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Democrats Challenge Florida Secretary of State's Decision on Recount

Aired November 16, 2000 - 12:46 p.m. ET


ROGER COSSACK, CNN LEGAL ANALYST: We are going to Florida State Circuit Court in Tallahassee, Florida, the courtroom of Judge Lewis. We will hear some hearings on the Democratic petition.

TERRY P. LEWIS, LEON COUNTY CIRCUIT JUDGE: Nice to see everyone back again. I guess plaintiffs have a motion.

DEXTER DOUGLASS, GORE CAMPAIGN ATTORNEY: Yes, Your Honor. I think -- may it please the court?

LEWIS: Yes, sir.

DOUGLASS: We have filed a motion. We're assuming the court certainly had time to read it while we were waiting.

LEWIS: I did.


LEWIS: And the exhibits?

DOUGLASS: Yes. Yes, Your Honor. And I don't know that we want to say much more than what's in the motion. We think it clearly states our position on this matter, that the secretary has not complied with the court's order. And basically I think you can see what our position is from the motion itself.

The secretary was ordered that she should wait before determining which counts would be accepted until all returns were received from the lawful manual recount now under way; that the secretary, upon receiving those, should consider all the facts and circumstances, including the degree of lateness, any mechanical or unavoidable difficulties, and the reason given by the boards for their inability to present the returns before the arbitrary 5 p.m. deadline.

The court stated the list of scenarios is almost endless and the questions that would need to be asked are numerous. The secretary did not exercise her discretion lawfully in the manner contemplated by this court's directive. Her ruling on the request came only seven hours after the deadline for submission, before counties had completed their counts. She did not consider any facts and circumstances, but rather cited case to the effect that she lacked the discretion that indeed the court found with its previous order that she did have. There's no indication that her position has changed at all. She stands adamantly by the view that only a natural disaster or other impossibility would allow for returns from the manual recount to be considered after 5 p.m.

She discounts even the real possibility that the manual recount could affect the outcome of the election, stating, "I do not believe that the possibility of affecting the outcome of the election is enough."

But the state of Florida, we think, and as we've argued to the court previously, and as I think the court found, people of the country and this court know that this is a real possibility if not a probability. It's certainly not a hypothetical one. And we say the secretary's ignoring that, in an abuse of her discretion.

In addition, we point out that all these actions that were taken by the secretary did not comply with the Sunshine law. There was no notice of meetings with the state canvassing board. There was no notice of what she was doing given to the general public, including her press conferences.

All of those matters indicate that this was decided long in advance as to how she was going to react to this recount.

We think that her failure to take the direction of the court should be corrected by the court in an order which would direct her to allow these recounts to continue, again, for a reasonable period of time, recognizing that a lot of delay has now taken place because of the various actions that are shown in here on the part of the secretary that resulted in the delay and confusion, to a large extent, the confusion that occurred in the other counties.

We think that in order to proceed in a manner which will be satisfactory to the nation and comply with the law and the court's order that we should have her ordered.

And we assume, Your Honor, that a statewide-elected official, you would not need to hold them in contempt. We think if the court made a more specific order, that the secretary would perform her duty and follow that order. And, therefore, we're not asking that the court hold her in contempt at this time. We're only asking that the court make an effort to give direction that she comply with the court's order and the intent thereof.

Thank you, Your Honor.

LEWIS: Let me ask you one thing. You mentioned the Election Commission.

DOUGLASS: Yes, sir.

LEWIS: What do they have to do with this?

DOUGLASS: I think if she had meetings with the Election Commission, that there would have to be notice of that and those things.

LEWIS: But, I mean, the...

DOUGLASS: There was no notice of her -- when she walked on an announcement -- to announce that there was no notice to us or anybody else of that.

LEWIS: But, right -- what I'm saying, I thought it was just the secretary of state is the one that...

DOUGLASS: The secretary of state, I think, has to give notice of official actions.

LEWIS: The department itself?


LEWIS: Governing of Sunshine would require the secretary...

DOUGLASS: Yes, sir. I think we cited the correct cases in there. And I don't -- I'm not urging that as the basis for this at all, but just as an additional, what we consider to be -- maybe it was -- you could excuse that because of the emergency of the situation in these sort of things, but it's pretty much in keeping with these acts that have occurred, and we raise that just as a matter of additional contentions. And basically, though, what we're really pinning this on is the fact that she didn't comply with your direct instructions in the manner which we cited and show in our brief.

LEWIS: Anybody else on the side of the plaintiffs over here?


Yes, sir?


Jim Klock, from Steel, Hector and Davis; my partner, John Sjostrom; and this is Deborah Kearney, who's general counsel for the secretary of state. I'll try to be brief.

I'd like to start with a key line I think that Mr. Douglass stated, and that was, he thought Your Honor should have a more specific order. I think the reason that he said that, Your Honor, is that the secretary of state took enormous care to make sure that she did not violate your order. And I think the key provision that the court needs to pay attention to is on Your Honor's...

LEWIS: Your Honor, I ask that he speak louder. I can hardly hear.

KLOCK: I'm sorry. I'm sorry, sir.

Now, on page 7 of Your Honor's order, it says, "Just as the county canvassing boards have the authority to exercise discretion in determining whether a manual recount should be done, the secretary of state has the authority to exercise her discretion in reviewing that decision."

The decision, Your Honor, is the decision to determine whether or not the manual recount is undertaken.

Mr. Douglass appears to think that what this language of the court suggests is that before she can review the decision, every manual recount that has been undertaken has to be completed.

I don't think that the language of the court's order suggests that at all. The procedure that was followed by the secretary here was that beyond 5 p.m. on Tuesday, which as Your Honor knows, was the official certification date, she issued a memorandum to the supervisors of elections in Dade, Broward -- I'm sorry, Miami- Dade, Broward and Palm Beach counties. In that document she asked them -- if I may read it, it's brief, Your Honor.

