Palm Beach County Canvassing Bd. v. Harris
| Citation | 772 So.2d 1273 |
| Decision Date | 11 December 2000 |
| Docket Number | No. SC00-2348, No. SC00-2349., No. SC00-2346 |
| Parties | PALM BEACH COUNTY CANVASSING BOARD, Petitioner, v. Katherine HARRIS, etc., et al., Respondents. Volusia County Canvassing Board, et al., Appellants, v. Katherine Harris, etc., et al., Appellees. Florida Democratic Party, Appellant, v. Katherine Harris, etc., et al., Appellees. |
| Court | United States State Supreme Court of Florida |
Denise D. Dytrych, Palm Beach County Attorney, and James C. Mize, Jr., Andrew J. McMahon and Gordon Selfridge, Assistant Palm Beach County Attorneys, West Palm Beach, Florida; Bruce Rogow and Beverly A. Pohl of Bruce S. Rogow, P.A., Fort Lauderdale, Florida; and Robert A. Butterworth, Attorney General, pro se, Paul F. Hancock and Kimberly J. Tucker, Deputy Attorneys General, George Waas and Jason Vail, Assistant Attorneys General, Tallahassee, Florida, and Cecile Luttmer Dykas, Assistant Attorney General, Fort Lauderdale, Florida, for Petitioners.
Deborah K. Kearney, General Counsel, and Kerey Carpenter, Assistant General Counsel, Florida Department of State, Tallahassee, Florida; and Joseph P. Klock, Jr., Jonathan Sjostrom, Victoria L. Weber, John W. Little, III, Donna E. Blanton, Gabriel E. Nieto, Ricardo M. Martinez-Cid, Elizabeth C. Daley, Arthur R. Lewis, Jr. and Elizabeth J. Maykut of Steel, Hector & Davis, LLP, Tallahassee, Florida, for the Elections Canvassing Commission; and Terrell C. Madigan, Harold R. Mardenborough, Jr., Christopher Barkas and Matt Butler of McFarlain, Wiley, Cassedy & Jones, P.A., Tallahassee, Florida, for Respondents in No. SC00-2346, and Appellees in Nos. SC00-2348 and SC00-2349.
John D.C. Newton, II of Berger Davis & Singerman, Tallahassee, Florida; Mitchell W. Berger of Berger Davis & Singerman, Fort Lauderdale, Florida; W. Dexter
Douglass of the Douglass Law Firm, Tallahassee, Florida; David Boies of Boies, Schiller & Flexner, LLP, Armonk, New York; Ronald A. Klain, Democratic National Committee, Washington, DC; Lyn Utrecht and Eric Kleinfeld of Ryan, Phillips, Utrecht and MacKinnon, Washington, DC; Andrew J. Pincus, c/o Gore/Lieberman Recount Committee, Washington, DC; Laurence Tribe, Cambridge, Massachusetts; and Karen Gievers, of Karen Gievers, P.A., Tallahassee, Florida, for Albert A. Gore and the Florida Democratic Executive Committee, Intervenors/Petitioners in No. SC00-2346, and Appellant in No. SC00-2349.
Edward A. Dion, County Attorney for Broward County, Norman M. Ostrau, Deputy County Attorney, Andrew J. Meyers, Chief Appellate Counsel, and Tamara M. Scrudders and Jose Arrojo, Assistant County Attorneys, Fort Lauderdale, Florida; and Samuel S. Goren, James A. Cherof and Michael D. Cirullo, Jr. of Josias, Goren, Cherof, Doody & Ezrol, P.A., Fort Lauderdale, Florida, for The Broward County Canvassing Board and Jane Carroll, as Broward County Supervisor of Elections, Intervenors/Petitioners in No. SC00-2346 and Intervenors in Nos. SC00-2348 and SC00-2349.
Barry Richard of Greenberg, Traurig, P.A., Tallahassee, Florida; Jason L. Unger of Gray, Harris & Robinson, Tallahassee, Florida; Michael A. Carvin of Cooper, Carvin & Rosenthal, PLLC, Washington, DC; Benjamin L. Ginsberg of Patton, Boggs, LLP, Washington, DC; Alex M. Azar II of Wiley, Rein & Fielding, Washington, DC; George J. Terwilliger, III, and Timothy E. Flanigan of White & Case, LLP, Washington, DC; Marcos D. Jimenez D'Clouet of White & Case, Miami, Florida; and R. Ted Cruz, Bush-Cheney Recount Committee, Austin, Texas, for Honorable George W. Bush, Intervenor/Respondent in No. SC00-2346 and Intervenor in Nos. SC00-2348 and SC00-2349.
Thomas R. Tedcastle, General Counsel, Florida House of Representatives, Tallahassee, Florida; D. Stephen Kahn, General Counsel, The Florida Senate, Tallahassee, Florida; Roger J. Magnuson and James K. Langdon of Dorsey & Whitney LLP, Minneapolis, Minnesota; and Einer Elhauge and Charles Fried, Cambridge, Massachusetts, for the Florida Legislature, Amici Curiae.
Lois Frankel, pro se, Tallahassee, Florida, as a member of the Florida Legislature and as minority leader of the Florida House of Representatives, Amicus Curiae.
