Let’s look at the opinions, and see what thoughts can be had about the reasoning used by the justices involved:
Majority opinion:
The majority opinion starts out by addressing one of the concerns raised by the Supreme Court of the United States. The opinion declares that the controlling law is that which was enacted by the Florida legislature prior to Nov. 7, 2000. Florida’s legislature has the power under the US Constitution to provide for the selection of electors who will choose the President and Vice-president. That this procedure can include the courts is explicitly condoned by 3 U.S.C. §5. The legislature has melded the selection of electors with the general election, applying all the same laws regarding elections in Florida to such selection. This includes the law allowing contests of elections (§102.168). The contest law allows a party to contest an election when there has been a rejection of legal votes sufficient in number to alter the outcome of the election, or place the result in doubt. In remedying such a situation, a judge can do pretty much anything necessary. Florida law has long included the idea of recounting votes as a remedy for improper vote tallies.
To this point, they seem to be on pretty solid ground. They have advised the Supreme Court of the US that the state legislature does allow them to be involved in the process of selecting electors through judicial review of the results of the election. The contest law allows the judge to recount votes whenever there have been enough valid ballots rejected that the outcome of the election is in doubt. All this is just pointing to actual statutes, without the need to even ‘interpret’ the language therein.
The opinion next addresses the question of what standard of review the judge should have used. It notes that a contest under §102.168 is not the same as a ‘protest’ under §102.166. In a protest, the county canvassing board is just a neutral fact finder. Although the opinion doesn’t say this, one must assume that in a protest proceding, the determinations of the canvassing board are given great weight, resulting in the judge upholding them absent ‘abuse of discretion.’ The opinion then states, without citation to a single opinion or relevant statute, that in a contest proceding, the ‘abuse of discretion’ standard does not apply. Since Judge Sauls used such a standard, he erred.
Is this a valid conclusion by the Florida Supreme Court? They cite no authority for this conclusion, despite citing authority for every other statement of law made in this section of the opinion. Possibly it means there is no relevant case law. Chief Justice Wells thought otherwise, citing a Florida 4th District Court of Appeals case, Broward County Canvassing Board v. Hogan, 607 So. 2d 508 (Fla. 4th DCA 1992). But this is a lower level court, and its determinations are not controlling on the Florida Supreme Court. Still they do seem to be making an assertion without offering much explanation WHY they are right.
However, the reasoning of the majority seems sound. When you protest an election, that is, assert that the numbers are incorrectly tabulated and need to be recounted before any certification occurs, the local canvassing board isn’t being impugned by the request. Indeed, you don’t have to have any specific reason for protesting the count of an election under §102.166. But when you contest under §120.168, you are actually making an assertion that the canvassing board got it wrong. If the canvassing board’s determinations made prior to the filing of the contest were to be given great weight, then the court would be letting the very people accused of getting it wrong control whether their determination should be overturned; it may be the very reason the local canvassing board made its determination that is the reason the contest is filed. Indeed, on this issue two of the minority justices agree; only the Chief Justice thinks ‘abuse of discretion’ is the appropriate standard. He probably is incorrect, both as a practical matter, and as a matter of law.
Next the opinion establishes that the trial judge is allowed to count only a portion of the ballots as a remedy under §102.168. This seems to me putting the cart before the horse, that is, they haven’t even decided if there SHOULD be a remedy. But the analysis is impeccable; for my refutation of the contrary assertion in the dissenting opinion(s) see below. Basically, §102.168 lets a judge fashion just about any remedy he thinks necessary to resolve the issue brought by the contest. And you will note that they understood the fact that you can’t just contest specific counties in a general state-wide election, so the ‘undervotes’ in the entire state must be counted if the remedy of a selective count is to be properly applied.
As a quick side note, the opinion also at this point addresses the other question from the Supreme Court of the US: does the Florida Constitution govern the selection of electors? The opinion asserts that it does, in the sense that the legislature established one method for elections in Florida, including the selection of electors, and that method is controlled by the Florida Constitution’s mandates about the ‘will of the people’. I think here they are trying to kill two birds with one stone; the language here appears irrelevant to the decision the court is making.
