Deborah K. Kearney                Joseph P. Klock, Jr.    General Counsel                   Counsel of Record       Kerey Carpenter                   John W. Little, III     Assistant General Counsel         Arthur R. Lewis, Jr.    Florida Department of State       Gabriel E. Nieto        PL-02 The Capital                 Ricardo M. Martinez-Cid Tallahassee, FL 32399-0250        Steel Hector & Davis LLP850.414.5536                      200 S. Biscayne Blvd.                                     Suite 4000              Bill L. Bryant, Jr.               Miami, FL 33131-2938    Katz, Kutter, Haggler, Alderman   305.577.7000            Bryant & Yon, P.A.                                        Highpoint Center, 12th Floor                              106 East College Avenue                                   Tallahassee, FL 32301                                     850.224.9634                                              

SUMMARY OF THE ARGUMENT

Fourth, the decision significantly broadened the power of county canvassing boards toconduct manual recounts. Under prior interpretations of Florida law, such recounts were usedonly to remedy a failure in the system of automated vote tabulation. Now, they may be used atany time, for any purpose, at the unfettered discretion of local officials. Finally, in conjunctionwith this new recount power, the decision below grants county canvassing boards newfoundpowers to set standards for evaluating ambiguous ballots. Because manual recounts were nevermeant to be used as broadly as is now allowed, the Florida Legislature, unlike those of otherstates that have enacted broad manual recount rights, never created standards by which to judgeambiguous, improperly executed machine tabulation ballots. The broad recount rights created bythe court leave this gap to be filled by local officials on an ad hoc basis.

STATEMENT OF THE CASE

The Florida state officers and executive agencies before the Court are the Secretary ofState ("Secretary"), the Division of Elections ("Division"), the Florida Elections CanvassingCommission ("Commission"), and the Attorney General (the "Attorney General"). The powersand duties of each officer are summarized below.

A. The Secretary

The Secretary is an independently elected constitutional officer and a member of Florida'sexecutive cabinet. Fla. Const. art. IV, § 4. The Florida Constitution provides that each cabinetmember "shall exercise such powers and perform such duties as may be prescribed by law." Id.The Secretary is the state's chief elections officer. Fla. Stat. §§ 15.13 and 97.012 (2000). Assuch, the legislature has vested the Secretary with the authority to administer and oversee allelections in the state, and requires the Secretary to "[o]btain and maintain uniformity in theapplication, operation, and interpretation of the election laws." Id. § 97.012(1) (2000).

B. The Commission

The Commission is a special purpose state agency composed of the Governor, theSecretary, and the Director of the Division of Elections.¹Fla. Stat. § 102.111 (2000).

The Commission's purpose under the Florida Election Code is to canvass election returns,certify the results of the election, and declare a winner for each office based on that certification.Id. The Commission is under a strict duty to certify as soon as all county returns are received,and, in any case, no later than seven days following a general election. If any county returns "arenot received by the Department of State by 5 p.m. of the seventh day following an election, [they]shall be ignored, and the results shown by the returns on the file shall be certified."² Id. § 102.111(1).

²Florida law contemplated that the election results would be certified no later than theseventh day following the election. Fla. Stat. § 102.111 (2000). For federal offices, however, a winnermay not be declared until three days later. That is, however, not a matter of state law; it results from aconsent decree between the state of Florida and the United States which requires Florida to count absenteeballots from citizens living outside the United States that are received up to 10 days following a federalelection. Bush Petition App. at 27a, n. 46l.

C. The Division of Elections

The Division is a sub-agency within the Department of State and is subordinate to theSecretary and to the Commission. It functions as the support and advisory staff to theCommission. Id. § 102.111(2) (2000). The Florida Legislature has also specifically empoweredthe Division to provide advisory opinions interpreting the Florida Election Code, Chapters 97 to106, Florida Statutes (the "Election Code") and regarding other elections matters:

The Division of Elections shall provide advisory opinions when requested by anysupervisor of elections, candidate, local officer having election-related duties,political party, political committee, committee of continuous existence, or otherperson or organization engaged in political activity, relating to any provisions orpossible violations of Florida election laws with respect to actions such supervisor,candidate, local officer having election-related duties, political party, committee,person, or organization has taken or proposes to take. A written record of all suchopinions issued by the division, sequentially numbered, dated, and indexed by subjectmatter, shall be retained. A copy shall be sent to said person or organization uponrequest. Any such person or organization, acting in good faith upon such an advisoryopinion, shall not be subject to any criminal penalty provided for in this chapter. Theopinion, until amended or revoked, shall be binding on any person or organizationwho sought the opinion or with reference to whom the opinion was sought, unlessmaterial facts were omitted or misstated in the request for the advisory opinion.

