PRESIDENTIAL ELECTION LAW/The Recount

Why is a recount being conducted in Florida?

Florida law provides for an automatic recount when a candidate's margin of victory is not more than 0.5 percent of the total votes cast for the office. Although the recount in these circumstances is triggered automatically, the losing candidate can waive it. (In other circumstances where an automatic recount is not triggered, a candidate may demand a recount on grounds of error or fraud.)

How is the recount conducted?

The recount is conducted at the county level and is open to the public. For computer-counted ballots, the recount is done by the same computer on which the original count was made. For mechanical lever machines, machine counters are reread and totals are retabulated. For paper ballots, all votes are retallied and retabulated.

Do recounts often yield a different result?

Recounts indeed may lead to changes in vote totals for different reasons. When mechanical lever machines are used, an election worker might mistakenly transpose a digit when copying down results from the machine. For punch-out ballots, a piece of "hanging chad" might be erroneously read by a tabulator. For paper ballots, there may be an ordinary counting error.

How long will a recount take?

Florida officials expect to complete the recount this week. However, completion of the recount is not equivalent to certification of the final results of the election. Florida allows overseas ballots postmarked by November 7 to be received and counted for up to ten days following the date of the election. The election results cannot be finally certified until the completion of the recount and the tabulation of the overseas ballots received up to November 17.

After the automatic recount, a losing candidate also can request a second recount to be undertaken manually.

It sounds like a lot of ballots are being invalidated or thrown out during this recount. Is this unusual?

Not necessarily. Before this election, perhaps the most notorious recount was undertaken in the 1984 election for Representative from the Eighth Congressional District in Indiana between Republican Richard McIntyre and Democrat Frank McCloskey. McIntyre's original margin of victory was 39 votes out of 232,951 cast (less than 2/100 of one percent). During the ensuing recount, 48,990 or 21 percent of the original votes were invalidated for a variety of reasons. (A subsequent recount undertaken by the U.S. House of Representatives gave McCloskey the victory by four points and he was seated in Congress.)

Recounts aside, is there a possibility of a legal challenge to the election?

Yes. Florida allows for both "contests" and "protests." A contest is filed in state circuit court on the grounds that an unsuccessful candidate has a legal right to the office. A protest is filed with the County Canvassing Board if an error is alleged, or with the circuit court if fraud is alleged. A protest must be filed within 5 days of an election. A contest must be filed within 10 days.

Who may contest the election?

Florida law provides that any taxpayer or voter may file suit.

What grounds may be asserted?

Florida law recognized, among other grounds, misconduct, fraud or corruption, as well as "[a]ny other cause or allegation which, if sustained, would show that a person other than the successful candidate was the person duly nominated or elected to the office in question [.]"

What about the claim that the ballot in Palm Beach County was confusing?

Several residents of Palm Beach County filed a lawsuit on November 8, seeking a new election and alleging that ballots used in the county were "deceptive, misleading and confusing." The alleged confusion arose from the placement of punch-out holes in some cases to the right and other cases to the left of the candidates' names. Florida law specifies that, in the case of paper ballots, voters mark an X in the blank space to the right of the name of the candidate they want to vote for. For machine ballots, the law provides that "[t]he order in which the voting machine ballot is arranged shall as nearly as practicable conform to the requirements of the form of the paper ballot for that election."

Although there are not many reported decisions on point, a 1974 Florida state appellate decision rejected a call for a new election by a losing candidate on the ground that a ballot layout was confusing. In particular, courts appear to be reluctant to entertain post-election challenges on a ground (such as ballot layout) that could have been asserted before the election.

Friday, November 10, 2000

If a challenge to the Palm Beach ballot is upheld, what will be the remedy?

The determination of the appropriate remedy is committed to the discretion of the court. The Florida election contest statute authorizes the judge to "fashion such orders as he or she deems necessary . . . to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances." Most commentators suggest that the appropriate remedy would be a "revote" with a different ballot.

Would a revote be limited to voters who voted on November 7?

Not necessarily. A 1994 decision of the United States Court of Appeals for the First Circuit considered the eligibility to vote in a new, curative election held as a result of the protest of an election held for the Warwick, Rhode Island, School Committee. Persons who did not vote in the first election sued to be allowed to vote in the second one. The court agreed, stating:

"In its simplest form, this case asks us to decide whether a state may condition the right to vote in one election on whether that right was exercised in a preceding election. So stated, the case is hardly worthy of discussion. The right to vote is of the most fundamental significance under our constitutional structure, and depriving a qualified voter of the right to cast a ballot because of failure to vote in an earlier election is almost inconceivable." [Ayers-Schaffner v. DiStefano, 37 F.3d 726, 727 (1st Cir. 1994)].

The court rejected the Board of Elections' argument that the second election was not a new election but simply a recreation of the defective one. While not binding on the courts of Florida, this decision strongly supports the argument that a new election should be open to all eligible voters.

Saturday, November 11, 2000

Is there a role for the federal government in resolving these challenges?

The conduct of Presidential elections is principally the responsibility of the states. It is Florida law, rather than federal law, that dictates the requirements of the ballot, the procedures for counting and challenging votes, and for certifying election results. Federal law comes in where there are allegations of civil rights violations (such as efforts to deprive persons of the right to vote on the basis of race), or criminal election fraud (such as ballot-box stuffing, destruction of ballots, or voter intimidation). A request has been made by the NAACP for U.S. Department of Justice intervention in the recount process.

Sunday, November 12, 2000

What is the basis of the Bush campaign's lawsuit in federal court?

The Bush campaign protests the Gore campaign's request for a further manual recount (following the automatic recount) in four counties. The lawsuit alleges that the manual recount will yield a less accurate and subjective count and, in so doing, will dilute the votes of the rest of the state. The complaint also claims that the standards used in assessing the validity or intent of the ballots are arbitrary and standardless and can produce inconsistent treatment of an identical ballot in different counties. The claims are made under the first and fourteenth amendments of the Constitution of the United States.

Given that an automatic recount already was triggered by the closeness of the Florida election, why is there yet another recount being undertaken in certain counties?

Florida law gives any candidate a right to make a written request that a county canvassing board conduct a manual recount. Such a request must be made within 72 hours after midnight of the date of the election or prior to the time the canvassing board certifies the results, whichever is later. The Gore campaign made such a request in four counties; the Bush campaign did not request any manual recounts in Florida. The county board may, but is not required to, authorize a manual recount.

If a county decides to conduct a manual recount, the recount is open to the public. The county must appooint "counting teams" of at least two voters each with, when possible, members of at least two political parties. If a counting team can't determine a voter's intent from inspecting the ballot, the team presents the ballot to the county canvassing board for a determination of the voter's intent.

The Bush campaign's federal court complaint contends, in part, that the lack of standards to govern the decision whether to conduct a manual recount, the potential for arbitrariness in the conduct of the recount, and the potential for application of different standards in counting identical ballots violates the Constitution of the United States.

Monday, November 13, 2000

If there is no resolution to the Florida election by December 18 (the date set for the Electoral College to meet), will Florida's voters be left out of the selection of the president?

The United States Code [Title 3, section 2] provides, "Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct." Under this provision, the Florida Legislature is authorized to enact a fall-back plan for the appointment of Florida's electors if, for some reason, a definitive result from Election Day has not been established.

If there is no conclusive result from either the Electoral College or otherwise by Inauguration Day (January 20, 2001), who will become President?

Under the 20th Amendment, President Clinton's term expires that day and there is no constitutional provision for it to be extended. If there is a vacancy in the offices of President and Vice President, under the established procedures for presidential succession [Title 3, USC, section 19], the Speaker of the House (upon resignation of that position) would become Acting President until a final conclusion is reached from the election.

Tuesday, November 14, 2000

Is it true that overseas absentee ballots can continue to be received and counted even after the Tuesday certification "deadline"?

Yes. These ballots can be received and counted as long as they are received by November 17. Florida Administrative Code section 1S-2.013(7) provides: "With respect to the presidential preference primary and the general election, any absentee ballot cast for a federal office by an overseas elector which is postmarked or signed and dated no later than the date of the Federal election shall be counted if received no later than 10 days from the date of the Federal election as long as such absentee ballot is otherwise proper."

Wednesday, November 15, 2000

What's going on today?

The Florida Secretary of State and the Gore campaign are both seeking a definitive ruling from the Florida Supreme Court on the permissibility of conducting and counting the results of the ongoing manual recounts. Meanwhile, Broward County plans to begin its manual recount this afternoon.

Secretary of State Harris also has asked the Florida high court to centralize all of the election-related contests in Leon County (Tallahassee).

A lower Florida court has told the Palm Beach County election officials that they should not automatically discount a "pregnant" punch, in which the chad is merely indented and not detached from the ballot. Several other suits are being heard that challenge other aspects of Palm Beach County's vote-counting protocols.

