election questions - state court authority to second-guess
gillman at USC.EDU
Wed Nov 8 12:02:06 PST 2000
On the issue of state court involvement: The following was posted on
another email discussion list. It suggests that Florida law gives state
judges wide discretion to hear challenges to the "certification of an
election" -- challenges either by candidates or by "taxpayers."
And one more point: assuming that state court judges get into this, would
the Supreme Court's new federalism jurisprudence suggest that the federal
courts should leave this to be resolved by states as an incident of their
From: Paul Fabian Mullen <pfmst3+ at pitt.edu>
To: lawcourts-l at usc.edu
Subject: Buchanan Controversy
For all you election junkies, an election may be challenged under Florida
law. Any voter or taxpayer may file suit, in a county court, and there is a
vague section that seem to include most types of errors. The bottom line
seems to me that any taxpayer could file a suit and a local county judge
could is given wide discretion to fashion a remedy. Thus, a county judge in
Florida hold up the results. The Presidency might be decided in a local
court! The pertinent sections of the Code read:
1) Except as provided in s. 102.171, the certification of election or
nomination of any person to office, or of the result on any question
submitted by referendum, may be contested in the circuit court by any
unsuccessful candidate for such office or nomination thereto or by any
elector qualified to vote in the election related to such candidacy, or by
any taxpayer, respectively.
(2) Such contestant shall file a complaint, together with the fees
prescribed in chapter 28, with the clerk of the circuit court within 10 days
after midnight of the date the last county canvassing board empowered to
canvass the returns certifies the results of the election being contested or
within 5 days after midnight of the date the last county canvassing board
empowered to canvass the returns certifies the results of that particular
election following a protest pursuant to s. 102.166(1), whichever occurs
(3) The complaint shall set forth the grounds on which the contestant
intends to establish his or her right to such office or set aside the result
of the election on a submitted referendum. The grounds for contesting an
election under this section are:
(a) Misconduct, fraud, or corruption on the part of any election official
or any member of the canvassing board sufficient to change or place in doubt
the result of the election.
(b) Ineligibility of the successful candidate for the nomination or office
(c) Receipt of a number of illegal votes or rejection of a number of legal
votes sufficient to change or place in doubt the result of the election.
(d) Proof that any elector, election official, or canvassing board member
was given or offered a bribe or reward in money, property, or any other
thing of value for the purpose of procuring the successful candidate's
nomination or election or determining the result on any question submitted
(e) Any other cause or allegation which, if sustained, would show that a
person other than the successful candidate was the person duly nominated or
elected to the office in question or that the outcome of the election on a
question submitted by referendum was contrary to the result declared by the
canvassing board or election board.
(4) The canvassing board or election board shall be the proper party
defendant, and the successful candidate shall be an indispensable party to
any action brought to contest the election or nomination of a candidate.
(5) A statement of the grounds of contest may not be rejected, nor the
proceedings dismissed, by the court for any want of form if the grounds of
contest provided in the statement are sufficient to clearly inform the
defendant of the particular proceeding or cause for which the nomination or
election is contested.
(6) A copy of the complaint shall be served upon the defendant and any
other person named therein in the same manner as in other civil cases under
the laws of this state. Within 10 days after the complaint has been served,
the defendant must file an answer admitting or denying the allegations on
which the contestant relies or stating that the defendant has no knowledge
or information concerning the allegations, which shall be deemed a denial of
the allegations, and must state any other defenses, in law or fact, on which
the defendant relies. If an answer is not filed within the time prescribed,
the defendant may not be granted a hearing in court to assert any claim or
objection that is required by this subsection to be stated in an answer.
(7) Any candidate, qualified elector, or taxpayer presenting such a contest
to a circuit judge is entitled to an immediate hearing. However, the court
in its discretion may limit the time to be consumed in taking testimony,
with a view therein to the circumstances of the matter and to the proximity
of any succeeding primary or other election.
(8) The circuit judge to whom the contest is presented may fashion such
orders as he or she deems necessary to ensure that each allegation in the
complaint is investigated, examined, or checked, to prevent or correct any
alleged wrong, and to provide any relief appropriate under such
History.--ss. 7, 8, Art. 10, ch. 38, 1845; RS 199; GS 283; RGS 379; CGL 444;
s. 3, ch. 26870, 1951; s. 16, ch. 65-378; s. 28, ch. 77-175; s. 49, ch.
79-400; s. 602, ch. 95-147; s. 3, ch. 99-339.
More information about the Conlawprof