No. 00-836 

IN THE 

Supreme Court of the United States 

GEORGE W. BUSH, 

Petitioner, 

v. 

PALM BEACH COUNTY CANVASSING BOARD, ET AL., 

Respondents. 

Brief on the Merits of Respondents Katherine Harris, Florida Secretary of State, 
and Katherine Harris, Laurence C. Roberts, and Bob Crawford, 
as Members of the Florida Elections Canvassing Commission 

Deborah K. Kearney 
Joseph P. Klock, Jr. 

General Counsel 

Counsel of Record 

Kerey Carpenter 

John W. Little, III 

Assistant General Counsel 

Arthur R. Lewis, Jr. 

Florida Department of State 
Gabriel E. Nieto 

PL-02 The Capital 

Ricardo M. Martínez-Cid 

Tallahassee, FL 32399-0250 
Steel Hector & Davis LLP 

850.414.5536 200 S. Biscayne Blvd. 

Suite 4000 
Bill L. Bryant, Jr. 

Miami, FL 33131-2938 
Katz, Kutter, Haggler, Alderman 
305.577.7000 

Bryant & Yon, P.A. 
Highpoint Center, 12 Floor 

th 

106 East College Avenue 
Tallahassee, FL 32301 
850.224.9634 

INTRODUCTION 

Respondents the Florida Secretary of State and the Florida Elections Canvassing 
Commission are charged with administering Florida’s election laws. This brief focuses primarily 
on explaining the legal and practical effects of the Supreme Court of Florida’s November 21, 
2000 decision in Palm Beach Canvassing Board v. Katherine Harris, et al., Case Nos. SC 00- 
2346, SC 00-2347, and SC 00-2348 (Fla. filed Nov. 21, 2000) on Florida’s election law and its 
application to the November 7, 2000, general election of Presidential and Vice-Presidential 
Electors. We respectfully submit that the Supreme Court of Florida’s decision, while establishing 
the future rights and procedures under Florida law, deviated from the law of the state as it existed 
on the day the Presidential Electors were to be elected by the people of Florida, November 7, 
2000, in at least five important respects. We also address the question posed by this Court to the 
parties: “What are the consequences of this Court finding that the decision of the Supreme Court 
of Florida does not comply with 3 U.S.C. § 5?” 

2 

SUMMARY OF THE ARGUMENT 

The decision of the Supreme Court of Florida changed Florida law in several important 
respects. First, the decision significantly rewrote the deadlines for county canvassing boards to 
certify election returns to the state. While the Florida legislature created a strict deadline, the 
court supplanted this with a loose standard that merely requires certification to allow sufficient 
time for an election contest to be completed by the federal deadline for appointment of 
Presidential Electors. In applying this new standard, the court also created a specific deadline of 
November 26 that applies solely in this election. Second, the decision allows county canvassing 
boards to amend timely-filed returns after the statutory deadline for certification of election results 
has passed, despite absence of statutory authority for such an amendment. Third, in light of the 
elimination of the deadline for county certifications and the new plenary amendment rights, the 
decision precludes the Florida Elections Canvassing Commission from performing its statutory 
duty to certify election results within the statutory time frame. Instead, the Commission must 
now wait for any protracted recounts to be completed and amendments to be filed before 
performing this function. 

Fourth, the decision significantly broadened the power of county canvassing boards to 
conduct manual recounts. Under prior interpretations of Florida law, such recounts were used 
only to remedy a failure in the system of automated vote tabulation. Now, they may be used at 
any time, for any purpose, at the unfettered discretion of local officials. Finally, in conjunction 
with this new recount power, the decision below grants county canvassing boards newfound 
powers to set standards for evaluating ambiguous ballots. Because manual recounts were never 
meant to be used as broadly as is now allowed, the Florida Legislature, unlike those of other 
states that have enacted broad manual recount rights, never created standards by which to judge 
ambiguous, improperly executed machine tabulation ballots. The broad recount rights created by 
the court leave this gap to be filled by local officials on an ad hoc basis. 

3 

STATEMENT OF THE CASE 

I. THE DUTIES OF FLORIDA OFFICIALS AND AGENCIES WITH REGARD TO 
ELECTIONS 

The Florida state officers and executive agencies before the Court are the Secretary of 
State (“Secretary”), the Division of Elections (“Division”), the Florida Elections Canvassing 
Commission (“Commission”), and the Attorney General (the “Attorney General”). The powers 
and duties of each officer are summarized below. 

A. The Secretary 

The Secretary is an independently elected constitutional officer and a member of Florida’s 
executive cabinet. Fla. Const. art. IV, § 4. The Florida Constitution provides that each cabinet 
member “shall exercise such powers and perform such duties as may be prescribed by law.” Id. 
The Secretary is the state’s chief elections officer. Fla. Stat. §§ 15.13 and 97.012 (2000). As 
such, the legislature has vested the Secretary with the authority to administer and oversee all 
elections in the state, and requires the Secretary to “[o]btain and maintain uniformity in the 
application, operation, and interpretation of the election laws.” Id. § 97.012(1) (2000). 

