Election Spotlight: Nearly Twenty Years After Hanging Chads, Problems Persist in Florida

• Publication year: 2020

Election Spotlight: Nearly Twenty Years After Hanging Chads, Problems Persist in Florida

Christopher Wood

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Election Spotlight: Nearly Twenty Years After Hanging Chads, Problems Persist in Florida^*

I. Introduction

The right to vote is as close to sacrosanct as almost any right in our constitutional system.¹ The election-battleground state of Florida has time and time again come under the national spotlight due to its vote counting practices.² Florida fell under immense national scrutiny as the entire nation awaited the resolution of the 2000 presidential election.³ Bush v. Gore⁴ highlighted many of the inherent issues with the Florida system of allowing individual counties free rein to enact their own election procedures. The lack of any central guidance in election procedures has, in large part, persisted.⁵ The latest iteration concerns the second examination of the procedures, or lack thereof, used in validating vote-by-mail and provisional ballots.⁶ The established test to measure the constitutionality of an election law, restricting voting, is to weigh the magnitude of the burden on the voter, against the state's justifications for the restriction.⁷ The United States Court of Appeals for the Eleventh Circuit applied this test while using the established

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framework to consider an emergency stay of a preliminary injunction.⁸ A majority of an Eleventh Circuit panel ultimately held—with a single judge dissenting—that an emergency stay was not warranted, though the Court took the time to highlight several factors that continue to plague the Florida election system.⁹

II. Factual Background

During the 2018 election, the state of Florida had two vote-casting options that involved a need to match a signature to the voter's registration card: vote-by-mail and provisional ballots.¹⁰ Both of these ballots required the receiving counties to compare the signature on the ballots with the signature on the respective voter's registration card.¹¹ The initial comparison was done by the county supervisor, and only if there was an issue with the signatures did it then get reported to the voter and forwarded along to the canvassing board who made the final determination on the eligibility of the ballot.¹²

Florida, however, did not, and does not currently, require each county to enforce this process in the exact same manner, instead allowing each county to set up its own procedures for following the statutorily dictated rules. There is no required training in handwriting or signature analysis for anyone involved in the signature comparison process. Additionally, there is no uniform rule describing when the canvassing board will convene to determine the eligibility of the ballot; instead, the law provides a window starting fifteen days before the election and extending to one day after.¹³

The timeline for curing a mismatched signature is the crux of the issue involved. Vote-by-mail ballots must be delivered to the county supervisor by 7 p.m. on election day. However, an affidavit, and any evidence, to cure a defective signature is due to the county supervisor by 5 p.m. the day before the election. Additionally, the final word of the canvassing board could be given up to one day after the election, presenting the possibility of a situation where ballots are rejected by an

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untrained supervisor, the voters are alerted to the rejection with no time to cure, and then, after the election is finalized, they are told that the canvassing board did not count their votes with no recourse available.¹⁴

That very scenario is what caused the Democratic Executive Committee of Florida (DECF), and Bill Nelson for U.S. Senate, to seek a preliminary injunction requiring that all vote-by-mail and provisional ballots be counted.¹⁵ The United States District Court for the Northern District of Florida agreed that there was potential for, if not actual, voter disenfranchisement, but granted only a partial preliminary injunction—not counting all of the ballots, but instead granting an additional cure period for those not given an opportunity.¹⁶

That order from the district court caused the National Republican Senatorial Committee (NRSC), the Florida Secretary of State, and the Florida Attorney General to appeal and seek an emergency stay with the Eleventh Circuit.¹⁷ The NRSC highlighted that the timeline for curing deficiencies in a vote-by-mail ballot was known before a voter decided to use that method of voting, and that the voter assumed the risk of being unable to cure if the voter waited until the last moment to submit the vote-by-mail ballot.¹⁸ Additionally, the NRSC contended that the need to protect against voter fraud and to promote a smooth electoral process warranted the signature comparison procedures and timeline.¹⁹

