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IN THE
SUPREME COURT OF FLORIDA
CASE NO. SC00-2431
DCA Case No. 1D00-4745
ALBERT GORE, JR., ET AL.
vs. KATHERINE HARRIS, ETC.,
ET AL.
Appellants
Appellees
__________________________________________________________
BRIEF OF THE SECRETARY OF STATE
AND THE ELECTIONS CANVASSING COMMISSION
__________________________________________________________
Deborah K. Kearney
Joseph P. Klock, Jr.
General Counsel
John W. Little, III
Kerey Carpenter
Alvin F. Lindsay III
Assistant General Counsel
Robert W. Pittman
Florida Department of State
Gabriel E. Nieto
PL-02 The Capitol
Walter J. Harvey
Tallahassee, Florida 32399-0250
Ricardo Martinez-Cíd
(850) 414-5536
Steel Hector & Davis LLP
215 South Monroe Street, Suite 601
Tallahassee, Florida 32301
(850) 222-2300
(805) 222-8410
Counsel for Appellees

TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
I.
THIS COURT'S DISCRETIONARY JURISDICTION . . . . . . . . . . . . . 1
II.
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
III.
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A.
THE ELECTIONS CANVASSING COMMISSION
PROPERLY CERTIFIED THE ELECTION RETURNS . . . . . . . . 2
B.
THE APPELLANTS FAILED TO PROVE THAT THE ALLEGED
IRREGULARITIES ON A STATEWIDE LEVEL WOULD HAVE
CHANGED THE RESULT OF THE ELECTION . . . . . . . . . . . . . 3
IV.
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
V.
CERTIFICATE OF FONT SIZE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ii

TABLE OF AUTHORITIES
CASES
Broward County Canvassing Board v. Hogan, 607 So. 2d 508 (Fla. 4th DCA 1992)4
McQuagge v. Conrad, 65 So. 2d 851 (Fla. 1953) . . . . . . . . . . . . . . . . . . . . . . . . 4
Napp v. Dieffenderfer, 364 So. 2d 534 (Fla. 3d DCA 1978) . . . . . . . . . . . . . . . . 4
Nelson v. Robinson, 301 So. 2d 508 (Fla. 2d DCA 1974) . . . . . . . . . . . . . . . . . 4
Smyth v. Tynes, 412 So. 2d 925 (Fla. 1st DCA 1982) . . . . . . . . . . . . . . . . . . . . 4
State ex rel. Pooser v. Webster, 170 So. 736 (Fla. 1936) . . . . . . . . . . . . . . . . . . 4
State ex rel. Whitley v. Rinehart, 192 So. 819 (Fla. 1940) . . . . . . . . . . . . . . . . . . 4
FLORIDA STATUTES
Section 102.111, Florida Statutes (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 102.112, Florida Statutes (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 102.131, Florida Statutes (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 102.151, Florida Statutes (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 102.166(5)(c), Florida Statutes (2000) . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 102.168, Florida Statutes (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,8
Section 102.168(1) & (3)(a-e), Florida Statutes (2000) . . . . . . . . . . . . . . . . . . . . 4
Section 103.011, Florida Statutes (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
iii

BENCH OPINIONS
Bench Op. at 12:13-13:1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Bench Op. at 12:21-13:1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Bench Op. at 13:7-13:15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Bench Op. at 9:12-9:16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Tr. vol. III at 190-191 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Tr. vol. IV at 40:24-41:16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
iv

I. THIS COURT'S DISCRETIONARY JURISDICTION
The Court has ordered that briefs in this matter address the issue of the
Court's exercise of its discretion to accept this case. The Florida Rules of
Appellate Procedure provide that the Supreme Court has discretionary jurisdiction
to review orders and judgments of trial courts certified by district courts of appeal
if the appeal requires immediate resolution and is a matter of great public
importance. Fla. R. App. Proc. 9.030(B)(i) (2000). The Secretary of State
("Secretary") and the Elections Canvassing Commission ("Commission")
acknowledge the applicability of this rule to the present case and leave it to the
sound discretion of the Court as to whether it should exercise its jurisdiction here.
II. SUMMARY OF THE ARGUMENT
In this case, Appellants must show that but for the irregularities alleged in the
complaint, the Democratic Party's slate of electors would have won the statewide
election. If the election contest proceeding provided for by section 102.168,
Florida Statutes, is crafted to review alleged election irregularities affecting the
election of Presidential electors it must be as a whole. Therefore, Appellants'
burden must be met by demonstrating that any irregularity was pervasive enough
within the entire state so that, if corrected, the actual statewide results of the
-1-

