by Jake Tapper
In response to the U.S. Supreme Court’s remand order, this Court must now clarify application of the long-settled Florida principle that the intent of the voter must be ascertained and is the paramount consideration in tallying votes. See '101.5614(5), Fla. Stat. (2000) (“No vote shall be declared invalid or void if there is a clear indication of the intent of the voter”). This Court should direct the counting of all ballots which contain a discernible indentation or other mark, at or near the ballot position for the candidate, unless other evidence on the face of the ballot clearly indicates a voter’s intention not to vote for that candidate.
Indeed, this standard is compelled by both Florida statutory and case law. The manual recount statute itself provides that counting teams are to manually examine punchcard ballots “to determine a voter’s intent” and, if they are unable to do so, “the ballot shall be presented to the county canvassing board for it to determine the voter’s intent.” '102.166(7)(b), Fla. Stat. (2000). As this Court recently stated, these statutes require “that so long as the voter’s intent may be discerned from the ballot, the vote constitutes a ‘legal vote’ that should be counted. As the State has moved toward electronic voting, nothing in this evolution has diminished the longstanding case law and statutory law that the intent of the voter is of paramount concern and should always be given effect if the intent can be determined.” Gore v. Harris, No. SC00-2431, at 24-25 (Fla. Dec. 8, 2000) (citations omitted), rev’d on other grounds, Bush II.
These principles were originally set forth in the era of paper ballots. In Darby v. State, 75 So. 411 (Fla. 1917), this Court was required to ascertain whether an “x” marked on the wrong side of the ballot question rendered the vote improper. It determined that this mark reflected the intent of the voter and, accordingly, counted the vote. “Where a ballot is so marked as to plainly indicate the voter’s choice and intent in placing his marks thereon, it should be counted as marked unless some positive provision of law would be thereby violated.” Id. at 412.
It seems apparent that the standard for discerning the intent of the voter in Florida consistent with Florida’s statutes and cases must be a standard consistent with Darby. Just as in Darby, when an “x” marked the spot and it was clear from the “x” that the voter was casting his or her vote a certain way, so it must be that when a voter punches the chad with a stylus and it is clear from the ballot that the chad was intentionally punched, the vote must be counted. See id.
Similarly, for optical scanner machines, when it is clear that the pencil was used to color in or otherwise mark the oval or arrow assigned to the indicated candidate, that mark should be counted as a vote. This is not a new standard in Florida. It has been Florida law since its inception. When a vote can be counted, the will of the voter will be recognized. Simply because machines usually aid in tabulation does not mean that when those machines detract from tabulating legal votes this Court should void legal votes contrary to common sense. This standard is uniformly consistent—whenever a legal vote can be discerned, it should always be counted. See also Pullen v. Mulligan, 561 N.E.2d 585, 611 (Ill. 1990) (“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”).
B. Practicable Procedures and Orderly Judicial Review
In describing the recount process imposed by this Court in its order of December 8, 2000, and implemented through Judge Lewis’ order of December 9, 2000, the U.S. Supreme Court noted that the recount was not designed to be conducted in a manner “well calculated to sustain the confidence that all citizens must have in the outcome of elections.” Slip Op. 11.
“Orderly judicial review” means procedures by which disputes can be identified, brought to the attention of the court or one of its judicial officers for resolution, and appealed should disagreement remain after that resolution. Cf. Press v. Pasadena Independent School District, 326 F. Supp. 550, 553 (S.D. TX. 1971) (Texas created scheme of orderly judicial review of Texas Railroad Commission decisions by appeal to a state district court and subsequent review by a court of appeals and the Texas Supreme Court). To assure that a process of orderly judicial review is available with respect to any recount procedures ordered by this Court, this Court (and by direction the Leon County Circuit Court) should impose procedures that include essentially the following requirements:
Each counting team shall consist of two persons who shall not be from the same political party. Each counting team member shall read the attached instructions on counting the ballots and shall sign at the bottom of the sheet to reflect that they have read and understand the instructions.
Governor Bush and Vice President Gore may each designate a person for each team to observe the process. That person may not make a verbal objection or challenge to any particular ballot determination nor in any way disrupt or interfere with the counting process.
To insure that all objections are handled in a uniform manner, any objections an observer may have to the process or to the disposition of a particular ballot shall be made in writing and shall be immediately filed (together with the disputed ballot, if applicable) with the local canvassing board. Any objections to the disposition of a ballot shall remain with the ballot until all disputes concerning that ballot have been finally resolved.
4. If the members of the two-person counting teams disagree as to whether a ballot clearly evidences the intent of the voter or for whom the ballot should be counted under the rules announced above, they shall present that ballot for review to the local canvassing board.
If a dispute remains after the local canvassing board has reviewed the ballot, the ballot shall be delivered to that board’s Circuit Court for automatic review. The Circuit Court shall then determine whether, under the interpretive rules stated above, the ballot reflects the clear intent of the voter to vote for a single candidate. Unless there is an appeal, the Circuit Court’s determination will be reported to the local canvassing board, which will then record the ballot in accordance with the ruling.
