The Florida recount continues

Voting sign at a Coral Gables precinct. Photo: Evan Garcia/University of Miami
By Robert C. Jones Jr.

Voting sign at a Coral Gables precinct. Photo: Evan Garcia/University of Miami

The Florida recount continues

By Robert C. Jones Jr.
UM Professor of Law Frances R. Hill tells us what we should know.

While there are no infamous “hanging chads” from the 2000 presidential election to deal with, the midterm election recount in Florida for the U.S. Senate, governor, and agriculture commissioner races is still filled with plenty of drama, as overheating tallying machines, lawsuits, and accusations of voter fraud have thrust the state into the national limelight of election turmoil once again.

Frances R. Hill, a professor of law and Dean’s Distinguished Scholar for the Profession at the University of Miami who teaches and writes in the area of election law, answers some of the most pressing questions on the Florida recount:

How did we get to this point? Specifically, why are these recounts being conducted?

Recounts are conducted to ensure that all votes lawfully cast by eligible voters are properly counted. Nothing in Florida law requires a certain margin of victory. Florida law does provide for machine recounts if elections are within a half of one percent. If the margin after a machine recount is not more than a quarter of a percent, there can be a manual recount. At this moment, it appears that the Senate race is heading for a manual recount.

These current recounts bring back memories of the 2000 presidential recount, when it took more than a month for Florida to declare George W. Bush the victor over Vice President Al Gore. How is this recount different?

We will be spared the “hanging chads” that made the 2000 recount a spectacle with elements of farce. Yet, we still have a dispute over ballot design as a possible cause of the undervote in Broward County for U.S. Senator. In Palm Beach County the outdated voting machines overheated and provided inaccurate results. This has required that the recount be completely rerun. In other words, election technology is different but remains inadequate, which is a failure of state government to provide the attention and funding for reliable and secure voting technology. In 2000 a candidate’s brother was governor, while in 2018 the sitting governor is in charge of the election, including his own race for U.S. Senator. (However, on Wednesday Scott recused himself from the Elections Canvassing Commission and will not be involving in cerfifying election results.) Georgia and Kansas presented somewhat different patterns of candidates for governor serving as their state’s chief election official. Litigation by the current governor that would have enabled him to seize the voting machines to stop the recount was rejected by a county judge who quite sensibly urged both sides to ramp down their rhetoric. It may be time for state governments or the federal government to enact legislation dealing with these undesirable situations. No official should be in a position to oversee his or her own election. It remains to be seen whether the U.S. Supreme Court will become involved. Another case like Bush v. Gore cannot be an appealing prospect for anyone, including the Supreme Court. Yet, there is no way to predict what may happen in the next day or two, let alone in a week or two. Perhaps the current experience will provide support for addressing some of the issues that remained unaddressed after the 2000 election.

Why is Florida continually at the center of election controversies?

Florida is a very large state that elects a large Congressional delegation and chooses a large number of electors in the Electoral College for Presidential elections. We are also a closely divided state in terms of political party affiliation. In fact, Florida has not been at the center of many controversies since 2000, but the significance of the vote in a state of this size will always mean that our elections will be closely watched.

There have been a number of lawsuits filed (for example, a lawsuit asking that all mail-in ballots postmarked by Tuesday, November 6, be counted; and the League of Women Voters and a nonprofit watchdog group called Common Cause Florida filed a lawsuit asking that Governor Scott be barred from using “the power of his office in any manner related to Florida’s 2018 Senate race as long as he remains a candidate.”) Could these lawsuits potentially lengthen the recount process?

A judge in Palm Beach County has ruled that the county deadline for submitting votes must be extended due to problems with the voting machines. It is unclear whether the new deadline is feasible. It is understandable but unfortunate that Florida focused so centrally on finishing a recount and did not pay more attention to how it conducted all aspects of its elections, including counting and recounting the votes. Ballots from Floridians living abroad, a category that includes uniformed service members and overseas civilians, are not due until November 16. Demands that votes be counted and the results certified before the ballots of our fellow Americans living and serving abroad should be dismissed and our laws should be clarified, if necessary, to ensure that this does not arise in the future.

There have also been accusations of voter fraud. How would such accusations be investigated, and what effect could they have on the length of time it takes to complete the recount?

So far, the rhetoric of voter fraud has not been accompanied by any evidence of fraud. Governor Scott ordered Florida law enforcement to investigate fraud, but they responded that, at this point, there is nothing to investigate. If there is credible evidence of fraud, including vote suppression or the denial of the right to vote or mishandling ballots or unreliable voting machines, these situations could be and should be investigated by both Florida and federal law enforcement agencies. Credible allegations should be investigated under the supervision of courts with jurisdiction over the issue. Counting the votes correctly is more important to the strength of our democracy and the fabric of our society than is counting votes fast. It is worth noting that California is still counting its votes and that Arizona finished counting its votes only a few days ago.