1. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. McDERMOTT v. HARRIS Florida Circuit Court, Leon County, No. 00-2700 (Fla. 2d Cir. Ct. Nov. 14, 2000) Case Brief (McDermott I)

2. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. McDERMOTT v. HARRIS PURPOSE: This case discusses abuse of discretion as the standard of review of the exercise of discretion by administrators.

3. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. McDERMOTT v. HARRIS CAUSE OF ACTION: Declaratory Judgment is sought.

4. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. McDERMOTT v. HARRIS FACTS: In the presidential elections of 2000, the vote in the State of Florida was so close that several counties conducted manual recounts in accordance with the Florida Statutes. Under Section 102.112, of the Florida Statutes, manual recounts were to be reported to the Florida Secretary of State within a week following the election, in this instance 5:00 p.m., November 14, 2000. This Section provides that if the returns are not received by the deadline, such returns may be ignored by the Secretary in her statewide certification. (continued)

5. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. McDERMOTT v. HARRIS The Plaintiffs insist that the Secretary of State must consider the certified results from Volusia and Palm Beach Counties, even if they are filed late, if they are still engaged in the manual recount of the votes. The Secretary of State insists that, absent an Act of God such as a hurricane, any returns not received by the statutory deadline will not be counted in the statewide tabulations and certification of the election results.

6. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. McDERMOTT v. HARRIS ISSUE: Whether the Secretary of State may ignore vote recounts submitted after the statutory deadline.

7. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. McDERMOTT v. HARRIS HOLDING: Yes, but... the “Secretary of State may ignore such late filed returns, but may not do so arbitrarily, rather, only by the proper exercise of discretion after consideration of all appropriate facts and circumstances.”

8. Copyright 2007 Thomson Delmar Learning. All Rights Reserved. McDERMOTT v. HARRIS REASONING: To determine ahead of time that late recount returns will be ignored unless caused by some Act of God, is not the exercise of discretion. It is the abdication of that discretion. “I can lawfully direct the Secretary to properly exercise her discretion in making a decision on the returns, but I cannot enjoin the Secretary to make a particular decision, nor can I rewrite the Statute that, by its plain meaning, mandates the filing of returns by the Canvassing Boards by 5:00 p.m. on November 14, 2000.”