Text of Florida Supreme Court Decision

Supreme Court of Florida

Nos. SC00-2346, SC00-2348 & SC00-2349

PALM BEACH COUNTY CANVASSING BOARD, Petitioner,

vs.

KATHERINE HARRIS, etc., et al., Respondents.

VOLUSIA COUNTY CANVASSING BOARD, et al., Appellants,

vs.

KATHERINE HARRIS, etc., et al., Appellees.

FLORIDA DEMOCRATIC PARTY, Appellant,

vs.

KATHERINE HARRIS, etc., et al., Appellees.

(November 21, 2000)

PER CURIAM.

We have for review two related trial court orders appealed to the First
District Court of Appeal, which certified the orders to be of great public
importance requiring immediate resolution by this Court (Case Numbers SC00-
2348 and SC00-2349). We have jurisdiction under article V, section 3(b)(5) of
the Florida Constitution. For the reasons set forth in this opinion, we
reverse the orders of the trial court.

I. FACTS

A. The Election

On Tuesday, November 7, 2000, the State of Florida, along with the rest of
the United States, conducted a general election for the President of the
United States. The Division of Elections (“Division”) reported on Wednesday,
November 8, that George W. Bush, the Republican candidate, had received
2,909,135 votes, and 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 (i.e., the difference was 1,784 votes), an automatic recount
was conducted pursuant to section 102.141(4), Florida Statutes. The recount
resulted in a substantially 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, Palm Beach, and Volusia Counties pursuant to section
102.166, Florida Statutes (2000). Pursuant to section 102.166(4)(d), the
county canvassing boards of these counties conducted a sample manual recount
of at least one percent of the ballots cast. Initial manual recounts
demonstrated the following: In Broward County, a recount of one percent of
the ballots indicated a net increase of four votes for Gore; and in Palm
Beach County, a recount of four sample precincts yielded a net increase of
nineteen votes for Gore. Based on these recounts, several of the county
canvassing boards determined that the manual recounts conducted indicated “an
error in the vote tabulation which could affect the outcome of the election.”
Based on this determination, several canvassing boards voted to conduct
countywide manual recounts pursuant to section 102.166(5)(c).

B. The Appeal Proceedings

Concerned that the recounts would not be completed prior to the deadline set
forth in section 102.111(1), Florida Statutes (2000), requiring that all
county returns be certified by 5 p.m. on the seventh day after an election,
the Palm Beach County Canvassing Board, pursuant to section 106.23, Florida
Statutes (2000), sought an advisory opinion from the Division of Elections,
requesting an interpretation of the deadline set forth in sections 102.111
and 102.112. The Division of Elections responded by issuing Advisory Opinion
DE 00-10, stating that absent unforseen circumstances, returns from the
county must be received by 5 p.m. on the seventh day following the election
in order to be included in the certification of the statewide results.

Relying upon this advisory opinion, the Florida Secretary of State (the
Secretary) issued a statement on Monday, November 13, 2000, that she would
ignore returns of the manual recounts received by the Florida Department of
State (the Department) after Tuesday, November 14, 2000, at 5:00 p.m. The
Volusia County Canvassing Board (the Volusia Board) on Monday, November 13,
2000, filed suit in the Circuit Court of the Second Judicial Circuit in Leon
County, Florida, seeking declaratory and injunctive relief, and the
candidates and the Palm Beach County Canvassing Board (the Palm Beach Board),
among others, were allowed to intervene. In its suit, the Volusia Board
sought a declaratory judgment that it was not bound by the November 14, 2000,
deadline and also sought an injunction barring the Secretary from ignoring
election returns submitted by the Volusia Board after that date.

The trial court ruled on Tuesday, November 14, 2000, that the deadline was
mandatory but that the Volusia Board may amend its returns at a later date
and that the Secretary, after “considering all attendant facts and
circumstances,” may exercise her discretion in determining whether to ignore
the amended returns. Later that day, the Volusia Board filed a notice of
appeal of this ruling to the First District Court 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, 2000, 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. Four counties
submitted their statements on time. After considering the reasons in light of
specific criteria, the Secretary on Wednesday, November 15, 2000, 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
of the presidential election on Saturday, November 18, 2000.

On Thursday, November 16, 2000, the Florida Democratic Party and Albert Gore
filed a motion in Circuit Court of the Second Judicial Circuit in Leon
County, Florida, 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, 2000. That day, both the Democratic Party and Gore
appealed to the First District Court of Appeal, which consolidated the
appeals with the Volusia Board’s appeal already pending there, and certified
both of the underlying trial court orders to this Court based on the Court’s
“pass-through” jurisdiction. By orders dated Friday, November 17, 2000, this
Court accepted jurisdiction, set an expedited briefing schedule, and enjoined
the Secretary and the Elections Canvassing Commission (Commission) from
certifying the results of the presidential election until further order of
this Court.

