‘Intent of the Voter Is of Paramount Concern’

For the reasons stated in this opinion, we find that the trial court erred as a matter of law in not including (1) the 215 net votes for Gore identified by the Palm Beach County Canvassing Board and (2) in not including the 168 net votes for Gore identified in a partial recount by the Miami-Dade County Canvassing Board.

However, we find no error in the trial court’s findings, which are mixed questions of law and fact, concerning (3) the Nassau County Canvassing Board and the (4) additional 3,300 votes in Palm Beach County that the canvassing board did not find to be legal votes.

Lastly, we find the trial court erred as a matter of law in (5) refusing to examine the approximately 9,000 additional Miami-Dade ballots placed in evidence, which have never been examined manually. . . .

. . . Although courts are, and should be, reluctant to interject themselves in essentially political controversies, the Legislature has directed in Section 102.168 that an election contest shall be resolved in a judicial forum. See Section 102.168 (providing that election contests not pertaining to either house of the Legislature may be contested “in the circuit court”). This Court has recognized that the purpose of the election contest statute is “to afford a simple and speedy means of contesting election to stated offices.” Farmer vs. Carson, 110 Fla. 245, 251, 148 So. 557, 559 (1933).

In carefully construing the contest statute, no single statutory provision will be construed in such a way as to render meaningless or absurd any other statutory provision. See Amente vs. Newman, 653 So. 2d 1030, 1032 (Fla. 1995).

In interpreting the various statutory components of the state’s election process, then, a common-sense approach is required, so that the purpose of the statute is to give effect to the legislative directions ensuring that the right to vote will not be frustrated. Cf. Firestone vs. News-Press Pub. Co., 538 So. 2d 457, 460 (Fla. 1989) (approving common-sense implementation of valid portion of Section 101.121, Florida Statutes (1985)--which broadly read, in pertinent part, that “no person who is not in line to vote may come [into] any polling place from the opening to the closing of the polls, except the officially designated watchers, the inspectors, the clerks of election and the supervisor of elections or his deputy”--so as not to exclude persons accompanying aged or infirm voters, children of voting parents, doctors entering the building to treat voters needing emergency care, or persons bringing food or beverages to the election workers because such activities are recognized as “incidental to the voting process and . . . sometimes necessary to facilitate someone else’s ability to vote”). . . .

Must Establish Legal Vote Count

. . . Logic dictates that to bring a challenge based upon the rejection of a specific number of legal votes under Section 102.168(3)(c), the contestant must establish the “number of legal votes” which the county canvassing board failed to count.

This number, therefore, under the plain language of the statute, is limited to the votes identified and challenged under Section 102.168(3)(c), rather than the entire county.

Moreover, counting uncontested votes in a contest would be irrelevant to a determination of whether certain uncounted votes constitute legal votes that have been rejected. On the other hand, a consideration of “legal votes” contained in the category of “undervotes” identified statewide may be properly considered as evidence in the contest proceedings and, more importantly, in fashioning any relief.

We do agree, however, that it is absolutely essential in this proceeding and to any final decision, that a manual recount be conducted for all legal votes in this state, not only in Miami-Dade County, but in all Florida counties where there was an undervote, and, hence a concern that not every citizen’s vote was counted. This election should be determined by a careful examination of the votes of Florida’s citizens and not by strategies extraneous to the voting process. . . .

*

. . . This essential principle, that the outcome of elections be determined by the will of the voters, forms the foundation of the election code enacted by the Florida Legislature and has been consistently applied by this court in resolving elections disputes.

We are dealing with the essence of the structure of our democratic society; with the interrelationship, within that framework, between the United States Constitution and the statutory scheme established pursuant to that authority by the Florida Legislature.

Pursuant to the authority extended by the United States Constitution, in Section 103.011, Florida Statutes (2000), the Legislature has expressly vested in the citizens of the state of Florida the right to select the electors for president and vice president of the United States:

Electors of president and vice president, known as presidential electors, shall be elected on the first Tuesday after the first Monday in November of each year the number of which is a multiple of 4. Votes cast for the actual candidates for president and vice president shall be counted as votes cast for the presidential electors supporting such candidates. 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.

In so doing, the Legislature has placed the election of presidential electors squarely in the hands of Florida’s voters under the general election laws of Florida. Hence, the Legislature has expressly recognized the will of the people of Florida as the guiding principle for the selection of all elected officials in the state of Florida, whether they be county commissioners or presidential electors. . . .

