| November 17, 2000 THE ELECTION -- VOLUME III This morning, the Circuit Court upheld the Secretary of State's discretionary decision not to include supplemental counts from Palm Beach, Broward and Dade. This meant that there was no impediment to the Secretary certifying Bush as the winner tomorrow. This afternoon, the Florida Supreme Court enjoined any certification of the election to maintain the status quo until a hearing can be held on Monday at 2:00. Legally, Bush is one step closer to election. But politically, Gore is the big winner. Gore has avoided the certification of Bush as the winner on Saturday and the resulting pressure to concede this weekend. Gore's political strategy is to stay alive politically and legally until the hand counts are finished sometime next week, hope the counts go his way, and then put political pressure on Bush to somehow accept the results of the hand count. On a purely legal basis, Bush had a big victory, because the trial court agreed that the Secretary appropriately used her discretion in refusing to accept additional votes from Palm Beach and Broward. Based upon David Boies' comments at his press conference this morning, I think that he thinks that Gore's best argument is based on section 102.168. Section 102.168 permits a losing candidate to file a complaint to overturn the results of an election if he can demonstrate "receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election." Gore intends to argue that if the Secretary fails to include the additional "legal votes" submitted by Palm Beach and Broward counties, then he is entitled to relief. (What that relief would be is an entirely different and open question). But Gore has a big problem. Section 102.168 is the section that governs "contests" of an election. In order to "contest" an election, however, there must first be a certification of the election. In other words, to the extent Gore is relying on the standards under section 102.168, he cannot make any such argument until the Secretary certifies the election, which he just asked the Florida Supreme Court to enjoin!. Undoubtedly, Gore will argue on Monday that it would make no sense to certify the election just so he can challenge it. But let's be clear -- that is exactly what is required under the statute. Gore has no right to challenge a state-wide election for failure to count "legal votes" before there is a certification. Ultimately, Gore's legal problem remains the same -- the validity of the existing manual recounts. If "error in vote tabulation" is interpreted by the Florida Supreme Court as limited to a defect in a specific machine or software, the supplemental votes should not be counted. It is nonsensical to say that votes that Palm Beach and Broward had no right to count are "legal votes" that should be considered by the Secretary of State. By the way, there are further arguments that make Palm Beach and Broward's conduct ridiculous and make a 14th Amendment challenge more reasonable to the selective recounts. Gore's argument is that if a county does a 1% sample, and extrapolates that an entire count could affect the outcome, then a manual recount should be done. Let's assume George Bush had requested a recount in a heavily Republican, but small county. The canvassing board does a 1% sample and finds 2 extra votes for Bush. Under Gore's standard, however, there could not be manual recount for the following reasons: 1. Remember, Bush is already ahead. How can adding votes to his position "affect the outcome of the election?" Isn't this obvious? As a practical matter, under the statute, only the loser gets to choose where manual recounts will be done. 2. Let's assume Bush was 300 votes behind instead of ahead. Extrapolating 2 votes gives you 200 votes, which is less than the existing 300 votes. Therefore, because that specific county, in isolation, could not affect the outcome of the election, Bush would not be entitled to a manual recount. The fact that the small county next door also found 2 votes (extrapolated to 200 for a total of 400) cannot be a consideration for the specific county. This obviously makes absolutely no sense, and actually does raise a serious 14th Amendment problem, because the statute treats voters in large counties differently than voters in small counties. These considerations make compelling the argument that individual counties are not entitled to take unilateral action merely because an election turns out to be close. The Florida legislature provides a specific remedy when an election is close -- an automatic statewide machine retabulation. For these reasons, if the Florida Supreme Court orders the Secretary to include the additional votes from two specific counties out of 67, we will go to the United States Supreme Court. I should add that the Florida Supreme Court could order a statewide manual recount and avoid the Constitutional problems. However, if it does so, merely because the election was close and for no other reason, it will have usurped the power of the Florida legislature, which provides that a close election requires only a single mechanical retabulation. Furthermore, it will make clear that the section regarding manual recounts is unconstitutional on its face, which means it should be interpreted so as not to be unconsistutional (i.e. manual recounts are only to occur if there is a defect in the machinery or software. Thank you for listening. DS |