D. The Attorney General

Florida's Attorney General, like the Secretary, is an independently elected, co-equalcabinet officer. The Attorney General is the chief legal officer of the state and may generally issueadvisory legal opinions. Fla. Stat. § 16.01(9) (2000). Opinions of the Attorney General, unlikethose of the Division, are not binding on the party seeking the opinion. See State v. Family Bankof Hallandale, 623 So. 2d 474, 478 (Fla. 1993); Goodman v. County Court, 711 So. 2d 587, 589(Fla. Dist. Ct. App. 1998).

The Attorney General does not issue opinions on election matters. See Op. Att'y Gen.Fla. 86-55 (1986) ("it is the policy of this office to refer all questions concerning the ElectionsCode, . . . to the Division [of Elections] for its response"); Op. Att'y Gen. Fla. 87-17 (1984)("any question relating to the applicability or possible violation of Ch. 106 or other provisions inthe Florida election laws should be submitted to the Division of Elections"). Indeed, in a recentresponse to a request for an opinion, the Attorney General's office stated that it lackedjurisdiction to issue an opinion on an election matter:

After reviewing your correspondence, I regret to inform you that the AttorneyGeneral's Office does not have jurisdiction in this matter. I have taken the liberty,however, of forwarding your letter to the Department of State, Division of Elections,which appears to be the appropriate authority to review your concerns.

II. THE ELECTION CODE

A. Compiling Election Results and Certifying a Winner

Chapter 102 of the Florida Statutes provides the statutory framework for certification ofelection results. Elections are administered by local officials in each county. Each of Florida's 67counties has its own election canvassing board, whose function is to compile the results from thevarious precincts in the county and transmit a return to the Commission. Fla. Stat. § 102.141(2000). These returns must be filed immediately upon the certification of the county's electionresults by the county canvassing board and, in any event, "by 5 p.m. on the 7th day following the .. . general election."³ Id. § 102.112(1).

The Commission is charged with the duty of certifying the results of statewide electionsand declaring a winner based on the returns filed by the county canvassing boards. Id. § 102.111.It is required to perform this function and to declare the winner of the election immediately uponreceipt of returns from all counties. Id. § 102.111(1). If any county fails to file its return withinseven days of a general election, the Commission is directed to ignore that county's returns andcertify the results of the election and to declare a winner based solely on the returns that weretimely filed. Id.

In performing its certification function, the Commission is not allowed to go look beyondthe face of the return or question the veracity of the return submitted by the counties. It is,however, allowed to reject a return that appears "irregular or false" such that the Commission isunable to determine the true vote for any office. Id. § 102.131.

B. Pre-Certification Election Protests and Manual Recounts

Any candidate or voter has the right to file an election protest with the county canvassingboard. Id. § 102.166(1). The protest procedure is typically resolved informally by the board anddoes not involve the Florida courts. The protest may be filed by the latter of five days after the

election or the date the results of the election are certified to the state. Id. § 102.166(2). Protestsare typically used to address only the computation of election results.

As part of the protest procedure, any candidate or political party (but not a voter) mayrequest a manual recount within 72 hours of the date of the election. Id.§ 102.166(4). Inresponse, the county canvassing board may conduct a partial recount involving at least onepercent of the votes cast for the protesting candidate. Id. 102.166(4)(d). If this sampling showsan "error in vote tabulation," there are several steps to be followed. Specifically, the countycanvassing board must:

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

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

(c) Manually recount all ballots.

C. Post-Certification Election Contests

Following certification of the results of the election by all counties, any voter, taxpayer orunsuccessful candidate may contest the results of an election. Id. § 102.168. A contest must beinitiated within 10 days after the last county canvassing board certifies its returns to the state or ashorter time if a protest was filed. Id.§ 102.168(2).

A post-certification election contest differs from a pre-certification election protest inseveral respects:

• The contest is a full evidentiary proceeding, Id. § 102.168(2), while the protest is aninformal administrative proceeding with no formal fact-finding or trial-type procedures.Id. § 102.166.

