Down & Dirty (105 page)

The answer here, as it was in
Harris II,
must be informed by the importance in Florida law of preserving and protecting the will of the voters. And that answer must
be that Florida law makes compliance with the safe harbor date preferable, but not compulsory. As Justice Breyer noted, though
the proceedings to date rendered it impossible to qualify for the “safe harbor,” it would be possible to complete all manual
recounts necessary to conclude the contest proceeding by December 18, 2000, the date the Electoral College convenes. The Court
did not disagree, but expressed the view that it was bound by the Florida Supreme Court’s supposed construction of Florida
law to end all such proceedings on December 12.
Bush II,
Slip op. 12.
¹

II. THE U.S. SUPREME COURT HAS HELD THAT TWO CONDITIONS MUST BE MET FOR ANY RECOUNT: ADEQUATE STANDARDS, AND PRACTICABLE PROCEDURES
WITH JUDICIAL OVERSIGHT.

The U.S. Supreme Court held that recounts previously ordered by this Court require more clarity before they can proceed. In
particular, the Court held that the recounts required adoption of “adequate statewide standards for determining what is a
legal vote,” as well as “practicable procedures to implement them [and] orderly judicial review of any disputed matters that
might arise.”
Bush II,
Slip op. 11. Both conditions can be readily met and the recounts promptly concluded.

A. Adequate Standards for Determining Votes

The proper standard for counting the remaining votes must be consistent with and determined by the Florida Legislature’s direction
that “[n]o vote shall be declared invalid or void if there is a clear indication of the intent of the voter.” Fla. Stat. §101.5614(5).
It is a fairly straightforward task to provide more specificity to this general standard pursuant to the broad
authority vested in the courts under Florida law governing contests. See §102.168(8), Fla. Stat. (2000).
²
The touchstone, of course, as in any case where the U.S. Supreme Court has remanded to the state courts to cure an equal
protection violation, is to impose a remedy that is best calculated to carry out the intent of the legislature.
Wengler v. Druggists Mut. Ins. Co.,
446 U.S. 142, 152-53 (1980).
³

In determining the appropriate standard to govern the manual count, the U.S. Supreme Court has decided that in dealing with
inanimate objects like ballots,“[t]he search for intent can be confined by specific rules designed to ensure uniform treatment.”
Bush II,
Slip op. 7. Thus, the necessary clarification does not result in abandoning or moving away from the general “intent of the
voter” standard, which could raise its own constitutional problems, but merely making this standard more specific and objective.

In identifying the appropriate standard for determining voter intent under section 101.5614(5), this Court is guided by its
own recent opinions construing the statutes, which do not permit restrictions that would substantially limit the number of
ballots counted and thereby contradict the Legislature’s intent. Again, this Court has just emphasized “the right of Florida’s
citizens to vote and to have elections determined by the will of Florida’s voters as important policy concerns of the Florida
Legislature in enacting Florida’s election code.
Harris II,
Slip op. at 31. The recount provision specifically “strives to strengthen rather than dilute the right to vote by securing,
as nearly as humanly possible, an accurate and true reflection of the will of the electorate.”
Id.
at 17 n.4 (quotation omitted). We believe that there are two possible approaches for setting such standards.

1. Meaningful Guidance Can be Found in Texas Law

This Court can derive guidance from other state statutes regarding the appropriate uniform standard for determining “intent
of the voter” on punchcard ballots.

For example, the Texas Election Code provides such specific guidance while remaining consistent with Florida law’s “intent
of the voter” standard. Under Texas Election Code 127-130(d), a vote is to be counted if:

(1) at least two corners of the chad are detached:

(2) light is visible through the hole;

(3) an indentation on the chad from the stylus or other object is present and indicates a clearly ascertainable intent of
the voter to vote; [or]

(4) the chad reflects by other means a clearly ascertainable intent of the voter to vote.