B. The Commission 

The Commission is a special purpose state agency composed of the Governor, the 
Secretary, and the Director of the Division of Elections. 

Fla. Stat. § 102.111 (2000).1 

The Commission’s purpose under the Florida Election Code is to canvass election returns, 
certify the results of the election, and declare a winner for each office based on that certification. 
Id. The Commission is under a strict duty to certify as soon as all county returns are received, 
and, in any case, no later than seven days following a general election. If any county returns “are 
not received by the Department of State by 5 p.m. of the seventh day following an election, [they] 
shall be ignored, and the results shown by the returns on the file shall be certified.” 
Id. §2 

102.111(1). 

1 

In this case, Florida’s governor recused himself from the certification process and 

Florida’s Commissioner of Agriculture, Bob Crawford, was appointed to fill the vacancy. 

Florida law contemplated that the election results would be certified no later than the 

2 

seventh day following the election. Fla. Stat. § 102.111 (2000). For federal offices, however, a winner 
may not be declared until three days later. That is, however, not a matter of state law; it results from a 
consent decree between the state of Florida and the United States which requires Florida to count absentee 
ballots from citizens living outside the United States that are received up to 10 days following a federal 
election. Bush Petition App. at 27a, n. 46l. 

4 

C. The Division of Elections 

The Division is a sub-agency within the Department of State and is subordinate to the 
Secretary and to the Commission. It functions as the support and advisory staff to the 
Commission. Id. § 102.111(2) (2000). The Florida Legislature has also specifically empowered 
the Division to provide advisory opinions interpreting the Florida Election Code, Chapters 97 to 
106, Florida Statutes (the “Election Code”) and regarding other elections matters: 

The Division of Elections shall provide advisory opinions when requested by any 
supervisor of elections, candidate, local officer having election-related duties, 
political party, political committee, committee of continuous existence, or other 
person or organization engaged in political activity, relating to any provisions or 
possible violations of Florida election laws with respect to actions such supervisor, 
candidate, local officer having election-related duties, political party, committee, 
person, or organization has taken or proposes to take. A written record of all such 
opinions issued by the division, sequentially numbered, dated, and indexed by subject 
matter, shall be retained. A copy shall be sent to said person or organization upon 
request. Any such person or organization, acting in good faith upon such an advisory 
opinion, shall not be subject to any criminal penalty provided for in this chapter. 

The 

opinion, until amended or revoked, shall be binding on any person or organization 
who sought the opinion or with reference to whom the opinion was sought, unless 
material facts were omitted or misstated in the request for the advisory opinion. 

Id. § 106.23(2) (emphasis added). The Division is thus given primary responsibility for 
interpreting the Election Code, and its interpretation “until amended or revoked, shall be binding 
on any person or organization who sought the opinion or with reference to whom the opinion was 
sought.” Id. 

D. The Attorney General 

Florida’s Attorney General, like the Secretary, is an independently elected, co-equal 
cabinet officer. The Attorney General is the chief legal officer of the state and may generally issue 
advisory legal opinions. Fla. Stat. § 16.01(9) (2000). Opinions of the Attorney General, unlike 
those of the Division, are not binding on the party seeking the opinion. See State v. Family Bank 
of Hallandale, 623 So. 2d 474, 478 (Fla. 1993); Goodman v. County Court, 711 So. 2d 587, 589 
(Fla. Dist. Ct. App. 1998). 

The Attorney General does not issue opinions on election matters. See Op. Att’y Gen. 
Fla. 86-55 (1986) (“it is the policy of this office to refer all questions concerning the Elections 
Code, . . . to the Division [of Elections] for its response”); Op. Att’y Gen. Fla. 87-17 (1984) 
(“any question relating to the applicability or possible violation of Ch. 106 or other provisions in 
the Florida election laws should be submitted to the Division of Elections”). Indeed, in a recent 

5 

response to a request for an opinion, the Attorney General’s office stated that it lacked 
jurisdiction to issue an opinion on an election matter: 

After reviewing your correspondence, I regret to inform you that the Attorney 
General’s Office does not have jurisdiction in this matter. I have taken the liberty, 
however, of forwarding your letter to the Department of State, Division of Elections, 
which appears to be the appropriate authority to review your concerns. 

Letter from Paula Wood to Frank Cuomo, dated May 30, 2000 (emphasis added). 

II. THE ELECTION CODE 

A. Compiling Election Results and Certifying a Winner 

Chapter 102 of the Florida Statutes provides the statutory framework for certification of 
election results. Elections are administered by local officials in each county. Each of Florida’s 67 
counties has its own election canvassing board, whose function is to compile the results from the 
various precincts in the county and transmit a return to the Commission. Fla. Stat. § 102.141 
(2000). These returns must be filed immediately upon the certification of the county’s election 
results by the county canvassing board and, in any event, “by 5 p.m. on the 7 
day following the . 

th 

. . general election.” 

