ALBERT GORE, JR., and JOSEPH I. LIEBERMAN,
Appellants,

vs.

KATHERINE HARRIS, as Secretary, etc., et al.,
Appellees.

[December 8, 2000]
 

(NOTE:  This is an abridged version, including selections from the arguments,
and pertinent footnotes included in sequence)
 

(Jump to conclusion)
(Jump to dissents)

For the reasons stated in this opinion, we find that the trial court erred as a
matter of law in not including (1) the 215 net votes for Gore identified by the Palm
Beach County Canvassing Board 6 and (2) in not including the 168 net votes for
Gore identified in a partial recount by the Miami-Dade County Canvassing Board.
However, we find no error in the trial court's findings, which are mixed questions
of law and fact, concerning (3) the Nassau County Canvassing Board and the (4)
additional 3300 votes in Palm Beach County that the Canvassing Board did not
find to be legal votes. Lastly, we find the trial court erred as a matter of law in (5)
refusing to examine the approximately 9000 additional Miami-Dade ballots placed
in evidence, which have never been examined manually.

II. APPLICABLE LAW

Article II, section I, clause 2 of the United States Constitution, grants the
authority to select presidential electors "in such Manner as the Legislature thereof
may direct." The Legislature of this State has placed the decision for election of
President of the United States, as well as every other elected office, in the citizens
of this State through a statutory scheme. These statutes established by the
Legislature govern our decision today. We consider these statutes cognizant of the
federal grant of authority derived from the United States Constitution and derived
from 3 U.S.C. § 5 (1994) entitled "Determination of controversy as to appointment
of electors.” That section provides:

If any State shall have provided, by laws enacted prior to
the day fixed for the appointment of the electors, for its
final determination of any controversy or contest
concerning the appointment of all or any of the electors
of such State, by judicial or other methods or procedures,
and such determination shall have been made at least six
days before the time fixed for the meeting of the electors,
such determination made pursuant to such law so
existing on said day, and made at least six days prior to
said time of meeting of the electors, shall be conclusive,
and shall govern in the counting of the electoral votes as
provided in the Constitution, and as hereinafter
regulated, so far as the ascertainment of the electors
appointed by such State is concerned.

This case today is controlled by the language set forth by the Legislature in
section 102.168, Florida Statutes (2000). Indeed, an important part of the
statutory election scheme is the State’s provision for a contest process, section
102.168, which laws were enacted by the Legislature prior to the 2000 election.

(In a substantial and dramatic change of position after oral argument in this case, Bush
contends in his "Motion for Leave To File Clarification of Argument" that section 102.168
cannot apply in the context of a presidential election. However, this position is in stark contrast
to his position both in this case and in the prior appeal. In fact, in Oral Argument on December
7, 2000, counsel for Bush agreed that the contest provisions contained in the Florida Election
Code have placed such proceedings within the arena for judicial determination, which includes
the established procedures for appellate review of circuit court determinations.)

Although courts are, and should be, reluctant to interject themselves in essentially
political controversies, the Legislature has directed in section 102.168 that an
election contest shall be resolved in a judicial forum.  See § 102.168 (providing
that election contests not pertaining to either house of the Legislature may be
contested “in the circuit court”).

In carefully construing the contest statute, no single statutory provision will
be construed in such a way as to render meaningless or absurd any other statutory
provision. See Amente v. Newman, 653 So. 2d 1030, 1032 (Fla. 1995).

In interpreting the various statutory components of the State’s election process, then,
a common-sense approach is required, so that the purpose of the statute is to give
effect to the legislative directions ensuring that the right to vote will not be
frustrated.  Cf. Firestone v. News-Press Pub. Co., 538 So. 2d 457, 460 (Fla. 1989)
 
Section 102.168(2) sets forth the procedures that must be followed in a
contest proceeding, providing that the contestant file a complaint in the circuit
court within ten days after certification of the election returns or five days after
certification following a protest pursuant to section 102.166(1), Florida Statutes
(2000), whichever occurs later. Section 102.168(3) outlines the grounds for
contesting an election, and includes: "Receipt of a number of illegal votes or
rejection of a number of legal votes sufficient to change or place in doubt the
result of the election." § 102.168(3)(c) (emphasis added). Finally, section
102.168(8) authorizes the circuit court judge to "fashion such orders as he or she
deems necessary to ensure that each allegation in the complaint is investigated,
examined, or checked, to prevent or correct any alleged wrong, and to provide any
relief appropriate under the circumstances."

(The following language of section 102.168, Florida Statutes was changed in 1999:

(3) ... The grounds for contesting an election under this section are:

(a) Misconduct, fraud, or corruption on the part of any election official or any
member of the canvassing board sufficient to change or place in doubt the result
of the election.

(b) Ineligibility of the successful candidate for the nomination or office in
dispute.

(c) Receipt of a number of illegal votes or rejection of a number of legal votes
sufficient to change or place in doubt the result of the election.)

(8) The circuit judge to whom the contest is presented may fashion such orders
as he or she deems necessary to ensure that each allegation in the complaint is
investigated, examined, or checked, to prevent or correct any alleged wrong, and
to provide any relief appropriate under such circumstances.

Although the right to contest an election is created by statute, it has been a
long-standing right since 1845 when the first election contest statute was enacted.
See ch. 38, art. 10, §§ 7-9 Laws of Fla. (1845).

The Staff Analysis of the 1999 legislative amendment expressly
endorses this important principle. Similarly, the
Florida House of Representatives Committee on Election Reform 1997 Interim
Project on Election Contests and Recounts expressly declared:

Recounts are an integral part of the election
process. For one's vote, when cast, to be translated into a
true message, that vote must be accurately counted, and
if necessary, recounted. The moment an individual's
vote becomes subject to error in the vote tabulation
process, the easier it is for that vote to be diluted.

Furthermore, with voting statistics tracing a
decline in voter turnout and in increase in public
skepticism, every effort should be made to ensure the
integrity of the electoral process.

Integrity is particularly crucial at the tabulation
stage because many elections occur in extremely
competitive jurisdictions, where very close election
results are always possible. In addition, voters and the
media expect rapid and accurate tabulation of election
returns, regardless of whether the election is close or one
sided. Nonetheless, when large numbers of votes are to
be counted, it can be expected that some error will occur
in tabulation or in canvassing.

It is with the recognition of these legislative realities
and abiding principles that we address whether the trial court made errors of law in
rendering its decision.

III. ORDER ON REVIEW

A. The Trial Court’s Standard of Review

The Florida Election Code sets forth a two-pronged system for challenging
vote returns and election procedures. The “protest” and “contest” provisions are
distinct proceedings. A protest proceeding is filed with the County Canvassing
Board and addresses the validity of the vote returns. The relief that may be
granted includes a manual recount. The Canvassing Board is a neutral ministerial
body.   See Morse v. Dade County Canvassing Board, 456 So. 2d 1314 (Fla. 3d
DCA 1984).

A contest proceeding, on the other hand, is filed in circuit court and
addresses the validity of the election itself. Relief that may be granted is varied
and can be extensive. No appellate relationship exists between a “protest” and a
“contest”; a protest is not a prerequisite for a contest.   Cf. Flack v. Carter, 392 So.
2d 37 (Fla. 1st DCA 1980) (holding that an election protest under section 102.166
was not a condition precedent to an election contest under section 102.168).

