This is a summary of the FSC opinion. Please feel free to point out any errors.
Palm Beach County Canvassing Board v. Harris
Per curiam – this means they are so unanimous they don’t want it attributed
to one justice. It’s a
unanimous voice.
They lay out the facts of the case, with which we are all painfully familiar.
Guiding Principals:
“The will of the people, not a hyper-technical reliance upon statutory
provisions, should be our guiding
principal in election cases. We have consistently adhered to the principal
that the will of the people is
the paramount consideration.”
Issues:
1) Under what circumstances can a county canvassing board authorize county-wide
hand recounts 2)
Must the SOS accept these recounts after the seven day deadline
Legal Opinion of the Division of Elections (SOS)
She said only acceptable reason for delay was machine malfunction. Florida
courts defer to agencies,
but not when their opinion is “contrary to law.” Whether to request a hand
recount in close election is
within the “sound discretion of the Board (country canvassing board)”.
The first recount is the 3
precinct one.
Machine malfunction is not the only reason for a hand recount. To say so
contradict the “plain
language of the statute.” Of section 102.166(5) “on its face, the statute
does not include any words of
limitation, rather, it provides a remedy for any type of mistake made in
tabulating ballots.”
Other election statutes make clear that the error encompasses not only
machine error but also includes
a failure to properly read the ballot. “Our society has not gone so far
as to place blind faith in
machines.” No vote shall be discarded when the intent of the voter can
be discerned. The court goes
through some of the conflicting statutes.
The Applicable Law:
Article one, section one of the Fl Constitution – the state’s declaration
of rights. TN has one, and from
law school, I can tell you they are damn important. You might not believe
it, but in the conservative
state of TN, we have stronger search and seizure protections than provided
by the 4th amendment.
Anyway, article one, section one provides that “All political power is
vested in the people.”
Under the law “no deadline is set for filing corrected, amended, or supplemental returns.”
Statutory Ambiguity/Legislative Intent:
Where statutes are ambiguous, we rely on canons of statutory construction.
Four are at play here. A
specific statute controls a non=specific statute, a recent statute controls
a statute passed before, one
does not read statutes in a way that makes them meaningless or absurd,
and one reads the statutes in
harmony, as a cohesive whole.
The first is a win for the SOS. She shall ignore them vs. she may ignore
them The second is a win for
Gore. The hand count statute is more recent that the deadline statute.
The third is a win for Gore. If
counties fail to get their returns in on time, they are fined $200 a day.
The fines are levied directly
against each of the three members of the canvassing board. If they go past
they the 7-day deadline,
they just won’t submit the results, because that way they can avoid the
fine. The fourth is a win for
Gore. A party or person or candidate can ask for a recount. This just can’t
be reconciled with the
7-day requirement. Furthermore, FL law requires that “manually recounted
ballots shall constitute the
official return of the election.” Nonetheless, this is ambiguous, so we
talk about:
The Right to Vote:
Revisits FL Constitution – “Courts must attend with special vigilance whenever
the Declaration of
Rights is in issue. The right of suffrage is the preeminent right contained
in the Declaration of rights,
for without the basic freedom all others would be diminished.” “Laws are
only reasonable if they
impose no “unnecessary or unreasonable” restraints on the right of suffrage.”
Election laws are meant to protect the right of suffrage.
“Technical statutory requirements must not be exalted over the substance of this right.”
“Based on the foregoing, we conclude that the authority of the FL SOS to
ignore amended returns from a
CO. canvassing board may be lawfully exercised only under limited circumstances
as we set forth”
“Ignoring Co. returns punishes not the Board members themselves, but rather
the county’s electors, for it in
effect disenfranchises them.”
“Ignoring a county’s returns is a drastic measure and is appropriate only
if the returns are submitted to the
Department (SOS) so late that their inclusion will compromise the integrity
of the electoral process. . . . To
disenfranchise voters, as the SOS in the present case proposes, is unreasonable,
unnecessary, and violates
longstanding law.”
The court quotes some states court decisions on point.
The Present Case:
The trial court erred in finding that it was within SOS discretion to ignore
late amended returns. Her
reasons, no fraud, no machine malfunction.
She can disregard them only if they are so late they prevent FL from participating
in the Electoral College or
prevent a candidate from having a chance to contest the election. She hasn’t
alleged that either situation
exists.
Conclusion:
Summary of opinion
There were conflicting opinions from SOS and FL AG; in light of this, and
the importance of the case, the
court invokes its equitable powers. This is no big deal. All courts have
equity powers; its how they issue
injunctions, order divorces, all sorts of things.
They want to be fair and quick, so they set the 26/28 deadlines.
Note about other decisions:
In quoting other state court decisions, the FSC referred to the Mulligan
v. XX decision of the Illinois SC
as "particularly apt." Quoting the ILSC, the FSC made it's only statement
on the standards to be used in
counting votes, "The voters here did everything which the Election Code
requires when they punched
the appropriate chad with the stylus. THese voters should not be disenfranchised
where their intention
may be ascertained, simply because the chad they punched did not completely
disloge from the ballot"