Gore v. HarrisGore v. Harris
We have for review a final judgment of a Leon County trial court certified by the First District Court of Appeal as being of great public importance and requiring immediate resolution by this Court. We have jurisdiction. See
I. BACKGROUND
On November 26, 2000, the Florida Elections Canvassing Commission (Canvassing Commission) certified the results of the election and declared Governor George W. Bush and Richard Cheney, the Republican candidates for President and Vice President, the winner of Florida‘s electoral votes.3 The November 26, 2000, certified results showed a 537-vote margin in favor of Bush.4
On November 27, pursuant to the legislatively enacted “contest” provisions, Gore filed a complaint in Leon County Circuit Court contesting the certification on the grounds that the results certified by the Canvassing Commission included “a number of illegal votes” and failed to include “a number of legal votes sufficient to change or place in doubt the result of the election.”5
Pursuant to the legislative scheme providing for an “immediate hearing” in a contest action, the trial court held a two-day evidentiary hearing on December 2 and 3, 2000, and on December 4, 2000, made an oral statement in open court denying all relief and entered a final judgment adopting the oral statement. The trial court did not make any findings as to the factual allegations made in the complaint and did not reference any of the testimony adduced in the two-day evidentiary hearing, other than to summarily state that the plaintiffs failed to meet their burden of proof. Gore appealed to the First District Court of Appeal, which certified the judgment to this Court.
The appellants’ election contest is based on five instances where the official results certified involved either the rejection of a number of legal votes or the receipt of a number of illegal votes. These five instances, as summarized by the appellants’ brief, are as follows:
(1) The rejection of 215 net votes for Gore identified in a manual count by the Palm Beach Canvassing Board as reflecting the clear intent of the voters; (2) The rejection of 168 net votes for Gore, identified in the partial recount by the Miami-Dade County Canvassing Board.
(3) The receipt and certification after Thanksgiving of the election night returns from Nassau County, instead of the statutorily mandated machine recount tabulation, in violation of
section 102.14, Florida Statutes , resulting in an additional 51 net votes for Bush.(4) The rejection of an additional 3300 votes in Palm Beach County, most of which Democrat observers identified as votes for Gore but which were not included in the Canvassing Board‘s certified results; and
(5) The refusal to review approximately 9000 Miami-Dade ballots, which the counting machine registered as non-votes and which have never been manually reviewed.
For the reasons stated in this opinion, we find that the trial court erred as a matter of law in not including (1) the 215 net votes for Gore identified by the Palm Beach County Canvassing Board6 and (2) in not including the 168 net votes for Gore identified in a partial recount by the Miami-Dade County Canvassing Board. However, we find no error in the trial court‘s findings, which are mixed questions of law and fact, concerning (3) the Nassau County Canvassing Board and the (4) additional 3300 votes in Palm Beach County that the Canvassing Board did not find to be legal votes. Lastly, we find the trial court erred as a matter of law in (5) refusing to examine the approximately 9000 additional Miami-Dade ballots placed in evidence, which have never been examined manually.
II. APPLICABLE LAW
If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.
(Emphasis supplied.)
This case today is controlled by the language set forth by the Legislature in
In carefully construing the contest statute, no single statutory provision will be construed in such a way as to render meaningless or absurd any other statutory provision. See Amente v. Newman, 653 So.2d 1030, 1032 (Fla.1995). In interpreting the various statutory components of the State‘s election process, then, a common-sense approach is required, so that the purpose of the statute is to give effect to the legislative directions ensuring that the right to vote will not be frustrated. Cf. Firestone v. News-Press Pub. Co., 538 So.2d 457, 460 (Fla.1989) (approving common-sense implementation of valid portion of
The Legislature substantially revised
Although the right to contest an election is created by statute, it has been a long-standing right since 1845 when the first election contest statute was enacted. See ch. 38, art. 10, §§ 7-9, Laws of Fla. (1845). As is well established in this State by our contest statute, “[t]he right to a correct count of the ballots in an election is a substantial right which it is the privilege of every candidate for office to insist on, in every case where there has been a failure to make a proper count, call, tally, or return of the votes as required by law, and this fact has been duly established as the basis for granting such relief.” State ex rel. Millinor v. Smith, 107 Fla. 134, 139, 144 So. 333, 335 (1932) (emphasis added). The Staff Analysis of the 1999 legislative amendment expressly endorses this important principle. Similarly, the Florida House of Representatives Committee on Election Reform 1997 Interim Project on Election Contests and Recounts expressly declared:
Recounts are an integral part of the election process. For one‘s vote, when cast, to be translated into a true message, that vote must be accurately counted, and if necessary, recounted. The moment an individual‘s vote becomes subject to error in the vote tabulation process, the easier it is for that vote to be diluted.
Furthermore, with voting statistics tracing a decline in voter turnout and in increase in public skepticism, every effort should be made to ensure the integrity of the electoral process.
Integrity is particularly crucial at the tabulation stage because many elections occur in extremely competitive jurisdictions, where very close election results are always possible. In addition, voters and the media expect rapid and accurate tabulation of election returns, regardless of whether the election is close or one sided. Nonetheless, when large numbers of votes are to be counted, it can be
expected that some error will occur in tabulation or in canvassing.
Id. at 15 (footnotes omitted). It is with the recognition of these legislative realities and abiding principles that we address whether the trial court made errors of law in rendering its decision.
III. ORDER ON REVIEW
Vice President Gore claims that the trial court erred in the following three ways: (1) The trial court held that an election contest proceeding was essentially an appellate proceeding where the County Canvassing Board‘s decision must be reviewed with an “abuse of discretion,” rather than “de novo,” standard of review; (2) The court held that in a contest proceeding in a statewide election a court must review all the ballots cast throughout the state, not just the contested ballots; (3) The court failed to apply the legal standard for relief expressly set forth in
A. The Trial Court‘s Standard of Review
The Florida Election Code sets forth a two-pronged system for challenging vote returns and election procedures. The “protest” and “contest” provisions are distinct proceedings. A protest proceeding is filed with the County Canvassing Board and addresses the validity of the vote returns. The relief that may be granted includes a manual recount. The Canvassing Board is a neutral ministerial body. See Morse v. Dade County Canvassing Board, 456 So.2d 1314 (Fla. 3d DCA 1984). A contest proceeding, on the other hand, is filed in circuit court and addresses the validity of the election itself. Relief that may be granted is varied and can be extensive. No appellate relationship exists between a “protest” and a “contest“; a protest is not a prerequisite for a contest. Cf. Flack v. Carter, 392 So.2d 37 (Fla. 1st DCA 1980) (holding that an election protest under
In the present case, the trial court erroneously applied an appellate abuse of discretion standard to the Boards’ decisions. The trial court‘s oral order reads in relevant part:
The local boards have been given broad discretion which no Court may overrule, absent a clear abuse of discretion.