"As of 5 p.m. today, the Division of Elections has received certification of returns from all 67 Florida counties. The usual practice of the State Elections Canvassing Commission is to finally certify these returns as soon as the compilations are completed by the staff of the division. However, we understand that your county may plan to conduct a manual recount continuing beyond today's 5 p.m. deadline.

"Leon County Circuit Court Judge Terry Lewis confirmed today that the secretary of state has the discretion to consider any requests to amend certification of returns after the deadline. In order to properly exercise that discretion, the secretary requires that you forward to her by 2 p.m. on Wednesday, November 15, a written statement of the facts and circumstance that cause you to believe that a change should be made to what otherwise would be the final certification of the statewide vote composed of the tallies received by 5 p.m. today, plus the total of the votes received from overseas ballots received by the counties by midnight on Friday."

When these documents were received, Your Honor, at 2 p.m., that followed a period of time when the secretary of state, in accordance with the statement she made publicly and in writing, had asked for a list of different criteria that she could consider.

The secretary of state selected a group of criteria, all, Your Honor, drawn from Florida case law that had to do with the kinds of criteria that the court uses in determining whether or not an election should be overturned.

The secretary of state took those criteria and then applied them against the documents that she received from the canvassing boards. And made a determination, Your Honor, based upon their explanation of their decision. She exercised her discretion reasonably in determining whether or not those explanations complied with acceptable standards in the exercise of her discretion.

When she completed that process, Your Honor, she issued a number of written letters -- which we can hand out, if I may to the court. LEWIS: I think I have it. You might want to look, but I've got the exhibit list that has the letter sent to the various counties.

KLOCK: I'm sorry, Your Honor, we weren't served with that.

In any event, those letters...

LEWIS: Do you want to take a look at this?

KLOCK: Well, I don't want to disturb, Your Honor, at this point and time. I can...


KLOCK: Those letters, Your Honor, culminated about 24-hour period during which the secretary had considered the various criteria, and had spent time studying that criteria and then applying it to the letters.

Once those letters were issued, Your Honor, she then presented those letters, documentation, to one of the members of the Canvassing Commission.

Your Honor was not familiar with the Canvassing Commission. It is composed of the secretary of state; it's composed of Mr. Clay Roberts, who is the director of elections; and, in the absence of Governor Bush, who disqualified himself, the agriculture commissioner, Bob Crawford, was appointed as the third member.

That commission, Your Honor, never meets. It did not meet this time; it has never had a meeting. What happens, Your Honor, is that once the letters were completed and that explanation was presented to Mr. Roberts, not by the secretary, Mr. Roberts certified the election.

Those documents were then forwarded to the secretary of state. The secretary of state certified that election.

Those documents were then forwarded to the agriculture commissioner, as the third member of the commission. He certified it as well.

That is in keeping with the long-standing tradition and practice of the secretary of state's Office.

Following that, the secretary of state then made an official announcement indicating that she was certifying the elections, and in accordance with the statutes, they were spread upon the books of the Department of State.

So, Your Honor, we would suggest that rather than violating the order of this court, we paid particular attention to follow the order of the court and that we do not believe that the secretary or any members of the Canvassing Commission have violated the court's order, nor would they. They took enormous care to follow the order.

And I don't believe, Your Honor, that in determining -- just by way of analogy -- whether or not you're going to cut down a row of corn, you have to wait until the last stalk hits before you make that decision.

Your order says that they may make a decision and she may review that decision. They made a decision to have a manual recount. In accordance with the secretary's instructions, they provided an explanation of that. She took that explanation, applied it against the standards and criteria that she had established. She exercised her discretion and she issued her opinion. Following that, the certification process continued.

Now, Your Honor, at the point in time when the certification is completed, which will be when the overseas ballots are received on Saturday, and the same process is followed again, at that point in time, Your Honor, I would imagine that people could attack the results of that in accordance with the statutes. But at this point in time, Your Honor, respectfully, we want to make it clear that the secretary has not violated your order, nor has there been any violation of the written order as is presented in the injunction.

Thank you, Your Honor.

LEWIS: Any response from the -- oh, I'm sorry.


LEWIS: All right. Mr. Carvin?

CARVIN: Thank you, Your Honor.

Yes, I am appearing on behalf of George W. Bush.

I'd like to begin by emphasizing the extraordinary nature of the argument that the secretary somehow abused her discretion. As Your Honor's prime opinion noted, the canvassing boards had a legal duty to submit by the deadline of Tuesday at 5 o'clock.

So the only question in this case is whether or not the secretary abused her discretion by refusing to excuse a clear violation of law that would have occurred had they not certified at that time.

Obviously, that question's committed to her discretion. There's no statutory standards or criteria to guide it. And any kind of line- drawing, imbalancing of the equities, along the lines that plaintiffs are suggesting should be done, would clearly be the court's substituting its judgment for the person that the executive branch official that was committed that discretion.

So the question here is: How did she exercise the discretion? She looked at the electoral code to see if there was any fraud or serious corruption or serious malfeasance or violations or technical problems. There was nothing like that. Palm Beach certified that the machines worked just fine.

She looked at whether there was substantial compliance. Were they missing it by a little bit, as Your Honor indicated, or not? Here we have a case of gross noncompliance.

We don't know because nobody's represented, but Palm Beach, at the earliest, is going to be submitting this sometime next week. If it's next Tuesday, which I assume would be the earliest, that would be seven days past the statutory deadline. So what they're asking you do at a minimum is double the deadline that the statute firmly enforces, from seven days to 14 days.

So there was simply no reason for her to excuse their noncompliance. And that's particularly true, Your Honor, because the noncompliance was specifically contemplated by the legislature. They knew that there would be manual recounts, because, as Your Honor's opinion noted, they were expressly authorized in the statute. And they also knew that the most common if not exclusive reason for counties to miss the deadline was that they were conducting a manual recount.

