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POS 3691Honors Law and American Society
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The 2000 Presidential Election in Florida
By Mark Tunick
Summary of Events
Eventually the Florida Supreme Court ruled that the butterfly ballot was not illegal and that a re-vote in that county was not warranted (Fladell v. Palm Beach County Canvassing Board, SC00-2373 and SC00-2376, December 1, 2000). The Florida Supreme Court also eventually upheld lower court rulings that while the election supervisor in Seminole and Martin counties acted improperly, the absentee ballots in question should not be thrown out as this would punish voters for the improper behavior of others (Taylor v. Martin County Canvassing Board; Jacobs v. Seminole County Canvassing Board).
On Nov. 11, Bush lawyers went to federal district court in Miami to prevent manual recounts, after Palm Beach County announced it will manually recount all of its 462, 657 ballots.
On Nov. 13, the federal court refused to stop the manual recounts. Manual recounts were underway in Dade, Broward, Palm Beach and Volusia counties. But there was a dispute over the deadline for certifying the votes. Florida's secretary of state, Katherine Harris, a Republican appointed by Governor Jeb Bush, and a co-chair of George W. Bush's presidential campaign in Florida, is part of the executive branch in Florida and is charged with officially certifying the votes cast in Florida. She and other election officials who make up the State Elections Canvassing Commission announced on Nov. 13 that the statewide results would be certified on Nov. 14th, not counting absentee ballots. According to Florida law, Sec. 102.111(1), all county returns shall be certified by 5 p.m. on the seventh day after an election, which is 5 p.m. on Nov. 14th, in order to be included in the certification of statewide results. Relying on this statute, and an advisory opinion from the Division of Elections stating that "absent unforeseen circumstances," returns from the county must be received by 5 p.m. on Nov. 14th, Harris announced on Nov. 13 that she would ignore any manual recounts received after 5 p.m. on Nov. 14. The Gore campaign immediately responded with a suit to extend the deadline; they were joined in their suit by the Palm Beach and Volusia county canvassing boards (Palm Beach County Canvassing Board v. Harris).
As of Nov. 14th, Volusia County completed its hand count, and Bush's lead was down to 300. On Nov. 14th, a state trial judge upheld the Nov. 14th deadline but held that further recounts can be considered later by the Secretary of State-the judge noted that Harris has the discretion to decide whether to include or ignore late filed returns. The judge wrote that he himself can not "rewrite the Statute" that stipulates that Nov. 14th, 5 p.m. is the deadline, but that he can't enjoin the Secretary from using her discretion to consider recounts past the deadline (McDermott v. Harris, Fla. 2d Cir. Ct. Nov. 14, 2000).
On Nov. 15th, Broward County's canvassing board decided to begin a manual recount of its 587,928 ballots. Broward and Palm Beach Counties requested that the recounts it was compiling be included in the statewide certification even though they will be submitted past the Nov 14th deadline, and Harris refused.
On Nov. 16th, the Florida Supreme Court permitted manual recounts in Palm Beach and Broward Counties to continue, but left it to a lower court judge to decide whether Ms. Harris must include these votes in the final tally.
On Nov. 16th, Gore filed a motion in the 2nd Cir. Ct. (Leon County) seeking to compel the Secretary of State to accept the amended returns even though they are past the Nov. 14th statutory deadline. Judge Terry P. Lewis issued his decision on Nov. 17, refusing Gore's request. On the same day, the Florida Supreme Court put a hold on Judge Lewis's decision until it could consider Gore's appeal.
On Nov. 18th, Gore's lead is 930, after the overseas absentee ballots are included. Republican supporters of Bush are complaining about what they see as 'irregularities' in the manual (hand) counts underway in Broward and Palm Beach counties.
On Nov. 20th, the Florida Supreme Court heard oral arguments from attorneys for Bush and Gore on whether the hand counts may be included in the final tally.