Moreover, the trial court in the contest action does not sit as an appellate court
over the decisions of the Canvassing Board. Accordingly, while the Board's
actions concerning the elections process may constitute evidence in a contest
proceeding, the Board's decisions are not to be accorded the highly deferential
“abuse of discretion” standard of review during a contest proceeding.
In the present case, the trial court erroneously applied an appellate abuse of
discretion standard to the Boards’ decisions. The trial court’s oral order reads in
relevant part:

The local boards have been given broad discretion
which no Court may overrule, absent a clear abuse of
discretion.

Gore v. Harris, No. 00-2808 (Fla. 2d Cir. Ct. Dec. 4, 2000) (Proceedings at 10).

The trial court further noted: “The court further finds that the Dade Canvassing
Board did not abuse its discretion. . . . The Palm Beach County Board did not
abuse its discretion in its review and recounting process.”  In applying the abuse
of discretion standard of review to the Boards’ actions, the trial court relinquished
an improper degree of its own authority to the Boards. This was error.

B. Must all the Ballots be Counted Statewide?

Appellees contend that even if a count of the undervotes in Miami-Dade
were appropriate, section 102.168, Florida Statutes (2000), requires a count of all
votes in Miami-Dade County and the entire state as opposed to a selected number
of votes challenged. However, the plain language of section 102.168 refutes
Appellees' argument.

Section 102.168(2) sets forth the procedures that must be followed in a
contest proceeding, providing that the contestant file a complaint in the circuit
court within ten days after certification of the election returns or five days after
certification following a protest pursuant to section 102.166(1), whichever occurs
later. Section 102.168(3) outlines the grounds for contesting an election, and
includes: "Receipt of a number of illegal votes or rejection of a number of legal
votes sufficient to change or place in doubt the result of the election." §
102.168(3)(c).

Finally, section 102.168(8) authorizes the circuit court judge to
"fashion such orders as he . . . deems necessary to ensure that each
allegation in the complaint is investigated, examined, or checked, to prevent or
correct any alleged wrong, and to provide any relief appropriate under the
circumstances."

As explained above, section 102.168(3)(c) explicitly contemplates contests
based upon a "rejection of a number of legal votes sufficient to change the
outcome of an election." Logic dictates that to bring a challenge based upon the
rejection of a specific number of legal votes under section 102.168(3)(c), the
contestant must establish the "number of legal votes" which the county canvassing
board failed to count. This number, therefore, under the plain language of the
statute, is limited to the votes identified and challenged under section
102.168(3)(c), rather than the entire county. Moreover, counting uncontested
votes in a contest would be irrelevant to a determination of whether certain
uncounted votes constitute legal votes that have been rejected. On the other hand,
a consideration of “legal votes” contained in the category of “undervotes”
identified statewide may be properly considered as evidence in the contest
proceedings and, more importantly, in fashioning any relief.

We do agree, however, that it is absolutely essential in this proceeding and
to any final decision, that a manual recount be conducted for all legal votes in this
State, not only in Miami-Dade County, but in all Florida counties where there was
an undervote, and, hence a concern that not every citizen’s vote was counted. This
election should be determined by a careful examination of the votes of Florida’s
citizens and not by strategies extraneous to the voting process. This essential
principle, that the outcome of elections be determined by the will of the voters,
forms the foundation of the election code enacted by the Florida Legislature and
has been consistently applied by this Court in resolving elections disputes.

We are dealing with the essence of the structure of our democratic society;
with the interrelationship, within that framework, between the United States
Constitution and the statutory scheme established pursuant to that authority by the
Florida Legislature. Pursuant to the authority extended by the United States
Constitution, in section 103.011, Florida Statutes (2000), the Legislature has
expressly vested in the citizens of the State of Florida the right to select the
electors for President and Vice President of the United States:

Electors of President and Vice President, known as
presidential electors, shall be elected on the first Tuesday
after the first Monday in November of each year the
number of which is a multiple of 4. Votes cast for the
actual candidates for President and Vice President shall
be counted as votes cast for the presidential electors
supporting such candidates. The Department of State
shall certify as elected the presidential electors of the
candidates for President and Vice President who receive
the highest number of votes.

In so doing, the Legislature has placed the election of presidential electors
squarely in the hands of Florida’s voters under the general election laws of
Florida.

(The Legislature has not, beyond granting to Florida’s voters the right to
select presidential electors, indicated in any way that it intended that a different (and unstated) set
of election rules should apply to the selection of presidential electors. Of course, because the
selection and participation of Florida’s electors in the presidential election process is subject to a
stringent calendar controlled by federal law, the Florida election law scheme must yield in the
event of a conflict.)

Hence, the Legislature has expressly recognized the will of the people
of Florida as the guiding principle for the selection of all elected officials in the
State of Florida, whether they be county commissioners or presidential electors.
When an election contest is filed under section 102.168, Florida Statutes
(2000), the contest statute charges trial courts to:

fashion such orders as he or she deems necessary to
ensure that each allegation in the complaint is
investigated, examined, or checked, to prevent or correct
any alleged wrong, and to provide any relief appropriate
under such circumstances.

Through this statute, the Legislature has granted trial courts
broad authority to resolve election disputes and fashion appropriate relief. In turn,
this Court, consistent with legislative policy, has pointed to the “will of the voters”
as the primary guiding principle to be utilized by trial courts in resolving election
contests:

[T]he real parties in interest here, not in the legal sense
but in realistic terms, are the voters. They are possessed
of the ultimate interest and it is they whom we must give
primary consideration. The contestants have direct
interests certainly, but the office they seek is one of high
public service and of utmost importance to the people,
thus subordinating their interests to that of the people.
Ours is a government of, by and for the people. Our
federal and state constitutions guarantee the right of the
people to take an active part in the process of that
government, which for most of our citizens means
participation via the election process. The right to vote
is the right to participate; it is also the right to speak, but
more importantly the right to be heard.

Boardman v. Esteva, 323 So. 2d 259, 263 (Fla. 1975)

For example, the Legislature has mandated that no vote shall be ignored “if there is a
clear indication of the intent of the voter” on the ballot, unless it is “impossible to
determine the elector’s choice . . . .” § 101.5614(5)-(6) Fla. Stat. (2000). Section
102.166(7), Florida Statutes (2000), also provides that the focus of any manual
examination of a ballot shall be to determine the voter’s intent. The clear message
from this legislative policy is that every citizen’s vote be counted whenever
possible, whether in an election for a local commissioner or an election for
President of the United States.

(In the election contest at issue here, this Court can do no more than see that every
citizen’s vote be counted. But it can do no less.)

The demonstrated problem of not counting legal votes inures to any county
utilizing a counting system which results in undervotes and “no registered vote”
ballots. In a countywide election, one would not simply examine such categories
of ballots from a single precinct to insure the reliability and integrity of the
countywide vote. Similarly, in this statewide election, review should not be
limited to less than all counties whose tabulation has resulted in such categories of
ballots. Relief would not be “appropriate under [the] circumstances” if it failed to
address the “otherwise valid exercise of the right of a citizen to vote” of all those
citizens of this State who, being similarly situated, have had their legal votes
rejected. This is particularly important in a Presidential election, which implicates
both State and uniquely important national interests. The contestant here satisfied
the threshold requirement by demonstrating that, upon consideration of the
thousands of undervote or “no registered vote” ballots presented, the number of
legal votes therein were sufficient to at least place in doubt the result of the
election. However, a final decision as to the result of the statewide election should
only be determined upon consideration of the legal votes contained within the
undervote or “no registered vote” ballots of all Florida counties, as well as the
legal votes already tabulated.

