....CONT
VIII. THE RIGHT TO VOTE
The text of our Florida Constitution begins with a Declaration of
Rights, a series of rights so basic that the founders accorded
them a place of special privilege. The Court long ago noted the
venerable role the Declaration plays in our tripartite system of
government in Florida:
It is significant that our Constitution thus commences by
specifying those things which the state government must not do,
before specifying certain things that it may do. These
Declarations of Rights . . . have cost much, and breathe the
spirit of that sturdy and self-reliant philosophy of individualism
which underlies and supports our entire system of government.
No race of hothouse plants could ever have produced and
compelled the recognition of such a stalwart set of basic
principles, and no such race can preserve them. They say to
arbitrary and autocratic power, from whatever official quarter it
may advance to invade these vital rights of personal liberty and
private property, "Thus far shalt thou come, but no farther."
State v. City of Stuart, 120 So. 335, 347 (Fla. 1929). Courts
must attend with special vigilance whenever the Declaration of
Rights is in issue.
The right of suffrage is the preeminent right contained in the
Declaration of Rights, for without this basic freedom all others
would be diminished. The importance of this right was
acknowledged by the authors of the Constitution, who placed it
first in the Declaration. The very first words in the body of the
constitution are as follows:
SECTION 1. Political power.–All political power is inherent in
the people. The enunciation herein of certain rights shall not be
construed to deny or impair others retained by the people.
Art. I., § 1, Fla. Const. (emphasis added). The framers thus
began the constitution with a declaration that all political power
inheres in the people and only they, the people, may decide how
and when that power may be given up.
To the extent that the Legislature may enact laws regulating the
electoral process, those laws are valid only if they impose no
"unreasonable or unnecessary" restraints on the right of
suffrage:
The declaration of rights expressly states that "all political
power is inherent in the people." Article I, Section 1, Florida
Constitution. The right of the people to select their own officers
is their sovereign right, and the rule is against imposing
unnecessary and unreasonable "restraints on that right". . . .
Unreasonable or unnecessary restraints on the elective process
are prohibited.
Treiman v. Malmquist, 342 So. 2d 972, 975 (Fla. 1977)
(emphasis added). Because election laws are intended to
facilitate the right of suffrage, such laws must be liberally
construed in favor of the citizens' right to vote:
Generally, the courts, in construing statutes relating to elections,
hold that the same should receive a liberal construction in favor
of the citizen whose right to vote they tend to restrict and in so
doing to prevent disfranchisement of legal voters and the
intention of the voters should prevail when counting ballots . . . .
It is the intention of the law to obtain an honest expression of
the will or desire of the voter.
State ex rel. Carpenter v. Barber, 198 So. 49, 51 (Fla. 1940).
Courts must not lose sight of the fundamental purpose of
election laws: The laws are intended to facilitate and safeguard
the right of each voter to express his or her will in the context of
our representative democracy. Technical statutory requirements
must not be exalted over the substance of this right.
Based on the foregoing, we conclude that the authority of the
Florida Secretary of State to ignore amended returns submitted
by a County Canvassing Board may be lawfully exercised only
under limited circumstances as we set forth in this opinion. The
clear import of the penalty provision of section 102.112 is to
deter Boards from engaging in dilatory conduct contrary to
statutory authority that results in the late certification of a
county's returns. This deterrent purpose is achieved by the fines
in section 102.112, which are substantial and personal and are
levied on each member of a Board. The alternative penalty, i.e.,
ignoring the county's returns, punishes not the Board members
themselves but rather the county's electors, for it in effect
disenfranchises them.
Ignoring the county's returns is a drastic measure and is
appropriate only if the returns are submitted to the Department
so late that their inclusion will compromise the integrity of the
electoral process in either of two ways: (1) by precluding a
candidate, elector, or taxpayer from contesting the certification
of an election pursuant to section 102.168; or (2) by precluding
Florida voters from participating fully in the federal electoral
process. In either case, the Secretary must explain to the Board
her reason for ignoring the returns and her action must be
adequately supported by the law. To disenfranchise electors in
an effort to deter Board members, as the Secretary in the
present case proposes, is unreasonable, unnecessary, and
violates longstanding law.
Allowing the manual recounts to proceed in an expeditious
manner, rather than imposing an arbitrary seven-day deadline, is
consistent not only with the statutory scheme but with prior
United States Supreme Court pronouncements:
Indiana has found, along with many other States, that one
procedure necessary to guard against irregularity and error in
the tabulation of votes is the availability of a recount. Despite
the fact that a certificate of election may be issued to the
leading candidate within 30 days after the election, the results
are not final if a candidate's option to compel a recount is
exercised. A recount is an integral part of the Indiana electoral
process and is within the ambit of the broad powers delegated to
the States by Art. I, s 4.
Roudebush v. Hartke, 405 U.S. 15, 25 (1972)(footnotes
omitted).
In addition, an accurate vote count is one of the essential
foundations of our democracy. The words of the Supreme Court
of Illinois are particularly apt in this case:
The purpose of our election laws is to obtain a correct
expression of the intent of the voters. Our courts have
repeatedly held that, where the intention of the voter can be
ascertained with reasonable certainty from his ballot, that
intention will be given effect even though the ballot is not strictly
in conformity with the law. . . . The legislature authorized the
use of electronic tabulating equipment to expedite the tabulating
process and to eliminate the possibility of human error in the
counting process, not to create a technical obstruction which
defeats the rights of qualified voters. This court should not,
under the appearance of enforcing the election laws, defeat the
very object which those law are intended to achieve. To
invalidate a ballot which clearly reflects the voter's intent, simply
because a machine cannot read it, would subordinate substance
to form and promote the means at the expense of the end.
The voters here did everything which the Election Code requires
when they punched the appropriate chad with the stylus. These
voters should not be disfranchised where their intent may be
ascertained with reasonable certainty, simply because the chad
they punched did not completely dislodge from the ballot. Such a
failure may be attributable to the fault of the election authorities,
for failing to provide properly perforated paper, or it may be the
result of the voter's disability or inadvertence. Whatever the
reason, where the intention of the voter can be fairly and
satisfactorily ascertained, that intention should be given effect.
Pullen v. Milligan, 561 N.E.2d 585, 611 (Ill. 1990)(citations
omitted).
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