Finally, in looking at what the trial court did, the opinion notes that the plain language of §102.168, as amended in 1999, allows a successful contest if the plaintiff shows that the outcome of the election was placed ‘in doubt’ by the rejection of ‘legal votes.’ Judge Sauls relied upon case law that existed prior to the amendment in 1999 to the statute in establishing that the plaintiff had to show that there was reasonable probability that the result would be different. I concur with the majority here, especially since the determination of Judge Sauls on this issue is at variance with the language of the Florida Supreme Court in Beckstrom v. Volusia County Canvassing Board, 707 So.2d 720 (1998), where the court said the words ‘reasonable doubt’ was enough to overturn an election where there was substantial noncompliance with election law.
The opinion next decides that the language in §102.168(3)© regarding the ‘rejection of legal votes’ includes ballots which include a ‘clear indication of the intent of the voter’ and which have not previously been tabulated by voting machines. In this, there is little to argue. Florida’s law does apparently state that ballots should be recorded as having a vote when there is ‘clear indication of the intent of the voer’, see §101.5614. Interestingly, no one has pointed out that it is apparently the county canvassing board’s duty under that section to make SURE that an ‘undervote’ is actually an undervote before certifying ANY result of an election to the state. YIKES! Further, to assert that a ballot with such ‘clear indication’ is not ‘rejected’ if the canvassing board doesn’t tally such ‘clear indication’ becacuse it doesn’t record on the machines is stretching interpretation to the breaking point. The scheme is clear: count all ‘clear indications’ and if you don’t, and it might change the outcome, you can be ordered to count them.
After establishing the law, the opinion looks at the claims regarding the decisions of each contested county action. As I long ago noted, the decision of the Dade County board not to manually recount the ballots was the hardest to justify legally, especially since they had already made the determination under §102.166 after a sample canvassing of precincts that the manual recount should procede. I might note that the Florida 3rd District Court of Appeal agreed with me on this specific point, see the citation of the opinion at page 30 to Miami-Dade County Democratic Party v. Miami-Dade County Canvassing Board, 25 Fla. L. Weekly D2723 (Fla. 3d DCA Nov. 22, 2000). In any event, as the opinion notes, the lower court was bound to order some remedy if it determined that the plaintiffs had established a ‘reasonable doubt’ about the outcome of the election as a result of the rejected ballots. Since the court refused to even determine IF there were ballots with ‘clear indication’ of voter intent among the rejected ballots, it erred in not ordering a tally of these ballots.
This does get a bit problematical, but I think it has more to do with poor writing of the opinion than poor reasoning. I keep in mind when reading this thing that not only is there no official ‘author’ of this opinion, meaning it was cobbled together from many sources, but the second dissent has elements in it that show it was written before the final version of the majority opinion was established. It makes for a very poor effort at written decisional law.
Dade County started a manual recount. It counted 22% of its precincts, covering 15% of the voters in the county. This all was in evidence. In that much recount, there was a net gain for Mr. Gore of 168 votes. Included in this manual tabulation were roughly 1700 of the 10,750 ‘undervoted’ ballots in the county. Thus, we have a gain from the ballots tabulated of 168 votes, when the statewide result seperates the two contestants by fewer than 1000 votes. When applying the ‘reasonable doubt’ about the election result standard, this, combined with the results in other counties, certainly supports a valid ‘contest’, requiring a remedy, under the analysis of the court to this point.
Indeed, although the opinion continues to seperate the issues on a county by county basis, it should be emphasized that the results of any given county are only evidence of the overall claim, that is, that the State of Florida may not have selected electors pledged to vote for Mr. Bush because legal votes for electors pledged to Mr. Gore were rejected. The results in the various counties have to be looked at in aggregation, if the state has properly determined that the contest is a state-wide issue.
Next, the opinion supports the trial court’s determination that the Palm Beach County Canvassing Board properly rejected 3,300 ballots because they did not express a ‘clear intent’. Here, the trial court’s determination was correct because even if the wrong standard was applied by the trial court, under the right standard there was no evidence that the rejected ballots included ballots that contained legal votes; the only evidence on the subject was the determination of the canvassing board that they did not.