These procedures for implementing the standards specified above, and to resolve disputes over those standards, are adequate to meet the Equal Protection concerns raised by the U.S. Supreme Court in its opinion.
III. THIS COURT NEED NOT ORDER COUNTING OF OVERVOTES; IF SUCH A COUNT IS ORDERED, AN APPROPRIATE PROCEDURE FOR COUNTING THESE VOTES CAN BE EASILY ESTABLISHED.
In its decision, the U.S. Supreme Court expressed certain concerns over a recount that excludes overvotes. Bush II, Slip Op. 9, 12. However, it did not order that any recount include those votes. Moreover, even if this Court determines to conduct a recount on remand that includes overvotes, such a recount can be completed without much difficulty.
A. Overvotes Do Not Need to Be Included in a Recount
While the U.S. Supreme Court did raise issues concerning the exclusion of overvotes from a recount, it did not mandate that such ballots be included on remand. See, e.g., Bush II, Slip Op. 12 (“If a recount of the overvotes were also required…”). Thus, this Court is under no obligation to order such a count on remand.
There are ample reasons not to include such ballots in a recount. First, as Justice Breyer pointed out,“[the defendants] presented no evidence, to this Court or any Florida court, that a manual recount of overvotes would identify additional legal votes.” Bush II, Slip Op. 1 (Breyer, J., dissenting). Neither at trial, nor on appeal, did the defendants present any evidence concerning the nature of the ballots found to be overvotes. Nor have the defendants, at any stage in the proceeding, sought a count of overvotes—as was their right in a contest proceeding. §102.168, Fla. Stat.
The U.S. Supreme Court noted two distinct types of overvotes:
First, voters whose ballots reflect two marks, but whose intent can nonetheless be discerned (such as a voter who punched and wrote-in for the same candidate or mistakenly marked in the area designated for another candidate but then also for the candidate of choice
);
Second, ballots counted by machines as legitimate votes, that were indeed illegal overvotes.
Bush II, Slip Op. 9. Neither category merits inclusion in a statewide recount.
First, while there may be some ballots that fall into the first category, defendants did not produce at trial, nor does the record contain, any evidence that they are particularly numerous in nature—or that they tend to favor one candidate over the other. To the extent that evidence exists in other judicial proceedings concerning this same election, it suggests that a large number of overvote ballots may have reflected an intent to vote for Vice President Gore, not Governor Bush. See, e.g., Fladell v. Palm Beach County Canvassing Board, No. SC00-2373 (December 1, 2000). Thus, there is no reason to believe that exclusion of overvotes from the recount disadvantages defendants.
Moreover, common sense suggests that the number of overvote ballots with discernable evidence of voter intent will be few and far between. Unlike “undervotes,” where any evidence of voter intent on the ballot will indicate a legal vote, “overvotes,” by definition, reflect evidence of multiple intents. Only in the rarest instances could these ballots be read as reflecting a single intent.
With regard to the second problem—a voter who marks two votes on his ballot, only to have a single vote read by the machine (and thereby, has his illegal ballot counted as a legal vote)—what the U.S. Supreme Court fails to recognize is that if inclusion of these votes presents constitutional issues, the same issues are presented by the earlier certified vote tallies. That is, such ballots are included—not just in any certification to emerge from this proceeding—but from the two certifications that the Court suggests were somehow more legitimate. Yet those earlier certifications included all ballots that the machine read, whether or not they were true overvotes.
In the end, there is no reason to include so-called overvotes in any statewide recount. Defendants have not presented evidence to suggest such a remedy is needed; they have never asked for it; nor has it been shown that the absence of it harms either party—or even leaves out any appreciable number of legal votes for either party.
B. If This Court Orders Counting of All Ballots That Have Not Been Counted by Vote-Counting Machinery, There Is a Practicable Manner for Completing It Fairly Quickly.
If this Court concludes that a count of the so-called overvotes is required or desirable, it can be completed practicably and efficiently.
This process can be accomplished in the time remaining before December 18. It does not require that every ballot in the State of Florida be manually recounted. A full manual recount of all ballots is unnecessary because there is no dispute that a vote for presidential candidate tallied by a vote counting machine is a lawful vote. The only question is whether a ballot that has been rejected by a vote-counting machine, whether for failure to register any vote for president or for having registered two or more votes for president, in fact contains a lawful vote. It is only this second group of ballots—those that have failed to register one and only one vote for president—that must be manually inspected to determine whether each contains a lawful vote.
The process for segregating machine-countable from non-machine countable ballots is well-developed. The Supreme Court’s opinion, in an attempt to make remedial action here appear impossible, expressed concern that:
The Secretary of State has advised that the recount of only a portion of the ballots requires that the vote tabulation equipment be used to screen out undervotes, a function for which the machines were not designed. If a recount of overvotes were also required, perhaps even a second screening would be necessary. Use of the equipment for this purpose, and any new software developed for it, would have to be evaluated for accuracy by the Secretary of State, as required by Fla. Stat. §101.015 (2000).
