PRESIDENTIAL ELECTION LAW/The Recount

FAQs on legal aspects of the Florida recount...

• What's going on? Answer. [updated 7:50 PM ET, November 26, 2000]

• Why did Secretary of State Harris refuse to include the partial results from the Palm Beach recount in the totals certified on Sunday night? Answer. [added November 27, 2000]

• Why has the Supreme Court of the United States decided to get involved in the recount litigation? Answer. [added November 25]

• Will Friday's Supreme Court arguments be televised? Answer. [added November 26]

• Why is a recount being conducted in Florida? Answer. [updated November 16]

• How should a county decide whether to grant a request for a manual recount? Answer. [updated November 22]

• How long can the recount take? Answer. [updated November 22]

• What is the Florida Supreme Court's position on including manual recount results in the final tabulation of votes? Answer. [updated November 22]

• Should dimpled chads be counted? Answer. [updated November 24]

• What is the deadline for receipt and counting of overseas absentee ballots? Answer. [updated November 22]

• What is the basis for the challenges to many of the overseas military ballots on the ground that they are not postmarked? Answer. [updated November 21]

• How soon after the State of Florida certifies the result of the election does it need to transmit the official Certificate of Ascertainment to Washington, and does that leave time for an election contest? Answer. [added November 22]

• What happens if, after all of the lawsuits and certifications are over, there is a tie in the popular vote between Bush and Gore? Answer. [added November 19]

• What is an "election contest"? Answer. [added November 26]

• Who may contest the election? Answer.

• What grounds may be asserted in an election contest? Answer. [updated November 26]

• What grounds do the Gore Campaign plan to assert? Answer. [added November 26]

• Are election contests unusual in Florida? Answer. [added November 26]

• What happens procedurally in a contest and how long is it likely to take? Answer. [added November 26]

• To what remedy is a successful contestant entitled? Answer. [added November 26]

• What about the claim that the ballot in Palm Beach County was confusing? Answer. [updated November 22]

• If a challenge to the Palm Beach ballot is upheld, what will be the remedy? Answer. [updated November 22]

• If there were to be a revote, would it be limited to voters who voted on November 7? Answer. [updated November 16]

• Is it true that Palm Beach voters were only allowed five minutes to mark their ballots? Answer. [added November 19]

• When does federal law come into play in resolving election disputes, and what remedies does federal law provide? Answer. [updated November 21]

• What is the basis of the Bush campaign's lawsuit in federal court? Answer. [updated November 16]

• What is the basis of the new lawsuit that asserts that Texas' electors can't vote for Bush and Cheney even though they won the vote in Texas? Answer. [added November 19]

• What is the complaint about absentee ballots from Seminole County? Answer. [added November 19]

• Given the litigation logjam, can the Florida Legislature act to appoint electors? Answer. [updated November 23]

• In ordinary circumstances, does the Governor of Florida have a role in certifying or appointing the state's electors? Answer. [added November 19]

• Are Florida's electors, whoever they end up being, obligated to cast their votes for the candidate that won the popular vote in Florida? Answer. [updated November 20]

• If there is no conclusive result from either the Electoral College or otherwise by Inauguration Day (January 20, 2001), who will become President? Answer. [updated November 16]

• What is the weirdest scenario you have heard to resolve this whole situation? Answer. [added November 19]

Have a question about legal aspects of the recount? E-mail JURIST@law.pitt.edu
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What's going on? [updated 7:50 PM ET, November 26, 2000]

At approximately 7:30 p.m. on Sunday, the Florida Elections Canvassing Commission certified the results of the Presidential election in Florida. The certified results were based on the amended returns filed with the Secretary of State by 5 p.m. The certified results did not include partial recount results from Palm Beach County; Secretary of State Harris' comments indicated that she believed that partial manual recount results were not authorized by the governing statute (102.166).

With the certification now behind us, we enter the contest phase. The Gore campaign is poised to file post-certification election contests challenging the validity of the certified results in at least three counties. More information about election contests can be found in these FAQs.

On Friday, November 24, the Bush campaign succeeded in its effort to get the legal battle before the Supreme Court of the United States. The Court granted the petition for certiorari in Bush v. Palm Beach County Canvassing Board (reviewing the November 21 ruling of the Florida Supreme Court) and requested expedited briefing on the merits by Tuesday, response briefs by Thursday, with argument set for 90 minutes on Friday, December 1.

The Court is interested in hearing the parties' positions on whether the Florida Supreme Court's ruling (directing that manual recounts may continue and must be considered until today) is inconsistent with Article II of the U.S. Constitution (assigning to the state legislature the resolution of elector controversies) and/or unlawfully imposes new rules to resolve the controversy that were not in effect as of the date of the election. The specific questions presented by the Bush campaign on which the Court has granted review are:

1. Whether post-election judicial limitations on the discretion granted by the legislature to state executive officials to certify election results, and/or post-election judicially created standards for the determination of controversies concerning the appointment of presidential electors, violate the Due Process Clause or 3 U.S.C. section 5, which requires that a State resolve controversies relating to the appointment of electors under "laws enacted prior to" election day.

