George,

I have read the Florida Supreme Court decision, which is more than I can say for some of those who have been pontificating about it. I am impressed with its simplicity and how firmly it sticks to long-standing Florida law. The Court began its discussion of the issues by commenting that "the will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle." Then the Court quoted a 1975 Florida case:

"The real parties in interest here, not in the legal sense but in realistic terms, are the voters. They are possess of the the ultimate interest and it is they whom we must give primary consideration. The contestants have direct interests certainly, but the office they seek is one of high public service and of utmost importance to the people, thus subordinating their interest to that of the people. Ours is a government of, by and for the people. Our federal and state constitutions guarantee the right of the people to take an active part in the process of that government, which for most of our citizens means participation via the election process. The right to vote is the right to participate; it is also the right to speak, but more importantly the right to be heard. We must tread carefully on that right or we risk the unnecessary and unjustified muting of the public voice. By refusing to recognize an otherwise valid exercise of the right of a citizen to vote for the sake of sacred, unyielding adherence to statutory scripture, we would in effect nullify that right."

The Court went on to note that "We consistently have adhered to the principle that the will of the people is the paramount consideration."

The Court went on to discuss the two questions that it said confronted it:

1. Under what circumstances may a County Canvassing Board authorize a countywide manual recount?

2. Must the Secretary of State accept such recounts even if they come in after the 7-day deadline set by statute?

The laws of Florida state that if someone requests a manual recount, the County Canvassing Board shall conduct a manual recount consisting of at least three precincts and at least one percent of the total votes cast. If that manual recount indicates an "error in the vote tabulation which could affect the outcome of the election," the Board has 3 choices, one of which is to manually recount all ballots.

The Republicans objected on the ground that the phrase "error in the vote tabulation" must mean "error in the functioning of the system of vote tabulation," as where the vote tabulating software crashed or didn't work right, or where the vote tabulating hardware broke.

The Florida Supreme Court had little trouble with that -- "error in the vote tabulation" simply means that the machine got it wrong. The Republicans had argued that Florida has set up a system of machine counts, and the state had to stick by machine counts as being the most accurate. The Court said:

"Although error cannot be completely eliminated in any tabulation of the ballots, our society has not yet gone so far as to place blind faith in machines. In almost all endeavors, including elections, humans routinely correct the errors of machines."

The Court ruled that the manual recounts are authorized.

The next question dealt with the fact that results had to be certified by 7 days after the election, but someone could request a manual recount at any time before certification -- even on the 7th day. A strict application of the 7th-day rule would effectively make a manual recount impossible. The Court found that to be illogical:

"Although the Code sets no specific deadline by which a manual recount must be completed, logic dictates that the period of time required to complete a full manual recount may be substantial, particularly in a populous county, and may require several days."

The Court went on for about 15 pages of analysis of different Florida election laws, and found that there was a conflict between some of them. The Court applied the long-held common-sense principle that laws that seem to be in conflict with one another should be read with an eye to trying to make them work together; a court should assume that the legislature was trying to do something sensible, not something stupid. For example, the law allows counting absentee ballots that are received up to 10 days after the election. It would be impossible to count those votes under the Republican contention, because the final certified totals need to be in in 7 days. The Court held that the only interpretation of the laws that makes sense is for the local Canvassing Boards to be required to submit their certifications in 7 days, but to give the Boards authority to submit amended totals later.

How much later can new votes be counted?

The Court here went back to a 1977 Florida case that found that the Florida Constitution prohibits any "unreasonable or unnecessary restraints on the elective process." Quoting Florida cases from 1933 and 1940, the Court reiterated "the fundamental purpose of election laws: The laws are intended to facilitate and safeguard the right of each voter to express his or her will in the context of our representative democracy. Technical statutory requirements must not be exalted over the substance of this right."

The Court concluded that the Secretary of State "may reject a Board's amended returns only if the returns are submitted so late that their inclusion will preclude a candidate from contesting the certification or preclude Florida's voters from participating fully in the federal electoral process." The Court then went on to discuss setting deadlines in this case of Sunday night or Monday morning.

In one of the most fascinating parts of the opinion, the Court quoted from an Illinois case that talked about the fact that electronic tabulating equipment was meant to expedite tabulation, not to create a technical obstruction which defeats the rights of qualified voters.

"To invalidate a ballot which clearly reflects the voter's intent, simply because a machine cannot read it, would subordinate substance to form and promote the means at the expense of the end."

But what is particularly interesting is that the Court continued to quote the Illinois Supreme Court:

"The voters here did everything which the Election Code requires when they punched the appropriate chad with the stylus. These voters should not be disenfranchised where their intent may be ascertained with reasonable certainty, simply because the chad they punched did not completely dislodge from the ballot. Such a failure may be attributable to the fault of the election authorities, for failing to provide properly perforated paper, or it may be the result of the voter's disability or inadvertence. Whatever the reason, where the intention of the voter can be fairly and satisfactorily ascertained, that intention should be given effect."

I believe that the Florida Supreme Court was saying here that they would vote to include hanging chads, swinging chads, pregnant chads, and even dimpled chads. This language was not necessary to the decision in this case, but including it in the opinion is a signal to all that the Canvassing Boards are free to determine the intent of the voter, and they are not limited to cases where the chad has come free entirely.

I predict that on Monday, someone will file suit to have the dimpled chads and others counted, that the Florida Supreme Court will count them, and that there will be no successful federal court litigation.

Lloyd Snook (electronic mail, November 22, 2000).