Ruling of N. Sanders Sauls
Monday, December 3, 2000
PROCEEDINGS
THE COURT: All right. At this time
we'd call the case
of Albert Gore, et al., versus Catherine Harris, et al. ,
Case Number 00-2808.
At this time, the action having been
tried, the Court
at this time will enter its ruling from the bench, as to the
exigencies surrounding this case, the ruling and findings
shall be incorporated into the final judgment, and shall be
immediately entered herein.
At this time the Court finds and
concludes as follows:
The complaint filed herein states in its first paragraph that
this is an action to contest the state certification in the
presidential election of 2000, asserting that the state
Elections Canvassing Commission's certification on in
November 26th, 2000, was erroneous, and the vote totals
wrongly included illegal votes, and do not include legal
votes that were improperly rejected.
Plaintiffs further contest the state of
Florida's
certification of the electors for George W. Bush and Richard
Cheney as being elected.
They further challenge and contest the
election
certifications of the canvassing boards of Dade, Palm Beach,
and Nassau Counties.
As to the Dade Canvassing Board, the
Plaintiffs seek to
compel the Dade board to include in its certification, and
the State Elections Canvassing Commission to include in the
certification, a six-vote change in favor of Plaintiffs,
resulting from the board's initial test and
partial manual
recount of one-percent of the countywide vote total conducted
with respect to three precincts, designated by the Plaintiffs
designee.
Also, additional votes manually
hand-counted, and a
further partial recount total resulting from the board's
discretionary decision to stop completion of a full manual
recount of all the votes and all the precincts in Dade,
because of insufficiency of time to complete the same.
These represent the results of the count
of an
additional 136 precincts of the 635 precincts in Dade County.
And, also, the results of any Court
order, manual
review and recount of some nine to ten thousand voter cards
or ballots, which at the Plaintiff's request, have been
separated, or were separated as alleged undervotes by the
Dade Canvassing Board, or the Dade Supervisor of Elections,
as a result of all of the countywide ballots being processed
through the counting machines a third time and being
non-readable by the machine.
As to the Palm Beach Canvassing Board,
Plaintiffs seek
to compel the Palm Beach board to include in its
certification, and the state Elections Canvassing Commission
to include, in the state certification, additional votes
representing the results of an attempted partial
certification of results, completed before the November 26th,
2000 deadline, mandated by the Florida Supreme Court, as well
as the additional remainder of the results of the manual
recount, which was completed after the deadline, and the
attempted certification thereof on December 1.
And in addition, the result of any Court
ordered manual
review and recount of some 3,300 ballots which were objected
to during the Palm Beach board's manual recount which
Plaintiffs allege should have been counted as ballot votes
because that board used an improper standard.
As to Nassau, the Nassau County
Canvassing Board, the
Plaintiffs seek to compel the Nassau board to amend its
certification, and the State Elections Canvassing Commission
to amend the state certification to reflect and include the
results of the board's machine recount, rather than the
results of the board's original machine count, thereby
resulting in a favorable net gain to Plaintiffs, of 51 votes.
It is the established law of Florida as
reflected in
State v. Smith that where changes or charges of irregularity
of procedure or inaccuracy of returns in balloting and
counting processes have been alleged, that the Court must
find as a fact that a legal basis for ordering any recount
exists before ordering such recount.
Further, it is well-established, as
reflected in the
opinion of Judge Joanos and Smith v. Tine, that in order to
contest election results under Section 102.168 of the Florida
Statutes, the Plaintiff must show that, but for the
irregularity, or inaccuracy claimed, the result of the
election would have been different, and he or she would have
been the winner.
It is not enough to show a reasonable
possibility that
election results could have been altered by such
irregularities, or inaccuracies, rather, a reasonable
probability that the results of the election would have been
changed must be shown.
In this case, there is no credible
statistical
evidence, and no other competent substantial evidence to
establish by a preponderance of a reasonable probability that
the results of the statewide election in the State of Florida
would be different from the result which had been certified
by the State Elections Canvassing Commission.
The Court further finds and concludes
the evidence does
not establish any illegality, dishonesty, gross negligence,
improper influence, coercion, or fraud in the balloting and
counting processes.
Secondly, there is no authority under
Florida law or
certification of an incomplete manual recount
of a portion
of, or less than all ballots from any county by the state
elections canvassing commission, nor authority to include any
returns submitted past the deadline established by the
Florida Supreme Court in this election.