• The contest is conducted in a central location, the circuit court for the county of the statecapital. Id. § 102.168(2). The protest, on the other hand, is administered by the countycanvassing board in the county in which it is brought, and numerous separate protests maybe raised in various counties. Id. § 102.166.

• The contest takes into account the impact of any perceived irregularities in the election asa whole. See Nelson v. Robinson, 301 So. 2d 508 (Fla. Dist. Ct. App. 1974); Smith v.Tynes, 412 So. 2d 925 (Fla. Dist. Ct. App. 1982). A protest, in contrast, is limited to thecounty in which it is brought. Fla. Stat. § 102.166(1) (2000).

• A contest requires an affirmative evidentiary showing by the petitioner that (i) there hasbeen misconduct, fraud or corruption, (ii) the winning candidate is ineligible for office, (iii)legal votes were rejected, and that those votes would change the outcome of the election,or (iv) another circumstance proving that the outcome of the election was incorrect. Id. §102.168(3). Conversely, no specific evidentiary showing is required for a protest. Id. §102.166(3).

ARGUMENT

I. FLORIDA LAW AS APPLIED PRIOR TO THE DECISION BELOW.

Before the Supreme Court of Florida issued the decision below on November 21, Floridaelections were administered according to long-standing procedures set forth by the statelegislature. These procedures required results to be reported and certified by specified deadlines,provided mechanisms for dealing with errors in vote tabulation, permitted manual recounts incertain limited circumstances involving a failure in the vote tabulation system, and allowedaffected voters and candidates to contest an election after certification.

A. Election Protests and Certification Deadlines

Under the Election Code, any affected voter, political party or candidate may protestelection returns before the canvassing board certifies the results of the office being protested, orwithin five days, whichever is later. Fla. Stat. § 102.166(1) (2000). In the event of a protest, thecounty canvassing board is required to follow specific procedures to verify the accuracy of thereturns according to statutory procedures that vary depending on whether paper ballots designedfor hand counting, voting machines, or machine tabulated paper ballots were used. Id.. §102.166(3). In each case, the remedies are designed to ensure that the vote counting systemfunctioned as intended. Id.

As part of section 102.166, only a candidate or political party is permitted to file a writtenrequest with the county canvassing board for a manual recount. Id. § 102.166(4)(a). Providedthe request is timely, the county canvassing board is given discretion to decide whether to allow astatutorily-defined sample manual recount to determine whether there was a mechanical orsoftware problem in the vote tabulation. Id. § 102.166(4)(c).

In any case, however, the protest period and any recount had to be completed and theelection results certified to the Florida Department of State within seven days of the election. Id.§ 102.111(1). Immediately upon certification by the county canvassing boards, the Commissionwas required to certify the elections results and declare a winner. Id. If any county failed tocertify by the deadline, the Election Code required that its returns be ignored and the certificationproceed notwithstanding the omissions.

B. Post-Certification Election Contests

The conclusion of the seven-day protest and certification process triggers the right of anyaffected voter, taxpayer or unsuccessful candidate to file an election contest. Id. § 102.168(1).Unlike pre-certification protests, which are reviewed by local officials on a county by countybasis, a contest takes into account all facts and circumstances regarding the election on anevidentiary record to determine whether the ultimate result was affected by the allegedirregularities. See Nelson v. Robinson, 301 So. 2d 508 (Fla. Dist. Ct. App. 1974); Smith v.Tynes, 412 So. 2d 925 (Fla. Dist. Ct. App. 1982). Because contests focus on the results of theentire election, they cannot be strategically limited to increasing the vote count in selectedstrongholds of one party or candidate.

The Florida Legislature imposed no specific time limitations on a judicial election contest,but imposed strict time limits on protests and recounts that precede certification, which is theprerequisite to a contest. This difference reflects a legislative policy in favor of resolving allelection disputes, other than errors in the vote tabulation system, through a full evidentiaryproceeding before a single trial court.⁴

C. Use of Pre-Certification Manual Recounting

Before the decision of the Florida Supreme Court, the Division had interpreted theElection Code to allow for a manual recount only where there was some failure in the votetabulation system. This interpretation was based on the language of section 102.166(5), FloridaStatutes, which requires an "error in vote tabulation" for a full recount to be called and thelegislative history of that provision, which indicated that manual recounts were to be used to

correct defects in the tabulation system rather than to remedy voter error in failing to properlyexecute ballots.⁵