Robert G. Kerrigan of Kerrigan, Estess, Rankin & McLeod, Pensacola, Florida, for Senator Thomas E. Rossin, a member of the Florida Legislature and the minority leader of the Florida Senate, Amicus Curiae.
John D.C. Newton, II of Berger Davis & Singerman, Tallahassee, Florida; Mitchell W. Berger of Berger Davis & Singerman, Fort Lauderdale, Florida; W. Dexter Douglass of the Douglass Law Firm, Tallahassee, Florida; David Boies of Boies, Schiller & Flexner, LLP, Armonk, New York; Ronald A. Klain, Democratic National Committee, Washington, DC; Lyn Utrecht and Eric Kleinfeld of Ryan, Phillips, Utrecht and MacKinnon, Washington, DC; Andrew J. Pincus, c/o Gore/Lieberman Recount Committee, Washington, DC; Laurence Tribe, Cambridge, Massachusetts; and Karen Gievers, of Karen Gievers, P.A., Tallahassee, Florida; Denise D. Dytrych, Palm Beach County Attorney, and James C. Mize, Jr., Andrew J. McMahon and Gordon Selfridge, Assistant Palm Beach County Attorneys, West Palm Beach, Florida; Bruce Rogow and Beverly A. Pohl of Bruce S. Rogow, P.A., Fort Lauderdale, Florida; and Robert A. Butterworth, Attorney General, pro se, Paul F. Hancock and Kimberly J. Tucker, Deputy Attorneys General, George Waas and Jason Vail, Assistant Attorneys General, Tallahassee, Florida, and Cecile Luttmer Dykas, Assistant Attorney General, Fort Lauderdale, Florida, for Albert A. Gore and the Canvassing Board of Palm Beach County, Florida, Appellants.
This case is before the Court on remand from the United States Supreme Court.1 We respond to several issues raised by the United States Supreme Court as explained herein.2
On Tuesday, November 7, 2000, the State of Florida, along with the rest of the nation, conducted a general election for the President of the United States. The Florida Division of Elections ("Division") reported on Wednesday, November 8, that Governor George W. Bush, the Republican candidate, had received 2,909,135 votes and Vice President Albert Gore Jr., the Democratic candidate, had received 2,907,351 votes. Because the overall difference in the total votes cast for each candidate was less than one-half of one percent of the total votes cast for that office, an automatic recount was conducted.3 The recount resulted in a reduced figure for the overall difference between the two candidates.
In light of the closeness of the election, the Florida Democratic Executive Committee, on Thursday, November 9, requested that manual recounts be conducted in Broward, Miami-Dade, Palm Beach, and Volusia Counties. The county canvassing boards ("Boards") of these counties conducted sample manual recounts of at least one percent of the ballots cast. Several of the Boards determined that the manual recounts showed "an error in the vote tabulation which could affect the outcome of the election," and the Boards voted to conduct countywide manual recounts. See § 102.166(5), Fla. Stat. (2000).
Because the Palm Beach County Canvassing Board was concerned that the recounts would not be completed prior to the seven-day deadline set forth in sections 102.111 and 102.112, Florida Statutes (2000), the Board sought an advisory opinion from the Division. The Division issued Advisory Opinion DE 00-10 wherein the Division advised the Board that absent unforeseen circumstances the county's returns must be received by 5 p.m. on the seventh day following the election in order to be included in the certification of statewide results.
Relying on this advisory opinion, the Florida Secretary of State ("Secretary") on Monday, November 13, issued a statement wherein she announced that she would ignore returns of manual recounts received by the Florida Department of State ("Department") after 5 p.m., Tuesday, November 14. The Volusia County Canvassing Board on Monday, November 13, filed suit in circuit court in Leon County, seeking declaratory and injunctive relief; the candidates and the Palm Beach County Canvassing Board were allowed to intervene.
The trial court ruled on Tuesday, November 14, that the deadline was mandatory but that the Volusia Board could amend its returns at a later date and that the Secretary, after "considering all attendant facts and circumstances," could exercise her discretion in determining whether to ignore the amended returns. Later that day, the Volusia Board filed a notice of appeal and the Palm Beach Board filed a notice of joinder in the appeal.
Subsequent to the circuit court's order, the Secretary announced that she was in receipt of certified returns (i.e., the returns resulting from the initial recount) from all counties in the state. The Secretary then instructed Florida's Supervisors of Elections ("Supervisors") that they must submit to her by 2 p.m., Wednesday, November 15, a written statement of "the facts and circumstances" justifying any belief on their part that they should be allowed to amend the certified returns previously filed. After considering the reasons in light of specific criteria,4 the Secretary, on Wednesday, November 15, rejected the reasons and again announced that she would not accept the amended returns but rather would rely on the earlier certified totals for the four counties. The Secretary further stated that after she received the certified returns of the overseas absentee ballots from each county she would certify the results on Saturday, November 18.
On Thursday, November 16, the Florida Democratic Party and Vice President Gore filed a motion in circuit court in Leon County, seeking to compel the Secretary to accept amended returns. After conducting a hearing, the court denied relief in a brief order dated Friday, November 17. Both the Democratic Party and Vice President Gore appealed. The First District Court of Appeal certified both of the underlying trial court orders to this Court vi...
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