Mr. Douglass?

Gore campaign attorney Dexter Douglass: Mr. Chief Justice, members of the court, I'm here to introduce the speaker today who will argue the case for us, Mr. David Boies from the state of New York.

Mr. Boies?

Wells: Thank you.

Mr. Boies?

Gore campaign attorney David Boies: May it please the court, let me begin by addressing Justice Lewis' question as to how you reconcile a protest under Section 166 with a contest under 168, and how that all happens within a time frame that allows both to coexist.

First, if you look at Section 102.111, it talks about having the returns come from the county by 5 p.m. seven days after the election. It then talks about, separate term, the "official returns;" after the official returns are in, you have a certification and then a declaration of the winner.

So you have the returns, you have the official returns, followed by a certification, and then a declaration of the winner.

In this particular case, the declaration of the winner would be under 103.011, which is the declaration of who are going to be the electors.

And under the statute, 5614, 101.5614, it talks in subsection 8 about the official returns, including not only the machine count, the initial returns, but also the absentee ballots, which obviously are coming in after the seven days, and the manually counted ballots, which are coming in after the seven days.

So we believe that if you read all of those sections together, what you have is a requirement of the counties to come forward with their returns seven days after the election; that those returns will then be supplemented by manual recounts, by absentee ballots; and then there will be an official return, and that official return will then be certified. And at that point, we believe, 168 contest takes place, if there's going to be one ...

Lewis: How do we know ...

Wells: Go ahead.

Lewis: What I'm concerned about is the timing.

Boies: Yes.

Lewis: Let's assume that the absentees and recounts come to the eve of reporting day and there is insufficient time, just as a matter of fact, to conduct a contest. So then are we not eliminating 168 from our statutory scheme?

Boies: I think you would be if that happened, Your Honor. I think there are two points. One is I think the same basic standard for the protest is the same basic standard for the contest, except that you don't have to worry about the timing of when the county is ...

Wells: Well, Mr. Boies, let me focus back in following up on Justice Lewis' question. If the counsel for the attorney general is correct, and December 12 is the date by which the certification has to be made for the Electoral College, and as I read Section V of the U.S. Code, what that date means is that all of the controversies and contest in the state have to be finally determined by that date. Do you agree with that?

Boies: I do, Your Honor.

Wells: OK, in order for them to be conclusive in the Electoral College under 168 or we have this protest going on in Broward County, for instance, where they got some votes in the middle, how is it going to work within that time period for the votes to get totally recounted? And then if Governor Bush wants to contest that, for him to get a contest finally resolved or isn't it — now, let me pose my whole question — isn't it something that the secretary of state, as the person who has to do the certification, should separate out those that are uncontested on both sides?

And then with the ones in the middle, there would have to be a determination made in the final certification, as to whether there was a — you could get that finally determined or not, and how many votes you're talking about, and whether those votes in the middle would actually cause the election to be different. Do you get my drift?

Boies: And then the contest, if there is one, takes place between that date and December 18.

Harding: Do we have information in the record that can guide us? Do we know how long it's going to take to do these things? Are we just going to reach up from some inspiration and put it down in paper?

Boies: Your Honor, I think it is in between.

Harding: Recount?

Boies: I think there is some information in the record. But to be completely candid with the court, I believe that there is going to have to be a lot of judgment applied by the court, as well.

Harding: Is this not something that the legislature tried to do in setting these time limits when the vote should be in and set up some reasonable — what you contest is not reasonable, but some procedure? And isn't that what they've done?

Boies: I don't think that is what they have done, Your Honor, because, if you look at Sections 102.111 and 102.112 together, just those two together, even leaving aside the manual recount provisions, what you see is that the legislature is saying you must get your returns in by seven days.

But then, the official returns — and there's nothing in that statute that says the official returns have to be completed by seven days — then the official returns as defined in statute to include the result not only of the initial returns, but of the manual recounted votes and of the absentee ballot votes that are not included in those first seven days.

Harding: Justice Shaw?

Shaw: Why shouldn't the secretary of state be the person to set that date instead of a court? Why couldn't the secretary say that, "This is the time frame that I need in order to fulfill my duty of getting the certification in," and set an arbitrary date?

