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DECISION 2000 / AMERICA WAITS

'. . . That Vote Has to Be Counted'

November 21, 2000

Excerpts from a hearing Monday on the Florida recount before the Florida Supreme Court. Speakers include:

* Chief Justice Charles T. Wells

* Justice Harry Lee Anstead

* Justice Major Harding

* Justice Peggy Quince

* Justice Barbara Pariente

* Justice Leander J. Shaw Jr.

* Gore campaign attorney David Boies

* Bush campaign attorneys Barry Richard and Michael Carvin

* Joseph Klock Jr., attorney for Secretary of State Katherine Harris

* Paul Hancock, Florida deputy attorney general

* Bruce Rogow, attorney for the Palm Beach County election supervisor

* Andrew J. Meyers, attorney for Broward County

*

HANCOCK: Our concern with the secretary of state's interpretation of Florida law, and everything that followed from that interpretation, is that it was not guided by sound, legal principles. It's flatly wrong. It elevates the machines over voters.

We have a situation in Palm Beach County where the election officials reported that 10,000 people, 10,000 ballots, did not record a vote for president. Now, that should raise an issue. I mean, maybe people went to the polls to vote for the speed train. But the logical assumption is that most people who went to the polls were there to vote for president and vice president.

. . . We submit to the court, and it's plainly set forth in the statute, that in that recount, county officials should look at those ballots to discern the intent of the voter. That is a standard that's in the law that's in lock-step with every decision of this court for over 100 years on how we review election returns, and of how we re-ballot.

HARDING: But there is also a provision of that statute that says it should be done within seven days.

HANCOCK: Yes, Justice Harding, there is, and there is the following section after that says that the first section you cite says they shall be done in seven days or not counted, the next section says they may be counted if they are not done in seven days. So there is a conflict.

We submit that the election laws have to be read in their totality. Yes, counties should get their returns in in seven days, and they should work hard to do it. But the law also has provisions for recounts, and the statute allows at least three days for a candidate to request recounts. It then requires a sampling of ballots. It then requires, if a problem is found, a full recount.

*

SHAW: Is there a certain point, Mr. Rogow, when the secretary [of state] can cut off the recount? For instance, if it would affect her getting the votes in to the electoral college to be counted, could she cut off the recount?

ROGOW: I don't think she could cut off the recount on that basis, Justice Shaw. I think that what's interesting here is, of course, the certification which we made after seven days is really only a partial certification, because the absentee ballots are not due until three days later, 10 days after the election.

So the process is an open, ongoing process, and we think that the time, of course, is there to complete the process.

*

PARIENTE: There was a representation in one of the briefs that counting in Broward County would be completed as of today. Is that not accurate?

MEYERS: That is no longer accurate, ma'am, based upon my understanding. That was based upon applying a mechanical two-corner rule. And we're going to have to go back, based upon what we believe is a correct interpretation of the law, to discern the intent of each ballot from the totality of the ballot.

HARDING: Isn't there something unusual about changing the rules in the middle of the game?

MEYERS: I don't think so, Justice Harding. I think the important thing is that we do what's right at the end. And this has been an evolving area since the--

HARDING: But you made a deliberate decision as to how you're going to count them. Did you start out counting them that way?

MEYERS: Yes, sir, we did, but at the same time we kept the ballot separate in the event, as information unfolded.

And, Justice Harding, since that time, we've received direction from both Judge Labarga in Palm Beach County and from Judge Miller, who's handling a case for us down below, both of whom stated that our two-corner rule wouldn't be valid. And that's consistent with our understanding of law.

PARIENTE: By valid, do you mean too restrictive?

MEYERS: Too restrictive, ma'am. Our members of our canvassing board have stated that they can determine the intent of ballots in ways other than the two-corner rule. And, in fact, there are ballots that are not presently being tallied for one side or the other from which they can determine the intent.

*

SHAW: Why shouldn't the secretary of state be the person to set that date [for certifying votes] instead of a court? Why couldn't the secretary say that, "This is the time frame that I need in order to fulfill my duty of getting the certification in" and set an arbitrary date?

BOIES: But, your honor, the secretary of state's function is a ministerial function. She is not going to be the person who presides over the contest.

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