C. The Plaintiff’s Burden of Proof

It is immediately apparent, in reviewing the trial court’s ruling here, that the
trial court failed to apply the statutory standard and instead applied an improper
standard in determining the contestant’s burden under the contest statute.
The trial court began its analysis by stating:

[I]t is well established and reflected in the opinion
of Judge Joanos and Smith v. Tine [sic],

(Smith v. Tynes, 412 So. 2d 925 (Fla. 1st DCA1982))

that in order to contest election results under Section 102.168 of the
Florida Statutes, the Plaintiff must show that, but for the
irregularity, or inaccuracy claimed, the result of the
election would have been different, and he or she would
have been the winner.

It is not enough to show a reasonable possibility that
election results could have been altered by such irregularities,
or inaccuracies, rather, a reasonable probability that the results
of the election would have been changed must be shown.
In this case, there is no credible statistical evidence, and
no other competent substantial evidence to establish by a
preponderance of a reasonable probability that the results of the
statewide election in the State of Florida would be different
from the result which has been certified by the State Elections
Canvassing Commission.

This analysis overlooks and fails to recognize the specific and material
changes to the statute which the Legislature made in 1999 that control these
proceedings. While the earlier version, like the current version, provided that a
contestant shall file a complaint setting forth “the grounds on which the contestant
intends to establish his or her right to such office or set aside the result of the
election,” the prior version did not specifically enumerate the “grounds for
contesting an election under this section.” Those grounds, as contained in the
1999 statute, now explicitly include, in subsection (c), the “[r]eceipt of a number
of illegal votes or rejection of a number of legal votes sufficient to change or place
in doubt the result of the election.”

Here, there has been an undisputed showing of the existence of some
9,000 “under votes” in an election contest decided by a margin measured in the
hundreds. Thus, a threshold contest showing that the result of an election has been
placed in doubt, warranting a manual count of all undervotes or “no vote
registered” ballots, has been made.

LEGAL VOTES

Having first identified the proper standard of review, we turn now to the
allegations of the complaint filed in this election contest. To test the sufficiency of
those allegations and the proof, it is essential to understand what, under Florida
law, may constitute a “legal vote,” and what constitutes rejection of such vote.
Section 101.5614(5), Florida Statutes (2000), provides that "[n]o vote shall
be declared invalid or void if there is a clear indication of the intent of the voter as
determined by the canvassing board.” Section 101.5614(6) provides, conversely,
that any vote in which the board cannot discern the intent of the voter must be
discarded. Lastly, section 102.166(7)(b) provides that, "[i]f a counting team is
unable to determine a voter's intent in casting a ballot, the ballot shall be presented
to the county canvassing board for it to determine the voter's intent.” This
legislative emphasis on discerning the voter’s intent is mirrored in the case law of
this State, and in that of other states.

This Court has repeatedly held, in accordance with the statutory law of this
State, that so long as the voter's intent may be discerned from the ballot, the vote
constitutes a "legal vote" that should be counted.  See McAlpin v. State ex rel.
Avriett, 155 Fla. 33, 19 So. 2d 420 (1944); see also State ex rel. Peacock v. Latham,
25 Fla. 69, 70, 169 So. 597, 598 (1936)

As the State has moved toward electronic voting, nothing in this
evolution has diminished the longstanding case law and statutory law that the
intent of the voter is of paramount concern and should always be given effect if
the intent can be determined.  Cf. Boardman v. Esteva, 323 So. 2d 259 (Fla. 1975),
cert. denied, 425 U.S. 967 (1976) (recognizing the overarching principle that,
where voters do all that statutes require them to do, they should not be
disfranchised solely because of failure of election officials to follow directory
statutes).

Accordingly, we conclude that a legal vote is one in which there is a "clear
indication of the intent of the voter."

THIS CASE

Specifically as to Miami-Dade County, the trial court found:

[A]lthough the record shows voter error, and/or,
less than total accuracy, in regard to the punchcard
voting devices utilized in Miami-Dade and Palm Beach
Counties, which these counties have been aware of for
many years, these balloting and counting problems
cannot support or effect any recounting necessity with
respect to Miami-Dade County, absent the establishment
of a reasonable probability that the statewide election
result would be different, which has not been established
in this case.

The Court further finds that the Dade Canvassing
Board did not abuse its discretion in any of its decisions
in its review in recounting processes.

This statement is incorrect as a matter of law. In fact, as the Third District
determined in Miami-Dade County Democratic Party v. Miami-Dade County
Canvassing Board, 25 Fla. L. Weekly D2723 (Fla. 3d DCA Nov. 22, 2000), the
results of the sample manual recount and the actual commencement of the full
manual recount triggered the Canvassing Board's "mandatory obligation to recount
all of the ballots in the county." In addition, the circuit court was bound at the
time it ruled to follow this appellate decision. This Court has determined the
decisions of the district courts of appeal represent the law of this State unless and
until they are overruled by this Court, and therefore, in the absence of interdistrict
conflict, district court decisions bind all Florida trial courts. See Pardo v. State,
596 So.2d 665, 666 (Fla. 1992).

Without ever examining or investigating the ballots that the machine failed
to register as a vote, the trial court in this case concluded that there was no
probability of a different result. First, as we stated the trial court erred as a
matter of law in utilizing the wrong standard. Second, and more importantly,
by failing to examine the specifically identified group of uncounted ballots
that is claimed to contain the rejected legal votes, the trial court has refused
to address the issue presented. Appellants have also been denied the very
evidence that they have relied on to establish their ultimate entitlement to relief.

(The Miami-Dade Canvassing Board stated as its reasons that it stopped an ongoing
manual recount because it determined that it could not meet this Court's certification deadline.
However, nothing in this Court's prior opinion nor the statutory scheme governing manual
recounts would have prevented the Board from continuing after certification the manual recount
that it had properly started.)

The trial court has presented the plaintiffs with the ultimate Catch-22,
acceptance of the only evidence that will resolve the issue but a refusal to examine
such evidence. We also note that whether or not the Board could have completed
the manual recount by November 26, 2000, or whether the Board should have
fulfilled its responsibility and completed the full manual recount it commenced,
the fact remains that the manual recount was not completed through no fault of the
Appellant.

(On Thanksgiving Day, November 23, 2000, an Emergency Petition for Writ for
Mandamus was filed in which Gore sought to compel the Miami-Dade Canvassing Board to
continue with the manual recount. Although we denied relief on that same day, in our order
denying this relief, the Court specifically stated that the denial was "without prejudice to any
party raising any issue presented in the writ in any future proceeding." Accordingly, at the time
that we denied mandamus relief we clearly contemplated that this claim could be raised in a
contest action.)

3300 VOTES IN PALM BEACH COUNTY

Appellants also contend that the trial court erred in finding that they failed
to satisfy their burden of proof with respect to the 3,300 votes that the Palm Beach
County Canvassing Board reviewed and concluded did not constitute "legal votes"
pursuant to section 102.168(3)(c). However, unlike the approximately 9,000
ballots in Miami-Dade that the County Canvassing Board did not manually
recount, the Palm Beach County Canvassing Board did complete a manual recount
of these 3,300 votes and concluded that, because the intent of the voter in these
3,300 ballots was not discernable, these ballots did not constitute "legal votes."
After a two-day trial in this case, the circuit court concluded:

[W]ith respect to the approximately 3,300 Palm Beach
County ballots of which plaintiffs seek review, the Palm
Beach Board properly exercised its discretion in its
counting process and has judged those ballots which
plaintiffs wish this court to again judge de novo. . . . The
Palm Beach County board did not abuse its discretion in
its review and recounting process. Further, it acted in
full compliance with the order of the circuit court in and
for Palm Beach County.

