No. 00-836 IN THE Supreme Court of the United States GEORGE W. BUSH, Petitioner, v. PALM BEACH COUNTY CANVASSING BOARD, et al., Respondents. On Writ Of Certiorari To The Supreme Court Of Florida JOINT APPENDIX THEODORE B. OLSON LAURENCE H. TRIBE Counsel of Record Counsel of Record GIBSON, DUNN & CRUTCHER LLP 2384 N. Bay Road 1050 Connecticut Avenue, N.W. Miami, FL 33140 Washington, D.C. 20036 (305) 673-2922 (202) 955-8500 Counsel for Petitioner Counsel for Gore Respondents Petition for Writ of Certiorari Filed November 22, 2000 Certiorari Granted November 24, 2000 i TABLE OF CONTENTS Page Relevant Docket Entries in Supreme Court of Florida, Case Nos. SC00-2346, SC00-2348 & SC00-2349 ..................................................... JA-1 Relevant Docket Entries in Circuit Civil Court of Leon County, Florida CV-00-02700 ............. JA-7 Letter from Miami-Dade County Canvassing Board to Secretary of State (Nov. 15, 2000), Exhibit G to Emergency Motion (No. 00- 2700) ................................................................ JA-12 Letter from Collier County Canvassing Board to Secretary of State (Nov. 15, 2000), Exhibit G to Emergency Motion (No. 00-2700) .......... JA-14 Letter from Broward County Canvassing Board to Secretary of State (Nov. 15, 2000), Ex- hibit G to Emergency Motion (No. 00-2700) .. JA-16 Letter from Palm Beach County Canvassing Board to Secretary of State (Nov. 15, 2000), Exhibit G to Emergency Motion (No. 00- 2700) ................................................................ JA-19 Secretary responses: a. Letter from Secretary of State to Palm Beach County Canvassing Board (Nov. 15, 2000), Exhibit H to Emer- gency Motion (No. 00-2700) .................... JA-21 b. Letter from Secretary of State to Mi- ami-Date County Canvassing Board (Nov. 15, 2000), Exhibit H to Emer- gency Motion (No. 00-2700) .................... JA-26 ii c. Letter from Secretary of State to Bro- ward County Canvassing Board (Nov. 15, 2000), Exhibit H to Emer- gency Motion (No. 00-2700) .................... JA-30 d. Letter from Secretary of State to Collier County Canvassing Board (Nov. 15, 2000), Exhibit H to Emergency Motion (No. 00-2700)............................................ JA-35 Memorandum from Division of Elections to Su- pervisors of Elections regarding Amended Certification of Returns (Nov. 14, 2000), Exhibit E to Emergency Motion (No. 00- 2700) ................................................................ JA-39 Attorney General Opinion 00-65 (Nov. 14, 2000), Exhibit D to Emergency Motion (No. 00-2700)........................................................... JA-40 Letter from Palm Beach County Canvassing Board to Division of Elections (Nov. 13, 2000), Exhibit A to Emergency Petition for Extraordinary Writ (No. SC00-2346).............. JA-47 Division of Elections Opinion 00-10 (Nov. 13, 2000), Exhibit B to Emergency Motion (No. SC00-2700)...................................................... JA-49 Division of Elections Opinion 00-11 (Nov. 13, 2000), Exhibit C to Emergency Motion (No. SC00-2700)...................................................... JA-52 Division of Elections Opinion 00-12 (Nov. 13, 2000), in Exhibit E to Emergency Petition (No. SC00-2345), itself Exhibit F to Emer- gency Motion (No. 00-2700) ........................... JA-54 Division of Elections Opinion 00-13 (Nov. 13, 2000), Exhibit D to Emergency Petition (No. SC00-2345), itself Exhibit F to Emer- gency Motion (No. 00-2700) ........................... JA-56 iii Statement of Katherine Harris, Secretary of State of Florida (Nov. 13, 2000), Exhibit 2 to Nov. 13, 2000 Hearing, at tab 4 of Ap- pendix to Initial Brief of Albert Gore, et al. (Nos. SC00-2346, SC00-2348, & SC00- 2349) ................................................................ JA-59 Letter from Palm Beach County Canvassing Board to Attorney General (Nov. 13, 2000), Exhibit G to Emergency Petition (No. SC00-2345), itself Exhibit F to Emergency Motion (No. 00-2700)...................................... JA-63 Letter from Palm Beach County Canvassing Board to Division of Elections (Nov. 12, 2000), Tab 1 of Appendix to Answer Brief of the Secretary of State, et al. (Nos. SC00- 2346, SC00-2348, SC00-2349)........................ JA-65 Florida Department of Elections Report of Voter Turnout (Nov. 7, 2000), Tab 4 of Ap- pendix to Answer Brief of the Secretary of State, et al. (Nos. SC00-2346, SC00-2348, SC00-2349)...................................................... JA-67 * * * * The following judgments, memoranda, orders and stat- utes have been omitted in printing this joint appendix because they appear on the following pages of the ap- pendix to the printed Petition for a Writ of Certiorari: Opinion of the Supreme Court of Florida (Nos. SC00-2346, SC00-2348, & SC00-2349) (Nov. 21, 2000) ..................................................... 1a Stay Order of the Supreme Court of Florida (Nos. SC00-2346, SC00-2348, & SC00- 2349) (Nov. 17, 2000) ........................................ 39a Leon County Circuit Court Order Denying Emergency Motion (No. 00-2700) (Nov. 17, 2000) .................................................................... 42a iv Interim Order of the Supreme Court of Florida (No. SC00-2346) (Nov. 16, 2000) ...................... 41a Leon County Circuit Court Order Granting in Part and Denying in Part Motion for Tem- porary Injunction (No. 00-2700) (Nov. 14, 2000) .................................................................... 44a Fla. Stat. § 102.111..................................................... 51a Fla. Stat. § 102.112..................................................... 51a Fla. Stat. § 102.141..................................................... 52a Fla. Stat. § 102.166..................................................... 53a Fla. Stat. § 102.168..................................................... 56a Fla. Stat. § 106.23....................................................... 58a * * * * The following U.S. Code sections and U.S. Constitution articles have been omitted in printing this joint appendix because they appear on the following pages of the printed Petition for a Writ of Certiorari: 3 U.S.C. § 5 ....................................................................2 U.S. Const., art. II...........................................................3 JA-1 SUPREME COURT OF FLORIDA Case No. SC00-2346 Palm Beach County Canvassing Board, et al. v. Katherine Harris, et al. RELEVANT DOCKET ENTRIES Date Description 11/15/00 PETITION-PROHIBITION Filed By: PT Palm Beach County Canvass- ing Board By: PT Bruce Rogow 0067999 11/15/00 MOTION-INTERVENE Filed By: MR Hon. George W. Bush By: ME Barry Richard 0105599 Order: Order-Response/Reply Requested Notes: Of George W. Bush (O&9) 11/15/00 MOTION-INTERVENE Filed By: MP Broward County Canvassing Board By: MP Edward A. Dion 267732 Order: Order-Response/Reply Requested Notes: By Broward County Canvassing Board's & The Broward County Supervi- sor of Elections' Motion to Intervene and/or To Join in Emergency Proceed- ings; Alternatively, Motion To Consoli- date, with Diskette 11/15/00 MOTION-INTERVENE Filed By: MP Hon. Albert A. Gore, Jr. By: MP W. Dexter Douglass 0020263 Order: Order-Response/Reply Requested JA-2 Date Description Notes: Of Albert A. Gore and the Florida Democratic Executive Committee, with Diskette 11/16/00 RESPONSE Filed By: MR Hon. George W. Bush By: ME Barry Richard 0105599 Notes: Of the Intervenor George W. Bush to Petitioner's Emergency Petition for Ex- traordinary Writ (O&9, with Diskette) 11/16/00 RESPONSE Filed By: RS Hon. Katherine Harris By: Deborah K. Kearney 0334820 Notes: Of Katherine Harris, as Secretary of State, to the Emergency Petition for Ex- traordinary Writ Filed by the Palm Beach County Canvassing Board (O&7, with Diskette); 11/16/00 Filed Amended Re- sponse (O&9, with Diskette) 11/17/00 ORDER-OTHER SUBSTANTIVE Notes: Stay Order ­ Enjoining Respondent From Certifying the Results of the 11/07/2000 Presidential Election Until Further Order of this Court; It Is Not the Intent of This Order To Stop the Count- ing and Conveying to the Secretary of State the Results of Absentee Ballots or Any Other Ballots ­ To "View" Order See SC00-2348 11/21/00 DISP-DISMISSED MISC. Manner: Order by Judge 11/21/00 MANDATE Notes: As to SC00-2348 & SC00-2349 (cc: Couns/DCA-1) JA-3 SUPREME COURT OF FLORIDA Case No. SC00-2348 Volusia County Canvassing Board, et al. v. Katherine Harris, et al. RELEVANT DOCKET ENTRIES Date Description 11/17/00 CERTFD JUDGMENT FROM TRIAL COURT 11/17/00 ORDER-OTHER SUBSTANTIVE Notes: Stay Order ­ Enjoining Respondent from Certifying the Results of the 11/07/00 Presidential Election Until Fur- ther Order of this Court; It Is Not the In- tent of This Order To Stop the Counting and Conveying to the Secretary of State the Results of Absentee Ballots or Any Other Ballots 11/17/00 ORDER-ORAL ARGUMENT CALEN- DAR/BRF SCHED Notes: Cases Consolidated for All Appellate Purposes (SC00-2346, SC00-2348, SC00-2349); Initial Brief Due by 2:00 PM 11/18/00, Answer Brief Due by 12:00 Noon 11/19/00; Reply Brief Due by 3:00 P.M. 11/19/00 & ROA Due by 12:00 Noon 11/18/00 (To "View" Order See SC00-2346) JA-4 Date Description 11/18/00 INITIAL BRIEF-MERITS Notes: Al Gore, Jr. & Florida Democratic Party (O&7 w/Disk) 11/18/00 ORDER-OTHER SUBSTANTIVE Notes: Volusia County Canvassing Board's Notice of Voluntary Dismissal Is Ap- proved & Volusia County Canvassing Board Is Hereby Dismissed as a Party in the Above Case 11/18/00 INITIAL BRIEF-MERITS Notes: Broward County Canvassing Board/ Broward County Supervisor of Elections (O&7 w/Disk) 11/19/00 ANSWER BRIEF-MERITS Filed By: AE Hon. George W. Bush By: AE Barry Richard 0105599 Notes: O&7 w/Disk 11/21/00 DISP-REVERSED Manner: Per Curiam Release To West: 11/21/00 Pages: 43 Notes: Trial Court's Orders; No Mot/Rehear- ing Allowed. 11/21/00 MANDATE Notes: cc: Couns/DCA-1 JA-5 SUPREME COURT OF FLORIDA Case No. SC00-2349 Florida Democratic Party v. Katherine Harris, et al. RELEVANT DOCKET ENTRIES Date Description 11/17/00 CERTFD JUDGMENT FROM TRIAL COURT Filed By: AA Florida Democratic Party By: AA Karen A. Gievers 0262005 Notes: With Order from DCA Certifying Case to This Court and Order from Cir- cuit Court Denying Emerg. Mot. To Compel Compliance with and for En- forcement Of Injunction 11/17/00 ORDER-ORAL ARGUMENT CALEN- DAR/BRF SCHED Notes: Cases Consolidated for All Appellate Purposes (SC00-2346, SC00-2348, SC00-2349); Initial Brief Due by 2:00 PM 11/18/00, Answer Brief Due by 12:00 Noon 11/19/00, Reply Brief Due by 3:00 P.M. 11/19/00 & ROA Due by 12:00 Noon 11/18/00 (To "View" Order See SC00-2346) JA-6 Date Description 11/21/00 DISP-REVERSED Manner: Per Curiam Release to West: 11/21/2000 Pages: 43 Notes: Trial Court's Orders; No Mot/Rehear- ing Allowed. . . . 