2. Whether the state court's decision, which cannot be reconciled with state statutes enacted before the election was held, is inconsistent with Article II, Section 1, clause 2 of the Constitution, which provides that electors shall be appointed by each State "in such Manner as the Legislature thereof may direct."

In addition, the Court asked the parties to address the following question: "What would be the consequences of this court's finding that the decision of the Supreme Court of Florida does not comply with 3 U.S.C. section 5?" That provision requires that election controversies be resolved through the application of state laws enacted prior to Election Day (in order for that resolution to be conclusive for purposes of the Electoral College).

The Court did not accept for review the Bush campaign's petition for review of the 11th Circuit decision declining to enjoin the continuation of the allegedly "standardless" manual recounts.

On other fronts, the Bush campaign withdrew its suit in Tallahassee to seek an order directing thirteen counties with heavy military voter populations to count overseas military ballots that had been challenged for failure to meet certain technical requirements of Florida law. Instead, the Bush camp has decided to pursue a county-by-county litigation strategy, filing new suits on Saturday in Hillsboro, Okaloosa, Pasco and Polk counties, with a fifth suit slated to be filed in Orange County on Sunday. More questions...

Why did Secretary of State Harris refuse to include the partial results from the Palm Beach recount in the totals certified on Sunday night? [added November 27]

In her verbal comments, Secretary Harris stated that the partial Palm Beach recount results submitted prior to the 5 p.m. deadline did not comply with section 102.166 of the Florida Election Code. Apparently her comment referred to section 102.166's authorization to a county to "manually recount all ballots" if the initial three precinct sampling indicated are error in vote tabulation (emphasis added). This interpretation would dictate that "all or none" of the recounted ballots be included in the certification.

The Gore team is expected to challenge this interpretation in a contest. They likely will argue that once an error in vote tabulation has been identified that would justify a manual recount, each manually recounted ballot incrementally corrects or reduces the error, and thus a partial recount, while less accurate than a total recount, is more accurate than the prerecount tallies. They also likely will argue that the Secretary retained discretion to consider tallies submitted after the 5 p.m. deadline and that the failure to exercise that discretion to allow Palm Beach to devote a few extra hours to complete all of its work on the recount was arbitrary. More questions...

Why has the Supreme Court of the United States decided to get involved in the recount litigation? [added November 25]

We're not sure. This is the first instance in which the Supreme Court has gotten involved in litigation concerning a presidential election. Of course, the decision to accept review does not foreshadow any particular result on the merits. Perhaps the Court recognized this moment to be akin to President Nixon's refusal to turn over the Watergate tapes or to President Truman's seizure of the steel mills during the Korean conflict -- the nation is waiting for a definitive and final resolution. Or perhaps the Court senses an institutional obligation to weigh in on the constitutional aspects of a controversy with these remarkably high stakes. Or perhaps the Court has not yet reached a collective conclusion about its role at all, but at least four justices see reasons to hear these arguments and approach these momentous next steps. More questions...

Will Friday's Supreme Court arguments be televised? [added November 26]

The Supreme Court of the United States has never authorized television cameras in the courtroom, and several of the justices publicly have expressed strong objections to the concept. Both C-SPAN and CNN have made new requests for this historic argument. If the Court does not depart from its consistent policy, written transcripts of the argument should be available shortly after completion through major news outlets. More questions...

Why is a recount being conducted in Florida? [updated November 16]

First there was an "automatic recount." Florida law provides for an automatic recount when a candidate's margin of victory is not more than 0.5 percent of the total votes cast for the office. Although the recount in these circumstances is triggered automatically, the losing candidate can waive it. (In other circumstances where an automatic recount is not triggered, a candidate may demand a recount on grounds of error or fraud.) Next came recounts by request. Florida law gives any candidate a right to make a written request that a County Canvassing Board conduct a manual recount. Such a request must be made within 72 hours after midnight of the date of the election or prior to the time the Canvassing Board certifies the results, whichever is later. The Gore campaign made such a request in four counties (Volusia, Dade, Broward and Palm Beach); the Bush campaign did not request any manual recounts in Florida. The county Board may, but is not required to, authorize a manual recount. More questions...

How should a county decide whether to grant a request for a manual recount? [updated November 22]

As an initial matter, the local canvassing board of a county may authorize a limited manual recount of at least three precincts and at least one percent of the total votes cast for that candidate. If that limited recount "indicates an error in vote tabulation which could affect the outcome of the election," then a manual recount should be undertaken of all of the county's ballots. In its November 21 opinion, the Florida Supreme Court rejected the construction of "error in vote tabulation" previously enunciated by the Florida Secretary of State and interpreted the phrase to include "errors in the failure of the voting machinery to read a ballot and not simply errors resulting from the voting machinery."

