Pariente: Is that rather unusual as for — way for an agency head to come up with decision in this state, to just come up with something within a few hours, as to whether to allow something or not allow something?

Klock: Well, Justice Pariente, I was kind of refreshed because the agency had actually asked for legal advise on it and what the legal standards would be for her to properly exercise her discretion, and she was pushing against a deadline. So I considered it excellent, frankly.

Pariente: But she didn't really exercise her discretion. What was said was that a reason to — that she was not going to recognize as a reason for late filing manual recounts being conducted in accordance with 166. That was no discretion exercise. It was in accordance with her prior legal decision that recounts that were not based on machine errors were not going to be allowed, and that was what she announced the day before.

Klock: Well, Your Honor, the decision — the opinions that come out from the Division of Elections, Mr. Roberts' group, is not exactly the secretary. The secretary is the one that had the obligation under the statute to exercise her discretion in this case.

And what she basically did was, she looked at the various criteria in challenging an election, and she looked at other criteria as well, and she said that a manual recount that is undertaken solely to solve voter error is not the kind of thing that is sufficient to allow a breakdown of that deadline scheme.

Pariente: All right ...

Klock: That was the reasonable exercise of her discretion.

Pariente: Is the secretary saying that the reason that these manual recounts were not going to — or are not going to be allowed is because they're too late; that is, they were not in within seven days after the election?

Klock: Well, two things, Your Honor. First, what she was saying is ...

Pariente: Is that number one?

Klock: Well, as you know, Volusia County complied, with 200,000 voters. In three days they did the recount. And ...

Pariente: So we have within the state's recounts one county that has counted those votes by hand, correct?

Klock: That is correct. And, Justice Pariente, as well, the secretary and the canvassing board have no right to go beyond the certificate that comes from the canvassing board. And Volusia County did a manual recount, irrespective of what the secretary may think legally that she — that the board had the right to do that. Once those returns are certified, the secretary — neither the secretary nor the canvassing board can go behind them.

So this entire problem that we have here today, irrespective of whether you buy into the concept that the secretary has the right to establish standards and has the right to exercise her discretion, which we believe she does both under the case law and as a result of the order she was responding to from Judge Lewis, the fact is this problem could have been resolved if the people asking for a manual recount, right or wrong, had completed the manual recount within the time period set forth, as they did in Volusia County.

Pariente: So the secretary, then, would have counted those votes within the totals, if they had been submitted by November 14 at 5 o'clock?

Klock: Neither the secretary nor the canvassing board has the power not to, Justice Pariente. They would have to do that.

Now, you asked the question earlier as to whether or not there's any history as far as Broward County is concerned. Since of course there's not a record, I can't respond there, but there is one case which is the Broward County v. Hogan case, where the issue went up to the 4th District Court of Appeal on whether or not the canvassing board's decision not to conduct a recount was within their discretion, and they held it was. So I know at least on that one occasion that they did not exercise their right to conduct a recount.

And you have to understand that the position of the secretary simply has to do with her understanding as to how the statutes are written. If you go back to the '88 race between Senator Mack and Lieutenant Governor McKay, the issue there was the problems that had arisen with the mechanical voting machines. That is the reason why the statutory amendments were created.

And if you look through the statute — and taking a respectful exception to the position of the attorney general — wherever you see tabulation, they're basically referring to machine or electromagnetic, or however it's phrased, kinds of review of returns and not actual counting, which is referred to differently.

But the position of the secretary is, if you look at those statutes, you can't simply pull the one subsection with respect to manual recounting out and pretend it's its own section. The fact of the matter is, is that the procedure is that if you have an automatic recount, which of course is done mechanically, you can then ask for — the candidate and the party, not a voter — can ask for a manual recount. The manual recount, you have to go through the 1 percent and the three precincts.

Anstead: Does the secretary, though, play any role in determining whether or not there shall be a manual recount in any county?

Klock: Absolutely not, sir.

Anstead: And so who has the authority and responsibility for that?

Klock: The canvassing board of the county has the responsibility in response to a request from a candidate or a political party to conduct a manual recount, which is this test.

