UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

ROBERT C. TOUCHSTON, et al.,

Plaintiffs,

vs. Case No. 6:00CV1510-ORL-28C

MICHAEL MCDERMOTT, et al.,

Defendants.

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November 14, 2000

Transcript of Proceedings

MOTION HEARING

Before The Honorable JOHN ANTOON II

United States District Judge

APPEARANCES:

For the Plaintiffs: James Bopp, Jr.
Aaron  Kirkpatrick
Mathew D. Staver
Erik W. Stanley

Proceedings recorded by mechanical stenography, transcript produced with computer-aided transcription.

P R O C E E D I N G S

THE COURT: Good afternoon. We're here in the case of Robert C. Touchston, Deborah Shepperd and Diana L. Touchston versus Michael McDermott, et al., case number 6:00 Civil 1517 Orlando 28. I have somebody holding on the phone. Hello. Would counsel announce their appearances for the record, please?

MR. BOPP: My name is James Bopp, Jr., I'm counsel for plaintiff.

MR. STAVER: Matthew Staver, counsel for plaintiffs, local counsel.

PHONE ATTENDEE: On the telephone here you have --.

THE COURT: I'll take you last, okay? In Palm Beach. Can you hear me, sir?

PHONE ATTENDEE: Yes. For Palm Beach County --.

THE COURT: No. Let me take you last.

MR. STANLEY: Erik Stanley, counsel for local plaintiffs.

MR. KIRKPATRICK: Counsel for local plaintiffs.

MR. MURRAY: Your Honor, I'm J.B. Murray with the law firm of Steel, Hector and Davis, we represent election canvassing commission as a body and Katherine Harris and Clay Roberts in their official capacities.

MR. BLOSSOM: Your Honor, Roland Blossom, assistant county attorney for the County of Volusia, representing the Volusia County canvassing board.

MR. GUMMEY: Frank Gummey, assistant county attorney representing the same client.

THE COURT: Okay.

MR. BOPP: Your Honor, I apologize, we have on the phone who?

THE COURT: Yes. I'm getting to that.

Would counsel in Palm Beach please announce your appearances, too?

MR. McMAHON: Yes, Your Honor. From the Palm Beach County attorney's offices, Andrew McMahon, and with Your Honor's permission, I'd like to move pro hac vice, another attorney in our office, Leonard Berger.

THE COURT: Is Mr. Berger participating in the argument?

MR. McMAHON: He will make the argument with Your Honor's permission. Mr. Berger is a member in good standing in Florida and the Eleventh Circuit.

THE COURT: Okay. We are here on a request for a temporary restraining order and preliminary injunction. This is not an evidentiary hearing, it's an opportunity to give counsel an opportunity to present oral arguments, and you may proceed, for the plaintiffs.

MR. STAVER: Your Honor, my name is Matt Staver, and I'm local counsel for the plaintiffs and I would like to, with this court's permission, move pro hac vice for counsel Jim Bopp who will be arguing the case today. He's a member of good standing in the state of Indiana.

THE COURT: Has he filed a written motion?

MR. STAVER: There has been no written motion filed at this point. We can file one immediately after today's hearing.

THE COURT: Why hasn't one been filed?

MR. STAVER: I was under the impression that one had been filed, but found out that one had not been filed. That was an oversight because of the speed with which this case has progressed.

THE COURT: Mr. Bopp, would you stand, please, face the clerk and be sworn.

(MR. BOPP SWORN ACCORDING TO LAW.)

THE COURT: Sir, what is your full name?

MR. BOPP: James Bopp, B O P P, Jr.

THE COURT: And Mr. Bopp, you are a member in good standing of the bar of another state?

MR. BOPP: Yes. Of the state of Indiana.

THE COURT: Counsel have any objections?

MR. BERGER: No objection.

MR. GUMMEY: No objection, Your Honor.

MR. BOPP: Thank you.

THE COURT: I would appreciate your filing that motion at the conclusion of these proceedings.

MR. BOPP: Thank you, Your Honor.

THE COURT: Before you proceed with your argument, I don't want counsel to think that I am not aware of a motion to consolidate which more properly should be, I think, a motion to transfer. That matter will be addressed later, but we'll not delay or interfere with the argument on the preliminary injunction. You may proceed, Mr. Bopp.

MR. BOPP: Thank you, Your Honor.

May it please the court. Thank you, Your Honor, for the opportunity to practice before your court and for the court being willing to accommodate an emergency hearing in this case under these circumstances. We know that is an imposition on the court and appreciate the court's willingness to do so.

With me today are also the plaintiffs, Bob Touchston and Diana Touchston and Debbie Shepperd, who are at the table immediately behind counsel.

Your Honor, this case involves a challenge to the constitutionality of Florida statute, section 102.166, which authorizes selected manual recounts in selective counts in the state of Florida. Manual recounts are currently being conducted in counties, in certain counties in Florida on information and belief in four counties, as asserted in the verified complaint, in the election for the electors who will vote for the president of the United States.

The county recount totals including those, including the recounts are being tabulated and are to be certified to the department of state by five o'clock today. And in that regard, Your Honor, a state court case brought to extend that deadline and the request to a state court judge to enjoin the state to extend that deadline, again, on information and belief, has been denied. So this deadline is currently in force.

Plaintiff voters and in fact all of the voters of Florida, are threatened with the irreparable harm if the counties certify their election recount results, including, if they include the results of the manual recount. Plaintiff voters do not challenge the recount procedures, per se, as we believe was challenged in another court. What we challenge is selective recounting as is authorized under Florida statute 105.166, and is being conducted here today.

Thus, the plaintiffs' challenge is to a statutory system and its use in this election, which authorizes selective manual recounts using vague, subjective, arbitrary and capricious standards to count votes, not lawfully cast in accordance with the instructions that are provided to voters on how they are to cast their vote.

It is this selectivity in which counties conduct manual recounts, that they utilize vague, subjective, arbitrary and capricious standards used in counting these votes with the result that ballots are counted, even though they are not cast in accordance with the instructions provided by election authorities for the casting of votes.

THE COURT: Now, that's your theory. You have no affidavit support for that, do you, sir?

MR. BOPP: We will be submitting --.

THE COURT: Mr. Bopp, now, do I have before me any affidavit support for the conclusion you just made?

MR. BOPP: You have no affidavit support. We will be submitting an exhibit which is from the web site of each, of two of these counties of the instructions that are provided to voters on how to cast votes using the punch card system. We will be submitting those affidavits during the course, I mean those exhibits during the course of my arguments.

THE COURT: I don't think so, sir. I made it a point that this is not an evidentiary hearing. I'm ruling on what you submitted thus far and what we're prepared to address as a result of that, of what you filed. I hope you're not planning on an evidentiary hearing.

MR. BOPP: No, we are not. And Your Honor, I would simply ask you to take judicial notice of those when the time comes. I believe that is not evidence.

THE COURT: I'll let counsel be heard on the issue of judicial notice at the appropriate time.

MR. BOPP: Thank you, Your Honor.

THE COURT: Thank you.

MR. BOPP: The systematic procedure employed and authorized by the Florida statute which we challenge constitutionally on its face and as applied will deprive the plaintiff voters of the equal protection of the laws by diluting their vote in comparison with the votes of others. This system in Florida creates a two tier system, that is, one set of tallies will be tabulated as a result of an automated counting system in these selective counties as a result of the request -- at the request of these defendants there's a second system used which is the manual recount system that fundamentally deprives these voters, who are residents of Brevard County who are not, in which there is no manual recount, of equal protection of the laws. In that regard, we have tendered to the court already and I tender to the court now --.

THE COURT: Mr. Bopp, have you shown this to counsel?

MR. BOPP: Yes, sir.

MR. BERGER: Judge, Leonard Berger from Palm Beach County. I'm not sure what we're looking at.

MR. BOPP: I'll describe it and I believe you'll recognize it. It is a letter dated November 14, 2000 from the attorney general of the state of Indiana, Robert Butterworth, directed to the Honorable Charles Burton, chairman of the Palm Beach County canvassing board.

THE COURT: Did you say Indiana? I think it's Florida.

MR. BOPP: Florida, Your Honor.

THE COURT: I thought that's what you meant.

MR. BOPP: I'm sorry, Your Honor. It is our understanding that this is the letter of transmittal of the advisory opinion requested by Mr. Burton regarding the standards by which a canvassing board can determine whether or not to do manual recount votes. So I believe that you would have a copy as you are counsel for the board to which this letter was addressed.

MR. BERGER: I understand that one was sent, that's correct. I don't actually have the copy in front of me, but I'm aware of the substance of it.

THE COURT: Let me interrupt here. Are counsel from Broward County on the phone?

MR. BERGER: Your Honor, they just called up a few moments ago desperate to try the number to get on, and I would expect at some point soon they should be connecting with you. I guess they heard of this sort of late in the day as well.

THE COURT: Okay. If I hear them come on, I'll let you know.

MR. BERGER: Great.

MR. BOPP: Your Honor, this letter, which the court may be aware, who served as the co-chairman of the Vice President Gore campaign committee here in Florida, expresses the essence of the complaint the plaintiffs have made here today and the gravity of the situation that has, that would result if the manual recounts were included in the totals for the election of electors for the State of Florida. He states that the circumstances surrounding these legal issues are extremely serious. If hand counts -- hand recounts have already occurred in Seminole County and an unknown number of other counties without the restraint of a legal opinion, while similar hand counts are blocked in other counties due to a newly issued standard, a two tier system for reporting votes would result. A two tier system would have the effect of treating voters differently depending upon what county they voted in. A voter in a county where a manual count was conducted would benefit from having a better chance of having his or her vote actually counted than a voter in a county where a hand count was halted. If the -- as the state's chief legal officer, I feel a duty to warn that if the final certified total of balloting in the State of Florida includes figures generated from this two tier system, a differing behavior by official canvassing boards, the state will incur a legal jeopardy under both United States and state constitutions. This legal jeopardy could potentially lead to Florida having all of its vote, in effect, disqualified, and this state being barred from the electoral college's selection of a president.

In a nutshell, that's the plaintiff's complaint, that the selectivity --.

THE COURT: Now, Mr. Berger, was this letter attached to the opinion letter that General Butterworth issued to the canvassing board in Palm Beach County? Is this part of a larger package or is this a independent opinion?

MR. BOPP: The first line --.

THE COURT: It doesn't have an opinion, I saw it earlier today, an opinion from General Butterworth saying that -- well, it speaks for itself. Does counsel have that?

