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Election Law @ Moritz

Election Law @ Moritz


Why Florida Should Not Be the “Next Florida”: Fixing the Debacle In Palm Beach County


There’s a storm brewing in the Sunshine State, and once again Palm Beach County is at the center of the turmoil.

The problem arises because of a ballot printing error on absentee ballots in Palm Beach County.The County contracted with an Arizona firm to produce the ballots, and the firm printed about 60,000 absentee ballots before anyone noticed the error: all of the races had a “header” over each section of the ballot except for the section for Judicial Retention elections. For example, before listing the presidential candidates, the ballot says “President and Vice President” in both English and Spanish in all capital letters and in boldface type. The Judicial Retention portion of the ballot, however, lists the candidates without any identifying header. Palm Beach County mailed out thousands of these absentee ballots to voters before catching the mistake.

Although problematic, it’s not a big deal, one might think. A few absentee voters might miss that race as they work their way through the ballot, but that fact should not have national implications. It turns out, however, that whether there is a proper header for the Judicial Retention election affects the placement of other races on the ballot. This makes the ballots lacking the header unreadable on the tabulation machine. That is, election officials cannot put the absentee ballots missing a header for the Judicial Retention elections through the machine to tabulate the votes, making the entire ballot unreadable. Voters have returned approximately 27,000 of these “bad” ballots. The question now is what to do about them.

Palm Beach County officials maintain that is impossible to reprogram the machines or otherwise use the “bad” ballots. Instead, they have devised a scheme to “duplicate” the unusable ballots onto “good” ballots that the machine can read. Ten teams of two members each are taking the absentee ballots containing the error and copying them onto ballots that have the proper header. One member of the team must be a Democrat; the other is a Republican. A supervisor is overseeing the process, making sure the team copies the ballots accurately. Three people representing candidates – one for a Democrat, one for a Republican, and one for a non-partisan candidate – are sitting behind each team to watch the process. Election officials are selecting these observers on a first-come first-served basis. A three-member Canvassing Board, comprised of Palm Beach County Elections Supervisor Susan Bucher (a Democrat), County Commissioner Priscilla Taylor (a Democrat), and County Court Judge Caroline Shepherd (Florida Judges are nonpartisan, but Judge Shepard originally was appointed by then-Republican Governor Charlie Crist) resolve questions about ballots that are unclear, such as those that have stray marks, circles, or votes crossed out. In addition, Florida Secretary of State Ken Detzner – a Republican appointed by Governor Rick Scott – sent two deputies to monitor the procedure.

Of course, the presidential candidates have teams of lawyers watching the process as well. These lawyers, who are video recording the proceedings, are trying to ensure that the copying is accurate and complete. Echoes of the 2000 presidential election, when election officials attempted to discern the “intent of the voter,” abound. When a voter has filled out an absentee ballot by hand there are sure to be disputes about the voter’s intent, especially when the voter does something other than simply connect the arrow next to a candidate’s name. The Canvassing Board is resolving these disputes.

This story has received little national attention, but it is important to highlight both to shed light on the kinds of ballot errors that can occur through the mistakes of local election officials and to discuss the merits of Palm Beach’s pre-election ameliorative efforts. In short, even though a close election could make this a national story – which is surely why lawyers for both President Obama and Governor Romney are watching the process closely – Florida in 2012 should not become the “next Florida” because of the bipartisanship, transparency, and pre-election corrective measures that Palm Beach County is taking.

Palm Beach County’s process is the best option of many unpalatable choices. Assuming it is truly impossible to reprogram the vote counting machines to tabulate the actual ballots the voters filled out, then the only other options are to hand count the ballots or throw them out and tell voters to re-send new absentee ballots. Hand counting the ballots raises the same accuracy concerns as re-doing them and sending them through the machine. Throwing out the ballots potentially leads to voter disenfranchisement, especially as there likely is not enough time to notify those voters that they need to re-send in a new, correct ballot. Moreover, the error is the County’s fault, not the voters’, so it should be the County’s responsibility to take ameliorative action. Once Palm Beach County identified the glitch, it took bipartisan and transparent corrective measures before Election Day.