Clear Mandate From Legislature

. . . (T)he Legislature has mandated that no vote shall be ignored “if there is a clear indication of the intent of the voter” on the ballot, unless it is “impossible to determine the elector’s choice . . . “ Section 101.5614(5)-(6) Fla. Stat. (2000). Section 102.166(7), Florida Statutes (2000), also provides that the focus of any manual examination of a ballot shall be to determine the voter’s intent. The clear message from this legislative policy is that every citizen’s vote be counted whenever possible, whether in an election for a local commissioner or an election for president of the United States.

The demonstrated problem of not counting legal votes inures to any county utilizing a counting system which results in undervotes and “no registered vote” ballots. In a countywide election, one would not simply examine such categories of ballots from a single precinct to insure the reliability and integrity of the countywide vote. Similarly, in this statewide election, review should not be limited to less than all counties whose tabulation has resulted in such categories of ballots.

Relief would not be “appropriate under [the] circumstances” if it failed to address the “otherwise valid exercise of the right of a citizen to vote” of all those citizens of this State who, being similarly situated, have had their legal votes rejected.

This is particularly important in a presidential election, which implicates both state and uniquely important national interests. The contestant here satisfied the threshold requirement by demonstrating that, upon consideration of the thousands of undervote or “no registered vote” ballots presented, the number of legal votes therein were sufficient to at least place in doubt the result of the election.

However, a final decision as to the result of the statewide election should only be determined upon consideration of the legal votes contained within the undervote or “no registered vote” ballots of all Florida counties, as well as the legal votes already tabulated. It is immediately apparent, in reviewing the trial court’s ruling here, that the trial court failed to apply the statutory standard and instead applied an improper standard in determining the contestants’ burden under the contest statute. . . .

*

. . . Assuming that reasonableness is an implied component of such a doubt standard, the determination of whether the plaintiff has met his or her burden of proof to establish that the result of an election is in doubt is a far different standard than the “reasonable probability” standard, which was applicable to contests under the old version of the statute, and erroneously applied and articulated as a “preponderance of a reasonable probability” standard by the trial court here.

Where, as here, a person authorized to contest an election is required to demonstrate that there have been legal votes cast in the election that have not been counted (here characterized as “undervotes” or “no vote registered” ballots) and that available data shows that, applying an analysis of the historical recovery rate of legal votes within those undervotes or “no vote registered” ballots, by extrapolation, a number of legal votes would be recovered from the entire pool of the subject ballots which, if cast for the unsuccessful candidate, would change or place in doubt the result of the election.

Here, there has been an undisputed showing of the existence of some 9,000 “undervotes” in an election contest decided by a margin measured in the hundreds. Thus, a threshold contest showing that the result of an election has been placed in doubt, warranting a manual count of all undervotes or “no vote registered” ballots, has been made. . . .

Discerning What Voter Intended

. . . This court has repeatedly held, in accordance with the statutory law of this state, that so long as the voter’s intent may be discerned from the ballot, the vote constitutes a “legal vote” that should be counted. See McAlpin vs. State ex rel. Avriett, 155 Fla. 33, 19 So. 2d 420 (1944); see also State ex rel. Peacock vs. Latham, 25 Fla. 69, 70, 169 So. 597, 598 (1936) (holding that the election contest statute “affords an efficient available remedy and legal procedure by which the circuit court can investigate and determine, not only the legality of the votes cast, but can correct any inaccuracies in the count of the ballots by having them brought into the court and examining the contents of the ballot boxes if properly preserved”).

As the state has moved toward electronic voting, nothing in this evolution has diminished the long-standing case law and statutory law that the intent of the voter is of paramount concern and should always be given effect if the intent can be determined. Cf. Boardman vs. Esteva, 323 So. 2d 259 (Fla. 1975), cert. denied, 425 U.S. 967 (1976) (recognizing the overarching principle that, where voters do all that statutes require them to do, they should not be disfranchised solely because of failure of election officials to follow directory statutes). . . . Accordingly, we conclude that a legal vote is one in which there is a “clear indication of the intent of the voter.” . . .

*

. . . Looking at the statutory scheme as a whole, it appears that the term “rejected” does encompass votes that may exist but have not been counted. . . . Therefore, the court appears to have equated a “rejection” of legal votes with the failure to count legal votes, while at the same time recognizing that a sufficient number of such votes must have been rejected to merit relief. . . .

