No. 00-836 

IN THE 

Supreme Court of the United States 

GEORGE W. BUSH, 

Petitioner, 

v. 

PALM BEACH COUNTY CANVASSING BOARD, ET AL., 

Respondents. 

Response of Katherine Harris, Florida Secretary of State, 
Katherine Harris, Laurence C. Roberts, and Bob Crawford, 
as Members of the Florida Elections Canvassing Commission, 
to Petition for Writ of Certiorari 

Deborah K. Kearney 
Joseph P. Klock, Jr. 

General Counsel 

Counsel of Record 

Kerrey Carpenter 

John W. Little, III 

Assistant General Counsel 

J.B. Murray 

Florida Department of State 
Arthur R. Lewis, Jr. 

PL-02 The Capital 

Gabriel E. Nieto 

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 

RESPONSE OF KATHERINE HARRIS, FLORIDA 
SECRETARY OF STATE, KATHERINE HARRIS, 
LAURENCE C. ROBERTS, AND BOB CRAWFORD, AS 
MEMBERS OF THE FLORIDA ELECTIONS CANVASSING 
COMMISSION, 
TO PETITION FOR WRIT OF CERTIORARI 

I. 

STATEMENT OF THE CASE AND FACTS AND 
PROCEDURAL HISTORY 

The Secretary of state of Florida (the “Secretary”) and the 
Florida Elections Canvassing Commission (the “Commission”) are1 
respondents in this action since they were parties below. In 
presenting its response, the Secretary and the Commission are 
focused on Florida’s election law as it stood prior to November 21, 
2000 (the “Pre-Decision Period”), and how it now stands (the 
“Post-Decision Period”). November 21, 2000, is the date that the 
Supreme Court of Florida handed down the decision Petitioners 
urge this Court to review. 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). Florida’s Election Code is 
set forth at chapters 97 through 106, Florida Statutes. The central2 

1. The Commission is composed of the Governor, the Secretary of 
State, and the Director of the Division of Elections. 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. 

2. The Election Code is divided by chapter as follows: ch. 97 
(“Qualifications and Registration of Electors”); ch. 98 (“Registration 
Office, officers, and Procedures”); ch. 99 (“Candidates, Campaign 

2 

focus of this case deals with Chapter 102, which is entitled 
“Conducting Elections and Ascertaining the Results.” 

The Secretary is an independently elected constitutional 
officer within Florida’s scheme of an independently elected 
executive cabinet, composed of a secretary of state, attorney 
general, treasurer, comptroller and commissioners of Agriculture 
and Education. The Secretary is also the state’s chief elections 
officer. See Fla. Const., art. IV, § 4(b); Fla. Stat. § 97.012. As 
such, the Secretary is charged with, among other duties, the 
responsibility to “[o]btain and maintain uniformity in the 
application, operation, and interpretation of the election laws.” Fla. 
Stat. § 97.012(1). The Secretary is also obligated, through the 
Division of Elections, to “provide advisory opinions when 
requested by any supervisor of elections . . . relating to any 
provisions or possible violations of Florida election laws with 
respect to actions such supervisor . . . has taken or proposes to 
take.” Fla. Stat. § 106.23(2). “The opinion, until amended or 
revoked, shall be binding on any person or organization who sought 
the opinion . . . .” Id. 

After the polls close on an election day, two separate 
periods come into play: (1) the pre-certification protest period (the 
“Protest Period”) (Fla. Stat. § 102.166); and (2) the post- 
certification contest period (the “Contest Period”) (Fla. Stat. § 

Expenses, and Contesting Elections”); ch. 100 (“General, Primary, 
Special, Bond, and Referendum Elections”); ch. 101 (“Voting Methods 
and Procedure”); ch. 102 (“Conducting Elections and Ascertaining the 
Results”); ch. 103 (“Presidential Electors; Political Parties; Executive 
Committees and Members”); ch. 104 (“Election Code: Violations; 
Penalties”)’ ch. 105 (“Nonpartisan Elections”); and ch. 106 (“Campaign 
Financing”). 