The Florida Legislature has charged the Division with the responsibility of answeringquestions from the county canvassing boards concerning the conduct of elections formal advisoryopinions. Fla. Stat. § 106.23(2) (2000). Consistent with the statutory scheme for manualrecounts, legislative history and prior interpretation of the statute, the Division issued a formaladvisory opinion, stating that:⁶

[a]n "error in the vote tabulation" means a counting error in which the vote tabulationsystem fails to count properly marked marksense or properly punched punchcardballots. Such an error could result from incorrect election parameters, or an error inthe vote tabulation and reporting software of the voting system. The inability of avoting system to read an improperly marked marksense or improperly punchedpunchcard ballot is not an error in the vote tabulation. Unless the discrepancy

AFTER VOTING, CHECK YOUR BALLOT CARD TO BE SURE YOURVOTING SELECTIONS ARE CLEARLY AND CLEANLY PUNCHED ANDTHERE ARE NO CHIPS LEFT HANGING ON THE BACK OF THE CARD.

between the number of votes determined by the tabulation system and by the manualrecount of the sample precincts is caused by incorrect election parameters orsoftware errors, a county canvassing board is not authorized to manually recountballots for the entire county, nor perform any action specified in Section102.166(5)(a) and (b), of the Florida Statutes.

The Division's interpretation was the statement of Florida law as it existed prior to theelection. In section 102.166(5), Florida Statutes, the Florida Legislature used the term "votetabulation" to mean, in the context of counties using automated tabulation, the result derivedthrough the electronic or electromechanical equipment. The Division, having extensive experiencewith the application of the statute, recognized the term "tabulation" as a term of art that hadconsistently been used within the context of electronic or electromechanical equipment. When thevotes are counted by the vote tabulation equipment, the legislature uses the terms "tabulate" or"tabulation," and when votes are counted manually, the Legislature uses the term "recount" ratherthan "retabulate." See, e.g., Fla. Stat. §§ 101.5603(1), 101.5603(3), 101.5607(1)(b) and101.5612.

Additionally, the Division interpreted the statutes as a coherent whole. When a samplemanual recount indicates a problem with the vote tabulation system, the county canvassing boardis first to attempt to correct the error and recount the remaining precincts with the system undersection 102.166(5)(a), Florida Statutes. If the error cannot be corrected, the board shouldrequest the Department of State to verify the tabulation system under subsection (5)(b). Finally, ifthe system cannot be made to operate properly, then, as a last resort, the board may manuallyrecount all the ballots under subsection (5)(c). Section 102.166(4) was enacted to provide a setof remedies when a vote tabulation system failed to read properly marked ballots, with a manualrecount being the last and most drastic. The statute was not intended to allow individual countycanvassing boards to use any method of counting votes they might choose after an election, norwas it intended to allocate votes from improperly executed ballots that could not be read byproperly functioning tabulation equipment.

The Division's reading of the election law also harmonized section 102.166(5) with theother provisions in the Election Code. The reference to "vote tabulation" must be read inconjunction with various other provisions of the Election Code wherein the term "tabulation" isused in the context of the equipment itself. See, id. §§101.5603(1)(definition of "automatictabulating equipment); 101.5606(3) ("automatic tabulating equipment will be set to reject allvotes" under certain circumstances); 101.5607(1)(b) ("within 24 hours after the completion of anylogic and accuracy test conducted pursuant to s.101.561(1), the supervisor of elections shall sendby certified mail to the Department of State a copy of the tabulation program which was used inthe logic and accuracy testing"); and 101.5612 ("the supervisor of elections shall have theautomatic tabulating equipment tested to ascertain that the equipment will correctly count thevotes").

Finally, the legislative history confirmed that the Division's interpretation correctlyimplemented the will of the Legislature. The provisions of section 102.166, Florida Statutes, atissue were enacted by the Florida Legislature in 1989 in response to concerns about computerfailure in elections and the use of unreliable software to tabulate votes. Ch. 89-348, § 15, Laws ofFlorida. These concerns had been raised in the 1988 race for the United States Senate betweenBuddy MacKay and Connie Mack and in subsequent news articles. The Legislature enactedsections 102.166(4)-(10), Florida Statutes, to address these concerns as part of what was calledthe "Voter Protection Act." The Senate Staff Analysis and Economic Impact statement for theVoter Protection Act (the identical Senate bill to the House bill that was passed) noted:

An incident of mechanical problems with an electronic voting system occurred inBradenton, Florida where a seventh of the county's precincts had to be counted twicein one election since the ballots were soggy, became warped and were mangled by thevoting equipment. Also, an apparent software "glitch" or error was responsible for anincident in Ft. Pierce when a machine would count the Democratic votes, but wouldnot accept Republican ones.