11/21/00 MANDATE Notes: cc: Couns/DCA-1 JA-7 CIRCUIT CIVIL COURT FOR COUNTY OF LEON Case No. CV00-02700 Michael McDermott, et al. v. Katherine Harris, et al. DOCKET ENTRIES Date Description 11/13/00 Complaint 11/13/00 Plaintiff Motion for Temporary Restraining Order and Preliminary Injunction 11/13/00 Plaintiff's Memorandum of Law in Support of Motion for Temporary Restraining Order and Preliminary Injunction 11/13/00 Motion To Intervene of George W. Bush 11/13/00 Notice of Appearance by Harold McLean 11/13/00 Notice of Appearance by Bill Bryant for Bob Crawford 11/13/00 Motion of Al Gore To Intervene 11/14/00 Notice of Supplemental Authority 11/14/00 Defendants' Notice of Supplemental Author- ity 11/14/00 Order Granting in Part Denying in Part Mo- tion for Temporary Injunction F&E 11/14/00 Matt Butler's Supplemental Memorandum of Law in Support of Motion To Dismiss and/or To Deny Preliminary Injunction JA-8 Date Description 11/14/00 Defendants' Memorandum in Opposition to Motion for Temporary Restraining Order and Preliminary Injunction 11/14/00 Defendants' Notice of Supplemental Author- ity 11/14/00 Motion To Intervene of the State Executive Committee of the Florida Democratic Party 11/14/00 Matt Butler's Petition To Intervene and Mo- tion To Dismiss Complaint, or in the Alterna- tive, To Deny Plaintiffs' Motion for Tempo- rary Injunction 11/14/00 True Copy of DE 00-10 Deadline for Certifi- cation on County Results/Katherine Harris, Secretary of State 11/14/00 Court Exhibits 1, 2, 3 and 4 11/14/00 Appeal to District Court 11/15/00 Canvassing Board for Palm Beach County Florida Notice of Joinder of Appeal 11/15/00 Canvassing Board for Palm Beach County Fla Notice of Joinder of Appeal Original (Fax Copy Was Recorded) 11/16/00 Emergency Motion of Democratic Party of Fla and Vice President Al Gore To Compel Compliance with and for Enforcement of In- junction (with Exhibits) 11/16/00 DCA No:1D00-4467 11/16/00 Motion To Intervene Canvassing Board of Broward County 11/16/00 Notice of Supplemental Filing 11/16/00 Notice of Filing Supplemental Authority JA-9 Date Description 11/16/00 Memorandum in Opposition to Movants Emergency Motion of Democratic Party of Fla and Vice President Al Gore To Compel Compliance with and for Enforcement of In- junction 11/16/00 Notice of Filing Order Dissolving Injunction, Requiring Certification of Returns, Permit- ting Manual Recount of Returns upon the Discretion of the Palm Beach County Elec- tions Canvassing Commission, and Direc- tions to the Secretary of State 11/16/00 Motion of Democratic Party of Florida and Vice President Albert Gore To Supplement the Record 11/16/00 Notice of Second Supplemental Filing 11/16/00 Defendant Katherine Harris' Memorandum of Law 11/17/00 Order Denying Emergency Motion To Com- pel Compliance with and for Enforcement of Injunction 11/17/00 Appeal to District Court 11/17/00 Intervenors' Appeal to District Court F&E 11/17/00 Certified Copy of Notice of Appeal Sent to DCA 11/17/00 Certified Copy of Notice of Appeal Sent to DCA 11/18/00 Appeal Record Prepared 11/18/00 Index 11/18/00 Record Delivered to SC 11/20/00 Supreme Court Order JA-10 Date Description 11/20/00 Order Accepting Jurisdiction Setting Oral Argument and Setting Briefing Schedule 11/20/00 Stay Order 11/20/00 Notice of Substitution of Counsel 11/20/00 Appendix to Initial Brief of Albert Gore, Jr. and the Florida Democratic Executive Com- mittee (Copy of Filing with the Supreme Court) 11/20/00 Joint Brief of Petitioners/Appellants Al Gore, Jr. and Florida Democratic Party (Copy of Filing with Supreme Court) 11/20/00 Canvassing Board for Palm Beach County, Florida Notice of Joinder of Appeal 11/20/00 Canvassing Board for Palm Beach County, Florida Notice of Joinder of Appeal 11/20/00 Motion To Allow Demonstrative Exhibit of Petitioners/Appellants Al Gore, Jr. and Flor- ida Democratic Party (Copy of Document Filed with Supreme Court) 11/21/00 Proceedings (Copy) 11/21/00 Appendix Joint Reply Brief of Petition- ers/Appellants Al Gore, Jr. and Florida De- mocratic Party (Copy) 11/21/00 Response to Motion To Modify Oral Argu- ment Time Apportionment (Copy) 11/21/00 Reply Brief of Petitioners/Appellants Al Gore, Jr. and Florida Democratic Party (Copy) 11/21/00 DCA Order, The Above Cases Are Consoli- dated JA-11 Date Description 11/21/00 DCA Order, On the Court's Own Motion, It Is Hereby Certified in Accordance with Flor- ida Rule of Appellate Procedure 9.125 That This Appeal Requires Immediate Resolution by the Supreme Court of Florida Because the Orders on Appeal Present Issues Which Are of Great Public Importance 11/21/00 DCA No:1D00-4501 11/21/00 DCA No:1D00-4506 11/22/00 Supreme Court Ruling 11/22/00 Acknowledgment of New Case (Copy) JA-12 METROPOLITAN DADE COUNTY, FLORIDA Office of the Supervisor of Elections November 15, 2000 Honorable Katherine Harris Secretary of State 8802, The Capitol 400 South Monroe Street Tallahassee, FL 32399-0250 Dear Secretary Harris: After a careful review of the written filings, exhibits and presentation of oral argument of the requesting party, the Democratic party, as well as the Republican party's response and all other interested persons, the Miami-Dade Canvassing Board exercised its discretion and unanimously voted to conduct a manual recount of three precincts selected by the requesting party compris- ing 1% of the vote as provided for pursuant to Florida Statute 102.166. The Miami-Dade County Canvassing Board urges you to accept the Supplemental Certificate of Results for the Office of President of the United States. These sup- plemental votes are a result of the Canvassing Board's decision to hand count three precincts. The manual re- count of the three precincts was completed at approxi- mately 8:00 p.m. on November 14, 2000. The Supple- mental Certificate of Results will be faxed to the Divi- sion of Elections prior to 2:00 p.m. on Wednesday, No- vember 15, 2000 and an original certification will be sent to the Division of Elections such that it will be re- ceived by that office on November 16, 2000. The Miami-Dade County Canvassing Board be- lieves it is imperative that the votes for the Office of President of the United States contained in the Supple- mental Certificate of Results be added to the vote totals of the Board's Certificate of Results dated November 9, 2000. JA-13 Please contact David C. Leahy, Supervisor of Elec- tions for Miami-Dade County, at 305-375-3150 if you have any questions regarding this request or the Sup- plemental Certificate of Results. Sincerely, MIAMI-DADE CANVASSING BOARD /s/ County Court Judge LAWRENCE D. KING Chairperson /s/ County Court Judge MYRIAM LEHR Substitute Member /s/ Supervisor of Elections DAVID C. LEAHY Member cc: L. Clayton Roberts, Director Division of Elections JA-14 JENNIFER EDWARDS SUPERVISOR OF ELECTIONS Collier Government Complex 3301 Tamiami Trail East, Building B Naples, Florida 34112-4902 Telephone: 941/774-6450 Fax: 941/774-9468 www.co.collier.fl.us November 15, 2000 VIA FAX & FED EX The Honorable Katherine Harris Secretary of State Florida Department of State Division of Elections The Capital, Room 1801 Tallahassee, Florida 32399 Honorable Katherine Harris, On November 14, 2000, as Collier County Supervi- sor of Elections Employees were preparing the ballot envelopes of this November 7, 2000 General Election for storage, we performed a post election audit of all en- velopes to confirm all envelopes were empty. During this audit, we found 24 ballots had not been removed from the envelope in which they were received, although accepted and opened prior to the election, but were not counted. These 24 ballots represent a cross section of voters of several political parties upon review of the un- opened ballot envelopes. An additional ballot was received October 18, 2000 and accepted. Upon opening, it was ascertained to be a ballot card for the first primary election. Upon further investigation of this ballot, it was determined that the voter had voted for the general election using a first primary ballot card. We provide this for your information; we are not re- questing a manual recount of ballots for this recent Gen- JA-15 eral Election. We do inquire if the Canvassing Board of Collier County Florida may provide an amended recount certification of Colliers ballots by merely adding these inadvertently omitted absentee ballots to the total ballot counts already certified and provided. If this amended recount is approved, the count of these 25 ballots will take place on Friday, November 17, 2000 at 2 p.m. in the Elections Office, M.L. King Build- ing, 3301 Tamiami Trail, Naples, Florida 34104. This will occur at the same meeting at which our overseas ballots will be canvassed, however, they will be certified separately. Sincerely, /s/ Jennifer J. Edwards Supervisor of Elections Collier County JA-16 CANVASSING BOARD BROWARD COUNTY, FLORIDA 201 S.E. 6th Street Room 6760 Ft. Lauderdale, FL 33301 November 15, 2000 The Honorable Katherine Harris State of Florida Secretary of State The Capitol Room 1801 Tallahassee, FL 32399-0250 Via facsimile ­ (850) 488-1768 RE: Request of Broward County Canvassing Board to Amend Certification of County Returns After November 14, 2000 Dear Secretary Harris: This letter is in response to your November 14, 2000 memorandum in which you required the Broward County Canvassing Board (the "Board") to submit a written statement of facts and circumstances justifying an amended certification of county returns. The Board has concluded that the limited manual recount to date indicates an error in the vote tabulation which could af- fect the outcome of the election, requiring all manual recount of the ballots. The Board states the following additional facts and circumstances that justify an amended certification: 1. Extremely large voter turnout, and the resulting ballots cast, dramatically increased the time required for the initial tabulation. 2. This Board, representing voters in the second largest county in Florida, needs additional time to com- plete all necessary tabulation, and should be afforded JA-17 more time than boards representing voters in less- populated counties. 3. The large number of ballots has created addi- tional logistical problems, requiring that ballots be moved to an alternate location for further tabulation. The Supervisor's location can accommodate a very lim- ited number of counting teams. 4. The Board has encountered significant periods of delay, including: A. The actions of the Board have been materially impacted by numerous lawsuits, including lawsuits filed in state circuit courts in Broward County, Palm Beach County and Leon County, and in federal court in both the Southern District and Middle District of Florida. B. The actions of the Board have been materially impacted by conflicting opinion letters issued by Cabi- net officers. On November 13, 2000, an opinion letter was issued by the Director of the Division of Elections, on behalf of the Secretary of State. On November 14, 2000, a conflicting opinion letter was issued by the Of- fice of the Attorney General. These opinion letters im- pacted the Board's decision-making process regarding a full manual recount and further impeded the Board's ability to proceed more expeditiously. C. One of the members of the Board, Supervisor of Elections Jane Carroll, was out of state on a pre-planned family holiday and therefore unavailable from Novem- ber 9, 2000 through November 12, 2000. D. The Veterans' Day holiday, observed in Bro- ward County by different governmental agencies on ei- ther November 10, 2000 or November 13, 2000, further limited the Board's ability to act. E. The Board was required by state law to conduct an automatic recount prior to determining the necessity of a full manual recount. JA-18 Based on these facts and circumstances, the Board voted today to begin a full manual recount. The Board expects to complete the recount by 5:00 p.m. on Mon- day, November 20, 2000. In accordance with your memorandum, the Board will advise you in the future of any change in relevant facts and circumstances regard- ing this recount, including the estimated completion time. Please feel free