We find no error in the trial court's determination that appellants did not
establish a preliminary basis for relief as to the 3300 Palm Beach County votes
because the appellants have failed to make a threshold showing that "legal votes"
were rejected. Although the protest and contest proceedings are separate statutory
provisions, when a manual count of ballots has been conducted by the Canvassing
Board pursuant to section 102.166, the circuit court in a contest proceeding does
not have the obligation de novo to simply repeat an otherwise-proper manual
count of the ballots. As stated above, although the trial court does not review a
Canvassing Board's actions under an abuse of discretion standard, the Canvassing
Board's actions may constitute evidence that a ballot does or does not qualify as a
legal vote. Because the appellants have failed to introduce any evidence to refute
the Canvassing Board's determination that the 3300 ballots did not constitute
"legal votes," we affirm the trial court's holding as to this issue. This reflects the
proper interaction of section 102.166 governing protests and manual recounts and
section 102.168 governing election contests.

Appellants claim that the certified vote totals must be amended to include
legal votes identified as being for one of the presidential candidates by the County
Canvassing Boards of Palm Beach County and Miami-Dade during their manual
recounts. After working for a period of many days, the Palm Beach County
Canvassing Board conducted and completed a full manual recount in which the
Board identified a net gain of 215 votes for Gore.19 As discussed above, the
Miami-Dade Canvassing Board commenced a manual recount but did not
complete the recount. During the partial recount it identified an additional legal
votes, of which 302 were for Gore and 134 were for Bush, resulting in a net gain
of 168 votes for Gore.

The circuit court concluded as to Palm Beach County that there was not any
"authority to include any returns submitted past the deadline established by the
Florida Supreme Court in this election." This conclusion was erroneous as a
matter of law. The deadline of November 26, 2000, at 5 p.m. was established in
order to allow maximum time for contests pursuant to section 102.168. The
deadline was never intended to prohibit legal votes identified after that date
through ongoing manual recounts to be excluded from the statewide official
results in the Election Canvassing Commission's certification of the results of a
recount of less than all of a county's ballots. In the same decision we held that all
returns must be considered unless their filing would effectively prevent an election
contest from being conducted or endanger the counting of Florida’s electors in the
presidential election.

As to Miami-Dade County, in light of our holding that the circuit court
should have counted the undervote, we agree with appellants that the partial
recount results should also be included in the total legal votes for this election.
Because the county canvassing boards identified legal votes and these votes could
change the outcome of the election, we hold that the trial court erred in rejecting
the legal votes identified in the Miami-Dade County and Palm Beach County
manual recounts. These votes must be included in the certified vote totals. We
find that appellants did not establish that the Nassau County Canvassing Board
acted improperly.

CONCLUSION

Through no fault of appellants, a lawfully commenced manual recount in
Dade County was never completed and recounts that were completed were not
counted. Without examining or investigating the ballots that were not counted by
the machines, the trial court concluded there was no reasonable probability of a
different result. However, the proper standard required by section 102.168 was
whether the results of the election were placed in doubt. On this record there can
be no question that there are legal votes within the 9,000 uncounted votes
sufficient to place the results of this election in doubt. We know this not only by
evidence of statistical analysis but also by the actual experience of recounts
conducted. The votes for each candidate that have been counted are separated by
no more than approximately 500 votes and may be separated by as little as
approximately 100 votes. Thousands of uncounted votes could obviously make a
difference.

Although in all elections the Legislature and the courts have recognized that
the voter's intent is paramount, in close elections the necessity for counting all
legal votes becomes critical. However, the need for accuracy must be weighed
against the need for finality. The need for prompt resolution and finality is
especially critical in presidential elections where there is an outside deadline
established by federal law. Notwithstanding, consistent with the legislative
mandate and our precedent, although the time constraints are limited, we must do
everything required by law to ensure that legal votes that have not been counted
are included in the final election results.

(This Presidential election has demonstrated the vulnerability of what we believe to be a
bedrock principle of democracy: that every vote counts. While there are areas in this State which
implement systems (such as the optical scanner) where the margins of error, and the ability to
demonstrably verify those margins of error, are consistent with accountability in our democratic
process, in these election contests based upon allegations that functioning punch-card voting
machines have failed to record legal votes, the demonstrated margins of error may be so great to
suggest that it is necessary to reevaluate utilization of the mechanisms employed as a viable
system.)
 
As recognized by the Florida House of Representatives Committee on
Election Reform 1997 Interim Project on Election Contests and Recounts:

[A]ll election contests and recounts can be traced to
either an actual failure in the election system or a
perception that the system has failed. Public confidence
in the election process is essential to our democracy. If
the voter cannot be assured of an accurate vote count, or
an election unspoiled by fraud, they will not have faith in
other parts of the political process. Nonetheless, it is
inevitable that legitimate doubts of the validity and
accuracy of election outcomes will arise. It is crucial,
therefore, to have clearly defined legal mechanisms for
contesting or recounting election results.

Only by examining the contested ballots, which are evidence in the election
contest, can a meaningful and final determination in this election contest be made.
As stated above, one of the provisions of the contest statute, section 102.168(8),
provides that the circuit court judge may “fashion such orders as he . . . deems
necessary to ensure that each allegation in the complaint is investigated, examined
or checked, to prevent any alleged wrong, and to provide any relief appropriate
under such circumstances.

In addition to the relief requested by appellants to count the Miami-Dade
undervote, claims have been made by the various appellees and intervenors that
because this is a statewide election, statewide remedies would be called for. As
we discussed in this opinion, we agree. While we recognize that time is
desperately short, we cannot in good faith ignore both the appellant's right to relief
as to their claims concerning the uncounted votes in Miami-Dade County nor can
we ignore the correctness of the assertions that any analysis and ultimate remedy
should be made on a statewide basis.

(The dissents would have us throw up our hands and say that because of looming
deadlines and practical difficulties we should give up any attempt to have the election of the
presidential electors rest upon the vote of Florida citizens as mandated by the Legislature. While
we agree that practical difficulties may well end up controlling the outcome of the election we
vigorously disagree that we should therefore abandon our responsibility to resolve this election
dispute under the rule of law. We can only do the best we can to carry out our sworn
responsibilities to the justice system and its role in this process. We, and our dissenting
colleagues, have simply done the best we can, and remain confident that others charged with
similar heavy responsibilities will also do the best they can to fulfill their duties as they see them.)

We note that contest statutes vest broad discretion in the circuit court to
"provide any relief appropriate under the circumstances." Section 102.168(5).
Moreover, because venue of an election contest that covers more than one county
lies in Leon County, see 102.1685, Florida Statutes (2000), the circuit court has
jurisdiction, as part of the relief it order, to order the Supervisor of Elections and
the Canvassing Boards, as well as the necessary public officials, in all counties
that have not conducted a manual recount or tabulation of the undervotes in this
election to do so forthwith, said tabulation to take place in the individual counties
where the ballots are located.