3 

102.168). The Protest Period commences immediately upon 
conclusion of the election and concludes when the last county 
canvassing board certifies its returns. Once that occurs, the 
Commission certifies the election returns on two separate dates. 
The first date is seven days after the conclusion of the election, 
when each county canvassing board is required to report its final 
returns to the Division of Elections. 

Three days later, on the tenth3 

day after the elections have concluded, a supplemental filing is 
made by the county canvassing boards which adds the overseas 
absentee ballots that have been received by midnight on the tenth 
day. The combined returns are then certified by the Commission 
and become the final official returns. Once the combined returns 
have been received, the Commission certifies the election and 
declares the winners, after which the Contest Period commences. 

Usually, there is no specific end to the Contest Period, as4 
there has been times in Florida when a contest resulted in the 
removal and substitution of an officer, already years into a term, at 
the conclusion of a Contest. The Contest Period for any 
presidential election must, however, be completed six days before 
the meeting of the state electors, which in this case is December 18, 
2000. See 3 U.S.C. § 5 (1997). Thus, for the general elections of 
2000, the Protest Period began at the time the polls closed at 8 p.m. 
on November 7 and ended at 5 p.m. on November 14, a period of 
seven days. The Contest Period was to commence at 5:01 p.m. on 
November 14, and was to end at midnight on December 12, 2000, 
or 29 days. 

3. This year all county canvassing boards certified their returns 
by 5 p.m. on November 14, within the seven day statutory period 

prescribed by Fla Stat. § 102.11 (2000). 

4. A contest must be initiated within 10 days when the last county 
canvassing board certifies its returns to the state. Fla. Stat. § 102.168(2). 

4 

As noted, after the conclusion of an election, any voter or 
candidate can file a Protest claiming that the election returns are 
erroneous (Fla Stat. § 102.166(1)). Procedures are set forth for the 
review of elections by paper ballots, voting machines, and 
“electronic or electromechanical equipment.” There is a provision 
for manual recounts, but only the candidate or a political party can 
request such a review. Fla. Stat. § 102.166 (4)(a). The individual 
voter has no right to ask for a manual recount.5 

County returns (with the exception of the overseas ballots) 
were due to the Department of State by 5 p.m. of the seventh day 
following the election or they would be ignored. See id. 

Before6 

final certification by the county canvassing board for any particular 
county, the candidates, their political parties or a political 
committee that supports or opposes an issue that appeared on the 

5. Based upon the plain statutory language and legislative history, 
the Secretary and the Commission here maintained that manual recounts 
are only intended to be used when some type of machine or 

electromagnetic process is involved. App. at 1a. 

6. In 1989, the Florida legislature amended the Election Code by 
adding section 101.112 (directed to county canvassing boards) which 
states, in pertinent part, the general rule set forth above regarding the 
seven-day deadline, but adds 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.” See id., § 
102.112(1). The amendment also provided a $200 a day fine to be levied 
against the canvassing board members personally for late returns. See id., 

§ 102.112(2). This was done at the same time as the amendments to 
section 102.166, Florida Statutes, in response to the machine voting 
problems that occurred in the Mackay-Mack U.S. 

Senate race in 1988. See infra at 11-12, n.10. 

5 

ballot were permitted to file a written request with the county 
canvassing board for a manual recount. See id., §102.166(4)(a) & 
(b). If the county canvassing board authorizes the manual recount, 
the recount must include “at least three precincts and at least 1 
percent of the total votes cast for such candidate or issue.” See id., 
§ 102.166(4)(c) & (d). If the initial manual recount indicates “an 
error in the vote tabulation which could affect the outcome of the 
election,” the board could: (a) correct the error and recount the 
remaining precincts with the vote tabulation system; (b) request the 
department of state to verify the vote tabulation software; or (c) 
manually recount all ballots. 

