772 So. 2d 1220 (Fla. 2000)
This case is before the Court on remand from the United States Supreme Court. We respond to several issues raised by the United States Supreme Court as explained herein.
I. FACTS
On Tuesday, November 7, 2000, Florida, along with the rest of the nation, conducted a general election for the President of the United States. The Florida Division of Elections reported on Wednesday, November 8, that Governor George W. Bush, the Republican candidate, had received 2,909,135 votes and Vice President Albert Gore Jr., the Democratic candidate, had received 2,907,351 votes. Because the overall difference in the total votes cast for each candidate was less than one-half of one percent of the total votes cast for that office, an automatic recount was conducted. The recount resulted in a reduced figure for the overall difference between the two candidates.
A. The Manual Recounts
In light of the closeness of the election, the Florida Democratic Executive Committee requested on Thursday, November 9, that manual recounts be conducted in Broward, Miami–Dade, Palm Beach, and Volusia Counties. The county canvassing boards of these counties conducted sample manual recounts of at least one percent of the ballots cast. Several of the boards determined that the manual recounts showed "an error in the vote tabulation which could affect the outcome of the election," and those boards voted to conduct countywide manual recounts pursuant to section 102.166(5), Florida Statutes (2000).
Because the Palm Beach County Canvassing Board was concerned that the recounts would not be completed prior to the seven-day deadline set forth in sections 102.111 and 102.112, Florida Statutes (2000), the Board sought an advisory opinion from the Division of Elections. The Division issued Advisory Opinion DE 00–10 advising the Board that, absent unforeseen circumstances, the county's returns must be received by 5 p.m. on the seventh day following the election in order to be included in the certification of statewide results. Relying on this advisory opinion, the Florida Secretary of State on Monday, November 13, announced that she would ignore returns of manual recounts received by the Department of State after 5 p.m., Tuesday, November 14. The Volusia County Canvassing Board filed suit in Leon County circuit court on Monday, November 13, seeking declaratory and injunctive relief; the candidates and the Palm Beach County Canvassing Board were allowed to intervene.
B. The Legal Proceedings
The trial court ruled on Tuesday, November 14, that the seven-day deadline was mandatory but that the Volusia Board could amend its returns at a later date and that the Secretary, after "considering all attendant facts and circumstances," could exercise her discretion in determining whether to ignore the amended returns. Later that day, the Volusia Board filed a notice of appeal and the Palm Beach Board filed a notice of joinder in the appeal.
Subsequent to the circuit court's order, the Secretary announced that she was in receipt of certified returns from all counties in the state. The Secretary then instructed Florida's supervisors of elections to submit by 2 p.m., Wednesday, November 15, a written statement of "the facts and circumstances" justifying any belief that they should be allowed to amend the certified returns previously filed. After considering those reasons in light of specific criteria, the Secretary on Wednesday, November 15, rejected the reasons and again announced that she would not accept the amended returns, but would rely on the earlier certified totals for the four counties. The Secretary further stated that after she received the certified returns of the overseas absentee ballots from each county she would certify the results on Saturday, November 18.
On Thursday, November 16, the Florida Democratic Party and Vice President Gore filed a motion in Leon County circuit court seeking to compel the Secretary to accept amended returns. After a hearing, the court denied relief in a brief order dated Friday, November 17. Both the Democratic Party and Vice President Gore appealed. The First District Court of Appeal certified both of the underlying trial court orders to this Court. By orders dated Friday, November 17, this Court accepted jurisdiction, set an expedited briefing schedule, and enjoined the Secretary and the Elections Canvassing Commission from certifying the presidential election results until further order of this Court.
This Court issued an opinion on Tuesday, November 21, reversing the trial court's order based on ambiguities in the Florida Election Code and legislative intent as informed by traditional rules of statutory construction. Bush sought certiorari review before the United States Supreme Court, which vacated this Court's judgment and remanded for proceedings consistent with its opinion.