MR. GUMMEY: I have seen it, Your Honor. Unfortunately I did not bring it with me.

MR. MURRAY: Judge, I have a copy of a November 14, 2000 opinion, numbered 00-65.

THE COURT: Is this letter a part of that?

MR. MURRAY: I have no idea. I saw that for the first time when counsel handed it to me.

THE COURT: It says attached is the legal opinion requested by the board, and the reason I ask is the conclusions that you're arguing appear to me to be inconsistent with the opinion itself. But I'll leave that for counsel.

MR. BOPP: Your Honor, my understanding of the legal opinion was the question of under Florida law to the canvassing boards, under what standards or criteria is the canvassing board to use in determining whether or not to do a manual recount. So it is my understanding, and would you get a copy of that? That that was the advice given, which is not contradicted by this. He was simply advising on Florida law. And the reason we did not submit that is because I didn't have it at the time.

THE COURT: Mr. Bopp, I don't mean to interrupt your argument and deprive you of your time, I only raise the question because this appeared to be an incomplete document. It appears to be a cover letter attached to an opinion and I know that there is an opinion which has recently been provided by Attorney General Butterworth.

MR. BOPP: Your Honor, I now have that with me and may I have the court's permission to submit this as exhibit 1A?

THE COURT: Sure.

MR. MURRAY: Judge, J.B. Murray again on behalf of the so-called state defendants in this action. The state defense object to the consideration of this letter simply because I don't believe counsel is able to authenticate it. I also think that at this point, considering what it says and what it was attached to and the circumstances in which it was submitted to or purportedly submitted to Charles Burton, really calls for speculation at this point and it hasn't been a part of the record on file.

THE COURT: I'm in an awkward position because there was no objection to the first exhibit and I think there really --.

MR. MURRAY: Judge, to that extent --.

THE COURT: -- I really think they're part of the same communication.

MR. MURRAY: Are we talking about the November 14 letter?

THE COURT: Yes, sir.

MR. MURRAY: To that extent, Judge, I was led to believe that this was not an evidentiary hearing and that the court would be considering exclusively those materials on file as well as oral argument. And so to the extent that an objection needed to be made in that first exhibit --.

PHONE ATTENDEE: Is anyone there?

THE COURT: An entire courtroom full of people. Who has just come on the line?

MS. SCRUDDERS: Tamara Scrudders with Michael Cirullo, we represent the Broward County supervisor of elections, Jane Carroll.

MR. BERGER: And Judge, Leonard Berger again from Palm Beach County. We've been cut off several minutes ago and we're just rejoining you now, unfortunately.

THE COURT: Okay. Thank you.

MR. MURRAY: So,Judge, just to conclude, to the extent that there was an exhibit that's been submitted for the court's consideration that has been part of the record on file at this point, we would object to that, and I think co-defendant does as well.

MR. BLOSSOM: Your Honor, similarly, we would have objections to this line of presentation. It was our understanding that any documents that would be submitted should have been submitted by affidavit. There is no affidavit accompanying this document.

MS. SCRUDDERS: Excuse me, Your Honor, Broward County. We're having extreme difficulty hearing whoever is speaking.

THE COURT: I don't know that I can help you with that problem. I'll move the phone up on the rail, but that's about the best I can do in this courtroom.

Okay. I sustain the objection. You may proceed, Mr. Bopp.

MR. BOPP: Your Honor, which objection did you --.

THE COURT: The objection to --.

MR. BOPP: Exhibit 1A.

THE COURT: The attorney general's opinion.

MR. BOPP: That is 1A?

THE COURT: I think that's what you referred to it as, yes.

MR. BOPP: Because we have already submitted 1.

THE COURT: I understand.

MR. BOPP: Thank you very much.

Plaintiffs ask, as a result of these grave matters, Your Honor, and the irreparable harm that would occur to the, both the plaintiffs in this case and the citizens of the State of Florida if either plaintiffs' votes were diluted or if the entire State of Florida would be deprived of representation in the electoral college to issue either a temporary restraining order or preliminary injunction to enjoin the, both the statute 101.166, and also to enjoin the county defendants from certifying results to the State of Florida, the department of state, which contained manual recount returns. And also to enjoin the state defendants from receiving such certified totals, that is, those that include the manual recount returns, and enjoined from certifying a winner based on any manual recount returns.

If that relief would be granted by this court, the effect would be to insure that the votes of the people of the State of Florida are counted, given effect, and they will be represented in the electoral college.

Now, the standards for a preliminary injunction are well familiar to this court. The first one is a plaintiff has a substantial likelihood of success. The plaintiff voters here are deprived of equal protection of the law by the dilution of their vote that comes, that occurs as a result of selective manual recounts using vague, subjective, arbitrary and capricious standards. The Eleventh Circuit has recognized in the case of Roe V State, 443 F.3d at page 574, this is a 1995 Eleventh Circuit case, has recognized and accepted the dilution theory that the court found of course found its origin in Baker versus Carr, and is further elaborated in Reynolds versus Sims and a whole series of other cases. As the Eleventh Circuit explained, the right of suffrage is a fundamental political right because preservation -- because the preservation of all rights --.

THE COURT: Mr. Bopp, did all those cases involve racial discrimination?

MR. BOPP: No, Your Honor. The Eleventh Circuit case of Roe involved the counting in a recount or contest procedure of absentee ballots that were cast not in accordance with a state law. And there was an attempt to have those votes counted. And in Roe, the Eleventh Circuit said that the attempt to count ballots not valid under state law would result in a dilution of the vote to other voters in that jurisdiction and stated a cause of action under the equal protection clause.

There have been other cases, for instance, a case in which literally fraudulent votes were being tendered and proposed to be counted, and similarly the courts held that counting fraudulent votes would dilute the voter's rights under equal protection.

So the courts have extended what originally you could call a geographic application of the dilution theory, which of course arose in Baker versus Carr when you had districts of different sizes, to what the courts have called ballot stuffing circumstances in which there are additional votes being counted not properly valid under state law or being cast for some other -- in some other unlawful or illegal way or not in conformance with the procedures adopted for conduct of the election, and that these -- and that in those circumstances, as in the Eleventh Circuit case of Roe, that states a cause of action for dilution.

Now, as the Eleventh Circuit continued to explain, generally, the federal courts do not involve themselves in a garden variety of election disputes. However, if the election process itself reaches the point of patent and fundamental unfairness, a violation of due process clause may be indicated and relief under section 1983 therefore in order. Such a situation must go well beyond the ordinary dispute over the counting and marking of ballots.

And with respect to the final point regarding whether this is a garden variety election dispute, we believe that the statute and the procedures adopted by canvassing boards under it is not an occasional example of a counting of one ballot or another ballot, or the casting of one ballot or another ballot in some unlawful way, but it creates a systematic system which is now being utilized in four counties, four of the most heavily populated counties in the state, to utilize a different standard to count votes than the standard that is employed in all the other counts in the state.

It is our view that a manual recount can be a proper method to determine things like, things like distinguishing marks, things like lack of initials, and in utilizing some, and see whether or not there is even a hanging chad on a ballot. But that it is being -- but if it's to be employed, it needs to be employed equally, that is, it cannot be employed only to benefit certain candidates or certain voters, or certain voters in certain counties. But if it's to be employed, which would of course require an enabling statute to do so, that that method could be adopted. However, to have selective recounts in selective counties do not treat all voters equally and subjects their vote to dilution because of the selectivity of which counties are being utilized, and secondly, because of the different standards that are then employed in counting the votes.

Now, one of the keys, Your Honor, to equal protection in this circumstance was expressed in the Reynolds case where they said that the concept of equal protection has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged. And as I was just explaining, selective recounting of the votes doesn't do that. One of the reasons given for manual recounts is to insure that valid votes are cast.

Plaintiffs here have an equally valid interest in having their votes cast and counted in this election. However, their votes were counted by the automatic tabulation system and the votes in these other counties are being tabulated by a different system. So as a result, they, even if you look at it in the sense of making sure --.

THE COURT: So their complaint is that their votes were not counted by hand?

MR. BOPP: No. They are deprived equal protection of the law because procedures that could validly be used, like a manual recount, to insure that each one of their valid votes have been cast and counted, that those procedures are being, looking at this in the best light, Your Honor, those procedures are being employed in some counties, but not in their county. So they're denied the equal protection of the law because this procedure of a manual recount that can be validly utilized under appropriate standards is not being employed in their county, but is being employed elsewhere, and for which they have no redress. And with respect to which, because of the system, these manual recounts are triggered at the sole and complete discretion of a canvassing board. They can be triggered by a request of one candidate. But again, it's in their sole and complete discretion on whether or not to grant it, which precinct to grant it.

THE COURT: Would you agree that the only authority regarding recount from the United States Supreme Court originating I believe in your own state reaches a contrary --.

MR. BOPP: You mean the Roudebush case? I don't agree that it reaches a contrary result. There is no suggestion in Roudebush that the vote dilution theory as employed by the Eleventh Circuit in -- by the way, there's a subsequent Roe case after the one I cited to the court, so there's been two up there on the same matter, nor is there any suggestion that Reynolds or Baker versus Carr or any of those cases have been overturned in Roudebush.

What we are talking about here is the dilution of the vote by creating a system in which, number one, differing procedures are used to count votes based on geography, so we use the geographic theory, and secondly, that because of the way the recounting is being conducted, that it amounts to, as the courts have described, ballot stuffing, again, to the diminishment of the vote of plaintiffs here. Now -- and as a result, they are not being provided the benefit of equal treatment under Florida law.

Now, as I've already mentioned, there is, of course, one application of the vote dilution which is the geographic application and that was where one man, where the court ordered in Baker versus Carr, that there be districts based equally on population or otherwise those in the larger populated districts, votes will have been diluted.

Now, what the courts have explained is that as the court in McDonald versus Green, cited in our brief, a regulation that discriminates against residents of the populist counties of the state in favor the rural sections lack the equality to which the exercise of political rights is entitled under the 14th Amendment.

Now, here, ironically, we have big counties being favored under the, at least the statute being employed in big counties to manually recount the votes, but the same principle applies.

THE COURT: Well, it's not really the same principle though, is it, Mr. Bopp? A recount in Florida could occur depending upon the circumstances and the requests in any county regardless of size. That's different from the situation you described where the votes from rural counties are given a greater weight simply because they're not urban counties.

MR. BOPP: But the situation and the statute is, Your Honor.

THE COURT: I understand you're arguing that the result is the same.

MR. BOPP: But the statute --.

