-Caveat Lector-
November 14, 2000
Wall Street Journal
Election 2000
Text of Judge's Ruling on Deadline For Florida Counties to Report
Results
Following is the text of Tuesday's ruling by Leon County Circuit
Judge Terry P. Lewis on the request by Florida's Volusia and
Palm Beach counties to extend the 5 p.m. EST Tuesday deadline
for reporting their count results.
The text is provided by the Associated Press.
This declaratory judgment action is before me on the Motion of
the Canvassing Board for Volusia County for a temporary
injunction against the Secretary of State and the Elections
Canvassing Commission. By motion and agreement of the parties,
the Florida Democratic Party, Candidate Al Gore, and the
Canvassing Board of Palm Beach County have intervened as Party
Plaintiffs, and Candidate George W. Bush and Elector Matt Butler
have intervened as Party Defendants.
The heart of the issue raised by the motion is this: Section
102.166, Florida Statutes, contemplates that upon request a
county Canvassing Board may authorize a manual recount of votes
cast in election. Both Volusia and Palm Beach Counties have so
authorized, and are in the process of conducting, a manual
recount. The Boards are concerned that the manual recounts may
not be completed by 5:00 p.m. today, November 14, 2000, which is
the deadline imposed upon them by Section 102.112, Florida
Statutes, to certify and report the election returns to the
Secretary of State. This section provides that if the returns
are not received by the deadline, such returns may be ignored by
the Secretary in her certification of results statewide.
The Plaintiffs insist that the Secretary of State must consider
the certified results from Volusia and Palm Beach Counties, even
if they are filed late, if they are still engaged in the manual
recount of the votes. The Secretary of State insists that,
absent an Act of God such as hurricane, any returns not received
by the statutory deadline will not be counted in the statewide
tabulations and certification of the election results. For the
reasons set forth below, I find that the county Canvassing Boards
must certify and file what election returns they have by the
statutory deadline of 5 p.m. of November 14th 2000 with due
notification to the secretary of state of any pending manual
recounts. And thereafter file supplemental or corrective
returns. The secretary of state may ignore such late-filed
returns but may not do so arbitrarily, rather only by the proper
exercise of discretion after consideration of all appropriate
facts and circumstances.
The Secretary of State takes the position that the law requires
the County Canvassing Boards to certify and report the results of
elections in their counties no later than 5:00 p.m. November 14,
2000, that there are no exceptions to this mandate, and that the
Secretary is likewise required by law to ignore any untimely
received returns unless the untimeliness is caused by a hurricane
or other Act of God. I give great deference to the
interpretation by the Secretary of the election laws, and I agree
that the Canvassing Boards must file their returns by 5:00 p.m.
today. I disagree, however that the Secretary is required to
ignore any late filed returns absent an Act of God. There are
several reasons for my conclusion.
A reading of the entire election code suggests that legislative
intent to balance the desire for accuracy with a desire for
finality. By concentrating on the deadline imposed by section
102.112, Florida Statutes, the secretary has come down hard on
the side of finality. This interpretation ignores, however,
section 102.166, Florida Statutes, which gives to the County
Canvassing Board the authority to authorize a manual recount. A
request for such recount may be made within three days of the
election. If a manual recount of at least three precincts and at
least 1% of the total vote indicates an error in vote tabulation
which could effect the outcome of the election, the Canvassing
Board shall either correct the error and recount the remaining
precincts with the vote tabulation system, request the department
of state to verify the tabulation software, or manually recount
all ballots.
Depending on when a request is made and then acted upon, it is
easy to imagine a situation where a manual recount could be
lawfully authorized, commenced, but not completed within seven
days of the election. The Secretary of State responds that the
authority to authorize a manual recount is subject to the
requirement that such recounts be done and the results certified
no later than the deadline imposed by section 102.112, Florida
Statutes. This would mean, however, that only in sparsely
populated counties could a Canvassing Board safely exercise what
the legislature has clearly intended to be an option where the
Board has a real question as to the accuracy of a vote.
Section 102.166, Florida Statutes gives any candidate, or a
qualified elector, the right to protest the returns of a county
Canvassing Board by filing a sworn written protest, which may be
filed within five days of the election or anytime before the
Canvassing Board certifies the results, whichever occurs later.
This suggests that the Canvassing Board might be in a position of
having to address a protest of its returns the day before, or
hours before, it was to certify the results pursuant to the
deadline in section 102.112, thus making it impossible to make
any corrections before the deadline. It is unlikely that the
Legislature would give the right to protest returns but make it
meaningless because it could not be acted upon in time."
Section 102.168 provides for the contesting of an election by an
unsuccessful candidate or qualified elector, by filing a
complaint in Circuit Court within 10 days after the Canvassing
Board certifies the result of an election or within five days
after the Canvassing Board certifies the results of an election
following a protest pursuant to Section 102.166 (1), Florida
Statutes, whichever occurs later. This provision suggests that
certifications of the results in an election might occur later
than usual if there is a protest of the returns.
The Secretary of State acknowledges that, by consent decree with
the Federal Government, the absentee ballots of overseas electors
must be counted if received up to 10 days after the election
(three days beyond the deadline imposed by Section 102.112,
Florida Statutes). The county Canvassing Board cannot report
final returns, nor can the Election Canvassing Commission
determine a winner of the election until all of these overseas
absentee ballots are counted. The secretary explains this anomaly
by inferring a requirement to do one certification of results
seven days after the election and a "supplemental certification"
10 days after the election. There is, however, no statutory
provision that provides for such supplemental certification.
Instead, Section 102.111, Florida Statutes, which deals
specifically with the duty of the Elections Canvassing
commission, requires the Commission to "as soon as the official
results are compiled from all Counties, certify the returns of
the election and determine and declare who has been selected for
each office ..."
I also note that although the Canvassing Boards cannot properly
contest an election, an unsuccessful candidate, or any qualified
Elector, may file, pursuant to Section 102.168, Florida Statutes,
a complaint in Circuit Court contesting the election results.
One of the specific itemized grounds for such a challenge is the
"rejection of a number of legal votes sufficient to change or
place in doubt the result of the election."
Accordingly it is Ordered and Adjudged that the Secretary of
State is directed to withhold determination as to whether or not
to ignore late filed returns, if any, from Plaintiff Canvassing
Boards, until due consideration of all relevant facts and
circumstances consistent with the sound exercise of discretion.
In all other respects, the Motion for Temporary injunction is
denied.
Done and ordered in Chambers at Tallahassee, Leon County,
Florida, this 14th day of November, 2000.
=================================================================
Kadosh, Kadosh, Kadosh, YHVH, TZEVAOT
FROM THE DESK OF:
*Michael Spitzer* <[EMAIL PROTECTED]>
~~~~~~~~~~~~~~~
The Best Way To Destroy Enemies Is To Change Them To Friends
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