Which, of course, flies in the face of the admonition from the majority opinion that the judge should have looked at the Dade County ballots to determine whether legal votes were rejected. Palm Beach County used different standards for determining ‘clear intent’ than did other counties. Plaintiffs are alleging that the standard used was incorrect. If the trial court has this issue before it de novo, it can’t use the determination of the board as conclusive or even presumptively correct evidence. In light of evidence showing that the standard in other counties was different, and in light of the fact that the rejected ballots themselves were never looked at, this seems no different than the issue in Dade County.
Now, the opinion begins to get really problematic. First, it asserts that the results of the Palm Beach County manual recount should have been accepted by the state Elections Canvassing Commission, despite the fact that the Florida Supreme Court itself said they were NOT to be included in the certified totals. Thus, to take this logic to its conclusion, the state should have certified the result of an election, then accepted subsequent totals showing that the certification was in error as part of the ‘official’ figures. Then, the opinion appears to hold that the ballots in Palm Beach County don’t have to be reviewed at all, but that the reported result of that county’s manual recount must be accepted by the trial court, yet the uncounted, undervoted ballots in Dade County DO have to be tallied, and ONLY the uncounted, undervoted ballots. Finally, without ANY reference to the evidence before the trial court, the opinion dismisses any claim that the canvassing board in Nassau County did anything wrong.
All of which misses the essential holding of the opinion: that the trial court is being required to determine what ballots have rejected legal votes and tally those votes. Having made this determination, the Supreme Court of Florida should have simply ended its discussion. If the trial court decided that this could be done by the canvassing boards, according to their own interpretations of ‘clear intent’, then the judge would be free to accept the Palm Beach County results, order Dade County to review any undervoted ballot so far unreviewed, and deal with Nassau County as he saw fit. In so doing, the trial judge could give guidelines on what would constitute ‘clear intent’ with manually punched card ballots, which might, for instance, force Broward County to recount their ballots with a stricter standard. But instead, the Florida Supreme Court, having asserted that this is a statewide election, starts piecemealing the issues and ignores the concept of a statewide result, and in addition begins to fashion orders not necessary to the result of the primary holding: find the rejected legal votes and count them.
As it finished up, the opinion properly rejected the ‘time is of the essence’ arguement in ordering the identification and tallying of rejected legal votes. To address this, I’ll turn to Chief Justice Harris’ dissenting opinion.
The Chief Justice Dissents:
This opinion starts out with fundamental statements that show the CJ doesn’t like the fact that election is still at issue. In analyzing the law, though, we come first to his assertion that the courts shouldn’t make it their business to get involved in elections. This is a swipe at the majority’s assertion the legislature designated the courts to resolve contested elections. But the CJ’s assertion is undercut by numerous examples where the Florida Supreme Court HAS gotten involved, whether fraud was involved or not. Indeed, Beckstrom is a classic example.
Next, the CJ attempts to assert that the trial court should give great deference to the canvassing boards, reviewing them under an abuse of discretion approach. In this, he is the only one of seven justices who so thinks, and in this his only support is a lower court decision. His own analysis seems to be that, if you don’t do it this way, you might end up with multiple recounts. This of course ignores the legal issues here, favoring his favorite theme of the opinion, that it isn’t being practical.
Next, the CJ engages in a classic bit of legal hair-splitting. He asserts that the grounds upon which a contest can be filed are not the grounds upon which it can be upheld. Specifically, just because the plaintiff has to allege that the election is placed in doubt doesn’t mean he can be successful by proving that; he should be forced to prove that the result would have been different. Says, the CJ, “It is illogical to interpret section
102.168(3)© to set such a low standard where a plaintiff merely has to allege a cause of action to successfully carry the contest.” This is stupid. Even the CJ knows that merely alleging something isn’t proving it, but that the BURDEN of proof may well be established by what the statute allows for a cause of action. Here, plaintiff must plead AND prove that there were sufficient rejected legal votes to place the result in doubt. His level of proof is still more than a simple allegation and here it was amply met by the actual evidence proffered. Either the CJ is confused, stupid, or simply trying to muddy the waters.
But in the next paragraph the CJ comes close to the heart of the most valid reason to think the majority got it wrong. What the majority did is read the amendment to §102.168 as allowing a successful contest in order to determine who actually won the election. Prior to the amendment, it can be argued that a contest, to be successful, had to show that the election actually WAS won by a different party. What the CJ fails to do is attack this legal determination by the majority, for here is the REAL issue central to the result: Should the issue of ‘counting’ be totally a ‘protest’ issue, or should it be a ‘contest’ issue as well? The majority said ‘contest’ issue; the CJ after raising the contrary thought fails to really grasp what he is saying and blunders back into his wilderness of misconception that a pleading is not evidence. Oh well.
