quarterly-report.com Political Commentary by James R. Audet

November 22, 2000
37th Anniversary of the assassination of President John F. Kennedy

In a November 21 Opinion of the Florida Supreme Court ("Court"), some imperiled Florida voters were thrown a lifeline.  The Court ordered that the recount of votes may continue in Broward, Dade and Palm Beach counties.

Out of a screaming necessity, the Court addressed the contemptible debate over recounts and pinned the blame for the controversy on the Florida Legislature and the various County Supervisors of Elections.  It strongly suggested that the Legislature remove the conflicts in the statutes that govern the certification of elections that had given standing to the matters before it.

Faced with a contradiction in Florida statutes, the Court waded through the conflicting laws and held that a recount -- mandatory in close elections -- can not be reasonably concluded within seven days.  The Court found that the time limit was an arbitrary infringement to the voters of having their ballots properly counted.  However, in rejecting the seven-day period for local canvassing boards to transmit their tabulations to the Secretary of State, the Court recognized that some time limit was appropriate.  It also held that dilatory canvassing boards should not compromise Florida' s presidential certification.  Consequently, it set a Sunday, November 19th deadline of 5:00 P.M. for the submission of final results to the Florida Secretary of State.  ^1/

Unfortunately, the Court did adequately address the remaining issue of how to determine voter intent where a chad was not completed punched out by the voter.  The best the Court offered as guidance was a Supreme Court of Illinois decision that held that a chad need not be fully dislodged to discern voter intent.  In citing the Illinois case, the Florida court was on the right track.  However, its failure to set a standard -- arguably they had no obligation to do so -- will give rise to future causes of actions by the losing presidential candidate, whomever he may be.

The Court stated (that a citizen's) "right to vote is the pre-eminent right in the Declaration of Rights of the Florida Constitution..."  Thus, regardless of the means by which the voter indicated his preference, if the voter's intent can be properly deduced, then his preference should be counted.  With this guiding principle in hand, we can dispose of the following issues relating to chad in machine counted ballots.

1. Any ballot with a partially dislodged chad should be counted, provided there is no conflict with the selection of other contestant(s) for the same political office.

2. So called "pregnant" and "dimpled" chad that bear a discernible depression but have not be dislodged should be counted, provided there is no conflict with the selection of other contestant(s) for the same political office.   See, November 25, 2000 editorial for the reason for this retraction.

The counting of absentee ballots require similar treatment.

3. All civilian and military overseas ballots should be counted, regardless of the date of postmark or lack thereof, if the ballot is received within the 10 day statutory time limit as prescribed by Federal law.  The ballot need not to have been witnessed -- the Court held that voting is a secret process.  Aside from the registered voter's signature on the ballot, there should be no other limiting or qualifying factors.

Of course, the Court did not set these standards, and local canvassing boards are free to decide for themselves what the standards ought to be.  For fairness, however, a county must examine all the ballots and apply a consistent standard to each.   Submission of a partial recount of selective precincts is an illegitimate exercise of discretion.  There is too great a chance of fraud.

Regretfully, the ballot recount and its methodology have so polarized Democrats and Republicans that common sense has disappeared into quicksand.  Ultimately, the Court may have to rescue Florida voters from the political swamp again.

Footnotes

1/  If the Secretary of State's office is closed on Sunday, the alternative date set by the Court is Monday, November 27 at 9:00 A.M.

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