Anstead: Well, under the circumstances that we have here then, is it, in essence, the secretary of state, who has no authority to determine that, overruling a decision by the proper body that has the authority to do that, to do it. Isn't that what the net effect of this is?

Klock: To the contrary, Justice Anstead ...

Anstead: Well, if the secretary is saying, "I'm not going to count the recount" that started very late in the process and at a time in a large county where effectively the recount could not be completed before the seven days were up, isn't that the net effect?

Klock: Justice, I don't know that the recount couldn't be done in that period of time. And of course, we have no trial record to know whether the recount could be done in that time ...

Anstead: Don't we also end up sort of discriminating between small counties and large counties? If we take Dade County, for instance, and Okaloosa County, clearly there is going to be a vast difference in the time that it takes Dade County to do that manual recount compared to a small county. Would you agree?

Klock: Justice Anstead, yes. May I continue?

Anstead: Yes.

Klock: The fact of the matter is, the Florida legislature has all of this in front of it. It has an election code that understands that there is voting, that there's automatic recounting of voting, and that there are provisions for manual counting. They have considered all of that; it is part of the scheme. It has to be done in seven days. There is nothing ...

Anstead: How do we know that they considered this specific issue with reference to a recount that has not started, for instance, until six days after the election, and that they contemplated that in mandating that everything be in in seven days? How do we know that they considered that?

Klock: Well, Justice Anstead, I'm sure they probably didn't consider the fact that someone would commence a recounting when it was ...

Anstead: Well, the scheme allows for that, does it not? The scheme allows for a request for a recount very late in the process.

Klock: If you are permitted to initiative something at any point and time, and it has to be turned in at a certain time, that is the same basic rule that I had in high school with term papers. You can start the term paper the night before, if you want to, but it is unlikely that you'll be able to turn it in the next day when it's due.

Anstead: So by giving that right to initiate the recount at that time, that really is an illusory right. In other words ...

Klock: No, sir.

Anstead: ... that is not really correct in the statute, that you have that much time before the certification of the results, in other words, to make that request?

Klock: You have the seven-day period within which to handle all of the counting of the votes. The initial counting, if you have an automatic recount and if there is going to be a manual recount.

Klock: But the other point, Your Honor, that I think is very important to note is that we're not talking about a manual recount on a statewide basis; it's three selected counties.

Anstead: Let me talk about the seven days, too, and ask for your help, and let's work by way of a hypothetical.

Are you suggesting by the language that has this seven-day deadline, that if we had, for instance, in Dade County, that the election officials down there, after they'd compiled the vote and everything, and they were the only county outstanding, and that there was gross negligence then, that they all went off on vacation to the islands and just let the election returns sit there, and seven days passed, and eight days passed, and nine days, and 11 — you know, and so on, that the secretary of state, because of that seven-day rule then, and the gross negligence of the election officials down there, would simply say, "That's it. Under the language of the legislature, I cannot count the votes from Dade County, the largest county in the state of Florida in the election returns." Is that what the position of the secretary of state is?

Klock: I don't believe so. Of course, that's not the situation we're in now.

Anstead: Well, what is the position?

Klock: There's a case ...

Anstead: When we have a week pass, past the deadline of seven days, we have negligence on the part of the local officials, and they simply have not sent the results up to Tallahassee, what is the obligation of the secretary of state?

Klock: Judge, we don't know that there's a matter of negligence. The court's assuming that.

Anstead: No, I'm saying in my hypothetical to assume it's negligence.

Klock: Well, we know from case law, if it's gross negligence, you know, if it's a matter of marking up ballots or something like that, that the court has specifically held that that can't be held against the voters.

But, Justice Anstead ...

Anstead: What would the secretary of state do? A week has passed, passed the seven-day deadline, what would the secretary of state do?

Klock: If she hadn't noticed that the Dade County results weren't in for a week, I think, as a practical matter, the secretary of state would be a little bit more pro-active, that if the returns aren't in on a certain day, I'm sure inquiry would be made.