Miami-Dade Reference in Trial Court

. . .Specifically as to Miami-Dade County, the trial court found:

“[A]lthough the record shows voter error, and/or, less than total accuracy, in regard to the punch card voting devices utilized in Miami-Dade and Palm Beach counties, which these counties have been aware of for many years, these balloting and counting problems cannot support or effect any recounting necessity with respect to Miami-Dade County, absent the establishment of a reasonable probability that the statewide election result would be different, which has not been established in this case. The court further finds that the Dade Canvassing Board did not abuse its discretion in any of its decisions in its review in recounting processes.”

This statement is incorrect as a matter of law. In fact, as the Third District determined in Miami-Dade County Democratic Party vs. Miami-Dade County Canvassing Board, 25 Fla. L. Weekly D2723 (Fla. 3d DCA Nov. 22, 2000), the results of the sample manual recount and the actual commencement of the full manual recount triggered the canvassing board’s “mandatory obligation to recount all of the ballots in the county.”

In addition, the circuit court was bound at the time it ruled to follow this appellate decision. This court has determined the decisions of the district courts of appeal represent the law of this state unless and until they are overruled by this court, and therefore, in the absence of interdistrict conflict, district court decisions bind all Florida trial courts. See Pardo vs. State, 596 So.2d 665, 666 (Fla. 1992). . . .

No Probability of Different Result

. . . Without ever examining or investigating the ballots that the machine failed to register as a vote, the trial court in this case concluded that there was no probability of a different result.

First, as we stated the trial court erred as a matter of law in utilizing the wrong standard.

Second, and more importantly, by failing to examine the specifically identified group of uncounted ballots that is claimed to contain the rejected legal votes, the trial court has refused to address the issue presented. Appellants have also been denied the very evidence that they have relied on to establish their ultimate entitlement to relief.

The trial court has presented the plaintiffs with the ultimate Catch-22, acceptance of the only evidence that will resolve the issue but a refusal to examine such evidence. We also note that whether or not the board could have completed the manual recount by Nov. 26, 2000, or whether the board should have fulfilled its responsibility and completed the full manual recount it commenced, the fact remains that the manual recount was not completed through no fault of the appellant. . . .

Limitations of Circuit Court

. . . We find no error in the trial court’s determination that appellants did not establish a preliminary basis for relief as to the 3,300 Palm Beach County votes because the appellants have failed to make a threshold showing that “legal votes” were rejected. Although the protest and contest proceedings are separate statutory provisions, when a manual count of ballots has been conducted by the canvassing board pursuant to Section 102.166, the circuit court in a contest proceeding does not have the obligation de novo to simply repeat an otherwise-proper manual count of the ballots.

As stated above, although the trial court does not review a canvassing board’s actions under an abuse of discretion standard, the canvassing board’s actions may constitute evidence that a ballot does or does not qualify as a legal vote. Because the appellants have failed to introduce any evidence to refute the canvassing board’s determination that the 3,300 ballots did not constitute “legal votes,” we affirm the trial court’s holding as to this issue. This reflects the proper interaction of Section 102.166 governing protests and manual recounts and Section 102.168 governing election contests. . . .

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. . . As to Miami-Dade County, in light of our holding that the circuit court should have counted the undervote, we agree with appellants that the partial recount results should also be included in the total legal votes for this election. Because the county canvassing boards identified legal votes and these votes could change the outcome of the election, we hold that the trial court erred in rejecting the legal votes identified in the Miami-Dade County and Palm Beach County manual recounts. These votes must be included in the certified vote totals. We find that appellants did not establish that the Nassau County Canvassing Board acted improperly. . . .

Incomplete Recounts Cited

. . . Through no fault of appellants, a lawfully commenced manual recount in Dade County was never completed and recounts that were completed were not counted. Without examining or investigating the ballots that were not counted by the machines, the trial court concluded there was no reasonable probability of a different result.

However, the proper standard required by Section 102.168 was whether the results of the election were placed in doubt. On this record there can be no question that there are legal votes within the 9,000 uncounted votes sufficient to place the results of this election in doubt.

We know this not only by evidence of statistical analysis but also by the actual experience of recounts conducted. The votes for each candidate that have been counted are separated by no more than approximately 500 votes and may be separated by as little as approximately 100 votes. Thousands of uncounted votes could obviously make a difference.

