John W. Wall

November 14, 2000

The Florida Secretary of State has given counties until 2 pm on November 15 to file papers in support of any applications to amend the election returns they submitted prior to the statutory deadline of 5 pm on November 14. In all likelihood, the Democrat majorities on the election boards in one or more of the three Florida counties that have been "recounting" ballots by hand (Broward, Miami-Dade and Palm Beach) will submit papers to the Secretary of State in support of their partisan and presumably biased hand tallies of ballots that have already been counted and recounted by machine.

Quite obviously, responsive papers need to be submitted to establish a factual basis for a decision by the State to reject any amendments to the county returns on file based upon further hand counting.

Republican and independent Democrat members of the county election boards should submit affidavits to the Secretary of State in opposition to State acceptance of the post-deadline hand tallies. The affidavits should set forth all relevant facts within the drafters' personal knowledge, giving specific, detailed examples of instances in which they have observed hand counting of doubtful accuracy, and they should respond to each and every erroneous statement of fact contained in the Democrat majority reports. The affidavits should be submitted as soon as possible, but not until after the drafters have had an opportunity to study the majority papers.

In addition, George W. Bush should submit affidavits from leading experts on vote counting to the Secretary of State after the experts have had an opportunity to review the majority reports and the minority affidavits.

Local counsel should be consulted for an opinion as to whether Bush should submit a memorandum of law to the Secretary of State. Unless prominent Florida lawyers were to oppose such a submission, I would be inclined to file a brief (< 25-page) memorandum tying together the facts and relevant law.

In all probability, the Democrat majorities will submit reply papers in response to the minority affidavits and expert affidavits, including affidavits from their own experts. Sur-reply affidavits may need to be filed to address any new material contained in the reply papers.