Florida/Georgia Personal Injury & Workers Compensation

...5 Under Florida law, a manual recount may be requested by any candidate whose name appeared on the ballot, a political committee that supports or opposes an issue that appeared on the ballot, or a political party whose candidates' names appeared on the ballot. See Fla. Stat. § 102.166 (4)(a). Such a request must be filed with the canvassing board within 72 hours after midnight of the date the election was held, or before the canvassing board has certified the challenged results, whichever is later. See id. § 102.166(4)(b). The canvassing board may, but is not required to, grant the request. See id. § 102.166(4)(c); Broward County Canvassing Bd....

...t would, of course, be made separately by each county's canvassing board. 6 Once authorized by a county canvassing board, a manual recount must include "at least three precincts and at least 1 percent of the total votes cast for such candidate." Id. § 102.166(4)(d)....

...election, the county canvassing board shall: (a) Correct the error and recount the remaining precincts with the vote tabulation system; (b) Request the Department of State to verify the tabulation software; or (c) Manually recount all ballots." Id. § 102.166(5). 7 Florida law specifies the procedures for a manual recount. Section 102.166(7) of the Florida Statutes provides that: 8 (a) The county canvassing board shall appoint as many counting teams of at least two electors as is necessary to manually recount the ballots....

...of votes and political speech. 12 Plaintiffs' prayer for relief in their Complaint included the following: 13 (a) Declaring that Defendants may not subject any vote totals to manual recounts; 14 (b) In the alternative, declaring that Florida Statute § 102.166(4) is unconstitutional to the extent it does not limit the discretion of Defendants to conduct manual recounts in this case; 15 (c) Declaring that Defendants should certify and release forthwith all vote totals that have been the subject o...

...40 We therefore conclude that abstention is not appropriate. V. 41 This is an appeal from the denial of a preliminary injunction. Plaintiffs state two main claims. First, Plaintiffs argue that Florida's manual recount scheme, and particularly Fla. Stat. § 102.166 (7), is unconstitutional because it contains no standards for when a ballot not read by the machine may be counted....

...and partisan decision-making, exacerbates the potential for unequal treatment of ballots, and thus warrants a federal court's intervention. 42 Second, Plaintiffs assert that they are denied due process and equal protection because, under Fla. Stat. § 102.166 (4), ballots in one county may be manually recounted while ballots in another county are not....

...§102.141 . The canvassing board's discretion is not standardless, but rather is guided by a statutory purpose of determining the intention of voters and correcting "an error in the vote tabulation which could affect the outcome of the election." Id. §102.166(5)....

...76 Especially with respect to the Plaintiffs' concern that political candidates can select particular counties, but also relevant to the Plaintiffs' concern about the discretion of canvassing boards, any candidate has an equal right and an equal opportunity to request manual recounts in any county. See Fla. Stat. §102.166 (4)(a)....

...6 Other safeguards relevant to both of the Plaintiffs' concerns include: the fact that both the request and decision must be guided by the statutory standards of determining voters' intent and correcting error which could affect the outcome, see id. §102.166(5), (7)(b); the fact that the decision is made, not by an ad hoc board, but by an existing board composed of statutorily designated officials, including a county judge, who are not active participants in the candidacy of any candidate, see id. §102.141; the fact that canvassing board meetings and any manual recounts must be open to the public, see id. §§ 102.166(6), 286.0105(1); and the fact that a canvassing board's decision is subject to judicial review....

...framework. As provided by the plain language of the statute, the manual recount provisions are designed to remedy errors in the vote tabulation "which could affect the outcome of the election" and to arrive at the true "voters' intent." Fla. Stat. §§ 102.166 (5), (7)(b)....

...d. In fact, the manual recount statute mandates procedures to ensure fairness and accuracy in the conduct of any manual recount. Any manual recount must include at least one percent of the total votes cast and at least three precincts. See Fla.Stat. §102.166(4)(d). A manual recount must be open to the public, and counting teams must have at least two members who are, when possible, members of at least two political parties. See id. § 102.166(6), (7)(a). Determination of the voter's intent is the statutory standard. See id. § 102.166(7)(b)....