Counties in the midst of or considering recounts were under a 2 p.m. deadline to present to the Secretary of State grounds that would justify her considering a late-submitted vote tally. In Palm Beach County's submission, officials asserted that the recounted figures should be included in the final statewide result because they might alter the outcome of the election.

The NAACP has requested that the U.S. Department of Justice undertake a recount and send federal marshals to oversee the process

Thursday, November 16, 2000

What's going on?

The Florida Supreme Court hears arguments today on Palm Beach County's request for definitive guidance on whether it is permissible to conduct a manual recount in the circumstances at issue. Conflicting opinions have been issued by Florida's Attorney General and Secretary of State.

On the federal level, the United States Court of Appeals for the Eleventh Circuit, headquartered in Atlanta, today hears expedited appeals from two lower federal court rulings rejecting requests on constitutional grounds for injunctions against the manual recounts. The appeals will be heard en banc by the full 12-judge court.

Late Wednesday night, Secretary of State Harris announced that she would not accept any county vote returns submitted after Tuesday's 5 p.m. deadline, despite a lower court ruled that she had discretion to accept such returns. Parties return to Circuit Judge Terry Lewis in Tallahassee to appeal the refusal to consider post-deadline vote counts from Broward, Collier, Miami-Dade and Palm Beach.

On Wednesday, a lower Florida court told the Palm Beach County election officials that they should not automatically discount a "pregnant" punch, in which the chad is merely indented and not detached from the ballot. Several other suits are being heard that challenge other aspects of Palm Beach County's vote-counting protocols.

Friday, November 17, 2000

What's going on?

The Florida Supreme Court ruled on Thursday that there "is no legal impediment to the recounts" in Palm Beach County continuing. Palm Beach County officials had sought clarification on the permissibility of conducting a manual recount in the wake of conflicting opinions have been issued by Florida's Attorney General and Secretary of State. Following this ruling, Palm Beach County officials announced plans to resume a full recount, despite uncertainty as to whether Florida's Secretary of State will count those results.

On Friday, a judge will hear claims by several Broward County citizens that the ongoing manual recount in that county is unlawful.

What does the Friday decision from Judge Lewis affirming the Secretary of State's decision to exclude returns from manual recounts in the certified totals mean?

As an initial matter, this decision likely will not be the last word on the subject. The Florida Supreme Court likely will be asked to address this question in short order. Judge Lewis was considering a point more of administrative law than of election law -- did this agency official make a decision that fell within the bounds of the discretion that the law gives to this official? These inquiries typically turn on the question of whether the decision was arbitrary (versus an exercise of reasoned judgment) and appears to be based on a consideration of the relevant factors (versus extraneous or inappropriate considerations). In making these judgments, a court does not substitute its judgment on how it would have resolved the question before the agency. Here, Judge Lewis concluded based "on the limited evidence presented, it appears that the Secretary has exercised her reasoned judgment to determine what relevant factors and criteria should be considered, applied them to the facts and circumstances pertinent to the individual counties involved, and made her decision." The decision does not necessarily foreclose a further request to the Secretary for inclusion of votes by a county upon the completion of a recount.

Saturday, November 18, 2000

What's going on?

All eyes turn back to Tallahassee on Monday, as the Florida Supreme Court hears arguments on the propriety of Secretary of State Harris's decision to exclude vote tallies from the ongoing manual recounts in several counties in the final statewide returns.

On Friday morning, Florida Circuit Court Judge Terry Lewis ruled that the Secretary's Wednesday night refusal to accept recount returns submitted after Tuesday's 5 p.m. statutory deadline was within her discretion. The judge wrote, "On the limited evidence presented, it appears that the Secretary has exercised her reasoned judgment to determine what relevant factors and criteria should be considered, applied them to the facts and circumstances pertinent to the individual counties involved, and made her decision. My Order requires nothing more."

The Gore campaign quickly appealed Judge Lewis' ruling to the Florida District Court of Appeal, which, given the importance of the issues, immediately certified the case to the Florida Supreme Court. The Florida Supreme Court has scheduled oral arguments for 2 PM Monday, and has issued a Stay preventing any formal certification of election results in Florida before the Court's ruling. This move preempted the expected Saturday announcement of certified election results (including tallies of overseas votes) in Florida. The Florida Supreme Court has, however, explicitly stated that their Stay is not meant to stop the counting of absentee ballots or any other ballots.

On the federal level, the United States Court of Appeals for the Eleventh Circuit, headquartered in Atlanta, on Friday turned down emergency requests to bar the continuation of the manual recounts. The appeals court recognized the primacy of state law in matters relating to the conduct of the election and noted that the state judicial machinery was in the midst of addressing the various issues.

A ruling from Circuit Court Judge Labarga is expected in the coming week on the lawfulness of the so-called "butterfly ballot" used in Palm Beach County. Other lawsuits challenging the process for accepting absentee ballots proceed on a slower track.

Manual recounts are expected to continue this week in Palm Beach and Broward Counties, and Miami-Dade.

Given the litigation logjam, can the Florida Legislature act to appoint electors?

Title 3, Section 2 of the United States Code states: "Whenever any state has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct." Many are starting to focus on this avenue, although there are a few important and unresolved questions about the operation of this statute.

First, electors are supposed to be picked and in place by December 12. At what point should we conclude that the voters have failed to make a choice Election Day (versus having made a choice but awaiting a lengthy process to reveal that choice)?

Second, some observers interpret this provision to require the state to have a preexisting (in place before Election Day) procedure to select electors. Others read this statute to allow the legislature to step in for the first time to bring closure to a stalemate.

Third, does the usually applicable requirement for the governor to sign a bill to give it legal force apply here?

Fourth, what type of resolution should a legislature offer in a case like this? Options might include determining that all electors should be pledged to one candidate or the other, splitting the state's electoral college delegation between the two leading candidates, appointing a truly unpledged delegation charged only to pursue national unity, or many other possibilities.

In ordinary circumstances, does the Governer of Florida have a role in certifying or appointing the state's electors?

Yes. First, the Governor is one of three members of the Elections Canvassing Commission (with the Secretary of State and the Director of the Division of Elections). The Commission is responsible for certifying final election results. Governor Jeb Bush has recused himself from participation on the Commission in connection with the presidential election.

In addition, after the general election, the Governor of each State prepares a "Certificate of Ascertainment" of the electors appointed. The Certificate must be signed by the Governor and carry the seal of the State, and should be submitted to the National Archives before December 18.. The format of the Certificate is not dictated by Federal law, but conforms to the law or custom of the submitting State.

What is the basis of the new lawsuit that asserts that Texas' electors can't vote for Bush and Cheney even though they won the vote in Texas?

The lawsuit alleges that Mr. Cheney's August trip to Wyoming to register to vote in that state was insufficient to make him an "inhabitant" of Wyoming and no longer an inhabitant of Texas. The Twelfth Amendment to the U.S. Constitution provides a state's electors may not vote for a President and Vice President if both are inhabitants of the same state with themselves.

"Inhabitant" is not necessarily synonymous with "resident." "Inhabitant" also is used in specifying the qualifications to be elected a United States Senator, enabling New York now to have a Senator-elect Clinton. There are some older congressional precedents challenging the seating of an elected representative on "inhabitant" grounds. These precedents basically require a residence in the state plus a clear commitment to avail oneself of the rights and responsibilities of living in that state.

It remains to be seen whether this challenge to Mr. Cheney's status as a Wyoming inhabitant will be entertained by a court or, rather, be deferred to congressional resolution as a possible objection to an electoral college vote from Texas.

Sunday, November 19, 2000

Are Florida's electors, whomever they end up being, obligated to cast their votes for the candidate that won the popular vote in Florida?

Yes. Florida is one of the states that binds its electors, either by state law or by party pledge. The National Archives has compiled a list [http://www.nara.gov/fedreg/elctcoll/pledges.html#top] of the state requirements on this score.

What is the complaint about absentee ballots from Seminole County?

A lawsuit has been filed to disqualify approximately 4,700 ballots from Seminole County. The complaint alleges that the Seminole County elections supervisor's office allowed Republican activists to fill in missing voter registration numbers on requests submitted by voters requesting absentee ballots. Section 101.62 of the Florida statutes provides that a request for an absentee ballot may be made by a voter or a member of the voter's immediate family and that the person making the request must disclose certain information, including the registration number on the elector's registration identification card.

Is it true that Palm Beach County voters were only allowed five minutes to mark their ballots?

Florida law (101.51) provides: "No elector, while casting his or her ballot, shall occupy a booth or compartment longer than 5 minutes or be allowed to occupy a booth or compartment already occupied or to speak with anyone, except [for a voter seeking assistance], while in the polling place." Palm Beach voter Kenneth Horowitz, owner of the Miami Fusion soccer team, has brought a lawsuit challenging this provision, alleging that election workers were warning voters that anyone taking longer than five minutes would have their ballot tossed out.

