On Friday afternoon, December 8, a 4-3 majority of the Florida Supreme Court issued a ruling that required the state to immediately implement Al Gore’s scheme to “recount” his way to the presidency. The majority’s opinion is unique in the annals of judicial capriciousness and overreach: an irrational and legally groundless edict that might actually alter a presidential election. Three members of the Florida court, Chief Justice Charles T. Wells and associate justices Major B. Harding and Leander J. Shaw Jr., bitterly and eloquently dissented. THE WEEKLY STANDARD endorses their dissents, excerpted and abridged below.
Chief Justice Charles T. Wells, dissenting:
I do not question the good faith or honorable intentions of my colleagues in the majority. However, I could not more strongly disagree with their decision to reverse the trial court and prolong this judicial process. I also believe that the majority’s decision cannot withstand the scrutiny which will certainly immediately follow under the United States Constitution.
My succinct conclusion is that the majority’s decision to return this case to the circuit court for a count of the under-votes from either Miami-Dade County or all counties has no foundation in the law of Florida as it existed on November 7, 2000, or at any time until the issuance of this opinion. The majority returns the case to the circuit court for this partial recount of under-votes on the basis of unknown or, at best, ambiguous standards with authority to obtain help from others, the credentials, qualifications, and objectivity of whom are totally unknown. That is but a first glance at the imponderable problems the majority creates.
Importantly to me, I have a deep and abiding concern that the prolonging of judicial process in this counting contest propels this country and this state into an unprecedented and unnecessary constitutional crisis. I have to conclude that there is a real and present likelihood that this constitutional crisis will do substantial damage to our country, our state, and to this Court as an institution. On the basis of my analysis of Florida law as it existed on November 7, 2000, I conclude that the trial court’s decision can and should be affirmed.
At the outset, I note that, after an evidentiary hearing, the trial court expressly found no dishonesty, gross negligence, improper influence, coercion, or fraud in the balloting and counting processes based upon the evidence presented. I conclude this finding should curtail this Court’s involvement in this election through this case and is a substantial basis for affirming the trial court. Judicial restraint in respect to elections is absolutely necessary because the health of our democracy depends on elections being decided by voters — not by judges. We must have the self-discipline not to become embroiled in political contests whenever a judicial majority subjectively concludes to do so because the majority perceives it is “the right thing to do.” Elections involve the other branches of government. A lack of self-discipline in being involved in elections, especially by a court of last resort, always has the potential of leading to a crisis with the other branches of government and raises serious separation-of-powers concerns.
I find that the trial judge correctly concluded that plaintiffs were not entitled to a manual recount. I do not find any legal basis for the majority of this Court to simply cast aside the determination by the trial judge made on the proof presented at a two-day evidentiary hearing that the evidence did not support a statewide recount. To the contrary, I find the majority’s decision in that regard quite extraordinary. Merely stating the cause of action under the contest statute does not entitle a party to a recount or require the court to set aside an election. More must be required. Following [plaintiffs’] logic to its conclusion would require a circuit court to order partial manual recounts upon the mere filing of a contest. This proposition plainly has no basis in law.
There is no doubt that every vote should be counted where there is a “clear indication of the intent of the voter.” The problem is how a county canvassing board translates that directive to these punch cards. Should a county canvassing board count or not count a “dimpled chad” where the voter is able to successfully dislodge the chad in every other contest on that ballot? Here, the county canvassing boards disagree. Continuation of this system of county-by-county decision regarding how a dimpled chad is counted is fraught with equal protection concerns which will eventually cause the election results in Florida to be stricken by the federal courts or Congress.
I conclude the circuit court properly looked at what the county canvassing boards have done and found that they did not abuse their discretion. Regarding Miami-Dade County, I find that the trial judge properly concluded that the Miami-Date Canvassing Board did not abuse its discretion in deciding to discontinue the manual recount begun on November 19, 2000. I cannot find that the Miami-Dade Board’s decision that all the ballots could not be manually recounted between November 22 and November 26, 2000, to be anything but a decision based upon reality. Moreover, not to count all of the ballots if any were to be recounted would plainly be changing the rules after the election and would be unfairly discriminatory against votes in the precincts in which there was no manual recount.