On Nov. 21st, the Florida Supreme Court issued its decision (Palm Beach County Canvassing Board v Harris). It ruled unanimously (7-0) that the hand counts must be included, and set a new deadline to certify votes of 5 p.m. on Sunday, Nov. 26 or, if the Secretary of State's office is closed on Sunday, the deadline would be on the following Monday. The Sec. of State announced that she will keep her office open on Sunday, so the new deadline was 5 p.m. Nov. 26. The primary reason for their setting a new deadline of Nov. 26th was, the Court explained, to ensure that there remained sufficient time for contest actions before Dec. 12th (see below).
On Nov. 22, Miami-Dade County, which had begun a manual recount of all the votes, canceled its recount. Republican party faithfuls had been protesting at the location where votes were being hand counted in Miami, and democrats maintained that 'republican thugs' used the threat of violence to intimidate the canvassing board to stop the recount. The canvassing board explained publicly that it stopped the recount because it did not have enough time to complete it by Nov. 26th. Broward and Palm Beach Counties continued their recounts and announced that they believed they could meet the Nov. 26th deadline.
On Nov.22, Bush's lawyers appealed the Florida Supreme Court's decision to the United States Supreme Court, arguing that the Florida Supreme Court effectively "rewrote" Florida's statute 102.111 by changing the Nov. 14th deadline to Nov. 26th. They claimed that this violates Article II of the Constitution, and a federal law enacted by Congress, 3 U.S.C. 5.
Bush's argument:
Article II of the U.S. Constitution holds that: "Each State shall appoint, in such Manner as the Legislature therefore may direct, a Number of Electors..." Bush argued that this provision gives the state legislature, not the state judicial branch, plenary (or 'total') power to choose its electors, and that the Florida legislature used this power, granted expressly in the U.S. Constitution, in setting the Nov. 14th 5 p.m. deadline. In extending this deadline, the Florida Supreme Court exceeded its authority, since Article II grants the legislature, not the courts, complete control in choosing presidential electors.
Bush also argued that the Supreme Court in effect undermined 3 U.S.C. 5. This federal law holds that
"If any state shall have provided, by laws enacted prior to the day fixed for the appointment of the electors [Nov. 7th], 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 [which is Dec. 18th], 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..."
The law is called the "safe harbor provision." According to the Constitution, Congress counts up the electoral votes presented by each state to determine who is president. The electors meet to vote on Dec. 18th, and Congress counts these votes on Jan. 5th. In rare cases, such as the 1876 presidential election, some states have submitted competing slates of electors. In order to avoid having to settle controversies within a state as to which slate of electors actually reflects the choice of that state, Congress enacted a law that says to the states, if you certify your slate of electors by Dec. 12th, six days before the Dec. 18th date at which electors meet to vote, and that slate of electors was selected according to laws you enacted prior to election day (Nov. 7th) and you did not change the rules you use for selecting electors after Nov. 7th because you didn't like the results of the vote on Nov. 7th, then we bind ourselves to accept your slate of electors; but if you fail to do this, we cannot guarantee that we will count your electors. The statute establishes a safe harbor in the sense that it says that if states certify their slate of electors by Dec. 12, those electors are safely harbored and are assured of being uncontested by Congress. But if you miss this deadline, or if you make the deadline but did so by changing your laws concerning the selection of electors after the Nov. 7th election, we cannot guarantee that we will count your electors. The Bush lawyers argued that the law concerning selecting electors in Florida prior to Nov. 7th was, 'certify the votes by Nov. 14th'; and that the Florida Supreme Court changed the law by extending this deadline to Nov. 26th so that manual recounts would be included. Therefore, Bush argues, Florida would lose its safe harbor, since the electors it submits by Dec. 12th were not elected according to the law in force prior to Nov. 7th.