to contact me with any question or concerns. Respectfully submitted, /s/ Robert W. Lee County Court Judge Chair, Broward County Canvassing Board JA-19 November 15, 2000 The Honorable Katherine Harris Secretary of State The Capitol Tallahassee, FL 32399-0250 RE: Amended certification of returns Dear Secretary Harris: This letter is in response to your request for a writ- ten statement of the facts and circumstances which would necessitate a change to be made in the final certi- fication of the statewide vote based on the results of Palm Beach County's manual recount of all the ballots cast in Palm Beach County for the offices of President and Vice President. The Palm Beach County Canvassing Board has con- ducted a machine recount of the ballots and a limited manual recount of one percent of the total votes cast in accordance with Section 102.166(4)(d), Florida Statutes. The limited manual recount produced different results than the machine recount. The machine recorded ap- proximately 10,000 undervotes. As stated in the Can- vassing Board's Petition for Extraordinary Writ, it elected to conduct a manual recount "[b]ecause the re- sults could affect the outcome of the election." See, § 102.166(5), Fla. Stat. On Sunday, November 12, 2000, the Canvassing Board voted to conduct a manual recount of all the bal- lots cast in Palm Beach County for the offices of Presi- dent and Vice-President pursuant to the authority granted to it under Section 102.166(5)(c), Florida Stat- utes. As you are aware, the Canvassing Board also voted to seek advisory opinions from the Division of Elections and the Attorney General regarding the proper interpretation of Section 102.166(5), Florida Statutes. The opinions were conflicting: accordingly, the Can- vassing Board is currently seeking to an adjudication by JA-20 the Florida Supreme Court to resolve the conflicting opinions on the question of whether the Canvassing Board may, under the above-referenced circumstances, conduct a manual recount of the votes cast for President and Vice President. The Canvassing Board has voted to suspend its manual recount pending the resolution of this issue and other issues by the Florida Supreme Court. A manual recount of four precincts, which accounts for approximately one percent of the total votes cast in Palm Beach County, resulted in a difference in the vote totals. The 4695 ballots manually recounted in four pre- cincts resulted in a total gain of 33 votes for Vice Presi- dent Al Gore and 14 votes for Governor George W. Bush, which is a net gain of 19 votes for Vice President Al Gore. Clearly, the results of the manual recount could affect the outcome of this very close presidential election if the manual recounts in the other precincts also vary in this degree from the machine counts. Sincerely, /s/ The Honorable Charles Burton, County Court Judge, 15th Judicial Circuit Chairperson, Palm Beach County Canvassing Board JA-21 FLORIDA DEPARTMENT OF STATE Katherine Harris Secretary of State November 15, 2000 Honorable Charles Burton County Court Judge Chair, Palm Beach County Canvassing Commission Palm Beach County Courthouse West Palm Beach, Florida 33401 RE: Request of Palm Beach County Canvassing Board to Amend Certification of County Returns After November 14, 2000 Statutory Deadline Dear Chairman Burton: I am in receipt of your letter of today's date in which you submitted a written statement of facts and circumstances relative to the request of the Palm Beach County Canvassing Board ("Board") to amend its certi- fication of county election returns subsequent to the statutory deadline set forth in § 102.112, Florida Stat- utes. As the Board is aware, § 102.112, Florida Statutes, requires the Board to file its county election returns with the Department of State by 5 p.m. on the 7th day follow- ing the general election. Also, § 102.141(6) requires the Board to file at that time a report with the Division of Elections on the conduct of the election. That deadline expired at 5 p.m. yesterday, November 14, 2000. I also am in receipt of your report filed with the Division of Elections. Notwithstanding that statutory deadline, the Honor- able Terry P. Lewis, Circuit Judge, Second Judicial Dis- trict, Leon County, entered an Order on November 14, 2000, directing me to withhold determination as to whether or not to ignore late-filed returns until I have given due consideration to all relevant facts and circum- stances consistent with the sound exercise of discretion. There are no express statutory standards by which to JA-22 evaluate the facts and circumstances associated with a late filing of county election returns. Thus, I have con- cluded that the appropriate standards for determining whether to exercise discretion to accept or reject election results filed subsequent to the statutory deadline are those standards utilized by the Florida courts in deciding whether or not to uphold a challenged election. Those criteria are as follows: Facts & Circumstances Warranting Waiver of Statutory Deadline 1. Where there is proof of voter fraud that affects the outcome of the election. In Re Protest of Election Re- turns, 707 So. 2d 1170, 1172 (Fla. 3d DCA 1998); Bro- ward County Canvassing Bd. v. Hogan, 607 So. 2d 508, 509 (Fla. 4th DCA 1992). 2. Where there has been a substantial noncompliance with statutory election procedures, and reasonable doubt exists as to whether the certified results expressed the will of the voters. Beckstrom v. Volusia County Can- vassing Bd., 707 So. 2d 720 (Fla. 1998). 3. Where election officials have made a good faith ef- fort to comply with the statutory deadline and are pre- vented from timely complying with their duties as a re- sult of an act of God, or extenuating circumstances be- yond their control, by way of example, an electrical power outage, a malfunction of the transmitting equip- ment, or a mechanical malfunction of the voting tabula- tion system. McDermott, et. al. v. Harris, Case No. 00- 2700, (Second Cir.), November 14, 2000, Order of Judge Terry P. Lewis. Facts & Circumstances Not Warranting Waiver of Statutory Deadline 1. Where there has been substantial compliance with statutory election procedures and the contested results relate to voter error, and there exists a reasonable expec- tation that the certified results expressed the will of the JA-23 voters. Beckstrom v. Volusia County Canvassing Bd., 707 So. 2d 720 (Fla. 1998). 2. Where there exists a ballot that may be confusing because of the alignment and location of the candidates' names, but is otherwise in substantial compliance with the election laws. Nelson v. Robinson, 301 So. 2d 508, 511 (Fla. 2d DCA 1974) ("mere confusion does not amount to an impediment to the voters' free choice if reasonable time and study will sort it out.") 3. Where there is nothing "more than a mere possibil- ity that the outcome of the election would have been ef- fected." Broward County Canvassing Bd. v. Hogan, 607 So. 2d 508, 510 (F1a. 4th DCA 1992). Facts and Circumstances Alleged By Board For purposes of determining whether to exercise my discretion to accept or reject late-filed election returns, I have considered all of the facts and circumstances set forth in your letter of today's date and assumed that they are true. The Board has alleged that it conducted a ma- chine recount and a limited manual recount of one per- cent of the total votes cast and that the two recounts pro- duced "different results than the machine recount." The Board has alleged that "the machine recorded approxi- mately 10,000 undervotes." And, the Board alleged that it has received conflicting opinions from the Division of Elections and the Attorney General regarding the proper interpretation of § 102.166(5), Florida Statutes, and that the Board is seeking adjudication by the Florida Su- preme Court to resolve the conflicting opinions on whether the Board may conduct a manual recount under the law. Finally, the Board alleged that the results of a manual recount could affect the outcome of the election. In its report filed with the Division of Elections, the Board responded in the negative to the question of whether the county "had any problems which occurred as a result of equipment malfunctions either at the pre- cinct level or at a counting location." In this report, the JA-24 Board also noted that it would provide additional details regarding "difficulties or unusual circumstances encoun- tered by an election board or canvassing board," and "problems which the canvassing board feels should be made a part of the official election record." Application or Criteria to Alleged Facts and Circumstances The Board has not alleged any facts or circum- stances that suggest the existence of voter fraud. The Board has not alleged any facts or circumstances that suggest that there has been substantial noncompliance with the state's statutory election procedures, coupled with reasonable doubt as to whether the certified results expressed the will of the voters. The Board has not al- leged any facts or circumstances that suggest that Palm Beach County has been unable to comply with its elec- tion duties due to an act of God, or other extenuating circumstances that are beyond its control. The Board has alleged the possibility that the results of the manual recount could affect the outcome of the election if cer- tain results obtain. However, absent an assertion that there has been substantial noncompliance with the law, I do not believe that the possibility of affecting the out- come of the election is enough to justify ignoring the statutory deadline. Furthermore, I find that the facts and circumstances alleged, standing alone, do not rise to the level of extenuating circumstances that justify a decision on my part to ignore the statutory deadline imposed by the Florida Legislature. JA-25 For the above-described reasons, I hereby decline to exercise any authority I may possess pursuant to § 102.112, Florida Statutes, to accept election results re- ported by the Board after the statutory deadline of 5 p.m., November 14, 2000. Respectfully submitted, /s/ Katherine Harris Secretary of State JA-26 FLORIDA DEPARTMENT OF STATE Katherine Harris Secretary of State November 15, 2000 Honorable Lawrence D. King Chair, Miami-Dade Canvassing Board Office of the Supervisor of Elections Suite 1910 111 NW 1st Street Miami, Florida 33128-1962 RE: Request of Miami-Dade Canvassing Board to Amend Certification of County Returns After November 14, 2000 Statutory Deadline Dear Chairman King: I am in receipt of your letter of today's date in which you submitted a written statement of facts and circumstances relative to the request of the Miami Dade Canvassing Board ("Board") to amend its certification of county election returns subsequent to the statutory deadline set forth in § 102.112, Florida Statutes. As the Board is aware, § 102.112, Florida Statutes, requires the Board to file its county election returns with the De- partment of State by 5 p.m. on the 7th day following the general election. Also, § 102.141(6) requires the Board to file at that time a report with the Division of Elections on the conduct of the election. That deadline expired at 5 p.m. yesterday, November 14, 2000. I am not in re- ceipt of your report due to be filed with the Division of Elections. Notwithstanding that statutory deadline, the Honor- able Terry P. Lewis, Circuit Judge, Second Judicial Dis- trict, Leon County, entered an Order on November 14, 2000, directing me to withhold determination as to whether or not to ignore late-filed returns until I have given due consideration to all relevant facts and circum- stances consistent with the sound exercise of discretion. JA-27 There are no express statutory standards by which to evaluate the facts and circumstances associated with a late filing of county election returns. Thus, I have con- cluded that the appropriate standards for determining whether to exercise discretion to accept or reject election results filed subsequent to the statutory deadline are those standards utilized by the Florida courts in deciding whether or not to uphold a challenged election. Those criteria are as follows: Facts & Circumstances Warranting Waiver of Statutory Deadline 1. Where there is proof of voter fraud that affects the outcome of the election. In Re Protest of Election Re- turns, 707 So. 2d 1170, 1172 (Fla. 3d DCA 1998); Bro- ward County Canvassing Bd. v. Hogan, 607 So. 2d 508, 509 (Fla. 4th DCA 1992). 