Fla. Law Provides Precedent for Presidential Ballot Recount
Charles Tiefer
Legal Times
November 14, 2000
Lawyers interested in the developing legal
battle over just who won the Oval Office will be
poring over some vital Florida law in the coming
days. What they'll find is that Florida statutory
and case law provides surprisingly strong
support for a careful, deliberate set of recounts
of the presidential election and, ultimately, a
result in Palm Beach County favorable to Vice
President Al Gore.
To restate briefly the apparent facts, while
Gore won the popular vote nationwide, it is the
Electoral College vote that will determine who
becomes president. The Electoral College
result turns on Florida. Out of more than six
million votes cast in the state, the initial count
gave Gov. George W. Bush a very slender
1,784-vote lead, with the immediate
retabulation narrowing that down to a few
hundred.
The tricky question concerns the results in
Palm Beach County. Pat Buchanan received
3,407 votes, an astonishingly high number for
him in that county. Also, more than 19,000
ballots were reportedly not counted because of
"over-holes" -- that is, voters punched two
holes, instead of one, in selecting their
presidential choice.
Both these phenomena trace to Palm Beach's
now infamous "butterfly" ballot, which listed
Bush, Gore, Ralph Nader, and others on the left
side (or what would look to voters like the first
page), and Buchanan and another string of
third-party candidates on the right side. In the
middle was a column of holes to be punched.
Putative Gore voters counting down on the left
side would see Bush first, Gore second, and
might well punch the second hole. But if voters
did so, they would find that they had voted for
Buchanan, because this ballot attributed the
second hole not to the second candidate on the
left-hand page, but to the first candidate on the
right-hand page, i.e., Buchanan. Presumably,
many of those 19,000 voters made this
mistake and then attempted again to punch for
Gore, thus presumptively invalidating their
ballots.
Florida statutory and case law addresses this
kind of problem. The state's Electors and
Election Code, Title 9 of Florida Statutes
Annotated (F.S.A.), prescribes what must
"substantially be" the "Form of General
Election Ballot" in Section 101.191(1). While
this is for written rather than voting-machine
ballots, Section 101.27(3) prescribes, "The
order in which the voting machine ballot is
arranged shall as nearly as practicable conform
to the requirements of the form of the paper
ballot for that election."
These ballot statutes prescribe a linear list
starting with the two major party candidates,
followed by the minor party candidates. And
F.S.A. Section 101.191(1) prescribes this
sentence for the ballot: "TO VOTE for a
candidate whose name is printed on the ballot,
mark a cross (X) in the blank space at the
RIGHT of the name of the candidate for whom
you desire to vote." (The capitalization is in the
original.)
In other words, Florida statutory law clearly
supports the idea that the place to mark the
ballot should be to the right of the candidate's
name, as is natural for English-language
readers, who read from left to right. Judging
from the balloting results, that is also what
Florida voters expected.
'VOTER'S INTENT'
The methodical re-evaluation of the vote now
being followed comes from the same Florida
Election Code. F.S.A. Section 101.166,
"Protest of election returns; procedure,"
prescribes what the county canvassing board,
made up of three local officials, must do. First,
the board performs tabulation-style recounts,
such as running the ballot cards through
counting machines again.
Then, Section 101.166(4)(c) states, "The
county canvassing board may authorize a
manual recount." The manual recount initially
looks at a sample of ballots, before the board
decides whether, pursuant to Section
101.166(5)(c), to "manually recount all
ballots." Pursuant to Section 101.166(6) and
(7), "Any manual recount shall be open to the
public." "Counting teams" are appointed with
"members of at least two political parties."
These examine the ballots one by one and
classify them -- if the team can agree. The
statute further prescribes, "If a counting team
is unable to determine a voter's intent in
casting a ballot, the ballot shall be presented
to the county canvassing board for it to
determine the voter's intent."
What would a neutral observer think of the
"voter's intent" for an "over-hole" ballot? Bush
partisans will contend that it takes a psychic.