Then, the CJ notes that the ‘dimpled chad’ issue is going to cause problems. Of course, he once again makes a poor analysis of this. His reference to the concept of creating duplicate ballots where the card is defective or damaged has no relevance to the proceding at hand. Then he raises equal protection issues regarding multiple standards statewide on what is a ‘clear intent’ to vote, but fails to follow through by showing whether this really DOES violate the equal protection clause of the 14th Amendment. “OOOOOH, we are scared,” says the majority. Why, for goodness sake, NOT set forth some simple 14th Amendment analysis??
Using the ‘abuse of discretion’ standard, the CJ then finds that the judge got the contested determinations of the boards in Dade County, Palm Beach County and the Elections Canvassing Commission correct. In this, his analysis is faultless, especially his pointed chastisment of the majority for ignoring the concept that Palm Beach County’s results were late by the rule the Florida Supreme Court itself set. Of course, again, this confuses the ‘contest’ with the ‘protest’, but, by now, this is so common on the part of both the majority and the CJ we almost expect it.
Then, the CJ rejects the determination of the majority that the legislature has delegated under the contest statute the proper counting of votes. His analysis here is incomplete. It appears to hinge on the assumption that the only proper counter of votes is the canvassing board, and they should be given great deference in their determinations (a scheme which, by his OWN ADMISSION, might violate the 14th amendment…). Again, we are back to the issue of standard of review, with nothing new here. IF a judge under a contest can review the issue de novo, then the recount of votes is not improper; if the judge must review the issue under abuse of discretion standards, then it probably is improper.
Finally, the CJ raises the specter of practical mayhem. In short, he says that the courts should bow out because they are not allowing a speedy resolution. This is simply bad law. The courts exist to get a thing right, not to remedy only those things that they can speedily resolve. While the federal scheme of the election puts some time-pressure on the issue, the fact that everyone wants a final decision isn’t enough to avoid doing what the law requires. The CJ should know better.
The ‘Other’ Minority Opinion:
I will state for the record: THIS IS NOT A MINORITY OPINION.
First, the opinion, in FAR greater clarity, establishes that Judge Sauls blew it in reviewing under an ‘abuse of discretion’ standard. READ this to understand why, cause the opinion does a good job here.
But then the opinion makes the same error that CJ Harris made. It determines that there is insufficient evidence that the statewide result would be different. In so doing, it fails to apply the very standard it asserts Judge Sauls should use: evidence that the statewide result MIGHT be different. It DOES, however, avoid the pitfall of both the majority and the CJ in failing to understand that the whole state has to be the focus of the contest, and the results in individual counties are only evidence of what might happen. One presumes the author here is looking for a statistical analysis that shows that the results in the Democratic counties wouldn’t be offset by a pick up of votes for electors pledged to Mr. Bush in heavily Republican counties. Still, with a showing that the votes already tabulated under the standard mandated by the legislature from among the statewide subset to be tabulated narrows the gap by almost a third, I’d have to say the result is enough to put the election at doubt.
And the reason the author blows it is shown by what follows: the author didn’t know the majority was going to order a statewide tabulation of the ‘undervote’. Indeed, he assumes it impossible to accomplish that remedy in a timely fashion. So is the author concluding that the lack of an available remedy is sufficient reason not to grant what the plaintiffs are asking? And is he really dissenting with the majority, or is he simply confused what the majority was going to do, and didn’t feel comfortable ordering what they eventually did order, but didn’t have time to change his opinion? We may never know.
In sum, then, was the majority wrong? Not really, at least, not in its basic analysis and underlying holding. But as it did in the first opinion it issued, it then wandered off into unfortunate waters, apparently unable to do the simple task of saying: you were wrong, here is how to get it right, now do it. But the minority opinions don’t adequately explain how the majority should have analyzed the basic issues, with the narrow exception of the attempt of the second opinion to establish that there was not sufficient evidence of reasonable doubt about the result statewide, analysis which was at least in part based on a faulty standard that conflicted with its own statements to that point.
