Were all the legal votes counted in Florida? What is a legal vote in Florida? How does Florida law treat ballots rejected by machines due to voter error?
The Bush campaign argued throughout the vote counting process that a ballot not read by a machine due to voter error was not a legal vote. They contended, and continue to contend, that all the votes were counted in Florida and that all the so-called disputed ballots were not legally entitled to any manual review under Florida Law. Their argument is as follows: any ballot that was not properly filled out or punched and was thus rejected by the machines as either an undervote (i.e., containing no vote) or an overvote (i.e., containing two votes in the same race) was not legally entitled to any manual review that may have determined voter intent. To put it even more simply -- if a voter filled out his or her ballot in a way that impaired the machine's ability to read it, then that was just too bad for the voter (unless of course that voter happened to be an absentee voter). According to the Bush team, because all the ballots were run through counting machines (and in some cases run through a second time), we could then conclude that all the votes had been counted.
The following are four very significant pieces of evidence from Florida's election guidelines that contradict these claims and suggest that all the ballots rejected by machines in all counties were indeed entitled to a manual review (a handful of counties actually did something close to that -- not including the four South Florida counnties that conducted complete manual inspections of every ballot). These guidelines establish that the threshold for what makes a ballot valid or invalid is not its machine readability. In other words, a ballot rejected by a machine as unreadable is not automatically invalid and it is by no means illegal to manually review such ballots to determine if they meet the legal definition of an overvote or undervote. Florida law and legal precedence make it very clear that just because every ballot is put through a counting machine does not mean that every vote has been counted. Machine unreadable ballots are entitled to a manual review under Florida law and election procedures.
The real tragedy is that had all Florida counties simply followed these established procedures, and had Katherine Harris did her job in making sure that all counties were both fully aware of and followed all these guidelines, there may not have been a reason for the Gore campaign to force additional reviews because all the disputed ballots would have been manually canvassed; all the votes would have been counted.
1) Section
101.5614 of the Florida Election Code
2) Florida's
Election Rules 1S-2.0031 regarding "Write-in Procedures Governing Electronic
Voting Systems"
3) Manual recount
provisions under Section 102.166
4) Legal Advisory Opinion DE
90-46 in which a vote is defined for the purposes of an automatic
recount
1) Section 101.5614 of the Florida Election Code
This Section explains how ballots are to be canvassed (i.e., the process by which ballots are reviewed for actual votes). All but one Florida County uses mechanical vote tabulating equipment to canvass their ballots. The Bush argument is that once all the ballots had been canvassed by the machines, than all the legal votes were counted. They argued in court that if a properly functioning tabulating machine does not register a vote for a particular ballot, then that ballot did not contain a legal vote. However, subsection 5 of that Section suggests that such votes are to be manually canvassed: "If any paper ballot is damaged or defective so that it cannot be counted properly by the automatic tabulating equipment, the ballot shall be counted manually at the counting center by the canvassing board...No vote shall be declared invalid or void if there is a clear indication of the intent of the voter as determined by the canvassing board."
The threshold for manual inspection of machine unreadable ballots is that they be damaged in such a way as to make them unreadable. The statute does not say what the source of the damage or defect must be. Is a damaged ballot one that could not physically be passed through the machine or one with improper markings preventing the machine from counting it or both? As the Miami Herald reported in an article dealing with this issue, the Florida Supreme Court ruled on this very question in 1998, deciding that a ``defective'' ballot includes one ``marked in a manner such that it cannot be read by a scanner'' (1). A plain reading of this statutory language (and remember Bush is a strict "legal constructionist" who does not believe in anything other than taking a statute at face value) indicates that the source or type of damage or defect is irrelevant; all that matters is that some damage or defect is preventing the ballot from being properly counted. Such damage could include hanging chads, improperly shaded circles, a double vote for the same candidate (i.e., voting for a candidate and then writing in that same candidate's name as a write-in). The language in this Section alone is sufficient to argue that Florida Law requires the manual canvassing of all machine rejected ballots and that machines are not the final arbiters of whether or not a ballot contains a vote.
At least 10 counties used this statutory language (including several
counties won by Bush) to justify manual counts of machine rejected ballots
during the automatic recount (click here
for more details).
2) Florida's Election Rules 1S-2.0031 regarding "Write-in Procedures Governing Electronic Voting Systems"
More than 100,000 Presidential votes in Florida were rejected by vote counting machines as overvotes (i.e., ballots containing more than one vote for a Presidential candidate). Such overvotes are typically the result of voter error. According to the Bush campaign, Florida Law is unforgiving of such voters and there is no legal precedence for ever reviewing such ballots.