This type of time limit is not unusual in state election laws. It is intended as a "housekeeping" requirement to avoid disruption and undue delays in polling places on election day. A similar provision under California law was challenged as a form of discrimination against persons lacking proficiency in English. A federal appeals court found "no evidence that any county has ever enforced the California law so as to require voters to leave the voting booth simply because they have exceeded the statutory time limit." Alcaraz v. Eu, 861 F.2d 1101 (9th Cir. 1988). If it were strictly enforced, that court suggested that it would find a violation of the language discrimination provisions of the Voting Rights Act.

What is the basis for the challenges to many of the overseas military ballots on the ground that they are not postmarked?

Section 101.62(7)(c) of the Florida election statute provides: "With respect to marked ballots mailed by absent qualified electors overseas, only those ballots mailed with an APO, FPO, or foreign postmark shall be considered valid."

Monday, November 20, 2000

What's going on?

The Florida Supreme Court heard two hours of argument this afternoon, focusing on the issue of the competing considerations of fixing a deadline for certifying election results and allowing for manual recounts to be completed. Counsel for the Florida Attorney General and for the Gore Campaign argued that the ongoing manual recounts in three counties were properly commenced and should continue, and that a final official certification by the Secretary of State should include those figures. Counsel for the Florida Secretary of State and for the Bush Campaign contended that, while a county canvassing board may undertake a manual recount in response to a candidate request, the county is obligated to devote sufficient resources to the recount to enable its completion by the seven-day post-election deadline. They further argued that many of the issues that were now being raised more properly should be presented in an election contest, rather than through a protest/recount, and that election contests cannot even begin until after the vote tally is certified. David Boies, for the Gore Campaign, also invited the Court to announce a standard focused on "intent of the voter" to govern the assessment of a partially punched ballot.

The Court make no immediate ruling. Many of the court's questions focused on identifying the timing and sequence of events (recounts, certifications, contests) that need to be completed by December 12 in order to avoid the forfeiture of Florida's participation in the electoral college. Several justices also asked questions to illuminate the interplay of, and possible approaches to harmonizing, the various provisions of Florida law providing for vote reporting deadlines, automatic and manual recounts, and election contests. Gore attorney Boies suggested that the Court might authorize a certification of election results received thus far, allowing election contests to be commenced with respect to those results, while still barring at this time the Secretary of State from issuing a final declaration of the successfully elected (pursuant to 103.011).

Also today, Palm Beach County Judge Labarga ruled Monday morning that, even if he were to find that the Palm Beach County "butterfly" ballot was unduly confusing, he lacked authority under the Constitution of the United States to order a revote.

On the federal level, the United States Court of Appeals for the Eleventh Circuit, headquartered in Atlanta, on Friday turned down emergency requests to bar the continuation of the manual recounts. The appeals court recognized the primacy of state law in matters relating to the conduct of the election and noted that the state judicial machinery was in the midst of addressing the various issues.

Manual recounts are expected to continue this week in Palm Beach and Broward Counties, and Miami-Dade.

Wednesday, November 22, 2000

What's going on?

The approach of Thanksgiving did not abate the flurry of legal activity on Wednesday.

The Miami-Dade county canvassing board halted its ongoing manual recount because it concluded that it had no possibility of completing the task before the Sunday deadline fixed by the Florida Supreme Court. A disappointed Gore campaign unsuccessfully sought an order from the Florida state appeals court directing the resumption of the recount. An appeal to the Florida Supreme Court is expected.

The Bush campaign took the legal battle to the Supreme Court of the United States, seeking to have the High Court review by writ of certiorari both the Florida Supreme Court's Tuesday ruling and the refusal of the lower federal courts to halt the manual recounts.

The Bush request for review of the Florida Supreme Court ruling seeks to raise federal law issues appropriate for U.S. Supreme Court review by contending that the Tuesday ruling establishes rules for the settlement of presidential election controversies in a manner inconsistent with the Constitution and the governing federal statute (Title 3 USC section 5). The petition also contends that the "use of arbitrary, standardless, and selective manual recounts that threaten to overturn the results of the election for President of the United States" violates the Equal Protection and Due Process Clauses and the First Amendment. A ruling is requested by December 18.

The petition arising out of the federal litigation is filed under Supreme Court Rule 11, addressing petitions before the entry of final judgment by the court below (because the 11th Circuit has not yet entered a final judgment). This petition also raises the issue of whether the manner and circumstances under which the manual recounts are being undertaken violates the U.S. Constitution.

Back in Palm Beach County, Circuit Judge Labarga ruled that the county canvassing board is obligated to consider all ballots with a "dimpled chad" for the presidential vote in order to ascertain the intent of the voter and may not automatically discount all such ballots if votes for "down-ticket" candidates were punched through and not merely dimpled. Thecourt stated that "each ballot must be considered in light of the totality of the circumstances."

Finally, the Bush campaign went to court in Tallahassee to seek an order directing thirteen counties with heavy military voter populations to count overseas military ballots that had been challenged for failure to meet certain technical requirements of Florida law. The court ordered the ballots in question be preserved but made no ruling on the merits.

Does the Bush campaign have any additional avenues to challenge the ruling of the Florida Supreme Court that the manual recount results should be included in the final counts?

There still remains open to both campaigns the avenue of statutory election "contests" that challenge the legality of the certified election result.

In addition, the federal court litigation, now before the U.S. Court of Appeals for the Eleventh Circuit, could be reactivated. That case raised the contention that the inclusion of the manual recount results violates the plaintiff-voters' right to equal protection under the Constitution of the United States. (Such a constitutional argument was not presented by the Florida Supreme Court.) The 11th Circuit has invited supplemental briefing from the parties during the week of November 27 to address, among other things, the Florida ruling. The U.S. Supreme Court also could be asked to hear such a federal constitutional question. More questions...

Should dimpled chads be counted?

The Florida Supreme Court's ruling provides no specific guidance on this important issue. In conducting a manual recount, the overriding standard is the ascertainment of the intent of the voter (102.1667(b)). In implementing this standard, the recounting counties are applying different rules of thumb. Miami-Dade counts dimpled chads that pass the "sunlight" test, i.e. light passes through one of the borders of the chad. Palm Beach does not apply the "sunlight" test, but rather counts dimpled votes when votes for offices other than president are also dimpled and not punched through.

The law of other states recognizes explicitly that a dimpled chad may count as a vote. Section 127.130(d)(3) of the Texas Election Code authorizes ballots to be counted where "an indentation on the chad from the stylus or other object is present and indicates a clearly ascertainable intent of the voter to vote." An Illinois case, quoted in the November 21 Florida opinion, authorizes the counting of dimpled chad:

The voters here did everything which the Election Code requires when they punched the appropriate chad with the stylus. These voters should not be disenfranchised where their intent may be ascertained with reasonable certainty, simply because the chad they punched did not completely dislodge from the ballot. Such a failure may be attributable to the fault of the election authorities, for failing to provide properly perforated paper, or it may be the result of the voter's disability or inadvertence. Whatever the reason, where the intention of the voter can be fairly and satisfactorily ascertained, that intention should be given effect. (Pullen v. Milligan, 561 N.E.2d 585, 611 (Ill. 1990) (citations omitted).

How soon after the State of Florida certifies the result of the election does it need to transmit the official Certificate of Ascertainment to Washington, and does that leave time for an election contest?

The Certificate of Ascertainment is a creature federal law (3 U.S.C. § 6): "It shall be the duty of the executive of each State, as soon as practicable after the conclusion of the appointment of the electors in such State by the final ascertainment, under and in pursuance of the laws of such State providing for such ascertainment, to communicate by registered mail under the seal of the State to the Archivist of the United States a certificate of such ascertainment of the electors appointed, setting forth the names of such electors and the canvass or other ascertainment under the laws of such State of the number of votes given or cast for each person for whose appointment any and all votes have been given or cast[.]"

Thus, the only governing time frame is that the Governor (or person acting in his stead) transmit the Certificate "as soon as practicable" after the state's "final ascertainment." The State probably will regard that "final ascertainment" to be the Elections Canvassing Commission's certification. What does that mean for a post-certification statutory election contest? Apparently there is precedent for a state to submit an amended or modified Certificate of Ascertainment. The November 22, 2000, Washington Post reports that in Hawaii in 1961 the governor first certified the electors for Nixon and then subsequently sent in a new certification for the JFK electors (which Nixon agreed should be honored). So it seems that a Certificate of Ascertainment is not necessarily chiseled in granite.

Friday, November 24, 2000

What's going on?

On Friday, the Bush campaign succeeded in its effort to get the legal battle before the Supreme Court of the United States. The Court granted the petition for certiorari and requested expedited briefing on the merits by Tuesday with argument set for Friday, December 1.