But does it? Would it help to listen to
thousands of Palm Beach voters willing, if not
frantic, to testify on the subject, with nothing
much to impeach the credibility of their
testimony? Will it be confirmatory that the
"over-hole" ballots, as to their choices for
other offices and on various ballot propositions,
reflect the thinking of Gore voters -- never
Buchanan voters?
The next point of interest in Florida law may
concern what happens when the Palm Beach
County canvassing board certifies its result to
statewide officials. F.S.A. Section 102.111,
"Elections Canvassing Commission," states
that "Immediately after certification of any
election by the county canvassing board ...
[t]he Governor, the Secretary of State, and the
Director of the Division of Elections shall be
the Elections Canvassing Commission."
The results of a Palm Beach recount do not go
directly into an electoral calculation; they pass
through that commission. Jeb Bush, the Florida
governor and the candidate's brother, has
announced that he will recuse himself from this
commission. Alas, Florida law does not make
Jeb's recusal a great reassurance about the
commission's objectivity. Section 102.111
prescribes, "In the event that any member of
the Elections Canvassing Commission is
unavailable to certify the results of any
election, such member shall be replaced by a
substitute member of the Cabinet as
determined by the Director of the Division of
Elections." In other words, the commission will
remain virtually a subcommittee of Jeb Bush's
Cabinet.
REVISITING 'BECKSTROM'
Finally, we come to Florida case law. In one
famous recent case, a state court went so far
as to reverse election results in Miami's
mayoral race, albeit in a case involving voter
fraud.
More on point for the current situation is a
1998 opinion by the Florida Supreme Court,
Beckstrom v. Volusia County Canvassing Board.
That decision provides by far the most
comprehensive survey, from the state's high
court, of key substantive issues. It also offers
an illuminating example of the judicial
procedure in Florida election contests.
In Beckstrom, a candidate for county sheriff
lost the manual recount, challenged the
election in Florida Circuit Court (primarily as to
how absentee ballots were counted), and had a
week-long trial, followed by an appeal up to the
Florida Supreme Court. The high court agreed
that the count "was not in substantial
compliance" with Florida election statutes.
This decision gives much support to the doubts
about the Palm Beach ballot. Bush supporters
have argued that the ballot form received the
necessary pre-election approvals, and the
state's secretary of state (a Republican)
contends that the ballot is fine.
But the Florida Supreme Court agreed with the
Beckstrom challenge to a ballot re-marking
process "even though the process was widely
used, recommended by the manufacturer's
representative, and approved by the state
Division of Elections."
The court did not recognize pre-approval as
any guarantee of validity. The rights in
question belong, above all, to the voters, and
the voters do not lose them by the mistakes of
those who devise ballots. Even more important,
the Florida Supreme Court did not demand
proof of election fraud in the hard-core sense.
It stated, "We stress, however, that we are not
holding that a court lacks authority to void an
election if the court has found substantial
unintentional failure to comply with statutory
election procedures." It continued: "To the
contrary, if a court finds substantial
noncompliance with statutory election
procedures and also makes a factual
determination that reasonable doubt exists as
to whether a certified election expressed the
will of the voters, then the court in an election
contest ... is to void the contested election
even in the absence of fraud or intentional
wrongdoing."
Thus, the Florida Supreme Court made the key
question (besides whether the procedures
followed were noncompliant) whether such flaws
create "reasonable doubt" as to whether the
supposed election result "expressed the will of
the voters." The court's standard makes the
closeness of the current vote count a very
major factor. It also makes into a major factor
how much doubt exists about whether the
election reflects the will of the voters.
In other words, bribing a single Palm Beach
voter, while a criminal felony and a basis for
jailing the perpetrator, would not create doubt
about the whole election's result. But a ballot
problem that sandbags as many as 19,000
Palm Beach voters, even though it is no basis
for punishing election officials, is enormously
legally significant because it may well have
distorted the people's voice.
So Palm Beach had a defective ballot. But
Florida has a strict oversight system. And it
will vindicate the voters' rights.
Charles Tiefer was solicitor and deputy general
counsel of the House of Representatives from
1984 to 1995. He is the author of "Congressional
Practice and Procedure" (Greenwood Press, 1989)
and is currently associate professor at the
University of Baltimore Law School.
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