On November 7, 2000, voters across the nation cast their 
ballots for, among other offices, President and Vice President of the 
United States. In Florida, the initial returns from all the counties 
showed statewide that Governor George W. Bush was slightly 
ahead of Vice President Albert Gore, Jr. Because the difference 
was less one-half of one percent, an automatic statewide recount 
was conducted by all counties the following day. See id., § 
102.141(4). After the recount, Governor Bush maintained a 
narrow lead over the Vice President. On November 9, the Florida 
Democratic Executive Committee requested manual recounts in the 
following counties: Volusia, Palm Beach, Broward and Miami- 
Dade. 

On November 13, 2000, the Palm Beach Canvassing Board 
(“Palm Beach”) requested, in writing, that the Division issue a 
written opinion as to whether the Department of State or the 
Commission had the discretion to extend the seven-day statutory 
filing deadline for election returns. By separate cover, Palm Beach 
also requested that the Division issue a written opinion as to when a 
county could authorize a manual recount of ballots. 

6 

Later that day, in response to a specific request from election 
officials, the Division issued two formal advisory opinions. See Fla. 
Stat. § 106.23. In response to the first request from Palm Beach, 
the Division issued Opinion DE 00-10 (App. at 1a) advising Palm 
Beach that election results not certified by 5 p.m. Tuesday, 
November 14 could not be counted in the certification of the 
statewide results. In response to the second request from Palm 
Beach, the Division issued Opinion DE 00-13 (App. at 2a) advising 
Palm Beach that the “error in tabulation” language in the statute 
that serves as the legal basis for a manual recount means “a 
counting error in which the vote tabulation system fails to count 
properly marked marksense or properly punched punchcard 
ballots.” App. at 1a-2a. 

Also on November 13, the Secretary notified all 67 county elections 
supervisors that the statutory deadline of 5 p.m. Tuesday, 
November 14 would not be extended. The Secretary further 
informed these parties that returns (other than overseas ballots) not 
filed by the deadline would not be included in the certification of 
statewide results. 

The following day, in response to the requests from Palm Beach 
County officials, Florida’s Attorney General, Bob Butterworth, 
issued a conflicting opinion, Opinion 00-65, advising Palm Beach 
that the “error in tabulation” means “a discrepancy between the 
number of votes determined by a voter tabulation system and the 
number of votes determined by a manual count of a sampling of 

precincts pursuant to section 102.166(4), Florida Statutes.” App. 
at 3a. 

Volusia County had previously filed a lawsuit in Leon County, 
seeking to enjoin the Secretary and the Commission from certifying 

7 

election results without including returns filed after the seven-day 
statutory deadline. The Palm Beach County Canvassing Board, 
Vice President Gore and the Florida Democratic Party 
(“Democrats”) intervened. After an initial hearing, Leon County 
Circuit Court Judge Terry P. Lewis directed the Secretary “to 
withhold determination as to whether or not to ignore late filed 
returns, if any, from Plaintiff Canvassing Boards, until due 
consideration of all relevant facts and circumstances consistent with 
the sound exercise of discretion.” Bush App. at 50a. 

The Secretary’s first action in response to the order was to 
develop a set of evaluative criteria that would be used to decide 
whether to allow a late filing. First, a set of factors that could 
justify a late filing was developed. The existence of one or more of 
these factors, which were drawn from Florida elections case law, 
could have justified an allowance of late-filing. 

These factors (and 

their supporting case law) were: 

• Whether there is any indication of voter fraud that 
could affect the outcome of the election. In re: 
Protest of Election Returns, 707 So. 2d 1170, 1172 
(Fla. 3d DCA 1998); Broward County Canvassing 
Board v. Hogan, 607 So. 2d 508, 509 (Fla. 4 
DCA 

th 

1992). 

• Whether there was substantial noncompliance with 
statutory election procedures, causing reasonable 
doubt to exist as to whether the certified results 
express the will of the electorate. Beckstrom v. 
Volusia County Canvassing Board, 707 So. 2d 720 
(Fla. 1998) 

8 

• Whether election officials had made a good faith 
effort to comply with the statutory deadline, but 
were prevented from doing so by an act of god or 
similar circumstance beyond their control. 