The Gore attorneys responded in their brief to the U.S. Supreme Court that the Florida Supreme Court acted properly. It merely "interpreted" and did not "change" the law. Florida law is conflicting: Sec. 102.111 sets a Nov. 14th deadline but Sec. 102.166 provides for manual recounts. Since manual recounts can't possibly be completed by Nov. 14th, these two statutes are in conflict, and the Florida Supreme Court, as the highest judicial court in the state, must interpret these laws reasonably, so that both can be given effect. Interpreting a law is not the same as rewriting or changing the law. Gore also noted that Sec. 102.111 was enacted in 1951 and says that the Sec. of State "shall" ignore returns that aren't received by 5 p.m. of the seventh day following the election (Nov. 14). But another statute, Sec. 102.112, was enacted in 1989, which provides that returns not received after a certain date "may" be ignored and that members of the county canvassing boards "shall" be fined if they submit returns late. Gore argued that these two sections also conflict, and so the Florida Supreme Court, as the interpreter of the law, is within its right to reconcile these statutes by extending the deadline. The Florida Court did not make "new" law, it merely interpreted existing law that was unclear and conflicting, and so the safe harbor law was not violated.
The U.S. Supreme Court agreed to hear Bush's appeal, and set oral arguments for Friday Dec. 1st.
In the meantime, votes were being counted in Broward and Palm Beach counties over the Thanksgiving holiday. After Miami-Dade county's canvassing board voted to stop the manual recount, Gore went to court to force them to continue, but the Florida Supreme Court refused this request. Broward county was able to complete its recount by the Nov. 26th deadline, but Palm Beach County missed the deadline by a few hours.
At 5 p.m. on Nov. 26th, Sec. of State Harris accepted the results of the manual recount in Broward but not in Palm Beach county, and certified Mr. Bush the winner in Florida by 537 votes, even though an appeal was underway as to the validity of the extension of the deadline to Nov. 26th. She did not count 215 votes that the Palm Beach County canvassing board identified as a net gain for Gore, because they had not completed their recount by the 5 p.m. deadline and she refused to include votes of a partial manual recount. She also refused to include the 436 additional votes for Gore and Bush resulting in a 168 net-gain for Gore that were identified by the Miami-Dade canvassing board from the partial manual recount they were able to conduct before electing to stop the recount. Secretary of State Harris refused to count these votes for the same reason: partial manual recounts should not be counted.
The U.S. Supreme Court announced its opinion on Monday Dec. 4th (Bush v. Palm Beach County Canvassing Board). In its unanimous, unsigned (per curiam) opinion, the Court decided that it lacked sufficient information to resolve the dispute, vacated the judgment and sent the case back to the Florida Supreme Court, asking it to clarify the basis of its opinion.
The primary legal issue in the case before the U.S. Supreme Court involved a "protest" action under 102.166 of the Florida Statutes. Because Gore decided on Nov. 27th to "contest" the Florida results, the protest action essentially became irrelevant, and a new set of proceedings ensued on Nov. 27th. On Dec. 11th, the same day in which the U.S. Supreme Court was deciding the "contest action" (see below) that ultimately resolved the voting controversy, the Florida Supreme Court issued a new opinion to clarify it's previous decision of Nov. 21st as requested by the U.S. Supreme Court in its Dec. 4th opinion-see Palm Beach County Canvassing Board v. Harris, 2000 Fla. Lexis 2395, Dec. 11, 2000.
Sec. 102.168 holds that the certification of election results may be contested in a state circuit court within a certain period of time following certification. Gore filed his contest action in sufficient time. The statute lays out grounds for contesting the certification, and among these grounds is the "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" (subsection (3)(c)). Gore claimed that he failed to receive a number of votes because machines fail to read all the legal votes. Where punchcard ballots are used, a voter intending to vote for Gore may fail completely to remove the chad with the stylus, and so the machine may fail to register this vote. While voters are asked to follow instructions when they vote, and the instructions say that voters must make sure and remove all hanging chads so that there is a clear hole, Florida case law has established that the failure by a voter to follow instructions does not disqualify their vote (see Beckstrom v. Volusia County Canvassing Board, Florida Supreme Court, March 19, 1998). Noting that there were far more undervotes in counties using punchcard ballots than in those using computer-scanned ballots, Gore contended that there were a sufficient number of undervotes in Miami-Dade and Palm Beach county that, if read manually, would yield votes for Gore, as to cast in doubt the results of the election.