If you're not conducting a manual recount, there's obviously no problem with complying with the seven-day deadline. It's only when you get in this situation that the problem would arise.

So they knew two things. They knew manual recounts were occurring, and they knew that that would be an excuse for missing the deadline. So what did they do in the face of that? The legislature said, "You must have it in by Tuesday." But it also said, "If you don't have it in by Tuesday, you would be fined $200 out of your personal funds. So we will punish you, regardless of your excuse, regardless of whether or not you're conducting a manual recount."

So, in essence, what the plaintiffs are asking this court to do is to say the secretary abused her discretion because she refused to excuse something that the legislature itself refused to excuse, missing a deadline because of the mandatory recount.

So they're really not even asking you to substitute your judgment for that of the executive branch official; they're asking you to substitute your judgment for that of the legislature itself. They're asking you to take a statute that says the secretary "may" excuse or ignore a late file of election results and alter that statute to say, she may not ignore late filed returns if the county is conducting a manual recount, because the only excuse the counties have offered for missing this deadline is that they are in the midst of a manual recount. So the only reason they have offered is the most common one, and the one that the legislature expressly contemplated.

So they are asking you to redo the balance in the equities that the legislature itself invoked in these circumstances. And the reasoning they're offering to you is, well, there's some inherent conflict between being able to conduct a manual recount, and on the other hand, meeting the deadline.

We have two responses to that, Your Honor. First, this conflict is fictitious; there is no conflict in the statute. It says you must do your returns by Tuesday at 5. It simultaneously says, "you may," you have the option of conducting a manual recount. Well, all the legislature did was give to the county boards a conditional option. It said, "If you can get this done," as Volusia County did, "by Tuesday at 5, then do it. But if you can't get it done by then, then don't do it," and obviously, therefore, gave precedent to the deadline over the manual recount.

If a law firm says, "You may do pro bono work, but you must do your billable work first," then everyone knows you can only do your pro bono work if it doesn't interfere with your billable work and if you have the time do it, because the billable work takes precedence.

The same thing here. The deadline is the mandatory requirement and the option, the conditional option is doing the recount. So there is no conflict in the statute. They told them, in exercising the discretion, they being the county boards, you must consider whether or not you can meet this deadline, else you will be, as I've noted, subject to a $200 fine out of the personal funds.

Second of all, under, I believe it's 1667-A of the Election Code, it says that, "The county boards shall appoint as many county teams as necessary to do the recount."

So it imposes a mandatory duty upon them to get as many counters in there as are necessary to get the job done. So if you are a large county, and you have more voters to count, you also have more personnel, more resources, more money.

And if you think, as Palm Beach County has emphasized, and as the other plaintiffs have emphasized, that it's very important to do a manual recount, then what you do is get the personnel and get it done. That's not optional; they told you to do it. Palm Beach County failed to avail itself of those resources; Volusia County made the deadline. And so one violated the law and the other one did not.

I'd also point out that there's two other options, in case of a notion that there's an error that could affect the outcome of the election, neither of which is time consuming or difficult, and therefore the legislature said exercise your discretion with respect to a manual recount sparingly and make sure you can get the job done.

In that context, I think I would emphasize something that the secretary didn't talk about, which was that this is not a case where the canvassing boards made a Herculean effort to try and meet the deadline, where they pulled out all of the stops and missed it by a day or two. Palm Beach County, which I believe is the only county left in this case because Volusia County has already met the deadline, or at least the only one that still has a live claim, didn't do it. Volusia County had 184,000 voters that they counted in three days.

So there is no reason apparent on the face of it why Palm Beach couldn't have counted 450,000 voters in six days and met the deadline.

But what did they do? They got the request for the recount late Wednesday night, actually it may have been early Thursday morning. They took Thursday off. They took Friday off. They worked hard on Saturday. They took Sunday off. They met on Monday, not to count, but to determine the procedures for counting.

So this was not a circumstance in which, as I said, they made every effort and hired as many counters as they could and were unable to meet the deadline. They didn't even schedule -- they had not contemplated scheduling the first beginning of the full manual recount until the morning of the deadline day. So again, this is another equitable factor that the secretary is entitled to take into account.

The other problem is, wholly apart from what the situation was Tuesday, it is now Thursday, and they haven't begun the full recount. So any delay will bring us well past what I'll call the second deadline, the deadline for the overseas ballots, at least well into the middle of next week. So, for that reason alone, it would be an abuse of her discretion to tolerate this kind of extraordinary delay.

As I said, the earliest they could do it is next Tuesday. But there is nothing in the record, even now, where Palm Beach County has offered any prediction to your court about when they think they can get this extremely important job done. So we don't know.

But either way, it's important to understand that the secretary properly exercised her discretion.

If Palm Beach County could get it done by next Tuesday, that means, of course, that if they had started last Thursday, they could have met the Tuesday deadline, so they have no excuse for not doing it.

If it was a physical impossibility to get it done in that short of a timeframe, that means the nation will be waiting for two, three, four weeks until that effort in Palm Beach County is finally concluded. And that is an intolerable result, and you would need to grotesquely amend the statute to tolerate it.

Simple math would indicate that, while I cannot offer any expert predictions to the court about how long this will take, that we're running a very serious risk of even going up against the Electoral College deadline of December 12.

It took Palm Beach County nine hours to count 1 percent of the vote. If you do simple arithmetic, and they continue at that pace, it will take them 900 hours to do 100 percent of the vote, which means if they work 12 hours a day, it will take 75 days to finish this recount, which is January 30. So we will have to postpone the inaugural.

But let's assume they triple their output and it takes 25 days, and they don't take one day off, that's December 11. No court -- no court -- can suggest that that kind of delay is at all tolerable. And yet the injunction that the plaintiffs are asking for is to wait, have the nation wait, have the secretary wait until Palm Beach County, and perhaps the other counties not in front of the court, are finished with their returns.