The Bush campaign sought High Court review by writ of certiorari both the Florida Supreme Court's Tuesday ruling and the refusal of the lower federal courts to halt the manual recounts. The requests for review of the Florida Supreme Court ruling sought to raise federal law issues appropriate for U.S. Supreme Court review by contending that the Tuesday ruling establishes rules for the settlement of presidential election controversies in a manner inconsistent with the Constitution and the governing federal statute (Title 3 USC section 5). The petition also contends that the "use of arbitrary, standardless, and selective manual recounts that threaten to overturn the results of the election for President of the United States" violates the Equal Protection and Due Process Clauses and the First Amendment. A ruling is requested by December 18.

The petition arising out of the federal litigation was filed under Supreme Court Rule 11, addressing petitions before the entry of final judgment by the court below (because the 11th Circuit has not yet entered a final judgment). This petition also raises the issue of whether the manner and circumstances under which the manual recounts are being undertaken violates the U.S. Constitution.

The Miami-Dade county canvassing board halted its ongoing manual recount on Wednesday because it concluded that it had no possibility of completing the task before the Sunday deadline fixed by the Florida Supreme Court. A disappointed Gore campaign unsuccessfully sought an order from the Florida state appeals court directing the resumption of the recount. On Thursday, the Gore campaign took its case to the Florida Supreme Court, which also declined, without opinion, to order resumption of the recount at this time.

Back in Palm Beach County, Circuit Judge Labarga ruled that the county canvassing board is obligated to consider all ballots with a "dimpled chad" for the presidential vote in order to ascertain the intent of the voter and may not automatically discount all such ballots if votes for "down-ticket" candidates were punched through and not merely dimpled. Thecourt stated that "each ballot must be considered in light of the totality of the circumstances."

Finally, the Bush campaign went to court in Tallahassee to seek an order directing thirteen counties with heavy military voter populations to count overseas military ballots that had been challenged for failure to meet certain technical requirements of Florida law. The court ordered the ballots in question be preserved but made no ruling on the merits.

Why has the Supreme Court of the United States decided to get involved?

We're not sure. This is the first instance in which the Supreme Court has gotten involved in litigation concerning a presidential election. Of course, the decision to accept review does not foreshadow any particular result on the merits. Perhaps the Court recognized this moment to be akin to President Nixon's refusal to term over the Watergate tapes or President Truman's seizure of the steel mills during the Korean conflict -- the nation is waiting for a definitive and final resolution. Or perhaps the Court senses an institutional obligation to weigh in on the constitutional aspects of a controversy with these remarkably high stakes. Or perhaps the Court has not yet reached a collective conclusion about its role at all, but at least four justices see reasons to hear these arguments and approach these momentous next steps.

Saturday, November 25, 2000

What's going on?

The November 25 deadline for completion of manual recounts draws closer. The Gore campaign is poised to file post-certification election contests challenging the validity of the certified results in one or more of the counties.

On Friday, November 24, the Bush campaign succeeded in its effort to get the legal battle before the Supreme Court of the United States. The Court granted the petition for certiorari in Bush v. Palm Beach County Canvassing Board (on appeal from the Florida Supreme Court) and requested expedited briefing on the merits by Tuesday, response briefs by Thursday, with argument set for 90 minutes on Friday, December 1.

The Court is interested in hearing the parties' positions on whether the Florida Supreme Court's ruling (directing that manual recounts may continue and must be considered until next Sunday) is inconsistent with Article II of the U.S. Constitution (assigning to the state legislature the resolution of elector controversies) and/or unlawfully imposes new rules to resolve the controversy that were not in effect as of the date of the election. The specific questions presented by the Bush campaign on which the Court has granted review are:

• Whether post-election judicial limitations on the discretion granted by the legislature to state executive officials to certify election results, and/or post-election judicially created standards for the determination of controversies concerning the appointment of presidential electors, violate the Due Process Clause or 3 U.S.C. section 5, which requires that a State resolve controversies relating to the appointment of electors under "laws enacted prior to" election day.
• Whether the state court's decision, which cannot be reconciled with state statutes enacted before the election was held, is inconsistent with Article II, Section 1, clause 2 of the Constitution, which provides that electors shall be appointed by each State "in such Manner as the Legislature thereof may direct."

In addition, the Court asked the parties to address the following question: "What would be the consequences of this court's finding that the decision of the Supreme Court of Florida does not comply with 3 U.S.C. section 5?" That provision requires that election controversies be resolved through the application of state laws enacted prior to Election Day (in order for that resolution to be conclusive for purposes of the Electoral College).

The Court did not accept for review the Bush campaign's petition for review of the 11th Circuit decision declining to enjoin the continuation of the allegedly "standardless" manual recounts.

On other fronts, the Bush campaign withdrew its suit in Tallahassee to seek an order directing thirteen counties with heavy military voter populations to count overseas military ballots that had been challenged for failure to meet certain technical requirements of Florida law. Instead, the Bush camp has decided to pursue a county-by-county litigation strategy, filing new suits on Saturday in Hillsboro, Okaloosa, Pasco and Polk counties, with a fifth suit slated to be filed in Orange County on Sunday.

The Miami-Dade county canvassing board halted its ongoing manual recount on Wednesday because it concluded that it had no possibility of completing the task before the Sunday deadline fixed by the Florida Supreme Court. A disappointed Gore campaign unsuccessfully sought an order from the Florida state appeals court directing the resumption of the recount. On Thursday, the Gore campaign took its case to the Florida Supreme Court, which also declined, without opinion, to order resumption of the recount at this time.

Back in Palm Beach County, on Thursday, Circuit Judge Labarga ruled that the county canvassing board is obligated to consider all ballots with a "dimpled chad" for the presidential vote in order to ascertain the intent of the voter and may not automatically discount all such ballots if votes for "down-ticket" candidates were punched through and not merely dimpled. The court stated that "each ballot must be considered in light of the totality of the circumstances."

Will Friday's Supreme Court arguments be televised?

The Supreme Court of the United States has never authorized television cameras in the courtrooms, and several of the justices publicly have expressed strong objections to the concept. Both C-SPAN and CNN have made new requests for this historic argument. If the Court does not depart from its consistent policy, written transcripts of the argument should be available shortly after completion through major news outlets.

What is an "election contest"?

An election "contest" is a procedure long-established in Florida law under which an unsuccessful candidate for office can challenge the validity of the election results and demonstrate that he/she has a legal right to the office. An election contest must be filed with the circuit court (here, likely to be the circuit court in Leon County) within 5 days after a certification by the last county canvassing board of election results that follows the protest of election returns.

Are election contests unusual in Florida?

There have been many contests in county-level and local elections in Florida (as well as in other states). There does not appear to have been a Florida contest arising out of a statewide or national election.

What happens procedurally in a contest and how long is it likely to take?

An election contest basically proceeds as a lawsuit. Under the governing statute (102.168), the canvassing board or election board is the defendant, and the successful candidate also should be made part of the proceeding. The statute gives the defendants 10 days to answer the allegations.

The law also provides that the person bringing a contest "is entitled to an immediate hearing." Witnesses and documentary evidence typically is presented. The court also may, in its discretion, "limit the time to be consumed in taking testimony, with a view therein to the circumstances of the matter[.]" Thus, we should expect to see an election contest proceed on a fast track, similar to the other cases arising out of the Florida election. In its November 21 opinion, the Florida Supreme Court was particularly concerned about the need to initiate and resolve election contests before December 12 to avoid jeopardizing Florida's participation in the Electoral College.

To what remedy is a successful contestant entitled?

The determination of the appropriate remedy is committed to the discretion of the court. The Florida election contest statute authorizes the judge to "fashion such orders as he or she deems necessary . . . to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances." Relief could include rejection of questioned ballots or a direction to recount disputed ballots applying a particular standard.

Sunday, November 26, 2000

What's going on?

At approximately 7:30 p.m. on Sunday, the Florida Elections Canvassing Commission certified the results of the presidential election in Florida. The certified results were based on the amended returns filed with the Secretary of State by 5 p.m. The certified results did not include partial recount results from Palm Beach County; Secretary of State Harris' comments indicated that she believed that partial manual recount results were not authorized by the governing statute (102.166).

With the certification now behind us, we enter the contest phase. The Gore campaign is poised to file post-certification election contests challenging the validity of the certified results in at least three counties. (More info about contests can be found in these FAQ.)

Why did Secretary of State Harris refuse to include the partial results from the Palm Beach recount in the totals certified on Sunday night?

In her verbal comments, Secretary Harris stated that the partial Palm Beach recount results submitted prior to the 5 p.m. deadline did not comply with section 166 of the Election Code. Apparently her comment referred to section 166's authorization to a county to "manually recount all ballots" if the initial three precinct sampling indicated are error in vote tabulation (emphasis added). This interpretation would dictate that "all or none" of the recounted ballots be included in the certification.

