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Florida law provides variety of cures for problem elections

By Raju Chebium
CNN.com Correspondent

RELATED CASE Beckstrom v. Volusia County Canvassing Board (FindLaw)  DOCUMENTS • Florida statute concerning the appearance of general election ballots (FindLaw) (PDF format) • State court complaint seeking a new election in Palm Beach County (FindLaw) • Withdrawn federal complaint seeking a new election PDF documents require Adobe Acrobat Reader

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WASHINGTON (CNN) -- Judges have the discretion to invalidate elections and impose lesser remedies if they agree with plaintiffs that there were improprieties on Election Day, though no U.S. presidential election has ever been nullified, election-law scholars said.

Judges have ordered ballot recounts and imposed other remedies, making such a solution a more likely scenario in Florida, where the question of who will be the next president will be decided, said David Menefee-Libey, a political scientist at Pomona College, California.

"It would be a remarkable intrusion of the judiciary branch into the elections process" if a court were to order a fresh election nationally, he said. "It would take a tremendously courageous judge to take responsibility for a decision like that. That judge or that panel of judges would be taking responsibility for deciding who is the next president of the United States."

Consequently, judges are likely to take the more practical steps of ordering recounts or fresh elections at a particular precinct rife with problems, said Andrew Glassberg, a political scientist at the University of Missouri-St. Louis, who oversaw a court-ordered ballot recount effort in a local election in the 1980s.

Meanwhile, the George W. Bush campaign declared victory Friday after an unofficial ballot recount tally showed Bush beating Democrat Al Gore by 327 votes, not including absentee ballots. The tally, compiled by The Associated Press, came a week before state election officials were scheduled to complete the official recount of the 6 million votes cast in Florida.

Developments in Florida

The question of remedies available to judges took on a new urgency on Thursday when a Palm Beach County, Florida, voter filed a federal lawsuit seeking a new election. However, plaintiff's lawyers withdrew the lawsuit and planned to file it next week in state court, CNN learned.

The lawsuit stemmed from what many voters have said was a confusing placement of candidates' names on the ballot, which resulted in an unusually high number of votes for Reform Party candidate Patrick Buchanan in a heavily Democratic district.

Additionally, election authorities said 19,000 Palm Beach County ballots were invalidated and there have been allegations of uncounted ballot boxes, fraud and other improprieties in other parts of the state. Democratic candidate Al Gore's campaign on Thursday called on elections officials to do a manual recount of the votes cast in four Florida counties.

Florida's 25 electoral votes will decide who wins the White House -- Gore or Republican nominee Bush. The winner was to be decided after a statewide ballot recount.

The Florida recount was triggered by state law because Bush led Gore by less than one-half of 1 percent after Tuesday's balloting. Out of nearly 6 million votes cast, the Bush margin before the recount was 1,784 votes.

State elections officials were confident the recount would be completed Thursday, but they must wait until at least November 17 to certify those results. That is the deadline for the estimated 2,000 ballots cast by Floridians living overseas -- mostly military personnel and their families -- to arrive in the state. The ballots must have been postmarked by Election Day. However, even certification on November 17 may be postponed pending an injunction.

Judge Kathleen Kroll, a judge in the 15th Judicial Circuit in Palm Beach County, granted an injunction on a motion filed by lawyers representing two Boca Raton women. Kroll's injunction prevents state and county officials from certifying as final the result of the presidential election. The judge's decision was based upon violations of Florida state laws concerning the format of election ballots, the injunction said, and it said the ballot was confusing and "printed in such a way that Plaintiffs were deprived of their right to freely express their will."

Remedies available under Florida law

Jon Mills, interim dean of the University of Florida law school and former speaker of the Florida House of Representatives, said state election law does not specify what types of remedies state circuit judges can order if they find problems on Election Day. The law simply says judges can provide "any relief," he said.

Palm Beach County ballot as it appeared to voters ( Click here for larger view ). For sample ballot published before the election, click here

Under Florida law, a voter has 10 days from the day the Florida ballot is certified -- or ruled as completely and correctly tallied -- to file a legal challenge on grounds of voter fraud, corruption of election officials and misconduct, Mills said.

Separately, Florida law says that the ballot shall be arranged in such a way that the names or candidates are printed in a vertical column, Mills said. It would be up to a judge to decide if the Palm Beach ballot, the only one in the state to have the names side-by-side, "substantially complied" with the sample ballot shown in Florida statute books, Mills said.

Other possible resolutions to the Palm Beach question

A relatively simple solution to the Palm Beach ballot controversy would be for the judge to order a manual recount of the ballots cast in the county, Glassberg said.

He explained that some voters may not have punched a clean hole in the ballot sheet and so the vote-counting machine may have disregarded such ballots as invalid. Recounts normally entail running the ballots through the machine again, which will likely yield the same result as previously, he said.

But if a manual recount is ordered, then humans can see clearly that the ballots were marked though not deeply enough, Glassberg said.

"I am not in favor of redoing elections. What I am in favor of going back and doing the hand inspection of all the ballots," he said.

Before ordering any remedies, judges must make a key decision: Whether the number of disputed ballots is large enough to potentially alter the outcome of the election, Glassberg said.

And judges should carefully consider the merits of ordering a revote in a particular precinct because there is no certainty that the same number of people who voted the first time around will vote the second time, Glassberg said.

"The problem with a revote is who votes the second time? I think you have to ask who will be allowed to vote and the second question will be what will the turnout be the second time," Glassberg said. "There is no guarantee that a revote will be a better expression of the public will than the first vote was."

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