Gore filed a contest claim in the Leon County Circuit Court with Judge N. Sanders Sauls. On Nov. 28th Judge Sauls rejected Gore's request for an immediate hand recount of the disputed, under-vote ballots from Miami-Dade and Palm Beach, and rejected Gore's request to have the judge require the Secretary of State to certify Gore's gains resulting from the partial manual recounts already conducted in Miami-Dade and Palm Beach counties (168 and 215 votes respectively), and ordered a hearing.
On Saturday Dec. 2, on national television, a two-day trial began on the contest action before Judge Sauls. Statisticians and experts on the ballot machines presented testimony and were cross-examined. [Closing arguments for both attorneys are on videotape] On Monday, Dec. 4th, Judge Sauls issued his opinion, in which he rejected Gore's arguments and refused to order a manual recount of the undervotes [See Gore v. Harris, Cir. Ct. of 2nd Judicial Circuit, Dec. 4 ruling]. Judge Sauls argued that
"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...would be different from the result which had been certified by the State Elections Canvassing Commission."
Besides doubting the statistical evidence that there were an inordinate number of undervotes in Miami-Dade and Palm Beach counties and that these undervotes would probably have given Gore a victory in the statewide election, Judge Sauls noted that there was no indication that the previous counting of votes was conducted illegally, negligently, or fraudulently. Further, he held that Gore's request to recount only undervotes, and only undervotes in selected counties, was improper. He found that the Dade county canvassing board did not abuse its discretion in its decision to stop the recounting process.
Gore appealed Judge Sauls' decision to the Florida Supreme Court (Gore v. Harris). On Dec. 6th, lawyers for Gore and Bush presented their briefs to the Court, and oral arguments before the Florida Supreme Court took place on Dec. 7th [see videotape].
Gore's attorneys argued in their brief that the ruling of Judge Sauls was erroneous because Judge Sauls misapplied Florida law. Florida law, they argued, requires recounts only of contested ballots-the undervotes in the contested counties-and not, as Judge Sauls ruled, of all ballots in the state; and Florida law does not require the plaintiff (Gore) to establish a "reasonable probability that the results of the election would have been changed" before reviewing contested ballots. The Bush attorneys defended Judge Sauls' decision.
On Dec. 8, the Florida Supreme Court issued its 4-3 opinion in favor of Gore, reversing Judge Sauls' decision (see Gore v. Harris, 2000 Fla. Lexis 2373, Dec. 8, 2000). The Court ordered the Leon County circuit court to oversee an immediate manual recount of all undervotes, not just in the two counties requested by Gore, but in all counties where there were machine-undercounts for the president. This involved perhaps 45,000 ballots. The Court also ruled that the circuit court should enter any orders necessary to ensure the inclusion of the additional legal votes for Gore in Palm Beach County (estimated at 215), and the 168 votes for Gore from Miami-Dade County.
Judge Sauls recused himself without explanation, meaning that he would not have to oversee the recount process, and was replaced by Judge Terry P. Lewis, another judge of that circuit court. Judge Lewis held a hearing late into the evening of Dec. 8th as to how the recount should proceed. Lawyers for Bush requested the Judge to issue a clear standard as to what should be counted as a vote, so that there would not be variations among counties. Judge Lewis settled on the standard that the Florida Supreme Court announced in the conclusion of its majority opinion:
"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)'."
Judge Lewis requested county canvassing boards to begin the process of recounting the following morning (Saturday Dec. 9), and to fax to him a progress report early Saturday afternoon, and to complete the recount by Sunday Dec. 10, so that the Florida vote could be certified by Dec. 12, in time to take advantage of the safe harbor provision of 3 U.S.C. 5. Judge Lewis arranged for the contested ballots from Palm Beach and Dade counties, which had been transported to Tallahassee, to be counted in Leon County under his supervision.
Bush immediately filed an appeal to the U.S. Supreme Court, asking them to stop the recount and to overturn the decision of the Florida Supreme Court. Bush also filed a request to stop the recount with a federal court in Atlanta. On Saturday, as counties in Florida were beginning to manually count undervotes, the federal court in Atlanta ordered that the recount could proceed, though it issued a stay preventing any recounted votes from being certified until the U.S. Supreme Court could review the Florida Supreme Court decision. Minutes later, the U.S. Supreme Court, in a 5-4 vote, agreed to issue an order that the recount in Florida be stopped, and that it would hear oral arguments on Bush's appeal on Monday, Dec. 11th.
