I. FACTS
On Tuesday, November 7, 2000, the State of Florida, along with the rest
of the United States, conducted a general election for the President of
the United States. The Division of Elections (“Division”) reported on Wednesday,
November 8, that George W. Bush, the Republican candidate, had received
2,909,135 votes, and Albert Gore Jr., the Democratic candidate, had received
2,907,351 votes.
Because the overall difference in the total votes cast for each candidate
was less than one-half of one percent of the total votes cast for that
office (i.e., the difference was 1,784 votes), an automatic recount was
conducted.
In light of the closeness of the election, the Florida Democratic Executive Committee on Thursday, November 9, requested that manual recounts be conducted in Broward, Palm Beach, and Volusia Counties ...
Pursuant to section 102.166(4)(d), the county canvassing boards of these counties conducted a sample manual recount of at least one percent of the ballots cast. Initial manual recounts demonstrated the following:
In Broward County, a recount of one percent of the ballots indicated a net increase of four votes for Gore; and in Palm Beach County, a recount of four sample precincts yielded a net increase of nineteen votes for Gore. Based on these recounts, several of the county canvassing boards determined that the manual recounts conducted indicated “an error in the vote tabulation which could affect the outcome of the election.”
... the Florida Secretary of State (the Secretary) issued a statement on Monday, November 13, 2000, that she would ignore returns of the manual recounts received by the Florida Department of State after Tuesday, November 14, 2000, at 5:00 p.m.
The Volusia County Canvassing Board on Monday, November 13, 2000, filed suit in the Circuit Court of the Second Judicial Circuit in Leon County, Florida, seeking declaratory and injunctive relief, and the candidates and the Palm Beach County Canvassing Board (the Palm Beach Board), among others, were allowed to intervene...
The trial court ruled on Tuesday, November 14, 2000, that the deadline was mandatory but that the Volusia Board may amend its returns at a later date and that the Secretary, after “considering all attendant facts and circumstances,” may exercise her discretion in determining whether to ignore the amended returns.
On Thursday, November 16, 2000, the Florida Democratic Party and Albert
Gore filed a motion in Circuit Court of the Second Judicial Circuit in
Leon County, Florida, seeking to compel the Secretary to accept amended
returns. After conducting a hearing, the court denied relief in a
brief order dated Friday, November 17, 2000.
II. GUIDING PRINCIPLES
Twenty-five years ago, this Court commented that the
will of the people, not a hyper-technical reliance upon statutory provisions,
should be our guiding principle in election cases:
The right to vote is the right to participate; it is also the right to speak, but more importantly the right to be heard... By refusing to recognize an otherwise valid exercise of the right of a citizen to vote for the sake of sacred, unyielding adherence to statutory scripture, we would in effect nullify that right.We consistently have adhered to the principle that the will of the people is the paramount consideration. Our goal today remains the same as it was a quarter of a century ago...
III. ISSUES
The questions before this Court include the following: Under what circumstances
may a Board authorize a countywide manual recount...
... must the Secretary and Commission accept such recounts when
the returns are certified and submitted by the Board after the seven day
deadline set forth in sections 102.111 and 102.112?
The decision whether to conduct a manual recount is vested in the sound discretion of the [Canvassing] Board. If the canvassing board decides to authorize the manual recount, the recount must include at least three precincts and at least one percent of the total votes cast for each candidate or issue, with the person who requested the recount choosing the precincts to be recounted.
If the manual recount indicates an “error in the vote tabulation which could affect the outcome of the election,” the county canvassing board “shall”:
(b) Request the Department of State to verify the tabulation software; or
(c) Manually recount all ballots.
We disagree.
The plain language of section 102.166(5) refers to an error in the vote tabulation rather than the vote tabulation system. On its face, the statute does not include any words of limitation; rather, it provides a remedy for any type of mistake made in tabulating ballots.
Section 101.5614(5) 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." Conversely, section 101.5614(6) provides that any vote in which the Board cannot discern the intent of the voter must be discarded. Taken together, these sections suggest that "error in the vote tabulation" includes errors in the failure of the voting machinery to read a ballot and not simply errors resulting from the voting machinery.
