Down & Dirty (106 page)

In its decision, the U.S. Supreme Court expressed certain concerns over a recount that excludes overvotes.
Bush II,
Slip Op. 9, 12. However, it did not order that any recount include those votes. Moreover, even if this Court
determines to conduct a recount on remand that includes overvotes, such a recount can be completed without much difficulty.

A. Overvotes Do Not Need to Be Included in a Recount

While the U.S. Supreme Court did raise issues concerning the exclusion of overvotes from a recount, it did
not
mandate that such ballots be included on remand.
See, e.g., Bush II,
Slip Op. 12 (“
If
a recount of the overvotes were also required…”). Thus, this Court is under no obligation to order such a count on remand.

There are ample reasons not to include such ballots in a recount. First, as Justice Breyer pointed out,“[the defendants] presented
no evidence, to this Court or any Florida court, that a manual recount of overvotes would identify additional legal votes.”
Bush II,
Slip Op. 1 (Breyer, J., dissenting). Neither at trial, nor on appeal, did the defendants present any evidence concerning
the nature of the ballots found to be overvotes. Nor have the defendants, at any stage in the proceeding, sought a count of
overvotes—as was their right in a contest proceeding. §102.168, Fla. Stat.

The U.S. Supreme Court noted two distinct types of overvotes:

• First, voters whose ballots reflect two marks, but whose intent can nonetheless be discerned (such as a voter who punched
  and wrote-in for the same candidate or mistakenly marked in the area designated for another candidate but then also for the
  candidate of choice);
  
• Second, ballots counted by machines as legitimate votes, that were indeed illegal overvotes.
  

Bush II,
Slip Op. 9. Neither category merits inclusion in a statewide recount.

First, while there may be some ballots that fall into the first category, defendants did not produce at trial, nor does the
record contain, any evidence that they are particularly numerous in nature—or that they tend to favor one candidate over the
other. To the extent that evidence exists in other judicial proceedings concerning this same election, it suggests that a
large number of overvote ballots may have reflected an intent to vote for Vice President Gore, not Governor Bush.
See, e.g., Fladell v. Palm Beach County Canvassing Board,
No. SC00-2373 (December 1, 2000). Thus, there is no reason to believe that exclusion of overvotes from the recount disadvantages
defendants.

Moreover, common sense suggests that the number of overvote ballots with discernable evidence of voter intent will be few
and far between. Unlike “undervotes,” where any evidence of voter intent on the ballot will indicate a legal vote, “overvotes,”
by definition, reflect evidence of multiple intents. Only in the rarest instances could these ballots be read as reflecting
a single intent.

With regard to the second problem—a voter who marks two votes on his ballot, only to have a single vote read by the machine
(and thereby, has his illegal ballot counted as a legal vote)—what the U.S. Supreme Court fails to recognize is that if inclusion
of these votes presents constitutional issues, the same issues are presented by the earlier certified vote tallies. That is,
such ballots are included—not just in any certification to emerge from this proceeding—but from the two certifications that
the Court suggests were somehow more legitimate. Yet those earlier certifications included all ballots that the machine read,
whether or not they were true overvotes.

In the end, there is no reason to include so-called overvotes in any statewide recount. Defendants have not presented evidence
to suggest such a remedy is needed; they have never asked for it; nor has it been shown that the absence of it harms either
party—or even leaves out any appreciable number of legal votes for either party.

B. If This Court Orders Counting of All Ballots That Have Not Been Counted by Vote-Counting Machinery, There Is a Practicable
Manner for Completing It Fairly Quickly.

If this Court concludes that a count of the so-called overvotes is required or desirable, it can be completed practicably
and efficiently.

This process can be accomplished in the time remaining before December 18. It does not require that every ballot in the State
of Florida be manually recounted. A full manual recount of all ballots is unnecessary because there is no dispute that a vote
for presidential candidate tallied by a vote counting machine is a lawful vote. The only question is whether a ballot that
has been
rejected
by a vote-counting machine, whether for failure to register
any
vote for president or for having registered
two or more
votes for president, in fact contains a lawful vote. It is only this second group of ballots—those that have failed to register
one and only one vote for president—that must be manually inspected to determine whether each contains a lawful vote.

The process for segregating machine-countable from non-machine countable ballots is well-developed. The Supreme Court’s opinion,
in an attempt to make remedial action here appear impossible, expressed concern that:

The Secretary of State has advised that the recount of only a portion of the ballots requires that the vote tabulation equipment
be used to screen out undervotes, a function for which the machines were not designed. If a recount of overvotes were also
required, perhaps even a second screening would be necessary. Use of the equipment for this purpose, and any new software
developed for it, would have to be evaluated for accuracy by the Secretary of State, as required by Fla. Stat. §101.015 (2000).

Slip Op. 11-12. However, this vastly overstates the logistical difficulty. In fact, most if not all vote-counting machines
in Florida, whether they use a punchcard or opti-scan type ballot,
⁴
are already equipped to segregate uncounted ballots (those that contain either undervotes or overvotes for president) from
ballots on which a machine can detect one and only one vote for president. The software that makes this segregation possible
is already included in most vote-counting machines and has already been evaluated by the Secretary of State, as required by
Florida. Stat. §101.015 (2000).
⁵
Indeed, plaintiffs believe that segregation of undervote ballots was already completed or in progress in every county where
such segregation was necessary in response to the order of this Court and the Circuit Court when the Supreme Court issued
its Stay Order on December 9. The same technology can segregate overvotes as well as undervotes by simply changing the designation
on the vote segregation and tabulation system. It does not require new software as implied in the Supreme Court’s opinion.
For those counties whose machines do not have that capacity now, the necessary software is readily available, free of charge.