THE COURT: But the difference is, isn't the difference that here anybody could request a recount, whereas the people who were living in the city, in the example you cite, could do nothing?

MR. BOPP: That's not true, I'm sorry, Your Honor, but under the statute, cannot request a recount.

THE COURT: No. But if the circumstances applied, that was the predicate to my first inquiry. In other words, it doesn't turn on the size of the county.

MR. BOPP: It is true.

THE COURT: The population of the county.

MR. BOPP: It is true, it doesn't turn on the population of the county, but it does turn on whether it's county by county. I mean this election was conducted state wide. Each voter was voting for a state wide candidate. They're entitled to equal protection of the laws. Each of them is entitled to be treated the same uniformly in terms of the casting and counting of their vote. This statute allows selective counting by county so that the votes, so that the, looking in the best light, any valid votes that were not cast in certain selected counties will now be cast and added that they're valid, and votes not cast in Brevard County will not be cast so that -- and which could include the votes of the plaintiffs. So -- and they are not being protected by the procedure that is, that would allow a manual recounting of votes.

So it is true that we do not, and I agree with Your Honor in this sense, that we do not have as blatant and obvious a vote dilution as of course occurred in Baker versus Carr, but the court in Reynolds explained, quote, one must be ever aware that the constitution forbids sophisticated as well as simple minded modes of discrimination, which we believe that we have here.

As the court in Miller, another federal district court explained, inherent in the recount procedure is the concept of fairness to all interested candidates interested in the election, and all candidates have an interest in having the valid votes count in their favor, and that there are not being employed uniform procedures to insure that here.

Now, as I've also, as we have also argued, there is a second line of cases under vote dilution under equal protection which the courts have referred to as the ballot stuffing cases. In Westberry versus Sanders, a 1964 Supreme Court case, the court said, quote, not only can this right to vote not be denied outright, it cannot consistently with Article One, be destroyed by alteration of ballots or dilution by stuffing of the ballot box. That is a pretty, a simple and straightforward explanation or declaration of this second line of equal protection cases.

Now, here there is two problems that are occurring -- oh, before I get into, and I'm sorry, Your Honor, before I get into the ballot stuffing lines of cases, I just wanted to point out that the Florida court of appeals in 1992 in the case of Broward County Canvassing Board versus Hogan explained that this statute, 102.166, provides, gives to canvassing boards the absolute and unfettered discretion on whether or not to institute manual recounts or not. And these manual recounts, as we allege in our complaint, have occurred after the period in time in which a candidate may request a manual recount so that candidates are cut off at 72 hours, after midnight of the election, from requesting manual recounts, or when the results of the county are certified to the state, whichever comes later. And once those events occur, the, they are cut off in terms of their ability to kind of try to balance things out.

So you have, as we've alleged, counties instituting manual recounts after the time in which a candidate may request a manual recount in other counties, or for that matter, in other precincts of that particular county. And I believe that this case is consistent with Attorney General Butterworth's advisory opinion recently issued.

Now, back to the preventing ballot stuffing, Your Honor. There are two problems here that we allege.

THE COURT: Mr. Bopp, you have read that letter, I take it, the opinion letter. Are you referring to this letter?

MR. BOPP: That statement I just --.

THE COURT: Are you referring to the letter that is not in evidence?

MR. BOPP: Yes. Yes.

THE COURT: And you have read that?

MR. BOPP: Yes. And I ask you to take judicial notice of it. I believe that you can take judicial notice of advisory opinions of the attorney general.

THE COURT: I'll check that.

MR. BOPP: If we cannot admit it into evidence, I think you can take judicial notice of it.

THE COURT: But it's your -- well, I'll do that first. Thank you.

MR. BOPP: Thank you. I'm relying on the case, Your Honor, which I have cited.

Now, there is two ways in which the ballot stuffing dilution of votes in this case is occurring. The first is by counting ballots that were not cast in accordance with the instructions given to voters by utilizing vague, subjective, arbitrary and capricious standards in determining which votes to count and which votes not to count.

Secondly is that the, that candidates may not and are disabled from any ability to protect the interests of voters to insure that the valid votes of all the citizens of the State of Florida have been cast.

Now, Your Honor, I've already cited one of the leading cases that explained the ballot stuffing, the ballot stuffing theory and application of the equal protection clause, and this is occurring in this state because of what I have set forth and explained as being the adoption of different standards in the manual counting of the votes from those used in the official, in the automated tabulation of the votes, and furthermore, with the result that ballots are being cast that are being cast contrary and in opposition to the instructions that the voter has received.

Now, Your Honor, as the U.S. Supreme Court in Mosely explained, we regard it as equally unquestionable that the right to have one's vote uncounted is as open to protection by Congress as a right to put a ballot in a box. Therefore, inherent in the -- therefore, inherent in the right to vote is the right that the vote -- that a valid vote that is cast is counted.

Now, this is -- excuse me, Your Honor. I've lost my place.

Now, this is particularly true, Your Honor, where there are instructions provided to a voter on how to cast a vote. As we have alleged in our complaint, the only valid and objective way that has been recognized for the casting of a vote in a punch card system is for the voter to punch the stylus through the ballot. Now, at this point, Your Honor, we would tender exhibits two and three to the court, which, copies of which have been provided to counsel.

MR. BLOSSOM: Objection, Your Honor.

MR. BERGER: Again, Your Honor, this is Leonard Berger from Palm Beach County. I'd like to know which exhibits we're talking about again.

MR. BOPP: Yes. You're certainly entitled to that. Exhibit number two is from the web site of Palm Beach County which is entitled sample ballots for the general election on November 7, 2000. And the, and on the second -- that is the cover page for that web site. And then there is a link to voting instructions and the second page is the voting instruction for using punch card ballots, the pertinent part being after you insert the ballot and line it up and all that, step number three, quote, to vote, hold the voting instrument straight up, punch straight down through the ballot card for the candidates of your choice. And at the bottom of the voting instructions it states further, quote, after voting, check your ballot card to be sure you're voting selections are clearly and cleanly punched and there are no chips left hanging on the back of the card.

Now, as to exhibit number two, exhibit number two is the web page --.

THE COURT: I don't think that counsel is asking you to read the exhibits to which there's been an objection raised, Mr. Bopp. I think he just wanted to know what they were.

MR. BOPP: Okay. Well, since he couldn't read them.

THE COURT: Well, now they're published so he knows at least what one of them is. And the other one is another web site, is that --.

MR. BOPP: Yes, it is the web site of the Broward County supervisor of election.

THE COURT: Okay. Let me hear what the objection is. If there still is an objection. Palm Beach County.

MR. BERGER: On behalf of Palm Beach County, Judge, I haven't seen -- I am not going to contest that this web site exists. I haven't seen any evidence or proof that these were instructions that were given to voters and that the web site is available to every voter in Palm Beach County. I don't think that there's any proof being offered that every voter has access to a web site and consults it. And I don't know that there's any evidence. There may be another exhibit here that shows that these instructions were posted, but frankly I'd like to know if that is their position.

MR. BOPP: I'm not making any factual statement regarding this other than that this is the voter instructions published on the web site for the county.

MR. BLOSSOM: Your Honor, Roland Blossom on behalf of the Volusia County canvassing board. Our objection has to do with the evidentiary nature of this document, the fact that it is not authenticated. It should have been submitted by affidavit.

THE COURT: One of the problems with this, Mr. Bopp, is that this case was filed yesterday at 3:51. I didn't receive it until shortly after that. I think you were asked to give notice and I'm sure you tried to give notice to everybody about six o'clock last night. And because of the --.

MS. SCRUDDERS: Your Honor, this is Tamara Scrudders for the Broward County canvassing board and

Michael Cirullo

THE COURT: And because of the --.

MS. SCRUDDERS: To this point, we still have not seen the pleadings in this case. (INAUDIBLE.) conversations with the Palm Beach County's office and we phoned in on our own. We don't know anything that's going on as far as pleadings.

THE COURT: I have to ask that you not speak while we're speaking here.

MS. SCRUDDERS: I apologize, Your Honor.

THE COURT: You're from Broward County. Now, Broward County is a party defendant and you're saying you did not get notice at all?

MS. SCRUDDERS: No, judge, we didn't. I found out about it about five minutes to two and we called in on our own to find out about it. We don't have the pleadings. Somebody faxed to us a copy of a motion to consolidate in this case and that's the only thing that we have.

MR. BOPP: Your Honor, on that point, we have filed with the court a certificate of notice wherein yesterday we called and faxed the complaint and memorandum, we called and we faxed the complaint and memorandum to each of the defendants, to the fax numbers and phone numbers that are disclosed in the certificate of notice. We did that prior to filing this action in the afternoon of Monday. As to the hearing, we have filed a certificate of service with the court. The certificate of service outlines the extensive efforts that were made pursuant to the court's requirements, quite properly so, that we notify each defendant of the hearing at the earliest possible time. The extensive calling, faxing, leaving messages, we document that in both of those pleadings with the court.

THE COURT: Broward County, I don't know exactly what happened with regard to notice to you, but whatever objections you have based on not having received notice are preserved, but I need to get through this hearing and the question is whether the web site pages should be received in evidence. And I've heard objections now from Palm Beach County and Volusia County. Are there any other objections?

Mr. Gummey.

MR. GUMMEY: Your Honor, I just point out, I've read the certificate. I don't see a word about Broward County in there.

THE COURT: Did you want to be heard, Mr. Murray, on the objection?

MR. MURRAY: I just wanted to join the pending objections on behalf of --.

THE COURT: The objection is sustained.

MR. BOPP: The certificate of notification of the hearing on page three sets forth a paragraph explaining the Broward County defendants and our effort to notify them of the hearing and to --.

THE COURT: Well, Mr. Gummey was referring to the certificate of service. But let's move on.

MR. BOPP: Your Honor, as -- thank you, Your Honor.

With respect to, in any event, our verified complaint makes, you know, which is the basis of this hearing, reflects the allegation that the only valid method to count, to cast a punch card ballot is by punching through the card, and that that is the allegation that we have made.

Now, those who are attempting to count the ballots by a manual system are doing so, doing so allegedly to determine the intent of the voter. Now, they are not relying upon the requirement that the stylus punch through the ballot. They have adopted, as exhibit B of our verified complaint explains, that they will count a wide variety of ballots where the voter has not punched through the ballot with the stylus. That includes counting, in the most egregious situation in my view, the counting of a ballot where only one corner of the four corner chad has been dislodged.