II. ISSUES
The questions before this Court include the following: Under what circumstances may a county canvassing board authorize a countywide manual recount pursuant to section 102.166(5); and under what circumstances should the Secretary and the Elections Canvassing Commission accept such recounts when the returns are certified and submitted by the board after the seven-day deadline set forth in sections 102.111 and 102.112?
III. THE APPLICABLE LAW
A fundamental principle governing presidential election law is set forth in Article II, section 1, of the United States Constitution, which confers on state legislatures the power to regulate the appointment of presidential electors: "Each State shall appoint, in such Manner as the Legislature thereof may direct..." The United States Supreme Court in McPherson v. Blacker explained that while the clause vests appointment power in the legislature, the legislature may provide for appointment by the people or authorize other agents to appoint electors.
In Florida, at least since 1847, the right to elect the President has been vested in the citizens by statute. Section 103.011, Florida Statutes (2000), provides that presidential electors "shall be elected" on the specified election day and that votes for the candidates shall be counted as votes for the electors.
Congress has further provided in 3 U.S.C. § 5 that where any dispute concerning appointment of electors is settled at least six days prior to the meeting of electors pursuant to state laws enacted prior to the election, that state's determination is conclusive in the counting of electoral votes. Consistent with these federal provisions and longstanding state law principles, the Florida Legislature enacted the Florida Election Code, chapters 97–106, Florida Statutes (2000), establishing uniform criteria and procedures, including judicial methods, for final determination of controversies concerning electors.
IV. LEGISLATIVE INTENT
Legislative intent is the polestar guiding a court's inquiry into the Florida Election Code. Where the Code's language is clear and amenable to reasonable interpretation, courts must follow the Legislature's plain language. In this case chapter 102 is unclear and in conflict in several respects; therefore, the Court resorts to traditional rules of statutory construction to determine legislative intent.
V. LEGAL OPINION OF THE DIVISION OF ELECTIONS
The first issue is whether a county canvassing board may conduct a countywide manual recount where it determines there is an error in vote tabulation that could affect the outcome. The Division issued opinion DE 00–13, which construed the phrase "error in vote tabulation" to exclude situations where a discrepancy between the original machine return and a sample manual recount is due to the manner in which a ballot has been marked or punched.
Florida courts generally defer to an agency's interpretation of statutes they administer, but will not defer to an agency 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).
Pursuant to section 102.166(4)(a), a candidate on the ballot, a political committee supporting or opposing an issue on the ballot, or a political party whose candidate appeared on the ballot may file a written request with the county canvassing board for a manual recount. This request must be filed before the board certifies the election results or within seventy-two hours after the election, whichever is later. Upon filing such a request, the canvassing board may authorize a manual recount; the decision is committed to the board's discretion.
If the canvassing board authorizes a manual recount, the recount must include at least three precincts and at least one percent of the total votes cast for each candidate, with the requester choosing the precincts to be recounted. 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. Any manual recount shall be open to the public, and the statute prescribes procedures for counting teams and resolution of ambiguous ballots.
The issue in dispute is the meaning of the phrase "error in the vote tabulation" in section 102.166(5). The Division opined it meant only counting errors resulting from incorrect election parameters or errors in tabulating software. We disagree. The plain language refers to "vote tabulation," not the "vote tabulation system," and contains no words of limitation; the Legislature used distinct terms elsewhere when it intended to reference equipment or systems. Equating the two would erase distinctions the Legislature created.
Sections 101.5614(5) and (6) support the proposition that "error in vote tabulation" encompasses more than malfunction of equipment. Section 101.5614(5) provides that no vote shall be declared invalid if there is a clear indication of voter intent as determined by the canvassing board, while subsection (6) requires discarding votes when intent cannot be discerned. Section 102.141(4) directs the board, in the event of a recount, to examine machine counters or tabulation of ballots in each precinct and determine whether the returns correctly reflect votes cast. Thus, "error in the vote tabulation" includes discrepancies between machine tabulation and a manual count of sampled precincts under section 102.166(4).