The Gore team is expected to challenge this interpretation in a contest. They likely will argue that once an error in vote tabulation has been identified that would justify a manual recount, each manually recounted ballot incrementally corrects or reduces the error, and thus a partial recount, while less accurate than a total recount, is more accurate than the prerecount tallies. They also likely will argue that the Secretary retained discretion to consider tallies submitted after the 5 p.m. deadline and that the failure to exercise that discretion to allow Palm Beach to devote a few extra hours to complete all of its work on the recount was arbitrary.

Monday, November 27, 2000

What's going on?

On Monday, as expected the Gore campaign filed a post-certification election contest challenging the validity of the certified results in Miami-Dade, Nassau, and Palm Beach counties. More information about election contests and the Gore challenge can be found in these FAQs. Circuit Judge N. Sanders Sauls held an initial scheduling hearing with the parties on Monday, where an expedited schedule was worked out for responses to the complaint and the Gore team's designation of witnesses. Also discussed, but not resolved, was the Gore campaign's request for the disputed ballots to be moved to Tallahassee and the appropriateness of the court designating special masters to review the ballots.

Also on Monday, a Florida appellate court passed on to the Florida Supreme Court an appeal of Palm Beach County Circuit Judge Jorge Labarga's November 20 ruling dismissing several lawsuits brought by Palm Beach voters complaining about the confusing nature of the infamous "butterfly ballot." Judge Labarga dismissed the cases because he concluded that he had no authority to issue the remedy -- a revote -- that the plaintiffs sought.

On other fronts, the Bush campaign withdrew its suit in Tallahassee to seek an order directing thirteen counties with heavy military voter populations to count overseas military ballots that had been challenged for failure to meet certain technical requirements of Florida law. Instead, the Bush camp has decided to pursue a county-by-county litigation strategy, filing new suits on Saturday in Hillsboro, Okaloosa, Pasco and Polk counties, with a fifth suit slated to be filed in Orange County on Sunday.

Tuesday, November 28, 2000

What's going on?

On Monday, as expected, the Gore campaign filed a post-certification election contest challenging the validity of the election results certified by the Elections Canvassing Commmission on Sunday night. The contest specifically focuses on the vote countes in Miami-Dade, Nassau, and Palm Beach counties. More information about election contests and the Gore challenge can be found in these FAQs. Circuit Judge N. Sanders Sauls held an initial scheduling hearing with the parties on Monday, where an expedited schedule was worked out for responses to the complaint and the Gore team's designation of witnesses. Also discussed, but not resolved, was the Gore campaign's request for the disputed ballots to be moved to Tallahassee and the appropriateness of the court designating special masters to review the ballots. Some individual voters were permitted to intervene as parties in the Gore contest, and other separate contest actions have been filed by voters as well. On Tuesday, the Gore team filed a motion seeking entry of an expedited scheduling order, under which ballot review under the Court's supervision would begin later this week, with a decision from the Circuit Court on the contest action by December 6, and contemplating another round of appeals to the Florida Supreme Court to be completed by December 9.

Also on Monday, a Florida appellate court passed on to the Florida Supreme Court an appeal of Palm Beach County Circuit Judge Jorge Labarga's November 20 ruling dismissing several lawsuits brought by Palm Beach voters complaining about the confusing nature of the infamous "butterfly ballot." Judge Labarga dismissed the cases because he concluded that he had no authority to issue the remedy -- a revote -- that the plaintiffs sought. The Florida Supreme Court has not yet decided whether it will hear the case on the merits. Briefs by the parties and several "friends of the court" were filed on on Tuesday.

Wednesday, November 29, 2000

What's going on?

In the primary Gore election contest action, Judge Sanders Sauls declared "pack them up and bring them up," inviting a motorcade of ballots and lawyers to travel to Tallahassee from Miami-Dade and Palm Beach county. At the request of the Bush campaign, the judge directed all of the ballots from the counties to be brought before the court, not just those disputed by the Gore team. Judge Sauls denied the Gore request for the court to begin reviewing and counting the ballots immediately, ruling that ballot counting could begin no earlier than Saturday, after a further hearing on whether and how such a count should proceed.. Ever mindful of the ticking of the clock, the Gore team appealed that denial to the District Court of Appeal, which is expected to hand that challenge off to the Florida Supreme Court on Thursday. More information about election contests and the Gore challenge can be found in these FAQs.

The Florida legislature also began gearing up to possibly select electors itself or establish a method for selecting those electors, pursuant to its authority under federal law to appoint electors when the state "has failed to make a choice on the day provided by law." A special legislative session may commence on Tuesday, December 5.

On Friday, December 1, the Supreme Court of the United States will hear (untelevised) argument in Bush v. Palm Beach County Canvassing Board (reviewing the November 21 ruling of the Florida Supreme Court). The Court will hear the parties' positions on whether the Florida Supreme Court's ruling (directing that manual recounts may continue and must be considered until today) is inconsistent with Article II of the U.S. Constitution (assigning to the state legislature the resolution of elector controversies) and/or unlawfully imposes new rules to resolve the controversy that were not in effect as of the date of the election.

The Jacobs suit filed by a voter in Seminole County challenging allegedly unlawful assistance given by county election officials to Republican workers who added missing information to absentee ballot applications will not be consolidated with the Gore contest action before Judge Sauls, according to Circuit Judge Nikki Clark who is handling that case. The Bush campaign, which sought consolidation in light of the multiplicity of directions in which its lawyers are being pulled, has appealed that ruling. The Jacobs case seeks the disqualification of some 10,000 absentee ballots cast in that county and counted in the Secretary of State's certification. Judge Clark set an expedited schedule, with trial to take place on December 6. Press reports also have surfaced regarding similar irregularities in Martin County, but no case has been filed yet on that front.

The NAACP announced plans to file litigation next week to challenge voting irregularities in several Florida counties. Few details are available about the focus of that litigation.

Friday, December 1, 2000

What's going on?

On Friday, the Supreme Court of the United States heard argument in Bush v. Palm Beach County Canvassing Board (reviewing the November 21 ruling of the Florida Supreme Court). Questioning from the Court during the 90-minute argument was vigorous, with all justices except Justice Clarence Thomas posing questions to counsel. Most of the questioning centered around the Bush team's contention that the Florida ruling violated Article II of the U.S. Constitution (giving the state legislature the authority to determine the manner in which electors will be chosen) by imposing a different date for certification of the election results. Theodore Olson, arguing for Bush, gave less weight to his statutory argument that the Florida ruling violated Title 3, Section 5 of the United States Code. Justice Breyer was the only member of the Court who dwelled on the issue of whether any Supreme Court ruling would make a real difference in resolving the controversy at this juncture. The Court gave no indication when a ruling might be expected.

In the primary Gore election contest action, the Bush team filed a motion to dismiss the contest, asserting among other grounds that it was untimely filed. The Bush motion argues that the ten-day period for filing an election contest should be computed from November 14. An emergency hearing was requested by the Gore team for 3 p.m. on Friday.

A special committee of the Florida legislature has recommended that a special legislative session be called "as soon as practicable" to position the legislature to intervene in the ongoing controversy.

Saturday, December 2, 2000

What's going on?

Saturday saw day-long testimony in the Tallahassee courtroom of Judge Sanders Sauls in the Gore election contest action. The Gore team called its two witnesses. First was an expert in the punchcard voting system, who described how dimpled ballots could be produced. Second was a statistician who testified that a manual recount was more likely to determine voters' intentions that a machine count. The Bush team's lead-off witness was Judge Charles Burton, chair of the Palm Beach County canvassing board, who described the process and standards used for the manual recount in that county. The lawyers presented argument to Judge Sauls about whether he should direct a further count of ballots and whether the determinations of the county canvassing boards should be accorded deference in the contest proceeding. No rulings were made yet on these significant points. The hearing will continue on Sunday.

On Friday, the Florida Supreme Court tossed out lawsuits filed by Palm Beach voters challenging the “butterfly ballot.” The brief opinion noted that “the courts have generally declined to void an election unless such defects clearly operate to prevent that free, fair and open choice.” The court concluded that “the Palm Beach County ballot does not constitute substantial noncompliance with the statutory requirements mandating the voiding of the election.” This ruling likely will put this issue to rest.

A Texas federal district court judge on Friday rejected a challenge to the Texas' electors casting their votes both for Governor Bush and Secretary Cheney. The plaintiffs contended that Cheney remained an inhabitant of Texas within the meaning of the Twelfth Amendment's provision barring electors from a given state from voting for a presidential and vice presidential candidate from that state. Judge Sidney Fitzwater ruled that the plaintiffs did not have standing to bring the lawsuit and also ruled that Cheney should be considered to be an inhabitant of Wyoming.