Accordingly, for the reasons stated in this opinion, we reverse the final
judgment of the trial court dated December 4, 2000, and remand this cause for the
circuit court to immediately tabulate by hand the approximate 9,000 Miami-Dade
ballots, which the counting machine registered as non-votes, but which have never
been manually reviewed, and for other relief that may thereafter appear
appropriate. The circuit court is directed to enter such orders as are necessary to
add any legal votes to the total statewide certifications and to enter any orders
necessary to ensure the inclusion of the additional legal votes for Gore in Palm
Beach County 23 and the 168 additional legal votes from Miami-Dade County.

Because time is of the essence, the circuit court shall commence the
tabulation of the Miami-Dade ballots immediately. The circuit court is authorized,
in accordance with the provisions of section 102.168(8), to be assisted by the Leon
County Supervisor of Elections or its sworn designees. Moreover, since time is
also of the essence in any statewide relief that the circuit court must consider, any
further statewide relief should also be ordered forthwith and simultaneously with
the manual tabulation of the Miami-Dade undervotes.

In tabulating the ballots and in making a determination of what is a "legal"
vote, the standards to be employed is that established by the Legislature in our
Election Code which is that the vote shall be counted as a "legal" vote if there is
"clear indication of the intent of the voter." Section 101.5614(5), Florida Statutes
(2000).

It is so ordered.

ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur.
WELLS, C.J., dissents with an opinion.
HARDING, J., dissents with an opinion, in which SHAW, J., concurs.

WELLS, C.J., dissenting.

I want to make it clear at the outset of my separate opinion that I do not
question the good faith or honorable intentions of my colleagues in the majority.
However, I could not more strongly disagree with their decision to reverse the trial
court and prolong this judicial process. I also believe that the majority’s decision
cannot withstand the scrutiny which will certainly immediately follow under the
United States Constitution.

My succinct conclusion is that the majority’s decision to return this case to
the circuit court for a count of the under-votes from either Miami-Dade County or
all counties has no foundation in the law of Florida as it existed on November 7,
2000, or at any time until the issuance of this opinion. The majority returns the
case to the circuit court for this partial recount of under-votes on the basis of
unknown or, at best, ambiguous standards with authority to obtain help from
others, the credentials, qualifications, and objectivity of whom are totally
unknown. That is but a first glance at the imponderable problems the majority
creates.

Importantly to me, I have a deep and abiding concern that the prolonging of
judicial process in this counting contest propels this country and this state into an
unprecedented and unnecessary constitutional crisis. I have to conclude that there
is a real and present likelihood that this constitutional crisis will do substantial
damage to our country, our state, and to this Court as an institution.
On the basis of my analysis of Florida law as it existed on November 7,
2000, I conclude that the trial court’s decision can and should be affirmed. Under
our law, of course, a decision of a trial court reaching a correct result will be
affirmed if it is supportable under any theory, even if an appellate court disagrees
with the trial court’s reasoning.

There are two fundamental and historical principles of Florida law that this
Court has recognized which are relevant here. First, at common law, there was no
right to contest an election; thus, any right to contest an election must be construed
to grant only those rights that are explicitly set forth by the Legislature. See
McPherson v. Flynn, 397 So. 2d 665, 668 (Fla. 1981).

Second, this Court gives deference to decisions made by executive officials
charged with implementing Florida’s election laws.

At the outset, I note that, after an evidentiary hearing, the trial court
expressly found no dishonesty, gross negligence, improper influence, coercion, or
fraud in the balloting and counting processes based upon the evidence presented. I
conclude this finding should curtail this Court’s involvement in this election
through this case and is a substantial basis for affirming the trial court.

Historically, this Court has only been involved in elections when there have been
substantial allegations of fraud and then only upon a high threshold because of the
chill that a hovering judicial involvement can put on elections. This to me is the
import of this Court’s decision in Boardman v. Esteva, 323 So.2d 259 (Fla.1975).
We lowered that threshold somewhat in Beckstrom v. Volusia County Canvassing
Board, 707 So. 2d 720 (Fla. 1998), but we continued to require a substantial
noncompliance with election laws. That must be the very lowest threshold for a
court’s involvement.

Otherwise, we run a great risk that every election will result in judicial
testing. Judicial restraint in respect to elections is absolutely necessary because
the health of our democracy depends on elections being decided by voters–not by
judges. We must have the self-discipline not to become embroiled in political
contests whenever a judicial majority subjectively concludes to do so because the
majority perceives it is “the right thing to do.” Elections involve the other
branches of government. A lack of self-discipline in being involved in elections,
especially by a court of last resort, always has the potential of leading to a crisis
with the other branches of government and raises serious separation-of-powers
concerns.

I find that the trial judge correctly concluded that plaintiffs were not entitled
to a manual recount. Petitioners filed this current election contest after protests in
Palm Beach and Miami-Dade Counties. Section 102.168, Florida Statutes, in its
present form is a new statute adopted by the Legislature in 1999. I conclude that
the present statutory scheme contemplates that protests of returns and requests
for manual recounts are first to be presented to the county canvassing boards.
See § 102.166, Fla. Stat.

This naturally follows from the fact that, even with the
adoption of the 1999 amendments to section 102.168, the only procedures for
manual recounts are in the protest statute. Once a protest has been filed, a county
canvassing board then has the discretion, in accordance with the procedures set
forth in section 102.166(4), Florida Statutes, whether to order a sample limited
manual recount. See § 102.166(4)(c), Fla. Stat. (2000). Once the sample recount
is complete and the county canvassing board concludes that there was an error in
the vote tabulation that could affect the outcome of the election, section
102.166(5) instructs what must then be done. One option is to manually recount
all ballots. See § 102.166(5)(c), Fla. Stat. (2000).

(Also problematic with the majority’s analysis is that the majority only requires that the
“under-votes” are to be counted. How about the “over-votes?” Section 101.5614(6) provides
that a ballot should not be counted “[i]f an elector marks more names than there are persons to be
elected to an office,” meaning the voter voted for more than one person for president. The
underlying premise of the majority’s rationale is that in such a close race a manual review of
ballots rejected by the machines is necessary to ensure that all legal votes cast are counted. The
majority, however, ignores the over-votes. Could it be said, without reviewing the over-votes,
that the machine did not err in not counting them?
It seems patently erroneous to me to assume that the vote-counting machines can err
when reading under-votes but not err when reading over-votes. Can the majority say, without
having the over-votes looked at, that there are no legal votes among the over-votes?)

I believe that the contest and protest statutes must logically be read together.
The contest statute has significant references to the protest statute. If there is a
protest, a party authorized by the statute to file a contest must file a complaint
“within 5 days after midnight of the date the last county canvassing board
empowered to canvass the returns certifies the results of that particular election
following a protest pursuant to s. 102.166(1).” §102.168(2), Fla. Stat. (2000). In
the election contest, the canvassing board is the proper party defendant under
section 102.168(4). Further, under section 102.168(8), the circuit judge to whom
the contest is presented may fashion such orders as he or she deems necessary to
ensure that the allegations upon which the complaint is brought are investigated,
examined, or checked.

In Hogan, the Fourth District Court of Appeal reversed the trial
court’s order granting a manual recount, in contravention of the county canvassing
board’s decision noting that:

(Although section 102.168 grants the right of contest, it does
not change the discretionary aspect of the review procedures outlined
in section 102.166. The statute clearly leaves the decision whether or
not to hold a manual recount of the votes as a matter to be decided
within the discretion of the canvassing board.)