Although in all elections the Legislature and the courts have recognized that the voter’s intent is paramount, in close elections the necessity for counting all legal votes becomes critical. However, the need for accuracy must be weighed against the need for finality. The need for prompt resolution and finality is especially critical in presidential elections where there is an outside deadline established by federal law.

Notwithstanding, consistent with the legislative mandate and our precedent, although the time constraints are limited, we must do everything required by law to ensure that legal votes that have not been counted are included in the final election results. . . .

*

. . . Only by examining the contested ballots, which are evidence in the election contest, can a meaningful and final determination in this election contest be made. As stated above, one of the provisions of the contest statute, Section 102.168(8), provides that the circuit court judge may “fashion such orders as he . . . deems necessary to ensure that each allegation in the complaint is investigated, examined or checked, to prevent any alleged wrong, and to provide any relief appropriate under such circumstances. . . .

An Immediate Tabulation Ordered

. . . Accordingly, for the reasons stated in this opinion, we reverse the final judgment of the trial court dated Dec. 4, 2000, and remand this cause for the circuit court to immediately tabulate by hand the approximate 9,000 Miami-Dade ballots, which the counting machine registered as non-votes, but which have never been manually reviewed, and for other relief that may thereafter appear appropriate.

The circuit court is directed to enter such orders as are necessary to add any legal votes to the total statewide certifications and to enter any orders necessary to ensure the inclusion of the additional legal votes for Gore in Palm Beach County and the 168 additional legal votes from Miami-Dade County.

Because time is of the essence, the circuit court shall commence the tabulation of the Miami-Dade ballots immediately. The circuit court is authorized, in accordance with the provisions of Section 102.168(8), to be assisted by the Leon County Supervisor of Elections or its sworn designees.

Moreover, since time is also of the essence in any statewide relief that the circuit court must consider, any further statewide relief should also be ordered forthwith and simultaneously with the manual tabulation of the Miami-Dade undervotes. In tabulating the ballots and in making a determination of what is a “legal” vote, the standards to be employed is that established by the Legislature in our Election Code which is that the vote shall be counted as a “legal” vote if there is “clear indication of the intent of the voter.” Section 101.5614(5), Florida Statutes (2000).

It is so ordered. . . .

*

. . . WELLS, C.J., dissenting.

I join Justice Harding’s dissenting opinion except as to his conclusions with regard to error by Judge Sauls and his conclusions as to the separateness of Section 102.166 and 102.168, Florida Statutes (2000). I write separately to state my additional conclusions and concerns.

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 to return this case to the circuit court for a count of the undervotes from either Miami-Dade County or all counties has no foundation in the law of Florida as it existed on Nov. 7, 2000, or at any time until the issuance of this opinion.

The majority returns the case to the circuit court for this partial recount of undervotes 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 the majority creates.

Importantly to me, 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 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. On the basis of my analysis of Florida law as it existed on Nov. 7, 2000, I conclude that the trial court’s decision can and should be affirmed. . . .

Judicial Restraint Called Necessary

. . . Historically, this court has only been involved in elections when there have been substantial allegations of fraud and then only upon a high threshold because of the chill that a hovering judicial involvement can put on elections. This to me is the import of this court’s decision in Boardman vs. Esteva, 323 So.2d 259 (Fla.1975). We lowered that threshold somewhat in Beckstrom vs. Volusia County Canvassing Board, 707 So. 2d 720 (Fla. 1998), but we continued to require a substantial noncompliance with election laws. That must be the very lowest threshold for a court’s involvement. Otherwise, we run a great risk that every election will result in judicial testing.

Judicial restraint in respect to elections is absolutely necessary because the health of our democracy depends on elections being decided by voters--not by judges. We must have the self-discipline not to become embroiled in political contests whenever a judicial majority subjectively concludes to do so because the majority perceives it is “the right thing to do.” Elections involve the other branches of government. A lack of self-discipline in being involved in elections, especially by a court of last resort, always has the potential of leading to a crisis with the other branches of government and raises serious separation-of-powers concerns. . . .

*

. . . I do not find any legal basis for the majority of this court to simply cast aside the determination by the trial judge made on the proof presented at a two-day evidentiary hearing that the evidence did not support a statewide recount. To the contrary, I find the majority’s decision in that regard quite extraordinary. . . .