Thirdly, although the record shows voter
error, and/or,
less than total accuracy, in regard to the punchcard voting
devices utilized in Dade and Palm Beach Counties, which these
counties have been aware of for many years, these balloting
and counting problems cannot support or effect any recounting
necessity with respect to Dade County, absent the
establishment of a reasonable probability that the statewide
election result would be different, which has not been
established in this case.
The Court further finds that the Dade
Canvassing Board
did not abuse its discretion in any of its decisions in its
review in recounting processes.
Fourthly, with respect to the
approximate 3,300
Palm Beach County ballots of which Plaintiffs seek review,
the Palm Beach Board properly exercised its discretion in its
counting process, and has judged those ballots which the
Plaintiff wish this Court to, again, judge de novo.
The old cases upon which Plaintiff rely
are rendered
upon mandamus prior to the modern statutory election system
and remedial scheme enacted by the Legislature of the State
of Florida in Section 102 of the Florida Statutes.
The local boards have been given broad
discretion which
no court may overrule, absent a clear abuse of discretion.
The Palm Beach County board did not
abuse its
discretion in its review and recounting process.
Further, it acted in full compliance
with the order of
the circuit court in and for Palm Beach County.
Having done so, Plaintiffs are estopped
from further
challenge of this process and standards. It should be noted,
however, that such process and standards were changed from
the prior 1990 standards, perhaps contrary to Title III,
Section (5) of the United States code.
Furthermore, with respect to the
standards utilized by
the Board in its review and counting processes, the Court
finds that the standard utilized was in full compliance with
the law and reviewed under another standard would not be
authorized, thus creating a two-tier situation within one
county, as well as with respect to other counties.
The Court notes that the Attorney
General of the State
of Florida enunciated his opinion of the law with respect to
this, in a letter dated November 14, 2000, to the Honorable
Charles E. Burton, Chair of the Palm Beach County Canvassing
Board, which, in part. is as follows: "A two-tier system
would have the effect of treating voters differently,
depending upon what county they voted in."
The voter in a county where a manual
count was
conducted, would benefit from having a better chance of
having his or her vote actually counted, than a voter in a
county where a hand count was halted. As the State's chief
legal officer, I feel a duty to warn that the final certified
total for balloting in the State of Florida includes figures
generated from this two-tier system of differing behavior by
official Canvassing Boards, the state will incur a legal
jeopardy under both the United States and the state
constitutions.
This legal jeopardy could potentially
leave Florida
having all of its votes, in effect, disqualified, and this
state being barred from the Electoral College's election of a
President.
The Court finds further that the Nassau
County
Canvassing Board did not abuse its discretion in its
certification of Nassau County's voting results.
Such actions were not void or illegal,
and was done
with the proper exercise -- within the proper exercise of its
discretion upon adequate and reasonable public notice.
Further, this Court would further
conclude and find
that the properly stated cause of action under
Section 102.168 of the Florida Statutes to contest a
statewide federal election, the Plaintiff would necessarily
have to place at issue and seek as a remedy with the
attendant burden of proof, a review and recount on all
ballots, and all of the counties in this state with respect
to the particular alleged irregularities or inaccuracies in
the balloting or counting processes alleged to have occurred.
As recently stated by Judge Klein with
the concurrence
of Chief Judge Warner in the Fourth District Court of Appeal
case, of Bedell v. Palm Beach Canvassing Board,
Section 102.168 provides in Subsection (1) that the
certification of elections may be contested for presidential
elections. Section 103.011 provides that, "The Department of
State shall certify as elected the presidential electors of
the candidates for President and Vice President who receive
the highest number of votes."
There is in this type of election, one
statewide
election, and one certification. Palm Beach County did not
elect any person as a presidential elector, but, rather, the
election with the winner-take-all proposition, dependent on
the statewide vote.
Finally, for the purpose of expedition,
due to the
exigencies surrounding these proceedings, this Court will
deny those portions of the pending motions to dismiss of the
various parties herein not affected by or ruled upon in these
findings and conclusions in those portions consisting solely
of matters of law being reviewable upon such denial.
In conclusion, the Court finds that the
Plaintiff
failed to carry the requisite burden of proof, and the
judgment shall be hereby entered, and the Plaintiffs will
take nothing by this action. All ballots in the possession
of the Clerk of this Court shall remain pending review. A
judgment will be entered and filed with the
Clerk immediately
following the hearing.
(HEARING CONCLUDED at 4:48 P.M.)