Id. § 102.112(1).3 

The Commission is charged with the duty of certifying the results of statewide elections 
and declaring a winner based on the returns filed by the county canvassing boards. Id. § 102.111. 
It is required to perform this function and to declare the winner of the election immediately upon 
receipt of returns from all counties. Id. § 102.111(1). If any county fails to file its return within 
seven days of a general election, the Commission is directed to ignore that county’s returns and 
certify the results of the election and to declare a winner based solely on the returns that were 
timely filed. Id. 

In performing its certification function, the Commission is not allowed to go look beyond 
the face of the return or question the veracity of the return submitted by the counties. It is, 
however, allowed to reject a return that appears “irregular or false” such that the Commission is 
unable to determine the true vote for any office. Id. § 102.131. 

B. Pre-Certification Election Protests and Manual Recounts 

Any candidate or voter has the right to file an election protest with the county canvassing 
board. Id. § 102.166(1). The protest procedure is typically resolved informally by the board and 
does not involve the Florida courts. The protest may be filed by the latter of five days after the 

3 th 

election. 

As discussed in note 1, supra, certification occurs on the 10 
day following a federal 

6 

election or the date the results of the election are certified to the state. Id. § 102.166(2). Protests 
are typically used to address only the computation of election results. 

As part of the protest procedure, any candidate or political party (but not a voter) may 
request a manual recount within 72 hours of the date of the election. Id.§ 102.166(4). In 
response, the county canvassing board may conduct a partial recount involving at least one 
percent of the votes cast for the protesting candidate. Id. 102.166(4)(d). If this sampling shows 
an “error in vote tabulation,” there are several steps to be followed. Specifically, the county 
canvassing board must: 

(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. 

Id. § 102.166(5). The Election Code provides procedures for assigning the officials responsible 
for the recount and defines their functions but does not contain any criteria by which ballots are to 
be evaluated. Id. § 102.166(6). 

C. Post-Certification Election Contests 

Following certification of the results of the election by all counties, any voter, taxpayer or 
unsuccessful candidate may contest the results of an election. Id. § 102.168. A contest must be 
initiated within 10 days after the last county canvassing board certifies its returns to the state or a 
shorter time if a protest was filed. Id.§ 102.168(2). 

A post-certification election contest differs from a pre-certification election protest in 
several respects: 

• The contest is a full evidentiary proceeding, Id. § 102.168(2), while the protest is an 
informal administrative proceeding with no formal fact-finding or trial-type procedures. 
Id. § 102.166. 

• The contest is conducted in a central location, the circuit court for the county of the state 
capital. Id. § 102.168(2). The protest, on the other hand, is administered by the county 
canvassing board in the county in which it is brought, and numerous separate protests may 
be raised in various counties. Id. § 102.166. 

• The contest takes into account the impact of any perceived irregularities in the election as 
a whole. See Nelson v. Robinson, 301 So. 2d 508 (Fla. Dist. Ct. App. 1974); Smith v. 

7 

Tynes, 412 So. 2d 925 (Fla. Dist. Ct. App. 1982). A protest, in contrast, is limited to the 
county in which it is brought. Fla. Stat. § 102.166(1) (2000). 

• A contest requires an affirmative evidentiary showing by the petitioner that (i) there has 
been misconduct, fraud or corruption, (ii) the winning candidate is ineligible for office, (iii) 
legal votes were rejected, and that those votes would change the outcome of the election, 
or (iv) another circumstance proving that the outcome of the election was incorrect. Id. § 
102.168(3). Conversely, no specific evidentiary showing is required for a protest. Id. § 
102.166(3). 

Unlike a protest, there is no specific time limitation on an elections contest. Indeed, there 
have been times in Florida when a contest resulted in the removal and substitution of an officer 
well into his term. By federal law, though, a contest for any presidential election must be 
completed six days before the meeting of the state electors, which in this case is December 18, 
2000. 3 U.S.C. § 5 (1997). 

ARGUMENT 

I. FLORIDA LAW AS APPLIED PRIOR TO THE DECISION BELOW. 

Before the Supreme Court of Florida issued the decision below on November 21, Florida 
elections were administered according to long-standing procedures set forth by the state 
legislature. These procedures required results to be reported and certified by specified deadlines, 
provided mechanisms for dealing with errors in vote tabulation, permitted manual recounts in 
certain limited circumstances involving a failure in the vote tabulation system, and allowed 
affected voters and candidates to contest an election after certification. 

A. Election Protests and Certification Deadlines 

Under the Election Code, any affected voter, political party or candidate may protest 
election returns before the canvassing board certifies the results of the office being protested, or 
within five days, whichever is later. Fla. Stat. § 102.166(1) (2000). In the event of a protest, the 
county canvassing board is required to follow specific procedures to verify the accuracy of the 
returns according to statutory procedures that vary depending on whether paper ballots designed 
for hand counting, voting machines, or machine tabulated paper ballots were used. Id.. § 
102.166(3). In each case, the remedies are designed to ensure that the vote counting system 
functioned as intended. Id. 

As part of section 102.166, only a candidate or political party is permitted to file a written 
request with the county canvassing board for a manual recount. Id. § 102.166(4)(a). Provided 
the request is timely, the county canvassing board is given discretion to decide whether to allow a 
statutorily-defined sample manual recount to determine whether there was a mechanical or 
software problem in the vote tabulation. Id. § 102.166(4)(c). 