Moreover, section 102.141(4), which outlines the Board's responsibility in the event of a recount, states that the Board "shall examine the counters on the machines or the tabulation of the ballots cast in each precinct in which the office or issue appeared on the ballot and determine whether the returns correctly reflect the votes cast."
Although error cannot be completely eliminated in any tabulation of
the ballots, our society has not yet gone so far as to place blind faith
in machines. In almost all endeavors, including elections, humans routinely
correct the errors of machines. For this very reason Florida law
provides a human check on both the malfunction of tabulation equipment
and error in failing to accurately count the ballots....
Having concluded that the county canvassing boards have the authority
to order countywide manual recounts, we must now determine whether the
Commission must accept a return after the seven-day deadline.
V. THE APPLICABLE LAW
The abiding principle governing all election law in Florida is set forth
in article I, section 1, Florida Constitution:
SECTION 1. Political power.–All political power is inherent in the people. The enunciation herein of certain rights shall not be construed to deny or impair others retained by the people.The constitution further provides that elections shall be regulated by law:
SECTION 1. Regulation of elections.–All elections by the people shall be by direct and secret vote. General elections shall be determined by a plurality of votes cast. Registration and elections shall, and political party functions may, be regulated by law...No deadline is set for filing corrected, amended, or supplemental returns...
A candidate or elector can “protest” the returns of an election as being
erroneous by filing a protest with the appropriate County Canvassing Board.
And finally, a candidate, elector, or taxpayer can “contest” the certification
of election results by filing a post-certification action in circuit court...
VI. STATUTORY AMBIGUITY
The provisions of the [Election] Code are ambiguous...
A Board “may” authorize a manual recount and such a recount must include at least three precincts and at least one percent of the total votes cast for the candidate.
The following procedure then applies:
(5) If the manual recount indicates an error in the vote tabulation which could affect the outcome of the election, the county canvassing board shall:
(b) Request the Department of State to verify the tabulation software; or
(c) Manually recount all ballots.
(7) Procedures for a manual recount are as follows:
(b) If a counting team is unable to determine a voter’s intent in casting a ballot, the ballot shall be presented to the county canvassing board for it to determine the voter’s intent. Under this scheme, a candidate can request a manual recount at any point prior to certification by the Board and such action can lead to a full recount of all the votes in the county.
VII. LEGISLATIVE INTENT
Legislative intent–as always–is the polestar that guides a court’s inquiry into the provisions of the Florida Election Code. Where the language of the Code is clear and amenable to a reasonable and logical interpretation, courts are without power to diverge from the intent of the Legislature as expressed in the plain language of the Code.
As noted above, however, chapter 102 is unclear concerning both the time limits for submitting the results of a manual recount and the penalties that may be assessed by the Secretary...
First, it is well-settled that where two statutory provisions are in conflict, the specific statute controls the general statute...
Based on the precision of the title and text, section 102.112 constitutes a specific penalty statute that defines both the deadline for filing returns and the penalties for filing returns thereafter and section 102.111 constitutes a non-specific statute in this regard.
The specific statute controls the non-specific statute.
Second, it also is well-settled that when two statutes are in conflict,
the more recently enacted statute controls the older statute. In
the present case, the provision in section 102.111 stating that the Department
“shall” ignore returns was enacted in 1951 as part of the Code. On the
other hand, the penalty provision in section 102.112 stating that the Department
“may” ignore returns was enacted in 1989 as a revision to chapter 102.
The more recently enacted provision may be viewed
as the clearest and most recent expression of legislative intent.
VIII. THE RIGHT TO VOTE
The right of suffrage is the preeminent right contained in the Declaration
of Rights, for without this basic freedom all others would be diminished.
The importance of this right was acknowledged by the authors of the Constitution,
who placed it first in the Declaration. The very first words in the body
of the constitution are as follows:
SECTION 1. Political power.–All political power is inherent in the people. The enunciation herein of certain rights shall not be construed to deny or impair others retained by the people.The framers thus began the constitution with a declaration that all political power inheres in the people and only they, the people, may decide how and when that power may be given up.