The Jacobs suit filed by a voter in Seminole County challenging allegedly unlawful assistance given by county election officials to Republican workers who added missing information to absentee ballot applications will not be consolidated with the Gore contest action before Judge Sauls, according to Circuit Judge Nikki Clark who is handling that case. The Bush campaign, which sought consolidation in light of the multiplicity of directions in which its lawyers are being pulled, has appealed that ruling. The Jacobs case seeks the disqualification of some 10,000 absentee ballots cast in that county and counted in the Secretary of State's certification. Judge Clark set an expedited schedule, with trial to take place on December 6. A new case raising similar allegations from Martin County was filed on Friday.

The Florida legislature plans to meet in special session on Wednesday to consider adopting a resolution designating 25 electors supporting Bush. Governor Jeb Bush already has signed a Certificate of Ascertainment designated electors pledged to his brother, but the legislative action is a potential hedge against a judicial ruling invalidating the original certification.

Sunday, December 3, 2000

What's going on?

Circuit Judge Sauls will give his ruling on Monday morning in the election contest proceeding. The ruling is expected to address the Bush team's request to dismiss the proceeding and, if the action is to proceed, the Gore team's request to commence the review of ballots. Sunday's session was a marathon one, with additional voting machine and statistical experts, and testimony from Republican election observers and from voters who have been permitted to intervene in the action.

After completion of the evidence, the lawyers delivered closing arguments. The Bush team urged that the contest be dismissed on grounds of timeliness, failure to name the proper parties, unavailability of the remedy being sought, and the failure to establish the "integrity" of the ballots, i.e. that the ballots remain in the same condition that they did on election night. The Bush lawyers also argued that Florida law would require a recount of all of the ballots statewide, rather than just a review of those subgroups identified by the Gore team.

In his final wrap-up, lead Gore lawyer David Boies argued that Florida law amply supported the propriety of a review of the challenged ballots in a contest action, and that such a ballot-by-ballot review must be undertaken in these circumstances, applying the standard of counting as votes those ballots that present the "discernible intent of the voter."

The U.S. Department of Justice confirmed that federal officials are looking into allegations that African-American voters were deterred from voting in several parts of Florida on November 7. This initial review is not yet a formal investigation, and the applicable laws are primarily criminal statutes that do not reach to affecting the outcome of the election

Monday, December 4, 2000

What's going on?

On Monday, the Supreme Court of the United States vacated the ruling of the Florida Supreme Court that extended the deadline for submission of recount information and sent the case back to the Florida court for clarification. Specifically, the Supreme Court could not determine (1) whether the Florida court saw the Florida Constitution's protection of the rights of voting as circumscribing the legislature's authority under Article II of the U.S. Constitution to determine the manner of elections and (2) the role of Title 3, section 5 of the U.S. Code in the Court's decision. The Court's 7-page Opinion was "per curiam," i.e. issued on behalf of the entire Court.

The Florida Supreme Court issued an order on Monday inviting the parties to file supplemental briefs on the remand by Tuesday at 3 p.m. The Florida legislature has requested permission to submit a brief as an amicus curiae.

Circuit Judge N. Sanders Sauls ruled on Monday afternoon that the Gore team failed to carry their burden of proof to show an entitlement to a recount or other relief in the contest action. Judge Sauls did not find, from the evidence presented, any gross negligence or fraud in the balloting process, that the Gore team had shown a reasonable probability that any of the alleged problems with the voting would have altered the outcome of the election, or that the canvassing boards of Palm Beach or Miami-Dade had abused their discretion in the conduct of the manual recounts. Gore lawyer-in-chief David Boies announced an immediate appeal..

On Tuesday, December 5, a federal district court judge will hear arguments in a suit filed by the Bush team to compel seven counties to count certain overseas military ballots that had been rejected for lacking dates.

What does the Supreme Court's decision mean?

First, in the most practical sense, vacating the November 21 ruling means that for the time being the Gore team finds itself in Judge Sauls' courtroom at the bottom of a 900-vote hole, instead of a 537-vote hole, and will give the Bush team further ammunition to bolster its argument that the election contest was filed too late. It also postpones any action on the merits by the U.S. Supreme Court until additional events unfold in Florida.

Second, the ball is tossed back to the Florida Supreme Court to more clearly articulate whether its ruling extending the deadline for the consideration of manual recount results was an interpretation solely of Florida statutes or whether the conclusion was premised in part either on provisions of the Florida Constitution regarding voter rights or on Title III of federal law. If the Florida Constitution was part of the reasoning, it would bolster the argument of the Bush lawyers that a federal constitutional question was implicated by the Florida court's action because it would suggest that the role and prerogatives of the Florida legislature were balanced against other interests. We will need to see whether the Florida court requests additional briefing or argument before deciding this question. If/when the Florida Supreme Court clarifies its opinion, the parties can seek to return to the United States Supreme Court for further proceedings there. The Supreme Court's opinion suggests that the Court may be prepared to recognize federal interests that justify a ruling on the merits, but also gives the Florida Supreme Court an opportunity to recraft an opinion in a way that reduces the justification for subsequent intervention by the U.S. Supreme Court.

Third, it is not entirely clear whether the Supreme Court's ruling frees Secretary of State Harris to enter a new certification based upon the vote tallies as of November 14. This would depend, in part, whether the Florida Supreme Court's injunction that it entered against certification while its consideration of the case was pending remains in effect.

Fourth, other than the implications for whether the contest action was commenced in a timely fashion and the demarcation of the number of votes that Gore needs to gain from the contest action, the Supreme Court's action does not directly affect any of the proceedings before Judge Sauls in Tallahassee.

Tuesday, December 5, 2000

What's going on?

On Monday, the Supreme Court of the United States vacated the ruling of the Florida Supreme Court that extended the deadline for submission of recount information and sent the case back to the Florida court for clarification. Specifically, the Supreme Court could not determine (1) whether the Florida court saw the Florida Constitution's protection of the rights of voting as circumscribing the legislature's authority under Article II of the U.S. Constitution to determine the manner of elections and (2) the role of Title 3, section 5 of the U.S. Code in the Court's decision. The Court's 7-page Opinion was "per curiam," i.e. issued on behalf of the entire Court.

The Florida Supreme Court issued an order on Monday inviting the parties to file supplemental briefs on the remand by Tuesday at 3 p.m. The Florida legislature has requested permission to submit a brief as an amicus curiae.

Circuit Judge N. Sanders Sauls ruled on Monday afternoon that the Gore team failed to carry their burden of proof to show an entitlement to a recount or other relief in the contest action. Judge Sauls did not find, from the evidence presented, any gross negligence or fraud in the balloting process, that the Gore team had shown a reasonable probability that any of the alleged problems with the voting would have altered the outcome of the election, or that the canvassing boards of Palm Beach or Miami-Dade had abused their discretion in the conduct of the manual recounts. The Florida Supreme Court will hear arguments on the Gore team's appeal on Thursday morning, with briefs due on Wednesday afternoon.

Elsewhere today, a federal district court judge will hear arguments in a suit filed by the Bush team to compel seven counties to count certain overseas military ballots that had been rejected for lacking dates.

What are the prospects for the Gore appeal of Judge Sauls' ruling?

While Judge Sauls rejection of the Gore contest was comprehensive, it did leave some slender reeds on which to build a case for appeal. First, Judge Sauls did acknowledge that the record showed "less than total accuracy" of the punchcard voting devices. While Judge Sauls ruled that these problems did not support a conclusion of a reasonable probability of a different statewide result, the Gore lawyers can argue that Judge Sauls' failure to examine the ballots themselves to get a precise sense of the magnitude of the "inaccuracy" was error. Second, the plaintiffs may argue that the "reasonable probability" standard itself sets the bar too high, and that they need only show the existence of votes illegally counted for Bush or legal votes not counted for Gore sufficient to "place in doubt the result of the election." Once that "doubt" is established, the argument goes, the step of ballot review should proceed.

Factors weakening the prospects of a successful appeal are Judge Sauls' opportunity to hear and assess the credibility of the dueling statistical experts, and his determination that the various challenges to the conduct of the recounts in the three counties lay within the discretion of local officials and that discretion was not abused. Finally, the time factor poses a substantial obstacle to a meaningful remedy from the Florida court, even if Gore were to prevail on the legal bases for an appeal.

Wednesday, December 6, 2000

What's going on?

Trial commenced in two circuit courtrooms in Tallahassee in suits brought by voters in Seminole and Martin counties raising similar allegations that elections officials impermissibly permitted Republican campaign workers to add missing information to absentee ballot applications in violation of Florida law requiring that the voter or a member of the voter's immediate family provide the required information. The plaintiffs are seeking to have all of the absentee ballots in those counties, which tallied significantly in favor of Bush, thrown out. One lawyer for the defendants accused the plaintiffs of "making a mountain out of a molehill."