Under the Texas standard, an “indentation of the chad” on the ballot,
see id.,
indicates the
intent
to cast a vote; the failure to puncture the ballot indicates only a
physical
failure by the voter or the stylus to express that intent by dislodging the chad. These substandards would serve to clarify
Florida law and accommodate the Legislature’s direction that the “intent of the voter” must be determined with the U.S. Supreme
Court’s interpretation of the Equal Protection Clause in this case. This approach would be consistent with Florida law, but
would provide the added specificity that the U.S. Supreme Court held to be a prerequisite for going forward.

2. Alternatively, This Court Should Clarify That Any Indentation on the Ballot to Indicate Voter Intent Satisfies Florida
Law

Alternatively, plaintiffs thus urge this Court to adopt a uniform standard recognizing indentations on punchcard ballots as
clear expressions of voter intent. This approach is supported by the Massachusetts Supreme Court’s interpretation of a similar
statutory standard. As the Court held, the trial judge concluded that a vote should be recorded for a candidate if the chad
was not removed but
an impression was made on or near it.
We agree with that conclusion.”
Delahunt v. Johnston,
671 N.E.2d 1241, 1243 (Mass. 1996) (emphasis added). The Court continued:

It is, of course, true that a voter who failed to push a stylus through the ballot and thereby create a hole in it could have
done a better job of expressing his or her intent. Such a voter should not automatically be disqualified, however, like a
litigant or one seeking favors from the government, because he or she failed to comply strictly with announced procedures.
The voters are the owners of the government, and our rule that we seek to discern the voter’s intention and to give it effect
reflects the proper relation between government and those to whom it is responsible.
Id.

The Massachusetts Court also rejected as “unpersuasive” the argument that such indentations did not reflect an intent of the
voter,
viz.,
that “voters started to express a preference in the congressional contest, made an impression on a punch card, but pulled
the stylus back because they really
did not want to express a choice in that contest.”
Id.
As the Court recognized in language particularly apt to the present circumstances, such a scenario was implausible: “The
large number of ballots with discernible impressions makes such an inference unwarranted, especially in a hotly contested
election.”
Id.

In response to the U.S. Supreme Court’s remand order, this Court must now clarify application of the long-settled Florida
principle that the intent of the voter must be ascertained and is the paramount consideration in tallying votes.
See
'101.5614(5), Fla. Stat. (2000) (“No vote shall be declared invalid or void if there is a clear indication of the intent
of the voter”).
This Court should direct the counting of all ballots which contain a discernible indentation or other mark, at or near the
ballot position for the candidate, unless other evidence on the face of the ballot clearly indicates a voter’s intention not
to vote for that candidate.

Indeed, this standard is compelled by both Florida statutory and case law. The manual recount statute itself provides that
counting teams are to manually examine punchcard ballots “to determine a voter’s intent” and, if they are unable to do so,
“the ballot shall be presented to the county canvassing board for it to determine the voter’s intent.” '102.166(7)(b), Fla.
Stat. (2000). As this Court recently stated, these statutes require “that so long as the voter’s intent may be discerned from
the ballot, the vote constitutes a ‘legal vote’ that should be counted. 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.”
Gore v. Harris,
No. SC00-2431, at 24-25 (Fla. Dec. 8, 2000) (citations omitted),
rev’d on other grounds, Bush II.

These principles were originally set forth in the era of paper ballots. In
Darby v. State,
75 So. 411 (Fla. 1917), this Court was required to ascertain whether an “x” marked on the wrong side of the ballot question
rendered the vote improper. It determined that this mark reflected the intent of the voter and, accordingly, counted the vote.
“Where a ballot is so marked as to plainly indicate the voter’s choice and intent in placing his marks thereon, it should
be counted as marked unless some positive provision of law would be thereby violated.”
Id.
at 412.

