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0001
1 IN THE CIRCUIT COURT OF THE
SECOND JUDICIAL CIRCUIT, IN
2 AND FOR LEON COUNTY, FLORIDA.
3
4 ALBERT GORE, JR., et al., CASE NO.00-2808
Plaintiffs,
5 vs.
KATHERINE HARRIS, as Secretary
6 of State, STATE OF FLORIDA, et al.,
7 Defendants.
8 _____________________________________/
9
10
11 IN RE: Ruling
12
13 BEFORE: HONORABLE N. SANDERS SAULS
Circuit Court Judge
14
DATE: Monday, December 3, 2000
15
TIME: Commenced: 4:30 p.m.
16 Concluded: 6:31 p.m.
17 LOCATION: Leon County Courthouse
Courtroom 3D
18 Tallahassee, Florida
19
REPORTED BY: B. J. QUINN, RPR, CMR, CP
20 Certified Realtime Reporter
Notary Public in and for the
21 State of Florida at Large
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0002
1 APPEARANCES:
2 Representing the Plaintiff:
3 DAVID BOIES, ATTORNEY AT LAW
80 Business Park Drive, Suite 110
4 Armonk, New York 10504
5 DEXTER DOUGLASS, ATTORNEY AT LAW
211 East Call Street
6 Tallahassee, Florida 32301
7 E. C. DEENO KITCHEN, ATTORNEY AT LAW
1102 North Gadsden Street
8 Tallahassee, Florida 32301
9 MITCHELL W. BERGER, ATTORNEY AT LAW
215 South Monroe Street, Suite 705
10 Tallahassee, Florida 32301
11 STEVEN ZACK, ATTORNEY AT LAW
12 KENDALL COFFEY, ATTORNEY AT LAW
13 GEORGE J. TERWILLIGER, III, ATTORNEY AT LAW
601 13th Street, NW

14 Suite 600 South
Washington, D.C. 20005-3807
15
Representing the Defendant:
16
FRED H. BARTLIT, ATTORNEY AT LAW
17 -and-
PHILIP BECK, ATTORNEY AT LAW
18 -and-
GLEN E. SUMMERS, ATTORNEY AT LAW
19 1899 Wynkoop Street, 8th Floor
Denver, Colorado 80202
20
IRVIN TERRELL, ATTORNEY AT LAW
21 1299 Pennsylvania Avenue, NW
Washington, D.C. 20004-2400
22
BARRY RICHARD, ATTORNEY AT LAW
23 101 East College Avenue
Tallahassee, Florida 32301
24
25
0003
1 APPEARANCES:
2
3 Representing the Secretary of State:
4 JOSEPH KLOK, ATTORNEY AT LAW
-and-
5 THOMAS M. KARR, ATTORNEY AT LAW
200 South Biscayne Boulevard
6 Miami, Florida 33131-2398
7 Representing Miami-Dade Canvassing Board:
8 MURRAY GREENBURG, ATTORNEY AT LAW
(Via Telephone)
9 111 Northwest First Street
10 Miami, Florida 33128
11 Representing Nassau County Canvassing Board:
12 MICHAEL S. MULLIN, ESQUIRE.
Via Telephone
13 Post Office Box 1010
Fernandina Beach, Florida 32035-101
14
15 Representing:
16 GARY RUTLEDGE, ATTORNEY AT LAW
215 South Monroe Street, Suite 420
17 Tallahassee, Florida 32301
18
Representing Palm Beach County Canvassing Board:
19
ANDREW McMAHON, ATTORNEY AT LAW
20 501 North Olive Avenue, Suite 601
West Palm Beach, FL 33401-4705
21
22