Although machines will err, Florida law provides a human check on tabulation equipment and on errors in counting ballots. We find that the Division's DE 00–13 opinion regarding county canvassing boards' authority to authorize a manual recount is contrary to the plain language of the statute. Having concluded that county canvassing boards have authority to order countywide manual recounts, we must determine whether the Elections Canvassing Commission must accept amended returns filed after the seven-day deadline in sections 102.111 and 102.112 under the circumstances presented.
VI. AMENDED RETURNS
A. Statutory Ambiguity
In this case the Code is ambiguous in several respects. First, the deadline for submitting county returns to the Department under sections 102.111 and 102.112 conflicts with the timeframe for conducting manual recounts under section 102.166(4). Second, the language in sections 102.111 and 102.112 authorizing the Secretary to ignore amended or late returns is contradictory: one provision states returns "shall" be ignored, the other that returns "may" be ignored and also prescribes fines for late filing.
Section 102.166(1) gives candidates and electors the right to protest returns by filing a sworn written protest prior to certification or within five days after midnight of election day, whichever occurs later. Section 102.166(4)(a) permits a candidate or political party to file a written request for a manual recount containing the reason for the request, and subsection (4)(b) provides that such a request must be filed prior to certification or within seventy-two hours after midnight of election day, whichever occurs later.
A board "may" authorize a manual recount, which must include at least three precincts and at least one percent of total votes cast. If the manual recount indicates an error in vote tabulation that could affect the outcome, the board "shall" take one of the remedial actions set forth in subsection (5). Although the Code sets no specific deadline by which a manual recount must be completed, the time required must be reasonable; otherwise the recount provision would be meaningless. The recount provision thus conflicts with sections 102.111 and 102.112, which require boards to submit returns by 5 p.m. of the seventh day following the election or face penalties.
Under the statutory scheme, a candidate can request a manual recount at any point before certification and such action can lead to a full county recount. If a request is filed on the sixth day following an election and a full countywide recount is required, the recount procedure in most cases could not be completed by the seven-day deadline.
Section 102.111, enacted in 1951 as part of the Code, addresses the Elections Canvassing Commission and contains the phrase that if county returns are not received by 5 p.m. of the seventh day following an election, all missing counties "shall" be ignored and the results on file shall be certified. Section 102.112, enacted in 1989 as a revision to chapter 102, states that if returns are not received by the specified time, such returns "may" be ignored and the results on file may be certified, and it mandates fines for tardy board members. Thus the statutes conflict: 102.111 is mandatory while 102.112 is permissive and prescriptive regarding penalties.
B. Resolving the Ambiguity
A statute must be construed in its entirety and harmonized where possible. Although sections 102.111 and 102.112 require submission by 5 p.m. of the seventh day following an election, section 102.166(4) allows a manual recount request prior to certification. Manual recounts are often incomplete on the seventh day. If the seven-day limit were strictly enforced in every circumstance, the manual recount provision would be eviscerated, which the Legislature could not have intended. Therefore, the seven-day limit must be construed flexibly to accommodate the manual recount provision.
When two statutory provisions conflict, the specific statute controls the general. Section 102.112 is a specific penalty statute that defines the deadline and penalties for late returns; section 102.111 is nonspecific in that regard. The more recently enacted statute controls the older one; section 102.112 (1989) clarifies legislative intent more recently than section 102.111 (1951). Related statutory provisions must be read together to achieve a consistent whole and avoid rendering any provision meaningless.
Section 102.166 contemplates that a manual recount may require additional time after a request is filed. If a request is filed on the sixth day and a full manual recount is required, the board will be unable to submit returns by the seventh day through no fault of its own. The Legislature could not have intended to penalize canvassing boards for following another provision of the Code. Moreover, federal law governing overseas ballots requires counties to accept overseas absentee ballots received up to ten days after the election, creating a further practical reason for construing the state deadline permissively in certain circumstances. A consent decree and administrative rule implementing the federal requirement reflect this reality; overseas ballots must be received by counties up to midnight on the tenth day following the election.