II. GUIDING PRINCIPLES

Twenty-five years ago, this Court commented that the will of the people, not
a hyper-technical reliance upon statutory provisions, should be our guiding
principle in election cases:

The 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 upmost importance to the people, thus subordinating their interest 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. We must tread carefully on that right or we risk the unnecessary
and unjustified muting of the public voice. By refusing to recognize an
otherwise valid exercise of the right of a citizen to vote for the sake of
sacred, unyielding adherence to statutory scripture, we would in effect
nullify that right.

Boardman v. Esteva, 323 So. 2d 259, 263 (Fla. 1975) (emphasis added). We
consistently have adhered to the principle that the will of the people is the
paramount consideration. Our goal today remains the same as it was a quarter
of a century ago, i.e., to reach the result that reflects the will of the
voters, whatever that might be. This fundamental principle, and our
traditional rules of statutory construction, guide our decision today.

III. ISSUES

The questions before this Court include the following: Under what
circumstances may a Board authorize a countywide manual recount pursuant to
section 102.166(5); must the Secretary and Commission accept such recounts
when the returns are certified and submitted by the Board after the seven day
deadline set forth in sections 102.111 and 102.112?

IV. LEGAL OPINION OF THE DIVISION OF ELECTIONS

The first issue this Court must resolve is whether a County Board may conduct
a countywide manual recount where it determines there is an error in vote
tabulation that could affect the outcome of the election. Here, the Division
issued opinion DE 00-13, which construed the language “error in vote
tabulation” to exclude the situation where a discrepancy between the original
machine return and sample manual recount is due to the manner in which a
ballot has been marked or punched.

Florida courts generally will defer to an agency’s interpretation of statutes
and rules the agency is charged with implementing and enforcing. Florida
courts, however, will not defer to an agency’s opinion that is contrary to
law. We conclude that the Division’s advisory opinion regarding vote
tabulation is contrary to law because it contravenes the plain meaning of
section 102.166(5).

Pursuant to section 102.166(4)(a), a candidate who appears on a ballot, a
political committee that supports or opposes an issue that appears on a
ballot, or a political party whose candidate’s name appeared on the ballot
may file a written request with the County Board for a manual recount. This
request must be filed with the Board before the Board certifies the election
results or within seventy-two hours after the election, whichever occurs
later. Upon filing the written request for a manual recount, the canvassing
board may authorize a manual recount. The decision whether to conduct a
manual recount is vested in the sound discretion of the Board. If the
canvassing board decides to authorize the manual recount, the recount must
include at least three precincts and at least one percent of the total votes
cast for each candidate or issue, with the person who requested the recount
choosing the precincts to be recounted. If the manual recount indicates an
“error in the vote tabulation which could affect the outcome of the
election,” the county canvassing board “shall”:

(a) Correct the error and recount the remaining precincts with the vote
tabulation system;

(b) Request the Department of State to verify the tabulation software; or

(c) Manually recount all ballots.

§ 102.166(5)(a)-(c), Fla. Stat. (2000) (emphasis added).

The issue in dispute here is the meaning of the phrase "error in the vote
tabulation" found in section 102.166(5). The Division opines that an “error
in the vote tabulation” only means a counting error resulting from incorrect
election parameters or an error in the vote tabulating software. We disagree.

The plain language of section 102.166(5) refers to an error in the vote
tabulation rather than the vote tabulation system. 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. The Legislature has utilized
the phrase "vote tabulation system" and "automatic tabulating equipment" in
section 102.166 when it intended to refer to the voting system rather than
the vote count. Equating "vote tabulation" with "vote tabulation system"
obliterates the distinction created in section 102.166 by the Legislature.

Sections 101.5614(5) and (6) also support the proposition that the "error in
vote tabulation" encompasses more than a mere determination of whether the
vote tabulation system is functioning. Section 101.5614(5) provides that "no
vote shall be declared invalid or void if there is a clear indication of the
intent of the voter as determined by the canvassing board." Conversely,
section 101.5614(6) provides that any vote in which the Board cannot discern
the intent of the voter must be discarded. Taken together, these sections
suggest that "error in the vote tabulation" includes errors in the failure of
the voting machinery to read a ballot and not simply errors resulting from
the voting machinery.

Moreover, section 102.141(4), which outlines the Board's responsibility in
the event of a recount, states that the Board "shall examine the counters on
the machines or the tabulation of the ballots cast in each precinct in which
the office or issue appeared on the ballot and determine whether the returns
correctly reflect the votes cast." § 102.141, Fla. Stat. (2000) (emphasis
added). Therefore, an “error in the vote tabulation” includes a discrepancy
between the number of votes determined by a voter tabulation system and the
number of voters determined by a manual count of a sampling of precincts
pursuant to section 102.166(4).

Although error cannot be completely eliminated in any tabulation of the
ballots, our society has not yet gone so far as to place blind faith in
machines. In almost all endeavors, including elections, humans routinely
correct the errors of machines. For this very reason Florida law provides a
human check on both the malfunction of tabulation equipment and error in
failing to accurately count the ballots. Thus, we find that the Division’s
opinion DE 00-13 regarding the ability of county canvassing boards to
authorize a manual recount is contrary to the plain language of the statute.