I also agree with the trial judge that the Election Canvassing Commission did not abuse its discretion in refusing to accept either an amended return reflecting the results of a partial manual recount or a late amended return filed by the Palm Beach Board. I conclude that it is plain error for the majority to hold that the Commission abused its discretion in enforcing a deadline set by this Court that recounts be completed and certified by November 26, 2000. I conclude that this not only changes a rule after November 7, 2000, but it also changes a rule this Court made on November 26, 2000.
As I stated at the outset, I conclude that this contest simply must end.
Directing the trial court to conduct a manual recount of the ballots violates Article II, Section 1, Clause 2 of the United States Constitution, in that neither this Court nor the circuit court has the authority to create the standards by which it will count the under-voted ballots. The Constitution reads in pertinent part: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” The Supreme Court has described this authority granted to the state legislatures as “plenary.” The Legislature has given to the county canvassing boards — and only these boards — the authority to ascertain the intent of the voter. Clearly, in a presidential election, the Legislature has not authorized the courts of Florida to order partial recounts, either in a limited number of counties or statewide. This Court’s order to do so appears to me to be in conflict with the United States Supreme Court decision.
Laying aside the constitutional infirmities of this Court’s action today, what the majority actually creates is an overflowing basket of practical problems. Assuming the majority recognizes a need to protect the votes of Florida’s presidential electors, the entire contest must be completed “at least six days before” December 18, 2000, the date the presidential electors meet to vote. Thus, under the majority’s time line, all manual recounts must be completed in five days, assuming the counting begins today. In that time frame, all questionable ballots must be reviewed by the judicial officer appointed to discern the intent of the voter in a process open to the public. Fairness dictates that a provision be made for either party to object to how a particular ballot is counted. Additionally, this short time period must allow for judicial review. I respectfully submit this cannot be completed without taking Florida’s presidential electors outside the safe harbor provision, creating the very real possibility of disenfranchising those nearly six million voters who were able to correctly cast their ballots on election day.
Another significant problem is that the majority returns this case to the circuit court for a recount with no standards. I do not, and neither will the trial judge, know whether to count or not count ballots on the criteria used by the canvassing boards, what those criteria are, or to do so on the basis of standards divined by Judge Sauls. A continuing problem with these manual recounts is their reliability. It only stands to reason that many times a reading of a ballot by a human will be subjective, and the intent gleaned from that ballot is only in the mind of the beholder. This subjective counting is only compounded where no standards exist or, as in this statewide contest, where there are no statewide standards for determining voter intent by the various canvassing boards, individual judges, or multiple unknown counters who will eventually count these ballots.
I must regrettably conclude that the majority ignores the magnitude of its decision. The Court fails to make provision for: (1) the qualifications of those who count; (2) what standards are used in the count — are they the same standards for all ballots statewide or a continuation of the county-by-county constitutionally suspect standards; (3) who is to observe the count; (4) how one objects to the count; (5) who is entitled to object to the count; (6) whether a person may object to a counter; (7) the possible lack of personnel to conduct the count; (8) the fatigue of the counters; and (9) the effect of the differing intra-county standards.
This Court’s responsibility must be to balance the contest allegations against the rights of all Florida voters who are not involved in election contests to have their votes counted in the electoral college. To me, it is inescapable that there is no practical way for the contest to continue for the good of this country and state.
For a month, Floridians have been working on this problem. At this point, I am convinced of the following.
The local election officials, state election officials, and the courts have been attempting to resolve the issues of this election with an election code which any objective, frank analysis must conclude never contemplated this circumstance.
