US Supreme Court Briefs

No. 00-836_____________________________________________________IN THESUPREME COURT OF THE UNITED STATES_____________________________________________________GEORGE W. BUSH,Petitioner,v.PALM BEACH COUNTY CANVASSING BOARD, et al.Respondents._________________________________On Petition For Writ of Certiorarito the Florida Supreme Court_________________________________BROWARD COUNTY CANVASSING BOARD'S ANDBROWARD COUNTY SUPERVISOR OF ELECTION'SRESPONSE TO PETITION FOR WRIT OF CERTIORARIEDWARD A. DION                        SAMUEL S. GORENCounty Attorney for Broward County    Counsel of RecordCounsel of Record                     MICHAEL D. CIRULLOANDREW J. MEYERS                      Josias, Goren, Cherof, Doody &Chief Appellate Counsel               Ezrol, P.A.NORMAN M. OSTRAU                      3099 East Commercial Blvd.Deputy County Attorney                Suite 200TAMARA M. SCRUDDERS                   Fort Lauderdale, Florida 33308Assistant County Attorney             Telephone: (954) 771-4500JOSE ARROJO                          Assistant County Attorney             Counsel for the Broward County       Government Center, Suite 423          Supervisor of Elections115 South Andrews AvenueFort Lauderdale, Florida 33301       Counsel for the Broward County Canvassing Board

STATEMENT OF THE CASE

After the November 7, 2000 general election, the Broward County Canvassing Board (the"Board") conducted a statutorily-mandated machine recount of the votes cast for President/VicePresident. Consistent with the requirements of §102.166(4), Florida Statutes, the Board thenconducted a limited manual recount of the votes cast in three precincts, which comprised more thanone percent (1%) of the total votes cast in Broward County. The Board determined that the resultsof the limited manual recount indicated an error in vote tabulation that could affect the outcome ofthe election. As a result of this determination, the Board was statutorily required, pursuant to§102.166(5)(c), Florida Statutes, to conduct a county-wide manual recount of all ballots in BrowardCounty cast for President of the United States.

The Board began its full manual recount on Wednesday, November 15, 2000, at 2:00p.m..From that date, the Board worked continuously, without taking any days off, even for theThanksgiving holiday. Initially, the Board, as well as hundreds of county employees and partyobservers, worked from 8:00 a.m. until 6:00 p.m. each day, but the Board increased its hours evenfurther as the recount continued, working several days from 8:00 a.m. until 11:00 p.m. Afterworking eleven (11) consecutive days, the manual recount concluded on Saturday, November 25,2000 shortly before midnight.

As stated in the certifications attached hereto as Exhibits "A" and "B", which were filed withthe Secretary of State on November 8, 2000 and November 26, 2000, respectively, the manualrecount resulted in One Thousand Seven Hundred Twenty-One (1,721) additional valid votes beingincluded in the vote totals for Broward County.

ARGUMENT

  1. THE FLORIDA SUPREME COURT'S HOLDING DOES NOTVIOLATE THE DUE PROCESS CLAUSE OR 3 U.S.C. §5.

Under 3 U.S.C. §5, a determination regarding the appointment of presidential electorspursuant to Florida's Election Code "shall be conclusive" provided:

  1. The applicable provisions of the Florida Election Code were "enacted prior to the day fixedfor appointment of the electors;" and

  2. The determination is made by December 12, 2000, which is six days prior to the meeting ofthe electors under 3 U.S.C. §7 (2000).
  1. The Supreme Court of Florida Did Not Rewrite the Applicable Provisions of theFlorida Election Code.

The Florida Supreme Court decision did not impose post-election judicial limitations on stateexecutive officials. Nor did it impose judicially created standards for the determination ofcontroversies concerning the appointment of presidential electors. Rather, the Florida SupremeCourt's decision interpreted existing Florida statutes as required to harmonize the various provisionsof the Florida Election Code so as to give effect to the overall purpose and intent of Florida'selection laws. In the Court's own words, the decision of the Florida Supreme Court was "consistentwith the Florida election scheme."

It has long been the law in Florida that wherever it is possible to do so, a court must construestatutory sections so they operate in harmony with each other. Palm Harbor Special Fire ControlDistrict v. Kelly, 516 So.2d 249 (Fla. 1987). In this case, the Florida Supreme Court's decision doesexactly that, squaring the express language of Florida's statutory provisions governing the electionprocess with the intent and purpose behind those provisions. At the same time, the Florida SupremeCourt ensured that each vote in counties utilizing manual recounts can be accurately counted, andthat Florida's ability to appoint its electors by December 12, 2000 will not be jeopardized.

By providing that the Secretary of State was required to accept amended certifications fromthe county canvassing boards, the Florida Supreme Court's holding did nothing more than interpretFlorida law in a manner to allow for what was intended-- to permit enough time for pre-certificationmanual recounts as well as post-certification contests. The Court recognized that Florida's ElectionCode contains no deadlines for filing corrected, amended or supplemental vote returns. The Courtfurther recognized that while Florida statutes specifically provide for manual recounts, the recountscould not be accomplished in larger counties, like Broward County, within the seven (7) day periodcontained in §102.166, Florida Statutes (2000).