Boies: But, Your Honor, the secretary of state's function is a ministerial function. She is not going to be the person who presides over the contest.

The contest, if there is one, is going to be a contest that is going to be before they were already there and get timely counted in the Electoral College?

I think, Your Honor, you could say — and this is not that different from what we have argued — that as long as the manual recounts will not impair the final certification in time to permit the selection of electors by December 12, that those manual recounts must be included.

That is, the secretary of state's discretion, to the extent that she has any, would be discretion to say, "I need to have the results by this particular date in order to be sure that the results are included by December 12."

Quince: If that's the case then, should we be trying to determine also this whole issue about the faulty chads? Because I would assume that that would be a part of any contest that would be made of the recount. But if we're worried about this time limit, is that something that we should be concerned with now, and is it squarely before this court now?

Boies: Your Honor, I think it is squarely before the court and I think the court must be concerned with it now, because I think that given the particular deadline, the wall, that is set up by the federal provision, that this court needs to act expeditiously to set the standard, because we don't think we have time ...

Quince: And where would we find case law or whatever to tell us what this standard should be?

Boies: Your Honor, I think you find it partly in Florida law, but I think you can also find it from the laws of other states that have dealt with these very same questions.

If you go back into Florida law, the test has always been the intent of the voter and that is written into Section 166, the manual recount provision. It talks about first the counters and then the canvassing board looking at the ballot to determine the intent of the voters.

Quince: So if that's the case, would it be your — would you be telling this court that any mark made by the voter would be evidence of that voter's intent and should be counted as such?

Boies: I think so, Your Honor, and that is really what, for example, the Delahunt decision that we cite in our papers from the Supreme Court of Massachusetts, or the Illinois cases that we cited, or a number of the other cases that we cited have expressly held. That question has never been before this court directly, but that has been dealt with in the cases from other jurisdictions that we've cited that we would hope the court would find persuasive.

In addition, we cited, perhaps for obvious reasons, the statute from Texas, which provided statutory guidelines for defining that.

Pariente: Is the uniformity of how these manual recounts are conducted essential to the integrity of the process or also to the constitutionality of the statute?

Boies: Your Honor, I think it is important to the integrity of the process. I think if you had very wide variations you could raise constitutional problems.

Pariente: Well, for example, if right now in Palm Beach County chads that are not detached at all, but I guess are these dimpled chads, are being counted, but in Broward County they're not counted, then does that say that one vote is being counted in one county and not in the other?

Pariente: If that's an argument, then what do you say to Governor Bush's argument and secretary of state's argument that for those counties that did not have manual recounts but also have punch cards, because I guess not all counties have the punch cards, that if those votes did not get manually recounted that that is unfairly giving certain counties a greater voice in this election than other counties?

Boies: The first thing, Your Honor, is that any candidate could have requested a manual recount in any county, so that the manual recount provision is something that by already been certified have been results that included manual recounts.

Pariente: Do we know in Volusia County whether they used — what standard they used? Is that in the record?

Boies: I do not believe that is in the record, Your Honor.

I would say that I think that it — for the reason that you point out, it is quite important that this court be as specific as possible in terms of the standard to be applied so that we will have uniformity. I also think, Your Honor, that if you concluded that it was essential to avoid unfairness or some kind of overweighting of one county's vote over another county's vote, this court has within its equitable power, to have a statewide recount, if you concluded that that was necessary.

Wells: Well, along that line, I take it then if this court should hold that the 72 hour — the seven-day period was not specifically enforceable, then you would say that there should be a window of opportunity for both sides to request recounts in additional counties?

Boies: I think the court has the power to order that if it believes ...

Wells: Well, what is your position on it?

Boies: Your Honor, we don't think that's necessary, because ...

Wells: So would you try to strictly enforce the 72-hour provision in 166?

Boies: Well, the 72-hour provision in 166 had already passed by the time that the seven-day period had passed ...

Wells: But the certification had not.