...See Beckstrom v. Volusia County Canvassing Bd., 707 So. 2d 720 (Fla. 1998); Boardman v. Esteva, 323 So.2d 259 (Fla. 1975). State courts have authority to review election challenges, whether brought by a candidate or party as a protest under Fla. Stat. § 102.166 , or brought by a candidate, qualified voter, or taxpayer as a contest under Fla....

...ecount statute. Florida's statutory election scheme envisions hand recounts to be an integral part of the process, providing a check when there are "error[s] in the vote tabulation which could affect the outcome of the election." See Fla. Stat. Ann. § 102.166 (5)....

...We have done our best so that they can do their best. NOTES: 1 See Moore v. Ogilvie, 394 U.S. 814, 818-19 , 80 S.Ct. 1493 , 1496 (1969) (discussing the applicability of the Fourteenth Amendment to the nominating process for presidential candidates). 2 See Fl. Stat. Ann. § 102.166 (West 1989)....

...nded votes that would not be detected by machine, and it has put in the record numerous affidavits supporting that view. The Florida Supreme Court seems to have embraced the theory as well by interpreting "error in the vote tabulation" in Fla. Stat. § 102.166 (5) to include a discrepancy between a machine count and a sample manual recount in a punch card county....

...That is a good answer. 136 In order to apply the principles of these decisions to the facts of the cases before us, I turn now to a closer examination of the selection of the 3 counties in which a manual recount was requested. 7 Acting pursuant to Fla. Stat. § 102.166 (4), the Democratic Party filed written requests for manual recounts in Broward, Palm Beach, and Miami-Dade Counties, and no other punch card counties....

...otes cast in the county has been conducted, the county canvassing board can manually recount all the ballots only "[i]f the manual recount [sample] indicates an error in the vote tabulation which could affect the outcome of the election." Fla. Stat. § 102.166 (5). Of course, the larger the number of votes in a county the greater the likelihood that a complete manual recount in that county alone will affect the election, and under § 102.166(5) that appears to be the measuring rod for undertaking a complete manual recount....

...unt in many of the punch card counties, regardless of which candidate the voters in that county favored. 10 152 It may be that the Florida Democratic Party would have chosen the 3 punch card counties it did even without the requirement in Fla. Stat. § 102.166 (5) that the sample recount conducted in each county show that the outcome of the election could be changed by continuing the recount in that county....

...461, 481 , 73 S.Ct. 809, 819 (1953) (white primary case) ("[A]ny part of the machinery for choosing officials becomes subject to the Constitution's restraints.") (citations and quotations omitted). The manual recount provision contained in Fla. Stat. § 102.166 (4), and the selectivity it encourages or permits political parties to exercise in bringing about recounts, is an integral part of the election process in Florida, as we have seen in recent days, and the Supreme Court has held that "[a]ll...

...of abridgement of the right to vote." Moore v. Ogilvie, 394 U.S. 814, 818 , 89 S.Ct. 1493 , 1495 - 96 (1969). 154 The Florida manual recount statute gives government officials some discretion over whether to conduct a manual recount, see Fla. Stat. § 102.166 (4)(c) ("The county canvassing board may authorize a manual recount"), and government officials are intimately involved in the actual recount procedure itself....

...14 165 Getting closer to the merits issue, the defendants also argue that Florida law permits any political party with a candidate on the ballot, or any candidate whose name appears on the ballot, to file a written request with the county canvassing board for a manual recount. See Fla. Stat. § 102.166 (4)(a)....

...ed a manual recount in any of Florida's counties, the statute permits full manual recounts in only those counties in which a sample manual recount indicates "an error in the vote tabulation which could affect the outcome of the election." Fla. Stat. § 102.166 (5). Some of the punch card counties are so sparsely populated, so vote poor, that even if a manual recount had been requested and a sample recount conducted as provided in Fla. Stat. § 102.166 (4)(d), the result of that sample recount would not have indicated that a full manual recount in the county could affect the outcome of the election....

...The constitutional rights involved are those of the voters in the other punch card counties. It is their votes and their constitutional rights at stake. The voters whose constitutional rights are being violated are not permitted to request a manual recount. See Fla. Stat. § 102.166 (4)(a)....