Gore v. Harris, No. 00-2808, 2000 WL 1770257 (Fla.2d Cir.Ct. Dec. 4, 2000) (Proceedings at 10). The trial court further noted: “The court further finds that the Dade Canvassing Board did not abuse its discretion.... The Palm Beach County Board did not abuse its discretion in its review and recounting process.”10 In applying the abuse of discretion standard of review to the Boards’ actions, the trial court relinquished an improper degree of its own authority to the Boards. This was error.
B. Must all the Ballots be Counted Statewide?
Appellees contend that even if a count of the undervotes in Miami-Dade were appropriate,
As explained above,
We do agree, however, that it is absolutely essential in this proceeding and to any final decision, that a manual recount be conducted for all legal votes in this State, not only in Miami-Dade County, but in all Florida counties where there was an undervote and, hence, a concern that not every citizen‘s vote was counted. This election should be determined by a careful examination of the votes of Florida‘s citizens and not by strategies extraneous to the voting process. This essential principle, that the outcome of elections be determined by the will of the voters, forms the foundation of the election code enacted by the Florida Legislature and has been consistently applied by this Court in resolving elections disputes.
We are dealing with the essence of the structure of our democratic society; with the interrelationship, within that framework, between the
Electors of President and Vice President, known as presidential electors, shall be elected on the first Tuesday after the first Monday in November of each year the number of which is a multiple of 4. Votes cast for the actual candidates for President and Vice President shall be counted as votes cast for the presidential electors supporting such candidates. 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.
Id. In so doing, the Legislature has placed the election of presidential electors squarely in the hands of Florida‘s voters under the general election laws of Florida.11
When an election contest is filed under
fashion such orders as he or she deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances.
Id. (emphasis added). Through this statute, the Legislature has granted trial courts broad authority to resolve election disputes and fashion appropriate relief. In turn, this Court, consistent with legislative policy, has pointed to the “will of the voters” as the primary guiding principle to be utilized by trial courts in resolving election contests:
[T]he real parties in interest here, not in the legal sense but in realistic terms, are the voters. They are possessed of 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 interests 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.
Boardman v. Esteva, 323 So.2d 259, 263 (Fla.1975) (emphasis added). For example, the Legislature has mandated that no vote shall be ignored “if there is a clear indication of the intent of the voter” on the ballot, unless it is “impossible to determine the elector‘s choice.”
The demonstrated problem of not counting legal votes inures to any county utilizing a counting system which results in undervotes and “no registered vote” ballots. In a countywide election, one would not simply examine such categories of ballots from a single precinct to ensure the reliability and integrity of the countywide vote. Similarly, in this statewide election, review should not be limited to less than all counties whose tabulation has resulted in such categories of ballots. Relief would not be “appropriate under [the] circumstances” if it failed to address the “otherwise valid exercise of the right of a citizen to vote” of all those citizens of this State
C. The Plaintiff‘s Burden of Proof
It is immediately apparent, in reviewing the trial court‘s ruling here, that the trial court failed to apply the statutory standard and instead applied an improper standard in determining the contestant‘s burden under the contest statute. The trial court began its analysis by stating:
[I]t is well established and reflected in the opinion of Judge Joanos and Smith v. Tine[13][sic], 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 has been certified by the State Elections Canvassing Commission.
This analysis overlooks and fails to recognize the specific and material changes to the statute which the Legislature made in 1999 that control these proceedings. While the earlier version, like the current version, provided that a contestant shall file a complaint setting forth “the grounds on which the contestant intends to establish his or her right to such office or set aside the result of the election,” the prior version did not specifically enumerate the “grounds for contesting an election under this section.” Those grounds, as contained in the 1999 statute, now explicitly include, in subsection (c), the “[r]eceipt 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.” (Emphasis supplied.) Assuming that reasonableness is an implied component of such a doubt standard,14 the determination of whether the plaintiff has met his or her burden of proof to establish that the result of an election is in doubt is a far different standard than the “reasonable probability” standard, which was applicable to contests under the old version of the statute, and erroneously applied and articulated as a “preponderance of a reasonable probability” standard
LEGAL VOTES
Having first identified the proper standard of review, we turn now to the allegations of the complaint filed in this election contest. To test the sufficiency of those allegations and the proof, it is essential to understand what, under Florida law, may constitute a “legal vote,” and what constitutes rejection of such vote.
This Court has repeatedly held, in accordance with the statutory law of this State, that so long as the voter‘s intent may be discerned from the ballot, the vote constitutes a “legal vote” that should be counted. See McAlpin v. State ex rel. Avriett, 155 Fla. 33, 19 So.2d 420 (1944); see also State ex rel. Peacock v. Latham, 25 Fla. 69, 70, 169 So. 597, 598 (1936) (holding that the election contest statute “affords an efficient available remedy and legal procedure by which the circuit court can investigate and determine, not only the legality of the votes cast, but can correct any inaccuracies in the count of the ballots by having them brought into the court and examining the contents of the ballot boxes if properly preserved“). As the State has moved toward electronic voting, nothing in this evolution has diminished the longstanding case law and statutory law that the intent of the voter is of paramount concern and should always be given effect if the intent can be determined. Cf. Boardman v. Esteva, 323 So.2d 259 (Fla.1975), cert. denied, 425 U.S. 967, 96 S.Ct. 2162, 48 L.Ed.2d 791 (1976) (recognizing the overarching principle that, where voters do all that statutes require them to do, they should not be disfranchised solely because of failure of election officials to follow directory statutes).
