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Edward B. Foley
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Information and Analysis

FL-13: Undervotes & Potential Recount

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November 9, 2006

This analysis was prepared by Debra Milberg, Class of 2008, Moritz College of Law

Based on allegations of electronic voting machines malfunctioning and a seemingly large “undervote” in Sarasota County, the Florida Secretary of State is calling for an audit of Sarasota County’s voting system. Sarasota County Board of Elections reportedly requested the audit based on the discrepancy of 18,382 votes between major statewide races and the U.S. Congressional district 13 race. While it is typical for some undervote to occur, the undervote for this same congressional race was markedly lower in other counties included within the district. In Sarasota County, the undervote was 12%, as compared to 3% in neighboring Manatee County, 1% in Desoto County, and 5% in Hardee County. Absentee ballots in Sarasota County also had an undervote of only 3%.

As of this afternoon, according to unofficial returns, only 373 votes separate Republican Vern Buchanan and Democrat Christine Jennings. All five counties that make up District 13 (Charlotte, Desoto, Hardee, Manatee, and Sarasota) report that they have completed counting their absentee ballots. However, all five also report that they have not counted their provisional ballots. The number of provisional ballots remain unknown.

Since the candidates are separated by only 0.159% of a percentage point, Florida’s automatic recount statute is triggered. Under Florida law (set forth below), amended following the 2000 election cycle, machine recounts will be ordered if the unofficial returns show the difference between two candidates is less than half a percent of the votes cast. If the machine tallies as a result of this initial recount find the difference is less than a quarter of a percent, a manual recount is conducted. Since the FL-13 race is well under a quarter of a percent, a manual recount is likely. The procedure for a manual recount requires officials to go back over the images of the electronic ballots where the machine didn’t register a choice for the race. If the machine shows “no vote” for the office in question, the officials apparently assume that voter meant to skip the race.

The outcome of the FL-13 congressional race now depends upon the impending manual machine recount and the results of the state audit. Results must be certified by Nov. 20.

Florida’s Automatic Machine Recount Law, F.S.A. § 102.141(6):

“(6) If the unofficial returns reflect that a candidate for any office was defeated or eliminated by one-half of a percent or less of the votes cast for such office, that a candidate for retention to a judicial office was retained or not retained by one-half of a percent or less of the votes cast on the question of retention, or that a measure appearing on the ballot was approved or rejected by one-half of a percent or less of the votes cast on such measure, the board responsible for certifying the results of the vote on such race or measure shall order a recount of the votes cast with respect to such office or measure. The Elections Canvassing Commission is the board responsible for ordering federal, state, and multicounty recounts. A recount need not be ordered with respect to the returns for any office, however, if the candidate or candidates defeated or eliminated from contention for such office by one-half of a percent or less of the votes cast for such office request in writing that a recount not be made.”

Florida’s Automatic Manual Recount Law, F.S.A. § 102.166(1):

“(1) If the second set of unofficial returns pursuant to s. 102.141 indicates that a candidate for any office was defeated or eliminated by one-quarter of a percent or less of the votes cast for such office, that a candidate for retention to a judicial office was retained or not retained by one-quarter of a percent or less of the votes cast on the question of retention, or that a measure appearing on the ballot was approved or rejected by one-quarter of a percent or less of the votes cast on such measure, the board responsible for certifying the results of the vote on such race or measure shall order a manual recount of the overvotes and undervotes cast in the entire geographic jurisdiction of such office or ballot measure. A manual recount may not be ordered, however, if the number of overvotes, undervotes, and provisional ballots is fewer than the number of votes needed to change the outcome of the election.”