...not others, a fortnight later filed a brief in this Court telling us there is nothing to worry about after all. According to Attorney General Butterworth's latest position on the subject, manual recounts can be requested or granted under Fla. Stat. 102.166(4)(a) - (c) in as selective or discriminatory a way as the human mind can imagine without running afoul of the Constitution....

...date must meet in order to institute an election contest. A request filed by a political party or candidate before the results are certified merely has to set out grounds for a manual recount, and the county canvassing board can grant it. Fla. Stat. § 102.166 (4)....

...Suppose further that in each of the 17 punch card counties that voted for Bush over Gore a sample manual recount showed that conducting a full manual recount would result in net gains for Bush of 25 to 100 votes in each of those 17 counties for a combined total net gain of 900 votes for Bush. As Fla. Stat. § 102.166 (5) is written, it appears that complete manual recounts could not occur in those 17 less-populated counties, because the projected change in none of them, standing alone, would be enough to alter the statewide result, even though the comb...

...11 The hypothetical statute is not far removed from the statute that Florida does have. As I have previously pointed out, the statute appears to permit a full manual recount only if the sample recount indicates that a full recount in that county could affect the election result. Fla. Stat. § 102.166 (5) (the county canvassing board can manually recount all the ballots only "[i]f the manual recount [sample] indicates an error in the vote tabulation which could affect the outcome of the election")....

...ter does speak of the different treatment being a result of "differing behavior of official canvassing boards," but it was the Florida Democratic Party that chose which county canvassing boards could undertake a manual recount pursuant to Fla. Stat. § 102.166 (4)....

...least one percent of the ballots cast. Several of the Boards determined that the manual recounts showed "an error in the vote tabulation which could affect the outcome of the election," and the Boards voted to conduct countywide manual recounts. See § 102.166(5), Fla....

...ourt vacated this Court's judgment and remanded for proceedings consistent with its opinion. [6] II. ISSUES The questions before this Court include the following: Under what circumstances may a Board authorize a countywide manual recount pursuant to section 102.166(5); and under what circumstances should the Secretary and Commission accept such recounts when the returns are certified and submitted by the Board after the seven-day deadline set forth in sections 102.111 and 102.112? [7] III....

...Florida courts, however, will not defer to an agency's opinion that is contrary to law. See Donato, 767 So.2d at 1153; Nikolits v. Nicosia, 682 So.2d 663, 666 (Fla. 4th DCA 1996). We conclude that the Division's advisory opinion regarding vote tabulation is contrary to law because it contravenes the plain meaning of section 102.166(5). Pursuant to section 102.166(4)(a), a candidate who appears on a ballot, a political committee that supports or opposes an issue that appears on a ballot, or a political party whose candidate's name appeared on the ballot may file a written request with the Count...

...he election," the county canvassing board "shall": (a) Correct the error and recount the remaining precincts with the vote tabulation system; (b) Request the Department of State to verify the tabulation software; or (c) Manually recount all ballots. § 102.166(5)(a)-(c), Fla. Stat. (2000) (emphasis added). The issue in dispute here is the meaning of the phrase "error in the vote tabulation" found in section 102.166(5). The Division opines that an "error in the vote tabulation" only means a counting error resulting from incorrect election parameters or an error in the vote tabulating software. We disagree. The plain language of section 102.166(5) refers to an error in the vote tabulation rather than the vote tabulation system....

...On its face, the statute does not include any words of limitation; rather, it provides a remedy for any type of mistake made in tabulating ballots. The Legislature has utilized the phrase "vote tabulation system" and "automatic tabulating equipment" in section 102.166 when it intended to refer to the voting system rather than the vote count. Equating "vote tabulation" with "vote tabulation system" obliterates the distinction created in section 102.166 by the Legislature....

...41, Fla. Stat. (2000). Therefore, an "error in the vote tabulation" includes a discrepancy between the number of votes determined by a vote tabulation system and the number of votes determined by a manual count of a sampling of precincts pursuant to section 102.166(4)....

...Statutory Ambiguity In regard to this case, the provisions of the Code are ambiguous in the following areas. First, the deadline for submitting county returns to the Department under sections 102.111 and 102.112 is in conflict with the time frame for conducting manual recounts under section 102.166(4). [13] Second, the language in sections 102.111 and 102.112, authorizing the Secretary to ignore amended or late returns submitted by the Boards, is contradictory. 1. The Recount Conflict Section 102.166(1) states that "[a]ny 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...

