Sent: Saturday, December 09, 2000 2:15 AM
Subject: Florida Recount Update
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Bush Recount News
1 Talking Points: Summary of Florida Supreme Court Decision
2 Help the Bush Cheney Florida Recount Effort
3 Dissenting Opinion of Chief Justice Charles J. Wells
4 Statement By Secretary James Baker
5 What They're Saying...
"Well, if you're a fan of chaos, you're in Nirvana."
- John Shubin [Florida Elections Expert] MSNBC, 12/08/00
SUMMARY OF FLORIDA SUPREME COURT DECISION
~ A deeply divided Florida Supreme Court has opened up a Pandora's
box of inconsistent standards, flawed hand counting, and delays
that call into question Florida's ability to be represented in
the Electoral College.
~ Further, the court's narrow, liberal majority has made a mockery
of the idea of "counting every vote" by selecting only certain
ballots and providing no standard to count them. The four
activist justices rewrote Florida's election laws after the
election -- a clear violation of federal law.
~ Florida Supreme Court Chief Justice Wells offered a stinging and
forceful dissent; concluding:
~ "The majority's decision cannot withstand the scrutiny which
will certainly immediately follow under the United States
~ "The majority's decision to return the case to the circuit
court for a count of the under-votes from Miami-Dade County or
all counties has no foundation in the law of Florida as it
existed on November 7, 2000..."
~ "I have a deep and abiding concern that the prolonging of
judicial process in this counting contest propels this country
and this state into an unprecedented and unnecessary
~ Judge Wells said the county-by county decision-making on the
"clear indication of the intent of the voter": "is fraught with
equal protection concerns which will eventually cause the
election results in Florida to be stricken by the federal courts
~ For example, in Miami-Dade County, the justices reinstated 168
votes that were awarded to Gore as the result of manual recounts
conducted in only some precincts - all of them overwhelmingly
Democratic. This would be the ultimate in treating some votes
differently from others.
~ The Court ordered a recount of all counties' undervotes, but
there are five major problems:
~ First, in many counties the undervotes aren't even segregated,
so they will have to be machine tabulated and separated. We
know this causes chads to fall off ballots and other
degradation of ballots.
~ Second, 16 counties don't even know which of their non-votes
are undervotes and which are overvotes.
~ Third, even in counties that have attempted to separate the
undervote, there are serious problems. In Miami-Dade, the
number of undervotes submitted to the Circuit Court is
different from the number identified in the November 8
machine recount. There can be no confidence that the pool of
undervotes is untainted and consistent.
~ Fourth, the majority accepted two different standards (the
liberal Broward standard and the more objective Palm Beach
standard) further proving votes are treated differently in
~ Fifth, as Chief Justice Wells said, the liberal court
majority failed "to make provision for: (1) the
qualifications of those who count; (2) what standards are
used in the count-are they the same standards for all
ballots statewide or a continuation of the county-by-
county constitutionally suspect standards; (3) who is to
observe the count; (4) how one objects to the count; (5)
who is entitled to object to the count; (6) whether a
person may object to a counter; (7) the possible lack of
personnel to conduct the count; (8) the fatigue of the
counters; and (9) the effect of the differing intra-county
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DISSENT OF CHIEF JUSTICE CHARLES J. WELLS
"I...believe that the majority's decision cannot withstand
scrutiny which will certainly immediately follow under the United
"I want to make it clear at the outset of my separate opinion that
I do not question the good faith or honorable intentions of my
colleagues in the majority. However, I could not more strongly
disagree with their decision to reverse the trial court and
prolong this judicial process. I also believe that the majority's
decision cannot withstand the scrutiny which will certainly
immediately follow under the United States Constitution.
"My succinct conclusion is that the majority's decision...has no
foundation in the law of Florida as it existed on November 7, 2000,
or at anytime until the issuance of this opinion. The majority
returns the case to the circuit court for this partial recount of
under-votes on the basis of unknown or, at best, ambiguous
standards with authority to obtain help from others, the
credentials, qualifications, and objectivity of whom are totally
unknown. That is but a first glance at the imponderable problems
that the majority creates.