The Secretary next determined, again based on a review of 
the pertinent case law, that the following election irregularities 
would not constitute a sufficient reason for violating the statutory 
deadline: 

• Noncompliance with statutory election procedures 
and/or voter error, where there is a reasonable 
expectation that the results express the will of the 
voters. Beckstrom, 707 So. 2d at 725. 

• The use of a ballot design that was confusing to 
some voters because of the location and alignment 
of candidates names, so long as a reasonable voter 
could make his or her choice by exercising 
reasonable time and study. Nelson v. Robinson, 301 
So. 2d 508, 511 (Fla. 2d DCA 1974). 

• Any other situation that presented “nothing more 
than a mere possibility that the outcome of the 
election would have been [a]ffected.” Hogan, 607 
So. 2d 508, 510 (Fl. 4 
DCA 1992). 

th 

As before, the Secretary’s decision was based primarily on 
reported election cases, which found similar circumstances to be 
insufficient to justify interference with certified election results. 
The factors applied thus reflected the law of Florida existing before 
the Supreme Court of Florida’s November 21 decision. App. at 
16a. 

Thereafter, in accordance with Judge Lewis’ order, the 
Secretary distributed a memorandum to all of Florida’s 67 counties 

9 

requesting that they provide a written statement, including the facts 
and circumstances that would justify any late filed returns by 2 p.m. 
Wednesday, November 15. App. at 8a. 

On Wednesday, November 15, the canvassing boards for 
Palm Beach County, Broward County, Miami-Dade County, and 
Collier County, responded to the Secretary’s memorandum, each 
providing the facts and circumstances that they believed would 
provide justifications for the Secretary waiving or extending the 
statutory deadline to permit later changes to their already filed 
returns. After carefully reviewing each request in light of pre- 
established criteria based on long-standing Florida law, the 
Secretary made a determination that none of the facts before her 
justified a waiver or extension of the deadline. The Secretary and 
the Division both consistently took the position that voter error was 
not a basis for initiating a manual count nor to extend the seven day 
statutory deadline to do so. Volusia County completed its manual 
hand count before the 5 p.m. deadline on November 14, and those 
results were included in Volusia County’s timely return.7 

The Commission certified the timely-filed November 14, 
2000, election results for all but the overseas ballots. The 
certification reflects 2,910,492 votes for Governor George W. Bush 
and Secretary Dick Cheney and 2,910,192 for Vice President Albert 
Gore, Jr. and Senator Joe Lieberman. 

On November 16, the Democrats filed an Emergency 
Motion to Compel Compliance with and for Enforcement of 
Injunction (“Emergency Motion”), and asserted that the Secretary 

7. Neither the Secretary nor the Division are permitted to 
go beyond the local canvassing board’s certification. See Fla. Stat. 
§ 102.31. 

10 

acted arbitrarily and in contempt of Judge Lewis’ order by refusing 
to accept the returns filed after the statutory deadline. 

On November 17, Judge Lewis denied the Emergency 
Motion, ruling that the Secretary had not acted arbitrarily, and that 
she “exercised her reasoned judgment to determine what relevant 
factors and criteria should be considered, applied them to the facts 
and circumstances pertinent to the individual counties involved, and 
made her decision.” Bush App. at 43a. Later that day, the 
Supreme Court of Florida sua sponte entered an order enjoining the 
Secretary and Commission from finally certifying the results of the 
November 7 election and declaring a winner in Florida until further 
order. Bush App. at 39a. 

On November 21, 2000, the Supreme Court of Florida 
reversed Judge Lewis, holding that manual recounts were not limited 
to instances of machine error, and that the Secretary had abused her 
discretion in not accepting returns that were not filed within the 
seven-day deadline set by the legislature. In short, the Court 
enlarged the statutory Protest Period from seven days to 19 days, 
and shortened the Contest Period from 29 days to 16 days. The 
Court’s holding changed the law in the state of Florida as it existed 
and was applied before November 7, 2000. 

II. 

