Fla. Judge N. Sanders Sauls Announces Decision
Monday, December 4, 2000
is the transcript of Florida Circuit Court Judge N. Sanders Sauls' decision
in Vice President Gore's suit seeking to expand hand recounts.
SAULS: All right. At this
time we call the case of Albert Gore, et al, v. Katherine Harris, et al,
case number 2000-2808. And at this time, an action having been tried, the court
at this time will enter its rulings from the bench, due to the exigencies surrounding
this case. These rulings and findings shall be incorporated in the final judgment,
to be immediately entered herein.
At this time, the court
finds and concludes as follows. The complaint filed herein states in its first
paragraph that this is an action to contest the state certification in the presidential
election of 2000, asserting that the state Elections Canvassing Commission's
certification on November 26, 2000, is erroneous as the vote totals wrongly
include illegal votes and do not include legal votes that were improperly rejected.
Plaintiffs further contest
the state of Florida's certification of the electors for George W. Bush and
Richard Cheney as being elected.
Plaintiffs further challenge
and contest the election certifications of the canvassing boards of Dade, Palm
Beach and Nassau Counties.
As to the Dade canvassing
board, plaintiffs seek to compel the Dade board to include in its certification,
and the state Elections Canvassing Commission to include in the state certification,
a six-vote change in favor of plaintiffs, resulting from the board's initial
test, partial manual recount of 1 percent of the county-wide vote total, conducted
with respect to three precincts designated by the plaintiffs' designees; also
additional votes manually hand counted in a further partial recount, total resulting
from the board's discretionary decision to stop completion of a full manual
recount of all of the votes in all of the precincts of Dade because of insufficiency
of time to complete the same--these represent the result of the count of an
additional 136 precincts of the 635 precincts in Dade County; and also, the
results of any court-ordered manual review and recount of some 9,000 to 10,000
voter cards or ballots, which at the plaintiffs request have been separated
or were separated as alleged undervotes by the Dade canvassing board or the
Dade supervisor of elections as a result of all of the county-wide ballots being
processed through the counting machines a third time and being nonreadable by
As to the Palm Beach canvassing
board, plaintiffs seek to compel the Palm Beach board to include in its certification,
and the state Elections Canvassing Commission to include in the state certification,
additional votes representing the results of an attempted partial certification
of results completed before the November 26, 2000, deadline mandated by the
Florida Supreme Court, as well as the additional remainder of the results of
the manual recount, which was completed after the deadline and the attempted
certification thereof on December 1; and in addition, the results of any court
ordered manual review and recount of some 3,300 ballots, which were objected
to during the Palm Beach board's manual recount, which plaintiffs alleged should
have been counted as valid votes because that board used an improper standard.
As to Nassau, the Nassau
County Canvassing Board, the plaintiffs seek to compel the Nassau board to amend
its certification, and the state elections canvassing commission to amend the
state certification, to reflect and include the results of the board's machine
recount rather than the results of the board's original machine count, thereby
resulting in a favorable net gain to plaintiffs of 51 votes.
It is the established law
of Florida, as reflected in State v. Smith, that where changes or charges of
irregularity of procedure or inaccuracy of returns in balloting and counting
processes have been alleged, the court must find as a fact that a legal basis
for ordering any recount exists before ordering such recount.
Further, it is well-established,
as reflected in the opinion of Judge Jonas in Smith v. Tynes, that in order
to contest election results under Section 102.168 of the Florida statutes, the
plaintiff must that but for the irregularity or inaccuracy claimed, the result
of the election would have been different, and he or she would have been the
winner. It is not enough to show a reasonable possibility that election results
could have been altered by such irregularities or inaccuracies. Rather, a reasonable
probability that the results of the election would have been changed must be
In this case, there is
no credible statistical evidence and no other competent substantial evidence
to establish by a preponderance a reasonable probability that the results of
the statewide election in the state of Florida would be different from the result
which has been certified by the State Elections Canvassing Commission.
The court further finds
and concludes the evidence does not establish any illegality, dishonesty, gross
negligence, improper influence, coercion or fraud in the balloting and counting
Secondly, there's no authority
under Florida law for certification of an incomplete, manual recount of a portion
of or less than all ballots from any county by the state elections canvassing
commission, nor authority to include any returns submitted past the deadline
established by the Florida Supreme Court in this election.