To the extent that the Legislature may enact laws regulating the electoral process, those laws are valid only if they impose no “unreasonable or unnecessary” restraints on the right of suffrage...
Because election laws are intended to facilitate
the right of suffrage, such laws must be liberally construed in favor of
the citizens’ right to vote:
Generally, the courts, in construing statutes relating to elections, hold that the same should receive a liberal construction in favor of the citizen whose right to vote they tend to restrict and in so doing to prevent disfranchisement of legal voters and the intention of the voters should prevail when counting ballots . . .Based on the foregoing, we conclude that the authority of the Florida Secretary of State to ignore amended returns submitted by a County Canvassing Board may be lawfully exercised only under limited circumstances as we set forth in this opinion.It is the intention of the law to obtain an honest expression of the will or desire of the voter.
State ex rel. Carpenter v. Barber, 198 So. 49, 51 (Fla. 1940).
...Allowing the manual recounts to proceed in
an expeditious manner, rather than imposing an arbitrary seven-day deadline,
is consistent not only with the statutory scheme but with prior United
States Supreme Court pronouncements:
Indiana has found, along with many other States, that one procedure necessary to guard against irregularity and error in the tabulation of votes is the availability of a recount. Despite the fact that a certificate of election may be issued to the leading candidate within 30 days after the election, the results are not final if a candidate's option to compel a recount is exercised.In addition, an accurate vote count is one of the essential foundations of our democracy. The words of the Supreme Court of Illinois are particularly apt in this case:A recount is an integral part of the Indiana electoral process and is within the ambit of the broad powers delegated to the States by Art. I, s 4.
Roudebush v. Hartke, 405 U.S. 15, 25 (1972).
The purpose of our election laws is to obtain a correct expression of the intent of the voters. Our courts have repeatedly held that, where the intention of the voter can be ascertained with reasonable certainty from his ballot, that intention will be given effect even though the ballot is not strictly in conformity with the law. . . .The legislature authorized the use of electronic tabulating equipment to expedite the tabulating process and to eliminate the possibility of human error in the counting process, not to create a technical obstruction which defeats the rights of qualified voters.
This court should not, under the appearance of enforcing the election laws, defeat the very object which those law are intended to achieve. To invalidate a ballot which clearly reflects the voter's intent, simply because a machine cannot read it, would subordinate substance to form and promote the means at the expense of the end.
The voters here did everything which the Election Code requires when they punched the appropriate chad with the stylus. These voters should not be disfranchised where their intent may be ascertained with reasonable certainty, simply because the chad they punched did not completely dislodge from the ballot.
Such a failure may be attributable to the fault of the election authorities, for failing to provide properly perforated paper, or it may be the result of the voter's disability or inadvertence. Whatever the reason, where the intention of the voter can be fairly and satisfactorily ascertained, that intention should be given effect.
Pullen v. Milligan, 561 N.E.2d 585, 611 (Ill. 1990)
IX. THE PRESENT CASE
The trial court below properly concluded that the County Canvassing Boards are required to submit their returns to the Department by 5:00 p.m. of the seventh day following the election and that the Department is not required to ignore the amended returns but rather may count them.
The court, however, erred in holding that the Secretary acted within her discretion in prematurely rejecting any amended returns that would be the result of ongoing manual recounts...
We conclude that, consistent with the Florida election scheme, the Secretary may reject a Board’s amended returns only if the returns are submitted so late that their inclusion will preclude a candidate from contesting the certification or preclude Florida’s voters from participating fully in the federal electoral process.
The Secretary in the present case has made no claim that either of these
conditions apply at this point in time.
X. CONCLUSION
...Because the right to vote is the pre-eminent right in the Declaration of Rights of the Florida Constitution, the circumstances under which the Secretary may exercise her authority to ignore a county’s returns filed after the initial statutory date are limited.