THE FLORIDA ELECTION CODE PRIOR TO 
AND AFTER THE SUPREME COURT OF 
FLORIDA’S DECISION BELOW 

11 

Before the evening of November 21, 2000, when the 
Supreme Court of Florida issued the decision below, Florida’s 
Election Code provided long-standing procedures requiring the 
reporting of results by specified deadlines, for dealing with errors in 
vote tabulation, conducting manual recounts in certain limited 
circumstances involving mechanical or software failure in mechanical 
voting equipment, certifying electronic results and allowing affected 
voters to contest the results of an election. In addition, there was a 
system that accorded much less time to the Protest Period than it did 
to the Contest Period. 

Under the Election Code as it previously existed, any 
affected voter, political party or candidate could protest election 
returns before certification of the election results. Fla. Stat. § 
102.166(1). In the event of such a protest, the local elections 
canvassing board had to follow specific procedures to verify the 
accuracy of the returns. The procedures to be followed varied 
depending on whether paper ballots designed for hand counting, 
voting machines, or machine tabulated paper ballots were used. Fla. 
Stat. § 102.166(3). 

As part of section 102.166, only a candidate or political 
party is also permitted to file a written request with the local 
canvassing board for a manual recount. Fla. Stat. § 102.166(4)(a). 
Provided the request was timely, the canvassing board was given 
discretion as to whether to conduct a manual recount, after 
conducting a proper, statutorily-defined, test of certain precincts to 
determine if there was a mechanical or software problem. Fla. Stat. 
§ 102.166(4)(c). The Protest Period had to be completed, and the 
election results certified to the Florida Secretary of State within 
seven days of the election. Fla. Stat. § 102.111(1). Immediately 

12 

upon such certification, the Commission was required to certify the 
elections results. Id.8 

The conclusion of this seven-day protest and certification 
process triggered the right of any affected voter, taxpayer, as well as 
an unsuccessful candidate or party, to file an elections contest. Fla. 
Stat. § 102.168(1). Unlike the pre-certification protest procedure, 
the Contest Period allows for a full evidentiary record to be 
introduced, and all facts and circumstances surrounding the election 
to be examined in the courts. Fla. Stat. § 102.168. Further, an 
election contest allows for a single venue in the circuit court serving 
the state capitol for lawsuits stemming from a statewide election, 
Fla. Stat. § 102.1685, and grants broad authority to the court to 
fashion appropriate relief. See id., at 102.168(8). The Florida 
Legislature imposed no specific time limitations on a judicial 
elections contest, but imposed strict time limits on Protests and 
recounts that precede a certification, which is the prerequisite to a 
Contest.9 

8. Florida law contemplated that the winner of the election would 
be declared on the seventh day following the election. Fla. Stat. § 
102.111. For federal offices, however, a winner cannot be declared until 
three days later. That is, however, not a matter of state law. A consent 
decree between the state of Florida and the United States requires Florida 
to count absentee ballots from citizens living outside the United States that 
are received up to 10 days following the election. The consent decree was 
entered into following the enactment of the seven-day certification 
provisions in the Florida Election Code. 

9. The Florida Legislature’s intent to have the protest completed 
within seven days is exemplified by the fact that it imposed strict financial 
penalties on local canvassing board members who failed to submit timely 
returns and required the Commission to ignore any counties that fail to file 
returns within seven days and certify the election results based solely on 

13 

In response to a Protest, Florida law, as it existed prior to 
November 21, allowed manual recounting to be conducted only in 
certain limited circumstances. Fla. Stat. § 102.166(5). Both the 
plain language and legislative history of Florida’s election statutes 
indicate that a manual recount of the ballots in a county was proper 
only where there has been a failure of the vote tabulation system or 
as required by a circuit court exercising jurisdiction in a properly 
filed elections contest action. 

Failure 

10 

those returns that are timely filed. Fla. Stat. § 102.112(1) 

10. 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 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 on in the media, but in testimony 

14 

of certain voters to properly execute their ballots was not a basis for 
conducting a manual recount, although this issue could be raised in a 
post-certification elections contest. 

App. at 1a-2a. 

11 

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 public confidence in our voting system. 

App. at 10a (emphasis added). 