If a county decides to conduct a manual recount, the recount is open to the public. The county must appoint "counting teams" of at least two voters each with, when possible, members of at least two political parties. If a counting team can't determine a voter's intent from inspecting the ballot, the team presents the ballot to the County Canvassing Board for a determination of the voter's intent. More questions...

How long can the recount take? [updated November 22]

Under the November 21, 2000, ruling of the Florida Supreme Court, manual recounts must be concluded by 5 p.m. on Sunday, November 26 (or 9 a.m. on November 27, if the Secretary of State's office is closed on Sunday) in order to be included in the final vote tallies. More questions...

What is the Florida Supreme Court's position on including manual recount results in the final tabulation of votes? [updated November 22]

The Florida Supreme Court ruled on Tuesday night in a unanimous 43-page opinion that the hand recounts in three counties should proceed and be included in the final certifications. The court emphasized that the will of the people through the casting of their vote is paramount. Under the court's ruling, the amended certifications from the counties must be accepted by the state Election Canvassing Commission through 5 p.m. on Sunday, November 26 (or 9 a.m. on November 27, if the office is not open at 5 p.m. on November 27).

Key points in the ruling:

"Twenty-five years ago, this Court commented that the will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle in election cases[.] ... Our goal today remains the same as it was a quarter century ago, i.e., to reach the result that reflects the will of the voters, whatever that might be." (pp. 8-9).

The Elections Division of the Secretary of State's Office erred in opining that manual recounts are permitted only when an error is discerned in the vote tabulation system, rather than in the vote tabulation. The statutory provisions read together suggest that a manual recount is authorized where there are "errors in the failure of the voting machinery to read a ballot and not simply errors resulting from the voting machinery." (p.13).

The court found internal conflicts in the Election Code between the time frame for conducting a manual recount and the time frame for submitting county returns and between the mandatory ("shall ignore" language in section 102.111 and the permissive ("may ignore") in 102.112. (p.18). Applying principles of statutory construction, the court concluded that 102.112 is a specific penalty statute and a more recent provision that controls when in conflict with a non-specific and older provision in 102.111. This reading prevents any other statutory provision from being rendered meaningless or absurd, and allows related provisions to be read as a statutory whole. (pp.25-29).

Given that amended returns from a county may be considered by the Secretary of State, the court concluded that the authority to ignore those returns may be exercised "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 102.168; or (2) by precluding Florida voters from participating fully in the federal electoral process." (p.33). Since the Secretary may reject the returns only in those circumstances, and those circumstances were not shown to be present in this case, she erred in refusing to consider those returns.

The Court invoked its equitable powers to fashion a remedy:

"Accordingly, in order to allow maximum time for contests pursuant to section 102.168, amended certifications must be filed with the Elections Canvassing Commission by 5 p.m. on Sunday, November 26, 2000 and the Secretary of State and the Elections Canvassing Commission shall accept any such amended certifications by 5 p.m. on Sunday, November 26, 2000, provided that the office of the Secretary of State, Division of Elections is open in order to allow receipt thereof. If the office is not open for this special purpose on Sunday, November 26, 2000, then any amended certifications shall be accepted until 9 a.m. on Monday, November 27, 2000." (p.40)

The court did not address the standards that should be used by counties in evaluating ballots during the manual recounts. In addition, the court noted that neither candidate requested the Court to reopen the opportunity to request recounts in additional counties. More questions...

Should dimpled chads be counted? [updated November 24]

The Florida Supreme Court's ruling provides no specific guidance on this important issue. In conducting a manual recount, the overriding standard is the ascertainment of the intent of the voter (102.1667(b)). In implementing this standard, the recounting counties are applying different rules of thumb. Miami-Dade counts dimpled chads that pass the "sunlight" test, i.e. light passes through one of the borders of the chad. Palm Beach does not apply the "sunlight" test, but rather counts dimpled votes when votes for offices other than president are also dimpled and not punched through.

Texas appears to have the only statute that recognizes recognizes explicitly that a dimpled chad may count as a vote. Section 127.130(d)(3) of the Texas Election Code authorizes ballots to be counted where "an indentation on the chad from the stylus or other object is present and indicates a clearly ascertainable intent of the voter to vote."

An Illinois case, quoted in the November 21 Florida opinion, addressed a losing candidate's request that a manual inspection be conducted of several ballots containing hanging or dimpled chad:

The voters here did everything which the Election Code requires when they punched the appropriate chad with the stylus. These voters should not be disenfranchised 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. Mulligan, 561 N.E.2d 585, 611 (Ill. 1990) (citations omitted).

A similar result authorizing consideration of dimpled chad was reached in a Massachusetts decision, Delahunt v. Johnston, 423 Mass. 731, 671 N.E.2d 1241, 1243 (1996) ("The critical question in this case is whether a discernible indentation made on or near a chad should be recorded as a vote for the person to whom the chad is assigned. The trial judge concluded that a vote should be recorded for a candidate if the chad was not removed but an impression was made on or near it. We agree with this conclusion.") More questions...