However, Section 1S-2.0031 of Florida's Election Rules suggests otherwise: "(7) An overvote shall occur when an elector casts a vote on the ballot card and also casts a write-in vote for a qualified write-in candidate for that same office. Upon such an overvote, the entire vote for that office shall be void and shall not be counted. However, an overvote shall not occur when the elector casts a vote on the ballot card but then enters a sham or unqualified name in the write-in space for that same office. In such case, only the write-in vote is void." A legal process exists by which people qualify for being write in candidates, which is detailed in Section 99.061. Subsection (3)(b) of that Section makes it clear that any candidate already on the ballot by name is not qualified to be a write in candidate: "No person may qualify as a write-in candidate if the person has also otherwise qualified for nomination or election to such office."
What these rules say is that when a voter makes a mistake and marks their ballot for a listed candidate, and then also fills in the write-in candidate space with the name of a person not qualified as a write-in candidate pursuant to Section 99.061, such a ballot is not an overvote; the vote for the listed candidate must be counted. For example, a voter who selected Bush for President and then wrote in Bush's name did not invalidate their ballot as an overvote although the counting machine may treat it as such. In an Orlando Sentinel article about this very issue, the lawyer for the Florida State Association of Supervisors of Elections states that such votes "should be counted" (3).
This rule is clear evidence that Florida's Election Laws do not automatically disregard ballots because of voter error, nor do they frown upon the manual canvassing of machine rejected ballots. How else would one be able to apply this rule without manually inspecting the ballot once it has been rejected by a machine? According to Florida law, a ballot is not automatically an overvote because a machines reads it as such. The only way to determine if a ballot meets the legal threshold of an invalid overvote is through manual inspection of those ballots.
In the few counties that properly canvassed their ballots, some found ballots that contained a vote for Bush or Gore and then had the same candidate listed as a write-in. Since neither Bush or Gore are qualified write-in candidates, many of these ballots were counted as votes in counties like Gadsden, Orange, and Seminole. The Washington Post recently reported that 34 counties counted such votes, while 26 counties did not count these as votes (1).
If you think that such ballots are so uncommon that they certainly could not have affected the election outcome, then think again. A post-election review of Lake County's Ballots by the Orlando Sentinel turned up more than 600 such ballots, which legally should have been counted as votes and which would have netted Gore an additional 120 votes (3). Lake County Commissioner Catherine Hanson, a Republican, conceded to the Orlando Sentinel that perhaps such votes "should be counted" (3).
The USA Today's manual inspection of most overvotes statewide turned up more than 1,500 of these votes that were rejected as overvotes and not included in the final tally -- 606 for Bush and 921 for Gore (4).
3) Manual recount provisions under Section 102.166
This now infamous provision under Florida Law allows a candidate to request a manual recount of 1% of a particular county's ballots. The canvassing board does not have to honor such a request. If they elect to do so, and the manual recount shows a error in the vote tabulation that could effect the outcome of the election, then the canvassing board must select from one of three remedial actions. The Bush campaign felt that such a manual recount should only be allowed if the machines were malfunctioning and thus improperly counting properly cast ballots, but not if the machines were functioning properly but missing improperly marked ballots (the assumption here being that if the machine rejected them, then they must have been improperly marked). Their co-campaign chairman, acting in her capacity as Secretary of State, issued a ruling endorsing this opinion in which she decided that an error in vote tabulation really means an error in the vote tabulation system (I guess she felt the legislature meant to provide that little, yet important detail and just forgot). However, the statute does not make any such distinction as to what must cause the error in vote tabulation or the nature of the error, only that an error must exist. Moreover, if the statute is only concerned with improperly functioning machines, then why wouldn't the remedial options provided to the canvassing boards be limited to fixing or replacing the malfunctioning equipment rather than allowing for a full manual recount of every single ballot? Read the statutory language for yourself.
102.166 Protest of election returns; procedure.--
(4)(a)
Any candidate whose name appeared on the ballot...may file a written request
with the county
canvassing board for a manual recount....
(b)
Such request must be filed with the canvassing board prior to the time
the
canvassing board certifies the results for the office being protested or
within 72 hours
after midnight of the date the election was held, whichever occurs later.
(c) The county canvassing board may authorize a manual recount....
(d)
The manual recount must include at least three precincts and at least 1
percent of
the total votes cast for such candidate or issue.....
(5) If the manual recount indicates an error in the vote tabulation
which could affect the
outcome of the election, the county canvassing board shall:
(a)
Correct the error and recount the remaining precincts with the vote tabulation
system;
(b) Request the Department of State to verify the tabulation software; or
(c) Manually recount all ballots.
(end quote)
Note how the statute clearly differentiates between error in vote tabulation in subsection 5 and a vote tabulation system in the next part. A plain reading of the statute only says that an error in the vote tabulation must exist, it does not specify that such an error must be caused by machine malfunction or ballot error. The (a) and (b) remedies are certainly consistent with an interpretation that limits manual recounts to machine errors rather than voter errors. However, the statutory remedies do not stop there; they go on to include a full manual recount of all ballots (c). Why would the legislature ever provide for such a remedy and place it on equal footing with these other remedies if they were only concerned with improperly functioning counting machines (i.e., the statute does not say option c is only permitted if it is impossible to exercise options a or b due to a power outage or hurricane)?
