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DECISION 2000 / AMERICA WAITS | The Decision

"We consistently have adhered to the principle that the will of the people is the paramount consideration."

November 22, 2000

Excerpts of the decision from the Florida Supreme Court on whether to allow hand counting of ballots:

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

"The real parties in interest here, not in the legal sense but in the 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 utmost importance to the people, thus subordinating their interest to that of the people. . . ."

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 century ago, i.e., to reach the result that reflects the will of the voters, whatever that might be. That fundamental principle, and our traditional rules of statutory construction, guide our decision today.

The questions before this Court include the following: Under what circumstances may a Board authorize a countywide manual recount . . . 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?

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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.

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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.

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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 sections 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 deadlines in sections 102.111 and 102.112, i.e., by 5:00 p.m. on the seventh day following the election.

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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.

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