Having concluded that the county canvassing boards have the authority to
order countywide manual recounts, we must now determine whether the
Commission must accept a return after the seven-day deadline set forth in
sections 102.111 and 102.112 under the circumstances presented.

V. THE APPLICABLE LAW

The abiding principle governing all election law in Florida is set forth in
article I, section 1, Florida Constitution:

SECTION 1. Political power.–All political power is inherent in the people.
The enunciation herein of certain rights shall not be construed to deny or
impair others retained by the people.

Art. I, § 1, Fla. Const. The constitution further provides that elections
shall be regulated by law:

SECTION 1. Regulation of elections.–All elections by the people shall be by
direct and secret vote. General elections shall be determined by a plurality
of votes cast. Registration and elections shall, and political party
functions may, be regulated by law; however, the requirements for a candidate
with no party affiliation or for a candidate of a minor party for placement
of the candidate’s name on the ballot shall be no greater than the
requirements for a candidate of the party having the largest number of
registered voters.

Art. VI, § 1, Fla. Const. (emphasis added).

The Florida Election Code (“Code”), contained in chapters 97–106, Florida
Statutes (2000), sets forth specific criteria regulating elections. The
Florida Secretary of State is the chief election officer of the state and is
charged with general oversight of the election system. The Supervisor of
Elections (“Supervisor”) in each county is an elected official and is charged
with appointing two Election Boards for each precinct within the county prior
to an election. Each Election Board is composed of inspectors and clerks, all
of whom must be residents of the county, and is charged with conducting the
voting in the election, counting the votes, and certifying the results to the
Supervisor by noon of the day following the election. The County Canvassing
Board (“Canvassing Board” or “Board”), which is composed of the Supervisor, a
county court judge, and the chair of the board of county commissioners, then
canvasses the returns countywide, reviews the certificates, and transmits the
returns for state and federal officers to the Florida Department of State
(“Department”) by 5:00 p.m. of the seventh day following the election. No
deadline is set for filing corrected, amended, or supplemental returns.

The Elections Canvassing Commission (“Canvassing Commission” or
“Commission”), which is composed of the Governor, the Secretary of State, and
the Director of the Division of Elections, canvasses the returns statewide,
determines and declares who has been elected for each office, and issues a
certificate of election for each office as soon as the results are compiled.
If any returns appear to be irregular or false and the Commission is unable
to determine the true vote for a particular office, the Commission certifies
that fact and does not include those returns in its canvass. In determining
the true vote, the Commission has no authority to look beyond the county’ s
returns. A candidate or elector can “protest” the returns of an election as
being erroneous by filing a protest with the appropriate County Canvassing
Board. And finally, a candidate, elector, or taxpayer can “contest” the
certification of election results by filing a post-certification action in
circuit court within certain time limits and setting forth specific grounds.

VI. STATUTORY AMBIGUITY

The provisions of the Code are ambiguous in two significant areas. First, the
time frame for conducting a manual recount under section 102.166(4) is in
conflict with the time frame for submitting county returns under sections
102.111 and 102.112. Second, the mandatory language in section 102.111
conflicts with the permissive language in 102.112.

A. The Recount Conflict

Section 102.166(1) states that "any candidate for nomination or election, or
any elector qualified to vote in the election related to such candidacy shall
have the right to protest the returns of the election as being erroneous by
filing with the appropriate canvassing board a sworn written protest." The
time period for filing a protest is "prior to the time the canvassing board
certifies the results for the office being protested or within 5 days after
midnight of the date the election is held, whichever is later.

Section 102.166(4)(a), the operative subsection in this case, further
provides that, in addition to any protest, "any candidate whose name appeared
on the ballot . . . or any political party whose candidates' names appeared
on the ballot may file a written request with the county canvassing board for
a manual recount" accompanied by the “reason that the manual recount is being
requested.” Section 102.166(4)(b) further provides that the written request
may be made prior to the time the Board certifies the returns or within
seventy-two hours after the election, whichever occurs later:

(4)(a) Any candidate whose name appeared on the ballot, any political
committee that supports or opposes an issue which appeared on the ballot, or
any political party whose candidates’ names appeared on the ballot may file a
written request with the county canvassing board for a manual recount. The
written request shall contain a statement of the reason the manual recount is
being requested.

(b) Such request must be filed with the canvassing board prior to the time
the canvassing board certifies the results for the office being protested or
within 72 hours after midnight of the date the election was held, whichever
occurs later.

§ 102.166, Fla. Stat. (2000) (emphasis added).

A Board “may” authorize a manual recount and such a recount must include at
least three precincts and at least one percent of the total votes cast for
the candidate. The following procedure then applies:

(5) If the manual recount indicates an error in the vote tabulation which
could affect the outcome of the election, the county canvassing board shall:

(a) Correct the error and recount the remaining precincts with the vote
tabulation system;

(b) Request the Department of State to verify the tabulation software; or

(c) Manually recount all ballots.

(6) Any manual recount shall be open to the public.