Briefs were filed with the Florida Supreme Court on Wednesday in the appeal of Judge Sanders Saul's Monday ruling dismissing the Gore election contest. The court will hear oral arguments on Thursday. The court also has under consideration the remand from the United States Supreme Court seeking clarification of the grounds of the November 21 ruling.

Elsewhere today, the United States Court of Appeals for the Eleventh Circuit affirmed the denial by a federal district court of injunctions requested by the Bush campaign against then-ongoing manual recounts. The Bush lawyers argued that manual recounts conducted in some counties and not others, and the lack of standards to govern such recounts, violated constitutional guarantees of equal protection and protections of the first amendment. The appeals court affirmed primarily on the ground that the plaintiffs had not shown irreparable injury from conduct of the manual recounts and the inclusion of some of those results in the totals, noting that Governor Bush's electors have been certified the winner of Florida's elections and that the possibility that that result might be overturned by the Florida courts was only speculative at this point.

Thursday, December 7, 2000

What's going on?

Thursday saw oral argument before the Florida Supreme Court in the appeal by Vice President Gore of the ruling by Circuit Judge N. Sanders Sauls dismissing the election contest. In the one hour and ten minute argument, the justices quizzed lawyers about the authority of the court to entertain the appeal, as well as to order a further counting of the ballots. A ruling in this important case is expected on Friday. Gore sources have stated that they do not intend to seek U.S. Supreme Court review of an adverse decision.

A decision also is expected Friday in one or both of the Seminole and Martin County cases, challenging allegedly unlawful actions of election officials in allowing Republican workers to fill in missing information on absentee ballots applications. The plaintiffs are seeking to have all of the absentee ballots in those counties, which tallied significantly in favor of Bush, thrown out. The judges hearing both cases expressed skepticism about the remedy of disqualifying all of the absentee ballots.

Positioning itself to intervene in the election dispute next week, the Florida legislature will begin the preliminary portions of a special session on Friday. The legislature is poised to invoke its asserted authority under Title 3 of the United States Code to appoint electors if the state has "failed to make a choice" in the November 7 election.

Friday, December 8, 2000

What's going on?

What a difference a day makes. Vice President Gore's quest for the presidency was resuscitated again by a 4-3 ruling by the Florida Supreme Court, reversing in part Monday's decision by Judge Sanders Sauls to dismiss the Gore election contest. The majority of the Florida court held that

(1) partial results from the Miami-Dade manual recount should be included [168 or 176 net Gore votes -- the circuit court will need to figure out which],

(2) 215 net Gore votes from Palm Beach should be included, even though that recount was not completed until after the Sunday, November 26 "deadine,",

(3) the approximately 9,000 undervoted Miami-Dade ballots that were not counted when Miami-Dade suspended its recount should be tabulated immediately, and significantly

(4) all undervoted ballots in other Florida counties that have yet to be recounted now should be recounted to identify any uncounted legal votes.

In recounting ballots, the Florida Supreme Court directed that a vote should be counted as a legal vote for a candidate if there is "clear indication of the intent of the voter."

The court affirmed Judge Sauls' rejection of the Gore contest of the Nassau County results and also affirmed the rejection of Gore's claim that Palm Beach applied an improper standard to dimpled and other ballots in its recount.

Earlier on Friday afternoon, the plaintiffs lost both of the Seminole and Martin County cases challenging allegedly unlawful actions of election officials in allowing Republican workers to fill in missing information on absentee ballots applications. Judges Lewis and Clark both concluded that while there was evidence of irregularities, "[n]either the sanctity of the ballots nor the integrity of the elections has been compromised" and that the election results "reflect a full and fair expression of the will of the voters."

The Florida legislature held a special session on Friday and introduced a resolution that would appoint as electors those individuals previously certified in Governor Jeb Bush's November 26 Certificate of Ascertainment. Debate and further consideration of the resolution will take place on Monday.

The losing plaintiffs in the federal court case challenging the constitutionality of manual recounts have requested expedited review by the U.S. Supreme Court of the December 6 ruling of the 11th Circuit denying an injunction.

Why did the Florida Supreme Court reverse Judge Sauls?

First, the majority felt that Judge Sauls erred in framing his role as an appellate judge reviewing the reasonableness of the exercise of discretion by county canvassing boards. The Supreme Court's opinion emphasized that protests and contests are two separate and distinct creatures and Judge Sauls had an independent duty to consider the contest claims, rather than applying an abuse of discretion standard.

Second, Judge Sauls was found to have erred by requiring Gore to show "a reasonable probability" of a change in the results of the election. Based upon the 1999 amendments to the election contest statute, the Court said that a person contesting the election need only show that there have been legal votes cast in the election that have not been counted, and that available data on historical "recovery rate of legal votes within those undervotes" 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. In other words, when the contestant shows that the result of an election is placed in doubt, a manual recount of undervoted ballots must be undertaken.

With respect to Miami-Dade, the majority said Judge Sauls' duty was not to assess whether the county canvassing board abused its discretion in suspending its recount, but rather to determine whether legal votes were rejected sufficient to change or place in doubt the election results. The court said that that duty cannot be fulfilled without failing to examine the specific ballots that are claimed to contain the rejected legal votes.

What standard is to be used now in this further recount?

The Florida court's majority opinion says only that "the standards to be employed is [sic] 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."

How can this additional vote counting be done in time?

The court noted, "We are mindful of the fact that due to the time constraints, the count of the undervotes places demands on the public servants throughout the State to work over this week-end. However, we are confident that with the cooperation of the official in all the counties, the remaining undervotes in these counties can be accomplished [sic] within the required time frame." The court authorized Judge Sauls to be assisted by the Leon County Supervisor of Elections or its sworn designees.

In dissent, Justice Harding, believing the time and logistics to make such a task impossible, said that "[t]he circumstances of this election call to mind a quote from football coaching legend Vince Lombardi: 'We didn't lost the game, we just ran out of time.'"

Saturday, December 9, 2000

What's going on?

What a difference another day makes.

On Saturday afternoon, the Supreme Court of the United States issued an order staying the Friday decision of the Florida Supreme Court and halting the further manual recounts that began earlier in the day. Five justices (Rehnquist, Scalia, Thomas, O'Connor and Kennedy) joined in the decision. The Supreme Court also granted the petition for certiorari and agreed to hear the Bush team's new appeal on Monday at 11 a.m., with briefs to be filed on Sunday. An audio recording of the argument again will be available after its conclusion. Earlier in the day, the U.S. Court of Appeals for the Eleventh Circuit denied a request for a stay.

The Court's order treated the application for a stay as a petition for writ of certiorari. The Court granted the petition, but has not yet formally delineated the issues that it plans to address. Justice Scalia's concurrence to the stay order and grant of review noted that the Bush team had shown a "substantial probability of success." In particular, Justice Scalia's unusual comments hinted that at least he will be inclined to address the argument that a constitutional equal protection problem is presented by manual counts that apply different standards to similar ballots in different counties. The Court also is expected to return to the issue of whether the Florida court's ruling tramples upon the legislature's constitutional prerogative (Article II, section 1) to set the rules for presidential elections.

Before the most recent stay, Vice President Gore's quest for the presidency had been resuscitated again by a 4-3 ruling by the Florida Supreme Court, reversing in part Monday's decision by Judge Sanders Sauls to dismiss the Gore election contest. The majority of the Florida court held that:

• partial results from the Miami-Dade manual recount should be included in the certified totals [168 or 176 net Gore votes -- the circuit court will need to figure out which];
• 215 net Gore votes from Palm Beach should be included, even though that recount was not completed until after the Sunday, November 26 "deadine";
• the approximately 9,000 undervoted Miami-Dade ballots that were not counted when Miami-Dade suspended its recount should be tabulated immediately; and, significantly,
• all undervoted ballots in other Florida counties that have yet to be recounted now should be recounted to identify any uncounted legal votes.

In recounting ballots, the Florida Supreme Court directed that a vote should be counted as a legal vote for a candidate if there is "clear indication of the intent of the voter."

The court affirmed Judge Sauls' rejection of the Gore contest of the Nassau County results and also affirmed the rejection of Gore's claim that Palm Beach applied an improper standard to dimpled and other ballots in its recount.

Judge Sanders Sauls, to whom the contest case ordinarily would be returned, recused himself from further participation in the case. No reason for the recusal was given, and the case was reassigned to Judge Terry Lewis. Judge Lewis, in a late night hearing on Friday, set a deadline for the new manual recounts of Sunday at 2 p.m.

Also on Saturday, a federal judge rejected an effort to throw out overseas absentee ballots, including military ballots, that were not postmarked by the election as required by Florida statutes. Florida officials had accepted ballots without postmarks as long as the voter signed and dated the ballot by Election Day, in reliance on a Florida administrative regulation promulgated as part of the settlement of litigation between the state and federal governments. The judge said that the regulation was the equivalent of a federal court order, and that it was appropriate for officials to rely on its authority in accepting those ballots.