The compressed timelines surrounding an election dictate that many of the most impactful decisions come without the benefit of the full litigation process. Instead, this area of law is often interpreted during a motion for a stay or injunction. As such, the factors laid out in Nken v. Holder,²⁰ including a strong showing that a case is likely to succeed on the merits, determine if a motion should be granted or denied.²¹ Ultimately, a majority of the Eleventh Circuit decided that the NRSC did not make a strong enough showing and denied the motion for an emergency stay.²²

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III. Legal Background

When considering an election law in the state of Florida, it is important to consider the state's history of election scrutiny along with the history of the method of voting affected and the applicable test the law will be judged on. For the purposes of illustrating Florida's troubled election history, there is no greater starting point than Bush v. Gore. After that context is established, the history of various forms of absentee voting will be discussed. The last aspect crucial to the legal background is the Anderson-Burdick test, which is used to judge the practice in question.

A. Florida's Election History

The modern scrutiny of Florida's election process begins with the critical role the state played in the 2000 presidential election.²³ George Bush and Al Gore were campaigning to become the forty-third President of the United States, and after election day, the electoral votes of the state of Florida were going to push one candidate or the other over the 270 needed. While the state initially called for Bush, the margin of victory was below the threshold to trigger an automatic statewide machine recount. After this recount, Bush was still ahead but the margin had narrowed further.²⁴ The machine recount also brought into the national discussion some of the problems with paper ballots.

The ballots in Florida brought the term "hanging chad" into the national lexicon, as it became the name for one of the issues with the ballots being recounted; if the hole was punched for either candidate, but the paper inside the hole, or chad, was still attached, or hanging on, it would create problems for the vote counting machines. Also, some ballots did not contain a presidential vote; these "down ballot" votes are an unusual voting practice. Further, other ballots had multiple selections made for single-selection races, resulting in the ballots being disqualified.²⁵

After the machine recount, Gore utilized a Florida election provision that allowed for manual recounts to be requested on a county-by-county basis, requesting manual recounts in four traditionally democrat

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counties. Gore's contention was that a hand recount could account for ballots with some of the problems listed above and provide those voters with an opportunity to have their vote counted. Controversy came to a head when the Florida Secretary of State required all counts to be reported within seven days of the election in order to certify the results. This requirement was statutorily dictated to the Secretary of State and held as mandatory by the Florida courts, with the caveat that the returns could later be amended, and the Secretary was allowed to use discretion on if the amended returns would be used in certification.²⁶

The Secretary's impending certification gave rise to the legal action that ended in the Supreme Court decision. Bush sought to enjoin the partial hand recount while Gore sought for it to continue and be included in the certified results. Ultimately the Supreme Court held that the lack of a standard recount process, allowing a county by county manual recount, violated the Equal Protection Clause²⁷ of the Fourteenth Amendment.²⁸

Volumes have been written and hours have been spent on television and radio discussing the various impacts of the Supreme Court's decision— they will not be rehashed here.²⁹ Instead it is important to note that one of the deciding factors was that Florida did not have the same rules and procedures for every county instead, having a system that allowed each county to set its own rules and procedures.³⁰

After the nationally scrutinized Bush v. Gore decision, there has been another case relating to the specific question of signature matching on vote-by-mail and absentee ballots. That case, Florida Democratic Party v. Detzner,³¹ first addressed the issue of what should be done in the event of a signature mismatch on a vote-by-mail or absentee ballot.³² Prior to that decision, voters that utilized vote-by-mail ballots were afforded no opportunity to cure a signature mismatch. The court highlights another inconsistency in Florida's election practice between immediately notifying and allowing voters that failed to sign their vote-by-mail ballots entirely with the opportunity to cure, contrasted with

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the lack of any opportunity to cure afforded to voters that did sign but had a signature mismatch with their voter card.³³

After the court's ruling, allowing a cure period, the Florida legislature took action to codify the cure procedure. However, this procedure to cure came into...