In the meantime, on Dec. 6th, leaders of the Florida State legislature called a special session to appoint electors pledged to Mr. Bush. Members of the Republican-dominated legislature argued that if the recount proceeded and went past the Dec. 12th safe-harbor deadline, Florida's electoral votes might not be counted, and under Article II, they had the power to select the electors as they choose. On Dec. 12th, the Florida House voted to appoint electors for Mr. Bush, but the U.S. Supreme Court resolved the issue before the Florida Senate took action.
Oral arguments before the U.S. Supreme Court took place on Dec. 11 (see videotape). The U.S. Supreme Court will normally defer to state courts when interpreting state issues such as statewide elections. The Court only hears cases that involve a 'federal' issue, that is, a claim that the U.S. Constitution, or federal law, has been violated. In challenging the Florida Supreme Court opinion before the U.S. Supreme Court, Bush had to explain why there was a federal issue.
Bush attorneys raised several points in their brief.
A) Equal protection objection: The U.S. Constitution's equal protection clause of the 14th Amendment reads, "nor shall any state...deny to any person within its jurisdiction the equal protection of the laws." The clause was used in the past to strike down laws in the south that layed out one set of rules for white people and another set of rules for blacks. Bush argued that when manual recounts took place in Florida in selected counties during the protest action, there were "wide discrepancies" regarding the evaluation of ballots, and that standards vary even from one canvassing board member to another in the same county, and so any use of manual recounts without clear standards raises the concern that people are treated differently depending on who is counting their ballots. Bush also complained that while the Florida Supreme Court claims to be concerned that every vote count, in ordering the recount of under-votes but not over-votes, it treats ballots differently.
B) Article II of the U.S. Constitution: Article II, as stated earlier, grants exclusive authority to state legislators to select the electors. Bush argued that "state constitutions cannot alter Article II's direct and exclusive grant of authority to legislatures, and because the Florida Legislature did not delegate to it the power to do so, the Florida Supreme Court did not have jurisdiction or authority to decide this case. The Florida Legislature has granted jurisdiction over election contests only to Florida circuit courts." The Florida Supreme Court claims that it has the power of judicial review to review decisions of circuit courts, but, Bush argued, that power is granted by the Florida Constitution, and a state constitution cannot be used to alter or undermine the U.S. Constitution. Article II provides that state legislatures, not state courts, nor state constitutions, determine electors. While state legislatures are free to delegate to state courts the power to review the methods they adopt, the Florida legislature has not done this.
Bush cited a Supreme Court opinion from 1892, McPherson v. Blacker, 146 U.S. 1, to support his position regarding Article II. That case involved a challenge to the Michigan legislature's scheme of selecting presidential electors by districts; the legislature cut up the state into districts, and each district would select its elector, rather than have electors decided by statewide vote. The Michigan Supreme Court upheld the legislature's plan, and the U.S. Supreme Court affirmed, noting that Article II leaves it to the state legislators how to select electors.
C) 3 U.S.C. 5 (Safe Harbor provision): Bush repeated the objection it had made against the earlier Florida Supreme Court opinion concerning the protest action, the opinion that the U.S. Supreme Court had vacated, and which the Florida Supreme Court had yet to clarify to the U.S. Supreme Court. The objection is that the Florida Supreme Court, by requiring a recount, and allowing county canvassing boards to do recounts in most counties while a circuit court judge does recounts for Dade and Palm Beach counties, has in effect rewritten the law that was in effect in Florida as of Nov. 7th, thereby precluding Florida from the safe harbor protection afforded by 3 U.S.C. 5.
Gore's attorneys responded to each of these points in their brief to the Court.
A) Equal protection: Gore argued that the recount ordered by the Florida Supreme Court is not without standards; rather, a clear standard was used, a standard imposed by the Florida legislature itself, that one look at the clear intent of the voter in deciding if a vote was cast. Bush's complaints about irregularities in the manual recounts that already took place "have no support in the record and are based on unsubstantiated rumors, untested 'evidence,' and biased ex parte submissions." Moreover, failing to have manual recounts might itself violate the equal protection clause, since there is evidence that whether a ballot is accurately counted by machine depends on the type of machine used, and these machines vary from county to county.