What is the deadline for receipt and counting of overseas absentee ballots? [updated November 22]

These ballots can be received and counted as long as they were received by November 17. Florida Administrative Code section 1S-2.013(7) provides: "With respect to the presidential preference primary and the general election, any absentee ballot cast for a federal office by an overseas elector which is postmarked or signed and dated no later than the date of the Federal election shall be counted if received no later than 10 days from the date of the Federal election as long as such absentee ballot is otherwise proper."

The regulatory provision cited above apparently is the product of a consent decree in prior litigation. The relevant statute, section 101.67(2), still requires that absentee ballots to be counted must be received by the county supervisor of elections by 7 pm on the day of the election. More questions...

What is the basis for the challenges to many of the overseas military ballots on the ground that they are not postmarked? [updated November 21]

Section 101.62(7)(c) of the Florida election statute provides: "With respect to marked ballots mailed by absent qualified electors overseas, only those ballots mailed with an APO, FPO, or foreign postmark shall be considered valid." Although not part of the state, Florida administrative regulations provide that, for the general election, an otherwise proper absentee ballot from an overseas voter also shall be counted if "signed and dated no later than the date of the election" and received no later than ten days from the date of the election. FAC § 1S-2.013(7). In a November 20, 2000 letter, Florida Attorney General Robert A. Butterworth urged county supervisors of elections and county canvassing boards to count otherwise proper unpostmarked ballots if they were signed and dated on or before the date of the election and to revisit any ballots previously rejected for lack of a postmark.

Federal law does not require a postmark on military ballots. Representatives of the military postal service have stated that, while they endeavor to postmark mail, often mail does not get postmarked because it must be moved quickly from ships or other outposts. More questions...

How soon after the State of Florida certifies the result of the election does it need to transmit the official Certificate of Ascertainment to Washington, and does that leave time for an election contest? [added November 22]

The Certificate of Ascertainment is a creature of federal law (3 U.S.C. § 6): "It shall be the duty of the executive of each State, as soon as practicable after the conclusion of the appointment of the electors in such State by the final ascertainment, under and in pursuance of the laws of such State providing for such ascertainment, to communicate by registered mail under the seal of the State to the Archivist of the United States a certificate of such ascertainment of the electors appointed, setting forth the names of such electors and the canvass or other ascertainment under the laws of such State of the number of votes given or cast for each person for whose appointment any and all votes have been given or cast[.]"

Thus, the only governing time frame is that the Governor (or person acting in his stead) transmit the Certificate "as soon as practicable" after the state's "final ascertainment." The State probably will regard that "final ascertainment" to be the Elections Canvassing Commission's certification. What does that mean for a post-certification statutory election contest? Apparently there is precedent for a state to submit an amended or modified Certificate of Ascertainment. The November 22, 2000, Washington Post reports that in Hawaii in 1961 the governor first certified the electors for Nixon and then subsequently sent in a new certification for the JFK electors (which Nixon agreed should be honored). So it seems that a Certificate of Ascertainment is not necessarily chiseled in granite.

What happens if, after all of the lawsuits and certifications are over, there is a tie in the popular vote between Bush and Gore? [added November 19]

Florida law (100.181) states that ties are broken by the drawing of lots. More questions...

What is an "election contest"? [added November 26]

An election "contest" is a procedure long-established in Florida law under which an unsuccessful candidate for office can challenge the validity of the election results and demonstrate that he/she has a legal right to the office. An election contest must be filed with the circuit court (here, likely to be the circuit court in Leon County) within 5 days after a certification by the last county canvassing board of election results that follows the protest of election returns. More questions...

Who may contest the election?

Florida law provides that any taxpayer or voter may file suit. More questions...

What grounds may be asserted in an election contest? [updated November 26]

Florida law recognizes, among other grounds, "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"; "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"; as well as a broad catch-all provision: "[a]ny other cause or allegation which, if sustained, would show that a person other than the successful candidate was the person duly nominated or elected to the office in question [.]"

Florida case law shows that the state's courts are willing to entertain challenges to elections where there is a credible argument that the results in fact do not reflect the will of the voters. A challenge can be maintained even where no intentional wrongdoing is alleged. The Florida Supreme Court held, in the context of a disputed 1998 sheriff's race in Volusia County, that a court has authority to invalidate election results in the face of unintentional wrongdoing or noncompliance with procedures by election officials "only if [the court] finds that the substantial noncompliance resulted in doubt as to whether a certified election reflected the will of the voters." (Beckstrom v. Volusia County Canvassing Board) More questions...

What grounds do the Gore Campaign plan to assert? [added November 26]

On Sunday November 26, David Boies, chief litigator in the Gore camp, previewed their anticipated election contests. With respect to Miami-Dade, the Gore challenge would focus on the non-inclusion of the partial results (388 votes) from the manual recount before it was suspended (assuming those votes are not in fact included) and the failure to complete the manual recount and consideration of approximately 10,000 uncounted/undervoted ballots. In Nassau County, the challenge would center on the canvassing board's certification of results based on the election night results and the rejection of an earlier certification based upon the mandatory automatic recount. In Palm Beach County, the contest is expected to include the uncounted/undervoted ballots not reached before the deadline and also whether the proper standard was used by the canvassing board in judging so-called dimpled or pregnant chad ballots. The Palm Beach challenge is not expected to reach the layout of the so-called butterfly ballot.