(7) Procedures for a manual recount are as follows:

(a) The county canvassing board shall appoint as many counting teams of at
least two electors as is necessary to manually recount the ballots. A
counting team must have, when possible, members of at least two political
parties. A candidate involved in the race shall not be a member of the
counting team.

(b) If a counting team is unable to determine a voter’s intent in casting a
ballot, the ballot shall be presented to the county canvassing board for it
to determine the voter’s intent.

§ 102.166, Fla. Stat. (2000).

Under this scheme, a candidate can request a manual recount at any point
prior to certification by the Board and such action can lead to a full
recount of all the votes in the county. Although the Code sets no specific
deadline by which a manual recount must be completed, logic dictates that the
period of time required to complete a full manual recount may be substantial,
particularly in a populous county, and may require several days. The protest
provision thus conflicts with section 102.111 and 102.112, which state that
the Boards “must” submit their returns to the Elections Canvassing Commission
by 5:00 p.m. of the seventh day following the election or face penalties. For
instance, if a party files a pre-certification protest on the sixth day
following the election and requests a manual recount and the initial manual
recount indicates that a full countywide recount is necessary, the recount
procedure in most cases could not be completed by the deadline in sections
102.111 and 102.112, i.e., by 5:00 p.m. of the seventh day following the
election.

B. The “Shall” and “May” Conflict

In addition to the conflict in the above statutes, sections 102.111 and
102.112 contain a dichotomy. Section 102.111, which sets forth general
criteria governing the State Canvassing Commission, was enacted in 1951 as
part of the Code and provides as follows:

102.111 Elections Canvassing Commission.–

(1) Immediately after certification of any election by the county canvassing
board, the results shall be forwarded to the Department of State concerning
the election of any federal or state officer. The Governor, the Secretary of
State, and the Director of the Division of Elections shall be the Elections
Canvassing Commission. The Elections Canvassing Commission shall, as soon as
the official results are compiled from all counties, certify the returns of
the election and determine and declare who has been elected for each office.
In the event that any member of the Elections Canvassing Commission is
unavailable to certify the returns of any election, such member shall be
replaced by a substitute member of the Cabinet as determined by the Director
of the Division of Elections. If the county returns are not received by the
Department of State by 5 p.m. of the seventh day following an election, all
missing counties shall be ignored, and the results shown by the returns on
file shall be certified.

§ 102.111, Fla. Stat. (2000) (emphasis added).

The Legislature in 1989 revised chapter 102 to include section 102.112, which
provides that returns not received after a certain date “may” be ignored and
that members of the County Board “shall” be fined:

102.112 Deadline for submission of county returns to the Department of State;
penalties.–

(1) The county canvassing board or a majority thereof shall file the county
returns for the election of a federal or state officer with the Department of
State immediately after the certification of the election results. Returns
must be filed by 5 p.m. on the 7th day following the first primary and
general election and by 3 p.m. on the 3rd day following the second primary.
If the returns are not received by the department by the time specified, such
returns may be ignored and the results on file at that time may be certified
by the department.

(2) The department shall fine each board member $200 for each day such
returns are late, the fine to be paid only from the board member’s personal
funds. Such fines shall be deposited into the Election Campaign Financing
Trust fund, created by s. 106.32.

(3) Members of the county canvassing board may appeal such fines to the
Florida Elections Commission, which shall adopt rules for such appeals.

§ 102.112, Fla. Stat. (2000) (emphasis added).

The above statutes conflict. Whereas section 102.111 is mandatory, section
102.112 is permissive. While it is clear that the Boards must submit returns
by 5 p.m. of the seventh day following the election or face penalties, the
circumstances under which penalties may be assessed are unclear.

VII. LEGISLATIVE INTENT

Legislative intent–as always–is the polestar that guides a court’s inquiry
into the provisions of the Florida Election Code. Where the language of the
Code is clear and amenable to a reasonable and logical interpretation, courts
are without power to diverge from the intent of the Legislature as expressed
in the plain language of the Code. As noted above, however, chapter 102 is
unclear concerning both the time limits for submitting the results of a
manual recount and the penalties that may be assessed by the Secretary. In
light of this ambiguity, the Court must resort to traditional rules of
statutory construction in an effort to determine legislative intent.

First, it is well-settled that where two statutory provisions are in
conflict, the specific statute controls the general statute. In the present
case, whereas section 102.111 in its title and text addresses the general
makeup and duties of the Elections Canvassing Commission, the statute only
tangentially addresses the penalty for returns filed after the statutory
date, noting that such returns “shall” be ignored by the Department. Section
102.112, on the other hand, directly addresses in its title and text both the
“deadline” for submitting returns and the “penalties” for submitting returns
after a certain date; the statute expressly states that such returns “may” be
ignored and that dilatory Board members “shall” be fined. Based on the
precision of the title and text, section 102.112 constitutes a specific
penalty statute that defines both the deadline for filing returns and the
penalties for filing returns thereafter and section 102.111 constitutes a
non-specific statute in this regard. The specific statute controls the non-
specific statute.

