot, which has been executed in substantial
compliance with applicable voting requirements and reflects, the clear intent
of the voter to express a definite choice. See In re Matter of the Petition of
Katy Gray-Sadler, 164 N.J. 468, 753 A.2d 1101, 1105-06 (N.J. 2000); Moffat v.
Bleiman, 142 N.J. Super. 217, 361 A.2d 74, 77 (N.J. Super. Ct. App. Div. 1976).
Here, then, it is apparent that there have been sufficient allegations made
which, if analyzed pursuant to the proper standard, compel the conclusion that
legal votes sufficient to place in doubt the election results have been
rejected in this case.
THIS CASE
We must [**37] review the instances in which appellants claim that
they established that legal votes were rejected or illegal voters were included
in the certifications.
[*1258]
The refusal to review approximately 9,000 additional Miami-Dade Ballots, which
the counting machine registered as non-votes and which have never been manually
reviewed.
On November 9, 2000, the Miami-Dade County Democratic Party made a timely
request under section 102.166 for a manual recount. n16 After first deciding
against a full manual recount, the Miami-Dade County Canvassing Board voted to
begin a manual recount of all ballots cast in Miami-Dade County for the
Presidential election, and the manual recount began on November 19, 2000. On
November 21, 2000, this Court issued its decision in Palm Beach Canvassing
Board v. Harris, 772 So. 2d 1220, 25 Fla. Law W. S 1062 (Fla. Nov. 21, 2000),
stating that amended certifications must be filed by 5 p.m. on Sunday, November
26, 2000. The Miami-Dade Canvassing Board thereafter suspended the manual
recount and voted to use the election returns previously compiled. Earlier that
day, the panel had decided to limit its recount to the 10,750
"undervotes," that is, ballots on which no [**38] vote was
registered by counting machines. The Board's stated reason for the suspension
of the manual recount was that it would be impossible to complete the recount
before the deadline set forth by this Court. At the time that the Board
suspended the recount, approximately 9,000 of the 10,750 undervotes had not yet
been reviewed. In the two days that the Board had counted ballots, the Board
identified 436 additional legal votes (from 20 percent of the precincts,
representing 15 percent of the votes cast) which the machines failed to
register, resulting in a net vote of 168 votes for Gore. Nonetheless, in
addition to suspending further recounting, the Board also determined that it
would not include the additional 436 votes that had been tabulated in its
partially completed recount.
Specifically as to Miami-Dade County, the trial court found:
Although the record shows voter error, and/or, less than total accuracy in
regard to the punchcard voting devices utilized in Miami-Dade and Palm Beach
Counties, which these counties have been aware of for many years, these
balloting and counting problems cannot support or effect any recounting
necessity with respect to Miami-Dade County, absent the establishment of a
reasonable probability that the statewide election result would be different,
which has not been established in this case.
The Court further finds that the Dade Canvassing Board did not abuse its
discretion in any of its decisions in its review in recounting processes.
This statement is incorrect as a matter of law. In fact, as the Third District
determined in Miami-Dade County Democratic Party v. Miami-Dade County
Canvassing Board, 773 So. 2d 1179, 25 Fla. Law W. D 2723 (Fla. 3d DCA Nov. 22,
2000), the results of the sample manual recount and the actual commencement of
the full manual recount triggered the Canvassing Board's "mandatory
obligation to recount all of the ballots in the county." In addition, the
circuit court was bound at the time it ruled [**40] to follow this
appellate decision. This Court has determined the decisions of the district
courts of appeal represent the law of this State unless and until they are
overruled by this Court, and therefore, in the absence of interdistrict
conflict, district court decisions bind all Florida trial courts. See Pardo v.
State, 596 So. 2d 665, 666 (Fla. 1992).
However, regardless of this error, we again note the focus of the trial court's
inquiry in an election contest authorized by [*1259] the Legislature
pursuant to the express statutory provisions of section 102.168 is not by
appellate review to determine whether the Board properly or improperly failed
to complete the manual recount. Rather, as expressly set out in section
102.168, the court's responsibility is to determine whether "legal
votes" were rejected sufficient to change or place in doubt the results of
the election. Without ever examining or investigating the ballots that the
machine failed to register as a vote, the trial court in this case concluded
that there was no probability of a different result. First, as we stated the
trial court erred as a matter of law in utilizing the wrong standard. Second,
and more importantly, [**41] by failing to examine the specifically
identified group of uncounted ballots that is claimed to contain the rejected
legal votes, the trial court has refused to address the issue presented.
