Election Law @ Moritz

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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, 11/27/06 Update

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November 27, 2006

Similar to the lawsuit filed by the Jennings campaign last week, a new lawsuit was filed last week in the Circuit Court of Leon County, Florida. The new lawsuit is an action brought on behalf of voters in Sarasota County by the American Civil Liberties Union, the People for the American Way, Voter Action, and the Electronic Frontier Foundation. The complaint was brought under FL Statute Section 102.168(7) to contest the certification that Vern Buchanan was the winner of the congressional election. The grounds for the contest are (1) misconduct on the part of election officials under F.S. § 102.168(3)(a) and (2) rejection of legal votes sufficient to change or place in doubt the result of the election under F.S. § 102.168(3)(c). With a second lawsuit filed, the question remains: was there an undervote? And if so, what was the cause?

The Elections Supervisor of neighboring Charlotte County believes that the Sarasota County undervote is not worth litigating. In stating that “people just don’t vote for everything on the ballot,” he cited instances in Charlotte County where undervotes occurred as well. During this past election cycle, in Charlotte County there were 11,647 undervotes in the race for Florida attorney general (26 percent of those who cast ballots). Also, in the Florida House District 71 race, in which incumbent Rep. Mike Grant, R-Port Charlotte, faced only a write-in candidate, there were 10,222 undervotes, or 41 percent. And all the races for judges on the ballot had undervotes rates of at least 20 percent.

However, local political scientists disagree. Based on the statistical variation of undervotes between Sarasota County and the rest of the congressional district, it seems that something had to have gone wrong. Though election officials in Sarasota County maintain the undervote is due strictly to voter apathy, political scientists say that kind of voter rebellion is unlikely to be confined to a single county. The high rate of skipped votes in Sarasota County is a statistical red flag.

Meanwhile, the Florida Secretary of State’s audit is scheduled to commence tomorrow, Nov. 28. The audit process will consist of two similar tests, one Tuesday on the iVotronic voting equipment that was prepared but not used in the Nov. 7 election, and another on Friday, if there are no delays, on the voting equipment used on election day. The audit plan also includes the election process, ballot accounting, tabulator performances and forensic analysis, according to the letter.

Reported by Debra Milberg, Moritz Class of 2008