772 So.2d 1220 (Fla. 2000)


Following the 2000 U.S. presidential election, many votes in Palm Beach County, Florida were in dispute (see hanging chad), and the campaign of Al Gore sought a manual recount of the ballots. On November 14, 2000, Florida's Democratic attorney general, Bob Butterworth, stated that recounts would be completely legal as long as they determined voter intent: however, on the same day, Republican secretary of state Katherine Harris decided to certify George W. Bush's existing lead.

On November 15, 2000, the Florida Supreme Court agreed to hear the Palm Beach canvassing board's case against Harris, who was allegedly violating Butterworth's interpretation of the law.

The Laws

Palm Beach's case, represented by Gore lawyers David Boies and Dexter Douglass, cited Darby v. State (FL, 1917), where the court ruled that "voter's intent" "based on the totality of circumstances" is the basis of counting ballots. Another case, Delahunt v. Johnston (MA, 1996) showed that the "presence of a discernable impression" in a punch card ballot was an indication of voter intent even if the chad was not completely dislodged. Boies and Douglass argued that if Harris certified results before an accurate recount took place, she would be disregarding legally valid votes and would therefore be abusing her discretion as a state official.

Harris's case, represented by Bush lawyers Michael Carvin and Barry Richard, was that the Florida Statutes (ยง 102.111 and 102.112) clearly allow the Elections Canvassing Commission to ignore late-filed returns, and that the Gore case was therefore running smack in the face of statutory law. They also cited 3 USC 5, a federal law requiring state electors to be selected by laws passed before Election Day, as proof that Gore's case was a moot one. Even reading the Constitution of the United States, they argued, proved that the legislature had supremacy in the selection of delegates to the Electoral College.

The real argument was this: Should Florida recount its ballots indefinitely, until accurate returns could be tallied, or should Florida certify the existing results? The Court heard the case on November 20, 2000.

The Verdict

On the evening of November 21, 2000, the Court ruled unanimously that Harris had abused her discretion. They allowed manual recounts to go forward, but mandated that the count be completed by 5 PM on November 26, 2000. According to the Court, the right to vote was not to be yielded "for the sake of sacred, unyielding adherence to statutory scripture."

Liberals applauded. Conservatives began mass protests outside of election boards in South Florida. Dick Cheney had a mild heart attack. Perhaps most importantly, lawyers for the Bush campaign made a bee line to Washington, D.C. to file an appeal in the United States Supreme Court, which was argued as Bush v. Palm Beach County Canvassing Board. The battle was lost, but not the war.

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