Second, it also is well-settled that when two statutes are in conflict, the
more recently enacted statute controls the older statute. In the present
case, the provision in section 102.111 stating that the Department “shall”
ignore returns was enacted in 1951 as part of the Code. On the other hand,
the penalty provision in section 102.112 stating that the Department “may”
ignore returns was enacted in 1989 as a revision to chapter 102. The more
recently enacted provision may be viewed as the clearest and most recent
expression of legislative intent.

Third, a statutory provision will not be construed in such a way that it
renders meaningless or absurd any other statutory provision. In the present
case, section 102.112 contains a detailed provision authorizing the
assessment of fines against members of a dilatory County Canvassing Board.
The fines are personal and substantial, i.e., $200 for each day the returns
are not received. If, as the Secretary asserts, the Department were required
to ignore all returns received after the statutory date, the fine provision
would be meaningless. For example, if a Board simply completed its count late
and if the returns were going to be ignored in any event, what would be the
point in submitting the returns? The Board would simply file no returns and
avoid the fines. But, on the other hand, if the returns submitted after the
statutory date would not be ignored, the Board would have good reason to
submit the returns and accept the fines. The fines thus serve as an
alternative penalty and are applicable only if the Department may count the
returns.

Fourth, related statutory provisions must be read as a cohesive whole. As
stated in Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d
452, 455 (Fla. 1992), "all parts of a statute must be read together in order
to achieve a consistent whole. Where possible, courts must give effect to all
statutory provisions and construe related statutory provisions in harmony
with another." In this regard we consider the provisions of section 102.166
and 102.168.

Section 102.166 states that a candidate, political committee, or political
party may request a manual recount any time before the County Canvassing
Board certifies the results to the Department and, if the initial manual
recount indicates a significant error, the Board “shall” conduct a countywide
manual recount in certain cases. Thus, if a protest is filed on the sixth day
following an election and a full manual recount is required, the Board,
through no fault of its own, will be unable to submit its returns to the
Department by 5:00 p.m. on the seventh day following the election. In such a
case, if the mandatory provision in section 102.111 were given effect, the
votes of the county would be ignored for the simple reason that the Board was
following the dictates of a different section of the Code. The Legislature
could not have intended to penalize County Canvassing Boards for following
the dictates of the Code.

And finally, when the Legislature enacted the Code in 1951, it envisioned
that all votes cast during a particular election, including absentee ballots,
would be submitted to the Department at one time and would be treated in a
uniform fashion. Section 97.012(1) states that it is the Secretary’s
responsibility to “[o]btain and maintain uniformity in the application,
operation, and interpretation of the election laws.” Chapter 101 provides
that all votes, including absentee ballots, must be received by the
Supervisor no later than 7 p.m. on the day of the election. Section
101.68(2)(d) expressly states that “the votes on absentee ballots shall be
included in the total vote of the county.” Chapter 102 requires that the
Board submit the returns by 5 p.m. on the seventh day following the election.

The Legislature thus envisioned that when returns are submitted to the
Department, the returns “shall” embrace all the votes in the county,
including absentee ballots. This, of course, is not possible because our
state statutory scheme has been superseded by federal law governing overseas
voters; overseas ballots must be counted if received no later than ten days
following the election (i.e., the ballots do not have to be received by 7
p.m. of the day of the election, as provided by state law). In light of the
fact that overseas ballots cannot be counted until after the seven day
deadline has expired, the mandatory language in section 102.111 has been
supplanted by the permissive language of section 102.112.

Further, although county returns must be received by 5 p.m. on the seventh
day following an election, the "official results" that are to be compiled in
order to certify the returns and declare who has been elected must be
construed in pari materia with section 101.5614(8), which specifies that
"write-in, absentee and manually counted results shall constitute the
official return of the election." (Emphasis added.)

Under this statutory scheme, the County Canvassing Boards are required to
submit their returns to the Department by 5 p.m. of the seventh day following
the election. The statutes make no provision for exceptions following a
manual recount. If a Board fails to meet the deadline, the Secretary is not
required to ignore the county’s returns but rather is permitted to ignore the
returns within the parameters of this statutory scheme. To determine the
circumstances under which the Secretary may lawfully ignore returns filed
pursuant to the provisions of section 102.166 for a manual recount, it is
necessary to examine the interplay between our statutory and constitutional
law at both the state and federal levels.

VIII. THE RIGHT TO VOTE

The text of our Florida Constitution begins with a Declaration of Rights, a
series of rights so basic that the founders accorded them a place of special
privilege. The Court long ago noted the venerable role the Declaration plays
in our tripartite system of government in Florida:

It is significant that our Constitution thus commences by specifying those
things which the state government must not do, before specifying certain
things that it may do. These Declarations of Rights . . . have cost much, and
breathe the spirit of that sturdy and self-reliant philosophy of
individualism which underlies and supports our entire system of government.
No race of hothouse plants could ever have produced and compelled the
recognition of such a stalwart set of basic principles, and no such race can
preserve them. They say to arbitrary and autocratic power, from whatever
official quarter it may advance to invade these vital rights of personal
liberty and private property, “Thus far shalt thou come, but no farther.”

