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florida > The Florida Election Code > Conducting Elections And Ascertaining The Results

§ 102.166 Manual recounts of overvotes and undervotes.

Overview of Statute

This statute governs the procedure by which overvotes and undervotes are manually recounted. If the unofficial returns show that a candidate was defeated by ¼ of a percent or less, a manual recount must occur unless the candidate requests that a recount not be done. The Secretary of State is responsible for ordering manual recounts for federal, state, and multicounty races. The statute then goes on to provide an overview of the details of manual recounts.

Statute

(1) If the second set of unofficial returns pursuant to s. 102.141 indicates that a candidate for any office was defeated or eliminated by one-quarter of a percent or less of the votes cast for such office, that a candidate for retention to a judicial office was retained or not retained by one-quarter of a percent or less of the votes cast on the question of retention, or that a measure appearing on the ballot was approved or rejected by one-quarter of a percent or less of the votes cast on such measure, a manual recount of the overvotes and undervotes cast in the entire geographic jurisdiction of such office or ballot measure shall be ordered unless:

(a) The candidate or candidates defeated or eliminated from contention by one-quarter of 1 percent or fewer of the votes cast for such office request in writing that a recount not be made; or
(b) The number of overvotes and undervotes is fewer than the number of votes needed to change the outcome of the election.

The Secretary of State is responsible for ordering a manual recount for federal, state, and multicounty races. The county canvassing board or local board responsible for certifying the election is responsible for ordering a manual recount for all other races.

(2)
(a) Any hardware or software used to identify and sort overvotes and undervotes for a given race or ballot measure must be certified by the Department of State as part of the voting system pursuant to s. 101.015. Any such hardware or software must be capable of simultaneously counting votes.
(b) Overvotes and undervotes shall be identified and sorted while recounting ballots pursuant to s. 102.141, if the hardware or software for this purpose has been certified or the department’s rules so provide.
(3) Any manual recount shall be open to the public.
(4)
(a) A vote for a candidate or ballot measure shall be counted if there is a clear indication on the ballot that the voter has made a definite choice.

(b) The Department of State shall adopt specific rules for the federal write-in absentee ballot and for each certified voting system prescribing what constitutes a “clear indication on the ballot that the voter has made a definite choice.” The rules shall be consistent, to the extent practicable, and may not:

1. Exclusively provide that the voter must properly mark or designate his or her choice on the ballot; or
2. Contain a catch-all provision that fails to identify specific standards, such as “any other mark or indication clearly indicating that the voter has made a definite choice.”

(c) The rule for the federal write-in absentee ballot must address, at a minimum, the following issues:

1. The appropriate lines or spaces for designating a candidate choice and, for state and local races, the office or ballot measure to be voted, including the proximity of each to the other and the effect of intervening blank lines.
2. The sufficiency of designating a candidate’s first or last name when no other candidate in the race has the same or a similar name.
3. The sufficiency of designating a candidate’s first or last name when an opposing candidate has the same or a similar name, notwithstanding generational suffixes and titles such as “Jr.,” “Sr.,” or “III.” The rule should contemplate the sufficiency of additional first names and first initials, middle names and middle initials, generational suffixes and titles, nicknames, and, in general elections, the name or abbreviation of a political party.
4. Candidate designations containing both a qualified candidate’s name and a political party, including those in which the party designated is the candidate’s party, is not the candidate’s party, has an opposing candidate in the race, or does not have an opposing candidate in the race.
5. Situations where the abbreviation or name of a candidate is the same as the abbreviation or name of a political party to which the candidate does not belong, including those in which the party designated has another candidate in the race or does not have a candidate in the race.
6. The use of marks, symbols, or language, such as arrows, quotation marks, or the word “same” or “ditto,” to indicate that the same political party designation applies to all listed offices or the elector’s approval or disapproval of all listed ballot measures.
7. Situations in which an elector designates the name of a qualified candidate for an incorrect office.
8. Situations in which an elector designates an otherwise correct office name that includes an incorrect district number.