2. Where there has been a substantial noncompliance with statutory election procedures, and reasonable doubt exists as to whether the certified results expressed the will of the voters. Beckstrom v. Volusia County Can- vassing Bd., 707 So. 2d 720 (Fla. 1998). 3. Where election officials have made a good faith ef- fort to comply with the statutory deadline and are pre- vented from timely complying with their duties as a re- sult of an act of God, or extenuating circumstances be- yond their control, by way of example, an electrical power outage, a malfunction of the transmitting equip- ment, or a mechanical malfunction of the voting tabula- tion system. McDermott, et al. v. Harris, Case No. 00- 2700, (Second Cir.), November 14, 2000, Order of Judge Terry P. Lewis. Facts & Circumstances Not Warranting Waiver of Statutory Deadline 1. Where there has been substantial compliance with statutory election procedures and the contested results relate to voter error, and there exists a reasonable expec- JA-28 tation that the certified results expressed the will of the voters. Beckstrom v. Volusia County Canvassing Bd., 707 So. 2d 720 (Fla. 1998). 2. Where there exists a ballot that may be confusing because of the alignment and location of the candidates' names, but is otherwise in substantial compliance with the election laws. Nelson v. Robinson, 301 So. 2d 508, 511 (Fla. 2d DCA 1974) ("mere confusion does not amount to an impediment to the voters' free choice if reasonable time and study will sort it out.") 3. Where there is nothing "more than a mere possibil- ity that the outcome of the election would have been ef- fected." Broward County Canvassing Bd. v. Hogan, 607 So. 2d 508, 510 (F1a. 4th DCA 1992). Facts and Circumstances Alleged By Board For purposes of determining whether to exercise my discretion to accept or reject late-filed election returns, I have considered all of the facts and circumstances set forth in your letter of today's date and assumed that they are true. The Board has alleged that it conducted a lim- ited manual recount of one percent of the total votes cast with respect to the Office of the President of the United States, completed at approximately 8:00 p.m. on No- vember 14, 2000. The Board also has alleged that it has voted to conduct a manual recount of six precincts with respect to votes cast in the race for Congressional Dis- trict 22, and that this recount was scheduled to begin this morning. The Board has alleged no facts or circum- stances in support of the manual recounts. Application of Criteria to Alleged Facts and Circumstances The Board has not alleged any facts or circumstances that suggest the existence of voter fraud. The Board has not alleged any facts or circumstances that suggest that there has been substantial noncompliance with the state's statutory election procedures, coupled with rea- JA-29 sonable doubt as to whether the certified results ex- pressed the will of the voters. The Board has not alleged any facts or circumstances that suggest that Miami-Dade County has been unable to comply with its election du- ties due to an act of God, or other extenuating circum- stances that are beyond its control. For the above-described reasons, I hereby decline to exercise any authority I may possess pursuant to §102.112, Florida Statutes, to accept election results re- ported by the Board after the statutory deadline of 5 p.m., November 14, 2000. Respectfully submitted, /s/ Katherine Harris Secretary of State JA-30 FLORIDA DEPARTMENT OF STATE Katherine Harris Secretary of State November 15, 2000 Honorable Robert W. Lee County Court Judge Chair, Broward County Canvassing Commission 201 S.E. 6th Street, Room 6760 Ft. Lauderdale, FL 33301 RE: Request of Broward County Canvassing Board to Amend Certification of County Returns After November 14, 2000 Statutory Deadline Dear Chairman Lee: I am in receipt of your letter of today's date in which you submitted a written statement of facts and circumstances relative to the request of the Broward County Canvassing Board ("Board") to amend its certi- fication of county election returns subsequent to the statutory deadline set forth in § 102.112, Florida Stat- utes. As the Board is aware, § 102.112, Florida Statutes, requires the Board to file its county election returns with the Department of State by 5 p.m. on the 7th day follow- ing the general election. Also, § 102.141(6) requires the Board to file at that time a report with the Division of Elections on the conduct of the election. That deadline expired at 5 p.m. yesterday, November 14, 2000. Notwithstanding that statutory deadline, the Honor- able Terry P. Lewis, Circuit Judge, Second Judicial Dis- trict, Leon County, entered an Order on November 14, 2000, directing me to withhold determination as to whether or not to ignore late-filed returns until I have given due consideration to all relevant facts and circum- stances consistent with the sound exercise of discretion. There are no express statutory standards by which to evaluate the facts and circumstances associated with a late filing of county election returns. Thus, I have con- JA-31 cluded that the appropriate standards for determining whether to exercise discretion to accept or reject election results filed subsequent to the statutory deadline are those standards utilized by the Florida courts in deciding whether or not to uphold a challenged election. Those criteria are as follows: Facts & Circumstances Warranting Waiver of Statutory Deadline 1. Where there is proof of voter fraud that affects the outcome of the election. In Re Protest of Election Re- turns, 707 So. 2d 1170, 1172 (Fla. 3d DCA 1998); Bro- ward County Canvassing Bd. v. Hogan, 607 So. 2d 508, 509 (Fla. 4th DCA 1992). 2. Where there has been a substantial noncompliance with statutory election procedures, and reasonable doubt exists as to whether the certified results expressed the will of the voters. Beckstrom v. Volusia County Can- vassing Bd., 707 So. 2d 720 (Fla. 1998). 3. Where election officials have made a good faith ef- fort to comply with the statutory deadline and are pre- vented from timely complying with their duties as a re- sult of an act of God, or extenuating circumstances be- yond their control, by way of example, an electrical power outage, a malfunction of the transmitting equip- ment, or a mechanical malfunction of the voting tabula- tion system. McDermott, et al. v. Harris, Case No. 00- 2700, (Second Cir.), November 14, 2000, Order of Judge Terry P. Lewis. Facts & Circumstances Not Warranting Waiver of Statutory Deadline 1. Where there has been substantial compliance with statutory election procedures and the contested results relate to voter error, and there exists a reasonable expec- tation that the certified results expressed the will of the voters. Beckstrom v. Volusia County Canvassing Bd., 707 So. 2d 720 (Fla. 1998). JA-32 2. Where there exists a ballot that may be confusing because of the alignment and location of the candidates' names, but is otherwise in substantial compliance with the election laws. Nelson v. Robinson, 301 So. 2d 508, 511 (Fla. 2d DCA 1974) ("mere confusion does not amount to an impediment to the voters' free choice if reasonable time and study will sort it out.") 3. Where there is nothing "more than a mere possibil- ity that the outcome of the election would have been ef- fected." Broward County Canvassing Bd. v. Hogan, 607 So. 2d 508, 510 (F1a. 4th DCA 1992). Facts and Circumstances Alleged By Board For purposes of determining whether to exercise my discretion to accept or reject late-filed election returns, I have considered all of the facts set forth in your report filed November 13, 2000, and your letter of today's date and assumed that they are true. The Board states the following additional facts and circumstances that justify an amended certification: 1. Extremely large voter turnout, and the resulting bal- lots cast, dramatically increased the time required for the initial tabulation. 2. This Board, representing voters in the second largest county in Florida, needs additional time to complete all necessary tabulation, and should be afforded more time than boards representing voters in less-populated coun- ties. 3. The large number of ballots has created additional logistical problems, requiring that ballots be moved to an alternate location for further tabulation. The Supervi- sor's location can accommodate a very limited number of counting teams. 4. The Board has encountered significant periods of delay, including: JA-33 A. The actions of the Board have been materially im- pacted by numerous lawsuits, including lawsuits filed in state circuit courts in Broward County, Palm Beach County and Leon County, and in federal court in both the Southern District and Middle District of Florida. B. The actions of the Board have been materially im- pacted by conflicting opinion letters issued by Cabinet officers. On November 13, 2000, an opinion letter was issued by the Director of the Division of Elections, on behalf of the Secretary of State. On November 14, 2000, a conflicting opinion letter was issued by the Of- fice of the Attorney General. These opinion letters im- pacted the Board's decision-making process regarding a full manual recount and further impeded the Board's ability to proceed more expeditiously. C. One of the members of the Board, Supervisor of Elections Jane Carroll, was out of state on a pre-planned family holiday and therefore unavailable from Novem- ber 9, 2000 through November 12, 2000. D. The Veterans' Day holiday, observed in Broward County by different governmental agencies on either November 10, 2000 or November 13, 2000, further lim- ited the Board's ability to act. E. The Board was required by state law to conduct an automatic recount prior to determining the necessity of a full manual recount. Additionally, the Board, in its report filed with the Division of Elections on November 13, 2000, responded in the negative to the question of whether the county "had any problems which occurred as a result of equip- ment malfunctions either at the precinct level or at a counting location." In this report, the Board stated that "2 precincts failed to have ballots in transfer case; bal- lots retrieved from locked boxes left at precinct." And, the Board responded in the negative to the question of whether the board knew of "any other problems which JA-34 the canvassing board feels should be made a part of the official election