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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 Petition For Writ of Certiorari to the Florida Supreme Court _________________________________

BROWARD COUNTY CANVASSING BOARD'S AND BROWARD COUNTY SUPERVISOR OF ELECTION'S RESPONSE TO PETITION FOR WRIT OF CERTIORARI

EDWARD A. DION SAMUEL S. GOREN County Attorney for Broward County Counsel of Record Counsel of Record MICHAEL D. CIRULLO ANDREW J. MEYERS Josias, Goren, Cherof, Doody & Chief Appellate Counsel Ezrol, P.A. NORMAN M. OSTRAU 3099 East Commercial Blvd. Deputy County Attorney Suite 200 TAMARA M. SCRUDDERS Fort Lauderdale, Florida 33308 Assistant County Attorney Telephone: (954) 771-4500 JOSE ARROJO Assistant County Attorney Counsel for the Broward County Government Center, Suite 423 Supervisor of Elections 115 South Andrews Avenue Fort Lauderdale, Florida 33301

Counsel for the Broward County Canvassing Board

STATEMENT OF THE CASE

After the November 7, 2000 general election, the Broward County Canvassing Board (the

"Board") conducted a statutorily-mandated machine recount of the votes cast for President/Vice

President. Consistent with the requirements of §102.166(4), Florida Statutes, the Board then

conducted a limited manual recount of the votes cast in three precincts, which comprised more than

one percent (1%) of the total votes cast in Broward County. The Board determined that the results

of the limited manual recount indicated an error in vote tabulation that could affect the outcome of

the election. As a result of this determination, the Board was statutorily required, pursuant to

§102.166(5)(c), Florida Statutes, to conduct a county-wide manual recount of all ballots in Broward

County cast for President of the United States.

The Board began its full manual recount on Wednesday, November 15, 2000, at 2:00p.m..

From that date, the Board worked continuously, without taking any days off, even for the

Thanksgiving holiday. Initially, the Board, as well as hundreds of county employees and party

observers, worked from 8:00 a.m. until 6:00 p.m. each day, but the Board increased its hours even

further as the recount continued, working several days from 8:00 a.m. until 11:00 p.m. After

working eleven (11) consecutive days, the manual recount concluded on Saturday, November 25,

2000 shortly before midnight.

As stated in the certifications attached hereto as Exhibits "A" and "B", which were filed with

the Secretary of State on November 8, 2000 and November 26, 2000, respectively, the manual

recount resulted in One Thousand Seven Hundred Twenty-One (1,721) additional valid votes being

included in the vote totals for Broward County.

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ARGUMENT

I. THE FLORIDA SUPREME COURT'S HOLDING DOES NOT VIOLATE THE DUE PROCESS CLAUSE OR 3 U.S.C. §5.

Under 3 U.S.C. §5, a determination regarding the appointment of presidential electors

pursuant to Florida's Election Code "shall be conclusive" provided:

1. The applicable provisions of the Florida Election Code were "enacted prior to the day fixed

for appointment of the electors;" and

2. The determination is made by December 12, 2000, which is six days prior to the meeting of

the electors under 3 U.S.C. §7 (2000).

A. The Supreme Court of Florida Did Not Rewrite the Applicable Provisions of the Florida Election Code.

The Florida Supreme Court decision did not impose post-election judicial limitations on state

executive officials. Nor did it impose judicially created standards for the determination of

controversies concerning the appointment of presidential electors. Rather, the Florida Supreme

Court's decision interpreted existing Florida statutes as required to harmonize the various provisions

of the Florida Election Code so as to give effect to the overall purpose and intent of Florida's

election laws. In the Court's own words, the decision of the Florida Supreme Court was "consistent

with the Florida election scheme."

It has long been the law in Florida that wherever it is possible to do so, a court must construe

statutory sections so they operate in harmony with each other. Palm Harbor Special Fire Control

District v. Kelly, 516 So.2d 249 (Fla. 1987). In this case, the Florida Supreme Court's decision does

exactly that, squaring the express language of Florida's statutory provisions governing the election

process with the intent and purpose behind those provisions. At the same time, the Florida Supreme

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Court ensured that each vote in counties utilizing manual recounts can be accurately counted, and

that Florida's ability to appoint its electors by December 12, 2000 will not be jeopardized.

By providing that the Secretary of State was required to accept amended certifications from

the county canvassing boards, the Florida Supreme Court's holding did nothing more than interpret

Florida law in a manner to allow for what was intended-- to permit enough time for pre-certification

manual recounts as well as post-certification contests. The Court recognized that Florida's Election

Code contains no deadlines for filing corrected, amended or supplemental vote returns. The Court

further recognized that while Florida statutes specifically provide for manual recounts, the recounts

could not be accomplished in larger counties, like Broward County, within the seven (7) day period

contained in §102.166, Florida Statutes (2000).