The Secretary may ignore such returns only if their inclusion will compromise the integrity of the electoral process in either of two ways:
(1) by precluding a candidate, elector, or taxpayer from contesting the certification of election; or
(2) by precluding Florida voters from participating fully in the federal electoral process.
In either such case, this drastic penalty must be both reasonable and necessary. But to allow the Secretary to summarily disenfranchise innocent electors in an effort to punish dilatory Board members, as she proposes in the present case, misses the constitutional mark.
In the present case, we have used traditional rules of statutory construction
to resolve these ambiguities to the extent necessary to address the issues
presented here. We decline to rule more
expansively, for to do so would result in this Court substantially rewriting
the Code.
We leave that matter to the sound discretion of the body best equipped
to address it -- the Legislature.
Because of the unique circumstances and extraordinary importance of the present case, wherein the Florida Attorney General and the Florida Secretary of State have issued conflicting advisory opinions concerning the propriety of conducting manual recounts, and because of our reluctance to rewrite the Florida Election Code, we conclude that we must invoke the equitable powers of this Court to fashion a remedy that will allow a fair and expeditious resolution of the questions presented here.
Accordingly, in order to allow maximum time for contests pursuant to section 102.168, amended certifications must be filed with the Elections Canvassing Commission by 5 p.m. on Sunday, November 26, 2000 and the Secretary of State and the Elections Canvassing Commission shall accept any such amended certifications received by 5 p.m. on Sunday, November 26, 2000, provided that the office of the Secretary of State, Division of Elections is open in order to allow receipt thereof. If the office is not open for this special purpose on Sunday, November 26, 2000, then any amended certifications shall be accepted until 9 a.m. on Monday, November 27, 2000.
It is so ordered. No motion for rehearing will be allowed.
WELLS, C.J., and SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur.
The will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle in election cases.If the manual recount indicates an “error in the vote tabulation which could affect the outcome of the election,” the county canvassing board “shall”:
(a) Correct the error and recount the remaining precincts with the vote tabulation system;
(b) Request the Department of State to verify the tabulation software; or
(c) Manually recount all ballots.The plain language of section 102.166(5) refers to an error in the vote tabulation rather than the vote tabulation system. On its face, the statute does not include any words of limitation; rather, it provides a remedy for any type of mistake made in tabulating ballots.
No deadline is set for filing corrected, amended, or supplemental returns... logic dictates that the period of time required to complete a full manual recount may be substantial, particularly in a populous county, and may require several days.
It is well-settled that where two statutory provisions are in conflict, the specific statute controls the general statute... The more recently enacted provision may be viewed as the clearest and most recent expression of legislative intent.
Because election laws are intended to facilitate the right of suffrage, such laws must be liberally construed in favor of the citizens’ right to vote.
Allowing the manual recounts to proceed in an expeditious manner, rather than imposing an arbitrary seven-day deadline, is consistent not only with the statutory scheme but with prior United States Supreme Court pronouncements.
The legislature authorized the use of electronic tabulating equipment to expedite the tabulating process and to eliminate the possibility of human error in the counting process, not to create a technical obstruction which defeats the rights of qualified voters.
These voters should not be disfranchised where their intent may be ascertained with reasonable certainty, simply because the chad they punched did not completely dislodge from the ballot.
Where the intention of the voter can be fairly and satisfactorily ascertained, that intention should be given effect.
The Secretary may reject ... amended returns only if the returns are submitted so late that their inclusion will preclude a candidate from contesting the certification or preclude Florida’s voters from participating fully in the federal electoral process.
To allow the Secretary to summarily disenfranchise innocent electors in an effort to punish dilatory Board members, as she proposes in the present case, misses the constitutional mark.
We decline to rule more expansively, for to do so would result in this Court substantially rewriting the Code. We conclude that we must invoke the equitable powers of this Court to fashion a remedy that will allow a fair and expeditious resolution of the questions presented here.
In order to allow maximum time for contests pursuant to section 102.168, amended certifications must be filed with the Elections Canvassing Commission by 5 p.m. on Sunday, November 26, 2000