I do not believe there is any sound reason to conclude that the
Legislature’s adoption of revised section 102.168 in 1999 intended to change this
and provide for a duplicative recount by an individual circuit judge.

I also agree with the trial judge’s conclusion that in a statewide election the
only way a court can order a manual recount of ballots that were allegedly not
counted because of some irregularity or inaccuracy in the balloting or counting
process is to order that the votes in all counties in which those processes were
used be recounted. I do not find any legal basis for the majority of this Court to
simply cast aside the determination by the trial judge made on the proof presented
at a two-day evidentiary hearing that the evidence did not support a statewide
recount. To the contrary, I find the majority’s decision in that regard quite
extraordinary.

Section 102.168(3), Florida Statues (2000), states in pertinent part:

The grounds for contesting an election under this section are:
. . . .
(c) Receipt of a number of illegal votes or rejection of a
number of legal votes sufficient to change or place in doubt the result
of the election.

In other words, to establish a cause of action, plaintiff must
allege an irregularity that places in doubt the result of the election. First, to
“contest” simply means to challenge. See Webster’s Dictionary 250 (10th ed.
1994). Second, section 102.168(5), provides:

A statement of the grounds of contest may not be rejected, nor
the proceedings dismissed, by the court for any want of form if the
grounds of contest provided in the statement are sufficient to clearly
inform the defendant of the particular proceeding or cause for which
the nomination or election is contested.

Upon my reading of the statute, I conclude that the language
“grounds of contest” unambiguously means: a basis upon which a plaintiff can
establish a cause of action. This standard is simply the threshold that must be met
to bring forth the contest action. Thus, this standard is not the standard that the
judge must use in deciding whether a plaintiff who brings the contest has
successfully met his or her burden to order a recount or set aside election results.

Although it is unclear from case law what standard must be satisfied in order to
grant appropriate relief, it undoubtedly cannot be a low standard. Recently, in
Beckstrom, this Court declined to invalidate an election despite a finding that the
canvassing board was grossly negligent and in substantial noncompliance with the
absentee voting statutes. See Beckstrom. Thus, merely stating the cause of action
under the contest statute does not entitle a party to a recount or require the court to
set aside an election. More must be required. This is especially true here, where,
as in Beckstrom, the trial judge found no dishonesty, gross negligence, improper
influence, coercion, or fraud in the balloting and counting processes. Thus, a
plaintiff’s burden in establishing grounds on which a circuit judge could order
relief of any kind was simply not met. It is illogical to interpret section
102.168(3)(c) to set such a low standard where a plaintiff merely has to allege a
cause of action to successfully carry the contest.

Furthermore, even conceding that the trial judge at the outset applied an
erroneous “probability of doubt” standard in deciding that plaintiffs failed to meet
their burden of establishing a cause of action, the trial judge faced a conundrum
that must be adequately explained. Plaintiffs asked the trial judge to grant the very
remedy–a recount of the under-votes–he prays for without first establishing that
remedy was warranted. Before any relief is granted, a plaintiff must allege that
enough legal votes were rejected to place in doubt the results of the election.
However, in order for the plaintiffs to meet this burden, the under-vote ballots
must be preliminarily manually recounted. Following this logic to its conclusion
would require a circuit court to order partial manual recounts upon the mere filing
of a contest. This proposition plainly has no basis in law.

As I have stated, I conclude in the case at bar that sections 102.166 and
106.168 must be read in pari materia. My analysis in this regard is bolstered in
situations, as here, where there was an initial protest filed in a county pursuant to
section 102.166 and a subsequent contest of that same county’s return pursuant to
section 102.168. It appears logical to me that a circuit judge in a section 102.168
contest should review a county canvassing board’s determinations in a section
102.166 protest under an abuse-of-discretion standard. I see no other reason why
the county canvassing board would be a party defendant if the circuit court is not
intended to evaluate the canvassing board’s decisions with respect to manual
recount decisions made in a section 102.166 protest. Finally, it is plain to me that
it is only in section 102.166 that there are any procedures for manual recounts
which address the logistics of a recount, including who is to conduct the count,
that it is to take place in public, and what is to be recounted.

The majority quotes section 101.5614(5) for the proposition of settling how
a county canvassing board should count a vote. The majority states that “[n]o vote
shall be declared invalid or void if there is a clear indication of the intent of the
voter as determined by the canvassing board.” § 101.5614(5), Fla. Stat. (2000).
Section 101.5614(5), however, is a statute that authorizes the creation of a
duplicate ballot where a “ballot card . . . is damaged or defective so that it cannot
properly be counted by the automatic tabulating equipment.” There is no basis in
this record that suggests that the approximately 9000 ballots from Miami-Dade
County were damaged or defective.

Laying aside this problem and assuming the majority is correct that section
101.5614(5) correctly annunciates the standard by which a county canvassing
board should judge a questionable ballot, section 101.5614(5) utterly fails to
provide any meaningful standard. There is no doubt that every vote should be
counted where there is a “clear indication of the intent of the voter.” The problem
is how a county canvassing board translates that directive to these punch cards.
Should a county canvassing board count or not count a “dimpled chad” where the
voter is able to successfully dislodge the chad in every other contest on that ballot?
Here, the county canvassing boards disagree. Apparently, some do and some do
not. Continuation of this system of county-by-county decisions regarding how a
dimpled chad is counted is fraught with equal protection concerns which will
eventually cause the election results in Florida to be stricken by the federal courts
or Congress.

Based upon this analysis and adhering to the interpretation of the 1992
Hogan case, I conclude the circuit court properly looked at what the county
canvassing boards have done and found that they did not abuse their discretion.
Regarding Miami-Dade County, I find that the trial judge properly concluded that
the Miami-Dade Canvassing Board did not abuse its discretion in deciding to
discontinue the manual recount begun on November 19, 2000. Evidence
presented at trial indicated that the Miami-Dade Board made three different
decisions in respect to manual recounts.  The first decision was not to count, the
second was to count, and the third was not to count. The third decision was based
upon the determination by the Miami-Dade Board that it could not make the
November 26, 2000, deadline set by this Court in Harris and that it did not want to
jeopardize disenfranchising a segment of its voters. The law does not require
futile acts. See Haimovitz v. Robb, 130 Fla. 844; 178 So. 827 (1937).

Section 102.166(5)(c) requires that, if there is a manual recount, all of the ballots have to
be recounted.

I cannot find that the Miami-Dade Board’s decision that all the
ballots could not be manually recounted between November 22 and November 26,
2000, to be anything but a decision based upon reality. Moreover, not to count all
of the ballots if any were to be recounted would plainly be changing the rules after
the election and would be unfairly discriminatory against votes in the precincts in
which there was no manual recount. Thus, I agree with the trial court that the
Miami-Dade Board did not abuse its discretion in discontinuing the manual
recount.

In respect to the Palm Beach County Canvassing Board, I likewise find that
the trial judge did not err in finding that the Palm Beach Board was within its
discretion in rejecting the approximately 3300 votes in which it could not discern
voter intent. As set forth in Boardman, the county canvassing boards are vested
with the responsibility to make judgments on the validity of ballots, and its
determinations will be overturned only for compelling reasons when there are
clear, substantial departures from essential requirements of law. See id., 323 So.
2d at 268 n 5. Petitioners have not met this burden.