Now, the complaint also explains and points out that the standards being utilized in these respective counties of course change hour to hour. In some instances they have utilized the sunshine test where if there is some light that will shine through that point --.

THE COURT: Mr. Bopp, in this regard, do you have any affidavit support for your allegations?

MR. BOPP: The verified complaint.

THE COURT: Well, the verified complaint confuses me because at the end it says it's verified, but in the actual text of the complaint it says that it's based on your belief.

MR. BOPP: Some allegations are upon information and belief, Your Honor.

THE COURT: This is one of them, isn't it, the one you're making with regard to the different ways that the ballots are determined?

MR. BOPP: Yes. Yes, I would agree with that, Your Honor.

THE COURT: And you would agree that I have no sworn or affidavit support of that?

MR. BOPP: You only have the verified complaint with the attached exhibit of a newspaper article explaining this procedure that is being utilized to count ballots. That is what you have before you, Your Honor.

THE COURT: Thank you, sir.

MR. BOPP: Now, the statute itself charges the people who tabulate votes to do so by a -- the method of determining the intent of the voter. As we have alleged in our complaint, that is the only -- the only authorized basis for doing so is punching through the ballot. As we have alleged in our complaint, however, these other tests are being utilized. And what the state has done is take a situation in which there are equally valid alternate inferences and picked one.

There are two inferences when a voter does not complete the casting of the ballot by punching through the ballot with the stylus. There's two equally valid, equally plausible explanations for the intent of the voter in that circumstance. One is that they were too weak or frail or perhaps clumsy or confused and therefore did not punch through with the stylus, even though they intended to vote for the candidate at that punch mark.

The second equally valid inference --.

THE COURT: Mr. Bopp, I hate to keep interrupting you, but I want to make sure that I understand the status of your pleadings here. You don't have any proof in the form of an affidavit, even in the form of a sworn statement by your clients, that such ballots are being counted, do you?

MR. BOPP: Our client has verified the complaint and that is what's before you.

THE COURT: Will, is that one of those allegations where they're only verifying -- all they're verifying as I read this document is that they have information and belief to that effect.

MR. BOPP: On that point I have already agreed with Your Honor.

THE COURT: Well, I don't mean to be picky, but you've now moved on to the point where you're saying that they're counting votes where the ballot has not been perforated, and I want to make sure that if there is such evidence that I have it.

MR. BOPP: It is in the verified complaint and the exhibit B to the complaint.

THE COURT: And the statement of your client that's being verified is that your client has received information and believes that that's the case.

MR. BOPP: That is what we say in our complaint. And so, you know, the court is entitled to take cognizance of that based upon, you know, the rules that govern your conduct regarding taking evidence into account. I wish to argue from that in the event that you are going to credit that information. And that is, Your Honor, that there are two equally valid and contrary assumptions, inferences from a voter not punching through with the stylus of the ballot. One is, as I've explained, is the one that the voter intended to punch through the ballot, but because of weakness or frailty or some other reason wasn't able.

MR. BLOSSOM: I'd like to express an objection, Your Honor. May it please the court. We received a fax copy of the complaint. The attachments and exhibits that Mr. Bopp is referring to, we don't have any copies of those documents. If, in fact, those documents are based on information and belief as opposed to direct affidavits by those containing the knowledge, we certainly object to their use as hearsay.

MR. BOPP: What I'm talking about is in the complaint.

THE COURT: Okay. So he's not referring to any attachments.

MR. BOPP: Not in what I'm talking about now. And I don't think it's a matter of evidence what I'm saying now. I mean I think this is a matter of law and the inferences that this court may recognize as being inferred from the actions being described.

The second inference that is equally valid is that the voter decided to, even though they had placed the stylus into the hole and had perhaps even begun to push on the ballot, they realized they made a mistake, that they had put the stylus in the wrong hole, and therefore stopped voting, stopped pushing, and withdrew the stylus. An equally logical inference and plausible inference was that the voter was still undecided or conflicted on whether or not to vote for a particular candidate, placed the stylus into the hole and perhaps pushed lightly on the chad, but changed their mind and decided not to cast a ballot.

Under the only recognized valid way to count a ballot, he had to complete the casting of the vote. And in this case, they withdrew the stylus and didn't punch through. And so an equally valid inference is that it had no intention to vote for this candidate at all.

However, what we have in the manual recount of votes is the adoption of the first inference to the exclusion of the second inference. And there have been several cases, Your Honor, in which governments have done that. In other words, the governments have adopted a particular inference in seeking to count a vote where there are two equally valid and plausible alternate inferences, one going one direction and one going another direction.

One of the leading cases on this, Your Honor, is the Fourth Circuit decision in Hendon, H E N D O N, versus North Carolina State Board of Education -- of Election. That case is found at 710 F.2d 177 decided in 1983. In that particular circumstance, there was a ballot which had a straight party place for you to X and then what happened in that case is that a voter cast not only a vote on the straight party, but also an X next to one of the candidates. There were two equally valid assumptions or inferences that could be drawn according to the court for that particular action, both of which, by the way, validly cast the ballot, as opposed to this instance when punching through the ballot is the only valid way to cast a ballot. And what the court said was that the Constitution protects the right of qualified citizens to vote and to have their votes counted as cast. Because of the importance of this right, any alleged infringement must be carefully and meticulously scrutinized. The imposition of a legislative preference for the straight party candidates when the voter has indicated no such preference is an arbitrary subversion of the electoral process that serves no compelling state interest.

There was another case in the Virgin Islands, Your Honor, in which similarly the district court, and this case is cited in the Fourth Circuit decision, imposed a choice on the voter by selecting one of two equally valid and plausible inferences from the same, from the casting of the ballot, and the court there explained that it is an arbitrary and invalid imposition of legislative preferences where the voter has failed to indicate his own.

So as a result, Your Honor, we believe that the counties in going beyond the punching through of the ballot have adopted a theory of counting votes that denies -- that is, adopts equally one of two equally plausible scenarios, and as a result, they are counting invalid votes. They are counting votes that are not properly cast. And that as a result of that, that has, that would dilute the vote of the plaintiffs here.

Now, the candidates are not in a position to protect the integrity of the ballot. As I have already explained to the court, their ability to ask for manual recounts, if manual recounts are being launched and requested by opposing candidates are very carefully circumscribed. The ability of a candidate to request manual recounts after a certain point are prohibited, and that manual recounts have been authorized by counties that have done so in, after the point in time in which a candidate is entitled to and able to ask for additional manual recount of votes. In addition, there's no notice or opportunity for a candidate to be heard regarding requests for a manual recount. And all of these put together result in the fact that the candidates are not in a position to protect the integrity of the ballot by utilizing procedures that will result in the, in these manual recounts being conducted throughout the state, as we believe equal protection would require if that procedure is to be utilized.

Now, so as a result, all those things considered, both the fact that they are selective recounts using, completely at the discretion of individual counties, and the fact that they are utilizing vague, subjective, and arbitrary and capricious standards in order to add additional votes, both lead to the conclusion that the plaintiff's votes are being unlawfully diluted in this case.

Now, as to the plaintiffs suffering irreparable harm, there are two. One harm to the voters here, and that is that upon the certification at five o'clock today of these county returns, the state, the elections canvassing board is then authorized, based upon those totals, to certify a winner for the electors of the, for the president of the United States. Once that certification occurs, those electors take office. Under federal law, they meet on December 18. There is no procedure available under Florida law that is available to the plaintiffs that will result in any change in that situation between now and December 18. And when those electors vote on December 18 for a candidate that was not carried by the tabulated votes of the State of Florida, they, who have cast their ballots for Governor Bush, will be irreparably harmed.

Furthermore, there is irreparable harm to the State of Florida. As Attorney General Butterworth explained, as the state's chief legal officer, I have a duty to warn that if the final certified total for balloting in the State of Florida includes figures generated from this two tier system of differing behavior by official canvassing board --.

THE COURT: Since you keep referring to it, I would like to know what your understanding of the two tier system is. That's a system where the hand count occurs --.

MR. BOPP: Only in selective counties using these different standards, that that's one tier. The second tier is all of the other counties in the State of Florida whose votes were tabulated by the automated system.

THE COURT: Is it an equally fair interpretation of that that it's being pursued in some counties because people have requested it and other counties where they haven't?

MR. BOPP: Well, that's not a --.

THE COURT: I mean I will tell you what I'm going to do at this point though because I think that the justice of the matter requires it and I think I'm authorized to take judicial notice of the opinion, the letter. And I don't want to deprive any of you in court of that since we've got these items separated here, one in the record and one not. I'm going to take judicial notice of that.

Mr. Murray.

MR. MURRAY: Judge, may I just clarify for the record what letter we're talking about?

MR. BOPP: Exhibit one, the one that's admitted.

THE COURT: Well, it was my understanding that there was a letter that appeared to come with this that was in a letter from the attorney general giving an opinion pertaining to the very issue that brings us here today.

MR. MURRAY: And what you're referring to, as I understand it, is what counsel believes is the enclosure to what he's presented as exhibit 1. And I have a copy of a letter dated November 14, 2000 as well to Judge Burton which appears to be the opinion which is number 00-65 issued by the Office of the Attorney General.

MR. BOPP: That is what I submitted as exhibit 1A. That's what he objected to and that's what you have taken judicial notice of it.

THE COURT: I'm now taking judicial notice of that opinion.

MR. MURRAY: My understanding of what he submitted as exhibit 1A is what's in my hand, which is a one page letter which is not the one I just identified as --.

THE COURT: No. The question is that 1A was an attachment to 1 because 1 refers in the first line to an attached opinion. So I don't know whether --.

MR. MURRAY: One is the cover letter and 1A is the enclosure?

MR. BOPP: Yes.

THE COURT: I don't know that there's any evidence that really would make that nexus, but 1A is an opinion from the attorney general and I'm taking judicial notice of that.

MR. MURRAY: Okay. Thank you.

MR. BOPP: Thank you, Your Honor.

To complete the quote from attorney General Butterworth, from this two tier system of differing behavior by official canvassing boards, the state will incur a legal jeopardy under both United States and State Constitutions. This legal jeopardy could potentially lead to Florida having all of its vote, in effect, disqualified, and this state being barred from the electoral college's selection of a president.

That is irreparable harm to every citizen and voter, and I would argue resonant of the State of Florida. It is to have them, the entire state disqualified from being represented in the electoral college for the election of the President of the United States because of this, as the court, as the Attorney General Butterworth, the chief legal officer of the State of Florida describes, as a procedure that creates a two tier system which is in violation of both federal constitutional and state constitutional rights.