Governor Bush, if he were so situated and inclined, also could assert as grounds for a contest some of the manual recount standards that his campaign has protested over the past weeks. More questions...

Are election contests unusual in Florida? [added November 26]

There have been many contests in county-level and local elections in Florida (as well as in other states). There does not appear to have been a Florida contest arising out of a statewide or national election. More questions...

What happens procedurally in a contest and how long is it likely to take? [added November 26]

An election contest basically proceeds as a lawsuit. Under the governing statute (102.168), the canvassing board or election board is the defendant, and the successful candidate also should be made part of the proceeding. The statute gives the defendants 10 days to answer the allegations.

The law also provides that the person bringing a contest "is entitled to an immediate hearing." Witnesses and documentary evidence typically is presented. The court also may, in its discretion, "limit the time to be consumed in taking testimony, with a view therein to the circumstances of the matter[.]" Thus, we should expect to see an election contest proceed on a fast track, similar to the other cases arising out of the Florida election. In its November 21 opinion, the Florida Supreme Court was particularly concerned about the need to initiate and resolve election contests before December 12 to avoid jeopardizing Florida's participation in the Electoral College. More questions...

To what remedy is a successful contestant entitled? [added November 26]

The determination of the appropriate remedy is committed to the discretion of the court. The Florida election contest statute authorizes the judge to "fashion such orders as he or she deems necessary . . . to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances." Relief could include rejection of questioned ballots or a direction to recount disputed ballots applying a particular standard. More questions...

What about the claim that the ballot in Palm Beach County was confusing? [updated November 22]

Several residents of Palm Beach County filed a lawsuit on November 8, seeking a new election and alleging that the so-called "butterfly ballots" used in the county were "deceptive, misleading and confusing." The alleged confusion arose from the placement of punch-out holes in some cases to the right and other cases to the left of the candidates' names. Some voters allege that the confusion caused them to "overvote" their ballot or vote for two candidates for president.

The Florida statutes specify that, in the case of paper ballots, voters mark an X in the blank space to the right of the name of the candidate they want to vote for. For machine ballots, the law provides that "[t]he order in which the voting machine ballot is arranged shall as nearly as practicable conform to the requirements of the form of the paper ballot for that election." Another provision states that in the case of electromechanical voting systems, the "voting square" may appear to the left or right of the candidate's name.

Florida statutes also specify that, for paper ballots, "the names of the candidates of the party which received the highest number of votes for Governor in the last election in which a Governor was elected shall be placed first under the heading for each office, together with an appropriate abbreviation of party name; the names of the candidates of the party which received the second highest vote for Governor shall be second under the heading for each office, together with an appropriate abbreviation of the party name." When one views the Palm Beach ballot as a whole, the Republican ticket appears first on the left side, then the Reform ticket is the next one down on the right side, and then the Democratic ticket back on the left side. On November 10, Florida state officials stated that the Palm Beach ballot did not violate any provisions of Florida law.

Although there are not many reported decisions on point, a 1974 Florida state appellate decision rejected a call for a new election by a losing candidate on the ground that a ballot layout was confusing. In particular, courts appear to be reluctant to entertain post-election challenges on a ground (such as ballot layout) that could have been asserted before the election.

On November 20, 2000, all of the lawsuits challenging the layout of the butterfly ballot were dismissed because the court concluded that it had no legal authority to order a revote (the only relief sought in these lawsuits). An appeal has been filed. More questions...

If a challenge to the Palm Beach ballot is upheld, what will be the remedy? [updated November 22]

The determination of the appropriate remedy is committed to the discretion of the court. The Florida election contest statute authorizes the judge to "fashion such orders as he or she deems necessary . . . to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances."

The only remedy that was sought by the plaintiffs in these cases was a revote or a new election. Circuit Court Judge Labarga ruled on November 20 that a court lacked authority to order a revote in connection with a presidential election. He relied principally on the provision of Article II that "[t]he Congress may determine the Time of chusing the Electors" and noted that federal law contemplated a procedure for appointing electors other than a second election in the event that they were not elected on the date prescribed by law.

Others had postulated different potential remedies, such as an allocation of the overvoted (mainly Gore plus Buchanan votes, it is claimed) ballot in the same proportion as those candidates received on properly voted ballots. Still another approach might have been for the court to set forth standards by which disputed or questionable ballots should be counted or disallowed. An analogous approach was followed in the case of the disputed 1997 Miami mayoral election where extensive absentee ballot fraud was demonstrated. That court did not order a revote but instead set aside the questioned ballots and declared the formerly losing candidate to be the victor. More questions...