Let's further examine the logic of Harris' and the rest of the Bush team's argument through a hypothetical. Let's say county A finds an error in their vote tabulation due to machine error that could affect the outcome of the election (the Bush/Harris threshold for a manual review under Section 102.166), and they opt to conduct a manual recount of every ballot. In the process, County A automatically would count some improperly marked ballots containing clear voter intent that were originally rejected by machines. County B also finds an error in vote tabulation, but that error can not be ascribed to machine malfunction. Remember, both counties found errors in their vote tabulation. But in County A, voters whose ballots were not read by machines would have a second chance to have their ballots counted during the manual review simply because their machines malfunctioned, while voters in County B would be denied that opportunity because their machines were found to be functioning properly. In addition to contradicting their argument that only ballots readable by machines have the right to be counted (i.e., in this cirumstance, they argue that machine unreadable ballots can be counted if the voting machines are not working properly), team Bush demonstrates how absurd it is to argue that the threshold for conducting a full manual review under Section 102.166 is machine error. Their logic again falls back on the notion that only machine readable ballots are legal.
If you find a error in vote tabulation that is not caused by machine error, the discrepancy must be caused finding discernible votes on improperly marked ballots originally rejected by machines as overvotes and undervotes. Since counting such votes is unacceptable in Bush's world, then they can not trigger a full manual review under Section 102.166. What's quite hilarious is that they argue that it is acceptable to conduct a full manual review during which many of those improperly marked, machine rejected ballots would be recovered under the "intent of the voter standard" if the reason for doing so is a machine error. Machine rejected ballots with discernible votes on them are either legal or illegal. One can not argue that they are legal if a county's vote tabulating equipment is malfunctioning, but they are illegal if the machines are functioning properly. If Florida Law considered machine readability the paramount threshold for determining a legal vote, then why would they ever provide provisions that allow for the manual counting of ballots based on an intent of the voter standard?
4) Legal Advisory Opinion DE 90-46
The Florida Division of Elections is empowered by Section 106.23 (2)
to issue legal opinions about Florida's election laws. These opinions
are supposed to be legally binding on the jurisdiction who requests them,
unless a court concludes that they distort or misrepresent Florida law.
In 1990, a Pinellas County Elections Supervisor asked what votes should
be recounted during an automatic recount pursuant to Section 102.141(4)
-- something that happened this election yeaar. The Division of Elections
was basically asked to define a vote, a question of extreme relevance to
the accusations flying around this year concerning the legality of examining
overvotes and undervotes. Of course, Bush and other GOP partisans
contended that if the counting machines rejected a ballot as either having
to many votes (an overvote) or no vote (an undervote), it was acceptable
to assume that to be the case and such ballots were not entitled to a manual
review. However, this legal opinion suggests otherwise. It
is important to note that while this legal opinion only applies to the
particular county in question, such legal opinions provide insights into
how the State has interpreted certain statutory provisions over time.
DE 90-46
Election Recount
December 14, 1990 Section 102.141(4), F.S.
TO: Honorable Dorothy Walker Ruggles, Supervisor of Elections, Pinellas
County
PREPARED BY: Division of Elections
You ask:
In reference to ordering a recount of votes, what is the definition of
"votes cast with respect to such office or measure" as provided in Section
102.141(4), Florida Statutes?
In answer to your question, the phrase "votes cast with respect to such office or measure" refers to the votes actually counted for a race, office or measure appearing on the ballot. "Under" votes or "over" votes are not included. An "under" vote is a ballot on which the elector did not vote in that particular race. An "over" vote is a ballot on which the elector voted for more than the legal number of candidates or measures in a particular race. While the "over" and "under" votes are not included in the recount calculations, the canvassing board should review these ballots during a recount to ensure that the determination of an "under" or "over" vote is correct.
(end quote)
It is clear from this legal opinion that Election Officials should not
let the machines decide what is an undervote or an overvote. Such
ballots should be manually examined to determine if they really contain
no vote or multiple votes.
(1) Confusion Was Order of Day in Vote, Recount
Legal, Leadership Questions Plagued Florida Recount
By John Mintz and Peter Slevin
Washington Post Staff Writers
Friday, June 1, 2001; Page A01
(2) http://www.miami.com/herald/special/news/flacount/docs/005945.htm
Published Wednesday, April 4, 2001
Law: Check `defective' ballots
But officials often ignore code's call for inspection
BY JAY WEAVER
jweaver@herald.com
(3) http://orlandosentinel.com/news/orl-asec-lake012801.story
Lake erred by tossing write-ins
David Damron and Gwyneth K. Shaw
of the Sentinel Staff
January 28, 2001
(4) http://www.usatoday.com/news/politics/2001-05-10-overvotetable.htm
05/11/2001 - Updated 04:12 PM ET
Overvote county summary
This is a summary of potential legal votes contained within the Florida
overvotes.