Other horror stories related to electronic voting systems have been reported in themedia, but in testimony before the Joint Committee on Information TechnologyResources in 1989, supervisors of elections pointed out that there can be problemswith any kind of voting system. However, many local election officials would agreethat state certification procedures and local logic and accuracy tests provide areasonable assurance that "electronic" elections are honestly counted. It is generallyagreed that additional steps could be taken in Florida to improve security procedures,while not hampering the already cumbersome elections process, would enhance thepublic's confidence in our voting system.

As this legislative history indicates, the statute was intended to provide softwareverification and an alternate recounting procedure in connection with a protest, to be used insituations in which mechanical or computer problems caused the tabulation system to functionimproperly. The Division never interpreted the legislation to provide for manual recounts toevaluate ambiguous ballots that voters failed to properly execute.

Neither the language of the statute nor the legislative history indicate any intention togrant county canvassing boards plenary power to permit manual recounts for virtually any reason.The policy of Florida has been that state and county elections are conducted in a uniform mannerthroughout the state. To this end, the Legislature has placed the responsibility to "obtain andmaintain uniformity in the application, operation, and interpretation of the election laws" with theSecretary. Fla. Stat. § 97.012 (2000). The ability of each county canvassing board to establish itsown standards for determining whether to conduct a recount and then establish its own standardsfor interpreting the intention of voters for various types of ballots (1) runs afoul of the purpose ofestablishing a uniform code and assigning an executive officer the responsibility of maintaininguniformity and (2) constitutes the unlawful judicial delegation of legislative authority by vestingthe boards with unbridled discretion.

II. THE DECISION OF THE SUPREME COURT OF FLORIDA

The Supreme Court of Florida's decision brought about a significant shift in the way theElection Code is implemented and applied.

In so doing, the court recognized that the new rules itpropounded were at variance with the statutory scheme. It denounced "hyper-technical relianceupon statutory provisions," and noted that "there is no magic in the statutory requirements,"obviously recognizing that the new rules it espoused deviated from the literal terms of thelegislative scheme. Bush Petition App. at 9a, 36a. Similarly, while purporting to resolve"ambiguity" in state law and disclaiming any intent to rewrite the Election Code, the court'sopinion makes it abundantly clear that it created new law not premised on the statutory language,but rather on newly created and generally defined equitable and state constitutional principles:7

Because of the unique circumstances and extraordinary importance of the presentcase, wherein the Florida Attorney General and the Florida Secretary of State haveissued conflicting advisory opinions concerning the propriety of conducting manualrecounts, and because of our reluctance to rewrite the Florida Election Code, weconclude that we must invoke the equitable powers of this Court to fashion a remedythat will allow a fair and expeditious resolution of the questions presented here.

Accordingly, in order to allow maximum time for contests pursuant to section102.168, amended certifications must be filed with the Elections CanvassingCommission by 5 p.m. on Sunday, November 26, 2000 and the Secretary of State andthe Elections Canvassing Commission shall accept any such amended certificationsreceived by 5 p.m. on Sunday, November 26, 2000, provided that the office of theSecretary of State, Division of Elections is open in order to allow receipt thereof. Ifthe office is not open for this special purpose on Sunday, November 26, 2000, thenany 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 inthis opinion. The certificates made and signed by the Elections CanvassingCommission pursuant to section 102.121 shall include the amended returns acceptedthrough the dates set forth in this opinion.

Pursuant to the Supreme Court of Florida's decision, and in contrast to the legislativescheme, Florida law now provides that:

1. County canvassing boards have the authority to amend returns filed within thestatutory deadline for up to 12 days after the deadline for certification of theelection results to accommodate pre-certification manual recounting;

2. The Commission must accept amended election returns filed after the statutorydeadline so long as the filing does not violate the judicially created alternativedeadline of November 26 that was designed to accommodate pre-certificationmanual recounting in this election⁸ (but see Fla. Stat. §§ 102.111, 102.112);

3. The Commission is to ignore its statutory duty to certify election results basedsolely on the returns filed within the seven-day deadline set by the Legislature, sothat late-filed amendments to timely filed election returns may be submitted toreflect pre-certification manual recounts that extend beyond the deadline (but see,Fla. Stat. § 102.111));

4. County canvassing boards enjoy broad discretion to order manual recounts inselected counties for a statewide election, even where the "error in votetabulation" (i.e., the failure of the tabulation system) previously required under

statute has not occurred and even if the recount will extend beyond the statutorydeadline for filing election returns (but see., Fla. Stat. § 102.166(5)); and
5. When a uniform system of automated counting was previously in place, Florida'svotes, including votes for the electoral college, will now be decided based onstandards developed by individual canvassing boards in selected areas of the state.