Not surprisingly, other states also have recognized this principle. Cf. Delahunt v. Johnston, 423 Mass. 731, 671 N.E.2d 1241 (1996) (holding that a vote should be counted as a legal vote if it properly indicates the voter‘s intent with reasonable certainty); Duffy v. Mortenson, 497 N.W.2d 437 (S.D.1993) (applying the rule that every marking found where a vote should be should be treated as an intended vote in the absence of clear evidence to the clear contrary); Pullen v. Mulligan, 138 Ill.2d 21, 149 Ill.Dec. 215, 561 N.E.2d 585 (1990) (holding that votes could be recounted by
Accordingly, we conclude that a legal vote is one in which there is a “clear indication of the intent of the voter.” We next address whether the term “rejection” used in
To further determine the meaning of the term “rejection“, as used by the Legislature, we may also look to Florida case law. In State ex rel. Clark v. Klingensmith, 121 Fla. 297, 163 So. 704 (1935), an individual who lost an election brought an action for quo warranto challenging his opponent‘s right to hold office. The challenger challenged twenty-two ballots, which he divided into four groups. One of these groups included three ballots that the challenger claimed had not been counted. See 121 Fla. at 298, 163 So. at 705. This Court concluded that “the rejection of votes from legal voters, not brought about by fraud, and not of such magnitude as to demonstrate that a free expression of the popular will has been suppressed,” is insufficient to void an election, “at least unless it be shown that the votes rejected would have changed the result.” 121 Fla. at 300, 163 So. at 705. Therefore, the Court appears to have equated a “rejection” of legal votes with the failure to count legal votes, while at the same time recognizing that a sufficient number of such votes must have been rejected to merit relief. This notion of “rejected” is also in accordance with the common understanding of rejection of votes as used in other election cases. In discussing the facts in Roudebush v. Hartke, 405 U.S. 15, 92 S.Ct. 804, 31 L.Ed.2d 1 (1972), the United States Supreme Court explained:
If a recount is conducted in any county, the voting machine tallies are checked and the sealed bags containing the paper ballots are opened. The recount commission may make new and independent determinations as to which ballots shall be counted. In other words, it may reject ballots initially counted and count ballots initially rejected. Id.
This also comports with cases from other jurisdictions that suggest that a legal vote will be deemed to have been “rejected” where a voting machine fails to count a ballot, which has been executed in substantial compliance with applicable voting requirements and reflects, the clear intent of the voter to express a definite choice. See In re Petition of Gray-Sadler, 164 N.J. 468, 753 A.2d 1101, 1105-06 (2000); In re Moffat, 142 N.J.Super. 217, 361 A.2d 74, 77 (1976).
Here, then, it is apparent that there have been sufficient allegations made which, if analyzed pursuant to the proper standard, compel the conclusion that legal votes sufficient to place in doubt the election results have been rejected in this case.
THIS CASE
We must review the instances in which appellants claim that they established that legal votes were rejected or illegal voters were included in the certifications.
The refusal to review approximately 9,000 additional Miami-Dade Ballots, which the counting machine registered as non-votes and which have never been manually reviewed.
On November 9, 2000, the Miami-Dade County Democratic Party made a timely request under
Specifically as to Miami-Dade County, the trial court found:
[A]lthough the record shows voter error, and/or, less than total accuracy, in regard to the punchcard voting devices utilized in Miami-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 Miami-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.
This statement is incorrect as a matter of law. In fact, as the Third District determined in Miami-Dade County Democratic Party v. Miami-Dade County Canvassing Board, 773 So.2d 1179 (Fla. 3d DCA 2000), the results of the sample manual recount and the actual commencement of the full manual recount triggered the Canvassing Board‘s “mandatory obligation to recount all of the ballots in the county.” In addition, the circuit court was bound at the time it ruled to follow this appellate decision. This Court has determined the decisions of the district courts of appeal represent the law of this State unless and until they are overruled by this Court, and therefore, in the absence of interdistrict conflict, district court decisions bind all Florida trial courts. See Pardo v. State, 596 So.2d 665, 666 (Fla.1992).
However, regardless of this error, we again note the focus of the trial court‘s inquiry in an election contest authorized by
3300 Votes in Palm Beach County
Appellants also contend that the trial court erred in finding that they failed to satisfy their burden of proof with respect to the 3300 votes that the Palm Beach County Canvassing Board reviewed and concluded did not constitute “legal votes” pursuant to
[W]ith respect to the approximately 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 plaintiffs wish this court to again judge de novo.... 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.
We find no error in the trial court‘s determination that appellants did not establish a preliminary basis for relief as to the 3300 Palm Beach County votes because
Whether the vote totals must be revised to include the legal votes actually identified in the Palm Beach County and Miami-Dade County manual recounts?
Appellants claim that the certified vote totals must be amended to include legal votes identified as being for one of the presidential candidates by the County Canvassing Boards of Palm Beach County and Miami-Dade during their manual recounts. After working for a period of many days, the Palm Beach County Canvassing Board conducted and completed a full manual recount in which the Board identified a net gain of 215 votes for Gore.19 As discussed above, the Miami-Dade Canvassing Board commenced a manual recount but did not complete the recount. During the partial recount it identified an additional legal votes, of which 302 were for Gore and 134 were for Bush, resulting in a net gain of 168 votes for Gore.
The circuit court concluded as to Palm Beach County that there was not any “authority to include any returns submitted past the deadline established by the Florida Supreme Court in this election.” This conclusion was erroneous as a matter of law. The deadline of November 26, 2000, at 5 p.m. was established in order to allow maximum time for contests pursuant to
As to Miami-Dade County, in light of our holding that the circuit court should have counted the undervote, we agree with appellants that the partial recount results should also be included in the total legal votes for this election. Because the county canvassing boards identified legal votes and these votes could change the outcome of the election, we hold that the trial court erred in rejecting the legal votes identified in the Miami-Dade County and Palm Beach County manual recounts. These votes must be included in the certified vote totals. We find that appellants did not establish that the Nassau County Canvassing Board acted improperly.