Appellants have also been denied the very evidence that they have relied on to
establish their ultimate entitlement to relief. n17 The trial court has
presented the plaintiffs with the ultimate Catch-22, acceptance of the only
evidence that will resolve the issue but a refusal to examine such evidence. We
also note that whether or not the Board could have completed the manual recount
by November 26, 2000, or whether the Board should have fulfilled its
responsibility and completed the full manual recount it commenced, the fact
remains that the manual recount was not completed through no fault of the
Appellant. n18
3300 Votes in Palm Beach County
Appellants also contend that the trial court erred in finding that they failed
to satisfy their burden of proof with respect to the 3,300 votes that the Palm
Beach County Canvassing Board reviewed and concluded did not constitute
"legal votes" pursuant to section 102.168(3)(c). However, unlike the
approximately 9,000 ballots in Miami-Dade that the County Canvassing Board did
not manually recount, the Palm Beach County Canvassing Board did complete a
manual recount of these 3,300 votes and concluded that, [**43]
because the intent of the voter in these 3,300 ballots was not discernible,
these ballots did not constitute "legal votes." After a two-day trial
in this case, the circuit court concluded:
With respect to the approximately 3,300 Palm Beach County ballots of which plaintiffs seek review, the Palm Beach Board properly exercised its discretion in its counting process and has judged those ballots which plaintiffs wish this court to again judge de novo. . . . The Palm Beach County board did not abuse its discretion in its review and recounting process. Further, it acted in full compliance with the order of the circuit court in and for Palm Beach County.
We find no error in the trial court's determination that appellants did not
establish a preliminary basis for relief as to the 3300 Palm Beach County votes
because [*1260] the appellants have failed to make a threshold
showing that "legal votes" were rejected. Although the protest and
contest proceedings are separate statutory provisions, when a manual count of
ballots has been conducted by the Canvassing Board pursuant to section 102.166,
the circuit court in a contest proceeding does not have the obligation de novo
to simply repeat [**44] an otherwise-proper manual count of the
ballots. As stated above, although the trial court does not review a Canvassing
Board's actions under an abuse of discretion standard, the Canvassing Board's actions
may constitute evidence that a ballot does or does not qualify as a legal vote.
Because the appellants have failed to introduce any evidence to refute the
Canvassing Board's determination that the 3300 ballots did not constitute
"legal votes," we affirm the trial court's holding as to this issue.
This reflects the proper interaction of section 102.166 governing protests and
manual recounts and section 102.168 governing election contests.
Whether the vote totals must be revised to include the legal votes actually
identified in the Palm Beach County and Miami-Dade County manual recounts?
Appellants claim that the certified vote totals must be amended to include
legal votes identified as being for one of the presidential candidates by the
County Canvassing Boards of Palm Beach County and Miami-Dade during their
manual recounts. After working for a period of many days, the Palm Beach County
Canvassing Board conducted and completed a full manual recount in which the
Board identified [**45] a net gain of 215 votes for Gore. n19 As
discussed above, the Miami-Dade Canvassing Board commenced a manual recount but
did not complete the recount. During the partial recount it identified an
additional legal votes, of which 302 were for Gore and 134 were for Bush,
resulting in a net gain of 168 votes for Gore.
The circuit court concluded as to Palm Beach County that there was not any
"authority to include any returns submitted past the deadline established
by the Florida Supreme Court in this election." This conclusion was erroneous
as a matter of law. The deadline of November 26,2000, at 5 p.m. was established
in order to allow maximum time for contests pursuant to section 102.168. The
deadline was never intended to prohibit legal votes identified after that date
through ongoing manual recounts to be excluded from the statewide official
results in the Election Canvassing Commission's certification of the results of
a recount of less than all of a [**46] county's ballots. In the same
decision we held that all returns must be considered unless their filing would
effectively prevent an election contest from being conducted or endanger the
counting of Florida's electors in the presidential election.
As to Miami-Dade County, in light of our holding that the circuit court should
have counted the undervote, we agree with appellants that the partial recount
results should also be included in the total legal votes for this election.
Because the county canvassing boards identified legal votes and these votes
could change the outcome of the election, we hold that the trial court erred in
rejecting the legal votes identified in the Miami-Dade County and Palm Beach
County manual recounts. These votes must be included in the certified vote
totals. We find that appellants did not establish that the Nassau County
Canvassing Board acted improperly.
CONCLUSION
Through no fault of appellants, a lawfully commenced manual recount in Dade
County was never completed and recounts that were completed were not counted.