III. THE DECISION BELOW ALTERED THE MANNER IN WHICH ELECTIONS AREADMINISTERED IN FLORIDA AND EFFECTIVELY REWROTE PORTIONS OFTHE ELECTION CODE.

A. Prior to November 21, the Election Code Required Certification of ElectionResults Within Seven Days.

The requirement that certification be completed within seven days was expunged by thecourt below. In its place there is a new, judicially-created time limitation that allows filing up to19 days after the election. Bush Petition App. at 38a. County canvassing board members arenow under no duty to comply with the strict time limitations that previously existed; they can nolonger be fined or have their returns ignored for failing to file certified returns when they conductthe pre-certification recounts, despite clear statutory language to the contrary. Id. In essence therequirement in section 102.111 that the Commission "shall ignore" late returns (or in section102.112 the Secretary "may ignore" late returns) has been rewritten to read that the Commission"shall not" ignore late returns filed up to twelve days after the seven-day deadline has passed.Likewise, the statutory requirement that local boards "must" certify within this time frame hasbeen eliminated.

Moreover, the Commission is now precluded from certifying election results on theseventh day following the election (or in federal elections the tenth day), as previously requiredunder sections 102.111, 102.121 and 102.131, Florida Statutes. Indeed, even where certifiedreturns were filed by all counties within the time limitations that existed before the November 21decision, the Commission must now wait at least 19 days to certify the final results of the election,all so that pre-certification manual recounts may be completed.

Finally, the time frame for an election contest, the only procedure available to individualvoters to challenge the outcome of the election, has been drastically shortened by the court.Under the prior law, the period for filing a contest would have begun with the final certification ofresults and the contest proceeding could have extended until December 12, the federal deadlinefor appointment of Presidential Electors. Now, any contest cannot begin until the recounts arecompleted and the results certified. This did not occur until November 26, cutting the contestperiod almost in half from what was already an extremely short period in which to plead a case,conduct discovery, have a trial and pursue any subsequent appeals.

B. Prior to November 21, the Election Code did not Allow for Certified ElectionResults to be Amended by County Canvassing Boards.

Despite the total absence of supporting statutory language, county canvassing boards maynow file amended returns after the statutory deadline has passed even if they had properly filedreturns before the deadline. Bush Petition App. at 37a. Additionally, the Secretary has beendivested of any discretion to reject an amendment, unless it is so late that it will (not may orcould) preclude a candidate or voter from contesting the election or jeopardize the ability of thestate to appoint Presidential Electors within the time limitations of federal law. Id. For purposesof this election, the court below determined that a deadline of November 26 met this newlyarticulated rule. Bush Petition App. at 38a.

Before the decision below, there was no provision in Florida law that expressly authorizedreturns to be amended, much less required an amendment after the statutory deadline to beaccepted as a matter of right. There was no statutory provision that required the Secretary toaccept late-filed returns or limited rejections of late filings specifically to situations where thefederal time limitations jeopardized Florida's electoral votes. Both the ability to amend and thestandards for the acceptance or rejection of an amendment have now been created judicially ratherthan legislatively.

Indeed, the existing Florida law required that "[i]f the county returns are not received bythe Department of State by 5 p.m. of the seventh day following an election, all missing countiesshall be ignored, and the results shown by the returns on the file shall be certified."⁹ Fla. Stat. §102.111(1) (2000). The Supreme Court's decision alters the statutory scheme, imposing uponthe Secretary an absolute duty to accept all late filed returns even though the Legislature requiredher to do just the opposite. Id.

C. Prior to November 21, Florida Law did not Allow Manual Recounting to beUsed to Selectively Count Ballots that a Properly Functioning AutomatedTabulation System Could not Count.

