- The Washington Times - Sunday, November 26, 2000

Last Tuesday's decision by the Florida Supreme Court overruling Secretary of State Katherine Harris' discretion to ignore county canvassing board recounts beyond a seven-day statutory deadline is riddled with flaws. Indeed, both the Florida legislature and the Congress of the United States would be justified in trumping the clearly erroneous court ruling, with superseding state legislation by the former and the rejection of any Gore electoral votes by the latter as provided in the Electoral Count Act.

At issue in Palm Beach County Canvassing Board vs. Harris was the interplay of facially conflicting state election laws. One requires the certification of all county returns by 5 p.m. on the seventh day after an election period, with no commas, semicolons, or question marks: "If the county returns are not received by the Department of State by 5 p.m. of the seventh day following an election, all missing counties shall be ignored, and the results shown by the returns on file shall be certified." A later-enacted law crowns the secretary of state with discretion to extend the seven-day deadline by stipulating that late returns "may be ignored."

The key to resolving the facial conflict between "shall" and "may" is understanding administrative discretion. The concept means that more than one outcome is legally permissible because a balancing of competing legitimate objectives is at work. Florida's secretary of state, for instance, must weigh finality in presidential election results against the elusive quest for absolute correctness in vote counting in determining whether the deadline should be breached. Different secretaries may strike different balances, for instance in the present cases of Palm Beach, Broward and Miami-Dade counties, but both would be operating within their legal discretion.

In other words, Mrs. Harris' discretionary decision against extensions for the three did not suggest a successor could not legally grant extensions in comparable situations by giving less weight to finality. The apparent conflict between "shall" and "may" thus disappears like the Cheshire cat, and the companion laws are both given life.

In Palm Beach, Mrs. Harris' discretion was irreproachable. She did not mulishly insist that extensions would never be permitted, but identified voter fraud, substantial noncompliance with statutory election procedures, a mechanical malfunction of the voting tabulation system, or an act of God as extenuating circumstances that would overcome the urgency of finality. The counties seeking extensions, which had then opted for manual recounts as permitted by state law, argued only the physical impossibility of satisfying the statutory deadline because of the volume of ballots involved. Mrs. Harris found that justification for subordinating finality unconvincing, a conclusion enormously fortified by the improbability that subjective manual recounts of dimpled and hanging chads increases rather than impairs the accuracy of election results.

The Florida Supreme Court, nevertheless, rebuked the secretary. In soaring prose, it loftily announced that in election cases, "We consistently have adhered to the principle that the will of the people is the paramount consideration." But in appointing presidential electors under the United States Constitution, which has been binding in Florida at least since the Civil War, the will of state legislatures is supreme. Article II, section 1, clause 2 declares that electors in each state shall be appointed "in such manner as the legislature thereof may direct." Many state legislatures directly appointed electors for years after the "Jacksonian" democratic revolution, and South Carolina adhered to the practice through 1856. Thus, the Florida Supreme Court errantly summoned the people's right to vote as a guiding interpretive principle.

It similarly stumbled in declaring that Mrs. Harris' discretion contravened the "plain meaning" of the statute permitting a county canvassing board manual recount of "all ballots." The plain meaning, when read as part of a statutory ensemble and not in isolation, is that manual recounts completed within one week are automatically authorized (as was done in Volusia County), and that they may be permitted beyond that date by a secretary who is more concerned than Mrs. Harris was about error-free tabulations as opposed to finality. Contrary to the court's assertion, ratifying her discretion in Palm Beach would not have debased the manual recount option into an ink blot.

Florida law imposes a fine of $200 on each member of a county canvassing board for each day of tardiness in filing returns. That penalty, said the court, adequately deters local boards from dilatoriness, and thus to ignore the late returns themselves would be a gratuitous slap at the rights of voters. But Mrs. Harris acted in the interest of electoral finality in sticking to a seven-day deadline, not to deter board slothfulness. The court also worried that boards would decline to file late returns at all if the consequence were individual fines. But the same can be said of the court's self-proclaimed deadline of today, Nov. 26, in its Palm Beach remedy, which may have deterred Miami-Dade County from a complete manual recount.

From the penumbras and emanations of Florida's Election Code, the Florida Supreme Court extracted the proposition that recounted returns must always be accepted, no matter how belated, unless "the returns are submitted so late that their inclusion will preclude a candidate from contesting the certification or preclude Florida's voters from participating fully in the electoral process."

But isn't that tantamount to judicial nullification of the statutory seven-day deadline?



Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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