State v. City of Stuart, 120 So. 335, 347 (Fla. 1929). 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 this basic freedom all others would be diminished. The
importance of this right was acknowledged by the authors of the Constitution,
who placed it first in the Declaration. The very first words in the body of
the constitution are as follows:

SECTION 1. Political power.–All political power is inherent in the people.
The enunciation herein of certain rights shall not be construed to deny or
impair others retained by the people.

Art. I., § 1, Fla. Const. (emphasis added). The framers thus began the
constitution with a declaration that all political power inheres in the
people and only they, the people, may decide how and when that power may be
given up.

To the extent that the Legislature may enact laws regulating the electoral
process, those laws are valid only if they impose no “unreasonable or
unnecessary” restraints on the right of suffrage:

The declaration of rights expressly states that “all political power is
inherent in the people.” Article I, Section 1, Florida Constitution. The
right of the people to select their own officers is their sovereign right,
and the rule is against imposing unnecessary and unreasonable "restraints on
that right". . . . Unreasonable or unnecessary restraints on the elective
process are prohibited.

Treiman v. Malmquist, 342 So. 2d 972, 975 (Fla. 1977) (emphasis added).
Because election laws are intended to facilitate the right of suffrage, such
laws must be liberally construed in favor of the citizens’ right to vote:

Generally, the courts, in construing statutes relating to elections, hold
that the same should receive a liberal construction in favor of the citizen
whose right to vote they tend to restrict and in so doing to prevent
disfranchisement of legal voters and the intention of the voters should
prevail when counting ballots . . . . It is the intention of the law to
obtain an honest expression of the will or desire of the voter.

State ex rel. Carpenter v. Barber, 198 So. 49, 51 (Fla. 1940). Courts must
not lose sight of the fundamental purpose of election laws: The laws are
intended to facilitate and safeguard the right of each voter to express his
or her will in the context of our representative democracy. Technical
statutory requirements must not be exalted over the substance of this right.

Based on the foregoing, we conclude that the authority of the Florida
Secretary of State to ignore amended returns submitted by a County Canvassing
Board may be lawfully exercised only under limited circumstances as we set
forth in this opinion. The clear import of the penalty provision of section
102.112 is to deter Boards from engaging in dilatory conduct contrary to
statutory authority that results in the late certification of a county’s
returns. This deterrent purpose is achieved by the fines in section 102.112,
which are substantial and personal and are levied on each member of a Board.
The alternative penalty, i.e., ignoring the county’s returns, punishes not
the Board members themselves but rather the county’s electors, for it in
effect disenfranchises them.

Ignoring the county’s returns is a drastic measure and is appropriate only if
the returns are submitted to the Department so late that their inclusion will
compromise the integrity of the electoral process in either of two ways: (1)
by precluding a candidate, elector, or taxpayer from contesting the
certification of an election pursuant to section 102.168; or (2) by
precluding Florida voters from participating fully in the federal electoral
process. In either case, the Secretary must explain to the Board her reason
for ignoring the returns and her action must be adequately supported by the
law. To disenfranchise electors in an effort to deter Board members, as the
Secretary in the present case proposes, is unreasonable, unnecessary, and
violates longstanding law.

Allowing the manual recounts to proceed in an expeditious manner, rather than
imposing an arbitrary seven-day deadline, is consistent not only with the
statutory scheme but with prior United States Supreme Court pronouncements:

Indiana has found, along with many other States, that one procedure necessary
to guard against irregularity and error in the tabulation of votes is the
availability of a recount. Despite the fact that a certificate of election
may be issued to the leading candidate within 30 days after the election, the
results are not final if a candidate's option to compel a recount is
exercised. A recount is an integral part of the Indiana electoral process and
is within the ambit of the broad powers delegated to the States by Art. I, s
4.

Roudebush v. Hartke, 405 U.S. 15, 25 (1972)(footnotes omitted).

In addition, an accurate vote count is one of the essential foundations of
our democracy. The words of the Supreme Court of Illinois are particularly
apt in this case:

The purpose of our election laws is to obtain a correct expression of the
intent of the voters. Our courts have repeatedly held that, where the
intention of the voter can be ascertained with reasonable certainty from his
ballot, that intention will be given effect even though the ballot is not
strictly in conformity with the law. . . . The legislature authorized the use
of electronic tabulating equipment to expedite the tabulating process and to
eliminate the possibility of human error in the counting process, not to
create a technical obstruction which defeats the rights of qualified voters.
This court should not, under the appearance of enforcing the election laws,
defeat the very object which those law are intended to achieve. 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.

The voters here did everything which the Election Code requires when they
punched the appropriate chad with the stylus. These voters should not be
disfranchised where their intent may be ascertained with reasonable
certainty, simply because the chad they punched did not completely dislodge
from the ballot. Such a failure may be attributable to the fault of the
election authorities, for failing to provide properly perforated paper, or it
may be the result of the voter's disability or inadvertence. Whatever the
reason, where the intention of the voter can be fairly and satisfactorily
ascertained, that intention should be given effect.