"This case has reached the point where finality must take
precedence over continued judicial process. I agree with a quote
from John Allen Paulos, a professor of mathematics at Temple
University, when he wrote that, "[t]he margin of error in this
election is far greater than the margin of victory, no matter who
wins." Further judicial process will not change this self-evident
fact and will only result in confusion and disorder. Justice
Terrell and this Court wisely counseled against such a course of
action sixty-four years ago. I would heed that sound advice and
affirm Judge Sauls.
STATEMENT BY FORMER SECRETARY OF STATE JAMES A. BAKER, III
December 8, 2000
Ladies and Gentlemen,
This has been a rather eventful day here in Tallahassee. Two
Circuit Court opinions throwing out challenges to absentee ballots
in Seminole and Martin counties. A federal judge ordering the
counting of overseas absentee ballots in many counties that were
not counted for technical reasons. And of course, the
disappointing 4 to 3 decision of the Florida Supreme Court just
announced, which will require manually recounting tens of
thousands of non-votes and undervotes in all Florida counties that
have not yet had a manual recount - and trying to do so by
This is what happens when for the first time in modern history, a
candidate resorts to lawsuits to try to overturn the outcome of
an election for President. It is very sad. For Florida, for the
nation, and for our democracy.
Today's ruling by four justices of the Florida Supreme Court is of
course a disappointment. Its reasoning and result place the Court
once again at odds with sound judgments of Florida's lower courts,
the Florida Legislature, local election officials, and, in our
view, the US Supreme Court. This action will unfortunately
produce ongoing uncertainty and could ultimately disenfranchise
Florida's votes in the Electoral College.
The ruling of the Florida Court's four justices is flawed in much
the same way we think as its November 21 ruling that was vacated
unanimously by the United States Supreme Court.
Let me read you what Chief Justice Wells said in part of his
"I...believe that the majority's decision cannot withstand the
scrutiny which will certainly immediately follow under the United
States Constitution... [T]he majority's decision to return this
case to the circuit court for a count of the under-votes from
either Miami-Dade County or all counties has no foundation in the
law of Florida as it existed on November 7, 2000, or at any time
until the issuance of this opinion... [T]he prolonging of
judicial process in this counting contest propels this country and
this state into an unprecedented and unnecessary constitutional
crisis. I have to conclude that there is a real and present
likelihood that this constitutional crisis will do substantial
damage to our country, our state, and to this Court as an
institution." [pp. 41-42]
We agree with the three justices who dissented from the action of
the other four. We believe this ruling is inconsistent with
Florida law, federal law, and the United States Constitution.
Therefore, we have no alternative other than to appeal once again
to the United States Supreme Court for relief. We have already
put in motion the process to do so.
WHAT THEY'RE SAYING...
Judge Andrew Napolitano [Fox News Legal Analyst]: "...what is
this doing? Changing the rules yet again, in the face of a federal
law that says you can't change counting procedures and rules after
six days prior to the election."
-Fox News Channel, 12/08/00
Jim Axelrod [CBS News Correspondent]: "One of the first people I
saw after the Supreme Court ruling was Dexter Douglass, a member of
the Gore legal team. I asked him what was next. He said, 'Chaos.'
So far, nothing's been done to help clarify the situation."
-CBS Evening News, 12/08/00
Tim Russert [NBC News]: "...we could have chaos and a
constitutional crisis...This is as close to a political civil war
as I've ever witnessed."
-NBC Nightly News, 12/08/00
Mike Isikoff [Newsweek Magazine]: "...The Republicans got a bit
of a shot in the arm. I was just reading the dissent of Chief
Justice Wells on this case, and he is pretty stinging. It is
surprising language from a chief justice of a state court. He
pretty much says flatly that his colleagues were wrong as a matter
of law. They're going to be reversed by--he predicts they will be
reversed by the U.S. Supreme Court, and also projects--talks about
a constitutional crisis that is going to flow from this. So if
the Republicans need some leg to hang their position on, they've
got it in this dissent..."
John Gibson: "Mike Isikoff, a crucial question is here. What
standard is this recount going to be counted under? Any clue?"
Mike Isikoff: "No. That is exactly the question that I think is
going to loom largest over the next few days."
-Fox News Channel, 12/08/00
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