(5) Procedures for a manual recount are as follows:

(a) The county canvassing board shall appoint as many counting teams of at least two electors as is necessary to manually recount the ballots. A counting team must have, when possible, members of at least two political parties. A candidate involved in the race shall not be a member of the counting team.
(b) Each duplicate ballot prepared pursuant to s. 101.5614(5) or s. 102.141(7) shall be compared with the original ballot to ensure the correctness of the duplicate.
(c) If a counting team is unable to determine whether the ballot contains a clear indication that the voter has made a definite choice, the ballot shall be presented to the county canvassing board for a determination.

(d) The Department of State shall adopt detailed rules prescribing additional recount procedures for each certified voting system which shall be uniform to the extent practicable. The rules shall address, at a minimum, the following areas:

1. Security of ballots during the recount process;
2. Time and place of recounts;
3. Public observance of recounts;
4. Objections to ballot determinations;
5. Record of recount proceedings; and
6. Procedures relating to candidate and petitioner representatives.

History:

s. 9, ch. 18405, 1937; CGL 1940; Supp. 337(23-b); s. 7, ch. 22858, 1945; s. 5, ch. 26870, 1951; s. 30, ch. 28156, 1953; s. 24, ch. 57-1; s. 29, ch. 65-380; s. 27, ch. 77-175; s. 48, ch. 79-400; s. 15, ch. 89-348; s. 601, ch. 95-147; s. 1, ch. 99-339; s. 42, ch. 2001-40; s. 21, ch. 2002-17; s. 59, ch. 2005-277; s. 34, ch. 2007-30; s. 15, ch. 2010-167; s. 3, ch. 2011-162; s. 2, ch. 2015-40.

Annotation: March 30, 2016 8:26 pm

Following the 2000 Presidential Election in which there was no statewide standard for determining valid votes in the recount, the Florida Legislature directed the Division of Elections to provide a standard for all canvassing boards to use to determine the validity of a vote. During a manual recount, only votes that are specified in Rule 1S-2.027 or 1S-2.051, Florida Administrative Code, are to be counted. Only overvotes and undervotes, which were not counted by the voting system are manually recounted.

Definition [Department]

The Department of State.

Definition [Voting System]
A method of casting and processing votes that functions wholly or partly by use of electromechanical or electronic apparatus or by use of marksense ballots and includes, but is not limited to, the procedures for casting and processing votes and the programs, operating manuals, supplies, printouts, and other software necessary for the system’s operation.
Definition [Judicial Office]

Includes the office of:

(a) Justice of the Supreme Court.

(b) Judge of a district court of appeal.

(c) Judge of a circuit court.

(d) County court judge.

A judicial office is a nonpartisan office, and a candidate for election or retention thereto is prohibited from campaigning or qualifying for such an office based on party affiliation.

Definition [General Election]

An election held on the first Tuesday after the first Monday in November in the even-numbered years, for the purpose of filling national, state, county, and district offices and for voting on constitutional amendments not otherwise provided for by law.

Definition [Issue]

A proposition that is required by the State Constitution, by law or resolution of the Legislature, or by the charter, ordinance, or resolution of a political subdivision of this state to be submitted to the electors for their approval or rejection at an election, or a proposition for which a petition is circulated in order to have such proposition placed on the ballot at an election.

Definition [Ballot]

As used in the Electronic Voting Systems Act, ballot means the card, tape, or other vehicle upon which the elector’s choices are recorded.

Definition [Elector]

“Elector” is synonymous with the word “voter” or “qualified elector or voter,” except where the word is used to describe presidential electors.

Definition [Election]

Any primary election, special primary election, special election, general election, or presidential preference primary election.

Definition [Overvote]

The elector marks or designates more names than there are persons to be elected to an office or designates more than one answer to a ballot question, and the tabulator records no vote for the office or question.

Definition [Software]

As used in the Electronic Voting Systems Act, software means the programs and routines used to employ and control the capabilities of data processing hardware, including, without limitation, operating systems, compilers, assemblers, utilities, library routines, maintenance routines, applications, and computer networking programs.