record." Application of Criteria to Alleged Facts and Circumstances The Board has not alleged any facts or circum- stances that suggest the existence of voter fraud. The Board has not alleged facts or circumstances that sug- gest that there has been substantial noncompliance with the state's statutory election procedures. The Board has not alleged any facts or circumstances that suggest that Broward County has been unable to comply with its election duties due to an act of God, or other extenuating circumstances that are beyond its control. The Board has alleged large voter turnout and logistical problems associated with that turnout. However, Broward County is a large county and high voter turnout was not unex- pected. The Board also has alleged delay in the certifi- cation process associated with litigation, a family holi- day by the Supervisor of Elections, and the Veterans' Day holiday. However, I find that these circumstances, standing alone, do not rise to the level of extenuating circumstances that justify a decision on my part to ig- nore the statutory deadline imposed by the Florida Leg- islature. For the above-described reasons, I hereby decline to exercise any authority I may possess pursuant to §102.112, Florida Statutes, to accept election results re- ported by the Board after the statutory deadline of 5 p.m., November 14, 2000. Respectfully submitted, /s/ Katherine Harris Secretary of State JA-35 FLORIDA DEPARTMENT OF STATE Katherine Harris Secretary of State November 15, 2000 Honorable Jennifer Edwards Supervisor of Elections Collier County Canvassing Commission Collier County Government 3301 Tamiami Trail East, Building B Naples, Florida 34112-4902 RE: Request of Collier County Canvassing Board to Amend Certification of County Returns After November 14, 2000 Statutory Deadline Dear Supervisor Edwards: I am in receipt of your letter of today's date in which you submitted a written statement of facts and circumstances relative to the request of the Collier County Canvassing Board ("Board") to amend its certi- fication of county election returns subsequent to the statutory deadline set forth in § 102.112, Florida Stat- utes. As the Board is aware, § 102.112, Florida Statutes, requires the Board to file its county election returns with the Department of State by 5 p.m. on the 7th day follow- ing the general election. Also, § 102.141(6) requires the Board to file at that time a report with the Division of Elections on the conduct of the election. That deadline expired at 5 p.m. yesterday, November 14, 2000. I also am in receipt of your report filed with the Division of Elections. Notwithstanding that statutory deadline, the Honor- able Terry P. Lewis, Circuit Judge, Second Judicial Dis- trict, Leon County, entered an Order on November 14, 2000, directing me to withhold determination as to whether or not to ignore late-filed returns until I have given due consideration to all relevant facts and circum- stances consistent with the sound exercise of discretion. JA-36 There are no express statutory standards by which to evaluate the facts and circumstances associated with a late filing of county election returns. Thus, I have con- cluded that the appropriate standards for determining whether to exercise discretion to accept or reject election results filed subsequent to the statutory deadline are those standards utilized by the Florida courts in deciding whether or not to uphold a challenged election. Those criteria are as follows: Facts & Circumstances Warranting Waiver of Statutory Deadline 1. Where there is proof of voter fraud that affects the outcome of the election. In Re Protest of Election Re- turns, 707 So. 2d 1170, 1172 (Fla. 3d DCA 1998); Bro- ward County Canvassing Bd. v. Hogan, 607 So. 2d 508, 509 (Fla. 4th DCA 1992). 2. Where there has been a substantial noncompliance with statutory election procedures, and reasonable doubt exists as to whether the certified results expressed the will of the voters. Beckstrom v. Volusia Countv Can- vassing Bd., 707 So. 2d 720 (Fla. 1998). 3. Where election officials have made a good faith ef- fort to comply with the statutory deadline and are pre- vented from timely complying with their duties as a re- sult of an act of God, or extenuating circumstances be- yond their control, by way of example, an electrical power outage, a malfunction of the transmitting equip- ment, or a mechanical malfunction of the voting tabula- tion system. McDermott, et al. v. Harris, Case No. 00- 2700, (Second Cir.), November 14, 2000, Order of Judge Terry P. Lewis. Facts & Circumstances Not Warranting Waiver of Statutory Deadline 1. Where there has been substantial compliance with statutory election procedures and the contested results relate to voter error, and there exists a reasonable expec- JA-37 tation that the certified results expressed the will of the voters. Beckstrom v. Volusia County Canvassing Bd., 707 So. 2d 720 (Fla. 1998). 2. Where there exists a ballot that may be confusing because of the alignment and location of the candidates' names, but is otherwise in substantial compliance with the election laws. Nelson v. Robinson, 301 So. 2d 508, 511 (Fla. 2d DCA 1974) ("mere confusion does not amount to an impediment to the voters' free choice if reasonable time and study will sort it out.") 3. Where there is nothing "more than a mere possibil- ity that the outcome of the election would have been ef- fected." Broward County Canvassing Bd. v. Hogan, 607 So. 2d 508, 510 (F1a. 4th DCA 1992). Facts and Circumstances Alleged By Board For purposes of determining whether to exercise my discretion to accept or reject late-filed election returns, I have considered all of the facts and circumstances set forth in your letter of today's date and assumed that they are true. The Board asks whether it may provide an amended recount certification of Collier's ballots by adding 25 inadvertently omitted ballots to the total ballot counts already certified and provided. In its report filed with the Division of Elections, the Board reported that addressed several complaints of equipment malfunction. In all cases the complaints were investigated, and the malfunctions were either corrected or the machines were determined to be functioning correctly. The Board re- ported that there were no difficulties or unusual circum- stances encountered by the elections board or the can- vassing board. They Board also reported that a number of individuals reported to vote under the impression that they had registered to vote at the Department of Motor Vehicles, but that these voters' applications were not on file with the supervisor of election. JA-38 Application of Criteria to Alleged Facts and Circumstances The Board has not alleged any facts or circum- stances that suggest the existence of voter fraud. The Board has not alleged any facts or circumstances that suggest that there has been substantial noncompliance with the state's statutory election procedures, coupled with reasonable doubt as to whether the certified results expressed the will of the voters. The Board has not al- leged any facts or circumstances that suggest that Collier County has been unable to comply with its election du- ties due to an act of God, or other extenuating circum- stances that are beyond its control. Rather, the Board has alleged that 25 ballots were mistakenly not counted. I find that these circumstances, standing alone, do not rise to the level of extenuating circumstances that justify a decision on my part to ignore the statutory deadline imposed by the Florida Legislature. For the above-described reasons, I hereby decline to exercise any authority I may possess pursuant to § 102.112, Florida Statutes, to accept election results re- ported by the Board after the statutory deadline of 5 p.m., November 14, 2000. Respectfully submitted, /s/ Katherine Harris Secretary of State JA-39 FLORIDA DEPARTMENT OF STATE Katherine Harris Secretary of State DIVISION OF ELECTIONS M E M O R A N D U M TO: Supervisors of Elections Broward, Miami-Dade and Palm Beach County FROM: Clay Roberts, Director Division of Elections DATE: November 14, 2000 SUBJECT: Amended certification of returns As of 5 p.m. today, the Division of Elections has re- ceived certification of returns from all 67 Florida coun- ties. 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 divi- sion. However, we understand your county may plan to conduct a manual recount continuing beyond today's 5 p.m. deadline. Leon County Circuit Court Judge Terry Lewis con- firmed today that the Secretary of State has the discre- tion to consider any request to amend certification of county returns after the deadline. In order to properly exercise that discretion, the Secretary requires that you forward to her by 2 p.m. Wednesday, November 15, 2000 a written statement of the facts and circumstances 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. As always, please call us if you have any questions. JA-40 STATE OF FLORIDA OFFICE OF ATTORNEY GENERAL ROBERT A. BUTTERWORTH November 14, 2000 The Honorable Charles E. Burton 00-65 Chair, Palm Beach County Canvassing Board County Courthouse West Palm Beach, Florida 33401 Dear Judge Burton: On behalf of the Palm Beach County Canvassing Board, you have asked this office's opinion as to the meaning of "error in voting tabulation which could af- fect the outcome of" an election as that phrase is used in section 102.166(5), Florida Statutes. I am answering your request fully mindful that just yesterday the Division of Elections rendered Division of Elections Opinion 00-11 to the Chairman of the Repub- lican Party, interpreting the duties of a county canvass- ing board pursuant to section 102.166(5), Florida Stat- utes.1 Because the Division of Elections opinion is so clearly at variance with the existing Florida statutes and 1 The validity of the opinion of the Division of Elections is questionable since it appears to exceed the authority granted to the division by Florida law. Section 106.23(2), Florida Statutes, pro- vides the division with the authority to render advisory opinions interpreting the election code to, among others, a political party relating to actions such party has taken or proposes to take. Divi- sion of Elections Opinion 00-11, however, erroneously seeks to advise a political party about the responsibilities of the supervisor of elections and local canvassing board under section 102.166(5). JA-41 case law, and because of the immediate impact this er- roneous opinion could have on the on-going recount process, I am issuing this advisory opinion. Section 102.166(4), Florida Statutes, permits a local canvassing board, upon request of a candidate or politi- cal party, to authorize a manual recount to include at least three precincts and at least 1 percent of the total votes cast for such candidate.2 Section 102.166(5), Flor- ida Statutes, provides "[i]f the manual recount indicates an error in vote tabulation which could affect the out- come of the election, the county canvassing board shall" among other options, manually recount all ballots. Division of Election Opinion 00-11 concludes that the language "error in the vote tabulation" in section 102.166(5), Florida Statutes, refers only to a counting error in the vote tabulation system. The opinion con- cludes that the inability of a voting system to read an "improperly marked marksense or improperly punched punchcard ballot" is not an "error in the voter tabulation system" and