And indeed they say the secretary can't even make the decision until such time as those counties have deigned to give her their returns, without any time limits imposed or any understanding at this point of how long this is going to take.

I suggest that, far from being an abuse of discretion, the only rational course at this point, Your Honor, is to end this conflict, stick with the statutory deadline and let the election returns go.

If the plaintiffs really believe that there is a grounds for complaining about the election, they of course have, as the court noted in its initial opinion, a very clear statutory solution. They can challenge the certification.

It is not proper at this point for the court to predict future events without a scintilla of evidence and micromanage the election process as the nation waits.

So I think that, all else being equal, the only conclusion the court can draw is that the secretary, far from abusing her discretion, would have abused her discretion by saying to Palm Beach County, "Yes, we will wait until you're through. Yes, I will examine it at that time. And hopefully we will be able to get on with the nation's business when you are through with your job."

That is not the function of this court. And that would be irrational, even if it was the function of this court to balance those kinds of equities.

She proceeded carefully. She followed the legislature's judgment. And the legislature told her two things: "We know there will be recounts. We know people will be coming to you and asking you to excuse missing deadlines because of those manual recounts. And we tell you, Madam Secretary, that you shall fine those people $200, regardless of their excuse, and you have absolute discretion as to whether or not to take those late filed returns."

There can be no abuse of discretion in these circumstances.

Absent further questions, I have nothing else to say.

LEWIS: Anybody else on the defendants' side of the aisle?

Mr. Mardenborough?

MARDENBOROUGH: Good afternoon, Judge.

As you know, we represent the intervenor, a voter out of Collier County, Matt Butler.

And, Judge, you've heard a lot already here from the defendants. I don't want to duplicate what's already been said, but there's a couple points that we believe need to be made.

One of those points is that there seem to be a lot of attacks on the fact that Secretary of State Harris in this case asked the other day for the facts and circumstances to be described to her, so she could make a determination based on the exercise of her discretion as provided to her by statute and recognized by this court. It's been suggested that by asking for that ahead of time that she has somehow illustrated that she already made up her mind and that she has abused her discretion by doing that.

And what I wanted to point out to the court here is that we've all been watching CNN, MSNBC, whatever stations are out there, showing what's happening in South Florida, showing how many people are being brought in to do vote recounting, how many people have been brought in to define standards as to how to do the manual recounting. It is an enormous amount of resources that's being used up down there.

The only reasonable thing that there was for Secretary of State Harris to do in this case, from a voter's standpoint and from a citizen who pays taxes standpoint, was to essentially say, "Listen, if you guys have any reasons right now that are going to be the same reasons you're going to have when you're done counting, tell me what your reasons are now. I'm going to look at those. I'm going to do what the judge told me to do, which is exercise my discretion. I'm going to make a decision, and I'm going to let you know before you waste all the time and effort if that's ultimately what my decision is." Judge, the most responsible thing that she could do is exactly what she did.

Now, there has not been any statement, allegation, fact, proof that there would be any additional facts in this case, by Palm Beach County or any of the other county canvassing boards, that there would be any additional fact or circumstance that Secretary of State Harris ought to consider at the end of them counting all of these votes, with the exception that by then they may have different numbers. That's the only additional fact and circumstance that they're looking at.

That's not what the statute contemplates in terms of being late. She wanted to look and see why do you need to be late so I can tell you whether or not it's going to be appropriate. It was absolutely appropriate for her to do it that way and you should not, by any stretch of the imagination, start out by concluding that she abused her discretion because she asked them for the information ahead of time.

Judge, the other point that we wanted to make is that you're sitting here essentially being asked to amend, I guess, an injunction order. The only thing that you told Secretary of State Harris the other day that she had to do was that she had to exercise her discretion. You said, "You can't set an absolute rule," and you've heard all of the explanation. You've got the letters right there that show you that she didn't simply set a rule ahead of time. She asked them for the information. They provided it to her. She considered all facts and circumstances as you told her to do. She considered existing case law. She obviously consulted with the people in her office. And she exercised her discretion.

Now, I'm sure that Vice President Gore and other plaintiffs disagree with how she exercised her discretion. That's not the standard.

Judge, you might even disagree with how she exercised her discretion. That's not the standard either.

It's clear, though, that from everything that happened, that she exercised her discretion within the gambit that the law provides to her.

She is allowed to take all those things into account and decide -- and this is the key -- to decide whether to ignore a statutory deadline.

We've been in here since Monday with people essentially acting as if there is a right to turn in late certifications. The plaintiffs here aren't saying, "Please enforce a law, Judge." They're saying please don't enforce a law. Don't enforce the deadline that the statute clearly provides. They've got a very, very heavy burden, to do that and they haven't presented anything to get there.

Now, Judge, this whole thing comes down to this manual recount issue. And this is an area where I believe my client will probably not be welcomed, at least with some of the people at our table, because this is a little different view than they may have on the statute. For you to decide that injunctive relief is appropriate, you've got to believe that they've got some right here to get late counted returns in.

Judge, from a voter's standpoint, from Mr. Butler's standpoint, that manual recount statute is unconstitutional. The thing nobody's talked about in this case is that section 102-166(4) provides not that voters can ask for manual recounts; they're not allowed to do that. What it provides is that they candidate can ask or a political party can ask.

And what that statute has done has put us exactly where we are, which is the whole recount process has become a complete political game. It's become something where a candidate was able to come into the state of Florida, pick the counties that he thought he could do well in, and say, "I just want to be able to pick those little counties, and I want to have those counted, because I can squeeze out some more votes. If I can squeeze out some more votes, I might win the state. And then I'm going to go around for the rest of the week, and I'm going to continue to say we need the will of the voters counted. We need the will of the voters counted." They're talking about the will of the voters in three counties.

