Revista da EMERJ - V. 20 - N. 2 - Maio/Agosto - 2018

31  R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto 2018  The contest provisions of the Florida election code do not dis- close what level of deference is owed to the Secretary of State’s certification of the election results or to local canvassing boards’ deci- sions not to conduct manual recounts. Since the very purpose of an election contest is to challenge the certification, it makes no sense to have a contest provision while deferring entirely to the certification. The statutory standard for a contest to proceed–“rejection of a num- ber of legal votes sufficient to change or place in doubt the results of the election”–does not indicate that any deference at all is owed to the decisions of administrative officials. Perhaps de novo review is not the most sensible way of structuring an election contest scheme, but it is perfectly consistent with the statutory language, which the concurring opinion emphasizes is entitled to special weight in light of Article II concerns. 108 Nor does it contravene any Florida Supreme Court precedent, since that court never before had interpreted the amended contest provisions. A Florida appellate court, construing the old contest provision, had ruled that the same deference explici- tly granted by statute to local canvassing boards with regard to con- ducting manual recounts during the protest phase should apply du- ring the contest phase, 109 but that ruling is not precedent for the state supreme court. Moreover, to overrule in the contest phase of the proceedings a local canvassing board’s discretionary judgment during the protest phase not to conduct a manual recount does not nullify the statutory grant of discretion; rather, it restricts its force to elections deference courts owe to agency legal interpretations, see David M. Greenbaum & Lawrence E. Sellers, Jr., 1999 Amend- ments to the Florida Administrative Procedure Act: Phantom Menace or Much Ado About Nothing? , 27 Fla. St. L. Rev. 499, 522-24 (2000). Compare also Krivanek v. Take Back Tampa Political Comm., 625 So. 2d 840, 844 (Fla. 1993) (“although not binding judicial precedent, advisory opinions of affected agency heads are persuasive authority and, if the construc- tion of law in those opinions is reasonable, they are entitled to great weight in construing the law as applied to that af- fected agency of government”); State Dep’t of Health & Rehabilitative Servs. v. Framat Realty, Inc., 407 So. 2d 238, 242 (Fla. App. 1981) (according a “most weighty presumption of validity” to agency rulemaking) with Tampa Electric Co. v. Garcia, 767 So. 2d 428 (Fla. 2000); Legal Environmental Assistance Foundation v. Board of County Comissioners, 642 So. 2d 1081, 1083-84 (Fla. 1994) (refusing to defer to an “unreasonable” interpretation); see also Darby v. State ex rel. McCollough, 75 So. 411 (Fla. 1917) (showing no deference to local election officials’ interpretation of what counts as a legal vote). For the rule that only interpretations implicating an agency’s expertise warrant deference, see, e.g., Zopf v. Singletary, 686 So. 2d 680, 682 (Fla. App. 1996); Board of Trustees v. Department of Management Servs., 651 So. 2d 170, 173 (Fla. App. 1995). For the rulemaking requirement, see Fla. Stat. §120.54. For the willingness of Florida courts to show greater deference to agency legal interpretations that flow from rulemaking, as opposed to post hoc adjudication, see, e.g., Florida Cities Water Co. v. Florida Pub. Serv. Comm’n, 384 So. 2d 1280, 1281 (Fla. 1980); Anheuser-Busch, Inc. v. Dep’t of Business Regulation, 393 So. 1177, 1182 (Fla. App. 1981). I am grateful to Jim Rossi for directing me to relevant sources and for helping to clarify Florida administrative law for me. 108 It is ironic, given the concurring opinion’s emphasis on the text of the Florida election code, that it was the Bush camp arguing against a literal, and in favor of a holistic, reading of the statute. 109 Broward County Canvassing Board v. Hogan, 607 So.2d 508 (Fla. Ct. App. 1992) (per curiam).