I have attempted in my argument to set out the voter dilution theory, both its geographic border part and it's ballot stuffing part which provides the legal rationale which was not provided by the chief law enforcement officer of the State of Florida, Attorney General Butterworth. And this, of course, is not a partisan matter. This is a matter of the ability of the citizens of the State of Florida to participate in this election.

You have here plaintiffs who voted for Governor Bush who have, are claiming their votes are not, will be diluted and unconstitutionally in violation of equal protection. You have the Attorney General of the State of Florida who was one of the co-chairmen of Vice President Gore's campaign for President of the United States equally saying that this very system is unconstitutional and will deprive Florida of its right to participation in the electoral college. That is irreparable harm.

Now, secondly, as to the balance, the third item for a preliminary injunction is the balance of harm. Now, I do not believe that the plaintiff -- that the defendants here have any interest in according greater weight to votes of candidates or to, you know, that they have any legitimate interest in according greater weight to any voter over another, or do they have a legitimate interest in having the votes of those who have voted in a way that is invalid to be cast and counted and to be juxtaposed with those that have cast valid votes.

THE COURT: Do you have a copy of the opinion from General Butterworth? Did you give that to my clerk?

MR. BOPP: I had it in a folder.

MR. STAVER: You already have the letter. This is the actual opinion that was part of it. Do you want the letter.

THE COURT: No. I've got that. The letter is now admitted as exhibit 1A.

MR. STAVER: Your Honor, I think we also have a letter that I think Attorney Butterworth was responding to. I think it refers to it as 0011, but I think it's 0013 where the division of elections has apparently sent a letter down to Palm Beach County. I have that here, but I don't believe, I did not find a 0011 letter.

MR. BERGER: Judge, this is Leonard Berger from Palm Beach County. Would it be possible to give us the number of this attorney general opinion that's being referred to at the upper right-hand corner? We're looking at one that doesn't say this and so it's a little confusing, frankly, on our end.

THE COURT: Well, I'm confused because, with all due respect to Mr. Bopp, I see that, I interpret the content of the opinion letter and the interpretation he gives to the cover letter as being inconsistent and I'm trying to check that out right now. But for your assistance, the number is 2000-65.

MR. BERGER: Thank you very much, Judge.

THE COURT: Mr. Bopp, I've read this letter and they speak for themselves and you're arguing an interpretation that you feel is correct. I'll let the other side do the same if they deem it appropriate.

MR. BOPP: Thank you, Your Honor.

The final point on the preliminary injunction is the public interest. The public interest is having all of the valid ballots cast to be counted in this election. Here only, if we put the best face on it, only all of the valid ballots that were cast in some counties will be counted. The public interest is that all of the votes to be, all the voters are to be treated equally, and here all the voters are not being treated equally. The vote, plaintiff voters are not being accorded the opportunity of procedures to guarantee that their votes validly cast are being counted by having manual recounts in their state. The public interest is that only validly cast ballots are to be counted. But here there are ballots that are being counted where the stylus did not push through to the -- through the ballot through vague, subjective, arbitrary and capricious tests. The public interest is in Florida being represented by who they duly elected, and secondly, that the public interest in Florida is to be represented in the electoral college when the votes take place on December 18. All of those interests, the public interests, urge this court to grant a temporary restraining order or preliminary injunction in order to prevent the manually counted ballot returns from being included in the count certified by the counties.

Thank you, Your Honor.

THE COURT: We've been at this for about an hour and a half and during your argument, if I looked away, Mr. Bopp, it wasn't that I was being disrespectful, I was trying to get my computer to print out so at times I could read along with you. And I'm going to take a break now. I'll call it a ten minute break because by the time I get to the end of the hall it's five minutes. So we'll take ten minutes and during that time I would ask that, I'll ask the court reporter to see if he can adjust this computer so I can follow you.

(BRIEF RECESS.).

THE COURT: Is Palm Beach still on the line?

MR. BERGER: Yes, sir, we are. This is Leonard Berger.

THE COURT: Mr. Berger, is this issue moot as to Palm Beach?

MR. BERGER: Well, the issue seems to be changing as we speak, Your Honor. If you would like me to begin, I can give you an update as to where we are right now.

THE COURT: Okay.

MR. BERGER: As of this particular moment, the canvassing board in Palm Beach County is no longer engaged in a manual recount. This is based upon an opinion by the division of elections that was received today. Now, in that letter according to that provision of law apparently is binding. We have also received an opinion letter from the attorney general which contradicts the division's opinion. The canvassing board this morning requested that we seek a determination from the court to settle this controversy between the two apparently conflicting opinions. That is going to be filed with the Supreme Court shortly, I hope, depending in part on the length of this proceeding. And it will go to the Supreme Court of Florida likely under it's all writs provision.

The canvassing board is set to meet at four o'clock and I can't speak for them, obviously, or fully predict what they are going to do, but since we have been meeting, I guess we've had an opportunity also to review the opinion that has just come down from the circuit court in Leon County, and that of course involved Volusia County and Palm Beach County, and it moved for an injunction of the Secretary of State. And I believe Volusia County attorneys are in the courtroom and were involved as well.

THE COURT: They're nodding as you speak.

MR. BERGER: Okay. Thank you. Based on the language of that opinion, what other attorneys from this office will be recommending to the canvassing board at four o'clock is that we certify what we have now and based on, and reserve the opportunity, and this is based on as I understand it the circuit court opinion in Leon County, and reserve the right at least to submit additional recounts in the future in the event, one, that the Supreme Court of Florida chooses to rule on our request, which we'll be filing today, and two, based on the absence of any other court that may intervene.

There was an injunction prohibiting us from certifying these results. That injunction was lifted about 20 minutes ago. Again, I apologize if I'm not being as clear as I possibly can be, but things are happening in different courts as we speak it seems.

THE COURT: I'm most concerned about what you said early on in your remarks that your ability to proceed to the Supreme Court would somehow be delayed or possibly delayed by this proceeding.

MR. BERGER: And I apologize. I'm not being entirely serious, of course. We've begun filing that petition as well and we are ready to go with it. I don't want to make any excuses for it. I just want to sort of impress on the court that there's a great deal of activity in the courts going on all at once here. So what I'm telling you is as best I know it at the moment, understanding that the moment tends to change rapidly.

THE COURT: Okay. Thank you, Mr. Berger.

I guess you also think, consider these letters, the cover letter and the opinion letter, to be inconsistent, the interpretation that was argued.

MR. BERGER: Judge, I do not have the cover letter. I apologize. And when opposing counsel was reading it, frankly, I didn't know what he was talking about. I'm sorry, I just don't have it. I will tell you in passing I know Broward voiced their objection before, we do have the pleadings, but we honestly received them about, it began coming over the fax sometime after noon this afternoon and we received, got the total package probably around a quarter to one or so. We really haven't had a lot of time to look it over as well, to be honest with you. The two opinion letters came in at exactly the same time. If there is such a, you know, a cover letter, I haven't seen it. I'm certainly not doubting and I'm not suggesting that plaintiff's counsel would fabricate something like that.

THE COURT: No, I know you wouldn't. And I'm just concerned that they go together. I'm trying to figure out whether they're really part of the same communication.

MR. BERGER: That's really why I asked what opinion we are talking about because it didn't seem to make sense.

THE COURT: Okay. Thank you.

MR. BERGER: Sure.

THE COURT: Okay. I guess everybody, nobody seems to be surprised by the update from Palm Beach County. I guess everybody is well wired, so to speak. So who will speak for the defendants first?

MR. GUMMEY: I will, Your Honor.

MS. SCRUDDERS: Your Honor, this is Tamara Scrudders for the Brevard County canvassing board, unless I guess there's somebody that wants to speak first.

THE COURT: Well, one of the unfortunate things about appearing by telephone is you can't see what's going on and after I spoke Mr. Gummey stood up and approached the podium. I'll let him go first and let you go next.

MR. BLOSSOM: Excuse me, Judge. Before Mr. Gummey proceeds, we both represent the Volusia County canvassing board and we both would request permission to address the court, if that is not a problem with Your Honor.

THE COURT: As long as it's not on the same issue.

MR. BLOSSOM: Thank you, sir.

MR. GUMMEY: Your Honor, may it please the court. I'm Frank Gummey, assistant county attorney representing the Volusia County canvassing board. The reason Mr. Blossom and I would like to split the argument is he appeared in the Segal case yesterday and has worked on that extensively, and I appeared in circuit court in Leon County yesterday. I asked my office to fax to the court the opinion from Leon County. I have not seen that opinion. I was aware, my office advised me that it was coming in and I suggested to them that they provide it to the court, so I've not provided it to opposing counsel and I have not seen it myself, but I felt that it would be important in the determination of this matter.

There is evidence before this court in the form of affidavits from the Volusia Supervisor of Elections and the Chair of the Canvassing Board, County Judge Michael McDermott. Included in the supervisor's affidavit is, at attachment B, is from the division of elections wherein it provides information about the voting systems in Florida. And it says there are currently 63 counties that use one of the many electronic voting systems certified by the division of elections. In addition, three counties use mechanical voting machines and one county uses manually tabulated paper ballots.

Well, if I understand plaintiff's arguments, using different systems is a violation of equal protection. And if there's a violation of equal protection, the votes of the Florida presidential electors will not be counted in the presidential election. So if I understand the argument of plaintiffs, we have already lost the vote in Florida. I don't think that was their intent, but I think it's the logic of their argument.

Also with the affidavit, the court was provided a copy of the Volusia County ballot and a copy of the descriptive literature of the voting system in Volusia County. And despite the lengthy hypotheticals which are not in evidence paraded by the plaintiffs as to what happens with punch cards that are used as ballots, it has no applicability to the defendant Volusia canvassing board because Volusia County does not have punch card voting with mechanical tabulation of the results.

The plaintiffs are here asking the court to enjoin the manual recounts of absentee ballots. In state court yesterday -- and it's certainly our contention that we are dealing with a state election law case here and not a federal constitutional case -- but in that court we sought to enjoin the Secretary of State and the elections canvassing commission from interfering with the manual recount of the ballots. We were less than successful in that, but I think the result, and my only knowledge of the case is a brief telephone conversation with co-counsel and a reading of the final paragraph of the order on the radio driving over here, but the implied result is that manual counting can continue, but the results of which as may be certified to the department of state after 5:00 p.m. Of this date is in doubt. It will be within the discretion of the canvassing commission as to whether any certifications as a result of recounts after 5:00 p.m. Today will be ignored.