CONCLUSION
Through no fault of appellants, a lawfully commenced manual recount in Dade County was never completed and recounts that were completed were not counted. Without examining or investigating the ballots that were not counted by the machines, the trial court concluded there was no reasonable probability of a different result. However, the proper standard required
Although in all elections the Legislature and the courts have recognized that the voter‘s intent is paramount, in close elections the necessity for counting all legal votes becomes critical. However, the need for accuracy must be weighed against the need for finality. The need for prompt resolution and finality is especially critical in presidential elections where there is an outside deadline established by federal law. Notwithstanding, consistent with the legislative mandate and our precedent, although the time constraints are limited, we must do everything required by law to ensure that legal votes that have not been counted are included in the final election results.20 As recognized by the Florida House of Representatives Committee on Election Reform 1997 Interim Project on Election Contests and Recounts:
[A]ll election contests and recounts can be traced to either an actual failure in the election system or a perception that the system has failed. Public confidence in the election process is essential to our democracy. If the voter cannot be assured of an accurate vote count, or an election unspoiled by fraud, they will not have faith in other parts of the political process. Nonetheless, it is inevitable that legitimate doubts of the validity and accuracy of election outcomes will arise. It is crucial, therefore, to have clearly defined legal mechanisms for contesting or recounting election results.
Id. at 21 (emphasis supplied) (footnote omitted).
Only by examining the contested ballots, which are evidence in the election contest, can a meaningful and final determination in this election contest be made. As stated above, one of the provisions of the contest statute,
In addition to the relief requested by appellants to count the Miami-Dade undervote, claims have been made by the various appellees and intervenors that because this is a statewide election, statewide remedies would be called for. As we discussed in this opinion, we agree. While we recognize that time is desperately short, we cannot in good faith ignore the appellants’ right to relief as to their claims concerning the uncounted votes in Miami-Dade County, nor can we ignore the correctness of the assertions that any analysis and ultimate remedy should be made on a statewide basis.21
Accordingly, for the reasons stated in this opinion, we reverse the final judgment of the trial court dated December 4, 2000, and remand this cause for the circuit court to immediately tabulate by hand the approximate 9000 Miami-Dade ballots, which the counting machine registered as nonvotes, but which have never been manually reviewed, and for other relief that may thereafter appear appropriate. The circuit court is directed to enter such orders as are necessary to add any legal votes to the total statewide certifications and to enter any orders necessary to ensure the inclusion of the additional legal votes for Gore in Palm Beach County23 and the 168 additional legal votes from Miami-Dade County.
Because time is of the essence, the circuit court shall commence the tabulation of the Miami-Dade ballots immediately. The circuit court is authorized, in accordance with the provisions of
In tabulating the ballots and in making a determination of what is a “legal” vote, the standard to be employed is that established by the Legislature in our Election Code which is that the vote shall be counted as a “legal” vote if there is “clear indication of the intent of the voter.”
It is so ordered.
ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur.
WELLS, C.J., dissents with an opinion.
HARDING, J., dissents with an opinion, in which SHAW, J., concurs.
WELLS, C.J., dissenting.
I join Justice Harding‘s dissenting opinion except as to his conclusions with regard to error by Judge Sauls and his conclusions as to the separateness of
I want to make it clear at the outset of my separate opinion that I do not question the good faith or honorable intentions of my colleagues in the majority. However, I could not more strongly disagree with their decision to reverse the trial court and prolong this judicial process. I also believe that the majority‘s decision cannot withstand the scrutiny which will certainly immediately follow under the
My succinct conclusion is that the majority‘s decision to return this case to the circuit court for a count of the under-votes from either Miami-Dade County or all counties has no foundation in the law of Florida as it existed on November 7, 2000, or at any time until the issuance of this opinion. The majority returns the case to the circuit court for this partial recount of under-votes on the basis of unknown or, at best, ambiguous standards with authority to obtain help from others, the credentials, qualifications, and objectivity of whom are totally unknown. That is but a first glance at the imponderable problems the majority creates.
Importantly to me, I have a deep and abiding concern that the prolonging of judicial process in this counting contest propels this country and this state into an unprecedented and unnecessary constitutional crisis. I have to conclude that there is a real and present likelihood that this constitutional crisis will do substantial damage to our country, our state, and to this Court as an institution.
On the basis of my analysis of Florida law as it existed on November 7, 2000, I conclude that the trial court‘s decision can and should be affirmed. Under our law, of course, a decision of a trial court reaching a correct result will be affirmed if it is supportable under any theory, even if an appellate court disagrees with the trial court‘s reasoning. Dade County School Bd. v. Radio Station WQBA, 731 So.2d 638, 644-645 (Fla.1999). I conclude that there are more than enough theories to support this trial court‘s decision.
There are two fundamental and historical principles of Florida law that this Court has recognized which are relevant here. First, at common law, there was no right to contest an election; thus, any right to contest an election must be construed to grant only those rights that are explicitly set forth by the Legislature. See McPherson v. Flynn, 397 So.2d 665, 668 (Fla.1981). In Flynn, we held that, “[a]t common law, except for limited application of quo warranto, there was no right to contest in court any public election, because such a contest is political in nature and therefore outside the judicial power.” Id. at 667.
Second, this Court gives deference to decisions made by executive officials charged with implementing Florida‘s election laws. See Krivanek v. Take Back Tampa Political Committee, 625 So.2d 840 (Fla.1993). In Krivanek, we said:
We acknowledge that election laws should generally be liberally construed in favor of an elector. However, the judgment of officials duly charged with carrying out the election process should be presumed correct if reasonable and not in derogation of the law. Boardman v. Esteva, 323 So.2d 259 (Fla.1975), cert. denied, 425 U.S. 967, 96 S.Ct. 2162, 48 L.Ed.2d 791 (1976). As noted in Boardman:
The election process is subject to legislative prescription and constitutional command and is committed to the executive branch of government through duly designated officials all charged with specific duties.... [The] judgments [of those officials] are entitled to be regarded by the courts as presumptively correct and if rational and not clearly outside legal requirements should be upheld rather than substituted by the impression a particular judge or panel of judges might deem more appropriate. It is certainly the
intent of the constitution and the legislature that the results of elections are to be efficiently, honestly and promptly ascertained by election officials to whom some latitude of judgment is accorded, and that courts are to overturn such determinations only for compelling reasons when there are clear, substantial departures from essential requirements of law.
