Throughout the last few weeks in Florida, the Secretary of State has
tried to justify her actions as strictly legal enforcement of
Florida’s laws. Make no mistake about it, she has been creating
rules as she goes based on her interpretation of Florida law. Not
surprisingly, ever one of her decisions helped Bush and hurt Gore.
Of course, she thinks Florida law allows her to do this. However,
if we are to take a strict reading of Title 3 Section 5 of the US Code,
as Bush's lawyers would have us do, then no change in election law is allowed
after the election. Therefore, Florida's law that allows changes
in the law after election day is unconstitutional itself, because by granting
an executive agency the power to change election laws after Election Day
renders obsolete the constitutional provisions in Title 3, Section 5.
If we can get past such a strict interpretation of Title 3, Section 5,
then it may be acceptable for the Secretary of State to exercise her statutorily
granted powers.
(For two brief examples of how Harris changed the election law after
the election, click here)
Also, Read about how Harris muddled
the law regarding the counting of absentee ballots
The following is a detailed example of an effort by Harris to change election law and the court battle that ensued:
Consider this clause from Florida's election laws that spell out the
threshold for further recounts following a manual recount of
1% of the ballots in a county....
102.166 Protest of election returns; procedure.--
5) 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 Department of State to verify the tabulation software;
or
(c) Manually recount all ballots.
That's all the law says about when a county may conduct a manual recount
of every ballot during a protest. What do you think
the legislature means when it says "error in vote tabulation?"
Do you see a difference between vote tabulation and vote
tabulation system?
Florida's Secretary of State (aka Bush's Florida Campaign Manager) issued
several legal advisory opinions designed to stop the manual recounts based
on her interpretation of what the statute means. She told counties
that an error in vote tabulation really means an error in the vote tabulation
system (she added the word system to the end of vote tabulation in the
first sentence). Therefore, only a machine error could justify
a manual recount and such an error did not include the inability of the
system to read partially punched ballots (i.e., those with hanging chads).
In no uncertain terms, she decided what the rules of the election were
going to be after the election was held by attempting to define what she
thinks the legislature meant when it used the phrase "error in vote tabulation."
However, the state’s Attorney General (aka Gore’s Florida campaign manager)
issued its own legal advisory opinion
concerning that particular statutory phrase. He argued that the
statute clearly differentiates between vote tabulation and vote
tabulation system in its statutory language. The former refers to the
vote count while the latter refers to the system on which
those votes were counted. He argued then that according to the
statute, any error in vote tabulation (i.e., the vote count) was
grounds for a manual recount regardless of the cause. The statute
in noway suggests that such an error has to be caused by
a problem with the vote tabulation system as Harris asserted.
Furthermore, other sections of the statute describe the
procedure for visually inspecting ballots to discern the will of the
voter during manual recounts. Such a procedure would only
be necessary if the legislature envisioned a scenario wherein the machines
were functioning properly but not able to read certain
ballots. If the legislature was only concerned about errors caused
by malfunctioning vote counting systems, the obvious remedy
would be to fix or replace the machine(s) and then recount the ballots,
not allow for a full manual recount of every ballot.
Clearly, when a county recounts 1% of its ballots by hand and then
runs those back through the machine only to get two
different numbers, then there is an error in the vote tabulation.
The statute does not say whether or not that error has to be
caused by a machine malfunction in order to trigger a recount; only
Katherine Harris said that.
Since the Attorney General's interpretation of the law conflicted with
the Secretary of State's, the court was required to resolve
this dispute between two members of the executive branch . They
unanimously dissented with Harris’s interpretation of the
statute. In other words, they felt that the rules she was creating
during the course of an election that would have the net effect
of determining the winner of the election were not based on the statute.
Here is the Florida Supreme Court in their own words:
Florida courts generally will defer to an agency’s interpretation
of statutes and rules the agency is charged with implementing
and enforcing. Florida courts, however, will not defer to an agency’s
opinion that is contrary to law. We conclude that the
Division’s advisory opinion regarding vote tabulation is contrary to
law because it contravenes the plain meaning of section
102.166(5).
The issue in dispute here is the meaning of the phrase "error in the
vote tabulation" found in section 102.166(5). The Division
opines that an “error in the vote tabulation” only means a counting
error resulting from incorrect election parameters or an error
in the vote tabulating software. We disagree.
The plain language of section 102.166(5) refers to an error in the vote
tabulation rather than the vote tabulation system. On its
face, the statute does not include any words of limitation; rather,
it provides a remedy for any type of mistake made in
tabulating ballots. The Legislature has utilized the phrase "vote tabulation
system" and "automatic tabulating equipment" in
section 102.166 when it intended to refer to the voting system rather
than the vote count. Equating "vote tabulation" with "vote
tabulation system" obliterates the distinction created in section 102.166
by the Legislature.