VII. THE DEPARTMENT'S DISCRETION
Consistent with the foregoing, section 102.112 grants the Department discretion to ignore returns not received by the time specified. A plain reading of section 102.112 does not fully define the boundaries of that discretion. This case is not about whether there is a 5 p.m. deadline for filing returns—there is such a deadline and the trial court enforced it—but about the Department's announced policy to reject amended returns filed after the deadline.
In a statewide or federal election other than a presidential election, the Department should normally accept amended returns if a county is proceeding in good faith with a manual recount under section 102.166. However, in a presidential election the decision to exclude amended returns must be considered with the contest provisions of section 102.168 and the deadlines set forth in 3 U.S.C. § 5. Therefore, in presidential elections the reasoned basis for exercising the Department's discretion to ignore amended returns is limited to instances where failure to ignore the amended returns will (1) preclude a candidate, elector, or taxpayer from contesting the certification pursuant to section 102.168, or (2) in the case of a federal election, result in Florida voters not participating fully in the federal electoral process as provided in 3 U.S.C. § 5.
VIII. THE PRESENT CASE
Based on the foregoing, we hold that the trial court properly concluded that county canvassing boards were required to submit their returns to the Department by 5 p.m. of the seventh day following the election and that the Department was not required to ignore amended returns but rather could count them. The court erred, however, in holding that the Secretary acted within her discretion in prematurely rejecting any amended returns that would be the result of ongoing manual recounts.
The Secretary's stated rationale for rejecting the board's returns was that the board had not alleged facts suggesting voter fraud, substantial noncompliance with statutory procedures coupled with reasonable doubt as to whether certified results expressed voters' will, or extenuating circumstances beyond the board's control, and that mere possibility that a manual recount could affect the outcome was insufficient to justify ignoring the statutory deadline.
We conclude that the Department may not reject a board's amended returns that are filed on or before the day after the date that overseas ballots are due. Such a rejection is an abuse of discretion because the Elections Canvassing Commission cannot certify the election prior to that date. Further, in a presidential election the Department's discretion to ignore amended returns after that date is limited to instances where failure to ignore them will (1) preclude an elections contest under section 102.168, or (2) result in Florida voters not participating fully in the federal electoral process under 3 U.S.C. § 5. On November 14, 2000, when the Secretary rejected amended returns, the deadline for receiving overseas ballots had not expired and neither of those limited circumstances had been considered.
Moreover, the Department applied its discretion based on the faulty premise that an "error in vote tabulation" excludes discrepancies caused by the manner in which a ballot was marked or punched (Advisory Opinion DE 00–13). Because the Department did not exercise its discretion within the law, Palm Beach County and potentially other counties were thwarted in completing manual recounts. Prior to the Division's opinion, counties had at least until Saturday, November 18 to complete manual recounts and certify amended results. This Court's earlier opinion effectively put the parties in the position they would have been in before the Division's DE 00–13 opinion was issued; the later date used by this Court was not a new deadline but reflected the time necessary to enable an elections contest under section 102.168 and to accommodate the federal deadline in 3 U.S.C. § 5.
IX. CONCLUSION
We have been guided by statutory construction and legislative intent in interpreting Florida's election laws. The Legislature has vested in Florida's voters the authority to elect presidential electors and has placed that election under the general statutory election scheme. The Code does not provide for separate rules for presidential-elector elections; accordingly, we apply the single election code consistently.
Because the statutory scheme provides a single set of election rules, we construe the timetable for filing returns as directory in light of the clear legislative policy favoring each elector's right to vote and having each vote counted. We rule that election returns must be accepted for filing unless it can be clearly determined that late filing would prevent an election contest or the consideration of Florida's vote in a presidential election.
For the reasons stated, we reverse the orders of the trial court. Our construction of the statutes is a narrow reading and clarification of those statutes and does not create new rules of state law. We decline to rule more expansively, leaving broader changes to the Legislature.
No motion for rehearing will be allowed. It is so ordered.