The decision below allows pre-certification manual recounts to be used in a significantlybroader way than previously available. Prior to November 21, in the absence of a judicial decreerendered in an election contest action, manual recounting was allowed only in the case ofmechanical, software, or other similar failure in the automated vote tabulation system and wasconsidered dehors the common law. The Supreme Court of Florida has now departed from theselimitations and recognized that manual recounts are equitably required and grounded in Floridalaw. While a state supreme court may generally create new common law or equitable rights, itmay not apply such principles retroactively to a federal election. See Roe v. Alabama, 43 F.3d574 (CA11,1995).

Under section 102.166(5), Florida Statutes, a manual recount was the last-resort remedyto be used in areas with automated tabulation systems that did not function properly to tabulatethe ballots. When a sample manual recount indicated a problem with the vote tabulation system, acounty canvassing board would have had to attempt to correct the error and recount theremaining precincts with the tabulated system. If the error could not be corrected, a board wasallowed to request the Department of State to verify the tabulation system. Finally, only if thefirst two techniques failed and the system still could not be made to work properly, then, as thefinal remedy, the board could manually recount the ballots.

There was never any indication that section 102.166(5) allowed voter errors caused byimproperly marked or punched ballots to be selectively corrected. The statute was enacted toprovide a remedy when a vote tabulation system failed to read properly marked ballots, not toprovide county canvassing boards the unbridled discretion to choose the method of tabulatingvotes on an ad hoc basis after an election was completed.

The Florida Legislature has never developed standards for manual recounts of ballots thatcould not be machine read. Numerous other states have developed such standards, includingCalifornia, Wisconsin, Indiana and Colorado, to borrow the examples cited by the AttorneyGeneral below. The fact that Florida has not demonstrates that the legislature never meant toallow the broad use manual recounts that these other states have.

In the proceedings below, the Supreme Court of Florida was asked to create the types ofstandards that the Legislature chose not to enact. The court declined that invitation and choseinstead to allow broad use of manual recounting without any standards to guide the process.

IV. EFFECT OF FINDING THE DECISION BELOW TO BE CONTRARY TO FEDERALLAW.

The Supreme Court of Florida is the final arbiter of Florida law. The decision belowimpacts voters' rights and election law in Florida now and in the future, not only in presidentialraces but in all others as well.

Respectfully, these Respondents do not believe that this Court need interfere with thedevelopment of Florida law by its supreme court. The issue is solely whether the supreme courtcreated a body of law regarding the selection of Presidential Electors different from the lawexisting on November 7, 2000. The court's opinion suggests that it did.

If the Court decides that there was a change, and that the change violated federal law, theCourt would determine that the Division properly issued its opinions in November 2000 inresponse to election officials' inquiries; that those opinions were binding on the requestingelections' officials; that no manual recount provision existed under Florida law to remedy votererrors; and that no right existed in a statewide contest to conduct a manual recount on a selectedcounty basis. Finally, this Court should find that the Secretary properly exercised discretion inrejecting requests for post-certification submissions of additional vote counts other than thosefrom overseas ballots received by the tenth day following the election.

Appropriate relief would be to modify the judgment of the Supreme Court of Florida tothe extent that it applied its decisional holdings to the selection of Presidential Electors onNovember 7, 2000. Such relief also would effectively affirm the order of Judge Lewis finding thatthe Secretary's exercise of jurisdiction in refusing to permit the submission of manual recounts tocure voter error beyond the seven-day legislative deadline and the Commission's certification onNovember 15 were proper. As a result, the totals certified on November 15 and the overseasballots received as of November 17 would constitute the complete certification for the presidentialelection. No returns from manual recounts after the November 14 certification will be permittedto be counted in the total of votes cast for Florida Presidential Electors.

Respectfully submitted,

Deborah K. Kearney                Joseph P. Klock, Jr.    General Counsel                   Counsel of Record       Kerey Carpenter                   John W. Little, III     Assistant General Counsel         Arthur R. Lewis, Jr.    Florida Department of State       Gabriel E. Nieto        PL-02 The Capital                 Ricardo M. Martinez-Cid Tallahassee, FL 32399-0250        Steel Hector & Davis LLP850.414.5536                      200 S. Biscayne Blvd.                                     Suite 4000              Bill L. Bryant, Jr.               Miami, FL 33131-2938    Katz, Kutter, Haggler, Alderman   305.577.7000            Bryant & Yon, P.A.                                        Highpoint Center, 12th Floor                              106 East College Avenue                                   Tallahassee, FL 32301                                     850.224.9634                                                                            BY: ________________________                                  Joseph P. Klock, Jr.                                  Counsel of Record