This latter recognition was confirmed by the actual experience of the Broward CountyCanvassing Board, which required eleven (11) consecutive arduous days, working long hourswithout a break, to accurately complete the recount of approximately 588,000 ballots in BrowardCounty. As a result, more than 1,700 votes from Broward County not previously counted wereincluded in the final vote total certified by the Secretary of State on November 26, 2000. Theinclusion of those votes is what was intended by the Legislature when it provided for a procedurefor manual recounts. That goal was accomplished in Broward County, with absolutely no impacton any other part of the election process.

The provisions of the Florida Election Code, upon which the manual recount vote total wasbased, were enacted by the Florida Legislature prior to the day fixed for appointment of the electors.As such, the final vote totals from Broward County was determined consistent with 3 U.S.C. §5.

  1. Contrary to Petitioner's Assertions, Neither the Decision of the Supreme Court ofFlorida Nor the Board's Manual Recount Thwart the Will of the Electorate.

In its introduction, Petitioner asserts that the decision of the Supreme Court of Florida"appears designed to thwart the will of the electorate . . .." To the contrary, the will of the electoratecan only be determined by counting all votes as to which the clear intent of the voter can bedetermined. Given the problems clearly evident with machine vote tabulation in Broward County,the Board determined that the manual recount was necessary to determine the true vote totals.

Petitioner further argues that the efforts of the Broward County Canvassing Board were"unrestrained by statutory guidance[.]" This allegation is simply not true. Florida Statute§101.5614(5) provides: "No vote shall be declared invalid or void if there is a clear indication of theintent of the voter as determined by the canvassing board." This statutory mandate guided alldecisions of the Broward County Canvassing Board.

Petitioner also asserts that the act of manually recounting ballots, which requires handlingof the ballots, undermined the physical integrity of the ballots. There is no evidence before thisCourt to support that bald assertion. Petitioner's failure to cite to any record support equates to anadmission that none exists.

  1. THE FLORIDA SUPREME COURT'S DECISION IS NOTINCONSISTENT WITH ARTICLE II, SECTION 1, CLAUSE2 OF THE CONSTITUTION.

As indicated in Section I of this Response, the Florida Supreme Court decision is consistentwith Florida Statutes enacted before the election was held. The argument in Section I is incorporatedhere as Broward County Canvassing Board's response to Question II presented by the Petitioner.It is further submitted that, based on those arguments, the Florida Supreme Court's decision is notinconsistent with Article II, Section 1, clause 2 of the Constitution.

  1. IF THIS COURT WERE TO FIND THAT THE FLORIDASUPREME COURT'S DECISION DOES NOT COMPLY WITH3 U.S.C. §5, MORE THAN 1,700 VOTERS WOULD BENEEDLESSLY DISENFRANCHISED.

The Broward County Canvassing Board has invested substantial time and effort inpainstakingly examining each ballot cast in Broward County to determine the true intent of eachvoter and to reach an accurate count of votes cast. The Board's efforts were consistent with Floridalaw and pursuant to the clear direction of the Florida Supreme Court.

The direct result of any decision reversing the Florida Supreme Court will be thedisenfranchisement of more than 1,700 Broward County voters who validly and lawfully filled inballots which would be rendered meaningless solely because of the limitations of the county'smachine counting system.

CONCLUSION

Wherefore the Broward County Canvassing Board respectfully requests this Court deny thewrit of certiorari requested by Petitioners, allowing Broward County's amended certification tostand.

Respectfully submitted,

EDWARD A. DION
Broward County Attorney
Governmental Center, Suite 423
115 South Andrews Avenue
Ft. Lauderdale, Florida 33301
Telephone: (954) 357-7600
Facsimile: (954) 357-7641
By: __________________________
EDWARD A. DION
Florida Bar No. 267732
Counsel of Record
ANDREW J. MEYERS
Chief Appellate Counsel
Florida Bar No. 709816
NORMAN M. OSTRAU
Deputy County Attorney
Florida Bar No. 273971
TAMARA M. SCRUDDERS
Assistant County Attorney
Florida Bar No. 868426
JOSE ARROJO
Assistant County Attorney
Florida Bar No. 744808

Counsel for Broward County Canvassing Bd.

SAMUEL S. GOREN
MICHAEL D. CIRULLO
Josias, Goren, Cherof, Doody & Ezrol, P.A.
3099 East Commercial Blvd., Suite 200
Fort Lauderdale, Florida 33308
By: __________________________
SAMUEL S. GOREN
Fla. Bar No. 205850
MICHAEL D. CIRULLO
Fla. Bar No. 973180

Counsel for Broward County Supervisor of
Elections

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