would not, therefore, trigger a recount of all ballots. The division's opinion is wrong in several respects. The opinion ignores the plain language of the statute which refers not to an error in the vote tabulation system but to an error in the vote tabulation. The Legislature has used the terms "vote tabulation system" and "auto- matic tabulating equipment" elsewhere in section 102.166, Florida Statutes, when it intended to refer to the system rather than the vote count. Yet the division, by reading "vote tabulation" and "vote tabulation sys- 2 See, s. 102.166(4)(d), Fla. Stat., stating that the person re- questing the recount "shall choose three precincts to be recounted." JA-42 tem" as synonymous, blurs the distinctions that the Leg- islature clearly delineated in section 102.166.3 The error in vote tabulation might be caused by a mechanical malfunction in the operation of the vote- counting system, but the error might also result from the failure of a properly functioning mechanical system to discern the choices of the voters as revealed by the bal- lots. The fact that both possibilities are contemplated is evidenced by section 102.166(7) and (8), Florida Stat- utes. While subsection (8) addresses verification of tabulation software, subsection (7) provides procedures for an examination of the ballot by the canvassing board and counting teams to determine the voter's intent. The division's opinion, without authority or support, effectively nullifies the language of section 102.166(7), Florida Statutes. Nothing in subsection (7) limits its ap- plication to the recount of all ballots. Rather, the proce- dures for a manual recount in subsection (7) equally ap- ply to the initial sampling manual recount authorized in section 102.166(4)(d). Section 102.166(7)(b) states: If a counting team is unable to determine a voter's intent in casting a ballot, the ballot shall be presented to the county canvassing board for it to determine the voter's intent. Yet under the division's interpretation, such lan- guage is rendered superfluous. It is fundamental princi- ple of statutory construction that statutory language is not to be assumed to be surplusage; rather a statute is to 3 See, e.g., Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So. 2d 515 (Fla. 1st DCA 1984) (legislative use of different terms in different portions of same statute is strong evidence that different meanings were in- tended). JA-43 be construed to give meaning to all words and phrases contained within statute.4 Section 102.166(7) clearly recognizes that an ex- amination by a person of the ballot will occur to deter- mine whether the voter complied with the statutory re- quirement, i.e., marked the marksense or punched the punchcard ballot. The statutes do not specify how a punchcard must be punched. Clearly, there may be in- stances where a punchcard or marksense ballot was not punched or marked in a manner in which the electronic or electro-mechanical equipment was able to read the ballot. Such a deficiency in the equipment in no way compromises the voter's intent or the canvassing board's ability to review the ballot and determine the voter's in- tent. In fact, section 101.5614(5) and (6), Florida Stat- utes, contemplate that such an examination will occur. Section 101.5614(6) provides that the ballot will not be counted if it is impossible to determine the elector's choice or the elector marks more than one name than there are persons to be elected. Clearly, the manual count of the sampling precincts which reveals a discrepancy between votes counted by the automatic tabulating equipment and valid ballots which were not properly read by the equipment but which constitute ballots in which the voter complied with the statutory requirements and in which the voter's intent may be ascertained, constitutes an "error in vote tabulation." If the error is sufficient that it could affect 4 See, Terrinoni v. Westward Ho!, 418 So. 2d 1143 (Fla. 1st DCA 1982); Pinellas County v. Woolley, 189 So. 2d 217 (Fla. 2d DCA 1966); Ops. Att'y Gen. Fla. 95-27 (1995); 91-16 (1991) (op- erative language in a statute may not be regarded as surplusage); 91-11 (statute must be construed so as to give meaning to all words and phrases contained within that statute). JA-44 the outcome of the election, then a manual recount of all ballots may be ordered by the county canvassing board. The division's opinion fails to acknowledge the longstanding case law in Florida which has held that the intent of the voters as shown by their ballots should be given effect. Where a ballot is marked so as to plainly indicate the voter's choice and intent, it should be counted as marked unless some positive provision of law would be violated.5 As the state has moved toward electronic voting, nothing in this evolution has diminished the standards first articulated in such decisions as State ex rel. Smith v. Anderson6 and State ex rel. Nuccio v. Williams7 that the intent of the voter is of paramount concern and should be given effect if the voter has complied with the statu- tory requirement and that intent may be determined. For example, if a voter has clearly, physically penetrated a punchcard ballot, the canvassing board has the authority to determine that the voter's intention is clearly ex- pressed even though such puncture is not sufficient to be read by automatic tabulating equipment. 5 See, State ex rel. Smith v. Anderson, 8 So. 1 (Fla. 1890); Darby v State, 75 So. 411 (Fla. 1917); State ex rel. Nuccio v. Wil- liams, 120 So. 310 (F1a. 1929) (in performing their duty of count- ing, tabulating, and making due return of ballots cast in an elec- tion, the inspectors may, in some cases of ambiguity or apparent uncertainty in the name voted for, determine, from the fact of the ballot as cast, the person for whom a vote was intended by the voter). 6 8 So. 1 (Fla. 1890). 7 120 So. 310 (Fla. 1929). JA-45 In State ex rel. Carpenter v. Barber,8 the Court stated: The intention of the voter should be ascertained from a study of the ballot and the vote counted, if the will and intention of the voter can be deter- mined, even though the cross mark `X' appears before or after the name of said candidate. See Wiggins, Co. Judge, v. State ex rel. Drane, 106 Fla. 793, 144 So. 62; Nuccio v. Williams, 97 Fla. 159, 120 So. 310; State ex rel. Knott v. Haskell, 72 Fla. 176, 72 So. 651. The Florida Statutes contemplate that where elec- tronic or electromechanical voting systems are used, no vote is to be declared invalid or void if there is a clear indication of the intent of the voter as determined by the county canvassing board.9 In light of the plain language of section 102.166(5), Florida Statutes, authorizing a manual recount of all bal- lots when the sampling manual recount indicates an er- ror in vote tabulation which could affect the outcome of the election and the general principles of election law, I must express my disagreement with the conclusions reached in Division of Election Opinion 00-11. Rather I am of the opinion that the term "error in voter tabula- tion" encompasses a discrepancy between the number of votes determined by a voter tabulation system and the 8 198 So. 49, 51 (Fla. 1940). 9 See, Wiggins v. State ex rel. Drane, 144 So. 62, 63 (Fla. 1932) (separate tabulation and return of what may be deemed regu- lar ballots does not mean that only regular ballots are to be counted; if the marking of the ballot should be irregular, but the voter casting such ballot has clearly indicated by an X-mark the candidate of his choice, the ballot should be counted as intended). JA-46 number of votes determined by a manual count of a sampling of precincts pursuant to section 102.166(4), Florida Statutes. Sincerely, /s/ Robert A. Butterworth Attorney General JA-47 COUNTY COURT PALM BEACH COUNTY FLORIDA Chambers of County Courthouse Charles E. Burton West Palm Beach, Florida 33401 County Court Judge Phone November 13, 2000 Clay Roberts, Director Division of Elections 1801 The Capitol Tallahassee, Florida 32399 RE: Request for Advisory Opinion Dear Mr. Roberts: I have been authorized by the Palm Beach County Canvassing Board to request an opinion from your of- fice on the following issues: 1. Would a discrepancy between the number of votes determined by a tabulation system and by a manual recount of four precincts be considered an "error in voting tabulation which could affect the outcome of" an election within the meaning of Section 102.166(5), Florida Statutes thereby enabling the canvassing board to request a manual recount of the entire county, or are "errors" confined to errors in tabulation system/software? 2. May a county canvassing board do a partial certifi- cation of the votes pursuant to Section 102.151, Florida Statutes for the November 7, 2000 election that excludes the votes for the candidates for the presidential election which will be certified by the county canvassing board at a later date? A memorandum of law follows. JA-48 MEMORANDUM OF LAW Question 1. Section 102.166(5) provides: If the manual recount indicates an error in the vote tabulation which could affect the outcome of the election, the county canvassing board shall: (a) Correct the error and recount the remaining pre- cincts with the vote tabulation system; (b) Request the Department of State to verify the tabulation software; or (c) Manually recount all ballots. See also, Broward County Canvassing Board v. Hogan, 607 So. 2d 508 (Fla. 4th DCA 1992) (stating "the stat- utes clearly leave the decision to conduct a manual re- count within the discretion of the board.") The Palm Beach County Canvassing Board has voted to conduct a manual recount of the votes for the presidential election based on Section 102.166(5), Flor- ida Statutes. Question 2. Section 102.151, Florida Statutes does not indicate whether a county canvassing board may certify the votes for less than all of the elections held on the November 7, 2000. The Palm Beach County Canvassing Board would like to exclude the votes for the presidential elec- tion based on an ongoing manual recount of the ballots for that election. Respectfully submitted, /s/ Judge Charles Burton Chairperson, Palm Beach County Canvassing Board cc: Denise Dytrych, Palm Beach County Attorney JA-49 FLORIDA DEPARTMENT OF STATE Katherine Harris Secretary of State DIVISION OF ELECTIONS November 13, 2000 The Honorable Charles E. Burton Chairperson Palm Beach County Canvassing Board West Palm Beach, Florida DE 00-10 Deadline for Certification on County Results §§ 102.111 and 102.112, Fla. Stat. Dear Judge Burton: This is in response to your request for an opinion re- lating to sections 102.111 and 102.112, Florida Statutes. You are chairperson of the Palm Beach County Can- vassing Boards and pursuant to section 106.23(2), Flor- ida Statutes, the Division of Elections has the authority to issue an opinion to you. You state that the Palm Beach County Canvassing Board voted to have a manual recount of all ballots cast in the presidential election. Further, you state that the manual recount will not be completed by 5:00 p.m. of the seventh day following the election as provided in sections 102.11 and 102.112 Florida Statutes. Essen- tially you ask: 1. What effect will the provisions of section 102.111, Florida Statutes, when read in conjunc- tion with section 102.112, Florida Statutes, have on the votes cast in the presidential election by the citizens of Palm Beach County? JA-50 2. May the board certify