If there were to be a revote, would it be limited to voters who voted on November 7? [updated November 16]

Not necessarily. A 1994 decision of the United States Court of Appeals for the First Circuit considered the eligibility to vote in a new, curative election held as a result of the protest of an election held for the Warwick, Rhode Island, School Committee. Persons who did not vote in the first election sued to be allowed to vote in the second one. The court agreed, stating:

"In its simplest form, this case asks us to decide whether a state may condition the right to vote in one election on whether that right was exercised in a preceding election. So stated, the case is hardly worthy of discussion. The right to vote is of the most fundamental significance under our constitutional structure, and depriving a qualified voter of the right to cast a ballot because of failure to vote in an earlier election is almost inconceivable." [Ayers-Schaffner v. DiStefano, 37 F.3d 726, 727 (1st Cir. 1994)].

The court rejected the Board of Elections' argument that the second election was not a new election but simply a recreation of the defective one. While not binding on the courts of Florida, this decision strongly supports the argument that a new election should be open to all eligible voters. More questions...

Is it true that Palm Beach County voters were only allowed five minutes to mark their ballots?

Florida law (101.51) provides: "No elector, while casting his or her ballot, shall occupy a booth or compartment longer than 5 minutes or be allowed to occupy a booth or compartment already occupied or to speak with anyone, except [for a voter seeking assistance], while in the polling place." Palm Beach voter Kenneth Horowitz, owner of the Miami Fusion soccer team, has brought a lawsuit challenging this provision, alleging that election workers were warning voters that anyone taking longer than five minutes would have their ballot tossed out.

This type of time limit is not unusual in state election laws. It is intended as a "housekeeping" requirement to avoid disruption and undue delays in polling places on election day. A similar provision under California law was challenged as a form of discrimination against persons lacking proficiency in English. A federal appeals court found "no evidence that any county has ever enforced the California law so as to require voters to leave the voting booth simply because they have exceeded the statutory time limit." Alcaraz v. Eu, 861 F.2d 1101 (9th Cir. 1988). If it were strictly enforced, that court suggested that it would find a violation of the language discrimination provisions of the Voting Rights Act. More questions...

When does federal law come into play in resolving election disputes, and what remedies does federal law provide? [updated November 21]

The conduct of Presidential elections is principally the responsibility of the states. It is Florida law, rather than federal law, that dictates the requirements of the ballot, the procedures for counting and challenging votes, and for certifying election results.

Generally speaking, federal law comes in where there are allegations of civil rights violations (such as efforts to intimidate voters or deprive persons of the right to vote on the basis of race), or criminal election fraud (such as ballot-box stuffing, destruction of ballots, or voter intimidation). Without suggesting that any of these statutes apply to the Florida election, the following are among the principal federal criminal laws that apply to voting matters. All are punishable by felony or misdemeanor criminal prosecution.

U.S. Code Title 18, Section 241, makes it unlawful for two or more persons to conspire to injure, oppress, threaten, or intimidate any citizen in the exercise of a right or privilege secured to him by the Constitution or laws of the United States (including the right to vote in an election for President). Section 242 makes it unlawful for anyone acting under color of law, statute, ordinance, regulation, or custom to willfully deprive a person of any right, privilege, or immunity secured or protected by the Constitution or laws of the United States.

Title 42, Section 1973i(c), part of the Voting Rights Act of 1965, makes in unlawful in a federal election (1) to knowingly and willfully give false information as to name, address, or period of residence to an election official for the purpose of establishing one's eligibility to vote; (2) to pay, offer to pay, or accept payment for registering to vote or for voting; or (3) to conspire with another person to vote illegally.

Section 1973i(e) makes it unlawful to "vote more than once" in a federal election.

Title 18, section 597 prohibits making or offering to make an expenditure to any person to vote or withhold his or her vote for any candidate.

Title 18, section 608 makes it a federal crime to deprive, or attempt to deprive, any person of a right guaranteed by the Uniformed and Overseas Citizen Absentee Voting Act.

Title 18, section 594, prohibits the intimidation or coercion of voters for the purpose of interfering with the right to vote for a candidate for federal office. (This statute does not require violent intimidation.)

Title 18, section 245(b)(1)(A), prohibits interference by violence or threat of violence with the exericse of one's right to vote, to run for office, or to be a poll watcher or other election official.

With respect to the various criminal statutes, the stated policy of the Department of Justice is to refrain from intervening in an ongoing elective contest in such a way that the investigation is allowed to become a campaign issue, but rather to investigate and prosecute, after the election is over, those who broke the law.

On the civil side, the Voting Rights Act, 42 U.S.C. § 1973i(b), also contains a prohibition against voter intimidation enforceable through civil penalties.

The Voting Rights Act is not limited to discrimination that literally excludes minority voters from the polls. Section 2 of the Act (42 U.S.C. 1973) makes it illegal for any state or local government to use election processes that are not equally open to minority voters, or that give minority voters less opportunity than other voters to participate in the political process and elect representatives of their choice to public office. Under Section 2, the Department of Justice can seek injunctive or other equitable relief to stop or correct an unlawful practice.