If it was clear to the secretary of state that there was gross negligence involved in not getting them in, she's bound by case law to accept them or, Your Honor, it would be raised in the context of a contest.

But if we could get back, respectfully, sir, to the situation that we're in here, the situation we're in here was not caused by the secretary. The difficulty we have here — all we need to do is to be able to certify the election. Once the election is certified, the contest period can begin.

The petitioners are trying to conduct a contest proceeding prior to certification, not for legal reasons, for political reasons.

Pariente: How can a contest occur while the manual recount's still going on? As you just said, we don't know whether there is going to be an issue as to the integrity of how the recount was done, so how can that start before the recount, the manual recount, is completed?

Klock: Because, Justice Pariente, you have to read all the statutes together. And one of the clearest things when you look at the statutes is the mandatory nature of certain actions that have to be taken by the secretary. Not even the petitioners, Your Honor, could come up with some way of balancing between 166 and 168. And what the court is being asked to do is an extensive amount of legislation.

I mean, you're going to have to do away with the seven-day rule, you're going to have to abolish 166, you're going to have to do away with the secretary's discretion. And then the court enters the great universe of chad to decide, on the record that you have, whether or not two corners are enough or three corners are enough ...

Anstead: Well, I thought you said that the seven-day rule does not apply, that the secretary of state has some obligation, if this seven-day period passes, to contact the county and now inquire into the circumstances of why the seven days. And if she determines, for instance, that it's just the negligence of the local officials in failing to send the ballots up, that she can ignore the seven-day time and accept votes.

Klock: Your Honor, I'm not specifically sure what the secretary would do. All I'm saying is the case law says, if it's gross negligence on the part of election officers, that the votes will be counted. We do not have a situation ...

Anstead: But you agree the seven-day period is not absolutely then?

Klock: No, of course it's not absolute. Judge Lewis ruled that there was discretion the secretary had to exercise. And irrespective of how we may interpret 111 and 112, as "shall" or "may," we are operating under the ruling of Judge Lewis.

Anstead: What was the position of the secretary of state going before Judge Lewis, as far as whether or not the seven-day rule was absolute?

Klock: Your Honor, from looking at the record, it appears that they agreed that discretion of the secretary could be appropriate, that the "may" standard would probably trump the "shall" standard. That's my understanding of the position that he took.

I don't know that that legally is correct; that's the position that was taken.

And consequently, when the order came down, they lived with it. And that order, I might add, was perfectly happy — the petitioners were perfectly happy with that until such time as Judge Lewis ruled that the secretary had not abused her discretion.

Wells: Justice Shaw has a question.

Klock: I'm sorry, sir.

Shaw: If the state of Florida has provided a protest procedure, can the secretary of state exercise her discretion under 102.112 so as to frustrate that procedure?

Klock: I'm afraid I don't understand the justice's question exactly. I'm sorry, I don't understand the question.

Shaw: Do you agree that under 102.112 that the secretary has some discretion? That would be your position that ...

Klock: I would agree, Your Honor, that based on the record as it is, and the agreement of the secretary to be bound by that, she has the right to exercise discretion after she establishes standards.

Shaw: Can she exercise that discretion in such a fashion as to frustrate the scheme in which a protest can be lodged?

Klock: No, because the contest is under 168, Your Honor, not under 166.

Shaw: Not a contest, a protest.

Klock: With respect to a recount?

Shaw: Yes.

Klock: Your Honor, all the secretary can do is — she has the right to be able to establish criteria for determining whether or not a late filing will occur. She establishes those criteria drawn from precedents of courts. She then applied the requests against that and found them to be wanting.

As I said before, Your Honor, the entire problem could be solved if the certification had taken place on time because they had complied with the timing.

Quince: But aren't you ...

Klock: That completely avoids ...

Wells: Justice Quince.

Quince: But doesn't that argument really blur the lines between a protest and contest?

Now, under 166, you can contest returns or protest returns within, you know, the 72 hour period or the seven-day period under 166. Isn't that a completely different procedure from 168, which is the election contest? And it seems to me that your argument is blurring those two procedure.