This latter recognition was confirmed by the actual experience of the Broward County

Canvassing Board, which required eleven (11) consecutive arduous days, working long hours

without a break, to accurately complete the recount of approximately 588,000 ballots in Broward

County. As a result, more than 1,700 votes from Broward County not previously counted were

included in the final vote total certified by the Secretary of State on November 26, 2000. The

inclusion of those votes is what was intended by the Legislature when it provided for a procedure

for manual recounts. That goal was accomplished in Broward County, with absolutely no impact

on any other part of the election process.

The provisions of the Florida Election Code, upon which the manual recount vote total was

based, were enacted by the Florida Legislature prior to the day fixed for appointment of the electors.

As such, the final vote totals from Broward County was determined consistent with 3 U.S.C. §5.

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B. Contrary to Petitioner's Assertions, Neither the Decision of the Supreme Court of Florida Nor the Board's Manual Recount Thwart the Will of the Electorate.

In its introduction, Petitioner asserts that the decision of the Supreme Court of Florida

"appears designed to thwart the will of the electorate . . .." To the contrary, the will of the electorate

can only be determined by counting all votes as to which the clear intent of the voter can be

determined. Given the problems clearly evident with machine vote tabulation in Broward County,

the Board determined that the manual recount was necessary to determine the true vote totals.

Petitioner further argues that the efforts of the Broward County Canvassing Board were

"unrestrained by statutory guidance[.]" This allegation is simply not true. Florida Statute

§101.5614(5) provides: "No vote shall be declared invalid or void if there is a clear indication of the

intent of the voter as determined by the canvassing board." This statutory mandate guided all

decisions of the Broward County Canvassing Board.

Petitioner also asserts that the act of manually recounting ballots, which requires handling

of the ballots, undermined the physical integrity of the ballots. There is no evidence before this

Court to support that bald assertion. Petitioner's failure to cite to any record support equates to an

admission that none exists.

II. THE FLORIDA SUPREME COURT'S DECISION IS NOT INCONSISTENT WITH ARTICLE II, SECTION 1, CLAUSE 2 OF THE CONSTITUTION.

As indicated in Section I of this Response, the Florida Supreme Court decision is consistent

with Florida Statutes enacted before the election was held. The argument in Section I is incorporated

here as Broward County Canvassing Board's response to Question II presented by the Petitioner.

It is further submitted that, based on those arguments, the Florida Supreme Court's decision is not

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inconsistent with Article II, Section 1, clause 2 of the Constitution.

III. IF THIS COURT WERE TO FIND THAT THE FLORIDA SUPREME COURT'S DECISION DOES NOT COMPLY WITH 3 U.S.C. §5, MORE THAN 1,700 VOTERS WOULD BE NEEDLESSLY DISENFRANCHISED.

The Broward County Canvassing Board has invested substantial time and effort in

painstakingly examining each ballot cast in Broward County to determine the true intent of each

voter and to reach an accurate count of votes cast. The Board's efforts were consistent with Florida

law and pursuant to the clear direction of the Florida Supreme Court.

The direct result of any decision reversing the Florida Supreme Court will be the

disenfranchisement of more than 1,700 Broward County voters who validly and lawfully filled in

ballots which would be rendered meaningless solely because of the limitations of the county's

machine counting system.

CONCLUSION

Wherefore the Broward County Canvassing Board respectfully requests this Court deny the

writ of certiorari requested by Petitioners, allowing Broward County's amended certification to

stand.

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Respectfully submitted,

EDWARD A. DION Broward County Attorney Governmental Center, Suite 423 115 South Andrews Avenue Ft. Lauderdale, Florida 33301 Telephone: (954) 357-7600 Facsimile: (954) 357-7641

By: EDWARD A. DION Florida Bar No. 267732 Counsel of Record ANDREW J. MEYERS Chief Appellate Counsel Florida Bar No. 709816 NORMAN M. OSTRAU Deputy County Attorney Florida Bar No. 273971 TAMARA M. SCRUDDERS Assistant County Attorney Florida Bar No. 868426 JOSE ARROJO Assistant County Attorney Florida Bar No. 744808

Counsel for Broward County Canvassing Bd.

SAMUEL S. GOREN MICHAEL D. CIRULLO Josias, Goren, Cherof, Doody & Ezrol, P.A. 3099 East Commercial Blvd., Suite 200 Fort Lauderdale, Florida 33308

By: __________________________ SAMUEL S. GOREN Fla. Bar No. 205850 MICHAEL D. CIRULLO Fla. Bar No. 973180

Counsel for Broward County Supervisor of Elections

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