The NAACP has requested that the U.S. Department of Justice intervene in the recount process, citing reported instances of disproportionate disqualifications of black voters and the failure to pick up at least one ballot box from a heavily black precinct. The NAACP also requested that the Federal government oversee a vote recount. No public response has been made by the Justice Deparment. More questions...

What is the basis of the Bush campaign's lawsuit in federal court? [updated November 16]

The Bush campaign protested the Gore campaign's request for a further manual recount (following the automatic recount) in four Florida counties. Their lawsuit alleges that the manual recount will yield a less accurate and subjective count and, in so doing, will dilute the votes of the rest of the state. The Complaint also claims that the standards used in assessing the validity or intent of the ballots are arbitrary and standardless and can produce inconsistent treatment of an identical ballot in different counties. The claims are made under the First and Fourteenth amendments to the Constitution of the United States. On Monday, November 13, a federal district judge denied the request for an injunction and expedited appeals are now before the U.S. Court of Appeals for the Eleventh Circuit. More questions...

What is the basis of the new lawsuit that asserts that Texas' electors can't vote for Bush and Cheney even though they won the vote in Texas? [added November 19]

The lawsuit alleges that Mr. Cheney's August trip to Wyoming to register to vote in that state was insufficient to make him an "inhabitant" of Wyoming and no longer an inhabitant of Texas. The Twelfth Amendment to the U.S. Constitution provides a state's electors may not vote for a President and Vice President if both are inhabitants of the same state with themselves.

"Inhabitant" is not necessarily synonymous with "resident." "Inhabitant" also is used in specifying the qualifications to be elected a United States Senator, enabling New York now to have a Senator-elect Clinton. There are some older congressional precedents challenging the seating of an elected representative on "inhabitant" grounds. These precedents basically require a residence in the state plus a clear commitment to avail oneself of the rights and responsibilities of living in that state.

It remains to be seen whether this challenge to Mr. Cheney's status as a Wyoming inhabitant will be entertained by a court or, rather, be deferred to congressional resolution as a possible objection to an electoral college vote from Texas. More questions...

What is the complaint about absentee ballots from Seminole County? [added November 19]

A lawsuit has been filed to disqualify approximately 4,700 ballots from Seminole County. The complaint alleges that the Seminole County elections supervisor's office allowed Republican activists to fill in missing voter registration numbers on requests submitted by voters requesting absentee ballots. Section 101.62 of the Florida statutes provides that a request for an absentee ballot may be made by a voter or a member of the voter's immediate family and that the person making the request must disclose certain information, including the registration number on the elector's registration identification card. More questions...

Given the litigation logjam, can the Florida Legislature act to appoint electors? [updated November 23]

As an initial matter, the Florida legislature would need to be called into a special session to act. This can be done at the request of the Governor or by a 3/5 majority in both houses. (The Republican margin in both houses exceeds that level).

The role of the state legislature in the selection of electors begins with Article II, Section 1 of the Constitution: "Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors[.]" A federal statute makes two specific provisions for the involvement of a state legislature.

Title 3, Section 2 of the United States Code states: "Whenever any state has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct." Many are starting to focus on this avenue, although there are a few important and unresolved questions about the operation of this statute.

Section 5 of Title 3 states: "If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive[.]"

Some issues:

First, electors are supposed to be picked and in place by December 12. At what point in the ongoing sequence of recounts and contests should we conclude that the voters have failed to make a choice Election Day (versus having made a choice but awaiting a lengthy process to reveal that choice)?

Second, some observers interpret the juxtaposition of Section 2 and Section 5 to mean that, while the legislature may appoint electors when the voters have failed to choose, it may not adopt new procedures after the date of the election to govern the resolution of contests and controversies arising out of the election.

Third, does the usually applicable requirement for the governor to sign a bill to give it legal force apply here?

Fourth, what type of resolution should a legislature offer in a case like this? Options might include determining that all electors should be pledged to one candidate or the other, splitting the state's electoral college delegation between the two leading candidates, appointing a truly unpledged delegation charged only to pursue national unity, or many other possibilities. More questions...

In ordinary circumstances, does the Governor of Florida have a role in certifying or appointing the state's electors? [added November 19]

Yes. First, the Governor is one of three members of the Elections Canvassing Commission (with the Secretary of State and the Director of the Division of Elections). The Commission is responsible for certifying final election results. Governor Jeb Bush has recused himself from participation on the Commission in connection with the presidential election.

In addition, after the general election, the Governor of each State prepares a "Certificate of Ascertainment" of the electors appointed. The Certificate must be signed by the Governor and carry the seal of the State, and should be submitted to the National Archives before December 18.. The format of the Certificate is not dictated by Federal law, but conforms to the law or custom of the submitting State. More questions...

Are Florida's electors, whoever they end up being, obligated to cast their votes for the candidate that won the popular vote in Florida? [updated November 20]

Yes. Florida is one of the states that binds its electors by state law or by party pledge to vote for the winner of the popular vote. The National Archives has compiled a list of the state requirements on this score. More questions...