I would contend that thus the issue is not ripe, that we have not had an action by the canvassing commission, and there has been no decision on whether or not manual recounts after the, after 5:00 p.m. Will be used in the certification of the election of the presidential electors for Florida. So until we get there, I don't think that the plaintiffs will have an opportunity to go off to state circuit court on this, quote, garden variety voting case.

We are in a federal election, we're not in a national election. I find it interesting that we have 51 different schemes for determining votes, and yet there seems to be no case law out there that's saying that those 51 different schemes are a denial of equal protection of the United States Constitution.

The federal issues that are addressed in the complaint are very similar to the ones in Segal and I will ask Mr. Blossom to address those. But I do have one inquiry of the court on the inartfully drafted motion to consolidate, which I would know my co-counsel signed even though I drafted it. Will the court consider that at some time? Does it wish argument on it?

THE COURT: I'm sorry if I wasn't clear on that earlier, Mr. Gummey. I will consider it. I will consider your motion to consolidate as a motion to transfer because I think that's what the procedure contemplates. It will be transferred to Judge Middlebrook, who would then decide whether he wishes to consolidate the cases and, if he does, they would, this case would remain in his court. I'm not saying that that's what I will do, but that would be the procedure if a motion to transfer is granted.

MR. GUMMEY: Do you wish me to speak to that now or do you wish argument after completion?

THE COURT: Speak to it anytime you like.

MR. GUMMEY: Okay. I will.

Your Honor, the transfer and eventual consolidation of this case I think are mandated by the matters that I bring forth. The plaintiffs, and also one other point, the plaintiffs in this action allege that they are electors of Brevard County. The plaintiffs in Segal were a number of electors from the four recount counties, if we can call them that. But there are also plaintiffs from Clay, Seminole, and I believe one other Florida county that I don't recall. So the plaintiffs here are not really any differently situated than some of the plaintiffs that are before Judge Middlebrook. And so I think the fact that the defendants, all the canvassing boards of the four recount counties are defendants here and there bring up pretty much the same parties involved. Certainly the same issues of fact and law are at issue here, if you look at the allegations of the complaint, the legal issues raised and the decision or the order of Judge Middlebrook yesterday. But I think that the, maybe the two compelling matters that the court should consider is the fact that we have plaintiffs who come alleging their standing as electors, nothing less, nothing more. Thus, there are, however, many million similarly situated people throughout this country, and to allow each of them to bring a federal action in a different district court would absolutely destroy the electoral process. There must be a uniformity of consideration of ruling in this matter. And it is of the greatest public concern that conflict not unnecessarily be generated at this time.

Clearly, the issues that are raised here have been adjudicated preliminarily by the Southern District. I have heard newspaper reports of the possibility of appeal, but we have no information that an appeal has occurred. But if, in fact, an appeal does occur, it would seem inappropriate that a matter before the Eleventh Circuit would be a matter of continuing decisions of the various district courts within the circuit.

THE COURT: Mr. Gummey, have you had an opportunity to research the issue of standing? And let me be more specific. Have you had an opportunity to research whether in a proceeding such as this only the candidates themselves or the political parties would have standing or whether standing would extend to voters claiming dilution of their votes?

MR. GUMMEY: I have not researched that. I will admit that the Roe case is a little troubling for my position on that subject, but I think the Roe case is clearly distinguishable in that that was a basic fundamental political right, that is, whether one would be allowed to vote or not, whether one's vote would be counted. It was not an issue of whether, as plaintiff said, equally reasonable interpretations of the exercise of discretion by bodies charged with discretion to provide to conduct an ultimately human act of determining the intent of a voter, whether there is standing for every elector in the nation to challenge that under equal protection. I have great questions about that.

THE COURT: That is one distinguishing characteristic between this case and the case pending before Judge Middlebrook. In that case the republican candidates appeared as parties, as the party plaintiff.

MR. GUMMEY: Correct. Who certainly has a large interest in the outcome of the election, a direct interest.

I'd like to provide the court with the one case that I came up with on consolidation which I think it parallels factually the circumstances that we find ourselves in today and that's In re: Eastern and Southern Districts Asbestos Litigation, where the court did find for consolidation and it was affirmed, I think on other grounds, affirmed, and reversed in part on other grounds by the circuit court. But said that the trial court has broad discretion in determining whether to consolidate actions. It says nevertheless, considerations of convenience must yield when consolidation threatens to deny litigants a fair trial.

Well, we want a fair trial, and if we're going to be trying a new federal elections case every day, I assure you from different plaintiffs, from different electors throughout the nation, we're not going to get a fair trial.

I yield to Mr. Blossom.

MR. BLOSSOM: May it please the court.

THE COURT: Mr. Blossom, what is your understanding of the manual count in Volusia County? Is it in progress, is it complete?

MR. BLOSSOM: The manual count itself has been completed, Your Honor. However, there are the questionable ballots that the canvassing board will still have to review before the results can be certified. So although the precincts themselves have all been counted, during that count the questionable ones were separated out for canvass board consideration.

MR. GUMMEY: And that is in our affidavit.

MR. BLOSSOM: Yes, sir, it is in the affidavit that was provided to the court.

Your Honor, I'd like to first of all indicate that the issue of standing is an issue that arose in my mind as we considered this complaint. However, I was on my way to work this morning when I received a phone call that we had received this complaint and since that time I've done all we could to prepare to argue this matter here today. Unfortunately, the research that I was able to do did not include the issue of standing. However, the real question that I have, since it is the manual recount statute that we're referring to, is just that, do individual voters have the right to proceed where the statute itself is one that gives the right to request to political candidates, political parties and political action committees. It does not include voters. So it's certainly an issue that should be on the table at this point.

What I'd like to do first, Your Honor, and I'm sure the court has had an opportunity to review the opinion of Judge Middlebrook, but factually this case was outlined over and over in Miami yesterday. And I know Your Honor does not have the privilege of that, so I'd like to take just a couple minutes to indicate Volusia County's role in this situation and what we have done since the election of November 7, 2000.

I'll skip over all the preliminary matters and come directly to the point where we received a request from the Secretary of State to do the automatic recount. That automatic recount was done as provided. However, we noted during the same, during the time period right after the ballots, after the precinct balloting terminated, that problems had cropped up during the conduct of the election itself, problems involving equipment that were providing faulty readings as to the votes that were being tabulated. One machine in particular lost, because of a malfunction, approximately 200 votes that had been cast. And when it was finally booted back up, it started at zero. So we had problems that had to be attended to and issues that were raised in the request that was subsequently filed for the manual recount by the Florida Democratic Party.

So when we received the request the following day, we had already taken a look at the results of precinct 216 where the memory card and the tabulating equipment had malfunctioned, and that's the one that had generated the erroneous results. Those ballots were subsequently counted when a new memory card was inserted into a different tabulating machine. All of this is provided by affidavit.

The republican representatives at the elections office that night requested, and we did agree, to do a manual count of the ballots in 216 simply to verify that the automatic count had been correct. We went through that process. That was done. There were no discrepancies.

Subsequently, the Florida Democratic Party filed their request for the manual recount and listed as is provided in the affidavit the various reasons as 102.166 required, Florida statute, and the canvassing board agreed to grant them the manual recount. They subsequently requested the specific three precincts that they were concerned about, and because of the malfunction of the equipment in more than just one precinct, the canvassing board was certainly concerned that the tabulation of votes may be in question. So we proceeded to recount all of the precincts in Volusia County, as the law does allow us to do.

So we undertook that process and initially had to also count the write-in ballots, that was done. We began our process of recounting manually all of the precinct ballots and, as I said previously, that process has now been completed and it's just a matter of tabulating, getting all the results together, finishing up the questionable ballots and submitting those results to the Secretary of State. And I believe the intent of the County of Volusia canvassing board is to provide the results that we have at that time and request the right to supplement as the order from the Tallahassee court has indicated.

We're in a different position from the position of many of the counties and the other defendants that have been brought into this matter in that, as Mr. Gummey said, we do not use the punch card ballot. We have no hanging chads. We have no situation where there is likely to be a misinterpretation because of a small hole as opposed to a large one. We have paper ballots that are read by an electronic scanner, optical scanner. So our situation in that sense is very different from the things that have been discussed concerning the hanging chads.

We have complied in every way with the statute as that statute presently stands in the State of Florida. We have honored a manual recall request. We have reviewed the reasons submitted in that request, made a decision in a effort to best count the votes of the people in Volusia County, some 184,000 votes, people who have cast those votes in good faith with an expectation that the County of Volusia, Department of Elections, supervisor, the canvassing board, would do everything within our power to make sure that their one vote counted equally as far as any other vote.

I'm a little troubled by the argument that is made as far as the public interest and how we weigh what the issuance of a preliminary restraining order or a temporary restraining order or preliminary injunction even would be as it's weighed, the public's interest against the interest of the plaintiff. What I see is a situation where the plaintiffs are arguing that perhaps their vote will be diluted if the manual counting system is used as opposed to the other voters in Volusia County whose votes will not be counted if that system is not used. So I think as we put these two things in the balance and we weigh them, the weight certainly is not in favor of the granting of a preliminary injunction in favor of these plaintiffs.

I think as well, Your Honor, that this court has a responsibility to hear matters involving elections that deprive individuals of their right to vote, and even deprived individuals of their right not to have their votes diluted. But the Roe case that has been referred to so often in these proceedings today is a situation that's far different from what we're talking about here. The Roe case involved votes that actually under the then existing law in the state of Alabama in everyone's mind would have been illegal, would not have been counted. So the question that the court had to wrestle with there is whether these illegal votes flooding the market of votes that were cast legally would have some diluting effect on the votes of those people who had cast properly.

Ultimately the court determined that, yes, perhaps they would, but in that court opinion, in Roe one, the language that was quoted by the plaintiff's attorney I think is important to note here, the implication of the language was that if this was just a matter of counting or marking votes, then perhaps we wouldn't be here.

What I would like to posit with this court is that's precisely what we are doing in this situation. We're simply trying to count votes, nothing more, nothing less. It's certainly complicated by the additional matters that are floating on the top that have to be skimmed off in order for us to view the real issues here. The matters of the presidential election, the closeness of that election, all very important to everyone in Volusia County certainly, in the State of Florida, and in the nation. However, when we skim off all of those issues, what we're really talking about is counting votes.

