§ 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.
(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:
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.
(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:
(c) The rule for the federal write-in absentee ballot must address, at a minimum, the following issues:
(5) Procedures for a manual recount are as follows:
(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:
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.
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.
1. Definition for Department
The Department of State. Fla. Stat. § 97.021(7).
2. Definition for Voting System
3. Definition for 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. Fla. Stat. § 105.011(2).
4. Definition for 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. Fla. Stat. § 97.021(16).
5. Definition for 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. Fla. Stat. § 106.011(13).
6. Definition for 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. Fla. Stat. § 101.5603(2).
7. Definition for Elector
“Elector” is synonymous with the word “voter” or “qualified elector or voter,” except where the word is used to describe presidential electors. Fla. Stat. § 97.021(15).
8. Definition for Election
Any primary election, special primary election, special election, general election, or presidential preference primary election. Fla. Stat. § 97.021(12).
9. Definition for 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. Fla. Stat. § 97.021(25).
10. Definition for 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. Fla. Stat. § 101.5603(7).
11. Definition for Candidate
Any person to whom any one or more of the following applies:
12. Definition for 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. Fla. Stat. § 97.021(39).
Case Name: Goldsmith v. McDonald
Citation: 32 So.3d 713
Case Summary: Goldsmith v. McDonald held that it is the responsibility of the absentee voter to ensure that his or her ballot is properly received by the established deadline.
Case Name: Wexler v. Lepore
Citation: 878 So.2d 1276
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
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.
Case Name: Florida Democratic Party v. Hood
Citation: 342 F.Supp.2d 1073
Federal District Court: Northern District of 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
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
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
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
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