Slip Op. 11-12. However, this vastly overstates the logistical difficulty. In fact, most if not all vote-counting machines in Florida, whether they use a punchcard or opti-scan type ballot, 4 are already equipped to segregate uncounted ballots (those that contain either undervotes or overvotes for president) from ballots on which a machine can detect one and only one vote for president. The software that makes this segregation possible is already included in most vote-counting machines and has already been evaluated by the Secretary of State, as required by Florida. Stat. §101.015 (2000). 5 Indeed, plaintiffs believe that segregation of undervote ballots was already completed or in progress in every county where such segregation was necessary in response to the order of this Court and the Circuit Court when the Supreme Court issued its Stay Order on December 9. The same technology can segregate overvotes as well as undervotes by simply changing the designation on the vote segregation and tabulation system. It does not require new software as implied in the Supreme Court’s opinion. For those counties whose machines do not have that capacity now, the necessary software is readily available, free of charge.
Segregating non-machine countable ballots from machine countable ballots is a routine process that can easily be accomplished by the county canvassing boards. Here is how the process could work: First, all ballots would be run through the counting machines. The counting machines would tabulate votes on those ballots that register one and only one vote for president. The machines are designed to stop when they encounter a ballot on which there is no vote for president, or on which there is more than one vote for president. See Miami-Dade Tr. at 4 (Nov. 18, 2000). Those ballots would be rejected by the machine and segregated into a separate pile. They would then be manually inspected and legal votes determined thereon tabulated. The results of this tabulation of rejected ballots would then be added to the results of the tabulation of machine-readable ballots to create a single tally of votes for president in each county.
This process has already been used successfully by several counties following the November 7 election. See The New York Times, Nov. 16, 2000 (in some counties such as Gadsden, “election officials counted by hand only the ballots that counting machines had rejected, usually a small percentage of the total”); The New York Times, Nov. 12, 2000 (stating that election officials in Seminole County—Democrats and Republicans—agreed to hand count ballots that had not been counted by electronic voting machines); NBC News Transcripts, Meet the Press, Nov. 12, 2000 (James Baker, Republican advisor to George W. Bush, noting same).
Although the number of ballots is large—approximately six million were cast in the State of Florida—the recount we propose can be timely completed. The machine segregation and count will take only a short time. The manual inspection of an estimated 177,000 undervote and overvote ballots will be spread across the State. Most counties will have little trouble finishing their count in under a day. Plaintiffs estimate that 43 of Florida’s 67 counties will have to inspect less than a thousand ballots. An additional fourteen counties will have to inspect less than 4,000 ballots. And, as this election season has amply demonstrated, Florida’s counties have the resources and dedication to complete their ballot count quickly and efficiently when called upon.
The process that plaintiffs are proposing—machine counting every ballot that can be read by the machine, and manually counting those ballots that are rejected by the machine—is intuitively obvious. It satisfies the equal protection concerns voiced by the Supreme Court by ensuring that every ballot is adequately inspected to give effect to the intent of the voter, if any, expressed thereon. The mechanisms to accomplish this process are already in place in the counties. And the process can be completed in a matter of days, if not hours. In view of the grave importance of ensuring that every vote is counted in this historic election, plaintiffs respectfully submit that this Court has no real alternative but to order this remedy.
The Supreme Court decision maintains that there are equal protection problems with this Court’s recount order not only because of its failure to include overvotes in the manual recount, but also because of the absence of a uniform, specific standard to guide the recounts.
Counting “overvotes
” as well as “undervotes,” and using a clear and uniform standard to do so, will remedy both these concerns. The standard to be used is the same one proposed for undervotes—all ballots should be counted which contain a discernible mark, at or near the ballot position for the candidate, unless other evidence on the face of the ballot clearly indicates a voter’s intention not to vote for that candidate.
This standard is well established in both Florida statutory and case law. See §101.5614(5), Fla. Stat. (2000) (“No vote shall be declared invalid or void if there is a clear indication of the intent of the voter”). Darby v. State first held more than 80 years ago that, “Where a ballot is so marked as to plainly indicate the voter’s choice and intent in placing his marks thereon, it should be counted as marked unless some positive provision of law would be thereby violated.” Id. at 412. There is nothing different about the basic task and approach today. See, e.g., Pullen, 561 N.E.2d at 611 (“The legislature authorized the use of electronic tabulating equipment to expedite the tabulating process… not to create a technical obstruction which defeats the rights of qualified voters”).
Because the counting machines, particularly those used in counting optical scan ballots, would read such ballots as overvotes without recognizing the voter’s clear intent as expressed on the ballot, these voters will be disenfranchised unless a manual recount of the undervotes is undertaken. A manual recount of overvotes, employing a clear and uniform standard as described previously, would finally allow these voters’ plain words and other markings to be read, and their votes to be finally counted. 6