Florida Supreme Court Hearing Transcript

— -- [This is part 8 of a 14 part court transcript.]

Part 8

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

KLOCK: If you are permitted to initiative something at any pointand time, and it has to be turned in at a certain time, that is thesame basic rule that I had in high school with term papers. You canstart the term paper the night before, if you want to, but it isunlikely that you’ll be able to turn it in the next day when it’s due.

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

KLOCK: No, sir.

ANSTEAD: …that is not really correct in the statute, that youhave that much time before the certification of the results, in otherwords, to make that request?

KLOCK: You have the seven day period within which to handle allof the counting of the votes. The initial counting, if you have anautomatic recount and if there is going to be a manual recount.

But the other point, Your Honor, that I think is veryimportant to note is that we’re not talking about a manual recount ona statewide basis; it’s three selected counties.

ANSTEAD: Let me talk about the seven days, too, and ask for yourhelp, and let’s work by way of a hypothetical.

Are you suggesting by the language that has this seven daydeadline, that if we had, for instance, in Dade County, that theelection officials down there, after they’d compiled the vote andeverything, and they were the only county outstanding, and that therewas gross negligence then, that they all went off on vacation to theislands and just let the election returns sit there, and seven dayspassed, and eight days passed, and nine days, and 11 — you know, andso on, that the secretary of state, because of that seven day rulethen, and the gross negligence of the election officials down there,would simply say, “That’s it. Under the language of the legislature,I cannot count the votes from Dade County, the largest county in thestate of Florida in the election returns.” Is that what the positionof the secretary of state is?

KLOCK: I don’t believe so. Of course, that’s not the situationwe’re in now.

ANSTEAD: Well, what is the position?

KLOCK: There’s a case…

ANSTEAD: When we have a week pass, past the deadline of sevendays, we have negligence on the part of the local officials, and theysimply have not sent the results up to Tallahassee, what is theobligation of the secretary of state?

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

ANSTEAD: No, I’m saying in my hypothetical to assume it’snegligence.

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

KLOCK: But, Justice Anstead…

ANSTEAD: What would the secretary of state do? A week haspassed, passed the seven day deadline, what would the secretary ofstate do?

KLOCK: If she hadn’t noticed that the Dade County resultsweren’t in for a week, I think, as a practical matter, the secretaryof state would be a little bit more pro-active, that if the returnsaren’t in on a certain day, I’m sure inquiry would be made.

If it was clear to the secretary of state that there was grossnegligence involved in not getting them in, she’s bound by case law toaccept them or, Your Honor, it would be raised in the context of acontest.

But if we could get back, respectfully, sir, to the situationthat we’re in here, the situation we’re in here was not caused by thesecretary. The difficulty we have here — all we need to do is to beable to certify the election. Once the election is certified, thecontest period can begin. The petitioners are trying to conduct acontest proceeding prior to certification, not for legal reasons, forpolitical reasons.

PARIENTE: How can a contest occur while the manual recount’sstill going on? As you just said, we don’t know whether there isgoing to be an issue as to the integrity of how the recount was done,so how can that start before the recount, the manual recount, iscompleted?

KLOCK: Because, Justice Pariente, you have to read all thestatutes together. And one of the clearest things when you look atthe statutes is the mandatory nature of certain actions that have tobe taken by the secretary. Not even the petitioners, Your Honor,could come up with some way of balancing between 166 and 168. Andwhat the court is being asked to do is an extensive amount oflegislation. I mean, you’re going to have to do away with the sevenday rule, you’re going to have to abolish 166, you’re going to have todo away with the secretary’s discretion. And then the court entersthe great universe of chad to decide, on the record that you have,whether or not two corners are enough or three corners are enough…

ANSTEAD: Well, I thought you said that the seven day rule doesnot apply, that the secretary of state has some obligation, if thisseven day period passes, to contact the county and now inquire intothe circumstances of why the seven days. And if she determines, forinstance, that it’s just the negligence of the local officials infailing to send the ballots up, that she can ignore the seven day timeand accept votes.

KLOCK: Your Honor, I’m not specifically sure what the secretarywould do. All I’m saying is the case law says, if it’s grossnegligence on the part of election officers, that the votes will becounted. We do not have a situation…

ANSTEAD: But you agree the seven day period is not absolutelythen?

KLOCK: No, of course it’s not absolute. Judge Lewis ruled thatthere was discretion the secretary had to exercise. And irrespectiveof how we may interpret 111 and 112, as “shall” or “may,” we areoperating under the ruling of Judge Lewis.

ANSTEAD: What was the position of the secretary of state goingbefore Judge Lewis, as far as whether or not the seven day rule wasabsolute?

KLOCK: Your Honor, from looking at the record, it appears thatthey agreed that discretion of the secretary could be appropriate,that the “may” standard would probably trump the “shall” standard.That’s my understanding of the position that he took.

I don’t know that that legally is correct; that’s the positionthat was taken.

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

WELLS: Justice Shaw has a question.

KLOCK: I’m sorry, sir. SHAW: If the state of Florida has provided a protest procedure,can the secretary of state exercise her discretion under 102.112 so asto frustrate that procedure?

I’m afraid I don’t understand the justice’s questionexactly. I’m sorry, I don’t understand the question.

SHAW: Do you agree that under 102.112 that the secretary hassome discretion? That would be your position that…

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

SHAW: Can she exercise that discretion in such a fashion as tofrustrate the scheme in which a protest can be lodged?

KLOCK: No, because the contest is under 168, Your Honor, notunder 166.

SHAW: Not a contest, a protest.

KLOCK: With respect to a recount?

SHAW: Yes.

KLOCK: Your Honor, all the secretary can do is — she has theright to be able to establish criteria for determining whether or nota late filing will occur. She establishes those criteria drawn fromprecedents of courts. She then applied the requests against that andfound them to be wanting.

As I said before, Your Honor, the entire problem could be solvedif the certification had taken place on time because they had compliedwith the timing.

Part 9