The Roe court indicated by their very action in Roe one that it was not the proper place for the federal court to intervene where these are state court matters and there is a proper means of pursuing these state court matters. The activities surrounding this very issue and other issues dealing with the counting of ballots in other counties is flowing through the state courts at this moment for reasonable solutions to the problem. The federal court is not in a position to consider all of these minor, and I hesitate to use the term, garden variety election problems. I hesitate to use the term because I firmly believe that these matters when they have to do with an election are important, but there are appropriate state mechanisms to deal with the issues that are before this court today.

So I would ask the court to allow us, allow us to count the votes and that the court not become involved in this situation until it reaches the level and the harm that is done is harm that rises to a level beyond just the garden variety situation.

Thank you, Your Honor.

THE COURT: Thank you, Mr. Blossom.

Mr. Blossom, you and Mr. Gummey referred to exhibits that you want me to refer to. Where are those exhibits?

MR. BLOSSOM: We've attached the affidavits, new affidavits that were done as a result of receiving this complaint as well as affidavits that were attached to our response to the complaint in the Segal case to our motion for consolidation and our motion -- excuse me, and our response specifically to this proceeding. What we've requested the court --.

THE COURT: Now, I have the motion to consolidate with attachments. Do I have a responsive pleading from you, and if so, when was it filed? When was that filed?

MR. BLOSSOM: That document also, according to secretaries before we left, they had faxed that also to the court. But I did bring the originals with me today.

THE COURT: Okay. Well, I have that. But I should advise all counsel here that I just now was aware that I have it and --.

MR. BLOSSOM: I apologize, Your Honor.

THE COURT: I understand everybody is operating on short notice, but it may delay the issuance of an order because I do want to see what you have here.

MR. BLOSSOM: Thank you, sir.

THE COURT: Now, Broward County, did you wish to be heard?

MS. SCRUDDERS: Just briefly, Your Honor, this is Tamara Scrudders for the Broward County canvassing board.

THE COURT: You were the one that I told would be second, right?

MS. SCRUDDERS: Right, Your Honor. Just briefly, Your Honor, Broward County canvassing board has not seen the pleadings, and while I don't doubt that efforts have been made, the fact of the matter is that this office, to the best of my knowledge, has not seen the pleadings making a response extremely difficult. Just generally, we would oppose any request that would keep the board from acting in accordance with its statutory authority. At this point the board has directed this office to join Palm Beach County in filing in its petition for certiorari to the Florida Supreme Court seeking direction concerning the attorney general opinion that's been discussed here today and the opinion from the division of elections seeking some direction from that court.

Beyond that, I'd like to turn it over to Mike Cirullo who is the attorney for the supervisor of elections in Broward County to give you kind of an update on the status in Broward County.

MR. CIRULLO: Good afternoon, Your Honor, this is Michael Cirullo. Just to give you a status of where we are with our count in Broward County. Last evening our canvassing board voted not to do a manual hand count of the entire Broward County election after it did its initial count of three precincts in Broward County. So currently there is no hand count scheduled. However, currently, while we're on the phone with you, there is a hearing before a circuit court judge that was filed by the Democratic Party seeking a writ of mandamus to compel that hand count. We don't know what the status is of that hearing, we've been trying to get updates as we've been on the phone with you whether there's been an order by a circuit court judge to have us do the hand count that the canvassing board otherwise denied last evening.

The canvassing board was also presented with a motion for reconsideration at a meeting it held early this afternoon by the Democratic Party, but it reserved that motion until after the two o'clock hearing before the circuit court judge.

I do know that our results are certified, that we have so far, I believe we're going to do the same thing that they're doing in Volusia and Palm Beach, which is give the state what we have as of now with the right to supplement it, if indeed it changes based on a court order or a hand count, if the conditions change down here. But that's where we are in Broward County.

And as far as argument, what Miss Scrudders said, Jane Carroll's office subscribes to it as well. Thank you for your time.

THE COURT: Before we leave Broward County, let me now ask Mr. Bopp, if you will, Mr. Bopp, tell me what evidence we have of notice to Broward County.

MR. BOPP: In our, we filed with the court first a certificate of notification. That details the steps that we took on Monday to serve the complaint and the memorandum of law supporting the PI and TRO to each of the defendants. And if you look on page three as far as the Broward County defendants, we certified that approximately 11:00 a.m.

THE COURT: Well, this, I'm looking, don't get too far ahead of me. I'm looking at what it says in your certificate of notification that you attempted to call, but got recordings. And then you faxed copies to --.

MR. BOPP: To that office.

THE COURT: Whose office?

MR. BOPP: The Broward County office of elections. We have their number from published information, perhaps their web site. I don't know where we obtained it. And we faxed the complaint and memorandum on Monday afternoon to their fax number.

THE COURT: Okay.

MR. BOPP: And of course, that would be the office of the three defendants from Broward County.

In our claim of certificate of notification of the hearing, we, I know there's a section, we detail in that, in that pleading the effort to notify the respective defendants of the date of this hearing.

THE COURT: And that's on your certificate of service you said?

MR. BOPP: We entitle that plaintiff's certificate of notification of hearing.

THE COURT: Has that been filed with the court?

MR. BOPP: Yes. It was filed right before this hearing. If you do not have a copy at your desk, I'd be happy to provide that to you. But it was filed with the clerk prior to this hearing.

THE COURT: That's certificate of notification.

MR. BOPP: I'm sorry for the captions being so similar. One is certificate of notification about our efforts to certify the, to serve the complaint by fax on Monday, and our plaintiff's certificate of notification of hearing is the second document regarding our subsequent efforts to notify defendants of the hearing. And we have also filed with the court a notice of hearing pleading itself which has, was also filed with the court today.

THE COURT: Well, is Broward County mentioned in the certificate of notification of hearing? I see Palm Beach, Volusia.

MR. BOPP: Yes. In the middle of page two, the middle of the last paragraph, between 9:00 and 11:00 a.m., Mr. Bonet also contacted the county attorneys for each of the four counties, informed their staff members of the lawsuit, the time and location of the hearing, and faxed to them copies of the TRO and PI memorandum, notice of hearing and certificate of notification.

THE COURT: You interpret that as being notice to Broward County. Is there anything else that would indicate who you talked to or what phone number or anything like that? Is that the only reference to Broward County?

MR. BOPP: The best as I can see. You understand I didn't prepare this document and all that. And as a matter of fact, I'm just reading it now in detail. That's the only reference to them that I see. However, it is a reference to them in terms of notifying them of this hearing. Because there's only four counties that have, defendants who have been sued here. And of course, those four counties are specified in the complaint and they include Broward.

THE COURT: Thank you, sir.

I'll hear from Mr. Murray next then.

MR. BERGER: Your Honor.

THE COURT: Yes. Mr. Murray.

MR. BERGER: I apologize. I thought you said Mr. Berger. The speaker is not that great.

THE COURT: Okay.

MR. MURRAY: Thank you, Judge. As you know, I represent the elections canvassing commission as a body as well as  Katherine Harris and Clay Roberts in their official capacities.

Judge, as a threshold issue, one of the things that the plaintiffs need to be able to prove is a substantial likelihood of success on the merits. I think everybody would agree that that's a fundamental aspect of gaining the relief sought here. And as a preliminary statement as well, Judge, I'd like to note that due to the late notice and the rush to get up here, my reliance on the law in this area is based primarily on Judge Middlebrook's order in the Segal case and I think that that's an important starting point because of the similarity between the two actions here and the two types of relief requested.

Judge Middlebrook cites to the relevant Eleventh Circuit law requiring what a plaintiff seeking the relief sought here needs to prove and notes that a preliminary injunction is an extraordinary and a drastic remedy, not to be granted unless the movant clearly establishes the burden of persuasion as to the four requisites.

Judge, listening to the plaintiff's argument and their recitation of the verified complaint and the allegations in the complaint, I think that this court quite frankly can deny the relief requested simply on the basis that the plaintiffs have not met their evidentiary burden, without making a determination as to the validity of the statute. By even assuming that their legal arguments are true, this court can look at the evidence presented to it and determine that the plaintiffs have not met their extraordinary burden to obtain the relief that they request.

As the court noted, the verified complaint relies on information and belief for some of their quite substantial allegations in this case. The verified complaint talks about these hanging chads and it talks about the process conducted, I believe, in Palm Beach County to determine the so-called intent or so-called will of the voter.

The copy of the complaint that I received this morning did not have exhibit attachments, but from what I understand exhibit B was a newspaper article. And I assume that that newspaper article reports on some of the process being undertaken to manually count some of the ballots in Palm Beach County. That is, Judge, the thread on which they begin to stack inferences to reach their factual conclusion in this case that they will be prejudiced by this entire process. And I don't think the court needs to be reminded of the laws of evidence and the relevant case law regarding stacking inferences and various prohibitions against that, especially when here the plaintiff not only has to establish a prima facie case, they have to go beyond that. There is a substantial burden. They have to show a substantial likelihood of success on the merits. And from a factual standpoint, they haven't even made a prima facie showing that they're entitled to that relief.

THE COURT: Mr. Murray, you participated in the hearing before Judge Middlebrook?

MR. MURRAY: I did not.

THE COURT: I don't suppose anybody from plaintiffs' side did. But Mr. Blossom did.

MR. BLOSSOM: Yes, Your Honor.

THE COURT: Mr. Blossom, was that, did, was that complaint buttressed by affidavits?

MR. BLOSSOM: Yes, Your Honor.

THE COURT: Thank you, sir.

MR. MURRAY: So I believe, Judge, that this court, without sort of delving into the nuances of the law or the like, can simply as a factual matter make the determination that the plaintiffs have failed to meet their evidentiary burden in this case which, as the Eleventh Circuit reminds us, is a substantial burden to meet for the type of relief requested in this case.

That having been said, Judge, I think what is also critical to review in the context of Judge Middlebrooks' order in the Segal case is the principles of comity in federalism that are adopted in that case. And, Judge, the state defendants here believe that this is a state issue. You have now heard substantial argument regarding the statutory structure for protests and vote counting and the like. You have heard from counsel on the telephone as well as counsel from Volusia County about a myriad of other proceedings that are occurring on the state level. And, Judge, that is the process that the state has adopted to resolve these types of issues. And that process, Judge, as is entirely evident in the record here, is ongoing. And as a matter of comity, this court should not interfere with the state statutory structure and the state processes that are being undertaken at this time to resolve state law issues on a state wide election with national implications.