8 

In any case, however, the protest period and any recount had to be completed and the 
election results certified to the Florida Department of State within seven days of the election. Id. 
§ 102.111(1). Immediately upon certification by the county canvassing boards, the Commission 
was required to certify the elections results and declare a winner. Id. If any county failed to 
certify by the deadline, the Election Code required that its returns be ignored and the certification 
proceed notwithstanding the omissions. 

B. Post-Certification Election Contests 

The conclusion of the seven-day protest and certification process triggers the right of any 
affected voter, taxpayer or unsuccessful candidate to file an election contest. Id. § 102.168(1). 
Unlike pre-certification protests, which are reviewed by local officials on a county by county 
basis, a contest takes into account all facts and circumstances regarding the election on an 
evidentiary record to determine whether the ultimate result was affected by the alleged 
irregularities. See Nelson v. Robinson, 301 So. 2d 508 (Fla. Dist. Ct. App. 1974); Smith v. 
Tynes, 412 So. 2d 925 (Fla. Dist. Ct. App. 1982). Because contests focus on the results of the 
entire election, they cannot be strategically limited to increasing the vote count in selected 
strongholds of one party or candidate. 

The Florida Legislature imposed no specific time limitations on a judicial election contest, 
but imposed strict time limits on protests and recounts that precede certification, which is the 
prerequisite to a contest. This difference reflects a legislative policy in favor of resolving all 
election disputes, other than errors in the vote tabulation system, through a full evidentiary 
proceeding before a single trial court.4 

C. Use of Pre-Certification Manual Recounting 

Before the decision of the Florida Supreme Court, the Division had interpreted the 
Election Code to allow for a manual recount only where there was some failure in the vote 
tabulation system. This interpretation was based on the language of section 102.166(5), Florida 
Statutes, which requires an “error in vote tabulation” for a full recount to be called and the 
legislative history of that provision, which indicated that manual recounts were to be used to 

4 

Florida law provides that the exclusive venue for an election contest involving a statewide 

race is in Leon County, Florida, the seat of state government. Fla. Stat. § 102.1685 (2000). Exclusive 
venue in Leon County provides a single, centralized, judicial proceeding and avoids a multiplicity of 
lawsuits tried before various courts throughout the state regarding the same election. The Legislature’s 
preference for election contests thus furthers the goals of judicial and administrative economy and finality 
of the result. 

9 

correct defects in the tabulation system rather than to remedy voter error in failing to properly 
execute ballots.5 

The Florida Legislature has charged the Division with the responsibility of answering 
questions from the county canvassing boards concerning the conduct of elections formal advisory 
opinions. Fla. Stat. § 106.23(2) (2000). Consistent with the statutory scheme for manual 
recounts, legislative history and prior interpretation of the statute, the Division issued a formal 
advisory opinion, stating that:6 

[a]n “error in the vote tabulation” means a counting error in which the vote tabulation 
system fails to count properly marked marksense or properly punched punchcard 
ballots. Such an error could result from incorrect election parameters, or an error in 
the vote tabulation and reporting software of the voting system. The inability of a 
voting system to read an improperly marked marksense or improperly punched 
punchcard ballot is not an error in the vote tabulation. Unless the discrepancy 

5 

To minimize the possibility of voter error, general election voting instructions in 

conspicuous print were placed prominently in each polling place. Fla. Stat. § 101.46 (2000). In those 
counties using punch cards, the instructions explained how a voter was to select and punch out the 
appropriate chad on the ballot. The instructions included this specific direction: 

AFTER VOTING, CHECK YOUR BALLOT CARD TO BE SURE YOUR 
VOTING SELECTIONS ARE CLEARLY AND CLEANLY PUNCHED AND 
THERE ARE NO CHIPS LEFT HANGING ON THE BACK OF THE CARD. 

(emphasis in original). When voters followed the instructions, including the removal of any loose chips 
(chads) attached to their ballots, the automatic tabulation system accurately tabulated the ballots. There is 
no contention otherwise. Only the ballots of those voters who, by their own actions, failed to clearly 
indicate their elective choices, as directed, could be affected by the manual recount at issue. Florida law, as 
it existed before November 21, in no way required the results of an election to be altered based on such 
errors. See, e.g., Nelson v. Robinson, 301 So. 2d 508, 511 (Fla. Dist. Ct. App. 1984) (“[M]ere confusion 
does not amount to an impediment to the voters’ free choice if reasonable time and study [by the voters] 
will sort it out.”). 

This opinion was issued at the request of Palm Beach County, pursuant to the Division’s 

6 

duties under Florida law. Unbeknownst to the Secretary, Palm Beach posed an identical question to the 
Florida Attorney General, who issued a response contrary to that of the Division. JA 40-46, 63. The 
Division Opinion is an administrative interpretation of the statutes within its subject matter jurisdiction and 
is binding on subordinate agencies such as the county canvassing boards that request the opinion. This 
opinion “remains binding until properly amended or revoked by the Division itself, or invalidated by a court 
having jurisdiction of the matter.” Smith v. Crawford, 645 So. 2d 513, 521 (Fla. Dist. Ct. App. 1994); see 
also Krivanek v. Take Back Tampa Political Committee, 625 So. 2d 840, 844 (Fla. 1993). In contrast, no 
canvassing board is bound by an Attorney General’s opinion. In fact, it is questionable whether the 
Attorney General has authority to issue an opinion on an election issue, given the specific allocation of this 
function to the Division in section 106.23(2), Florida Statutes. 