Klock: No. And I apologize if it is, Justice Quince. I think that's exactly the central issue here.

The procedure with respect to certifying an election is, as has been said by the attorney general, mostly ministerial. What has happened here ...

Quince: But once the certification is done, isn't that when the contest comes in?

Klock: Yes, ma'am.

Quince: OK. But the protest is a different matter. You don't have to certify to have a protest.

Klock: We do not have any kind of procedure under Florida law for dealing with a full-fledged contest kind of action prior to certification. That's the difficulty we have here.

And that's the reason why the court is being asked to engage in extensive statutory rewrites, and then the entire issue of how you're going to make judgments with respect to these ballots.

Wells: Mr. Klock, let me follow up on Justice Quince's question. Why wouldn't it be, in this unique circumstance, a better thing to do to wait, and unless there is a specific reason that's going to prejudice Florida's certification to the Electoral College, wait and see to a point and time when the manual recounts are completed?

Wells: Allow those amended certifications to be made, and then there will be a point in time in which a determination can be made as to whether the contests in respect to those are going to jeopardize Florida's electoral vote.

Klock: Mr. Chief Justice, what you're talking about is making a value judgment as between whether or not the rights of 168 trump 166, on behalf of people. There's no suggestion anywhere here in the record that we have a problem with the voting machines or there was any fraud or anything else. What we're trying to do is to deal with the problem of people who did not follow instructions. The instructions were to put the stylus through the hole in the ballot; they did not follow those instructions.

Now, balanced against that, it's being suggested that the entire contest period should be stood on its head and that the secretary of state loses her ability to conduct her constitutional exercises, the legislature loses its ability. The attorney general, for instance, points out all of the states that have elaborate statutes to make judgments on manual recounts. Well, that's wonderful, except the Florida legislature hasn't done that yet. Is this court to do it?

Harding: We've had cases dealing with this issue in Florida since the 1800s. And all of them, in some way, shape or form, come about because voters do not follow the instructions.

And in all of those cases that I have read, when you can look at the ballot, even though it is improperly marked and even though the voter did not follow the instruction, but you can tell the intent of the voter from that ballot, that that vote has to be counted.

Klock: And Mr. Justice Harding, I would suggest to you that all of those cases that you have seen have been a voting contest. And the difficulty we have here, as I say again, the court is being brought into something it need not be brought into. This is not a legal problem; this is a political problem.

If the voting is certified, everyone can then proceed with a contest. The difficulty is the political problem that is created.

Harding: How would you proceed, Mr. Klock — that this matter would be resolved? If is challenged, then we would order a recount or some court would order a recount?

Klock: Could you do that, yes, Your Honor, that's — but you'd have a record, for instance.

Harding: Isn't that discretion given to the canvassing board under the statute?

Klock: The canvassing board is free — I mean, the manual recounts are going on right now. And I believe irrespective of what this court had said, the manual recounts could go on. They may well be material in a later contest.

It doesn't mean that because someone starts a manual recounting process, that the rest of the Florida statutory scheme stands still and waits for them to come back from vacation of whatever it is they're doing.

And the record shows that, in one case, there was somebody off on vacation for four days. Miami-Dade has just started today, maybe, their count after having had, apparently, hearings every couple of days over the last two weeks. It is now — at this point in time, we are almost two weeks beyond the election.

Harding: Isn't part of that, though, that the secretary of state said, "You cannot go forward and have this recount."

Klock: I think the record shows that no one paid any attention to the opinion of the secretary of state, Your Honor. Clearly, in Palm Beach County they didn't; it's in the record in the circuit court that they didn't pay attention. And as far as Broward County is concerned, I don't know precisely what they did or didn't do.

But the issue here — again, this, of course, completely avoids the issue that has not yet been indulged by the court, although it was raised by one of the justices, is how about the folks in the other 64 counties that don't have the benefit of having their ballots flexed and recounted and dropped on the floor and all the other things that are occurring with respect to the ballots in the three counties that are being counted?

Wells: Thank you, Mr. Klock.

Klock: Thank you.

Wells: Your time is up.

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