Under the United States Supreme Court’s analysis in Bush v. Palm Beach County Canvassing Board, there is uncertainty as to whether the Florida Legislature has even given the courts of Florida any power to resolve contests or controversies in respect to presidential elections.
There is no available remedy for the petitioners on the basis of these allegations. Quite simply, courts cannot fairly continue to proceed without jeopardizing the votes and rights of other citizens through a further count of these votes.
This case has reached the point where finality must take precedence over continued judicial process. Further judicial process will only result in confusion and disorder.
Justice Major B. Harding, dissenting, joined by Justice Leander J. Shaw Jr.:
I would affirm Judge Sauls’ order. I commend him for the way that he conducted the proceedings below under extreme time constraints and pressure. Further, I believe that Judge Sauls properly concluded that there was no authority to include the Palm Beach County returns filed after the explicit deadline established by this Court. I agree with Judge Sauls that the Appellants have not carried their burden of showing that the number of legal votes rejected by the canvassing boards is sufficient to change or place in doubt the result of this statewide election. That failure of proof controls the outcome here. Moreover, as explained below, I do not believe that an adequate remedy exists under the circumstances of this case.
Appellants had an obligation to show, by a preponderance of the evidence, that the outcome of the statewide election would likely be changed by the relief they sought. Appellants failed, however, to provide any meaningful statistical evidence that the outcome of the Florida election would be different if the “no-vote” in other counties had been counted; their proof that the outcome of the vote in two counties would likely change the results of the election was insufficient. It would be improper to permit Appellants to carry their burden in a statewide election by merely demonstrating that there were a sufficient number of no-votes that could have changed the returns in isolated counties.
Moreover, assuming that there may be some shortfall in counting the votes cast with punch card ballots, such a problem is only properly considered as being systemic with the punch card system itself, and any remedy would have had to be statewide. Any other remedy would disenfranchise tens of thousands of other Florida voters, as I have serious concerns that Appellants’ interpretation of [Florida law] would violate other voters’ rights to due process and equal protection of the law under the Fifth and Fourteenth Amendments to the United States Constitution. Such an application does not provide for a more accurate reflection of the will of the voters but, rather, allows for an unfair distortion of the statewide vote. It is patently unlawful to permit the recount of “no-votes” in a single county to determine the outcome of the November 7, 2000, election for the next President of the United States. We are a nation of laws, and we have survived and prospered as a free nation because we have adhered to the rule of law. Fairness is achieved by following the rules.
Finally, even if I were to conclude that the Appellants’ allegations and evidence were sufficient to warrant relief, I do not believe that the rules permit an adequate remedy under the circumstances of this case. Clearly, the only remedy authorized by law would be a statewide recount of more than 170,000 “no-vote” ballots by December 12. Even if such a recount were possible, speed would come at the expense of accuracy, and it would be difficult to put any faith or credibility in a vote total achieved under such chaotic conditions. In order to undertake this unprecedented task, the majority has established standards for manual recounts — a step that this Court refused to take in an earlier case, presumably because there was no authority for such action and nothing in the record to guide the Court in setting such standards. The same circumstances exist in this case.
While this Court must be ever mindful of the Legislature’s plenary power to appoint presidential electors, I am more concerned that the majority is departing from the essential requirements of the law by providing a remedy which is impossible to achieve and which will ultimately lead to chaos. In giving Judge Sauls the option to order a statewide recount, the majority permits a remedy which was not prayed for, which is based upon a premise for which there is no evidence, and which presents Judge Sauls with options to order entities (i.e. local canvassing boards) to conduct recounts when they have not been served, have not been named as parties, but, most importantly, have not had the opportunity to be heard. In effect, the majority is allowing the results of the statewide election to be determined by the manual recount in Miami-Dade County because a statewide recount will be impossible to accomplish. Even if by some miracle a portion of the statewide recount is completed by December 12, a partial recount is not acceptable. The uncertainty of the outcome of this election will be greater under the remedy afforded by the majority than the uncertainty that now exists.