10 

between the number of votes determined by the tabulation system and by the manual 
recount of the sample precincts is caused by incorrect election parameters or 
software errors, a county canvassing board is not authorized to manually recount 
ballots for the entire county, nor perform any action specified in Section 
102.166(5)(a) and (b), of the Florida Statutes. 

JA 57 (emphasis added). According to the Division’s binding opinion, the failure of certain voters 
to properly execute their ballots was not a basis for conducting a pre-certification manual recount. 
In this regard, there is no basis in Florida law for a manual recount in selected counties in a 
statewide election. 

The Division’s interpretation was the statement of Florida law as it existed prior to the 
election. In section 102.166(5), Florida Statutes, the Florida Legislature used the term “vote 
tabulation” to mean, in the context of counties using automated tabulation, the result derived 
through the electronic or electromechanical equipment. The Division, having extensive experience 
with the application of the statute, recognized the term “tabulation” as a term of art that had 
consistently been used within the context of electronic or electromechanical equipment. When the 
votes are counted by the vote tabulation equipment, the legislature uses the terms “tabulate” or 
“tabulation,” and when votes are counted manually, the Legislature uses the term “recount” rather 
than “retabulate.” See, e.g., Fla. Stat. §§ 101.5603(1), 101.5603(3), 101.5607(1)(b) and 
101.5612. 

Additionally, the Division interpreted the statutes as a coherent whole. When a sample 
manual recount indicates a problem with the vote tabulation system, the county canvassing board 
is first to attempt to correct the error and recount the remaining precincts with the system under 
section 102.166(5)(a), Florida Statutes. If the error cannot be corrected, the board should 
request the Department of State to verify the tabulation system under subsection (5)(b). Finally, if 
the system cannot be made to operate properly, then, as a last resort, the board may manually 
recount all the ballots under subsection (5)(c). Section 102.166(4) was enacted to provide a set 
of remedies when a vote tabulation system failed to read properly marked ballots, with a manual 
recount being the last and most drastic. The statute was not intended to allow individual county 
canvassing boards to use any method of counting votes they might choose after an election, nor 
was it intended to allocate votes from improperly executed ballots that could not be read by 
properly functioning tabulation equipment. 

The Division’s reading of the election law also harmonized section 102.166(5) with the 
other provisions in the Election Code. The reference to “vote tabulation” must be read in 
conjunction with various other provisions of the Election Code wherein the term “tabulation” is 
used in the context of the equipment itself. See, id. §§101.5603(1)(definition of “automatic 
tabulating equipment); 101.5606(3) (“automatic tabulating equipment will be set to reject all 
votes” under certain circumstances); 101.5607(1)(b) (“within 24 hours after the completion of any 
logic and accuracy test conducted pursuant to s.101.561(1), the supervisor of elections shall send 
by certified mail to the Department of State a copy of the tabulation program which was used in 

11 

the logic and accuracy testing”); and 101.5612 (“the supervisor of elections shall have the 
automatic tabulating equipment tested to ascertain that the equipment will correctly count the 
votes”). 

Finally, the legislative history confirmed that the Division’s interpretation correctly 
implemented the will of the Legislature. The provisions of section 102.166, Florida Statutes, at 
issue were enacted by the Florida Legislature in 1989 in response to concerns about computer 
failure in elections and the use of unreliable software to tabulate votes. Ch. 89-348, § 15, Laws of 
Florida. These concerns had been raised in the 1988 race for the United States Senate between 
Buddy MacKay and Connie Mack and in subsequent news articles. The Legislature enacted 
sections 102.166(4)-(10), Florida Statutes, to address these concerns as part of what was called 
the “Voter Protection Act.” The Senate Staff Analysis and Economic Impact statement for the 
Voter Protection Act (the identical Senate bill to the House bill that was passed) noted: 

An incident of mechanical problems with an electronic voting system occurred in 
Bradenton, Florida where a seventh of the county’s precincts had to be counted twice 
in one election since the ballots were soggy, became warped and were mangled by the 
voting equipment. Also, an apparent software “glitch” or error was responsible for an 
incident in Ft. Pierce when a machine would count the Democratic votes, but would 
not accept Republican ones. 

Other horror stories related to electronic voting systems have been reported in the 
media, but in testimony before the Joint Committee on Information Technology 
Resources in 1989, supervisors of elections pointed out that there can be problems 
with any kind of voting system. However, many local election officials would agree 
that state certification procedures and local logic and accuracy tests provide a 
reasonable assurance that “electronic” elections are honestly counted. It is generally 
agreed that additional steps could be taken in Florida to improve security procedures, 
while not hampering the already cumbersome elections process, would enhance the 
public’s confidence in our voting system. 