Boies: But the certification had not, Your Honor. And it was for that reason that Vice President Gore informally, obviously, he didn't have the power that this court has, but informally proposed, as the court may or may not be aware, that he would be prepared to accept a statewide recount.

We are not urging that upon the court. But certainly that is something that we have indicated that we would accept. And we believe the court has the power to order that or to order, as the court suggests, a window ...

Quince: Well, how do you think a statewide recount would impact on the whole idea of getting these things done before December 12, is it? And aren't we just adding another layer if we order a statewide recount?

Boies: You could be, Your Honor. However, since the recount takes place county by county, it will proceed in parallel.

And since the most populous counties are the ones that are already under way, we believe that those recounts — it would be practical to do those recounts if the court felt it to be desirable.

Shaw: What would be ...

Wells: Mr. Shaw?

Shaw: What would be this court's authority to open up this window of opportunity when it has not been requested within the time frame?

Boies: Your Honor, that was the hesitancy on my part in answering the chief justice's question. I believe that the broad equitable power that this court has under the Constitution to assure that the election results really reflect who got the majority of the votes or a plurality of the votes would enable the court to do that.

The deadline has passed. I think particularly if you had a situation in which both candidates were prepared to accept that, you would have a situation in which the court would have the power.

Shaw: In the answer to the previous question, you indicated that you thought the secretary could set a final date to certify, provided — if it would interfere with her getting the vote in to the Electoral College on time.

What would be her burden to justify this? Could she just say, "I need 10 days to get the vote in," and arbitrarily set that, or could she say, "I need 30 days," and completely close it out?

Boies: Well, Your Honor, this court is, I think, experienced with reviewing the exercise of discretion in lower courts. And I think that when all is required is a ministerial act of preparing the papers to declare the winner, I would think this court would hold that that did not require very much time.

Wells: Well, you keep referring to it as a ministerial act, but under 103.011 doesn't the secretary have a duty to protect Florida's electoral votes by getting the certification made?

Boies: Yes, Your Honor. And what I meant to be saying was that, in order to get that certification made, she needs to have enough time to make that certification. But the fact that the certification is a ministerial act doesn't mean it's not important. It simply means that it's an act that, in our view, can be done relatively quickly, that she doesn't need five or 10 days to do it.

Wells: Thank you.

You're in your rebuttal time.

Boies: Thank you, Your Honor.

Wells: And so, I think the time has now arrived when we would take our 10-minute recess.

I would announce, Mr. Hancock, that the marshal says that the clock went off three-and-a-half minutes too soon for you, so you will have that amount of time of rebuttal.

Thank you. And we'll be in recess for 10 minutes.

(RECESS)

Clerk: Please be seated.

Wells: We'll now hear from the counsel for respondents. And I believe Katherine Harris is the first respondent, represented by Mr. Klock.

Florida Secretary of State Katherine Harris' attorney Joseph P. Klock Jr.: Thank you, Mr. Chief Justice. We are also representing the canvassing board and Commissioner Crawford, who is here as well.

Wells: That's the Elections Commission Canvassing Board under Chapter 102 ...

Klock: Yes. And for ease of confusion, perhaps, Mr. Chief Justice, we can refer to it as the commission.

I think if I could start with something that I think is a point that needs to be addressed. I believe that the problem that is created here really, and as the questions of the court go back and forth second is the contest. And most of what you are being asked to deal with today is the problem that is created by the contest.

And if you think about it, it creates an enormous number of problems as far as the court is concerned, a number of which have been addressed by the different justices. But if we start out from the point that what we have here, the secretary has certified the first election returns that came in; then in between that time and Saturday, when she probably would have certified along with the commission, the overseas ballots, the stay was entered by the court and naturally is respected by both the canvassing board and by the secretary.

But the fact of the matter is that, until such time as the certification is made, the process of contesting the election cannot stand. The question raised both by the chief justice and by Justice Lewis, which is what is the impact of the two statutes, is very clear.

Mr. Boies said that, you know, it's all kind of one thing and you can really handle it one way or the other, but that's not true. For instance, the whole issue of the overseas soldiers' ballots can't be resolved until such time as the election returns are certified and a challenge can be made as to whatever standards are being used to not include those ballots.