As this legislative history indicates, the statute was intended to 
provide an alternate recounting procedure to be used in situations in 
which mechanical or computer problems caused tabulation equipment to 
fail to function as intended. The legislature never intended for manual 
recounts to be used to evaluate ambiguous ballots that voters failed to 
properly execute. Consistent with the legislative intent the Division of 
Elections formal advisory opinion left open the possibility of a full manual 
recount, but precluded a recount to assign votes to candidates based on 
improperly executed ballots that cannot be read by properly operating 
tabulation equipment. 

11. The Division Opinion is an administrative interpretation of the 
statutes within its subject matter jurisdiction and is binding on subordinate 
agencies such as the Board. 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. 1 
DCA 1994); see also Krivanek v. Take Back Tampa 

st 

15 

Florida has never recognized a common-law right to protest 
election results, much less to require manual recounting of machine 
ballots. Prior to November 21, the right to a manual recount existed 
only to the extent provided by the Legislature. 

Florida Statutes 

section 102.166(5) allowed such a recount only when there had been 
an “error in vote tabulation.” This term had consistently been 
interpreted, prior to November 21, to mean a failure of the 
tabulation equipment to count properly executed ballots. 

App. at 

12 

Political Committee, 625 So. 2d 840, 844 (Fla. 1993). In contrast, the 
Board was not bound to adhere to the Attorney General’s opinion. In 
fact, it was questionable whether the Attorney General even had the 
authority to issue an opinion on an election issue, given the specific 
allocation of this function to the Division of Elections in section 
106.23(2). 

12. In the weeks before the November 7, 2000, general election, 
each registered voter in Florida was provided with a sample ballot and 
detailed instructions on how to vote according to the method used in his or 
her precinct. Additionally, a copy of the instructions was placed 
prominently in each voting booth. See Fla. Stat. § 101.46. In those 
districts using punch cards, the instructions explained how a voter was to 
select and punch out the appropriate chad on the ballot. 

App. at 14a. 

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. 

Id. When voters followed the instructions, including the removal of any 
loose chips left attached to their ballots, the automatic tabulation 
accurately tabulated the ballots. There is no contention otherwise. Only 

16 

1a-2a. Thus, when voters failed to mark ballots correctly, there had 
been no failure in their tabulation under Florida law, and no manual 
recount was authorized. Id. 

The Florida Supreme Court’s November 21 decision has 
made a number of changes in Florida’s election laws, setting aside 
some provisions, and implementing others. It has also recognized 
equitable principals that take precedence over statutory provisions 
and the exercise of discretion by the Secretary. 

First, the requirement that tabulation of election results be 
completed within seven days has been eliminated. In its place there is 
a new, judicially-created time limitation that allows at least 19 days 
to complete the Protest Period before certification, and possibly 
more when an election protest and request for manual recount have 
been filed. Bush App. at 38a. Local canvassing board members are 
now under no duty to comply with the strict time limitations that 
previously existed and can no longer be fined or have their returns 
ignored for failing to file certified returns. Id. 

Second, local canvassing boards may now file amended 
returns after the statutory deadline, even if they had properly filed 
returns before the deadline. Id. The Secretary of State now has no 
discretion to reject any such amendment, unless it is so late that it 
will 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. Bush App. at 37a. 
Before the November 21 decision, there was no provision in Florida 

the ballots of those voters who, by their own actions, failed to clearly 
indicate their elective choices, as directed, would be affected by the 
manual recount at issue. 

17 

statutory law that allowed returns to be amended, much less 
amended after the statutory time limitation for final certification and 
declaration of the winner has passed. There was also no statutory 
provision that required the Secretary of State to accept late-filed 
returns, or limited late filing specifically to situations where the 
federal time limitations jeopardize Florida’s electoral votes. Indeed 
the existing Florida law required just the opposite: “If 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. § 102.111(1). Late returns, if they would 

13 

affect the outcome of the election, could be added only if ordered by 
a circuit court in an election contest action. Fla. Stat. § 
102.168(3)(e) and (8). Before November 21, this statute was 
consistently interpreted to require submittal of returns within seven 
days. See Chappel v. Martinez, 536 So. 2d 1007, 1009 (Fla. 1984) 

13. This statute governs the Elections Canvassing Commission and 
sets forth its duties with respect to acceptance of election returns and 
certification of election results. A related provision, which governs local 
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). While this 
provision may grant the Secretary of State some discretion in deciding 
whether to accept late returns. The construction by the Supreme Court of 
Florida to absolutely require late returns to be accepted or to authorize the 
post-deadline amendment of returns already filed is clearly a change in 
what might otherwise be understood from reading the provision, even in 
connection with section 
102.112, Florida Statutes. 