Definition [Candidate]

Any person to whom any one or more of the following applies:

(a) Any person who seeks to qualify for nomination or election by means of the petitioning process.
(b) Any person who seeks to qualify for election as a write-in candidate.
(c) Any person who receives contributions or makes expenditures, or gives his or her consent for any other person to receive contributions or make expenditures, with a view to bringing about his or her nomination or election to, or retention in, public office.
(d) Any person who appoints a treasurer and designates a primary depository.
(e) Any person who files qualification papers and subscribes to a candidate’s oath as required by law.
This definition does not include any candidate for a political party executive committee.
Definition [Undervote]

The elector does not properly designate any choice for an office or ballot question, and the tabulator records no vote for the office or question.

Cases

florida Cases

Case Name: Wexler v. Lepore

Citation: 878 So.2d 1276

Year: 2004

Case URL: https://www.ravellaw.com/opinions/a64f9a0c363eae4d70f7c6981b8b7616

Case Summary: Wexler v. Lepore held that the Secretary of State had statutory authority under the Electronic Voting Rights Act to handle how recounts would be conducted. As such, Weller's suit was dismissed.

Case Name: Gore v. Harris

Citation: 773 So.2d 524

Year: 2000

Case URL: https://www.ravellaw.com/opinions/16990a46dcc2ad479b9eeb904e277a45

Case Summary: Gore v. Harris held that because adequate standards for a manual recount could not be developed by the deadline set by the United States Supreme Court, appellants Gore and Lieberman were given no relief.

Out-of-State Cases

Federal Cases

Case Name: Florida Democratic Party v. Hood

Citation: 342 F.Supp.2d 1073

Federal District Court: Northern District of Florida

Year: 2004

Case URL: https://www.ravellaw.com/opinions/f8ed406a86e6040346d1c9bb29736aaa?query=Florida[...]

Case Summary: Florida Democratic Party v. Hood held that the Florida Democratic Party had standing to sue on behalf of voters who would be denied the chance to cast provisional ballots; that HAVA did not require ballots cast in wrong precincts to be counted; that HAVA did require that voters who thought they were registered be given the chance to cast provisional ballots; and that requirements for issuing a preliminary injunction requiring the distribution of provisional ballots were satisfied, after the Party sued Florida, seeking a preliminary injunction preventing election workers from denying provisional ballots to prospective voters who they believed were not registered.

Case Name: Wexler v. Anderson

Citation: 452 F.3d 1226

Federal Circuit Court: 11th Circuit Court

Year: 2006

Case URL: https://www.ravellaw.com/opinions/4bdc86e343b5d929a2cddfb707162b60?query=Wexler%[...]

Case Summary: Wexler v. Anderson held that Florida's manual recount procedures did not violate equal protection because, as to the possibility that should voters in touchscreen counties cast residual ballots, those ballots would receive a different and possibly inferior type of review in a manual recount was not enough of a burden to make strict scrutiny appropriate; and the procedures were justified by Florida's regulatory interests.

Case Name: Wexler v. Lepore (federal)

Citation: 342 F. Supp. 2d 1097

Federal District Court: Southern District of Florida

Year: 2004

Case URL: https://www.ravellaw.com/opinions/d62da39f2d02d9313ee18e623a681e91

Case Summary: Wexler v. Lepore held that Florida's updated standards for manual recounts in counties that used touchscreen or optical scan systems complied with the 5th and 14th Amendments' equal protection requirements because the standards were uniform and non-differential.

Case Name: Bush v. Gore

Citation: 531 U.S. 98

Federal District Court: Eastern District of Virginia

Year: 2000

Case URL: https://www.ravellaw.com/opinions/ffe23a532d148e534fb47425579e2894?query=531%20U[...]

Case Summary: Bush v. Gore held that Florida's recount procedures were inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the instance of a statewide recount under the authority of a single state judicial officer.

Regulations & Guidance

Additional Resources

Further Reading

  • Fla. Jur. 2d Elections s 145, Audits and manual recounts

  • Fla. Jur. 2d Elections s 181, Recounts

  • Fla. Jur. 2d Elections s 182, Recounts-Manual recount

  • Validity, Construction, and Application of State Statutory Limitations Periods Governing Election Contests, 60 A.L.R.6th 481