Albert Gore, et al, v. Katherine Harris, et al,
Case number 2000-2808
Leon County Circuit Court
December 4, 2000
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
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 countywide
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 countywide 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 and 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
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
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
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
stopped 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 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
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
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.