Propriety of Stay?

[Greg Sisk]

In answer to Mark Tushnet's question about the reasons for the halt
in the recount in Miami-Dade county, on November 22, the Miami-Dade
County Canvassing Board unanimously decided to halt its manual
recount, after counting 136 of the 635 precincts in the county.  The
Board's oral decision delivered publicly was transcribed as an
official record and that transcript was part of the court record in
what became Bush v. Gore.  Judge Leahy of the Board explained the
Board's decision, while the other two members concurred:  "I vote
yes, and let me just state why I want to do that briefly. . . .  We
are voting in some precincts and it would be unfair it we can't
include all Hispanics or all Blacks or all Anglos.  Every single
registered voter's vote should be considered.  I don't believe --
again, I'm looking at it very practically, that we could not, given
our best effort of this Board, the best effort of the county, the
best efforts of all these people sitting here, complete the manual
recount the way we have been doing it."  Miami-Dade Canvassing Board,
Transcript of Proceedings at 35-36, November 22, 2000.  At an earlier
point in this process, and again as part of the official proceedings
of the Miami-Dade Cavassing Board that were included in the court
record, Judge Leahy had explained: "I have a lot of experience with
the system.  I've been here since '74 in the election process.  I've
been with this particular system since '78.  I've been involved in
numerous recounts and several hand counts.  Based on that experience,
it would be my belief that if you counted every ballot by hand in the
county, that you would get an equal proportionate share of increased
votes for both candidates."  Hearing Before Miami-Dade Canvassing
Board, November 14, 2000, Transcript at 49-50.

After halting the full manual recount on November 22, the Miami-Dade
Board then debated whether to continue with a count of only the
undervotes, which they ultimately concluded was not appropriate.
However, the Board never contemplated the possibility of a hybrid
approach by which the 168 votes netted for Gore in the full recount
of 17 percent of precincts would be combined with the results of a
count of only the undervotes for the rest of the county.  Indeed, the
Board decided they could not do a partial recount of only the
undervotes even in isolation; after all, the Florida election statute
permits only a full recount.  Fla. Stat. Ann. § 102.166(5)(c)
(authorizing a canvassing board to "manually recount *all ballots*").
The kind of hybrid and skewed tallying of different votes through
different process in different segments of the county was created by
the Florida Supreme Court out of the thin air and was directly
contrary to the direction of the statute that recounts be made of
"all ballots."

In terms of the trial court's findings, Judge Saul's opinion was very
brief:  "The Court further finds that the Dade Canvassing Board 13
did not abuse its discretion in any of its decisions in its review in
recounting processes."  Gore v. Harris, Case No. 00-2808 (Judge
Sauls, Dec. 3, 2000).  That finding effectively endorses the reasons
given by the Miami-Dade Board, which again were transcribed and made
part of the court record.

In addition, Brian Kalt posted a response saying that I had
erroneously stated the additional votes for Gore in Miami-Dade as
168, when the correct number was 158.  Not so.  "During the partial
recount [the Miami-Dade canvassing board] identified an additional
legal votes, of which 302 were for Gore and 134 were for Bush,
resulting in a net gain of 168 votes for Gore." Gore v. Harris, No.
No. SC00-2431 (Florida Supreme Court, Dec. 8, 2000), slip opinion at
34.  The number of 168 from Miami-Dade is also stated on the very
first page of the United States Supreme Court's slip opinion in Bush
v. Gore.  The difference of 10 may seem trivial, but in an election
where every vote was at issue, the smallest of differences should not
be ignored.


Mark Tushnet wrote:

>Michael McConnell finds troubling the Florida Supreme Court's decision
>"to certify the recounts of *all* ballots in a Democratic portion of
>Miami-Dade without addressing Bush's challenge, while ordering a recount
>only of the "undervotes" in the
>Republican portions of the county."  Greg Sisk noted, with respect to
>Miami-Dade, "These were not 'under-votes' as such but generated from the
>full hand recount, which observers note tend to increase vote totals for
>both candidates in proportion to their margin of victory.  Those 168
>votes likely would have been all or mostly off-set by the results of a
>complete manual recount in the remaining precints, including the heavily
>Republican precincts.  Indeed, the Miami-Dade canvassing board decided
>not to do continue their full recount in part because they realized if
>it could not be completed, it would be unfair to include full results
>from an unrepresentative set of precints."  If I'm right that Professor
>Sisk is elaborating the reasons for being troubled by the Florida
>Supreme Court's decision, it occurred to me to wonder whether there was
>a finding in the record on the point that, according to Professor Sisk,
>"observers note," or a finding regarding the reasons for the canvassing
>board's reasons for stopping the full recount.

--
Gregory Sisk
Richard M. & Anita Calkins
   Distinguished Professor
Drake University Law School
2507 University Avenue
Des Moines, Iowa  50311-4505
515-271-4184
greg.sisk at drake.edu