Now, of course, Vice President Gore came on TV last night, everybody saw, and he said, "Well, you can go do a statewide recount." Well, you can't do that, there's no legal provision for that. There's no legal provision for that at all. The statute provides who can ask for it. The statute provides when it must be asked for.

Now, the problem is -- I'm sorry -- parties, such as my client, find themselves completely out of the picture.

He doesn't live in one of those counties that may get their votes recounted by hand, if they want them. He lives in a county where there were thousands of ballots that were cast but didn't get counted toward any presidential candidate, ballots that just as well may have showed an intent to support one candidate or the other.

In fact, his ballot may have been rejected by the machine. For all he knows, his ballot didn't get counted. From that perspective, he's in the same position as people in Palm Beach County. But you know what? He wasn't I guess lucky enough to have somebody who is statutorily special who could go in and ask within the time period provided by law to ask for a manual recount.

Now, he didn't have that benefit, and neither did the voters in the other 63 or 64 counties in the state of Florida whose ballots may have been rejected by machines and who nobody asked on their behalf whether or not they wanted to have a manual recount.

Judge, by virtue of the legislature providing a manual recount statutory right, which isn't a constitutional or special right beyond what the statute provides, but not allowing the voters who, at least if you listen to everybody talk on TV, the voters are really the ones that we care about here, it's the voters' intent that we really supposedly care about, without providing them the ability, in all counties in the state of Florida, to ask for a recount in their counties, it's grossly unfair, it violates my client's right to due process, and it clearly violates his equal protection rights, by not allowing him to get his vote counted the same way that it would be counted in any other county in the state of Florida.

From that standpoint, Judge, there's not even a right to any of these manual recounts that's legally legitimate, that should ever be done in this case and should ever be certified to the secretary of state, even if it was within the time period provided by law.

Now, Judge, I know you don't have to rule specifically on that constitutional issue today. We have a complaint for declaratory relief that we were going to file, we have not filed, because I don't believe it's ripe right now, given that Secretary of State Harris has said she -- that she doesn't accept the explanations, she's not going to use her discretion to extend the deadline.

But that is an issue that you can take into account here in realizing that there's not even a right for these counties to have those recount numbers be presented, whether it's on time or not on time, and so this entire issue becomes moot. For all those reasons, Judge, we believe that you should deny all the relief asked for by the plaintiffs and leave the discretion where it belongs, and that's in the hands of the secretary of state, where it was placed by the Florida legislature.

Thank you.

LEWIS: Anybody else over there?

Reply from the plaintiffs?

DOUGLASS: May it please the court, they reargued the case we argued last week. I guess they weren't here.

The court ruled, as I understand it, that under the law, it was not categorically the case that the recount was required to end on Monday -- or Tuesday, rather.

It was up to the reasonable discretion of the officers that run the election in the particular counties as to whether they wanted to go forward with a manual recount. And then it was up to the reasonable discretion of the secretary of state, which you outlined how that should be exercised, not taking the position you can't count the votes. And yet, that's exactly what they did here.

They sent a letter from this elections director, and it said to them, "You can't count these votes unless it's a mechanical error." They ignored the court's statements about it's not a mechanical error only, it's not just a hurricane, which you said, that's all right under these early circumstances. And that the circumstance here was on its face not sufficient enough to order that as the case.

And you gave the secretary a chance to carry out that discretionary duty. Instead, the secretary's letter stopped the counting. And they were told they had to stop. The judge down there ruled that because the law said when the elections director says you have to do it this way, you stop. And then, Judge, the Butterworth opinion came later and we all got in confusion and so on.

That confusion was created by the secretary or her person there that writes these letters. And it was done after and carried out, at least. It was not retracted, it was still insisted upon after your court's order to the contrary.

And what they have here -- if I can put it in a little more better language where I can understand it -- it's like the policeman says stop. And you're driving along and you stop. And he stands there and you stop. A whole bunch of cars come up behind you. Then, he comes over and says, "I'm writing you a ticket for blocking traffic." And you say, "But you told me to stop." He said, "But the law is you're to go. You're not to hold up traffic. Here's your ticket, take off." That's what they've done here, basically.

And that's sort of maybe a down-home explanation of what they're really saying in plain language. And that's one of the other things we need to think about.

What we're trying to do is use common sense in the law. We're trying to reach a correct result, which Your Honor recognized and did in the previous order, which they are now arguing the order all over again. They're not arguing that she didn't do these things, that she didn't make any considerations, that she immediately said have these in here seven hours later or whatever it is. All these things were done.

Court proceedings were filed in these counties, in Palm Beach County and these others.

The independent county canvassing boards have the sole discretion to decide whether to do a manual recount to get accurate and complete counts. She is not their boss.

The manual count is the only way to count the ballots the machines did not yet count. And seven counties did that that aren't involved in this at all. It isn't just these three counties; seven counties did it. And six of those counties increased the vote slightly for Governor Bush. All seven of them did together, I think, came up with a slight increase in this margin.

So all this business about this and that and the other. A small county could count their vote, recount them, probably the night of election by hand, and there were a lot of those involved. But in a large county, the attendant problems with doing anything that involves a big job in assembling groups and the staff and the volunteers, you have to have a Republican and a Democrat on each place and all this, is just a very burdensome procedure. We agree with that. That's why you have to have more time to do it.

And, you know, maybe I heard wrong, but one of the attorneys for the people here on the other side of this said this is like billable hours and pro bono. Your billable hours come first.

You know, I don't think that's right. I don't think our professionalism standards even allow that. It's one of the reasons lawyers are criticized, I guess, when you take an attitude like that.

You're obligated to give the same undivided attention to those that are paying you and to those who're not. Once you as a lawyer undertake that representation, that's your job. I know certainly that is the correct view and any other view -- to use that as an argument I find very telling, that we want to go back and argue points that just don't make sense.