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0004
1 APPEARANCES:
2
3 Representing Intervenors, Carr, et al.:
4 WILLIAM KEMPER JENNINGS, ATTORNEY AT LAW
Three Clifford Drive
5 Shalimar, Florida 32579
6
Representing Intervenors, Cruce, et al.:
7
FRANK MYERS, ESQUIRE
8 -and-
9 MANUEL KLAUSNER, ATTORNEY AT LAW
215 South Monroe Street, Suite 700
10 Tallahassee, Florida 32301
11 Representing Intervenor, Butler:
12 TERRELL C. MADIGAN, ATTORNEY AT LAW
-and-
13 CHRIS BARKAS, ATTORNEY AT LAW
Post Office Box 2174
14 Tallahassee, Florida 32302
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0005
1 INDEX
2 ITEM PAGE
3 PROCEEDINGS COMMENCEMENT
4 CERTIFICATE OF REPORTER 00
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0006
1 PROCEEDINGS
2 THE COURT: All right. At this time we'd call the case
3 of Albert Gore, et al., versus Catherine Harris, et al. ,
4 Case Number 00-2808.
5 At this time, the action having been tried, the Court
6 at this time will enter its ruling from the bench, as to the
7 exigencies surrounding this case, the ruling and findings
8 shall be incorporated into the final judgment, and shall be
9 immediately entered herein.
10 At this time the Court finds and concludes as follows:
11 The complaint filed herein states in its first paragraph that
12 this is an action to contest the state certification in the
13 presidential election of 2000, asserting that the state
14 Elections Canvassing Commission's certification on in
15 November 26th, 2000, was erroneous, and the vote totals
16 wrongly included illegal votes, and do not include legal
17 votes that were improperly rejected.
18 Plaintiffs further contest the State of Florida's
19 certification of the electors for George W. Bush and Richard
20 Cheney as being elected.
21 They further challenge and contest the election
22 certifications of the Canvassing Boards of Dade, Palm Beach,
23 and Nassau Counties.
24 As to the Dade Canvassing Board, the Plaintiffs seek to
25 compel the Dade board to include in its certification, and
0007
1 the state elections canvassing commission to include in the
2 certification, a six-vote change in favor of Plaintiffs,
3 resulting from the board's initial test and partial manual
4 recount of one-percent of the countywide vote total conducted
5 with respect to three precincts, designated by the Plaintiffs
6 designee.
7 Also, additional votes manually hand-counted, and a
8 further partial recount total resulting from the board's
9 discretionary decision to stop completion of a full manual
10 recount of all the votes and all the precincts in Dade,
11 because of insufficiency of time to complete the same.
12 These represent the results of the count of an
13 additional 136 precincts of the 635 precincts in Dade County.
14 And, also, the results of any Court order, manual
15 review and recount of some nine to ten thousand voter cards
16 or ballots, which at Plaintiff's request, have been
17 separated, or were separated as alleged undervotes by the
18 Dade Canvassing Board, or the Dade Supervisor of Elections,
19 as a result of all of the countywide ballots being processed
20 through the counting machines a third time and being

21 nonreadable by the machine.
22 As to the Palm Beach Canvassing Board, Plaintiffs seek
23 to compel the Palm Beach board to include in its
24 certification, and the State Elections Canvassing Commission
25 to include, in the state certification, additional votes
0008
1 representing the results of an attempted partial
2 certification of results, completed before the November 26th,
3 2000 deadline, mandated by the Florida Supreme Court, as well
4 as the additional remainder of the results of the manual
5 recount, which was completed after the deadline, and the
6 attempted certification thereof on December 1.
7 And in addition, the result of any Court ordered manual
8 review and recount of some 3,300 ballots which were objected
9 to during the Palm Beach board's manual recount which
10 Plaintiffs allege should have been counted as ballot votes
11 because that board used an improper standard.
12 As to Nassau, the Nassau County Canvassing Board, the
13 Plaintiffs seek to compel the Nassau Board to amend its
14 certification, and the State Elections Canvassing Commission
15 to amend the state certification to reflect and include the
16 results of the board's machine recount, rather than the
17 results of the board's original machine count, thereby
18 resulting in a favorable net gain to Plaintiffs, of 51 votes.
19 It is the established law of Florida as reflected in
20 State v. Smith that where changes or charges of irregularity
21 of procedure or inaccuracy of returns in balloting and
22 counting processes have been alleged, that the Court must
23 find as a fact that a legal basis for ordering any recount
24 exists before ordering such recount.
25 Further, it is well established and reflected in the
0009
1 opinion of Judge Joanos and Smith v. Tine, that in order to
2 contest election results under Section 102.168 of the Florida
3 Statutes, the Plaintiff must show that, but for the
4 irregularity, or inaccuracy claimed, the result of the
5 election would have been different, and he or she would have
6 been the winner.
7 It is not enough to show a reasonable possibility that
8 election results could have been altered by such
9 irregularities, or inaccuracies, rather, a reasonable
10 probability that the results of the election would have been
11 changed must be shown.
12 In this case, there is no credible statistical
13 evidence, and no other competent substantial evidence to
14 establish by a preponderance of a reasonable probability that
15 the results of the statewide election in the State of Florida
16 would be different from the result which had been certified
17 by the State Elections Canvassing Commission.
18 The Court further finds and concludes the evidence does
19 not establish any illegality, dishonesty, gross negligence,
20 improper influence, coercion, or fraud in the balloting and
21 counting processes.
22 Secondly, there is no authority under Florida law or