Harris Response to Petition App. at 2. 

As this legislative history indicates, the statute was intended to provide software 
verification and an alternate recounting procedure in connection with a protest, to be used in 
situations in which mechanical or computer problems caused the tabulation system to function 
improperly. The Division never interpreted the legislation to provide for manual recounts to 
evaluate ambiguous ballots that voters failed to properly execute. 

Neither the language of the statute nor the legislative history indicate any intention to 
grant county canvassing boards plenary power to permit manual recounts for virtually any reason. 
The policy of Florida has been that state and county elections are conducted in a uniform manner 
throughout the state. To this end, the Legislature has placed the responsibility to “obtain and 

12 

maintain uniformity in the application, operation, and interpretation of the election laws” with the 
Secretary. Fla. Stat. § 97.012 (2000). The ability of each county canvassing board to establish its 
own standards for determining whether to conduct a recount and then establish its own standards 
for interpreting the intention of voters for various types of ballots (1) runs afoul of the purpose of 
establishing a uniform code and assigning an executive officer the responsibility of maintaining 
uniformity and (2) constitutes the unlawful judicial delegation of legislative authority by vesting 
the boards with unbridled discretion. 

II. THE DECISION OF THE SUPREME COURT OF FLORIDA 

The Supreme Court of Florida’s decision brought about a significant shift in the way the 
Election Code is implemented and applied. 

In so doing, the court recognized that the new rules it 

propounded were at variance with the statutory scheme. It denounced “hyper-technical reliance 
upon statutory provisions,” and noted that “there is no magic in the statutory requirements,” 
obviously recognizing that the new rules it espoused deviated from the literal terms of the 
legislative scheme. Bush Petition App. at 9a, 36a. Similarly, while purporting to resolve 
“ambiguity” in state law and disclaiming any intent to rewrite the Election Code, the court’s 
opinion makes it abundantly clear that it created new law not premised on the statutory language, 
but rather on newly created and generally defined equitable and state constitutional principles:7 

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. The stay order entered on November 17, 2000, by this Court shall remain in 

7 

The court found an ambiguity between sections 102.111 and 102.112 (which state that late 

filed results shall (or may) be ignored) and section 102.166(5), which allows for manual recounts. 
However, this statutory conflict results from the court’s use of section 102.166(5) to create broad rights to 
pre-certification manual recounts that did not previously exist. By expanding the rights created by the 
legislature in this manner, the court created the very conflict it sought to resolve -- the fact that manual 
recounts cannot always be completed in seven days. 

13 

effect until the expiration of the time for accepting amended certifications set forth in 
this opinion. The certificates made and signed by the Elections Canvassing 
Commission pursuant to section 102.121 shall include the amended returns accepted 
through the dates set forth in this opinion. 

Bush Petition, App. at 37a-38a. 

Pursuant to the Supreme Court of Florida’s decision, and in contrast to the legislative 
scheme, Florida law now provides that: 

1. County canvassing boards have the authority to amend returns filed within the 
statutory deadline for up to 12 days after the deadline for certification of the 
election results to accommodate pre-certification manual recounting; 

2. The Commission must accept amended election returns filed after the statutory 
deadline so long as the filing does not violate the judicially created alternative 
deadline of November 26 that was designed to accommodate pre-certification 
manual recounting in this election (but see Fla. Stat. §§ 102.111, 102.112);8 

3. The Commission is to ignore its statutory duty to certify election results based 
solely on the returns filed within the seven-day deadline set by the Legislature, so 
that late-filed amendments to timely filed election returns may be submitted to 
reflect pre-certification manual recounts that extend beyond the deadline (but see, 
Fla. Stat. § 102.111)); 

4. County canvassing boards enjoy broad discretion to order manual recounts in 
selected counties for a statewide election, even where the “error in vote 
tabulation” (i.e., the failure of the tabulation system) previously required under 

8 

November 26 is an absolute deadline developed specifically for this Presidential election. 

For future elections, late results that reflect manual recounts must be accepted unless they are “so late that 
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 an election pursuant to 
section 102.168; or (2) by precluding Florida voters from participating fully in the federal electoral 
process.” Bush Petition App. at 32a. Like the November 26 deadline, this rule adds to the legislative 
enactments. Moreover, as the limitation on late filings applies only to electoral college proceedings, which 
must comply with the strict deadlines in Title 3 of the United States Code, there appears to be no basis to 
ever reject a late filing or late amendment of election results for any offices other than Presidential and Vice 
Presidential Electors. Thus, for most offices, the court has completely eliminated that finality and 
expedient certification required by the Election Code. Such is vastly different from the previously 
understood and applied the intent of sections 102.111 and 102.112. Further, it runs squarely into the 
requirement of the Florida Constitution that the Legislature convene in organizational session 14 days after 
the general election. Fla. Const. art. III, § 3(a). 

If the state certification must be permitted to remain open 

fourteen days after the election, the constitutional direction cannot be met. 