Pullen v. Milligan, 561 N.E.2d 585, 611 (Ill. 1990)(citations omitted).

IX. THE PRESENT CASE

The trial court below properly concluded that the County Canvassing Boards
are required to submit their returns to the Department by 5:00 p.m. of the
seventh day following the election and that the Department is not required to
ignore the amended returns but rather may count them. The court, however,
erred in holding that the Secretary acted within her discretion in
prematurely rejecting any amended returns that would be the result of ongoing
manual recounts. The Secretary’s rationale for rejecting the Board’s returns
was as follows:

The Board has not alleged any facts or circumstances that suggest the
existence of voter fraud. The Board has not alleged any facts or
circumstances that suggest that there has been substantial noncompliance with
the state’s statutory election procedures, coupled with reasonable doubt as
to whether the certified results expressed the will of the voters. The Board
has not alleged any facts or circumstances that suggest that Palm Beach
County has been unable to comply with its election duties due to an act of
God, or other extenuating circumstances that are beyond its control. The
Board has alleged the possibility that the results of the manual recount
could affect the outcome of the election if certain results obtain. However,
absent an assertion that there has been substantial noncompliance with the
law, I do not believe that the possibility of affecting the outcome of the
election is enough to justify ignoring the statutory deadline. Furthermore, I
find that the facts and circumstances alleged, standing alone, do not rise to
the level of extenuating circumstances that justify a decision on my part to
ignore the statutory deadline imposed by the Florida Legislature.

Letter from Katherine Harris to Palm Beach Canvassing Board (Nov. 15,
2000)(emphasis added).

We conclude that, consistent with the Florida election scheme, the Secretary
may reject a Board’s amended returns only if the returns are submitted so
late that their inclusion will preclude a candidate from contesting the
certification or preclude Florida’s voters from participating fully in the
federal electoral process. The Secretary in the present case has made no
claim that either of these conditions apply at this point in time.

The above analysis is consistent with State ex rel. Chappell v. Martinez, 536
So. 2d 1007 (Fla. 1988), wherein the Court addressed a comparable recount
issue. There, the total votes cast for each of two candidates for a seat in
the United State House of Representatives were separated by less than one-
half of one percent; the county conducted a mandatory recount; the Board’s
certification of results was not received by the Department until two days
after the deadline, although the Board had telephoned the results to the
Department prior to the deadline; and the unsuccessful candidate sued to
prevent the Department from counting the late votes. The Court concluded that
the will of the electors supersedes any technical statutory requirements:

[T]he electorate’s effecting its will through its balloting, not the
hypertechnical compliance with statutes, is the object of holding an
election. “There is no magic in the statutory requirements. If they are
complied with to the extent that the duly responsible election officials can
ascertain that the electors whose votes are being canvassed are qualified and
registered to vote, and that they do so in a proper manner, then who can be
heard to complain the statute has not been literally and absolutely complied
with?”

Chappell, 536 So. 2d at 1008-09 (quoting Boardman v. Esteva, 323 So. 2d 259,
267 (Fla. 1975)).

X. CONCLUSION

According to the legislative intent evinced in the Florida Election Code, the
permissive language of section 102.112 supersedes the mandatory language of
section 102.111. The statutory fines set forth in section 102.112 offer
strong incentive to County Canvassing Boards to submit their returns in a
timely fashion. However, when a Board certifies its returns after the seven-
day period because the Board is acting in conformity with other provisions of
the Code or with administrative rules or for other good cause, the Secretary
may impose no fines. It is unlikely that the Legislature would have intended
to punish a Board for complying with the dictates of the Code or some other
law.

Because the right to vote is the pre-eminent right in the Declaration of
Rights of the Florida Constitution, the circumstances under which the
Secretary may exercise her authority to ignore a county’s returns filed after
the initial statutory date are limited. The Secretary may ignore such returns
only if their inclusion will compromise the integrity of the electoral
process in either of two ways: (1) by precluding a candidate, elector, or
taxpayer from contesting the certification of election pursuant to section
102.168; or (2) by precluding Florida voters from participating fully in the
federal electoral process. In either such case, this drastic penalty must be
both reasonable and necessary. But to allow the Secretary to summarily
disenfranchise innocent electors in an effort to punish dilatory Board
members, as she proposes in the present case, misses the constitutional mark.
The constitution eschews punishment by proxy.

As explained above, the Florida Election Code must be construed as a whole.
Section 102.166 governs manual recounts and appears to conflict with sections
102.111 and 102.112, which set a seven day deadline by which County Boards
must submit their returns. Further, section 102.111, which provides that the
Secretary “shall” ignore late returns, conflicts with section 102.112, which
provides that the Secretary “may” ignore late returns. In the present case,
we have used traditional rules of statutory construction to resolve these
ambiguities to the extent necessary to address the issues presented here. We
decline to rule more expansively, for to do so would result in this Court
substantially rewriting the Code. We leave that matter to the sound
discretion of the body best equipped to address it -- the Legislature.