Id. at 844-45. (alterations in original). These two concepts are the foundation of my analysis of the present case.
At the outset, I note that, after an evidentiary hearing, the trial court expressly found no dishonesty, gross negligence, improper influence, coercion, or fraud in the balloting and counting processes based upon the evidence presented. I conclude this finding should curtail this Court‘s involvement in this election through this case and is a substantial basis for affirming the trial court. Historically, this Court has only been involved in elections when there have been substantial allegations of fraud and then only upon a high threshold because of the chill that a hovering judicial involvement can put on elections. This to me is the import of this Court‘s decision in Boardman v. Esteva, 323 So.2d 259 (Fla. 1975). We lowered that threshold somewhat in Beckstrom v. Volusia County Canvassing Board, 707 So.2d 720 (Fla.1998), but we continued to require a substantial noncompliance with election laws. That must be the very lowest threshold for a court‘s involvement.
Otherwise, we run a great risk that every election will result in judicial testing. Judicial restraint in respect to elections is absolutely necessary because the health of our democracy depends on elections being decided by voters-not by judges. We must have the self-discipline not to become embroiled in political contests whenever a judicial majority subjectively concludes to do so because the majority perceives it is “the right thing to do.” Elections involve the other branches of government.
A lack of self-discipline in being involved in elections, especially by a court of last resort, always has the potential of leading to a crisis with the other branches of government and raises serious separation-of-powers concerns.I find that the trial judge correctly concluded that plaintiffs were not entitled to a manual recount. Appellants filed this current election contest after protests in Palm Beach and Miami-Dade Counties. Section 102.168, Florida Statutes, in its present form is a new statute adopted by the Legislature in 1999. I conclude that the present statutory scheme contemplates that protests of returns24 and requests for manual recounts25 are first to be presented to the county canvassing boards. See
I find correct the analysis undertaken in Broward County Canvassing Board v. Hogan, 607 So.2d 508 (Fla. 4th DCA 1992), a case recently cited by this Court in Palm Beach County Canvassing Board v. Harris, 772 So.2d 1220 (Fla.2000). In Hogan, the Fourth District Court of Appeal reversed the trial court‘s order granting a manual recount, in contravention of the county canvassing board‘s decision noting that:
Although section 102.168 grants the right of contest, it does not change the discretionary aspect of the review procedures outlined in section 102.166. The statute clearly leaves the decision whether or not to hold a manual recount of the votes as a matter to be decided within the discretion of the canvassing board.
Id. at 510. I do not believe there is any sound reason to conclude that the Legislature‘s adoption of revised section 102.168 in 1999 intended to change this and provide for a duplicative recount by an individual circuit judge.
I also agree with the trial judge‘s conclusion that in a statewide election the only way a court can order a manual recount of ballots that were allegedly not counted because of some irregularity or inaccuracy in the balloting or counting process is to order that the votes in all counties in which those processes were used be recounted. I do not find any legal basis for the majority of this Court to simply cast aside the determination by the trial judge made on the proof presented at a two-day evidentiary hearing that the evidence did not support a statewide recount. To the contrary, I find the majority‘s decision in that regard quite extraordinary.
Section 102.168(3), Florida Statues (2000), states in pertinent part:
The grounds for contesting an election under this section are:
. . . .
(c) 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.
(Emphasis added.) In other words, to establish a cause of action, plaintiff must allege an irregularity that places in doubt the result of the election. First, to “contest” simply means to challenge. See Webster‘s Dictionary 250 (10th ed.1994). Second, section 102.168(5), provides:
A statement of the grounds of contest may not be rejected, nor the proceedings dismissed, by the court for any want of form if the grounds of contest provided in the statement are sufficient to clearly inform the defendant of the particular proceeding or cause for
which the nomination or election is contested.
(Emphasis added.) Upon my reading of the statute, I conclude that the language “grounds of contest” unambiguously means: a basis upon which a plaintiff can establish a cause of action. This standard is simply the threshold that must be met to bring forth the contest action. Thus, this standard is not the standard that the judge must use in deciding whether a plaintiff who brings the contest has successfully met his or her burden to order a recount or set aside election results. Although it is unclear from case law what standard must be satisfied in order to grant appropriate relief, it undoubtedly cannot be a low standard. Recently, in Beckstrom, this Court declined to invalidate an election despite a finding that the canvassing board was grossly negligent and in substantial noncompliance with the absentee voting statutes. See Beckstrom. Thus, merely stating the cause of action under the contest statute does not entitle a party to a recount or require the court to set aside an election. More must be required. This is especially true here, where, as in Beckstrom, the trial judge found no dishonesty, gross negligence, improper influence, coercion, or fraud in the balloting and counting processes. Thus, a plaintiff‘s burden in establishing grounds on which a circuit judge could order relief of any kind was simply not met. It is illogical to interpret section 102.168(3)(c) to set such a low standard where a plaintiff merely has to allege a cause of action to successfully carry the contest.27
Furthermore, even conceding that the trial judge at the outset applied an erroneous “probability of doubt” standard in deciding that plaintiffs failed to meet their burden of establishing a cause of action, the trial judge faced a conundrum that must be adequately explained. Plaintiffs asked the trial judge to grant the very remedy—a recount of the undervotes—they prayed for without first establishing that remedy was warranted. Before any relief is granted, a plaintiff must allege that enough legal votes were rejected to place in doubt the results of the election. However, in order for the plaintiffs to meet this burden, the under-vote ballots must be preliminarily manually recounted. Following this logic to its conclusion would require a circuit court to order partial manual recounts upon the mere filing of a contest. This proposition plainly has no basis in law.
