U.S. Senate Will Be Final Judge in Scott v. Nelson Contest

While the close senate race in Florida is causing each campaign to sharpen their litigation knives, it is important to remember that ultimately it is the United States Senate, not the courts, that has the power to decide the issue.

Article I, Section 5 of the United States Constitution states: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members…” This clause has been recognized by the U.S. Supreme Court to mean that while the candidates can file election lawsuits in state and federal courts, congress has the final say and can conduct its own proceedings, call witnesses etc. to determine the outcome of a congressional election.

Read the Court’s decision in Roudebush v. Hartke (1972) for a discussion of Article I, Section 5 , election lawsuits and the power of the Senate to be the final judge in senate elections.

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How Florida Recounts Work

Because there may be several statewide recounts as a result of the 2018 Midterm Election, now is probably a good time to review how the Florida recount process works.

After all the ballots are initially counted, if the vote spread between two candidates  is one half of one percent or less, then a machine (optical scanner) recount of all ballots occurs.  F.S. 102.141(7).  In addition to tallying all ballots, the machine recount also identifies those ballots that are overvotes (voter voted for both candidates) and undervotes (voter voted for neither candidate).  The identification of overvotes and undervotes is by machine, not the naked eye.

If the machine recount shows that the spread between the candidates is one quarter of one percent or less, a manual recount only of the ballots identified by the machine as overvotes and undervotes occurs, unless:  (1) the candidate who is behind requests that the recount not be made, or (2) the total number of overvotes or undervotes is fewer than the number of votes needed to change the outcome of the election. F.S. 102.166.  For example, assume that after the machine recount the spread between the candidates is 10,000 votes, and that spread is one quarter of one percent or less of the votes cast for the office.  Also assume the machine recount identified 5,000 ballots as overvotes or undervotes.  Under this scenario the candidate who is ahead by 10,000 votes would be declared the winner, because a manual recount of the 5,000 overvotes and undervotes would not, as a matter of arithmetic, be sufficient to change the result of the election.

If the total number of overvotes and undervotes would be sufficient to change the result of the election, then a manual recount of only the overvote and undervote ballots would occur to determine if these ballots clearly indicate a vote for just one of the candidates.  The interpretation of the voter’s mark or markings on the overvote/undervote ballot is governed by detailed standards promulgated by the Florida Division of Elections.

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The History of Voting in America

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Federal Court: Florida Election Statute “Illogical, Irrational and Patently Bizarre” Orders State to Allow Correction of Mismatched Signature Ballots

gavelFlorida Northern U.S. District Court Judge Mark Walker has entered another order in a case initiated by the Florida Democratic Party against the State.  In an Order Granting Preliminary Injunction, the Court found that “[i]t is illogical, irrational and patently bizarre for the State of Florida to withhold the opportunity to cure from mismatched signature voters while providing the same opportunity to no signature voters”.  Therefore, the court concluded Florida’s “statutory scheme” regarding the opportunity to cure signature defects in mail-in ballots unconstitutional. See F.S. 101.68. This ruling will likely apply to thousands of mail-in ballots and will require county supervisors to notify mail-in voters whose ballot signatures don’t match registration records that they can correct their signatures by 5pm the day before the election. Judge Walker previously ordered the Governor to extend the voter registration deadline to October 18th, 2016.

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Court Finds Florida’s “Statutory Framework” Unconstitutional-Extends Voter Registration Deadline

Florida Voter Registration and Voting GuideFederal Northern District Court Judge Mark Walker has entered a temporary restraining order which requires Florida officials to accept voter registrations until 5pm October 12th 2016, which is one day beyond the statutory deadline set by F.S. 95.055. In doing so the Court found that “Florida’s statutory framework is unconstitutional” because the statutes permit the Governor in case of emergancies to move election dates but not registration deadlines. The Court set a hearing for 11am Oct. 12th 2016, to determine if the registration deadline should be extended beyond Oct 12th.