all other election results to the Department of State while the manual re- count continues for the Presidential election? In response to your first question, if the Palm Beach County Canvassing Board fails to certify the county re- turns to the Elections Canvassing Commission by 5:00 p.m. of the seventh day following the election, the votes cast in Palm Beach County will not be counted in the certification of the statewide results. Section 102.111, Florida Statutes, is explicitly man- datory. It provides, "[i]f the county returns are not re- ceived by the Department of State by 5 p.m. on the 7th day following an election, all missing counties shall be ignored, and the results shown by the returns on file shall be certified." Section 102.112, Florida Statutes, provides in perti- nent part that returns must be filed by 5 p.m. on the 7th day following the first primary and general election. Further, if the returns are not received by the department by the time specified, such returns may be ignored and the results on file at the time may be certified by the de- partment. This section contemplates unforeseen circum- stances not specifically contemplated by the legislature. Such unforeseen circumstances might include a natural disaster such Hurricane Andrew, where compliance with the law would be impossible. But a close election, re- gardless of the identity of the candidates, is not such a circumstance. The legislature obviously specifically contemplated close elections in that the law provides for automatic recounts, protests, and manual recounts. It also plainly states when this process must end. Therefore, absent such unforeseen circumstances, returns from the county must be received by the Elec- tions Canvassing Commission by 5 p.m. on the seventh day following the election in order to be included in the certification of the statewide results. JA-51 The answer to your second question is yes, the county canvassing board may certify other election re- sults to the Department of State while the manual re- count continues for the presidential election. SUMMARY Absent such unforeseen circumstances such as a natural disaster, returns from the county must be re- ceived by the Elections Canvassing Commission by 5 p.m. on the seventh day following the election in order to be included in the certification of the statewide re- sults. The county canvassing board may certify other election results to the Department of State while the manual recount continues for the presidential election. Sincerely, /s/ L. Clayton Roberts Director, Division of Elections JA-52 FLORIDA DEPARTMENT OF STATE Katherine Harris Secretary of State DIVISION OF ELECTIONS November 13, 2000 Mr. Al Cardenas Chairman Republican Party of Florida Post Office Box 311 Tallahassee, Florida 32302 DE 00-11 Definition of Error in Vote Tabulation § 102.166(5), Fla. Stat. Dear Mr. Cardenas: This is in response to your request for an opinion re- lating to section 102.166(5), Florida Statutes. You are the Chairman for the Republican Party of Florida and pursuant to section 106.23(2), Florida Statutes, the Divi- sion of Elections has authority to issue an opinion to you. You ask: 1. What is the meaning of the term "error in the vote tabulation" as used in section 102.166(5), Florida Statutes? 2. What is the meaning of "affecting the outcome of the election" as used in section 102.166(5), Florida Statutes? 3. What manner of "error" and what type and/or de- gree of effect on the outcome would serve as a law- ful predicate for a manual recount of all ballots un- der section 102.166(5)(c), Florida Statutes? Your questions involve the interpretation of election laws and can be answered with an advisory opinion. Section 102.166(5), Florida Statutes, provides in perti- JA-53 nent part that if the manual recount indicates an error in the vote tabulation which could affect the outcome of the election, the county canvassing board shall: (a) correct the error and recount the remaining precincts with the vote tabulation system; (b) request the Depart- ment of State to verify the tabulation software; or (c) manually recount all ballots. An "error in the vote tabulation" means a counting error in which the vote tabulation system fails to count properly marked marksense or properly punched punch- card ballots. Such an error could result from incorrect election parameters, or an error in the vote tabulation and reporting software of the voting system. The inabil- ity of a voting systems to read an improperly marked marksense or improperly punched punchcard ballot is not a "error in the vote tabulation" and would not trigger the requirement for the county canvassing board to take one of the actions specified in subsections 102.155(5)(a) through (c), Florida Statutes. An error that could "affect the outcome of the elec- tion" is an error of a magnitude sufficient to make a dif- ference as to which candidate wins the election. SUMMARY An "error in the vote tabulation," means a counting error in which the vote tabulation system fails to count properly marked marksense or properly punched punch- card ballots. An error that could "affect the outcome of the election" is an error of a magnitude sufficient to make a difference as to which candidate wins the elec- tion. Sincerely, /s/ L. Clayton Roberts Director, Division of Elections JA-54 DE 00-12 Manual Recount Procedures November 13, 2000 § 102.166, Fla. Stat. TO: The Honorable Jane Carroll Broward County Supervisor of Elections Post Office Box 029001 Ft. Lauderdale, Florida 33302-9001 Dear Ms. Carroll: This is in response to your request for an advisory opinion concerning manual recount procedures. You are the Supervisor of Elections for Broward County and pursuant to section 106.23(2), Florida Statutes, the Divi- sion of Elections has authority to issue an opinion to you. You ask: If a county canvassing board authorizes a manual recount of ballots of the presidential election pur- suant to section 102.166(4)(c), Florida Statutes, and determines that the number of votes for one or more candidates changes and such changes are due to voter errors (such as failing to properly follow voting procedures), is the board authorized to conduct a manual recount of all ballots of the remainder of the county? The answer to your question is no. Section 102.166(5), Florida Statutes, provides that if the manual recount indicates an error in the vote tabulation which could affect the outcome of the election, the county can- vassing board shall: (a) correct the error and recount the remaining precincts with the vote tabulation system; (b) request the Department of State to verify the tabula- tion software; or (c) manually recount all ballots. An "error in the vote tabulation" means a counting error in which the vote tabulation system fails to count properly marked marksense or properly punched punch- JA-55 card ballots. Such an error could result from incorrect election parameters, or an error in the vote tabulation and reporting software of the voting system. Voter error is not an "error in the vote tabulation." Therefore, the county canvassing board is not authorized to conduct a manual recount of the remainder of the county nor per- form any action specified in section 102.166(5)(a) and (b), Florida Statutes. SUMMARY An "error in the vote tabulation" means a counting error in which the vote tabulation system fails to count properly marked marksense or properly punched punch- card ballots. Such an error could result from incorrect election parameters, or an error in the vote tabulation and reporting software of the voting system. Voter error is not an "error in the vote tabulation." Therefore, the county canvassing board is not authorized to conduct a manual recount of the remainder of the county nor per- form any action specified in section 102.166(5)(a) and (b), Florida Statutes. Sincerely, /s/ L. Clayton Roberts Director, Division of Elections Prepared by: Kristi Reid Bronson Assistant General Counsel JA-56 FLORIDA DEPARTMENT OF STATE Katherine Harris Secretary of State DIVISION OF ELECTIONS November 13, 2000 The Honorable Charles E. Burton Chairperson Palm Beach County Canvassing Board Palm Beach County Courthouse West Palm Beach, Florida 33401 DE 00-13 Manual Recount Procedures and Partial Certification of County Returns §§ 102.166(5) and 102.151, Fla. Stat. Dear Judge Burton: This is in response to your request for an opinion. You are chairperson of the Palm Beach County Can- vassing Board and pursuant to section 106.23(2), Florida Statutes, the Division of Elections has the authority to issue an opinion to you. Essentially, you ask: 1. Would a discrepancy between the number of votes determined by a tabulation system and by a manual recount of four precincts be consid- ered an "error in voting tabulation" that could affect the outcome of an election within the meaning of section 102.166(5), Florida Statutes, thereby enabling the canvassing board to manu- ally recount ballots for the entire county. 2. May a county canvassing board do a partial cer- tification of the votes pursuant to section 102.151, Florida Statutes, for the November 7, JA-57 2000 election that excludes the votes for the candidates of the presidential election? With regard to your first question, section 102.166(5), Florida Statutes, provides that if the manual recount indicates an error in the vote tabulation which could affect the outcome of the election, the county can- vassing board shall: (a) correct the error and recount the remaining precincts with the vote tabulation system; (b) request the Department of State to verify the tabula- tion software; or (c) manually recount all ballots. An "error in the vote tabulation" means a counting error in which the vote tabulation system fails to count properly marked marksense or properly punched punch- card ballots. Such an error could result from incorrect election parameters, or an error in the vote tabulation and reporting software of the voting system. Therefore, unless the discrepancy between the number of votes de- termined by the tabulation system and by the manual re- count of four precincts is caused by incorrect election parameters or software errors, the county canvassing board is not authorized to manually recount ballots for the entire county nor perform any action specified in section 102.166(5)(a) and (b), Florida Statutes. With regard to your second question, the answer is yes. The county canvassing board may do a partial cer- tification of the votes pursuant to section 102.151, Flor- ida Statutes, for the November 7, 2000 election that ex- cludes the results of the presidential election. SUMMARY An "error in the vote tabulation" means a counting error in which the vote tabulation system fails to count properly marked marksense or properly punched punch- card ballots. Such an error could result from incorrect election parameters, or an error in the vote tabulation and reporting software of the voting system. Therefore, unless the discrepancy between the number of votes de- termined by the tabulation system and by the manual re- JA-58 count of four precincts is caused by incorrect election parameters or software errors, the county canvassing board is not authorized to manually recount ballots for the entire county nor perform any action specified in section 102.166(5)(a) and (b), Florida Statutes. The county canvassing board may do a partial certification of the votes pursuant to section 102.151, Florida Statutes, for