As I have stated, I conclude in the case at bar that sections 102.166 and 106.168 must be read in pari materia. My analysis in this regard is bolstered in situations, as here, where there was an initial protest filed in a county pursuant to section 102.166 and a subsequent contest of that same county‘s return pursuant to section 102.168. It appears logical to me that a circuit judge in a section 102.168 contest should review a county canvassing board‘s determinations in a section 102.166 protest under an abuse-of-discretion standard. I see no other reason why the county canvassing board would be a party defendant if the circuit court is not intended to evaluate the canvassing board‘s decisions with respect to manual recount decisions made in a section 102.166 protest. Finally, it is plain to me that it is only in section 102.166 that there are any procedures for manual recounts which address the logistics of a recount, including who is to conduct the count, that it is to take place in public, and what is to be recounted.28
Laying aside this problem and assuming the majority is correct that section 101.5614(5) correctly annunciates the standard by which a county canvassing board should judge a questionable ballot, section 101.5614(5) utterly fails to provide any meaningful standard. There is no doubt that every vote should be counted where there is a “clear indication of the intent of the voter.” The problem is how a county canvassing board translates that directive to these punch cards. Should a county canvassing board count or not count a “dimpled chad” where the voter is able to successfully dislodge the chad in every other contest on that ballot? Here, the county canvassing boards disagree. Apparently, some do and some do not. Continuation of this system of county-by-county decisions regarding how a dimpled chad is counted is fraught with equal protection concerns which will eventually cause the election results in Florida to be stricken by the federal courts or Congress.29
Based upon this analysis and adhering to the interpretation of the 1992 Hogan case, I conclude the circuit court properly looked at what the county canvassing boards had done and found that they did not abuse their discretion. Regarding Miami-Dade County, I find that the trial judge properly concluded that the Miami-Dade Canvassing Board did not abuse its discretion in deciding to discontinue the manual recount begun on November 19, 2000. Evidence presented at trial indicated that the Miami-Dade Board made three different decisions in respect to manual recounts. The first decision was not to count, the second was to count, and the third was not to count. The third decision was based upon the determination by the Miami-Dade Board that it could not make the November 26, 2000, deadline set by this Court in Harris and that it did not want to jeopardize disenfranchising a segment of its voters. The law does not require futile acts. See Haimovitz v. Robb, 130 Fla. 844, 178 So. 827 (1937). Section 102.166(5)(c) requires that, if there is a manual recount, all of the ballots have to be recounted. I cannot find that the Miami-Dade Board‘s decision that all the ballots could not be manually recounted between November 22 and November 26, 2000, to be anything but a decision based upon reality. Moreover, not to count all of the ballots if any were to be recounted would plainly be changing the rules after the election and would be unfairly discriminatory against votes in the precincts in which there was no manual recount. Thus, I agree with the trial court that the Miami-Dade Board did not abuse its discretion in discontinuing the manual recount.
In respect to the Palm Beach County Canvassing Board, I likewise find that the trial judge did not err in finding that the Palm Beach Board was within its discretion in rejecting the approximately 3300 votes in which it could not discern voter intent. As set forth in Boardman, the county canvassing boards are vested with the responsibility to make judgments on the validity of ballots, and its determinations will be overturned only for compelling reasons when there are clear, substantial departures from essential requirements of law. See Boardman, 323 So.2d at 268 n.5. Appellants have not met this burden.
I also agree with the trial judge that the Elections Canvassing Commission (Commission) did not abuse its discretion in refusing to accept either an amended return reflecting the results of a partial manual recount or a late amended return filed by the Palm Beach Board. I conclude that it is plain error for the majority to hold that the Commission abused its discretion in enforcing a deadline set by this Court that recounts be completed and certified by November 26, 2000. I conclude that this not only changes a rule after November 7, 2000, but it also changes a rule this Court made on November 26, 2000.
As I stated at the outset, I conclude that this contest simply must end.
Directing the trial court to conduct a manual recount of the ballots violates article II, section 1, clause 2 of the United States Constitution, in that neither this Court nor the circuit court has the authority to create the standards by which it will count the under-voted ballots. The Constitution reads in pertinent part: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.”
The Legislature has given to the county canvassing boards-and only these boards—the authority to ascertain the intent of the voter. See
“[Art. II, § 1, cl. 2] does not read that the people or the citizens shall appoint, but that `each State shall‘; and if the words `in such manner as the legislature thereof may direct,’ had been omitted, it would seem that the legislative power of appointment could not have been successfully questioned in the absence of any provision in the state constitution in that regard. Hence the insertion of those words, while operating as a limitation upon the State in respect of any attempt to circumscribe the legislative power, cannot be held to operate as a limitation on that power itself.”
Bush v. Palm Beach County Canvassing Bd., 69 U.S.L.W. 4020, 4021, 531 U.S. ___, ___, 121 S.Ct. 471, 473-474, 148 L.Ed.2d 366, 371 (U.S.2000) (quoting Blacker, 146 U.S. at 25, 13 S.Ct. 3). Clearly, in a presidential election, the Legislature has not authorized the courts of Florida to order partial recounts, either in a limited number of counties or statewide. This Court‘s order to do so appears to me to be in conflict with the United States Supreme Court decision.
Laying aside the constitutional infirmities of this Court‘s action today, what the majority actually creates is an overflowing basket of practical problems. Assuming the majority recognizes a need to protect the votes of Florida‘s presidential electors,30 the entire contest must be completed “at least six days before” December 18, 2000, the date the presidential electors meet to vote. See
Another significant problem is that the majority returns this case to the circuit court for a recount with no standards. I do not, and neither will the trial judge, know whether to count or not count ballots on the criteria used by the canvassing boards, what those criteria are, or to do so on the basis of standards divined by Judge Sauls. A continuing problem with these manual recounts is their reliability. It only stands to reason that many times a reading of a ballot by a human will be subjective, and the intent gleaned from that ballot is only in the mind of the beholder. This subjective counting is only compounded where no standards exist or, as in this statewide contest, where there are no statewide standards for determining voter intent by the various canvassing boards, individual judges, or multiple unknown counters who will eventually count these ballots.
I must regrettably conclude that the majority ignores the magnitude of its decision. The Court fails to make provision for: (1) the qualifications of those who count; (2) what standards are used in the count-are they the same standards for all ballots statewide or a continuation of the county-by-county constitutionally suspect standards; (3) who is to observe the count; (4) how one objects to the count; (5) who is entitled to object to the count; (6) whether a person may object to a counter; (7) the possible lack of personnel to conduct the count; (8) the fatigue of the counters; and (9) the effect of the differing intra-county standards.
This Court‘s responsibility must be to balance the contest allegations against the rights of all Florida voters who are not involved in election contests to have their votes counted in the electoral college. To me, it is inescapable that there is no practical way for the contest to continue for the good of this country and state.