18 

(requiring substantial compliance with the deadline and holding that 
telephone transmittal before the deadline sufficed). 

Third, the Florida Elections Canvassing Commission is now 
precluded from certifying election results on the seventh day 
following the election, as previously required under Florida Statutes 
sections 102.111, 102.121 and 102.131. 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 until November 26 to certify the results of the 
election. 

Fourth, the time frame for an elections contest, the only 
procedure available to individual voters to challenge the outcome of 
the election, is now drastically shorter. Under the prior law, the 
period for filing a contest would have begun with the final 
certification of results on November 17, and the contest proceeding 
could have extend 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. At the 
earliest, this will not occur until November 26, cutting the contest 
period from 25 days – already an extremely short period in which to 
develop a case conduct discovery, have a trial, and pursue any 
subsequent appeals – to a mere 15 days. 

Finally, but perhaps most importantly, manual recounting 
may now 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 and were considered dehors 
the common law. The Supreme Court of Florida has now recognized 

19 

that these rights are equitably required and grounded in Florida 
constitutional law. 

Under Florida Statutes section 102.166(5) a manual recount 
was a last-resort remedy to be used in areas with automated 
tabulation systems only when there was no way to mechanically 
tabulate the ballots. When a sample manual recount indicated a 
problem with the vote tabulation system, the local canvassing board 
first attempted to correct the error and recount the remaining 
precincts with the system under subsection (5)(a). If the error could 
not be corrected, a board was allowed request the Department of 
State to verify the tabulation system under subsection (5)(b). Finally, 
if the system could not be corrected or verified to work properly, 
then as a last resort, the board would have manually recounted the 
ballots under subsection (5)(c). 

There was never any indication that 

Florida Statutes 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 local 
canvassing boards the unbridled discretion to choose the method of 
tabulating votes on an ad hoc basis after an election was completed. 

As a result of the Supreme Court of Florida’s decision, the 
Secretary, the Commission and Florida’s 67 local elections 
canvassing boards will now treat the election certification process 
quite differently than they would have previously: 

• Where the Secretary would have previously rejected 
late filed election returns, she is now required to 
accept those returns, so long as the late filing does not 
violate the judicially created test of being “so late that 
their inclusion will preclude a candidate from 
contesting the certification or preclude Florida’s 

20 

voters from participating fully in the federal electoral 
process.” 

• Where the Elections Canvassing Commission would 
have certified the statewide election on November 17 
on the certified returns filed by all of Florida’s 67 
counties, the Commission must now wait on the 
results of manual recounts conducted in selected 
areas, delaying final certification until at least 
November 26 that must include amendments to the 
November 14 filing other than overseas ballots. 

• Where local canvassing boards were previously 
precluded from conducting manual recounts in the 
absence of an error in the vote tabulation system, they 
now will conduct recounts in almost any circumstance; 

• Where each local canvassing board would have 
submitted only one final set of returns, the local 
canvassing boards may now conduct a series of 
recounts and amend their prior certification for some 
time after the deadline to certify has passed; and 

• Where 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 local canvassing 
boards in selected areas of the state. 

Dated this 24 
day of November, 2000. 

th 

Respectfully submitted, 

Deborah K. Kearney 

Joseph P. Klock, Jr. 

General Counsel 

Counsel of Record 

Kerrey Carpenter 

John W. Little, III 

Assistant General Counsel J.B. Murray 

21 

Florida Department of State 
Arthur R. Lewis, Jr. 

PL-02 The Capital 

Gabriel E. Nieto 

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