Statewide elections in Florida always seem to be nail-biters, and this year’s intense contest between Republican Gov. Rick Scott and Republican-governor-turned-Democrat Charlie Crist is no exception. Recent polls give Crist a tiny edge, but the difference is well within the margin of error, and the truth is that no one knows what’s going to happen next Tuesday.

With such a miniscule difference separating the candidates, the results this year could depend heavily on a handful of legal issues governing which ballots should be counted and what might happen if a recount or election contest is mounted.

Few are more knowledgeable about the ins and outs of Florida election law than Kirk-Pinkerton Board-Certified Civil Trial Lawyer Tom Shults. He has represented candidates, parties and PACs in election disputes and litigation, and successfully represented the Sarasota Alliance for Fair Elections in a case that went all the way to the Florida Supreme Court. That case involved the constitutionality of election law amendments to the Sarasota County charter.

“We all want political races to be decided in the voting booth, not the courtroom, but attorneys play a vital role in ensuring that candidates, voters and election workers all follow the rules,” says Shults. “Hopefully this year’s elections won’t come down to the wire like so many others in Florida’s recent history, but if it does, it’s important to have attorneys to safeguard the integrity of the results.”

In addition to his work as an attorney, Shults writes about election law at his blog, Florida Election Law Issues. Here’s a primer from Shults on just some of the issues that might come into play this year:

Voter challenges:

Any voter or poll watcher can challenge the right of another voter to cast a ballot. Someone wishing to challenge a voter at the polling place during early voting or on election day must submit an affidavit to the precinct clerk or inspector outlining the basis for the challenge before the casting of the challenged vote, or the challenge can be made by delivering the affidavit to the supervisor of elections’ office no sooner than 30 days before the election.

The challenged voter will be permitted to vote by provisional ballot, and in most circumstances, the local canvassing board will determine the validity of the challenge.

Challenges to an absentee ballot voter’s certificate:

The outside of an absentee ballot envelope contains a statement called a “voter certificate.” The voter certificate must be signed by the voter with a signature that matches the signature on file at the supervisor’s office.

Challenges based on a defect in the voter certificate (e.g. the signature doesn’t match) must be made before the ballot is removed from the envelope and the challenge must be filed with the canvassing board and specify the precinct, the ballot and the reason why the challenger believes the ballot is illegal.

Recounts:

Recounts of ballots are triggered in two instances:

  • If the first ballot count shows that a candidate was defeated or a ballot measure was approved or rejected by one-half of 1 percent or less of the votes cast, amachine recount of all ballots cast for the race or measure will occur.
  • If the machine recount described shows that a candidate was defeated or a ballot measure was approved or rejected by one-quarter of 1 percent or less of the votes cast, a manual recount of the overvotes and undervotes cast for the race or measure will occur. A vote contained on a ballot initially identified as an overvote or undervote shall be counted if there is a clear indication on the ballot that the voter has made a definite choice. This manual recount will occur unless the losing candidate requests in writing that a recount not be made or the number of overvotes and undervotes is fewer than the number of votes needed to change the outcome of the election.

(An “overvote” occurs when a voter has marked a vote for two or more persons for the same office or more than one answer to a ballot question, and the machine tabulator records no vote for the office or question. An “undervote” happens when a voter did not make any choice for an office or ballot question, and the machine tabulator records no vote for the office or question).

Election contests:

An election contest is a lawsuit, which challenges the certification of an election outcome. An election contest cannot be used to challenge Florida House or Senate results. These races are solely within the jurisdiction of the Florida Legislature and challenges to certification are governed by the rules of the applicable house. And although congressional races can be challenged through an election contest lawsuit, the federal Senate and House of Representatives bear the ultimate constitutional responsibility to adjudicate disputed congressional elections.

In other cases, an election contest lawsuit can be brought by an unsuccessful candidate or any voter or taxpayer. The suit must be filed within 10 days after certification of the election.

The grounds for contesting an election are:

  • 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.
  • Ineligibility of the successful candidate for the nomination or office in dispute.
  • 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.
  • Proof that any elector, election official or canvassing board member was given or offered a bribe or reward in money, property or any other thing of value for the purpose of procuring the successful candidate’s nomination or election or determining the result on any question submitted by referendum.

Public inspection of ballots:

Florida public records law and its election code treat ballots as public records subject to public inspection and examination upon request. Any member of the public is entitled to inspect any or all of the ballots, but only an employee of a supervisor of elections can touch the actual ballots.

A ballot inspection might occur before the deadline for filing an election contest suit. If an inspection is requested before the contest deadline, the supervisor must make a reasonable effort to notify all candidates of the inspection and allow them to attend the inspection.

Voting system audits:

After the certification of all elections, the local canvassing board is required to immediately conduct either a manual audit or an automated, independent audit of the voting systems.

The manual audit must be for one randomly selected race in at least 1 percent but no more than 2 percent of randomly selected precincts. The manual audit must occur in public.

The automated, independent audit is a public automated tally of votes cast in all races in 20 percent of precincts, selected at random.

The local canvassing board must then report the results of the audit to the Secretary of State. The results of the audit have no legal effect on the outcome or certification of the election, although the results could be used as evidence in an election challenge or contest lawsuit.