I also agree with the trial judge that the Election Canvassing Commission
(Commission) did not abuse its discretion in refusing to accept either an amended
return reflecting the results of a partial manual recount or a late amended return
filed by the Palm Beach Board. I conclude that it is plain error for the majority to
hold that the Commission abused its discretion in enforcing a deadline set by this
Court that recounts be completed and certified by November 26, 2000. I conclude
that this not only changes a rule after November 7, 2000, but it also changes a rule
this Court made on November 26, 2000.

As I stated at the outset, I conclude that this contest simply must end.
Directing the trial court to conduct a manual recount of the ballots violates
article II, section 1, clause 2 of the United States Constitution, in that neither this
Court nor the circuit court has the authority to create the standards by which it will
count the under-voted ballots. The Constitution reads in pertinent part: “Each
State shall appoint, in such Manner as the Legislature thereof may direct, a
Number of Electors.” Art. II, § 1, cl. 2, U.S. Const. The Supreme Court has
described this authority granted to the state legislatures as “plenary.” See
McPherson v. Blacker, 146 U.S. 1, 7 (1892). “Plenary” is defined as “full, entire,
complete, absolute, perfect, [and] unqualified.” Black’s Law Dictionary 1154 (6th
ed. 1990).
The Legislature has given to the county canvassing boards–and only these
boards–the authority to ascertain the intent of the voter. See § 102.166(7)(b), Fla.
Stat. (2000). Just this week, the United States Supreme Court reminded us of the
teachings from Blacker when it said:

[Art. II, §1, cl. 2] does not read that the people or the citizens shall
appoint, but that ‘each State shall’; and if the words ‘in such manner
as the legislature thereof may direct,’ had been omitted, it would seem
that the legislative power of appointment could not have been
successfully questioned in the absence of any provision in the state
constitution in that regard. Hence the insertion of those words, while
operating as a limitation upon the State in respect of any attempt to
circumscribe the legislative power, cannot be held to operate as a
limitation on that power itself.”

Bush v. Palm Beach Canvassing Bd., No. 00-836, slip op. at 4-5 (U.S. Dec. 4,
2000) (quoting Blacker, 146 U.S. at 7).

Clearly, in a presidential election, the Legislature has not
authorized the courts of Florida to order partial recounts, either
in a limited number of counties or statewide. This Court’s order to do so appears
to me to be in conflict with the United States Supreme Court decision.
Laying aside the constitutional infirmities of this Court’s action today, what
the majority actually creates is an overflowing basket of practical problems.
Assuming the majority recognizes a need to protect the votes of Florida’s
presidential electors,30 the entire contest must be completed “at least six days
before” December 18, 2000, the date the presidential electors meet to vote. See 3
U.S.C. § 5 (1994). The safe harbor deadline day is December 12, 2000. Today is
Friday, December 8, 2000. Thus, under the majority’s time line, all manual
recounts must be completed in five days, assuming the counting begins today.
In that time frame, all questionable ballots must be reviewed by the judicial
officer appointed to discern the intent of the voter in a process open to the public.31
Fairness dictates that a provision be made for either party to object to how a
particular ballot is counted. Additionally, this short time period must allow for
judicial review. I respectfully submit this cannot be completed without taking
Florida’s presidential electors outside the safe harbor provision, creating the very
real possibility of disenfranchising those nearly six million voters who were able
to correctly cast their ballots on election day.

Another significant problem is that the majority returns this case to the
circuit court for a recount with no standards. I do not, and neither will the trial
judge, know whether to count or not count ballots on the criteria used by the
canvassing boards, what those criteria are, or to do so on the basis of standards
divined by Judge Sauls. A continuing problem with these manual recounts is their
reliability. It only stands to reason that many times a reading of a ballot by a
human will be subjective, and the intent gleaned from that ballot is only in the
mind of the beholder. This subjective counting is only compounded where no
standards exist or, as in this statewide contest, where there are no statewide
standards for determining voter intent by the various canvassing boards, individual
judges, or multiple unknown counters who will eventually count these ballots.

I must regrettably conclude that the majority ignores the magnitude of its
decision. The Court fails to make provision for:
(1) the qualifications of those
who count;
(2) what standards are used in the count–are they the same standards
for all ballots statewide or a continuation of the county-by-county constitutionally
suspect standards;
(3) who is to observe the count;
(4) how one objects to the count;
(5) who is entitled to object to the count;
(6) whether a person may object to a counter;
(7) the possible lack of personnel to conduct the count;
(8) the fatigue of the counters; and
(9) the effect of the differing intra-county standards.

This Court’s responsibility must be to balance the contest allegations
against the rights of all Florida voters who are not involved in election contests to
have their votes counted in the electoral college. To me, it is inescapable that
there is no practical way for the contest to continue for the good of this country
and state.

I am persuaded that Justice Terrell was correct in 1936 when he said:
This court is committed to the doctrine that extraordinary relief
will not be granted in case where it plainly appears that although the
complaining party may be ordinarily entitled to it, if the granting of
such relief in the particular case will result in confusion and disorder
and will produce an injury to the public which outweighs the
individual right of the complainant to have the relief he seeks.
State v. Wester, 126 Fla. 49, 54, 170 So. 736, 738-39 (1936)

For a month, Floridians have been working on this problem. At this point, I
am convinced of the following.

First, there have been an enormous number of citizens who have expended
heroic efforts as members of canvassing boards, counters, and observers, and as
legal counsel who have in almost all instances, in utmost good faith attempted to
bring about a fair resolution of this election. I know that, regardless of the
outcome, all of us are in their debt for their efforts on behalf of representative
democracy.

Second, the local election officials, state election officials, and the courts
have been attempting to resolve the issues of this election with an election code
which any objective, frank analysis must conclude never contemplated this
circumstance. Only to state a few of the incongruities, the time limits of sections
102.112, 102.166, and 102.168 and 3 U.S.C. §§ 1, 5, and 7 simply do not
coordinate in any practical way with a presidential election in Florida in the year
2000. Therefore, section 102.168, Florida Statues, is inconsistent with the remedy
being sought here because it is unclear in a presidential election as to: (1) whether
the candidates or the presidential electors should be party to this election contest;
(2) what the possible remedy would be; and (3) what standards to apply in
counting the ballots statewide.

Third, under the United States Supreme Court’s analysis in Bush v. Palm
Beach County Canvassing Board, wherein the Supreme Court calls to our attention
McPherson v. Blacker, 146 U.S. 1 (1892), there is uncertainty as to whether the
Florida Legislature has even given the courts of Florida any power to resolve
contests or controversies in respect to presidential elections.

Fourth, there is no available remedy for the petitioners on the basis of these
allegations. Quite simply, courts cannot fairly continue to proceed without
jeopardizing the votes and rights of other citizens through a further count of these
votes.

I must take seriously the counsel of the Supreme Court in Bush:
Since [3 U.S.C.] §5 contains a principle of federal law that would
assure finality of the State’s determination if made pursuant to a state
law in effect before the election, a legislative wish to take advantage
of the “safe harbor” would counsel against any construction of the
Election Code that Congress might deem to be a change in the law.

This case has reached the point where finality must take precedence over
continued judicial process.   I agree with a quote from John Allen Paulos, a
professor of mathematics at Temple University, when he wrote that, “[t]he margin
of error in this election is far greater than the margin of victory, no matter who
wins.”  Further judicial process will not change this self-evident fact and will
only result in confusion and disorder. Justice Terrell and this Court wisely
counseled against such a course of action sixty-four years ago. I would heed that
sound advice and affirm Judge Sauls.

HARDING, J., dissenting.