Segregating non-machine countable ballots from machine countable ballots is a routine process that can easily be accomplished
by the county canvassing boards. Here is how the process could work: First, all ballots would be run through the counting
machines. The counting machines would tabulate votes on those ballots that register one and only one vote for president. The
machines are designed to stop when they encounter a ballot on which there is no vote for president, or on which there is more
than one vote for president.
See
Miami-Dade Tr. at 4 (Nov. 18, 2000). Those
ballots would be rejected by the machine and segregated into a separate pile. They would then be manually inspected and legal
votes determined thereon tabulated. The results of this tabulation of rejected ballots would then be added to the results
of the tabulation of machine-readable ballots to create a single tally of votes for president in each county.

This process has already been used successfully by several counties following the November 7 election.
See The New York Times,
Nov. 16, 2000 (in some counties such as Gadsden, “election officials counted by hand only the ballots that counting machines
had rejected, usually a small percentage of the total”);
The New York Times,
Nov. 12, 2000 (stating that election officials in Seminole County—Democrats and Republicans—agreed to hand count ballots
that had not been counted by electronic voting machines); NBC News Transcripts,
Meet the Press,
Nov. 12, 2000 (James Baker, Republican advisor to George W. Bush, noting same).

Although the number of ballots is large—approximately six million were cast in the State of Florida—the recount we propose
can be timely completed. The machine segregation and count will take only a short time. The manual inspection of an estimated
177,000 undervote and overvote ballots will be spread across the State. Most counties will have little trouble finishing their
count in under a day. Plaintiffs estimate that 43 of Florida’s 67 counties will have to inspect less than a thousand ballots.
An additional fourteen counties will have to inspect less than 4,000 ballots. And, as this election season has amply demonstrated,
Florida’s counties have the resources and dedication to complete their ballot count quickly and efficiently when called upon.

The process that plaintiffs are proposing—machine counting every ballot that can be read by the machine, and manually counting
those ballots that are rejected by the machine—is intuitively obvious. It satisfies the equal protection concerns voiced by
the Supreme Court by ensuring that every ballot is adequately inspected to give effect to the intent of the voter, if any,
expressed thereon. The mechanisms to accomplish this process are already in place in the counties. And the process can be
completed in a matter of days, if not hours. In view of the grave importance of ensuring that every vote is counted in this
historic election, plaintiffs respectfully submit that this Court has no real alternative but to order this remedy.

The Supreme Court decision maintains that there are equal protection problems with this Court’s recount order not only because
of its failure to include overvotes in the manual recount, but also because of the absence of a uniform, specific standard
to guide the recounts.

Counting “overvotes” as well as “undervotes,” and using a clear and uniform standard to do so, will remedy both these concerns.
The standard to be used is the same one proposed for undervotes—all ballots should be counted which contain a discernible
mark, at or near the ballot position for the candidate, unless other evidence on the face of the ballot clearly indicates
a voter’s intention not to vote for that candidate.

This standard is well established in both Florida statutory and case law.
See
§101.5614(5), Fla. Stat. (2000) (“No vote shall be declared invalid or void if there is a clear indication of the intent
of the voter”).
Darby v. State
first held more than 80 years ago that, “Where a ballot is so marked as to plainly indicate the voter’s choice and intent
in placing his marks thereon, it should be counted as marked unless some positive provision of law would be thereby violated.”
Id.
at 412. There is nothing different about the basic task and approach today.
See, e.g., Pullen,
561 N.E.2d at 611 (“The legislature authorized the use of electronic tabulating equipment to expedite the tabulating process…
not to create a technical obstruction which defeats the rights of qualified voters”).

Because the counting machines, particularly those used in counting optical scan ballots, would read such ballots as overvotes
without recognizing the voter’s clear intent as expressed on the ballot, these voters will be disenfranchised unless a manual
recount of the undervotes is undertaken. A manual recount of overvotes, employing a clear and uniform standard as described
previously, would finally allow these voters’ plain words and other markings to be read, and their votes to be finally counted.
⁶

In
Beckstrom v. Volusia County Canvassing Bd.,
707 So. 2d 720 (Fla. 1998), ballots which were defectively marked and thus unreadable by the scanner had to be hand-counted
to determine the intent of the voter. Manual recounts may be particularly necessary in reviewing overvotes on optical scan
ballots, where it is frequently clear that the voter colored in or otherwise marked the oval or arrow assigned to the indicated
candidate, but that mark was not counted as a vote for that candidate because other marks also registered on the machine.
Just as in
Darby,
when an “x” marked the wrong spot but it was clear from that “x” that the voter was casting the vote a certain way even though
the ballot was not marked in the manner specified by the voting instructions, so it must be that when there are markings on
an overvote ballot that make it clear from the ballot who the voter’s intended candidate was, that vote must be counted.
See Darby
75 So. At 412.
⁷

This is not a new standard in Florida. It has been Florida law since its inception. When a vote can be counted, the will of
the voter is recognized. Simply because machines aid in tabulation, when those machines fail to tabulate legal votes, this
Court should not let such failures void legal votes and thereby disenfranchise Florida voters.
⁸

CONCLUSION

For the reasons stated, on remand from the U.S. Supreme Court, this Court should address the three conditions necessary to
conduct the statewide recount of contested votes that this Court had already found was necessary to complete the pending judicial
contest and determine the rightful winner of Florida’s electoral votes. As discussed herein, this Court should: (1) adopt
adequate statewide standards for determining legally valid votes; (2) impose practicable procedures to implement them; and
(3) provide for orderly judicial review of any disputed matters that might arise. These conditions can be met by an immediate
order of this Court, and a full and accurate tally of the votes could be finally achieved, just as this Court directed as
a matter of state law five days ago.