23 certification of an incomplete manual recount of a portion
24 of, or less than all ballots from any county by the state
25 elections canvassing commission, nor authority to include any
0010
1 returns submitted past the deadline established by the
2 Florida Supreme Court in this election.
3 Thirdly, although the record shows voter error, and/or,
4 less than total accuracy, in regard to the punchcard voting
5 devices utilized in Dade and Palm Beach Counties, which these
6 counties have been aware of for many years, these balloting
7 and counting problems cannot support or effect any recounting
8 necessity with respect to Dade County, absent the
9 establishment of a reasonable probability that the statewide
10 election result would be different, which has not been
11 established in this case.
12 The Court further finds that the Dade Canvassing Board
13 did not abuse its discretion in any of its decisions in its
14 review in recounting processes.
15 Fourthly, with respect to the approximate 3,300
16 Palm Beach County ballots of which Plaintiffs seek review,
17 the Palm Beach Board properly exercised its discretion in its
18 counting process, and has judged those ballots which the
19 Plaintiff wish this Court to, again, judge de novo.
20 The old cases upon which Plaintiff rely are rendered
21 upon mandamus prior to the modern statutory election system
22 and remedial scheme enacted by the Legislature of the State
23 of Florida in Chapter 102 of the Florida Statutes.
24 The local boards have been given broad discretion which
25 no Court may overrule, absent a clear abuse of discretion.
0011
1 The Palm Beach County board did not abuse its
2 discretion in its review and recounting process.
3 Further, it acted in full compliance with the order of
4 the Circuit Court in and for Palm Beach County.
5 Having done so, Plaintiffs are estopped from further
6 challenge of this process and standards. It should be noted,
7 however, that said process and standards were changed from
8 the prior 1990 standards, perhaps contrary to Title III,
9 Section (5) of the United States code.
10 Furthermore, with respect to the standards utilized by
11 the Board in its review and counting processes, the Court
12 finds that the standard utilized was in full compliance with
13 the law and reviewed under another standard would not be
14 authorized, thus creating a two-tier situation within one
15 county, as well as with respect to other counties.
16 The Court notes that the Attorney General of the State
17 of Florida enunciated his opinion of the law with respect to
18 this, in a letter dated November 14, 2000, to the Honorable
19 Charles E. Burton, Chair of the Palm Beach County Canvassing
20 Board, which, in part, is as follows: "A two-tier system
21 would have the effect of treating voters differently,
22 depending upon what county they voted in."
23 The voter in a county where a manual count was
24 conducted, would benefit from having a better chance of

25 having his or her vote actually counted, than a voter in a
0012
1 county where a hand count was halted. As the State's chief
2 legal officer, I feel a duty to warn that the final certified
3 total for balloting in the State of Florida includes figures
4 generated from this two-tier system of differing behavior by
5 official Canvassing Boards, the State will incur a legal
6 jeopardy under both the United States and the state
7 constitutions.
8 This legal jeopardy could potentially leave Florida
9 having all of its votes, in effect, disqualified, and this
10 state being barred from the Electoral College's election of a
11 President.
12 The Court finds further that the Nassau County
13 Canvassing Board did not abuse its discretion in its
14 certification of Nassau County's voting results.
15 Such actions were not void or illegal, and was done
16 with the proper exercise -- within the proper exercise of its
17 discretion upon adequate and reasonable public notice.
18 Further, this Court would further conclude and find
19 that the properly stated cause of action under
20 Section 102.168 of the Florida Statutes to contest a
21 statewide federal election, the Plaintiff would necessarily
22 have to place at issue and seek as a remedy with the
23 attendant burden of proof, a review and recount on all
24 ballots, and all of the counties in this state with respect
25 to the particular alleged irregularities or inaccuracies in
0013
1 the balloting or counting processes alleged to have occurred.
2 As recently stated by Judge Kline with the concurrence
3 of Chief Judge Warner in the Fourth District Court of Appeal
4 case, of Bedell v. Palm Beach Canvassing Board,
5 Section 102.168 provides in Subsection (1) that the
6 certification of elections may be contested for presidential
7 elections. Section 103.011 provides that, "The Department of
8 State shall certify as elected the presidential electors of
9 the candidates for President and Vice President who receive
10 the highest number of votes."
11 There is in this type of election, one statewide
12 election, and one certification. Palm Beach County did not
13 elect any person as a presidential elector, but, rather, the
14 election with the winner-take-all proposition, dependent on
15 the statewide vote.
16 Finally, for the purpose of expedition, due to the
17 exigencies surrounding these proceedings, this Court will
18 deny those portions of the pending motions to dismiss of the
19 various parties herein not affected by or ruled upon in these
20 findings and conclusions in those portions consisting solely
21 of matters of law being reviewable upon such denial.
22 In conclusion, the Court finds that the Plaintiff
23 failed to carry the requisite burden of proof, and the
24 judgment shall be hereby entered, and the Plaintiffs will
25 take nothing by this action. All ballots in the possession
0014

1 of the Clerk of this Court shall remain pending review. A
2 judgment will be entered and filed with the Clerk immediately
3 following the hearing.
4 (HEARING CONCLUDED AT 4:48 P.M.)
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0015
1 , through 14, are a true and correct record of the aforesaid
proceedings.
0016
1 Certified Realtime Reporter
2 519 East Park Avenue
3 Tallahassee, Florida 32301
4 (850)222-5508
5 My Commission Expires March 20, 2001
6
7 CERTIFICATE OF NOTARY
8
9 STATE OF FLORIDA:
10 COUNTY OF LEON:
11
12 I, B. J. QUINN, Notary Public in and for the
13 State of Florida at Large, do hereby certify that the witness
14 personally appeared before me and was first duly sworn by me to
15 testify to the truth on the date and time indicated herein.
16
17 B. J. QUINN, RPR, CCR, CMR
18 Certified Realtime Reporter
19 519 East Park Avenue
20 Tallahassee, Florida 32301
21 (850) 222-5508.
0017
1 16
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