Because of the unique circumstances and extraordinary importance of the
present case, wherein the Florida Attorney General and the Florida Secretary
of State have issued conflicting advisory opinions concerning the propriety
of conducting manual recounts, and because of our reluctance to rewrite the
Florida Election Code, we conclude that we must invoke the equitable powers
of this Court to fashion a remedy that will allow a fair and expeditious
resolution of the questions presented here.

Accordingly, in order to allow maximum time for contests pursuant to section
102.168, amended certifications must be filed with the Elections Canvassing
Commission by 5 p.m. on Sunday, November 26, 2000 and the Secretary of State
and the Elections Canvassing Commission shall accept any such amended
certifications received by 5 p.m. on Sunday, November 26, 2000, provided that
the office of the Secretary of State, Division of Elections is open in order
to allow receipt thereof. If the office is not open for this special purpose
on Sunday, November 26, 2000, then any amended certifications shall be
accepted until 9 a.m. on Monday, November 27, 2000. The stay order entered on
November 17, 2000, by this Court shall remain in effect until the expiration
of the time for accepting amended certifications set forth in this opinion.
The certificates made and signed by the Elections Canvassing Commission
pursuant to section 102.121 shall include the amended returns accepted
through the dates set forth in this opinion.

It is so ordered. No motion for rehearing will be allowed.

WELLS, C.J., and SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ.,
concur.

Three Cases Consolidated:

Case No. SC00-2346

Original Proceeding - Prohibition

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; and Bruce Rogow and Beverly A. Pohl of Bruce S. Rogow,
P.A., 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, Elizabeth C. Daley, Arthur R. Lewis, Jr. and
Elizabeth J. Maykut of Steel, Hector & Davis, LLP, Tallahassee, Florida, for
the Elections Canvassing Commission; Robert A. Butterworth, Attorney General,
pro se, Paul F. Hancock, Deputy Attorney General, and George Waas, Assistant
Attorney General, Tallahassee, Florida, and Cecile Luttmer Dykas, Assistant
Attorney General, Fort Lauderdale, Florida; and Terrell C. Madigan, Harold R.
Mardenborough, Jr., Christopher Barkas and Matt Butler of McFarlain, Wiley,
Cassedy & Jones, P.A., Tallahassee, Florida,

for Respondents

Barry Richard of Greenberg, Traurig, P.A., 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; and R. Ted Cruz, Bush-Cheney
Recount Committee, Austin, Texas,

for Honorable George W. Bush, Intervenor

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 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

Case No. SC00-2348

Appeal of Judgment of Circuit Court, in and for Leon County, Terry P. Lewis,

Judge, Case No. 00-2700 - Certified by the District Court of Appeal,

First District, Case Nos. 1D00-4467/1D00-4501

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, for Canvassing Board for Palm Beach County; and W.
Dexter Douglass of the Douglass Law Firm, Tallahassee, Florida; John D.C.
Newton, II of Berger Davis & Singerman, Tallahassee, Florida; Mitchell W.
Berger of Berger Davis & Singerman, Fort Lauderdale, Florida; David Boies of
Boies, Schiller & Flexner, LLP, Armonk, New York; Karen Gievers, of Karen
Gievers, P.A., Tallahassee, Florida; Lyn Utrecht and Eric Kleinfeld of Ryan,
Phillips, Utrecht and MacKinnon, Washington, DC; Andrew J. Pincus and Ronald
A. Klain, Washington, DC; and Laurence Tribe, Cambridge, Massachusetts, for
Albert A. Gore, Jr. and Florida Democratic Party,

Appellants

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, Elizabeth C. Daley, Arthur R. Lewis, Jr. and
Elizabeth J. Maykut of Steel, Hector & Davis LLP, Tallahassee, Florida, for
the Elections Canvassing Commission,

for Appellees

Case No. SC00-2349

Appeal of Judgment of Circuit Court, in and for Leon County, Terry P. Lewis,

Judge, Case No. 00-2700 - Certified by the District Court of Appeal,

First District, Case Nos. 1D00-4506

W. Dexter Douglass of the Douglass Law Firm, Tallahassee, Florida; John D.C.
Newton, II of Berger Davis & Singerman, Tallahassee, Florida; Mitchell W.
Berger of Berger Davis & Singerman, Fort Lauderdale, Florida; David Boies of
Boies, Schiller & Flexner, LLP, Armonk, New York; Karen Gievers, of Karen
Gievers, P.A., Tallahassee, Florida; Lyn Utrecht and Eric Kleinfeld of Ryan,
Phillips, Utrecht and MacKinnon, Washington, DC; Andrew J. Pincus and Ronald
A. Klain, Washington, DC; and Laurence Tribe, Cambridge, Massachusetts,

for Appellants

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, Elizabeth C. Daley, Arthur R. Lewis, Jr. and
Elizabeth J. Maykut of Steel, Hector & Davis, LLP, Tallahassee, Florida, for
the Elections Canvassing Commission,

for Appellees