Law Does Not Require Futile Acts

. . . Evidence presented at trial indicated that the Miami-Dade Board made three different decisions in respect to manual recounts. The first decision was not to count, the second was to count, and the third was not to count. The third decision was based upon the determination by the Miami-Dade Board that it could not make the Nov. 26, 2000, deadline set by this court in Harris and that it did not want to jeopardize disenfranchising a segment of its voters. The law does not require futile acts. See Haimovitz vs. Robb, 130 Fla. 844; 178 So. 827 (1937). Section 102.166(5)(c) requires that, if there is a manual recount, all of the ballots have to be recounted.

I cannot find that the Miami-Dade Board’s decision that all the ballots could not be manually recounted between Nov. 22 and Nov. 26, 2000, to be anything but a decision based upon reality. Moreover, not to count all of the ballots if any were to be recounted would plainly be changing the rules after the election and would be unfairly discriminatory against votes in the precincts in which there was no manual recount. Thus, I agree with the trial court that the Miami-Dade Board did not abuse its discretion in discontinuing the manual recount. . . .

*

. . . As I stated at the outset, I conclude that this contest simply must end. . . .

Problems Ascribed to the Majority

. . . Laying aside the constitutional infirmities of this court’s action today, what the majority actually creates is an overflowing basket of practical problems. Assuming the majority recognizes a need to protect the votes of Florida’s presidential electors, the entire contest must be completed “at least six days before” Dec. 18, 2000, the date the presidential electors meet to vote. See 3 U.S.C. 5 (1994). The safe harbor deadline day is Dec. 12, 2000. Today is Friday, Dec. 8, 2000.

Thus, under the majority’s timeline, all manual recounts must be completed in five days, assuming the counting begins today. In that time frame, all questionable ballots must be reviewed by the judicial officer appointed to discern the intent of the voter in a process open to the public. Fairness dictates that a provision be made for either party to object to how a particular ballot is counted. Additionally, this short time period must allow for judicial review.

I respectfully submit this cannot be completed without taking Florida’s presidential electors outside the safe harbor provision, creating the very real possibility of disenfranchising those nearly 6 million voters who were able to correctly cast their ballots on election day. Another significant problem is that the majority returns this case to the circuit court for a recount with no standards. I do not, and neither will the trial judge, know whether to count or not count ballots on the criteria used by the canvassing boards, what those criteria are, or to do so on the basis of standards divined by Judge Sauls.

A continuing problem with these manual recounts is their reliability. It only stands to reason that many times a reading of a ballot by a human will be subjective, and the intent gleaned from that ballot is only in the mind of the beholder. This subjective counting is only compounded where no standards exist or, as in this statewide contest, where there are no statewide standards for determining voter intent by the various canvassing boards, individual judges, or multiple unknown counters who will eventually count these ballots. I must regrettably conclude that the majority ignores the magnitude of its decision. . . .

*

. . . To me, it is inescapable that there is no practical way for the contest to continue for the good of this country and state. . . .

Finality Must Take Precedence

. . . 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 64 years ago. I would heed that sound advice and affirm Judge Sauls.

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HARDING, J., dissenting.

I would affirm Judge Sauls’ order because I agree with his ultimate conclusion in this case, namely that the appellants failed to carry their requisite burden of proof and thus are not entitled to relief. . . .

*

. . . While I disagree with Judge Sauls on the standards applicable to this election contest, I commend him for the way that he conducted the proceedings below under extreme time constraints and pressure. Further, I believe that Judge Sauls properly concluded that there was no authority to include the Palm Beach County returns filed after the explicit deadline established by this court.

I conclude that the application of the erroneous standards is not determinative in this case. I agree with Judge Sauls that the appellants have not carried their burden of showing that the number of legal votes rejected by the canvassing boards is sufficient to change or place in doubt the result of this statewide election. That failure of proof controls the outcome here. Moreover, as explained below, I do not believe that an adequate remedy exists under the circumstances of this case.

I conclude that Judge Sauls properly found that the evidence presented by appellants, even if believed, was insufficient to warrant any remedy under Section 102.168.

The basis for appellants’ claim for relief under Section 102.168 is that there is a “no-vote” problem, i.e., ballots which, although counted by machines at least once, allegedly have not been counted in the presidential election. The evidence showed that this no-vote problem, to the extent it exists, is a statewide problem. Appellants ask that only a subset of these no-votes be counted.