And, therefore, we ask Your Honor to grant the relief we sought on the grounds that we have here. She not only didn't exercise her discretion, she ignored the court's direction to wait to take punitive action and literally blocked these people from proceeding. And then, she says, "You're through or your votes won't count at all."

To allow that to override Your Honor's direction would result in a great, great inequity for the country. And I think Your Honor was correct. And they didn't make a motion for rehearing or to have you come back and redecide it or whatever else, they just ignored you and went ahead and did it.

And I think that it's only appropriate and proper that we ask you to direct them to allow this to go ahead at this point for a reasonable time. Now, what a reasonable time is can be determined by this court after you hear the evidence as to how we're proceeding with the counting or whatever.

But the counting has been stopped by the secretary, who now says that's really the reason I'm not going to allow it.

But the truth of the matter is, whatever you say, those peoples' whose votes were not counted, when it is brought to the attention of others, have a right to go and be counted. And if they can determine who they voted for, it has a right to be in there.

For people who say that they think the right of the people were paramount, they're asking this court to not enforce its own ruling that said the right of the people, and the Florida cases, which they cited in the last, I think it said something like the technical requirements of the statute must give way to a fair election because the people that vote are the real parties and interest, not the secretary of state, not the candidates and others. The real party and interest, in the last analysis, are those who voted.

And this idea about, you know, they didn't count them in my county, but they counted them somewhere else. They could have counted them if their canvassing board had been asked to, if they wanted to. They could have done that. They had the discretion to do it. And it was done in seven other counties, and no objection was made about that anyway.

So we urge the court to go forward with the court's salutary finding that a statute that deprives people of their constitutional right to have their vote counted, or interpreted in that manner, is just not the case here.

And we ask you, very respectfully, to rule as we've sought and grant additional relief at this time to carry out the purposes of your original injunction.

Thank you, Your Honor.

LEWIS: Thank you.

Anybody else on the plaintiff?

Let me ask you a couple of questions on both sides. I think both the plaintiffs and the defendant made some mention about -- well, the plaintiffs in your motion made note that some of the canvassing boards are -- I guess in this case, it's Palm Beach -- would be not inclined to go forward with the count if it was futile, and if the secretary of state says we're not going to count it.

And I think Mr. Mardenborough made the argument a second ago that that was a reasonable consideration, "Why have these people waste their time and effort doing a recount if it's not going to matter? So I'll tell them ahead of time, it's not going to matter."

Is there any authority, any case law, any statutory authority that says that the canvassing boards should not, as I read it, it says that if you find that there could be an error in the election, "you shall," and it lists several things, one is a manual recount, "you shall do it." Is there anything that says that they shouldn't continue to do that, regardless of what the secretary of state does?

DOUGLASS: I think what happened here was the letter that told them that if they did it, they would be violating the law. And the judge that was on the group down there interpreted that as absolutely binding and they had to stop. Then they tried to start again and she says, "You're shut down. You're over. We're not going to consider them."

So the reason they stopped, Your Honor, was actions of the secretary. And it was thrown into absolute confusion. They still want to do it. They've intervened in this case in Palm Beach County. They're here and they want to count. But they feel like that they have been stopped by her order. She says they have, that it's final.

And so, to come back again, you know...

LEWIS: Is there an order from the secretary of state saying...

DOUGLASS: Well, no, that opinion was interpreted by the elections officers to mean they couldn't count unless there was a mechanical failure or a hurricane. That's basically what it told them. That's what the judge down there said. The judge told them that after they got that opinion they were bound by it no matter what they thought, and they couldn't count, so they didn't.

And then they got some relief from that when they got the Butterworth opinion, who said that's a bunch of bunk. Well, that's not quite the legal way to put it.


I apologize for that.

LEWIS: That's all right. If I remember, the letters were -- had to do with whether, under an interpretation of the appropriate statutes, whether the canvassing board was authorized under the facts and circumstances to do a hand recount.

DOUGLASS: It said the only way you can do it is if it's a mechanical thing or it was a hurricane. He didn't even say that, but that's what he meant.

LEWIS: Well, my question is, is there any statute, any statutory provision that says that once a board decides to it, regardless of what the secretary of state's opinion may be, and I haven't heard anything yet that says an order, but you say there is an injunction or something from a...

DOUGLASS: Well, the judge down there held that that was an order they could not disobey. And I think it's in our brief.

(UNKNOWN): Your Honor, if it please the court that a county canvassing judge said that the letter written to the Republican Party chairman was binding on the board, because the secretary of state said a mechanical error...


LEWIS: The judge who was on the canvassing board interpreted it that way.

(UNKNOWN): Yes. Right.

And then the attorney general wrote a counter-opinion. And now Palm Beach County has said, we're going to wait to see what the supreme court says to see what to do, instead of doing all this effort before hand.

And, as my colleague said, you know, they stopped because of the secretary of state's opinion. That's the only reason why they stopped. And I think that's pretty clear. It's in your letter. They said that to the secretary of state, we stopped because of your opinion.

LEWIS: Do you all agree with that?


LEWIS: Let them answer. I'll give you a chance too.

Do you agree?

(UNKNOWN): Well, obviously, Your Honor, we understand why they would not, as a practical matter, you know, go through all this until the legalities are settled, but we would hope that they would move forward. I mean, that's what we would hope they would do. But they have their two constitutional officers now entangled, and they're ordinary citizens, and they're trying to do their best, and they're trying to do their pro bono work and get their work done. But, you know, the secretary of state is why they stopped.

LEWIS: Well, is there any case pending right now that would resolve that issue?

(UNKNOWN): The supreme court's going to hear that one in about 25 minutes, Your Honor.

LEWIS: OK. And the issue would be, can they do the recounts?