election would have been different. The Appellants did not meet this burden;
therefore, the order below should be affirmed.
III. ARGUMENT
A.
THE ELECTIONS CANVASSING COMMISSION PROPERLY
CERTIFIED THE ELECTION RETURNS
The Commission is charged with canvassing election returns, certifying the
results of the election, and declaring a winner for each office based on that
certification. § 102.111, Fla. Stat. (2000). In performing this certification function,
the Commission is not allowed to look beyond the face of a county's return or
question its veracity. § 102.131, Fla. Stat. (2000). The Commission can only
reject a return that "appear[s] to be irregular or false so that the [Commission] is
unable to determine the true vote . . . ." Id.
The Appellants argued that the Commission should have rejected an
amended certification from Nassau County and accepted a purported amended
certification from Palm Beach County. Nassau County's amended certification
was received before the deadline imposed by sections 102.111 and 102.112,
Florida Statutes. The amended certification did not appear irregular or false, and
the Commission had no power to reject it.
-2-

Palm Beach County sent the Commission a letter by facsimile purportedly
enclosing an amended certification. This "amended certification" was irregular and
could not be accepted by the Commission. On its face, the "amended
certification" did not comply with section 102.151, Florida Statutes, because it did
not contain "the total number of votes cast for each person nominated or elected . .
. ." To the extent the "amended certification" reported anything, it reported a
partial manual recount, in violation of the only state statute dealing with manual
recounts that requires a canvassing board to "recount all ballots." § 102.166(5)(c),
Fla. Stat. (2000) (emphasis added). Accordingly, the Commission was authorized
to reject the irregular return and to include the previously submitted Palm Beach
County return in its final certification, which were also restated in the purported
"amended certification."
B.
THE PETITIONER FAILED TO PROVE THAT THE ALLEGED
IRREGULARITIES ON A STATEWIDE LEVEL WOULD HAVE
CHANGED THE RESULT OF THE ELECTION
Florida law provides for a contest to challenge the certified results of an
election on the grounds of: (a) misconduct, fraud, or corruption on the part of any
election official sufficient to change or place in doubt the result of the election; (b)
ineligibility of the successful candidate; (c) receipt of a number of illegal votes or
rejection of a number of legal votes sufficient to change or place in doubt the result
-3-

of the election; (d) bribes; and (e) any other allegation that if sustained would show
that a person other than the successful candidate was the person elected. §
102.168(1) & (3)(a-e), Fla. Stat. (2000).
Florida law is clear that "[t]here is no reason to require a recount unless there
is a positive and clear assertion, allegation or claim that such recount will change
the result of the election." McQuagge v. Conrad, 65 So. 2d 851, 853 (Fla. 1953)
(emphasis added).1 A complaint seeking to overturn an election fails to state a
cause of action unless it sets forth grounds that, if true, would show a reasonable
probability that the election result would change if the irregularities complained of
were corrected. A plaintiff must, therefore, show something more than that the
result "might" have been different or that there was a "mere possibility that the
outcome of the election would have been different." Broward County Canvassing
Board v. Hogan, 607 So. 2d 508, 509 (Fla. 4th DCA 1992); Smyth v. Tynes, 412
So. 2d 925 (Fla. 1st DCA 1982); Napp v. Dieffenderfer, 364 So. 2d 534 (Fla. 3d
DCA 1978).
1 See also State ex rel. Whitley v. Rinehart, 192 So. 819, 820 (Fla. 1940);
State ex rel. Pooser v. Webster, 170 So. 736, 739 (Fla. 1936); Smith v. Tynes, 412
So. 2d 925, 926-27 (Fla. 1st DCA 1982); Nelson v. Robinson, 301 So. 2d 508, 511
(Fla. 2d DCA 1974).
-4-

In this case, the Appellants must show that but for the irregularities alleged
in the complaint, the Democratic Party's slate of electors would have won the
statewide election. This burden must be met by demonstrating that any irregularity
was pervasive enough within the entire state so that if corrected the actual
statewide results of the election would have been different. The Appellants cannot
carry this burden in a statewide election by merely demonstrating that a defect
would have changed the returns in isolated counties.
For example, if a deficiency in one type of ballot causes certain votes to not
be counted to the extent that it would change the result of the election, the correct
remedy is to recount all ballots in the election. Counting less than all of the ballots
potentially affected by the defect produces results skewed by factors unrelated to
the alleged defect, such as the differing types of voting systems employed among
counties and, more importantly, the counties' differing political demographics.
Recounting a subset of counties selected by the Appellants does not answer the
ultimate question of whether there was a defect that would have changed the result
of the statewide election. At most, such a procedure only demonstrates that the
losing candidate would have had greater success in the subset of counties most
favorable to that candidate.
-5-