B) Article II: The Florida legislature has in fact delegated power to the Florida Supreme Court to review its election statutes, so the Florida Supreme Court has not violated Article II. Under Florida law, legislative provisions granting jurisdiction to the circuit courts, as does 102.168, unless they expressly say otherwise, are always taken to include review by the state Supreme Court. Moreover, the Florida Legislature itself drafted, proposed, and approved through bicameral passage the very provisions of the state constitution that provide for appellate jurisdiction.
Gore also argued that the Bush attorneys misuse McPherson v. Blacker: that case couldn't possibly stand for the position that a state Supreme Court may not challenge the presidential election laws enacted by its state legislature, for in McPherson, the U.S. Supreme Court upheld the opinion of the Michigan Supreme Court, which had itself upheld the Michigan law. If a state Supreme Court had no jurisdiction over such laws, the U.S. Supreme Court would have vacated the Michigan Supreme Court's opinion rather than affirm it.
C) 3 U.S.C. 5: Gore argued that the Florida Supreme Court was not writing a new law, but merely interpreting existing law, which is the prerogative of courts. "It surely cannot be the case that the law 'changes' when a jurisdiction's highest court settles the meaning of state law." The contest statute, 102.168, enacted by the legislature, gives broad authority to circuit courts to devise remedies that would allow contested ballots to be counted, and the Florida Supreme Court had ordered the circuit court to do just that. Moreover, the safe harbor provision does not exclude the counting of votes past Dec. 12th; rather, it merely says that if a state wishes to protect its electoral votes, it may have a safe harbor if the votes are certified by Dec. 12th. It does not require a state to take advantage of the safe harbor.
The Supreme Court issued its decision late in the evening of Dec. 12th. The Court ruled 5-4 that there may be no further recounting of Florida's contested votes (Bush v. Gore, 531 U.S. , Dec. 12, 2000). The decision was unsigned (per curiam), but was not unanimous. Usually per curiam decisions are unanimous. The decision held that the recount ordered by the Florida Supreme Court amounts to a violation of the equal protection clause, since the standard it set forth, that canvassing boards must discern the "clear intent of the voter," was too vague, and absent more specific substandards, ballots would be treated differently depending on who was doing the counting, and this violated the U.S. Constitution's XIVth Amendment requiring that all persons receive the "equal protection of the law." Justice Stevens, joined by Justices Ginsburg and Breyer, dissented from the view that a recount of undervotes would necessarily violate the equal protection clause. Justice Stevens writes,
"Admittedly, the use of differing substandards for determining voter intent in different counties employing similar voting systems may raise serious concerns. Those concerns are alleviated-if not eliminated-by the fact that a single impartial magistrate will ultimately adjudicate all objections arising from the recount process."
The decision returned the case to the Florida Supreme Court at roughly 10 p.m. on Dec. 12, essentially saying that it would need to come up with fair standards for counting undervotes that do not violate the equal protection clause, and have the recount completed, and all subsequent disputes of the recount fairly resolved, prior to 12:01 a.m. on Dec. 13 so that Florida can reach the safe harbor of 3 U.S.C. 5. Five of the Justices-Chief Justice Rehnquist, and Justices Scalia, Thomas, O'Connor, and Kennedy-- believed this would be impossible to do, so that in effect, though not explicitly, they declared that there can be no more recounting of votes in Florida, and Bush wins the election. While Justice Souter shared the equal protection concerns of these 5 justices, he did not feel that the Dec. 12th deadline was firm. He argued that so long as the Florida Supreme Court could establish fair standards so that the recount could be completed by Dec. 18th, a recount could proceed. So while 6 Justices most likely agreed with the per curiam opinion to remand the case to the Florida Supreme Court, only 5 Justices agreed that there can be no more recounts in Florida.
On Dec. 13th, Gore announced his concession, and George W. Bush became president-elect.