the November 7, 2000 election that excludes the re- sults for the presidential election. Sincerely, /s/ L. Clayton Roberts Director, Division of Elections Prepared by: Kristi Reid Bronson Assistant General Counsel JA-59 FLORIDA DEPARTMENT OF STATE Katherine Harris Secretary of State STATEMENT OF KATHERINE HARRIS, SECRETARY OF STATE OF FLORIDA For Immediate Release November 13, 2000 I am issuing this statement to ensure there are no misunderstandings with respect to the statutory schedule for completing the presidential election in Florida. To that end, I met this morning with representatives of the campaigns of Vice President Al Gore and Governor George Bush, and I communicated by facsimile trans- mission with the Supervisors of Elections in each of Florida's 67 counties. The electoral process is a balance between the desire of each individual voter to have his or her intended vote recorded and the right of the public to a clear, final re- sult within a reasonable time. It is the duty of the Flor- ida legislature to strike that balance, and it has done so. In order to serve the interests of individual voters and the candidates who seek elective office, the law provides for automatic recounts in extremely close elections, methods for protesting elections, and procedures for pe- titioning for, and conducting, manual recounts. And in order to effectuate the public's right to clarity and final- ity, the law unambiguously states when the process of counting and recounting the votes cast on election day must end. For this election, that time is 5 PM, November 14, which is tomorrow. Section 102.112, Florida Statutes, provides that the county canvassing board must certify the county returns by 5 PM on the 7th day following the general election. The performance of this duty is mandatory; there are no exceptions provided in the law. In fact, a $200 a day JA-60 personal fine is imposed on members of the county can- vassing board for failing to meet this deadline. In this context, I am very aware that a few counties are conducting or contemplating additional recounts in the presidential election. In order to assist them in con- tinuing their recounts as long as the law allows, I am dispatching personnel from my office to the offices of the Supervisors of Elections in every county that does not have a certified return on file in my office at the close of business today. They will remain in the offices of those Supervisors of Elections until 5 PM tomorrow in order to be available to officially receive the certified returns of that county until the last moment, thus provid- ing the maximum possible time for recounting and certi- fication. As previously stated, it is the duty of the county can- vassing board ­ and the county canvassing board alone ­ to certify the returns from that county by 5 PM tomor- row. If the certification is not in the possession of the Florida Department of State at that time, the law pro- vides that the votes cast in that county will not be counted in the certification of the statewide results. Again, Section 102.112, Florida Statutes, which deals with the duties of the county canvassing board, provides, "If the returns are not received by the time specified, such returns may be ignored and the results on file at that time may be certified by the department." Section 102.111, Florida Statutes, is explicitly manda- tory. It provides, "If the county returns are not received by the department by 5 PM on the 7th day following an election, all missing counties shall be ignored, and the results on file shall be certified." Florida law does not provide any date for return cer- tifications other than tomorrow at 5 PM, and it does not provide any penalties for noncompliance other than the fines mentioned above and the disallowance of the entire uncertified vote of the defaulting county. Any discretion JA-61 vested in me by the legislature in this regard is necessar- ily limited to circumstances not specifically contem- plated by the legislature in the law. Such unforeseen circumstances might include a natural disaster such as Hurricane Andrew, where compliance with the law would be impossible. But a close election, regardless of the identity of the candidates, is not such a circumstance. The legislature obviously specifically contemplated close elections; the law provides for automatic recounts, protests, and manual recounts-and it plainly states when this process must end. Therefore, I will adhere to the date and penalties that are provided for Florida law. With regard to the status of overseas absentee bal- lots, they must have been executed as of last Tuesday. They must bear a foreign postmark as provide [sic] in Section 101.62(7), and they must be received by the Su- pervisors of Elections by midnight Friday. They are not required, however, to be postmarked on or prior to last Tuesday. I will today ask the Supervisors of Elections to make plans with their canvassing boards to count and certify the relatively few remaining overseas ballots Friday night, or by no later than Saturday morning. I will fur- ther ask them to transmit facsimile copies of those certi- fications to my office by noon Saturday as permitted by applicable case law. I anticipate that the state Elections Canvassing Commission, composed of the Secretary of State, the Commissioner of Agriculture, and the Director of the Division of Elections, will officially certify the results of the presidential election in Florida on Saturday afternoon. In summary, every county must have official certifi- cations of the voting returns from last Tuesday delivered to the Florida Department of State by 5 PM tomorrow, or those returns will not be included in the statewide canvass. It is my expectation that overseas absentees will be counted and certified by each county canvassing board no later than Saturday morning. Therefore, I an- JA-62 ticipate that the presidential election in Florida will be officially certified by Saturday afternoon, barring judi- cial intervention. No county canvassing board has ever disenfran- chised all the voters of its county by failing to do their legal duty to certify returns by the date specified in the law. I am confident that no county canvassing board will do so in this election. Contact: Ben McKay. 850-414-5502 JA-63 County Court Palm Beach County Florida Chambers of County Courthouse Charles E. Burton West Palm Beach, Florida 33401 County Court Judge Phone November 13, 2000 Honorable Robert A. Butterworth Attorney General 400 Monroe Street Tallahassee, Florida 32399 RE: Request for Attorney General Opinion Dear General Butterworth: I have been authorized by the Palm Beach County Canvassing Board to request an opinion from your of- fice on the following issues: 1. Would a discrepancy between the number of votes determined by a tabulation system and by a manual recount of four precincts be considered an "error in voting tabulation which could affect the outcome of" an election within the meaning of Section 102.166(5), Florida Statutes thereby enabling the canvassing board to request a manual recount of the entire county, or are "errors" confined to errors in tabulation system/software? 2. May a county canvassing board do a partial certifi- cation of the votes pursuant to Section 102.151, Florida Statutes for the November 7, 2000 election that excludes the votes for the candidates for the presidential election which will be certified by the county canvassing board at a later date? A memorandum of law follows. JA-64 MEMORANDUM OF LAW Question 1. Section 102.166(5) provides: If the manual recount indicates an error in the vote tabulation which could affect the outcome of the election, the county canvassing board shall: (a) Correct the error and recount the remaining pre- cincts with the vote tabulation system; (b) Request the Department of State to verify the tabulation software; or (c) Manually recount all ballots. See also, Broward County Canvassing Board v. Hogan, 607 So. 2d 508 (Fla. 4th DCA 1992) (stating "the stat- utes clearly leave the decision to conduct a manual re- count within the discretion of the board.") The Palm Beach County Canvassing Board has voted to conduct a manual recount of the votes for the presidential election based on Section 102.166(5), Flor- ida Statutes. Question 2. Section 102.151, Florida Statutes does not indicate whether a county canvassing board may certify the votes for less than all of the elections held on the November 7, 2000. The Palm Beach County Canvassing Board would like to exclude the votes for the presidential elec- tion based on an ongoing manual recount of the ballots for that election. Respectfully submitted, /s/ Judge Charles Burton Chairperson, Palm Beach County Canvassing Board cc: Denise Dytrych, Palm Beach County Attorney Katherine Harris, Secretary of State JA-65 COUNTY COURT PALM BEACH COUNTY FLORIDA November 12, 2000 Clay Roberts, Director Division of Elections 1801, The Capitol Tallahassee, FL 32399 Dear Mr. Roberts: Pursuant to F.A.C. 1S-2.010, I am writing to you as Chairperson of the Palm Beach County Canvassing Board to seek an advisory opinion on certain actions contemplated by the board. By way of history, the machine vote counters were tested on November 3, 2000, before and after the elec- tion on November 7, 2000; before and after the recount on November 8, 2000, and before and after the recount on November 12, 2000. Each time the test revealed no errors. In addition, the board also conducted a manual recount of one percent of the vote. As to each tally of votes, different vote totals were obtained. On Novem- ber 12, 2000, the board voted to have a county wide manual recount of all ballots cast in the Presidential election. Because the board voted to have a county wide man- ual recount of all ballots cast in the Presidential election, and while this manual recount will take place as expedi- tiously as possible, the manual recount cannot be com- pleted by 5:00 p.m. of the seventh day following the election. Therefore, what effect can the provisions of F.S. 102.11(1), which states that if the county returns are not timely received they "shall be ignored", when read in conjunction with F.S. 102.112(1), which states that the county returns "may be ignored", have on the votes cast in the Presidential election by the citizens of Palm Beach County? Further, if the Department of State or JA-66 or the Elections Canvassing Commission has the discre- tion to extend the filing deadline for certified returns, what factors would it consider in making its decision? In addition, may the board certify all other election results to the Department of State while the manual re- count continues for the Presidential election? Due to the fact that the board is meeting on Novem- ber 13, 2000 at 10:00 a.m., a prompt response would be appreciated. Very truly yours, /s/ Charles E. Burton County Court Judge Chairperson, P.B. County Canvassing Board JA-67 Florida Department of State ­ Division of Elections Voter Turnout, November 7, 2000 ** UNOFFICIAL RESULTS ** Registered Presidential Percent County Voters Turnout Percent Votes No Votes No Votes * * * Broward 887,764 588,007 66.2% 573,396 14,611 2.48% * * * Collier 123,572 95,325 77.1% 92,141 3.184 3.34% * * * Miami-Dade 896,912 654,044 72.9% 625,443 28,601 4.37% * * * Palm Beach 656,694 462,588 70.4% 433,186 29,402 6.36% * * * Volusia 260,572 184,153 70.7% 183,653 500 0.27% * * * Totals 8,752,717 6,138,770 70.1% 5,958,643 180,127 2.93%