Consistent with this approach, Judge Sauls found the suggested
methodology of manually recounting the no-votes in only two selected counties and
adding those to the total to be fundamentally flawed, because the Appellants were
required to "place at issue and seek as a remedy with the attendant burden of
proof, a review and recount on all ballots, and all of the counties in this state with
respect to the particular alleged irregularities or inaccuracies in the balloting or
counting processes alleged to have occurred." Bench Op. at 12:13-13:1(emphasis
added).
No-votes (ballots for which no vote for Presidential electors was recorded)
exist throughout the state, not just in those counties selected by the Appellants. Of
the 175,655 no-votes in the November 7, 2000, election in Florida, 28,492 occurred
in Miami-Dade County and 29,366 occurred in Palm-Beach County. Division of
Elections, Voter Turnout Report, S-DX 41; Division of Elections, General Election
Results, S-DX 40.2 Although the Democratic slate of electors won Miami-Dade
County by 6% of the votes and won Palm Beach County by 25.25%, the
Republican slate won the majority of the remaining 65 Florida counties. Selective
2 Exhibits and documents in the record will be referred to by the exhibit
numbers used in the trial court. Citations to the trial transcript will be cited by
volume and page number.
-6-

recounts in Miami-Dade and Palm Beach counties alone thus skew the election
results in favor of the Democratic slate of electors.
Much like the selective recount of no-votes, the application of disparate
standards for judging voter intent from ambiguous ballots will give greater weight to
one county's votes. Many counties throughout the state applied far more rigid
standards than those applied in Palm Beach County.3 If the Appellants were
allowed to substitute the even more liberal standard that they advocate solely for
Palm Beach County, the election results would be further skewed in favor of the
Democratic slate of electors.
In this case, the Appellants never sought manual recounts of all the ballots in
Florida's 67 counties; nor did they seek recounts of the 117,797 Florida no-votes.
Instead, they sought to recount selected no-votes, or undervotes, in two counties
where the Democratic slate of electors garnered 6% (Miami-Dade) and 25.25%
(Palm Beach) more votes than the Republican slate. Complaint, passim. The
Appellants' own expert, Professor Nicolas Hengartner, testified that determinations
of voters' intent resulted in additional "found" votes in proportion to the overall
results (with the Republican slate of electors even receiving a slightly greater
3 Counties that did no manual recount required all votes to be read by the
machines, which meant that the voters had to follow instructions. In Palm Beach
County, shifting criteria were used.
-7-

percentage). Tr. vol. III at 190-191. Thus, it was especially important for the
Appellants to make a prima facia showing of a "reasonable probability" that any
similar manual recount of votes in the remaining 65 counties (where the Republicans
garnered more votes than the Democrats) would have changed the outcome. Mr.
Hengartner admits that the Appellee's attempts to use figures from a 20% manual
recount in heavily Democratic precincts and extrapolate to predict the results of a
county-wide recount were not in accordance with sound statistical practice. Tr.
vol. IV at 40:24-41:16. To extrapolate these figures to predict statewide results
would be even more egregious. Judge Sauls correctly found that the Appellants
failed to satisfy this burden of proof. In addition, Florida law does not permit an
election to be decided by statistical sample.
The court below correctly reasoned that the selective recounting requested
by the Appellants is not available under the election contest provisions of section
102.168. Instead, to properly state a cause of action to contest a statewide
election:
the plaintiff would necessarily have to place at issue and
seek as a remedy with the attendant burden of proof, a
review and recount of all ballots in all the counties in this
state with respect to the particular alleged irregularity or
inaccuracy in the balloting or counting processes alleged to
have occurred.
-8-

Bench Op. at 12:21-13:1.
As Judge Sauls further recognized, section 103.011 provides that:
The Department of State shall certify, as elected, the
presidential electors of the candidates for president and vice
president who receive the highest number of votes. There
is in this type of election one statewide election and one
certification. Palm Beach County did not elect any person
as a presidential elector, but, rather, the election [was] a
winner-take-all proposition, dependent on the statewide
vote.
Bench Op. at 13:7-13:15.
Judge Sauls' conclusions are supported by the opinion of Florida's Attorney
General, Bob Butterworth, cited in the trial court's opinion. On November 14,
2000, Mr. Butterworth issued a legal opinion requested by the Palm Beach
Canvassing Board. In the cover letter to the opinion, the Attorney General opined
that as the State's chief legal officer, he had a duty to warn that if a final-certified-
election total was based on hand recounts in certain, but not all, counties, it would
create a two-tier system causing the State to incur "legal jeopardy, under both the
U.S. and State constitutions" that could potentially lead to Florida having all of its
votes "disqualified" and being "barred from the Electoral College's selection of a
President." S-DX 36, November 14, 2000, Opinion of Robert A. Butterworth,
-9-