I am persuaded that Justice Terrell was correct in 1936 when he said:
This court is committed to the doctrine that extraordinary relief will not be granted in cases where it plainly appears that although the complainant party may be ordinarily entitled to it, if the granting of such relief in the particular case will result in confusion and disorder and will produce an injury to the public which outweighs the individual right of the complainant to have the relief he seeks.
State ex rel. Pooser v. Wester, 126 Fla. 49, 54, 170 So. 736, 738-39 (1936) (emphasis added).
For a month, Floridians have been working on this problem. At this point, I am convinced of the following.
First, there have been an enormous number of citizens who have expended heroic efforts as members of canvassing boards, counters, and observers, and as legal counsel who have in almost all instances, in utmost good faith attempted to bring about a fair resolution of this election. I know that, regardless of the outcome, all of us are in their debt for their efforts on behalf of representative democracy.
Second, the local election officials, state election officials, and the courts have been attempting to resolve the issues of this election with an election code which any objective, frank analysis must conclude
Third, under the United States Supreme Court‘s analysis in Bush v. Palm Beach County Canvassing Board, wherein the Supreme Court calls to our attention McPherson v. Blacker, 146 U.S. 1, 13 S.Ct. 3, 36 L.Ed. 869 (1892), there is uncertainty as to whether the Florida Legislature has even given the courts of Florida any power to resolve contests or controversies in respect to presidential elections.
Fourth, there is no available remedy for the appellants on the basis of these allegations. Quite simply, courts cannot fairly continue to proceed without jeopardizing the votes and rights of other citizens through a further count of these votes.
I must take seriously the counsel of the Supreme Court in Bush:
Since [3 U.S.C.] § 5 contains a principle of federal law that would assure finality of the State‘s determination if made pursuant to a state law in effect before the election, a legislative wish to take advantage of the “safe harbor” would counsel against any construction of the Election Code that Congress might deem to be a change in the law.
69 U.S.L.W. at 4021, 121 S.Ct. at 474.
This case has reached the point where finality must take precedence over continued judicial process. I agree with the view attributed to John Allen Paulos, a professor of mathematics at Temple University, who was quoted as saying, “The margin of error in this election is far greater than the margin of victory, no matter who wins.”32 Further judicial process will not change this self-evident fact and will only result in confusion and disorder. Justice Terrell and this Court wisely counseled against such a course of action sixty-four years ago. I would heed that sound advice and affirm Judge Sauls.
HARDING, J., dissenting.
I would affirm Judge Sauls’ order because I agree with his ultimate conclusion in this case, namely that the appellants failed to carry their requisite burden of proof and thus are not entitled to relief. However, in reaching his conclusion, Judge Sauls applied erroneous standards in two instances. First, in addressing the appellants’ challenges of the election certifications in Miami-Dade and Palm Beach Counties, the judge stated that “[t]he local boards have been given broad discretion, which no court may overrule, absent a clear abuse of discretion.” Applying this standard, the judge concluded that the Miami-Dade County Canvassing Board did not abuse its discretion in any of its decisions in the review and recounting process. While abuse of discretion is the proper standard for assessing a canvassing board‘s actions in a section 102.166 protest proceeding, it is not applicable to this section 102.168 contest proceeding. Judge Sauls improperly intertwined these two proceedings and the standards applicable to each.
In 1999, the Florida Legislature extensively amended the contest statute to specify the grounds authorized for contesting an election and to set up a time frame for contests. See ch. 99-339, § 3, at 3547-49, Laws of Fla. The Legislature also amended the protest statute by eliminating the role of the circuit courts in protest proceedings. See id., § 1, at 3546. The county canvassing boards have been granted
In contrast, a contest proceeding involves a legal challenge to the outcome of an election. The circuit judge is statutorily charged with three tasks in a contest proceeding: (1) to ensure that each allegation in the contestant‘s complaint is investigated, examined, or checked; (2) to prevent or correct any alleged wrong; and (3) to provide any relief appropriate under such circumstances. See
Second, Judge Sauls erred in concluding that a contestant under section 102.168(3)(c) must show a “reasonable probability that the results of the election would have been changed.” Judge Sauls cited the First District Court of Appeal‘s decision in Smith v. Tynes, 412 So.2d 925, 926 (Fla. 1st DCA 1982), as establishing this standard for election contests. However, as discussed above, when the Legislature amended section 102.168 in 1999, it specified five grounds for contesting an election, including the “[r]eceipt 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.” (Emphasis added.) Smith v. Tynes, which was decided in 1982, addressed the preamendment statute which did not specify the grounds for a contest. Thus, the current statutory standard controls here.
While I disagree with Judge Sauls on the standards applicable to this election contest, I commend him for the way that he conducted the proceedings below under extreme time constraints and pressure. Further, I believe that Judge Sauls properly concluded that there was no authority to include the Palm Beach County returns filed after the explicit deadline established by this Court.
I conclude that the application of the erroneous standards is not determinative in this case. I agree with Judge Sauls that the appellants have not carried their burden of showing that the number of legal votes rejected by the canvassing boards is sufficient to change or place in doubt the result of this statewide election. That failure of proof controls the outcome here. Moreover, as explained below, I do not believe that an adequate remedy exists under the circumstances of this case.
I conclude that Judge Sauls properly found that the evidence presented by appellants, even if believed, was insufficient to warrant any remedy under section 102.168.
The basis for appellants’ claim for relief under section 102.168 is that there is a “no-vote” problem, i.e., ballots which, although counted by machines at least once, allegedly have not been counted in the presidential election. The evidence showed that this no-vote problem, to the extent it exists, is a statewide problem.33 Appellants ask that only a subset of these no-votes be counted.
In a presidential election, however, section 102.168, by its title, is an “Election” contest and, as such, it is not a local contest seeking to define the correct winner of the popular vote in any individual county.
