(12/04) Contest Hearing Decision by Judge N. Sanders Sauls

Monday, December 4, 2000

Following 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 the machine.

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 shown.

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 processes.

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 discretion.

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 Beach County.

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 Code.

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 halted."

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 elections.

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 denial.

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.