Without examining or investigating the ballots that were not counted by the
machines, the trial court concluded there was no reasonable [**47]
probability of a different result. However, the proper standard
required [*1261] by section 102.168 was whether the results of the
election were placed in doubt. On this record there can be no question that
there are legal votes within the 9,000 uncounted votes sufficient to place the
results of this election in doubt. We know this not only by evidence of
statistical analysis but also by the actual experience of recounts conducted.
The votes for each candidate that have been counted are separated by no more
than approximately 500 votes and may be separated by as little as approximately
100 votes. Thousands of uncounted votes could obviously make a difference.
Although in all elections the Legislature and the courts have recognized that
the voter's intent is paramount, in close elections the necessity for counting
all legal votes becomes critical. However, the need for accuracy must be
weighed against the need for finality. The need for prompt resolution and
finality is especially critical in presidential elections where there is an
outside deadline established by federal law. Notwithstanding, consistent with
the legislative mandate and our precedent, although the time constraints
are [**48] limited, we must do everything required by law to ensure
that legal votes that have not been counted are included in the final election
results. n20 As recognized by the Florida House of Representatives Committee on
Election Reform 1997 Interim Project on Election Contests and Recounts:
All election contests and recounts can be traced to either an actual failure in the election system or a perception that the system has failed. Public confidence in the election process is essential to our democracy. If the voter cannot be assured of an accurate vote count, or an election unspoiled by fraud, they will not have faith in other parts of the political process. Nonetheless, it is inevitable that legitimate doubts of the validity and accuracy of election outcomes will arise. It is crucial, therefore, to have clearly defined legal mechanisms for contesting or recounting election results.
Id. at 21 (emphasis supplied) (footnote omitted).
Only by examining the contested ballots, which are evidence in the election
contest, can a meaningful and final determination in this election contest be
made. As stated above, one of the provisions of the contest statute, section
102.168(8), provides that the circuit court judge may "fashion such orders
as he . . . deems necessary to ensure that each allegation in the complaint is
investigated, examined or checked, to prevent any alleged wrong, and to provide
any relief appropriate under such circumstances. (emphasis supplied).
In addition to the relief requested by appellants to count the Miami-Dade
undervote, claims have been made by the various appellees and intervenors that
because this is a statewide election, statewide remedies would be called for.
As we discussed in this opinion, we agree. While we recognize that time is
desperately short, we cannot in good faith ignore both the appellant's right to
relief as to their claims concerning the uncounted votes in Miami-Dade County
nor can we ignore the correctness of the assertions that any analysis and
ultimate remedy should be made on a statewide basis? n21
We note that contest statutes vest broad discretion in the circuit court to
"provide any relief appropriate under the circumstances." Section
102.168(5). Moreover, because venue of an election contest that covers more
than one county lies in Leon County, see 102.1685, Florida Statutes (2000), the
circuit court has jurisdiction, as part of the relief it order, to order the
Supervisor of Elections and the Canvassing Boards, as well as the necessary
public officials, in all counties that have not conducted a manual recount or
tabulation of the undervotes in this election to do so forthwith, said
tabulation to take place in the individual counties where the ballots are
located. n22
Accordingly, for the reasons stated in this opinion, we reverse the final
judgment of the trial court dated December 4, 2000, and remand this cause for
the circuit court to immediately tabulate by hand the approximate 9,000
Miami-Dade ballots, which the counting machine registered as non-votes, but
which have never been manually reviewed, and for other relief that may
thereafter appear appropriate. The circuit court is directed to enter such
orders as are necessary to add any legal votes to the total statewide
certifications and to enter any orders necessary to ensure the inclusion of the
additional legal votes for Gore in Palm Beach County n23 and the 168 additional
legal votes from Miami-Dade County.
Because time is of the essence, the circuit court shall commence the tabulation
of the Miami-Dade ballots immediately. The circuit court is authorized, in
accordance with the provisions of section 102.168(8), to be assisted by the
Leon County Supervisor of Elections [**52] or its sworn designees. Moreover,
since time is also of the essence in any statewide relief that the circuit
court must consider, any further statewide relief should also be ordered
forthwith and simultaneously with the manual tabulation of the Miami-Dade
undervotes.
In tabulating the ballots and in making a determination of what is a
"legal" vote, the standards to be employed is that established by the
Legislature in our Election Code which is that the vote shall be counted as a
"legal" vote if there is "clear indication of the intent of the
voter." Section 101.5614(5), Florida Statutes (2000).
It is so ordered.