Earlier on Friday afternoon, the plaintiffs lost both of the Seminole and Martin County cases challenging allegedly unlawful actions of election officials in allowing Republican workers to fill in missing information on absentee ballots applications. Judges Lewis and Clark both concluded that while there was evidence of irregularities, "[n]either the sanctity of the ballots nor the integrity of the elections has been compromised" and that the election results "reflect a full and fair expression of the will of the voters."

The Florida legislature held a special session on Friday and introduced a resolution that would appoint as electors those individuals previously certified in Governor Jeb Bush's November 26 Certificate of Ascertainment. Debate and further consideration of the resolution will take place on Monday.

Sunday, December 10

What are the opposing Bush and Gore arguments before the Supreme Court in the new case?

Bush Point #1: The Friday ruling of the Florida Supreme Court conflicts in several respects with the existing law established by the Florida legislature to resolve election conflicts. Among the conflicts are the disregard of statutory provisions that require manual recounts to include "all" ballots, and the substitution of courts for canvassing boards in determining the validity of ballots. This violates Article II, section 1, which gives the authority to set rules to the state legislature. Gore Counterpoint #1: The Florida decision is fully consistent with Article II. The court did not make new law, but engaged in a routine exercise of construing the existing law as written by the legislature. Bush Point #2: Under the exercise of its Article II powers, the Florida Legislature gave Florida circuit courts to power to hear election contests. It gave no power to the Florida Supreme Court, and thus that court lacks jurisdiction. Gore Counterpoint #2: False. Article II assumes that the legislative authority will play out within the context of existing structures of state government. And, even if that were not the case, the Florida Legislature itself approved the provisions of the Florida Constitution that give the Supreme Court the power to hear appeals from circuit courts. So that too is honoring, and not overriding, the Legislature's own rules. Bush Point #3: The Florida ruling violates Title 3, section 5 of the U.S. Code, by depriving the state of any prospect of resolving the contest under existing rules and law. Thus, the Florida slate of electors resulting from this judicial maze will not be given "conclusive" effect before Congress. Gore Counterpoint #3: One cannot "violate" Title 3, section 5. It merely is a "safe harbor." The Florida ruling merely interpreted existing state law and thus did not deprive Florida of access to the safe harbor. Bush Point #4: The manual recount outlined by the Florida Supreme Court is arbitrary, subjective, and lacks standards. It will yield variation and inconsistencies in the treatment of identical ballots both within and across Florida counties. It betters the chance of including an "undervote" in the tally but makes no attempt to ascertain the intent of "overvoted" ballots. These new procedures are unclear and are being imposed retoractively. These problems violate the Fourteenth Amendment's Equal Protection and Due Process Clauses. Gore Counterpoint #4: There is no Fourteenth Amendment violation. A contest action relates to the ballots that are being contested, not every ballot. Undervoted ballots are the issue in this contest. The Florida court ordered a statewide recount of undervoted ballots, as the Bush team long has suggested is required if a recount is to be conducted. This, plus detailed giudelines developed by the circuit court, eliminates much of the potential for any inconsistent treatment of undervoted ballots. The "voter intent" standard is long established in Florida law. Manual recounts are expressly authorized by statute and have been used many, many times; unsubstantiated rumors of mistakes or inaccuracies are insufficient to invalidate this procedure.

Monday, December 11

What's going on?

The Supreme Court of the United States heard argument this morning on the Bush team's request for review of Friday's ruling of the Florida Spreme Court. The questioning was vigorous, with major themes of the argument being the extent to which the Florida Supreme Court interpreted existing Florida statutes versus created "new law," and the consequences of declaring a uniform "objective" standard that would clarify the "intent of the voter" standard when reviewing undervoted ballots. When asked to propose a possible standard, Bush lawyer Theodore Olson reluctantly proposed one that at a minimum required penetration of the punchcard by the stylus, while Gore advocate David Boies suggested that the standard enunciated in Texas statutes might be an appropriate one. Another of the Bush arguments -- that the Florida Supreme Court lacked jurisdiction to hear appeals from election contests -- gathered little traction. The Court did not state when a ruling should be expected.

On Monday morning, briefs were filed with the Florida Supreme Court in the appeal from the dismissal on Friday of the Seminole and Martin County absentee ballot application cases. Those cases, brought by Democratic voters, challenged allegedly unlawful actions of election officials in allowing Republican workers to fill in missing information on absentee ballots applications. Circuit Judges Lewis and Clark had both concluded that while there was evidence of irregularities, "[n]either the sanctity of the ballots nor the integrity of the elections has been compromised" and that the election results "reflect a full and fair expression of the will of the voters." The Florida Supreme Court has not decided whether to hear this appeal.

Committees in both houses of the Florida legislature approved resolutions on Monday that would appoint a slate of 25 electors pledged to Bush. The resolutions now are ripe for floor consideration, which might begin on Tuesday or Wednesday.

Tuesday, December 12

What's going on?

Today is December 12, the deadline for invocation of the federal law "safe harbor" for the resolution of election controversies. It appears that December 12 will come and go with only one slate of Florida electors certified -- that submitted by Governor Jeb Bush on November 26.

The Florida House of Representatives approved a resolution on Tuesday that would appoint a slate of 25 electors pledged to Bush. Senate consideration is expected Tuesday. Democrats in the Legislature strongly opposed the move, citing the views of several legal scholars that there is no authority for legislative appointment of electors in these circumstances.

All eyes now are focused on the U.S. Supreme Court, awaiting a ruling following yesterday's oral argument on the Bush team's request for review of Friday's ruling of the Florida Spreme Court. The questioning was vigorous, with major themes of the argument being the extent to which the Florida Supreme Court interpreted existing Florida statutes versus created "new law," and the consequences of declaring a uniform "objective" standard that would clarify the "intent of the voter" standard when reviewing undervoted ballots. When asked to propose a possible standard, Bush lawyer Theodore Olson reluctantly proposed one that at a minimum required penetration of the punchcard by the stylus, while Gore advocate David Boies suggested that the standard enunciated in Texas statutes might be an appropriate one. Another of the Bush arguments -- that the Florida Supreme Court lacked jurisdiction to hear appeals from election contests -- gathered little traction. The Court did not state when a ruling should be expected.

In perhaps one of the few recent decisions that did not catch many by surprise, the Florida Supreme Court late Monday rewrote its November 21 ruling in Palm Beach County Canvassing Board v. Harris, pursuant to the remand from the United States Supreme Court to clarify the bases of that prior decision that allowed recounts to continue through November 26. The new opinion makes it explicit that the court felt that its ruling was based solely on an interpretation of the Florida Election Code:

"Based on this Court's status as the ultimate arbiter of conflicting Florida law, we conclude that our construction of the above statutes results in the formation of no new rules of state law but rather results simply in a narrow reading and clarification of those statutes, which were enacted long before the present election took place."

Chief Justice Wells dissented from the reissued opinion, stating that it should not be issued while the new appeal is still under consideration by the U.S. Supreme Court.

On Tuesday afternoon, the Florida Supreme Court affirmed the dismissal of the Martin and Seminole County absentee ballot cases. Those cases, brought by Democratic voters, challenged allegedly unlawful actions of election officials in allowing Republican workers to fill in missing information on absentee ballots applications. Circuit Judges Lewis and Clark had both concluded that while there was evidence of irregularities, "[n]either the sanctity of the ballots nor the integrity of the elections has been compromised" and that the election results "reflect a full and fair expression of the will of the voters." This affirmance spells the end of the road for those challenges, which some felt had the potential to swing the election results back to Gore.

Also on Monday, the United States Court of Appeals for the Eleventh Circuit affirmed a lower court's rejection of an effort to throw out overseas absentee ballots, including military ballots, that were not postmarked by the election as required by Florida statutes. Florida officials had accepted ballots without postmarks as long as the voter signed and dated the ballot by Election Day, in reliance on a Florida administrative regulation promulgated as part of the settlement of litigation between the state and federal governments. In ruling in the Harris/Medina cases, the appeals court noted that the voters had submitted their ballots in compliance with instructions from Florida elections officials and that the requested remedy of ballot disqualification was inconsistent with the overall mandate of Florida law to count as many votes as possible.

What's going on? [revised 10:35 PM]

The United States Supreme Court put an end to five weeks of dramatic, precedent-setting, mach-speed litigation by reversing the Florida Supreme Court's resumption of the manual recounts of ballots. A 5-4 majority agreed that the recount process directed by the Florida court violates constitutional guarantees of equal protection. The majority of the Court concluded that there was no time to structure and undertake a proper recount.

For more FAQs, see the last version of Dean Sutin's Frequently-Asked-Questions