FL-16, The Legal Path To Update The Ballots

Posted on September 30, 2006

This weekend, I wrote “(URGENT) Foley CAN Be Removed From The Ballot” where I cited Florida Statute that could be used by the Florida Republican Party to either succeed in removing the name of the withdrawn nominee or to gain tremendous public awareness of the issue in the event of an unfavorable decision. Ergo, there was little downside.

I would like to carry the argument further as many websites are citing only one statute which states:

If the name of the new nominee is submitted after the certification of results of the preceding primary election, however, the ballots shall not be changed and the former party nominee’s name will appear on the ballot. Any ballots cast for the former party nominee will be counted for the person designated by the political party to replace the former party nominee.

The “importance” of the Statute is when it was written. The Statute makes sense in the paper ballot days when it took time to replace paper ballots. However, in 2006 the majority of ballots cast in Florida’s 16th Congressional District will be on touch screen voting machines.
I would argue that an aggressive attorney could argue that the Statute in question only applies to those areas that have paper ballots and that the Florida Legislature has not rendered an opinion on touch screen voting machines. I would base that argument on part of the opinion from the Florida Supreme Court in “PALM BEACH COUNTY CANVASSING BOARD, Petitioner, vs. KATHERINE HARRIS, etc.,:”

Twenty-five years ago, this Court commented that the will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle in election cases:

[T]he real parties in interest here, not in the legal sense but in realistic terms, are the voters. They are possessed of the ultimate interest and it is they whom we must give primary consideration. The contestants have direct interests certainly, but the office they seek is one of high public service and of upmost importance to the people, thus subordinating their interest to that of the people. Ours is a government of, by and for the people. Our federal and state constitutions guarantee the right of the people to take an active part in the process of that
government, which for most of our citizens means participation via the election process. The right to vote is the right to participate; it is also the right to speak, but more importantly the right to be heard. We must tread carefully on that right or we risk the unnecessary and unjustified muting of the public voice. By refusing to recognize an otherwise valid exercise of the right of a
citizen to vote for the sake of sacred, unyielding adherence to statutory scripture, we would in effect nullify that right.

I would argue that the Statute is moot on “electronic ballots.” There is no harm to the respective Election Supervisors if they change a single line of code to reflect the correct nominee. There is no harm to either political party if the correct nominee is listed. Further, I would argue that it is more likely that the Democrat nominee would be harmed if the “incorrect Republican” is named as people may vote for him that would otherwise not vote for the correct nominee.

The Florida Supreme Court is on record that the interest of the voters takes precedent over the interests of any candidate. Applying a Statute written for “paper ballots” to “electronic voting” is clearly a “hyper-technical reliance upon statutory provisions.”
UPDATE:A comment from one of our readers that is an attorney:

If the “Ballot” for a touch screen machine does not exist until it is programmed, then there is no “ballot” in existence as of this moment, hence there is no “ballot” to “change”.

The argument should be that if events have changed since the certification but prior to the creation of “ballots”, aren’t the voter’s
interests better served by providing accurate information on the ballots
rather than obsolete information

I think this statute can be read as a “fail safe” effort to preserve voter intent if ballot have been printed and distrubuted prior to a candidate change…the old ballots will to abscribed to the party nominees and will not be rendered invalid, and new ballots need not be distributed

Hmm, I am wondering if the few paper ballots that need to be printed have even been printed? The Statute clearly does not cover what to do when the ballots have not been printed. Regardless, I would love to see the Democrats argue against changing a single line of code on a touch screen voting machine.

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4 Responses to “FL-16, The Legal Path To Update The Ballots”

Jeff Molby on September 30th, 2006 11:51 pm

Personally, I agree that the name should be changed if it’s reasonably possible to do so. It should be all or nothing, though. I don’t think it would be acceptable to have the names vary by precinct.

But, just to play devil’s advocate for a minute… If a judge upheld your interpretation of the statute, wouldn’t that constitute “legislating from the bench”?
gfactor on October 1st, 2006 9:22 am

What a creative statutory interepretation. Nice way to re-write the law.
jpm100 on October 1st, 2006 10:31 am

I have to disagree with the attempt to reinterpret the election laws. Reinterpretation of election laws is what Gore tried to swing in 2000. Although this time it would serve to better reflect the will of the people, you can’t have it both ways.

This one is for the State legislature to redo. You could argue whether or not its right or wrong to make changes for this election at this late date. But the argument is moot since the legislature probably would take too long anyway.
kerwin_brown on October 1st, 2006 7:26 pm

The Democrats knew the game they were playing when they leaked this information at this late date. They were well aware the name could not be changed and they figured that would hurt the Republican party as people would refuse to vote for a child molester even if it was actually not Foley they were voting for. That is how the game is played.