And, Judge, Judge Middlebrooks in discussing this cites to the Curry V Barker case which is at 802 F.2d 1302, and he pinpoints cites to page 1314, that's an Eleventh Circuit case from 1986. And he cites that case for the proposition that the functional structure embodied in the Constitution, the nature of the federal court system and the limitations inherent in the concepts both of limited federal jurisdiction and of the remedy afforded by Section 1983 operate to restrict federal relief in the state election contests. That case continues, federal courts will not intervene to examine the validity of individual ballots or supervise the administrative details of a local election. Only in extraordinary circumstances will a challenge to a state election rise to the level of a constitutional deprivation.

And, Judge, that argument ties in with this whole concept of a state process that is under way now and has yet to be resolved. And I think that as Judge Middlebrooks again said, the manual recount provision in the statute sought to be declared unconstitutional in this case, the manual recount provision is the type of state electoral law that safely resides within the broad ambit of state control over presidential election procedures.

THE COURT: What was that you were reading from?

MR. MURRAY: That was from page 15 of Judge Middlebrooks' order from yesterday.

So, Judge, that is to say that, number one, I think the plaintiffs have failed to meet their evidentiary burden. As we all know, injunctive relief is a drastic remedy, and the plaintiffs' evidentiary foundations here, their affidavits, or lack thereof actually, their verified complaint which is based on information and belief, and those are substantial allegations which are based on information and belief, and even their verified complaint attaches a newspaper article -- I presume it's a newspaper article, I haven't seen it -- but assuming it is a newspaper article, it's clearly hearsay. And they have made no showing that they will be able to prove those allegations. And as a result, they have made no showing that there is a substantial likelihood that they will succeed on the merits in this matter.

As a final comment, Judge, one of the arguments made by plaintiffs' counsel was that they will suffer irreparable harm, and I believe they suggested they had no adequate remedy at law. And again, Judge Middlebrooks addressed a question in that regard. It's on page 20 of his opinion. And reading from the second paragraph on page 20, he says, further, there has been no evidence presented by plaintiffs that they lack an adequate remedy in state court to challenge either the manual recount results or the canvassing board decisions regarding the commencement and administration of recount procedures and he cites to Curry. In fact, Judge Middlebrooks states, Florida statutes, section 102.168 outlines an entire process by which, quote, the certification of election or nomination of any person to office or of a result on any question submitted by referendum may be contested in the circuit court by an unsuccessful candidate for such office or nomination thereto, or by an elector qualified to vote in the election related to such candidacy.

The obvious import of that statutory cite is that, in fact, there is an adequate state law remedy available to the plaintiffs if, in fact, following the completion of the statutorily mandated procedure they still believe that they have suffered an injury.

THE COURT: Thank you, Mr. Murray.

Palm Beach County.

MR. BERGER: Yes, Your Honor. Leonard Berger for the canvassing board. I have just learned that this is, and this is immediate news, that the canvassing board met and certified the results that we have described, as I had explained before, but determined that even though there are conflicting opinions that have been submitted to the canvassing board, they decided at this point to resume with the manual recount pending a determination from the Supreme Court. And their rationale, I understand, is that given the extreme time constraints that we are under, you know, in the event the Supreme Court should say it is appropriate to continue with the recount, they did not want to have to lose any time.

In the interim, I believe our petition is now complete. I heard that Broward has asked to join and, quite frankly, in all honestly, I don't know what the canvassing board said about that.

They said it was fine. I'm hearing it I guess as it's happening. And we will be joining that and we'll be joining in the Volusia County appeal as well from the Leon County Circuit Court. That's the update.

As far as the arguments here, I would like the opportunity, if possible, to join in the motion to what is now the motion to transfer of venue. I have not seen it, but I agree with the reasons that were forwarded by Volusia County. We would like to join in that request. We think it makes a great deal of sense in this case. I think you've gotten a sense at least of what Judge Middlebrooks' order, you've got to hear a great deal of argument here. Judge Middlebrooks in his court yesterday also had the benefit of an extensively briefed argument on what is essentially the same issues and the same sorts of remedies that were sought. With your permission, we would like to join in that motion.

I'd also like to point out that we think here that it was, that it is important really that the attorney general be asked to be joined as a party to this case. This is a suit which is seeking to find section 102.166 unconstitutional. I understand this is not directly on point, but in Florida statutes under the declaratory judgment statute, that's section 86, the attorney general is required to be notified. I'm not suggesting to you that perhaps under these particular circumstances they are a necessary party. Frankly, like I said, we just received these pleadings and I apologize, I haven't done the research on it, but I think that it's something that this court should consider at least staying and allowing the attorney general an opportunity to respond to the issue.

As far as the merits of the case goes, I don't want to take up too much of the court's time. I don't think there is a whole lot that I can add to co-counsels for the other defendants and their arguments. I think it's pretty clear that there is an extremely heavy burden to be met here and I believe, based on the failure to present really any sort of clear evidence here and the failure to show any sort of likelihood to succeed on the merits, and plus the clear availability of the statutory provided remedy under 102.168, that there is certainly no showing of irreparable harm.

Again, I would join the defendants in urging you to deny this request. And there is really, again, also little I can add to the reading of the attorney general opinion 0065. I think the opinion makes it rather clear, in that opinion the attorney general refers to a long line of cases, I guess, which demonstrate that it is valid if a ballot were marked to somehow show a voter's choice, that it is marked, that there is a duty to look to the ballot to make sure the voter's intent is discerned, and there are a line of cases there. And unless there is some sort of positive provision of law that it's violated, that is the practice, that is a line of cases stemming back to 1890.

Beyond that, I really have little to add at this point. I think it's been said.

THE COURT: Thank you, sir.

MR. BOPP: Thank you, Your Honor. If I may briefly respond. And renew my thanks to the court and to your staff for attending to this matter. I am sure that it is a major interruption to your docket and that they have performed extraordinary efforts to get this matter determined and decided today and we express our thanks for you, to you for setting the hearing promptly. We also regret that this could not be handled, you know, in a more leisurely way. We were retained by our clients on Sunday, so we have endeavored to not only complete the work to be filed with this court, but also as I've indicated, to provide all the notice we can, as humanly possible to the defendants, and I regret in those instances where that was not adequately done.

What I understand the defendants to say at this point is that they are certifying results that include some manual recounting of votes, that those manual recounts that have been performed are not being set aside, that the certifications will include the results of some manual recounts, and further, that they reserve the right to subsequently add the results of manual recounts to their certification if that is allowed or permitted under Florida law. So we still have, even though in some cases manual recounts have been suspended, some have been renewed, we still are here with the issue of whether or not any of those manual recount results will be certified by the counties to the state department. And so we still have a live and a very active controversy here between the plaintiffs and defendants.

Now, we have challenged this statute both on its face and as applied. Now, on its face, we clearly have standing under Roe because we have a dilution of the vote of the plaintiffs because they're being subjected to different standards for the counting of their vote than are others. And when I say different standards, I'm sorry that defendant's counsel may have misunderstood our argument. There may be various methods to cast your vote as of course there are. However, there's only one statute, which is 102.166, that provides the mechanism for conducting a recount. And we have not challenged subsections 1, 2 or 3. What we have challenged is subsection four which provides for a manual recount of votes after whatever electronic or mechanical mechanism is used to originally conduct an automated count of those votes. And we have challenged that on its face and as applied on its face because we have, because it creates a structure on the face of the statute which allows counties to selectively manually recount, and we have explained what we believe the geographic dilution of votes that result the from that.

And furthermore, on its face, it allows for the canvassing board to attempt to, quote, to determine the intent, end of quote, of the voter.

Now, on its face, these plaintiffs had their intent determined by the automated system and, as we know, there may be valid votes that are not recognized by the automated system. However, they do not benefit under the statute by a manual recount which has its valid application in determining whether or not there are valid votes that are being cast. So the statute authorizes both a geographic and ballot stuffing type of dilution of the plaintiff's votes.

Now, as to as applied, we of course have submitted evidence in our verified complaint that furthermore these counties are utilizing vague, subjective, arbitrary and capricious standards to attribute intent to a voter where there is an equally valid alternate inference that the voter did not intend to vote for that candidate at all. But they are going to count a vote because --.

THE COURT: See, that's where I have trouble with your pleading, understanding you filed it on short notice. Maybe if you had more time you would have perhaps the affidavit of somebody who was there and saw that that actually happened. But aren't we, in fact, engaged in a stacking of inferences here? You're saying that your clients have information that that happened and their information is based on information that somebody, apparently that somebody else got and we don't know what the source of that was. It seems to me that if we're truly intellectually honest about this, these aren't allegations of fact, their concerns, albeit, legitimate concerns, Mr. Bopp, I don't mean to demean them, but my problem as a judge is trying to figure out whether you have made allegations of fact sufficient to warrant this. And I can tell by listening to you that you've thought about this, that this isn't anything new, that you were probably expecting it, but it is a problem.

MR. BOPP: With all due respect, if you would ask the Palm Beach attorney who is on that phone, he will represent to you that they are counting, that they have counted in the manual count chads that have only one of the four corners dislodged. They have counted chads where there is only two of the four corners dislodged. And that they have counted ones where light shows through. And that they will represent that to you truthfully as officers of this court, and then we could stipulate to that.

THE COURT: Well, I don't hear any stipulation.

MR. BOPP: Well then, I will offer to stipulate. I mean I appreciate what you're saying, Your Honor.

THE COURT: It takes two to stipulate, and not that I question your sincerity in making the statement, but without there being a sworn statement that that is happening or a stipulation between counsel that that's happening, or an evidentiary hearing where I as finder of fact make that determination.

MR. BOPP: And I know you're precluded

from --

THE COURT: I'm left with these accusations only.

MR. BOPP: I will offer to stipulate that in the manual recount of votes in Palm Beach that they counted as cast ballots ballots that had only one corner of the four corners dislodged, that they also counted ballots where only two of the four corners were dislodged, and that they counted ballots where there was sunlight coming through, and that each of those ballots at one time or another were counted, and that the final manual recount of votes includes ballots counted used one or more of those tests. So that is an offer to the Palm Beach County attorney to stipulate to those facts.

MR. BERGER: Your Honor, Leonard Berger for the canvassing board. Of course, I'm not prepared to give evidence at this time. I can tell you that the standard that generally was followed was, and there are written standards, that there needs to be some show of penetration. And again, I hesitate to do anything that could be, confuse what testimony or evidence we're giving here, but I do object to the assertion that there are counted votes here that were counted where there was no penetration. At one point in the evening, after objections had been made by observers, there was a point early on in the process where some votes like that were counted where there was just light showing through. What had happened was at that point one of the canvassing board members realized that we had veered from the procedures we established in the beginning and we recounted and started over with those, and I believe there were, and I'm not certain