Thirdly, although the record
shows voter error and/or less than total accuracy in regard to the punch-card
voting devices utilized in Dade and Palm Beach counties, which these counties
have been aware of for many years, these balloting and counting problems cannot
support or effect any recounting necessity with respect to Dade County, absent
the establishment of a reasonable probability that the statewide election result
would be different, which has not been established in this case. The court further
finds the Dade canvassing board did not abuse its discretion in any of its decisions
in its review and recounting processes.
Fourthly, with respect
to the approximate 3,300 Palm Beach County ballots of which plaintiffs seek
review, the Palm Beach Board properly exercised its discretion in its counting
process and has judged those ballots which plaintiffs wish this court to again
judge de novo.
All cases upon which plaintiffs
rely were rendered upon mandamus prior to the modern statutory election system
and remedial scheme enacted by the legislature of the state of Florida in section
102 of the Florida statute, or chapter 102 of the Florida statutes.
The local boards have been
given broad discretion, which no court may overrule, absent a clear abuse of
The Palm Beach County board
did not abuse its discretion in its review and recounting process. Further,
it acted in full compliance with the order of the circuit court in and for Palm
Having done so, plaintiffs
are estopped from further challenge of its process and standards. It should
be noted, however, that such process and standards were changed from the prior
1990 standards, perhaps contrary to Title 3, Section 5 of the United States
Furthermore, with respect
to the standards utilized by the board in its review and counting processes,
the court finds that the standard utilized was in full compliance with the law
and review under another standard would not be authorized, thus creating a two-tier
situation within one county, as well as with respect to other counties.
The court notes that the
attorney general of the state of Florida enunciated his opinion of the law with
respect to this in a letter dated November 14, 2000, to the Honorable Charles
E. Burton, chair of the Palm Beach County Canvassing Board, which in part is
as follows: "A two-tier system would have the effect of treating voters differently
depending upon what county they voted in. A voter in a county where a manual
count was conducted would benefit from having a better chance of having his
or her vote actually counted than a voter in a county where a hand count was
As the state's chief legal
officer, I feel a duty to warn that if the final certified total for balloting
in the state of Florida includes figures generated from this two-tier system
of differing behavior by official canvassing boards, the state will incur a
legal jeopardy under both the United States and state constitutions. This legal
jeopardy could potentially lead Florida to having all of its votes, in effect,
disqualified, and this state being barred from the Electoral College's selection
of a president.
The court finds further
that the Nassau County Canvassing Board did not abuse its discretion in its
certification of Nassau County's voting results. Such actions were not void
or illegal, and it was done within the proper exercise of its discretion upon
adequate and reasonable public notice.
Further, this court would
further conclude and find that the properly stated cause of action under Section
102.168 of the Florida statutes to contest a statewide federal election, the
plaintiff would necessarily have to place an issue and seek as a remedy with
the attendant burden of proof a review and recount of all ballots in all the
counties in this state with respect to the particular alleged irregularity or
inaccuracy in the balloting or counting processes alleged to have occurred.
As recently stated by Judge
Klein, with the concurrence of Chief Judge Warner in the 4th District court
of appeal case of Fladell v. Palm Beach Canvassing Board, Section 102.168 provides
in subsection 1 that the certification of election may be contested for presidential
Section 103.011 provides
that, quote, "The Department of State shall certify, as elected, the presidential
electors of the candidates for president and vice president who receive the
highest number of votes."
There is in this type of
election one statewide election and one certification. Palm Beach County did
not elect any person as a presidential elector, but rather the election was
a winner-take-all proposition dependent on the statewide vote.
Finally, for the purpose
of expedition due to the exigencies surrounding these proceedings, this court
will deny those portions of the pending motions to dismiss of the various parties
herein not affected by or ruled upon in these findings and conclusions with
those portions consisting solely of matters of law being reviewable upon such
In conclusion, the court
finds that the plaintiffs have failed to carry the requisite burden of proof
and judgment shall be and hereby is entered that plaintiffs shall take nothing
by this action and the defendants may go hence without delay.
All ballots in the custody
of the clerk of this court shall remain pending review.
The judgment will be entered
and filed with the clerk immediately following this hearing.
All right. That'll conclude.
The court will stand in recess.