FL statutory provision apparently in conflict w/ Sec'y Harris's
romberjo at SHU.EDU
romberjo at SHU.EDU
Tue Nov 14 15:23:31 PST 2000
I disagree that the sec'y of state's interpretation of the 7-day, 5 p.m.
deadline as mandatory is reasonable. As far as I know, no one has looked
to what appear to be highly relevant portions of 102.166, the section
addressing "Protest of Election Returns," which covers requests for manual
recounts. Section 102.166 (reproduced below) explicitly authorizes a
scenario under which a county's final vote certification, following a
manual recount request, would not be completed until 8 days after the
Under 102.166(4)(b), a candidate or party can request a manual recount from
the county canvassing board, prior to the latter of 1) 72 hours after
midnight of the night of the election, or 2) the time the canvassing board
certifies the results of the office being contested. (I note that this
seems to mean that time has not run out for what I consider to be the
fairest way out of this mess: manual recount in all FL counties.) Given
the Tuesday election and the 72-hour window, a request for a manual recount
can occur as late as 11:59 p.m. on Friday night (even putting aside the
fact that the manual recount request could apparently occur as late as 4:59
p.m., 7 days after the election, if the county certifies its count just
before the presumptive 7-day, 5 p.m. deadline.)
Under 102.166(5), if the initial manual recount indicates an error "which
could affect the outcome of the election," the board has three options: it
can manually recount all the ballots; it can correct a mechanical
tabulation error and rerun the ballots mechanically; or it can request the
Dept. of State to verify the tabulation software (per 102.166(5)(b)).
Let's presume the canvassing board lodges such a written verification
request w/ the Dept. of State seconds after the candidate's manual recount
request. (The canvassing board would presumably also certify a tentative
vote count, w/ notification that a manual recount request has been made and
is being acted upon.)
Under 102.166(10), the Dept. of State is granted the right to take "three
working days" to perform the verification before it "shall respond" to the
County Canvassing Board. Three working days after Friday at 11:59:03 p.m.
is Wednesday -- *after* the 7-day, 5 p.m. deadline that Sec'y Harris claims
to be mandatory has passed. When read in pari materia, the FL statutory
scheme clearly contemplates that resolution of manual recount requests may
require final county vote certification after the 7-day, 5 p.m. deadline.
-- Jon Romberg
102.166. Protest of election returns; procedure
(1) Any candidate for nomination or election, or any elector qualified to
vote in the election related to such candidacy, shall have the right to
protest the returns of the election as being erroneous by filing with the
appropriate canvassing board a sworn, written protest.
(2) Such protest shall be filed with the canvassing board prior to the
time the canvassing board certifies the results for the office being
protested or within 5 days after midnight of the date the election is held,
whichever occurs later.
(3) Before canvassing the returns of the election, the canvassing board
(a) When paper ballots are used, examine the tabulation of the paper
(b) When voting machines are used, examine the counters on the machines of
nonprinter machines or the printer-pac on printer machines. If there is a
discrepancy between the returns and the counters of the machines or the
printer-pac, the counters of such machines or the printer-pac shall be
(c) When electronic or electromechanical equipment is used, the canvassing
board shall examine precinct records and election returns. If there is a
clerical error, such error shall be corrected by the county canvassing
board. If there is a discrepancy which could affect the outcome of an
election, the canvassing board may recount the ballots on the automatic
(4)(a) Any candidate whose name appeared on the ballot, any political
committee that supports or opposes an issue which appeared on the ballot,
or any political party whose candidates' names appeared on the ballot may
file a written request with the county canvassing board for a manual
recount. The written request shall contain a statement of the reason the
manual recount is being requested.
(b) Such request must be filed with the canvassing board prior to the time
the canvassing board certifies the results for the office being protested
or within 72 hours after midnight of the date the election was held,
whichever occurs later.
(c) The county canvassing board may authorize a manual recount. If a
manual recount is authorized, the county canvassing board shall make a
reasonable effort to notify each candidate whose race is being recounted of
the time and place of such recount.
(d) The manual recount must include at least three precincts and at least
1 percent of the total votes cast for such candidate or issue. In the event
there are less than three precincts involved in the election, all precincts
shall be counted. The person who requested the recount shall choose three
precincts to be recounted, and, if other precincts are recounted, the
county canvassing board shall select the additional precincts.
(5) If the manual recount indicates an error in the vote tabulation which
could affect the outcome of the election, the county canvassing board
(a) Correct the error and recount the remaining precincts with the vote
(b) Request the Department of State to verify the tabulation software; or
(c) Manually recount all ballots.
(6) Any manual recount shall be open to the public.
(7) 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
(b) If a counting team is unable to determine a voter's intent in casting
a ballot, the ballot shall be presented to the county canvassing board for
it to determine the voter's intent.
(8) If the county canvassing board determines the need to verify the
tabulation software, the county canvassing board shall request in writing
that the Department of State verify the software.
(9) When the Department of State verifies such software, the department
(a) Compare the software used to tabulate the votes with the software
filed with the Department of State pursuant to s. 101.5607; and
(b) Check the election parameters.
(10) The Department of State shall respond to the county canvassing board
within 3 working days.
Brad Clanton writes:
Fl. St. 102.111, which grants authority to the Elections Canvassing
Commission, provides that "[i]f the county returns are not received by the
Department of State by 5 p.m. of the seventh day following an election, all
missing counties SHALL be ignored, and the results shown by the returns on
file SHALL be certified." (emphasis added). The next section of the
code, 102.112, admittedly confuses things, stating that if returns are not
received by 5 p.m. on the seventh day following an election, "such returns
MAY be ignored and the results on file at that time may be certified by the
department." (emphasis added). Now it's obvious that these statutes are
conflict, but the secretary of state must make a decision about how to
proceed. She believes that returns should not be counted after the
under the current circumstances. You might disagree with that, but it
clear that her interpretation of the law is a reasonable one. There is no
apparent reason (except for Al Gore's thirst for power) to proceed with
these hand recounts, and therefore the returns should be submitted by 5
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