(UNKNOWN): I'm not on that one, Your Honor.


BOIES: Your Honor, may it please the court, my name is David Boies.

The issue that will be, or an issue that will be before the Florida Supreme Court at 2 o'clock this afternoon, is the issue of resolving the conflicting opinions between the state attorney general and the secretary of state.

We take the position that Palm Beach County should go ahead and recount. We think the statute is mandatory, once they've made the determination that they have made.

However, the Palm Beach County Canvassing Board has said, "Look, we've got an opinion from the secretary of state, to whom in effect we report, saying that we're not supposed to do this. And until this is resolved by a court, we don't think that it's prudent for us to go forward." So they stopped.

And our problem is they come into this court and say, it's substantial noncompliance for the Palm Beach County not to have gotten their work done. I mean, Palm Beach County has gotten beat up a lot today by the defendants, on the grounds that they didn't get their work done, they weren't diligent.

Well, they were diligent in the sense that they were listening to what the secretary of state was saying. The secretary of state was saying, "Don't do this." And they were saying, "Well, you're saying don't do it; the attorney general says we can do it. We're going to get a court to decide whether or not we can do it or not."

We think they should do it. We think they can do it. That's the position we're going to take in the Florida Supreme Court. But until it's resolved by a court, Palm Beach County has taken the position that we just don't want to go forward.


BOIES: Thank you.

LEWIS: We'll dispense...

KLOCK: To answer the question that the court asked, there's nothing to stop them from continuing forward. And I think, Your Honor, if you were to get a transcript of the proceedings before Judge Labarga in Palm Beach County, you will determine that the canvassing board could care less about the opinion issued by the secretary of state. And the opinion of one of the members of the canvassing board, who is a county judge, has been routinely overruled by the other two when they wanted to do it.

The fact is, Your Honor, that what the canvassing board did was first seek -- we didn't -- the secretary did not impose it. They asked the secretary for an opinion. The secretary gave that opinion. Under the statutes, that opinion is binding.

Simultaneously, and we would suggest, Your Honor, perhaps forum shopping, they sought an opinion from the attorney general, which, as Your Honor knows, is not binding on anyone.

Now they have the two opinions, right? Then this has created a quandary for them as to what they're supposed to do. In the papers they filed in the Supreme Court, they said they were concerned about the liability that was created as a result of these two things. Well, that's fine, Your Honor, I guess it's up into the Supreme Court.

But at this point in time, the issues is, and the points that were raised by the co-defendants that we have along with us are fine, but I would like to return, Your Honor, to the purpose of this hearing, and that is to determine whether or not my client violated an order of the circuit court, an injunctive order of the circuit court.

The secretary of state has enormous respect and regard for the circuit court. We did no such thing, Your Honor. And I think that we followed Your Honor's instructions very, very carefully. We indicated what it was we were going to do. We issued the letter asking them to give the comments. You asked us to review the determination that they made. We did that. Now, the issue of whether or not they should be counting or not counting back and forth would entertain the court, I'm sure, for hours, if you were to hear testimony on it, which would be probably more useful than hearing from all of us.

But at this point in time, Your Honor, respectfully, I think that there is no basis whatsoever to hold the secretary of state as having violated an order of this court.

KLOCK: Thank you, Your Honor.

CARVIN: May I be heard briefly, Your Honor?

LEWIS: Go ahead.

CARVIN: Just very quickly.

LEWIS: I'll give you a chance.

CARVIN: Thank you. I just would initially like to correct a potential misimpression by a statement Mr. Boies made.

I was talking about the lack of diligence on behalf of Palm Beach through Monday, and that, as you know, because it was handed out in the courtroom, was when the secretary of state's opinion was issued. Prior to that opinion, their plan was not to start the manual recount until Tuesday morning.

So however you weigh the back and forth that you just heard on the effect on Palm Beach County, the relevant point is that prior to the secretary of state's opinion, they created a circumstance which it would be impossible for them to comply, notwithstanding the provision I cited earlier, 166-7(a), requiring them to go out and do whatever is necessary to meet the deadline.

As to your initial question, if I could briefly respond. I suppose in some theoretical sense, anybody can do whatever they want, but the law does not expect people to do futile and utterly meaningless acts. And in that regard, obviously, the provision requiring them to go forward must be read in conjunction with the other relevant statutory provisions; the first one of which is, again, 166-7(a), which clearly contemplates, as I say, that they get the job done in a timely manner. So you read those two together, and if it's not done in a timely manner, then they should cease.

Perhaps more important, of course, is that is that after the certification of the winner as opposed to the election results, after the certification of who has won this election, any effort beyond that is as hypothetical as a public opinion poll as to who the actual winner is in Florida. So it would be an utterly meaningless end.

At that point, clearly, 102.168 takes over because it says you can contest the election. And, therefore, if there was an error in the certification by the Election Commission, your remedy is not to continue manual recounts in perpetuity, but it is to go in and say: You have committed error by not counting whatever these boards will ultimately produce or by certifying things prior to the manual recount.

So I don't think the statute can be read with any kind of common sense or rationality to suggest they were authorized to continue on this voyage until their satisfied.

Thank you.

LEWIS: OK. Mr. Douglass?

DOUGLASS: I don't have anything at this point.

LEWIS: Now, I guess I'll know if I got it back or not. Is this it? Yes, the list of exhibits? Factually, anybody have any problems? These exhibits were attached. You just took a look at them a few minutes ago.

CARVIN: We just want a copy. I don't think we have a problem.

LEWIS: Yes. No problem in considering that, because factually there were some statements made by both sides that are not in here. I don't know that it's necessary or relevant or essential, but I haven't received any evidence of any facts. Anybody got any problems with statements that were made of a factual nature of me considering them or not?