It seems apparent that the standard for discerning the intent of the voter in Florida consistent with Florida’s statutes and
cases must be a standard consistent with
Darby.
Just as in
Darby,
when an “x” marked the spot and it was clear from the “x” that the voter was casting his or her vote a certain
way, so it must be that when a voter punches the chad with a stylus and it is clear from the ballot that the chad was intentionally
punched, the vote must be counted.
See id.

Similarly, for optical scanner machines, when it is clear that the pencil was used to color in or otherwise mark the oval
or arrow assigned to the indicated candidate, that mark should be counted as a vote. This is not a new standard in Florida.
It has been Florida law since its inception. When a vote can be counted, the will of the voter will be recognized. Simply
because machines usually aid in tabulation does not mean that when those machines
detract
from tabulating legal votes this Court should void legal votes contrary to common sense. This standard is uniformly consistent—whenever
a legal vote can be discerned, it should always be counted.
See also Pullen v. Mulligan,
561 N.E.2d 585, 611 (Ill. 1990) (“to invalidate a ballot which clearly reflects the voter’s intent, simply because a machine
cannot read it, would subordinate substance to form and promote the means at the expense of the end”).

B. Practicable Procedures and Orderly Judicial Review

In describing the recount process imposed by this Court in its order of December 8, 2000, and implemented through Judge Lewis’
order of December 9, 2000, the U.S. Supreme Court noted that the recount was not designed to be conducted in a manner “well
calculated to sustain the confidence that all citizens must have in the outcome of elections.” Slip Op. 11.

“Orderly judicial review” means procedures by which disputes can be identified, brought to the attention of the court or one
of its judicial officers for resolution, and appealed should disagreement remain after that resolution.
Cf. Press v. Pasadena Independent School District,
326 F. Supp. 550, 553 (S.D. TX. 1971) (Texas created scheme of
orderly judicial review
of Texas Railroad Commission decisions by appeal to a state district court and subsequent review by a court of appeals and
the Texas Supreme Court). To assure that a process of orderly judicial review is available with respect to any recount procedures
ordered by this Court, this Court (and by direction the Leon County Circuit Court) should impose procedures that include essentially
the following requirements:

1. Each counting team shall consist of two persons who shall not be from the same political party. Each counting team member
   shall read the attached instructions on counting the ballots and shall sign at the
   bottom of the sheet to reflect that they have read and understand the instructions.
   
2. Governor Bush and Vice President Gore may each designate a person for each team to observe the process. That person may
   not make a verbal objection or challenge to any particular ballot determination nor in any way disrupt or interfere with the
   counting process.
   
3. To insure that all objections are handled in a uniform manner, any objections an observer may have to the process or to
   the disposition of a particular ballot shall be made in writing and shall be immediately filed (together with the disputed
   ballot, if applicable) with the local canvassing board. Any objections to the disposition of a ballot shall remain with the
   ballot until all disputes concerning that ballot have been finally resolved.
   
4. 4. If the members of the two-person counting teams disagree as to whether a ballot clearly evidences the intent of the voter
   or for whom the ballot should be counted under the rules announced above, they shall present that ballot for review to the
   local canvassing board.
   
5. If a dispute remains after the local canvassing board has reviewed the ballot, the ballot shall be delivered to that board’s
   Circuit Court for automatic review. The Circuit Court shall then determine whether, under the interpretive rules stated above,
   the ballot reflects the clear intent of the voter to vote for a single candidate. Unless there is an appeal, the Circuit Court’s
   determination will be reported to the local canvassing board, which will then record the ballot in accordance with the ruling.
   

These procedures for implementing the standards specified above, and to resolve disputes over those standards, are adequate
to meet the Equal Protection concerns raised by the U.S. Supreme Court in its opinion.

III. THIS COURT NEED NOT ORDER COUNTING OF OVERVOTES; IF SUCH A COUNT IS ORDERED, AN APPROPRIATE PROCEDURE FOR COUNTING THESE
VOTES CAN BE EASILY ESTABLISHED.