14 

statute has not occurred and even if the recount will extend beyond the statutory 
deadline for filing election returns (but see., Fla. Stat. § 102.166(5)); and 

5. When a uniform system of automated counting was previously in place, Florida’s 
votes, including votes for the electoral college, will now be decided based on 
standards developed by individual canvassing boards in selected areas of the state. 

As discussed below, the Florida Supreme Court’s decision represents a significant departure from 
the pre-existing Florida elections law. The rules articulated by the Court are not based on the 
statutory language, and were not a foreseeable judicial interpretation of the Election Code. 

III. THE DECISION BELOW ALTERED THE MANNER IN WHICH ELECTIONS ARE 
ADMINISTERED IN FLORIDA AND EFFECTIVELY REWROTE PORTIONS OF 
THE ELECTION CODE. 

A. Prior to November 21, the Election Code Required Certification of Election 

Results Within Seven Days. 

The requirement that certification be completed within seven days was expunged by the 
court below. In its place there is a new, judicially-created time limitation that allows filing up to 
19 days after the election. Bush Petition App. at 38a. County canvassing board members are 
now under no duty to comply with the strict time limitations that previously existed; they can no 
longer be fined or have their returns ignored for failing to file certified returns when they conduct 
the pre-certification recounts, despite clear statutory language to the contrary. Id. In essence the 
requirement in section 102.111 that the Commission “shall ignore” late returns (or in section 
102.112 the Secretary “may ignore” late returns) has been rewritten to read that the Commission 
“shall not” ignore late returns filed up to twelve days after the seven-day deadline has passed. 
Likewise, the statutory requirement that local boards “must” certify within this time frame has 
been eliminated. 

Moreover, the Commission is now precluded from certifying election results on the 
seventh day following the election (or in federal elections the tenth day), as previously required 
under sections 102.111, 102.121 and 102.131, Florida Statutes. Indeed, even where certified 
returns were filed by all counties within the time limitations that existed before the November 21 
decision, the Commission must now wait at least 19 days to certify the final results of the election, 
all so that pre-certification manual recounts may be completed. 

Finally, the time frame for an election contest, the only procedure available to individual 
voters to challenge the outcome of the election, has been drastically shortened by the court. 
Under the prior law, the period for filing a contest would have begun with the final certification of 
results and the contest proceeding could have extended until December 12, the federal deadline 
for appointment of Presidential Electors. Now, any contest cannot begin until the recounts are 
completed and the results certified. This did not occur until November 26, cutting the contest 

15 

period almost in half from what was already an extremely short period in which to plead a case, 
conduct discovery, have a trial and pursue any subsequent appeals. 

B. Prior to November 21, the Election Code did not Allow for Certified Election 

Results to be Amended by County Canvassing Boards. 

Despite the total absence of supporting statutory language, county canvassing boards may 
now file amended returns after the statutory deadline has passed even if they had properly filed 
returns before the deadline. Bush Petition App. at 37a. 

Additionally, the Secretary has been 

divested of any discretion to reject an amendment, unless it is so late that it will (not may or 
could) preclude a candidate or voter from contesting the election or jeopardize the ability of the 
state to appoint Presidential Electors within the time limitations of federal law. Id. For purposes 
of this election, the court below determined that a deadline of November 26 met this newly 
articulated rule. Bush Petition App. at 38a. 

Before the decision below, there was no provision in Florida law that expressly authorized 
returns to be amended, much less required an amendment after the statutory deadline to be 
accepted as a matter of right. There was no statutory provision that required the Secretary to 
accept late-filed returns or limited rejections of late filings specifically to situations where the 
federal time limitations jeopardized Florida’s electoral votes. Both the ability to amend and the 
standards for the acceptance or rejection of an amendment have now been created judicially rather 
than legislatively. 

Indeed, the existing Florida law required that “[i]f the county returns are not received by 
the Department of State by 5 p.m. of the seventh day following an election, all missing counties 
shall be ignored, and the results shown by the returns on the file shall be certified.” 
Fla. Stat. §9 

102.111(1) (2000). 

The Supreme Court’s decision alters the statutory scheme, imposing upon 

the Secretary an absolute duty to accept all late filed returns even though the Legislature required 
her to do just the opposite. Id. 

9 

This statute governs the Commission and sets forth its duties with respect to acceptance of 

election returns and certification of election results. A related provision, which speaks only to county 
canvassing boards, states that “[r]eturns must be filed by 5 p.m. on the 7th day following the . . . general 
election,” and puts those boards on notice that “[i]f the returns are not received by the department by the 
time specified, such returns may be ignored and the results on file at that time may be certified by the 
department.” Fla. Stat. § 102.112(1) (2000). Even if this provision, which applies only to county boards, 
were read to grant the Secretary some discretion in deciding whether to accept late returns, the construction 
by the Supreme Court of Florida requiring late filings and post-deadline amendments to be accepted 
without question is clearly a change in what might otherwise be understood from reading section 102.111, 
even in connection with section 102.112. There is no statutory support for reconciling a conflict between 
provisions that say the Secretary on the one hand “may ignore” and on the other “shall ignore” late returns 
by reading them to mean “shall not ignore” under any circumstances except those created by the court 
below. 

