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Precedents few for court fight
By CRAIG PITTMAN © St. Petersburg Times, published November 10, 2000 As control of the 2000 presidential contest passed from the voting booth to the courtroom Thursday, legal experts said Florida judges have been extremely reluctant to overturn an election. In most cases involving an elections challenge in Florida, judges have thrown out the ballots that were in question. Only once has a legal challenge successfully led to a new election. For the most part, though, legal experts were scratching around in vain to find a legal precedent that applies to this particular situation. "I haven't found anything just like it," said University of Florida law school dean Jon Mills, who served as speaker of the state House in the 1980s. "Everything about it is unique." Florida's courts have seen plenty of cases involving contested elections, including a 1984 Lafayette County race where votes were sold for $25 and a bottle of whiskey. Five people went to prison but the election wasn't overturned. The only case that prompted a judge to order a new election involved the 1993 mayor's race in Hialeah. And the outcome was not quite what the challenger expected. Nilo Juri defeated incumbent Mayor Raul Martinez by 105 votes out of more than 26,000 cast at the voting machines. But after tallying the absentee ballots, Martinez eked out a re-election victory by 273 votes. Outraged, Juri sued. A circuit judge ruled that there was such widespread fraud -- perpetrated by both campaigns -- that the only solution was to order a new election. But when voters went back to the polls, Martinez won anyway. The key test for all Florida cases is a state Supreme Court ruling on the 1996 Volusia County sheriff's race. Deputy Gus Beckstrom ran against his boss, beating Sheriff John Vogel in the machine count but losing in an error-filled absentee count. Beckstrom sued but a judge refused to overturn the race. When Beckstrom's appeal reached the highest court in the state the justices held that "the court is to void the election only if it finds that the substantial non-compliance resulted in doubt as to whether a certified election reflected the will of the voters." "That has been a consistent theme in Florida election law," Volusia County Attorney Dan Eckert said Thursday. A similar issue popped up in the Miami mayor's race three years ago. Joe Carollo ran against incumbent Mayor Xavier Suarez, whose erratic behavior led a local columnist to dub him "Mayor Loco." When Carollo won at the polls but lost in the absentee count, he sued. A two-week trial produced evidence of forged ballots, improperly witnessed ballots, even one vote cast in the name of a dead man. The trial judge ordered a new election, but an appeals court overruled him. The appellate judges simply threw out all 4,500 absentee ballots, thus handing victory back to Carollo. Most Florida election challenges revolve around allegations that somebody stuffed the ballot box with absentee votes. In those cases the solution has been pretty easy: toss out the bad ballots and count the rest. One of the stranger Florida cases involved ballot layout and voter confusion, which are the main issues in Palm Beach. In 1974, six Republican candidates who lost a Pinellas primary sued to overturn the election because their names appeared on the bottom of a lengthy ballot. They argued that tall voters missed them. "I had to squat down in the voting booth to find my name," complained one. A judge ordered a new election. But an appeals court said no, ruling that candidates have no constitutional right to an easy-to-find spot on the ballot. More importantly for the current controversy, the court also said that "mere confusion does not constitute an impediment to the voters' free choice." Sometimes the voters aren't as confused as the candidates think they are. In Florida's 1988 U.S. Senate race, Republican Connie Mack squeaked by Democrat Buddy MacKay. The day after the election, MacKay's aides began questioning the results in counties where they saw what they called an abnormal "dropoff" between the number of votes cast in the presidential and Senate races. MacKay asked for a recount in five counties, suggesting that thousands of votes cast for him weren't tallied accurately. Only one county, Palm Beach, agreed. When the result showed a change of only three votes, MacKay conceded defeat. Election challenges hang on just which ballots are regarded as valid, said Tony Sutin, dean of the Appalachian School of Law in Virginia. In 1984, two candidates vying for a seat in Congress from Indiana wound up only 39 votes apart, out of more than 200,000 cast. The loser asked for a recount and won, then the other candidate got a recount and he won. Ultimately the Democrat-dominated House appointed a committee to take yet another recount. Using their own definition of what was valid, the committee tossed out thousands of ballots and declared the Democrat the winner by four votes. When the new congressman was seated, the Republicans all walked out in protest, Sutin said. Rare is the election challenge that is resolved in a way that preserves the candidates' dignity. In a 1974 New Hampshire race for the U.S. Senate, the race was so close that a recount found the two candidates only 10 votes apart, Sutin said. The winner agreed with the loser to submit to another election. The voters rewarded this statesmanlike behavior by electing the original winner again, this time by a wide margin, Sutin said. Although this is a race for a federal position, it is Florida law that applies to the post-election tussle. Democratic attorneys prefer that because, under Florida law, the plaintiffs need prove only that there is a reasonable doubt that the voters got the election result they wanted. While Gore won Palm Beach County, the foul-ups there might have cost him Florida's 25 electoral votes, which would thwart the majority of the Palm Beach voters' wishes, said Mills, the UF law school dean. If a judge does find grounds for reasonable doubt, though, the law gives wide latitude and little guidance in finding a remedy, he said. For instance, in Palm Beach County more than 19,000 ballots in the presidential race were thrown out before they were counted because the voters picked more than one candidate. Democratic attorneys have talked of asking a judge to award Al Gore about two-thirds of those votes, based on the proportion of votes he got from the ballots that were counted. Mills said that is not forbidden by Florida law, but there is no precedent for it either. There is, however, some precedent for demanding that elections supervisors count the ballots by hand instead of using machines, which Gore's campaign requested in Palm Beach, Miami-Dade, Broward and Volusia counties. In the 1996 Volusia case that went to the state Supreme Court, the judge questioned why it was so hard to do such an apparently simple job of counting ballots. "Why can't we just count the votes? Why is it so complex?" the judge demanded. "If banks counted money the way the supervisor of elections counted votes, our financial system would collapse." - Staff researcher Kitty Bennett contributed to this report.
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From the Times election desk From the AP national wire  |
