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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Information and Analysis

FL-13: Update 11/17/06

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November 17, 2006

As of earlier today, Democrat Christine Jennings had picked up a minimal number of new votes outside of Sarasota County, with Sarasota results still outstanding. Jennings picked up 1 additional vote in Charlotte County from an absentee ballot, while the machine recount in Charlotte County revealed no change. Following the manual recount in Manatee County (which uses paper ballots), there were 38 ballots where the voter clearly made a decision, but the vote was not picked up by machines. Jennings received 22 additional votes and Buchanan picked up 16. Unlike Manatee County, Sarasota County uses electronic voting machines, and since there is no way to determine “voter intent” during the recount, the machine recount is not expected to produce any change. The final votes to be counted in Sarasota County are whatever fraction of the estimated 546 outstanding military and overseas ballots arrive by today.

Following the machine and manual recounts across FL-13, the results of the race may still hinge on the upcoming state audit of the Nov. 7 election. The goal of the state audit is to determine the cause of the 18,000 vote “undervote” that appears to have occurred in this race in Sarasota County. However, partisan bickering and legal maneuvering continue to delay the audit process.

The state audit was set to begin Wednesday, but the Jennings campaign filed an injunction to stop the audit until the campaign could have its own independent experts check the machines along with state officials. The injunction was granted, pending an independent expert coming forward on behalf of Republican Vern Buchanan to make the process nonpartisan. The Buchanan campaign is allegedly struggling to locate an expert and Circuit Judge Deno Economou has given the campaign until 5pm on Monday, November 20, to produce an expert. If the Buchanan campaign fails to produce an expert, the state intends to conduct the audit without additional experts from either campaign.

Meanwhile, once the results of the election are certified following the recounts, a 10-day period begins for either campaign to contest the results. Buchanan's attorney said that he expects Jennings will file a lawsuit Monday in Leon County Circuit Court in Tallahassee. With a potential “contested election” lawsuit and the start of the state audit next Monday, FL-13 is not much closer to determining its member of Congress than it was ten days ago.

Reported by Debra Milberg, Moritz Class of 2008.