If there is no conclusive result from either the Electoral College or otherwise by Inauguration Day (January 20, 2001), who will become President? [updated November 16]

Under the 20th Amendment, President Clinton's term expires that day and there is no constitutional provision for it to be extended. If there is a vacancy in the offices of President and Vice President, under the established procedures for presidential succession [Title 3, USC, section 19], the Speaker of the House (upon resignation of that position) would become Acting President until a final conclusion is reached from the election. More questions...

What is the weirdest scenario you have heard to resolve this whole situation? [added November 19]

So far, it is the scenario under which there is no resolution by Inauguration Day. The Speaker of the House becomes Acting President. The Constitution states that the House of Representatives chooses its speaker, but does not expressly require that the Speaker be a member of the House. The House chooses Governor Bush to be its Speaker, and he then becomes Acting President. More questions...

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Statutes and Cases

Elections in the state of Florida are governed by the provisions of Title IX of the Florida Code. In the context of the disputed US Presidential election, the key Title IX provisions in play are Sections 101, 102, and 104. To view the full text of these and other Title IX sections, click on the links below.

Title IX, 2000 Florida Statutes: Electors & Elections

• Chapter 101 Voting Methods and Procedure
  [ballots, absentee voting, etc.]
  
  • Ballot Requirements

• Chapter 102 Conducting Elections and Ascertaining the Results
  
  • County Canvassing Boards
  • Protest of Election Returns; Procedure
  • Contest of Election
  • Judgment of Ouster

• Chapter 104 Election Code: Violations and Penalties
  

       Other Title IX provisions:

• Chapter 97 Qualification and Registration of Electors
  
• Chapter 98 Registration Office, Officers, and Procedures
  
• Chapter 99 Candidates, Campaign Expenses, and Contesting Elections
  
• Chapter 100 General, Primary, Special, Bond, and Referendum Elections
  
• Chapter 103 Presidential Electors, Political Parties, Executive Committees and Members
  
• Chapter 105 Nonpartisan Elections for Judicial Officers
  
• Chapter 106 Campaign Financing
  

       See also:

• Florida Administrative Code, Chapter 1S-2 Elections
  Cases

• Joley v. Whatley, Supreme Court of Florida, Special Division B (October 17, 1952) [history of absentee voting]

• Nelson v. Robinson, 301 So. 2d 508, 1974 Fla. App. LEXIS 8601 (1974) [ballot confusion]
  "Keeping in mind that we are talking about a claim made after an election, and not one which may have been enforceable before, if a candidate appears on the ballot in such a position that he can be found by the voters upon a responsible study of the ballot, then such voters have been afforded a full, free and open opportunity to make their choice for or against that particular candidate; and the candidate himself has no constitutional right to a particular spot on the ballot which might make the voters' choice easier. His constitutional rights in the matter end when his name is placed on the ballot. Thereafter, the right is in the voters to have a fair and reasonable opportunity to find it; and as to this, it has been observed that the constitution intended that a voter search for the name of the candidate of his choice and to express his choice for that candidate without regard to others on the ballot. Furthermore, it assumes his ability to read and his intelligence to indicate his choice with the degree of care commensurate with the solemnity of the occasion."

• Boardman v. Esteva, Supreme Court of Florida No. 46282 (September 30, 1975) [election contests]
  "In summary, we hold that the primary consideration in an election contest is whether the will of the people has been effected. In determining the effect of irregularities on the validity of absentee ballots case, the following factors shall be considered:

  (a) the presence or absence of fraud, gross negligence, or intentional wrongdoing;
  (b) whether there has been substantial compliance with the essential requirements of the absentee voting law; and
  (c) whether the irregularities complained of adversely affect the sanctity of the ballot and the integrity of the election.

  The underlying concern of the election officials in making the initial determination as to the validity of the absentee ballots is whether they were cast by qualified, registered voters, who were entitled to vote absentee and who did so in a proper manner."

• Bolden v. Potter, Supreme Court of Florida No. 62461 (June 28, 1984)

• Beckstrom v. Volusia County Canvassing Board, Supreme Court of Florida No. 91642 (March 19, 1998)

  Law of Other States

  While not technically governing the Florida situation, the election and recount law of other states (in particular Texas) has been discussed by parties and courts involved in the Florida recount, as both a legal and political standard of comparison.

• Texas Election Code, Chapter 127 (Processing Electronic Voting System Results) - s. 130, Manual Counting
  Federal Law

  The provisions of these instruments relate primarily to voting rights and the operation of the Electoral College.

• Constitution of the United States
• U.S. Code, Title 3, Chapter 1 - Presidential Elections and Vacancies

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Departments and Officials

• Florida Elections Canvassing Commission
• Florida Department of State - Division of Elections
• Florida Elections Commission
• Florida Secretary of State
• County Supervisors of Elections
• Palm Beach County Supervisor of Elections

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