In a presidential election, however, Section 102.168, by its title, is an “election” contest and, as such, it is not a local contest seeking to define the correct winner of the popular vote in any individual county. The action is to determine whether the secretary of State certified the correct winner for the entire state of Florida. By its plain language, Section 102.168(1) provides that only the “unsuccessful candidate” may contest an election.

If this contest provision may be invoked as to individual county results, as argued by appellants, then Vice President Gore’s choice of the three particular counties was improper because he was not “unsuccessful” in those counties. I read the statute as applying to statewide results in statewide elections. Thus, Vice President Gore, as the unsuccessful candidate statewide, could contest the election results.

However, in this contest proceeding, appellants had an obligation to show, by a preponderance of the evidence, that the outcome of the statewide election would likely be changed by the relief they sought.

Appellants failed, however, to provide any meaningful statistical evidence that the outcome of the Florida election would be different if the “no-vote” in other counties had been counted; their proof that the outcome of the vote in two counties would likely change the results of the election was insufficient.

It would be improper to permit appellants to carry their burden in a statewide election by merely demonstrating that there were a sufficient number of no-votes that could have changed the returns in isolated counties. Recounting a subset of counties selected by the appellants does not answer the ultimate question of whether a sufficient number of uncounted legal votes could be recovered from the statewide “no-votes” to change 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.

Moreover, assuming that there may be some shortfall in counting the votes cast with punch card ballots, such a problem is only properly considered as being systemic with the punch card system itself, and any remedy would have had to be statewide. Any other remedy would disenfranchise tens of thousands of other Florida voters, as I have serious concerns that appellant’s interpretation of 102.168 would violate other voters’ rights to due process and equal protection of the law under the 5th and 14th Amendments to the United States Constitution.

As such, I would find that the selective recounting requested by appellant is not available under the election contest provisions of Section 102.168. Such an application does not provide for a more accurate reflection of the will of the voters but, rather, allows for an unfair distortion of the statewide vote. It is patently unlawful to permit the recount of “no-votes” in a single county to determine the outcome of the Nov. 7, 2000, election for the next president of the United States. We are a nation of laws, and we have survived and prospered as a free nation because we have adhered to the rule of law. Fairness is achieved by following the rules.

Finally, even if I were to conclude that the appellant’s allegations and evidence were sufficient to warrant relief, I do not believe that the rules permit an adequate remedy under the circumstances of this case. This court, in its prior opinion, and all of the parties agree that election controversies and contests must be finally and conclusively determined by Dec. 12, 2000. See 3 U.S.C. Section 5.

This court is “not required to do a useless act nor are we required to act if it is impossible for us to grant effectual relief.” State vs. Strasser, 445 So. 2d 322, 322 (Fla. 1983). See also Hoshaw vs. State, 533 So. 2d 886, 887 (Fla. 3d DCA 1988) (“The law does not require futile acts.”) . . .

*

. . . Clearly, the only remedy authorized by law would be a statewide recount of more than 170,000 “no-vote” ballots by Dec. 12. Even if such a recount were possible, speed would come at the expense of accuracy, and it would be difficult to put any faith or credibility in a vote total achieved under such chaotic conditions.

In order to undertake this unprecedented task, the majority has established standards for manual recounts, a step that this court refused to take in an earlier case, presumably because there was no authority for such action and nothing in the record to guide the court in setting such standards. The same circumstances exist in this case. All of the parties should be afforded an opportunity to be heard on this very important issue.

While this court must be ever mindful of the Legislature’s plenary power to appoint presidential electors, see U.S. Const. art. II, Section 1, cl. 2, I am more concerned that the majority is departing from the essential requirements of the law by providing a remedy which is impossible to achieve and which will ultimately lead to chaos.

In giving Judge Sauls the option to order a statewide recount, the majority permits a remedy which was not prayed for, which is based upon a premise for which there is no evidence, and which presents Judge Sauls with options to order entities (i.e., local canvassing boards) to conduct recounts when they have not been served, have not been named as parties, but, most importantly, have not had the opportunity to be heard.

In effect, the majority is allowing the results of the statewide election to be determined by the manual recount in Miami-Dade County because a statewide recount will be impossible to accomplish. Even if by some miracle a portion of the statewide recount is completed by Dec. 12, a partial recount is not acceptable.

The uncertainty of the outcome of this election will be greater under the remedy afforded by the majority than the uncertainty that now exists. The circumstances of this election call to mind a quote from football coaching legend Vince Lombardi: “We didn’t lose the game, we just ran out of time.”

SHAW, J., concurs.