16 

C. Prior to November 21, Florida Law did not Allow Manual Recounting to be 

Used to Selectively Count Ballots that a Properly Functioning Automated 
Tabulation System Could not Count. 

The decision below allows pre-certification manual recounts to be used in a significantly 
broader way than previously available. Prior to November 21, in the absence of a judicial decree 
rendered in an election contest action, manual recounting was allowed only in the case of 
mechanical, software, or other similar failure in the automated vote tabulation system and was 
considered dehors the common law. The Supreme Court of Florida has now departed from these 
limitations and recognized that manual recounts are equitably required and grounded in Florida 
law. While a state supreme court may generally create new common law or equitable rights, it 
may not apply such principles retroactively to a federal election. See Roe v. Alabama, 43 F.3d 
574 (CA11,1995). 

Under section 102.166(5), Florida Statutes, a manual recount was the last-resort remedy 
to be used in areas with automated tabulation systems that did not function properly to tabulate 
the ballots. When a sample manual recount indicated a problem with the vote tabulation system, a 
county canvassing board would have had to attempt to correct the error and recount the 
remaining precincts with the tabulated system. If the error could not be corrected, a board was 
allowed to request the Department of State to verify the tabulation system. Finally, only if the 
first two techniques failed and the system still could not be made to work properly, then, as the 
final remedy, the board could manually recount the ballots. 

There was never any indication that section 102.166(5) allowed voter errors caused by 
improperly marked or punched ballots to be selectively corrected. The statute was enacted to 
provide a remedy when a vote tabulation system failed to read properly marked ballots, not to 
provide county canvassing boards the unbridled discretion to choose the method of tabulating 
votes on an ad hoc basis after an election was completed. 

The Florida Legislature has never developed standards for manual recounts of ballots that 
could not be machine read. Numerous other states have developed such standards, including 
California, Wisconsin, Indiana and Colorado, to borrow the examples cited by the Attorney 
General below. The fact that Florida has not demonstrates that the legislature never meant to 
allow the broad use manual recounts that these other states have. 

In the proceedings below, the Supreme Court of Florida was asked to create the types of 
standards that the Legislature chose not to enact. The court declined that invitation and chose 
instead to allow broad use of manual recounting without any standards to guide the process. 

17 

IV. EFFECT OF FINDING THE DECISION BELOW TO BE CONTRARY TO FEDERAL 
LAW. 

The Supreme Court of Florida is the final arbiter of Florida law. The decision below 
impacts voters’ rights and election law in Florida now and in the future, not only in presidential 
races but in all others as well. 

Respectfully, these Respondents do not believe that this Court need interfere with the 
development of Florida law by its supreme court. The issue is solely whether the supreme court 
created a body of law regarding the selection of Presidential Electors different from the law 
existing on November 7, 2000. The court’s opinion suggests that it did. 

If the Court decides that there was a change, and that the change violated federal law, the 
Court would determine that the Division properly issued its opinions in November 2000 in 
response to election officials’ inquiries; that those opinions were binding on the requesting 
elections’ officials; that no manual recount provision existed under Florida law to remedy voter 
errors; and that no right existed in a statewide contest to conduct a manual recount on a selected 
county basis. Finally, this Court should find that the Secretary properly exercised discretion in 
rejecting requests for post-certification submissions of additional vote counts other than those 
from overseas ballots received by the tenth day following the election. 

Appropriate relief would be to modify the judgment of the Supreme Court of Florida to 
the extent that it applied its decisional holdings to the selection of Presidential Electors on 
November 7, 2000. Such relief also would effectively affirm the order of Judge Lewis finding that 
the Secretary’s exercise of jurisdiction in refusing to permit the submission of manual recounts to 
cure voter error beyond the seven-day legislative deadline and the Commission’s certification on 
November 15 were proper. As a result, the totals certified on November 15 and the overseas 
ballots received as of November 17 would constitute the complete certification for the presidential 
election. No returns from manual recounts after the November 14 certification will be permitted 
to be counted in the total of votes cast for Florida Presidential Electors. 

18 

Respectfully submitted, 

Deborah K. Kearney 

Joseph P. Klock, Jr. 

General Counsel 

Counsel of Record 

Kerey Carpenter 

John W. Little, III 

Assistant General Counsel 

Arthur R. Lewis, Jr. 

Florida Department of State 
Gabriel E. Nieto 

PL-02 The Capitol 

Ricardo M. Martínez-Cid 

Tallahassee, FL 32399-0250 
Steel Hector & Davis LLP 

850.414.5536 200 S. Biscayne Blvd. 

Suite 4000 
Bill L. Bryant, Jr. 

Miami, FL 33131-2938 
Katz, Kutter, Haggler, Alderman 
305.577.7000 

Bryant & Yon, P.A. 
Highpoint Center, 12 Floor 

th 

106 East College Avenue 
Tallahassee, FL 32301 
850.224.9634 

BY: ________________________ 
Joseph P. Klock, Jr. 
Counsel of Record 

MIA_1998/632628-3 

19