Appellants failed, however, to provide any meaningful statistical evidence that the outcome of the Florida election would be different if the “no-vote” in other counties had been counted; their proof that the outcome of the vote in two counties would likely change the results of the election was insufficient. It would be improper to permit appellants to carry their burden in a statewide election by merely demonstrating that there were a sufficient number of no-votes that could have changed the returns in isolated counties. Recounting a subset of counties selected by the appellants does not answer the ultimate question of whether a sufficient number of uncounted legal votes could be recovered from the statewide “no-votes” to change the result of the statewide election. At most, such a procedure only demonstrates that the losing candidate would have had greater success in the subset of counties most favorable to that candidate.
Moreover, assuming that there may be some shortfall in counting the votes cast with punch card ballots, such a problem is only properly considered as being systemic with the punch card system itself, and any remedy would have had to be statewide. Any other remedy would disenfranchise tens of thousands of other Florida voters, as I have serious concerns that appellant‘s interpretation of 102.168 would violate other voters’ rights to due process and equal protection of the law under the Fifth and Fourteenth Amendments to the United States Constitution.
As such, I would find that the selective recounting requested by appellant is not available under the election contest provisions of section 102.168. Such an application does not provide for a more accurate reflection of the will of the voters but, rather, allows for an unfair distortion of the statewide vote. It is patently unlawful to permit the recount of “no-votes” in a single county to determine the outcome of the November 7, 2000, election for the next President of the United States. We are a nation of laws, and we have survived and prospered as a free nation because we have adhered to the rule of law. Fairness is achieved by following the rules.
Finally, even if I were to conclude that the appellants’ allegations and evidence were sufficient to warrant relief, I do not believe that the rules permit an adequate remedy under the circumstances of this case. This Court, in its prior opinion, and all of the parties agree that election controversies and contests must be finally and conclusively determined by December 12, 2000. See
While this Court must be ever mindful of the Legislature‘s plenary power to appoint presidential electors, see
The circumstances of this election call to mind a quote from football coaching legend Vince Lombardi: “We didn‘t lose the game, we just ran out of time.”
SHAW, J., concurs.
Notes
In a substantial and dramatic change of position after oral argument in this case, Bush contends in his “Motion for Leave To File Clarification of Argument” that
think there would be any problem in producing... that kind of evidence in an election contest procedure ... instead of having every court in Florida resolving on an ad hoc basis the kinds of ballots that are valid and not valid, you would be centralizing the factual inquiry in one court in Leon County. So you would bring some orderliness to the process, and they would be able to resolve that evidentiary question. One way or another, a court‘s going to have resolve it.
(Emphasis supplied.) Moreover, the Answer Brief of Bush in Case Nos. SC00-2346, 2348, and 2349 (Nov. 18, 2000) at page 18 states that “to implement Petitioners’ desired policy of manual recounts at all costs, the Court is asked to ... (5) substitute the certification process of
[p]etitioner has confused a pre-certification election protest (
(Emphasis supplied.)
The following language of
(1) Except as provided in s. 102.171, the certification of election or nomination of any person to office, or of the result on any question submitted by referendum, may be contested in the circuit court by any unsuccessful candidate for such office or nomination thereto or by any elector qualified to vote in the election related to such candidacy, or by any taxpayer, respectively.
(2) Such contestant shall file a complaint, together with the fees prescribed in chapter 28, with the clerk of the circuit court within 10 days after midnight of the date the last county canvassing board empowered to canvass the returns certifies the results of the election being contested or within 5 days after midnight of the date the last county canvassing board empowered to canvass the returns certifies the results of that particular election following a protest pursuant to s. 102.166(1), whichever occurs later. adjourns, and
(3) The complaint shall set forth the grounds on which the contestant intends to establish his or her right to such office or set aside the result of the election on a submitted referendum. The grounds for contesting an election under this section are:
(a) Misconduct, fraud, or corruption on the part of any election official or any member of the canvassing board sufficient to change or place in doubt the result of the election.
(b) Ineligibility of the successful candidate for the nomination or office in dispute.
(c) 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.
(d) Proof that any elector, election official, or canvassing board member was given or offered a bribe or reward in money, property, or any other thing of value for the purpose of procuring the successful candidate‘s nomination or election or determining the result on any question submitted by referendum.
(e) Any other cause or allegation which, if sustained, would show that a person other than the successful candidate was the person duly nominated or elected to the office in question or that the outcome of the election on a question submitted by referendum was contrary to the result declared by the canvassing board or election board.
(4) The canvassing board or election board shall be the proper party defendant, and the successful candidate shall be an indispensable party to any action brought to contest the election or nomination of a candidate.
(5) A statement of the grounds of contest may not be rejected, nor the proceedings dismissed, by the court for any want of form if the grounds of contest provided in the statement are sufficient to clearly inform the defendant of the particular proceeding or cause for which the nomination or election is contested.
(6) A copy of the complaint shall be served upon the defendant and any other person named therein in the same manner as in other civil cases under the laws of this state. Within 10 days after the complaint has been served, the defendant must file an answer admitting or denying the allegations on which the contestant relies or stating that the defendant has no knowledge or information concerning the allegations, which shall be deemed a denial of the allegations, and must state any other defenses, in law or fact, on which the defendant relies. If an answer is not filed within the time prescribed, the defendant may not be granted a hearing in court to assert any claim or objection that is required by this subsection to be stated in an answer.
(7) Any candidate, qualified elector, or taxpayer presenting such a contest to a circuit judge is entitled to an immediate hearing. However, the court in its discretion may limit the time to be consumed in taking testimony, with a view therein to the circumstances of the matter and to the proximity of any succeeding primary or other election.
(8) The circuit judge to whom the contest is presented may fashion such orders as he or she deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances.
Ch. 99-339, § 3, Laws of Fla.
Also problematic with the majority‘s analysis is that the majority only requires that the “under-votes” are to be counted. How about the “over-votes?” Section 101.5614(6) provides that a ballot should not be counted “[i]f an elector marks more names than there are persons to be elected to an office,” meaning the voter voted for more than one person for president. The underlying premise of the majority‘s rationale is that in such a close race a manual review of ballots rejected by the machines is necessary to ensure that all legal votes cast are counted. The majority, however, ignores the over-votes. Could it be said, without reviewing the over-votes, that the machine did not err in not counting them?
It seems patently erroneous to me to assume that the vote-counting machines can err when reading under-votes but not err when reading over-votes. Can the majority say, without having the over-votes looked at, that there are no legal votes among the over-votes?