KLOCK: With respect to the bold testimony of the attorney, which I'm sure the court will value very highly, the fact remains that the pleadings drawn here are to hold my client, in effect, in contempt of court. For to suggest that my client was not following the order of the court may determine whether or not your order has been followed, Judge, does not require an in-depth analysis of what the Palm Beach canvassing board did or didn't do, or all the opinions they sought, or all the correspondence that they have received or not received.

What it has to do with is the paragraph, I would respectfully submit, Your Honor, on page seven, and whether or not the actions taken by the secretary are in conformity with the court's order or not, as written.

Thank you, sir.

LEWIS: I understand the issue, but I just want to make sure that if I go back and rely upon something that was said today of a factual nature, somebody doesn't object to it as being there was no testimony of that and I can't consider it.

For example, you mentioned some of the things that the secretary did consider, which unless I take it from that representation, it's not here.

KLOCK: Two of the letters are.

LEWIS: The letters are, but you mentioned some of the things that the canvassing board did or did not do and what time they did it. And I don't see any of that in those letters.

KLOCK: I don't believe I did that.

LEWIS: You didn't, OK?


LEWIS: I'm thinking on the lines of the timing. The court down in Palm Beach did this on this date, this on that date.


CARVIN: Your Honor, obviously they have the burden of establishing. And as I understood one of their arguments, that's fine with me, that it was difficult of impractical for Palm Beach County to meet the Tuesday deadline. If they will not stipulate that it was quite possible, obviously I don't think you should rely my oral statement.

Alternatively, we'd be perfectly happy to have a evidentiary hearing, perhaps as early as tomorrow, to straighten out exactly how diligent...


LEWIS: Can you get it to me by 4:30?

CARVIN: 4:30, that would be fine.

LEWIS: Anything over here?

BOIES: Your Honor, if there's anything additional, we'll submit it by that time. From our standpoint, this is not a question. They know what standard the secretary should apply. The court ruled, entered an injunction, granted our motion, the court denied it in part, set the rules. They didn't appeal on that. That's law of the case.

The question is, based on the undisputed record that was in those exhibits, did the secretary comply with what this court said or not? We're not re-arguing what the court ruled. They had an opportunity to ask for a hearing; they had an opportunity to appeal it. They didn't do either one.

The question is, given what the court ruled, did their conduct comply with it or not?


LEWIS: And I'm not saying that you have to give me any case law. I'm just giving you the opportunity.


I don't want to foreclose you if -- like I said, I noticed that, and usually when I have a motion and there's something to be argued, somebody gives me an authority. Don't feel obligated. But if I have something at 4:30, if you want to give it to me, I'll be glad to look at it.

And I know, again, that you're anxious to have an opinion, an order on this, as quick as I can. I will not promise you I will do it this afternoon, but if you have something to me by 4:30, I have some other stuff -- I will try, but I'll try to leave word with the court administration or something if it's going to be this afternoon. If it's not, I'll let you know that too so you won't be sticking around, waiting.


Thank you.

LOU WATERS, CNN ANCHOR: Procedural matters being discussed as we are back in the Leon County circuit court Judge Terry Lewis' courtroom today. Arguing, essentially -- the Democrats arguing -- essentially, did the Florida secretary of state abuse her discretion in disallowing the manual hand counts in four counties?

Dexter Douglass, the attorney for the Gore campaign arguing that the secretary of state blocked those hand recounts and then, subsequently, said that the recounts would be disallowed.

Roger Cossack is in Washington.

You've been listening to all that; did I get that, essentially, correct there?

COSSACK: Lou, you got it more than essentially correct.

Really what happened here is exactly what was predicted. A couple days ago Judge Lewis said, kind of a split decision; he said you must turn those votes in at 5:00 p.m., but if there's further votes to be counted you cannot arbitrarily deny them. Well, guess what happened? The other counties, Palm Beach and other counties, said we want to continue our vote; the secretary of state said, you know, tell me why, reviewed the letters and said, no, I'm not going to count them. And here we are back in front of Judge Lewis again.

And each side seems to have a different view of what Judge Lewis meant by his original decision. And, of course, those who favor Governor Bush say, you know, judge, what you said was she can't abuse her discretion, and she did not abuse her discretion. She had rational standards. She didn't act in an arbitrarily manner. In fact, they said, you may not like those standards, judge, but they're rational and they're reasonable and that's all that she can be judged by.

The other side, those who favor Vice President Gore, say, no, no, that's not true, judge. You set out some specific things. Now, the one tip that we got, if you will, was that Judge Lewis said, well, why is it that these counties can't continue to count even though the secretary of state has said that she won't accept them? Perhaps he's meaning to say that they should continue to count and -- with the implication that the counts will be -- that these counts will be counted later on down the road.

We don't know; but he's going to take this under submission, as we lawyers say, and hopefully we'll have an answer soon.

WATERS: OK; I heard something about 5:00 this afternoon -- getting a continuance until then so they can submit further case law.

But I recall when Judge Lewis issued his first ruling on all of this, that the Bush campaign came immediately out and said it's a win for us and later, the Democrats came out and said, well, that's a win for us. So it was rather ambiguous.

Do we expect something less ambiguous after today's arguments before the judge?

COSSACK: What a great decision, huh, Lou? Each side thought they won right up until today.

Well, I'm afraid, you know -- we lawyers who watch this didn't think it was such a great decision only because we recognized the fact that there was this ambiguity in this decision that, on one hand he was saying, get the vote certified by 5:00 Tuesday but, by the way, if there's more votes later on, you just can't arbitrarily decide not to count them.

And we knew that that loophole was going to cause this hearing. So now it's up to the judge to decide exactly what he meant, tell each side what he meant, and to see whether or not he believes, at least, that Secretary of State Katherine Harris violated her duties as secretary of state by not allowing these subsequent votes to be counted.

WATERS: Some high pressure on that judge there.


WATERS: Roger Cossack, we'll be calling upon you again and again and again.




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