Florida Attorney General, to the Honorable Charles E. Burton, Chair, Palm Beach
County Canvassing Board.
In sum, the only way the Appellants could have successfully brought this
contest was by proving that correcting the alleged irregularities or inaccuracies on a
statewide basis would have changed the outcome of the election. Judge Sauls
correctly found that "[i]n this case, there is no credible statistical evidence, and no
other substantial evidence to establish . . . that the results of the statewide election .
. . would be different." Bench Op. at 9:12-9:16. His order was well supported by
the record and established case law and should be affirmed.
IV. CONCLUSION
For the reasons expressed, Appellees respectfully request that this Court
affirm the order of Judge Sauls.
V. CERTIFICATE OF FONT SIZE
This Brief is typed using a Times New Roman 14-point font.
-10-

Respectfully submitted,
STEEL HECTOR & DAVIS LLP
By: ________________________ ___________________________
Deborah K. Kearney
Joseph P. Klock, Jr.
General Counsel
Fla. Bar No. 156678
Florida Bar No. 0334820
John W. Little, III
Florida Department of State
Fla. Bar No. 384798
Tallahassee, Florida 32399-0250
Alvin F. Lindsay III
(850) 414-5536
Fla. Bar No. 939056
Robert W. Pittman
Bill L. Bryant, Jr.
Fla. Bar No. 029744
Katz, Kutter, Haigler, Alderman Gabriel E. Nieto
Bryant & Yon, P.A.
Fla. Bar No. 0147558
Special Counsel to Comm'r
Walter J. Harvey
Crawford
Fla. Bar No. 074144
Highpoint Center, 12th Floor
Ricardo Martinez-Cíd
106 East College Avenue
Fla. Bar No. 383988
Tallahassee, Florida 32301
Steel Hector & Davis LLP
(850) 224-9634
215 South Monroe Street
Tallahassee, Florida 32301
(850) 222-2300
Counsel for Respondents
-11-

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been furnished
by United States Mail and facsimile transmission this 6th day of December, 2000 to
the following:
Mitchell W. Berger
Barry Richard
Berger Davis & Singerman
Greenberg Traurig
350 East Las Olas Boulevard
101 East College Avenue
Suite1000
Tallahassee, FL 32301
Fort Lauderdale, FL 33301
for Governor Bush
for Albert Gore, Jr. and Joseph I.
Lieberman
W. Dexter Douglass
Ben Ginsburg
Douglass Law Firm
State Republican Headquarters 420
211 East Call Street
West Jefferson Street
Tallahassee, FL 32302
Tallahassee, FL 32301
for Albert Gore and Joseph I. for the Republican Party
Lieberman
Tucker Ronzetti
Michael S. Mullin
Assistant County Attorney
191 Nassau Place
111 NW First Street
Yulee, Florida 32097
Miami, FL 33130
for Nassau County Canvassing Board
for Miami-Dade Canvassing Board
Harold McLean, Senior Attorney
Bruce Rogow
Agriculture & Consumer Services
Bruce S. Rogow, P.A.
515 Mayo Building
500 E. Broward Boulevard, Suite 1930
407 South Calhoun Street
Fort Lauderdale, FL 33394
Tallahassee, FL 32399
for Palm Beach Canvassing Board
-12-

Andrew McMahon
Palm Beach County Attorney
301 North Olive Avenue, Suite 601
West Palm Beach, FL 33401-4705
for Palm Beach Canvassing Board
R. Frank Myers, Esquire
Terrell C. Madigan
Post Office Box 1876
Harold R. Mardenborough Jr.
215 South Monroe Street, Suite701
McFarlain, Wiley, Cassedy& Jones
Tallahassee, FL 32302-1876
215 South Monroe Street
for Interveners: Stephen Cruce, Teresa
Suite 600 (32301)
Cruce, Terry Kelly &
Post Office Box 2174
Jeanette K. Seymour
Tallahassee, FL 32316-2174
for Intervener: Matt Butler
________________________________________
Joseph P. Klock, Jr.
MIA_1998/634785-3
-13-

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