There are a number of other things that can't occur until that happens.

And then the suggestion that the Supreme Court can set a date, although they're not willing to even suggest to you what that date should be, comes back to the point of what is it that they really need to have happen here.

For the secretary to be successful, all that has to occur is that the court lifts the stay and affirms or simply lets sit Judge Lewis order. For the petitioners here to succeed, a number of things have to occur.

Wells: But Mr. Klock, let me get you to my concern.

Klock: Yes, sir.

Wells: The concern that I have is that it's not — we have a long-standing policy out of courts of this state, that say that the real parties and interests here are the voters. Now, what I want to know is that what — and if this 112 has a provision which says that some voters votes may be ignored.

And what I am concerned about is, what is the boundaries upon which the secretary or the commission could exercise its discretion and have those voters ignored. And I pose to you that in this particular presidential election, doesn't it revolve around the Electoral College and the fact that the prejudice that is involved here is the prejudice of not allowing Florida's votes to get counted?

Klock: Well, Mr. Chief Justice, the beginning point here is that there are 6 million voters, of course. And the focus here is on 72,000 of them in three selected counties.

The attorney general started out by saying that the attorney general's position is that all the votes in the state of Florida be counted. But that of course is not what is under way at this point.

The problem with respect to the electoral votes in Florida only occurs if the status quo is maintained, if the votes cannot be certified, if the contest procedure cannot begin.

Wells: Well, would they have to be certified today?

Klock: Well ...

Wells: Under the federal scheme, is there a mandatory certification today?

Klock: Well, Mr. Chief Justice, it's governed by Florida law, as far as certification is concerned.

Wells: But what I'm concerned about is the ramifications under the federal statutes, which, as your opposition says here, is December 12, or six days before December 18.

Now, what I want to know is on what date does the secretary take the position that her duty to certify those votes is going to be jeopardized? And what is the basis of that jeopardy if the votes aren't certified on X date?

Klock: Respectfully, Mr. Chief Justice, the secretary is governed by the Florida statutes.

She is mandated to certify the election results seven days after the election, and then to pick up the overseas ballots later.

Now, the question that you're asking, I can't exactly answer, because what you're now balancing is the right of the counting process versus the right of the contest process. Your Honor, I don't know how to answer that question.

Wells: What I'm concerned about is the rights of those voters who may not have their votes counted if we don't honor the recounted votes and the rights of all the voters who might have their rights denied if the certification doesn't get in within the time limit and on the basis that it will be accepted under Title V of the 3 U.S. Code.

Klock: But, respectfully, sir, at this point in time, the only bar to that is the stay order that has been entered by this court. If the stay order is lifted, the votes can be certified. Once the votes are certified, then a contest can take place, if anyone wants to take a contest, and that may have to be done on an expedited basis.

But the fact of the matter is ...

I'm sorry, sir.

Wells: Go ahead.

Klock: The fact of the matter is, is that all of the relief that is being sought here by these folks is basically relief that should be in the context of a contest when it's possible to have a record.

A lot of the questions asked by Justice Pariente that have to do with record kinds of facts, there are no answers to because there, of course, is the most fluid of records in this case.

Wells: Haven't the local canvassing boards followed the statutes in regard to having a request for a recount, and then making a count for three precincts or 1 percent, and then making a determination that on that basis a manual recount would follow?

Klock: Justice Harding ...

Harding: Haven't they followed the statute?

Klock: Justice Harding, what the statute basically says is, you're supposed to certify seven days after the vote is taken. If there is going to be a request — if the secretary has discretion, which Judge Lewis, of course, found that she does, then that discretion has to be exercised either to permit or not permit late filings.

Reasons were given to the secretary. She sent a letter out. She asked for the reasons. They — she promptly responded after applying them against a set of criteria that she had developed to exercise her discretion.

Pariente: When did she develop those criteria?

Klock: You're asking me as a matter of fact, Your Honor? Starting within probably an hour after Judge Lewis entered his decision, she asked for input on the kinds of criteria that would be appropriate for her to exercise her jurisdiction — her discretion.

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