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Election Law Issues May Come Into Play in Florida in 2016

Florida election law could once again take center stage in the days following the 2016 election. With that possibility in mind, let’s examine several issues that may come into play this year on the state and local level. 

voter challangeVoter Challenges

Any voter or poll watcher with sufficient basis can challenge the right of any other voter to cast a ballot.  Anyone wishing to challenge a voter at the polling place during early voting or on Election Day must submit an affidavit to the precinct clerk or inspector outlining the basis for the challenge prior to the casting of the challenged vote.  Alternatively, the challenge can be made by delivering the affidavit to the supervisor of elections office no sooner than 30 days prior to the election.  The challenged voter will be permitted to vote by provisional ballot.  Under most circumstances the local canvassing board will determine the validity of the challenge.

Cimageshallenges to Absentee Ballot Voter’s Certificate 

The outside of an absentee ballot envelope contains a statement called a voter certificate.  The voter certificate must be signed by the voter with a signature which matches the signature on file at the supervisor’s office.  Challenges based upon a defect in the voter’s certificate (e.g. the signature doesn’t match) must be made before the ballot is removed from the envelope.  The challenge must be filed with the canvassing board and specify the precinct, the ballot, and the reason why the challenger believes the ballot to be illegal.

ballot auditRecounts 

Recounts of ballots are triggered in two instances:

If the first ballot count reflects that a candidate was defeated or ballot measure approved or rejected by ½ of 1% or less of the votes cast, a machine recount of all ballots cast for the race or measure will occur.

If the machine recount described shows that the candidate was defeated or ballot measure was approved or rejected by ¼ of 1% or less of the votes cast, a manual recount of the overvotes and undervotes cast for the race or measure will occur.  A vote contained on a ballot initially identified as an overvote or undervote shall be counted if there is a clear indication on the ballot that the voter has made a definite choice.  This manual recount will occur unless the losing candidate requests in writing that a recount not be made or the number of overvotes and undervotes is fewer than the number of votes needed to change the outcome of the election.

“Overvote” means a voter has marked a vote for 2 or more persons for the same office or more than one answer to a ballot question, and the machine tabulator records no vote for the office or question.

“Undervote” means that the voter did not make any choice for an office or ballot question, and the machine tabulator records no vote for the office or question.

gavelElection Contest

An election contest is a lawsuit which challenges the certification of the outcome of an election.  An election contest is not available to challenge Florida House or Senate races.  These races are solely within the jurisdiction of the Florida Legislature and challenges to certification are governed by the rules of the applicable house.

Although Federal Congressional races can be challenged through an election contest suit, the Federal Senate and House of Representatives bear the ultimate constitutional responsibility to adjudicate disputed Congressional elections.

An election contest suit can be brought by an unsuccessful candidate or any voter or taxpayer.  The suit must be filed within 10 days after certification of the election.

The grounds for contesting an election are:

(a) Misconduct, fraud, or corruption on the part of any election official or any member of the canvassing board sufficient to change or place in doubt the result of the election.

(b) Ineligibility of the successful candidate for the nomination or office in dispute.

(c) Receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election.

(d) Proof that any elector, election official, or canvassing board member was given or offered a bribe or reward in money, property, or any other thing of value for the purpose of procuring the successful candidate’s nomination or election or determining the result on any question submitted by referendum.

public inspectionPublic Inspection of Ballots

The Florida Public Records Law and Election Code treat ballots as public records subject to public inspection and examination upon request.  Any member of the public is entitled to inspect any or all of the ballots, however, only an employee of the supervisor of elections can touch the original ballot.  The law contemplates that a ballot inspection might occur before the deadline for filing an election contest suit (10 days following certification).  If an inspection is requested before the contest deadline, the supervisor must make a reasonable effort to notify all candidates of the inspection and allow them to attend the inspection.

Voting System Auditsaudit 

After the certification of all elections, the local canvassing board is required to immediately conduct either a manual audit or an “automated, independent audit “of the voting systems.

The manual audit must be for one randomly selected race in at least 1% but no more than 2% of randomly selected precincts.  The manual audit must occur in public.

The automated independent audit is a public automated tally of votes cast in all races in 20% of precincts selected at random.

The local canvassing board must report the results of the audit to the Secretary of State.

The results of the audit have no legal effect on the outcome or certification of the election, although the results likely could be used as evidence in an election challenge or contest suit.

Hopefully this summary will be helpful to you in following events in the event election controversies arise this year.

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