In 1999, the Florida Legislature extensively amended the contest statute to
specify the grounds authorized for contesting an election and to set up a time
frame for contests. See ch. 99-339, § 3, at 3547-49, Laws of Fla. The Legislature
also amended the protest statute by eliminating the role of the circuit courts in
protest proceedings. See id., §1, at 3546. The county canvassing boards have
been granted discretion to authorize a manual recount when requested by a
candidate, political party, or political committee who seeks to protest the returns of
an election as being erroneous. See § 102.166(4)(c), Fla. Stat. (2000) (“The county canvassing
board may authorize a manual recount.”)

In contrast, a contest proceeding involves a legal challenge to the outcome
of an election. The circuit judge is statutorily charged with three tasks in a contest
proceeding: (1) to ensure that each allegation in the contestant’s complaint is
investigated, examined, or checked; (2) to prevent or correct any alleged wrong;
and (3) to provide any relief appropriate under such circumstances. See §
102.168(8), Fla. Stat. (2000). Where a contestant alleges that the canvassing
board has rejected a number of legal votes “sufficient to change or place in doubt
the result of the election” due to the board’s decision to curtail or deny a manual
recount, the circuit judge should examine this issue de novo and not under an
abuse of discretion standard. § 102.168(3)(c), Fla. Stat. (2000).

Second, Judge Sauls erred in concluding that a contestant under section
102.168(3)(c) must show a “reasonable probability that the results of the election
would have been changed.” Judge Sauls cited the First District Court of Appeal’s
decision in Smith v. Tynes, 412 So. 2d 925, 926 (Fla. 1 st DCA 1982), as
establishing this standard for election contests. However, as discussed above,
when the Legislature amended section 102.168 in 1999, it specified five grounds
for contesting an election, including the “[r]eceipt of a number of illegal votes or
rejection of a number of legal votes sufficient to change or place in doubt the
result of the election.” (Emphasis added.) Smith v. Tynes, which was decided in
1982, addressed the pre-amendment statute which did not specify the grounds for
a contest. Thus, the current statutory standard controls here.

While I disagree with Judge Sauls on the standards applicable to this
election contest, I commend him for the way that he conducted the proceedings
below under extreme time constraints and pressure. Further, I believe that Judge
Sauls properly concluded that there was no authority to include the Palm Beach
County returns filed after the explicit deadline established by this Court.

I conclude that the application of the erroneous standards is not
determinative in this case. I agree with Judge Sauls that the Appellants have not
carried their burden of showing that the number of legal votes rejected by the
canvassing boards is sufficient to change or place in doubt the result of this
statewide election. That failure of proof controls the outcome here. Moreover, as
explained below, I do not believe that an adequate remedy exists under the
circumstances of this case.

I conclude that Judge Sauls properly found that the evidence presented by
Appellants, even if believed, was insufficient to warrant any remedy under section
102.168.

The basis for Appellants claim for relief under section 102.168 is that there
is a “no-vote” problem, i.e., ballots which, although counted by machines at least
once, allegedly have not been counted in the presidential election. The evidence
showed that this no-vote problem, to the extent it exists, is a statewide problem.
Appellants ask that only a subset of these no-votes be counted.

In a presidential election, however, section 102.168, by its title, is an
“Election” contest and, as such, it is not a local contest seeking to define the
correct winner of the popular vote in any individual county. The action is to
determine whether the Secretary of State certified the correct winner for the entire
State of Florida. By its plain language, section 102.168(1) provides that only the
“unsuccessful candidate” may contest an election. If this contest provision may be
invoked as to individual county results, as argued by Appellants, then Vice
President Gore’s choice of the three particular counties was improper because he
was not “unsuccessful” in those counties. I read the statute as applying to
statewide results in statewide elections. Thus, Vice President Gore, as the
unsuccessful candidate statewide, could contest the election results. However, in
this contest proceeding, Appellants had an obligation to show, by a preponderance
of the evidence, that the outcome of the statewide election would likely be
changed by the relief they sought.

Appellants failed, however, to provide any meaningful statistical evidence
that the outcome of the Florida election would be different if the “no-vote” in
other counties had been counted; their proof that the outcome of the vote in two
counties would likely change the results of the election was insufficient. It would
be improper to permit Appellants to carry their burden in a statewide election by
merely demonstrating that there were a sufficient number of no-votes that could
have changed the returns in isolated counties. Recounting a subset of counties
selected by the Appellants does not answer the ultimate question of whether a
sufficient number of uncounted legal votes could be recovered from the statewide
“no-votes” to change the result of the statewide election. At most, such a
procedure only demonstrates that the losing candidate would have had greater
success in the subset of counties most favorable to that candidate.

Moreover, assuming that there may be some shortfall in counting the votes
cast with punch card ballots, such a problem is only properly considered as being
systemic with the punch card system itself, and any remedy would have had to be
statewide. Any other remedy would disenfranchise tens of thousands of other
Florida voters, as I have serious concerns that Appellant’s interpretation of
102.168 would violate other voters’ rights to due process and equal protection of
the law under the Fifth and Fourteenth Amendments to the United States
Constitution.

As such, I would find that the selective recounting requested by Appellant is
not available under the election contest provisions of section 102.168. Such an
application does not provide for a more accurate reflection of the will of the voters
but, rather, allows for an unfair distortion of the statewide vote. It is patently
unlawful to permit the recount of “no-votes” in a single county to determine the
outcome of the November 7, 2000, election for the next President of the United
States. We are a nation of laws, and we have survived and prospered as a free
nation because we have adhered to the rule of law. Fairness is achieved by
following the rules.

Finally, even if I were to conclude that the Appellant’s allegations and
evidence were sufficient to warrant relief, I do not believe that the rules permit an
adequate remedy under the circumstances of this case.

Clearly, the only remedy authorized by law would be a statewide recount of more than 170,000
“no-vote” ballots by December 12. Even if such a recount were possible, speed
would come at the expense of accuracy, and it would be difficult to put any faith or
credibility in a vote total achieved under such chaotic conditions. In order to
undertake this unprecedented task, the majority has established standards for
manual recounts–a step that this Court refused to take in an earlier case,34
presumably because there was no authority for such action and nothing in the
record to guide the Court in setting such standards. The same circumstances exist
in this case. All of the parties should be afforded an opportunity to be heard on this
very important issue.

While this Court must be ever mindful of the Legislature’s plenary power to
appoint presidential electors, see U.S. Const. art. II, § 1, cl. 2, I am more concerned
that the majority is departing from the essential requirements of the law by
providing a remedy which is impossible to achieve and which will ultimately lead
to chaos. In giving Judge Sauls the option to order a statewide recount, the
majority permits a remedy which was not prayed for, which is based upon a
premise for which there is no evidence, and which presents Judge Sauls with
options to order entities (i.e. local canvassing boards) to conduct recounts when
they have not been served, have not been named as parties, but, most importantly,
have not had the opportunity to be heard. In effect, the majority is allowing the
results of the statewide election to be determined by the manual recount in Miami-Dade
County because a statewide recount will be impossible to accomplish. Even
if by some miracle a portion of the statewide recount is completed by December 12,
a partial recount is not acceptable. The uncertainty of the outcome of this election
will be greater under the remedy afforded by the majority than the uncertainty that
now exists.

The circumstances of this election call to mind a quote from football
coaching legend Vince Lombardi: “We didn’t lose the game, we just ran out of
time.”

SHAW, J., concurs.