But what if the presidential election in Florida is close, and the Electoral College comes down to this state? Will the candidate who is down in the count challenge the results based on the absentee ballot debacle in Palm Beach County? Let’s assume that President Obama wins the initial count in Florida by only a handful of votes. Could Governor Romney challenge the result based on what is happening in Palm Beach County—perhaps on the ground that the three-member Canvassing Board, which has two Democrats, was biased toward the Democratic candidate in its resolution of disputed absentee ballots? (Of course, we could reverse the positions of the candidates in the hypothetical scenario, with Obama behind; I use Romney only because the presence of two Democrats on the Canvassing Board might give Romney a better hook to argue that the process was biased or unfair.)

The short answer is that Romney should not challenge the election based on the Palm Beach County mishap.

First, Obama could mount a persuasive laches-type defense: if Romney thought there was a problem with Palm Beach County’s “correction” method, he should have challenged that process before Election Day. It is improper for Romney to wait to see if the absentee ballots will make a difference in the vote count before challenging the process if he thinks there is something wrong. This means that if either candidate believes there is a problem with the process, that candidate should challenge the procedure now, before Election Day. Barring post-election litigation when a pre-election challenge is possible is sound policy because it forces candidates to examine election procedures when they arise, devoid of how it will affect which candidate ultimately wins once the counting begins.

Second, Obama would have a strong argument against any Equal Protection claim on the merits. Although there is no constitutional right to vote absentee, once the state allows absentee balloting it must count all valid absentee votes even if an election official’s error caused a problem with the ballot. That is, much like the “right church-wrong pew” provisional ballots that Ohio must count when poll worker error is the reason the voter had to vote provisionally, Florida must count absentee ballots when the mistake is the result of election administration error.

The most important aspect of this story – and the one that should receive more attention – is that Palm Beach County is taking the best course it can to fix its mistake, using a bipartisan and transparent process to re-do the ballots before Election Day. The bipartisan and supervised nature of the pre-election procedure makes this ballot error an unlikely vehicle for a post-election contest. Although the Canvassing Board has two Democrats and one nonpartisan member, the fact that the Republican Secretary of State has sent two deputies to observe the process balances that ideological tilt. The County is fixing the ballots prior to Election Day, before we know how the election will turn out and which candidate might need to “make up” a handful of votes after the initial count. This could take biased or partisan arguments regarding the inclusion or exclusion of these ballots out of the equation.

Therefore, if Florida comes down to a few hundred votes, Palm Beach County’s pre-election correction process, bipartisan observers, and transparency should counsel against a protracted election contest (assuming that this is the only election irregularity in Florida). There is no better remedy to fix the mistake, and arguments about whether to count these ballots might mire the courts in ideological and partisan decision making. This is not to suggest, of course, that Palm Beach County’s mistake is excusable, and we should put into place procedures in the future that will avoid this kind of printing error. Further, a candidate who is down by a small number of votes, perhaps even in races other than the presidential election, may well try to use Palm Beach County’s error to call the election result into question. It is certainly possible that one of the candidates will want to continue the fight for political reasons, especially given today’s heated political environment, and the candidate might see the Palm Beach County issue as opening the door to post-election litigation. But that effort should fail precisely because of the pre-election corrective measures Palm Beach County is taking.

The lawyers are already in place in Palm Beach County, monitoring a process in which election officials are copying absentee ballots so the machines can count them. If after Election Day the margin of victory is greater than the number of corrected ballots, no one will remember this mishap. But if Florida becomes the “next Florida,” again at the center of the storm, then the country will be thankful Palm Beach County took the steps it did before Election Day to fix its mistake. Palm Beach County thus provides a good lesson both in how election officials must be more careful in avoiding ballot errors and in the nature of the corrective measures local election administrators must take to protect the legitimacy of the election process.


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