...sworn, written protest." The time period for filing a protest is "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." § 102.166(2), Fla. Stat. (2000). Section 102.166(4)(a), the operative subsection in this case, further provides that, in addition to any protest, "any candidate whose name 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" accompanied by the "reason that the manual recount is being requested." Section *1285 102.166(4)(b) further provides that the written request may be made prior to the time the Board certifies the returns or within seventy-two hours after the election, whichever occurs later: [14] (4)(a) Any candidate whose name appeared on the ballot,...

...uested. (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. § 102.166, Fla....

...A candidate involved in the race shall not be a member of the counting team. (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. § 102.166, Fla....

...e fullest possible effect. See T.R. v. State, 677 So.2d 270 (Fla.1996). In the present case, whereas sections 102.111 and 102.112 state that County Boards must submit vote returns to the Department by 5 p.m. of the seventh day following an election, section 102.166(4) provides that a manual recount can be requested at any point prior to certification....

...Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla. 1992), "all parts of a statute must be read together in order to achieve a consistent *1288 whole. Where possible, courts must give effect to all statutory provisions and construe related statutory provisions in harmony with another." Section 102.166 states that a candidate, political committee, or political party may request a manual recount any time before the county canvassing board certifies the results to the Department and, if the initial manual recount indicates a significa...

...deadline were to be ignored. In a statewide or federal election other than a presidential election we can foresee no reason why the Department would refuse to accept amended returns if a county was proceeding in good faith with a manual recount under section 102.166....

...oceedings not inconsistent with this opinion. Bush v. Palm Beach County Canvassing Bd., 69 U.S.L.W. 4020, 4021 (2000) (citation omitted). [7] None of the parties have raised as an issue on appeal the constitutionality of Florida's election laws. [8] § 102.166(4)(b), Fla. Stat. (2000). [9] § 102.166(4)(c), Fla. Stat. (2000). [10] See Broward County Canvassing Bd. v. Hogan, 607 So.2d 508, 510 (Fla. 4th DCA 1992). [11] See § 102.166(4)(d), Fla....

...While discretionary in its application, the provision is not wholly standardless. Rather, the central purpose of the scheme, as evidenced by its plain language, is to remedy "an error in the vote tabulation which could affect the outcome of the election." Fla. Stat. § 102.166(5)....

...us anomalies in the initial automated count and recount. The state manual recount provision therefore serves important governmental interests. [15] The statute does not set forth any criteria for determining when a manual recount is appropriate. See § 102.166(4)(c), Fla. Stat. (2000) ("The county canvassing board may authorize a manual recount."). [16] § 102.166(4)(d), Fla....

...§ 102.141(6)(a). Second, if the results of the machine recount indicate a margin of victory of one-quarter of a percent or less, officials conduct a manual recount of all “overvotes” and “undervotes” (collectively, “residual votes”). Fla. Stat. § 102.166....

...records no vote for the office or question.” Fla. Stat. § 97.021(37). During the manual recount phase, auditors review residual votes to determine if there is a “clear indication on the ballot that the voter has made a definite choice.” Fla. Stat. § 102.166(5)(a). To that end, the Department of State is charged with: (1) adopting “specific rules for each certified voting system prescribing what constitutes a ‘clear indication on the ballot that the voter has made a definite choice,’” id. at § 102.166(5)(b), and (2) issuing “detailed rules prescribing additional recount procedures for each certified voting system which shall be uniform to the extent practicable.” Id. at § 102.166(6)(d). The manual recount is a fairly straightforward process in optical scan counties; auditors look for stray marks that may have misled the machines or other 4 indicia that a voter has made a definite choice....

...recount of undervotes and overvotes cast on a touchscreen system shall be conducted since these machines do not allow a voter to cast an overvote and since a review of undervotes cannot result in a determination of voter intent as required by Section 102.166(5), F.S....

...Specifically, the state complaint asserted that Florida should not have approved and certified the Sequoia AVC Edge Voting System Release 3.1 for use in Palm Beach County because, as a paperless voting system, it does not allow for the manual recounts provided for by §§ 102.141 and 102.166 of the Florida statutes. The state circuit court dismissed the action on the grounds that Wexler lacked standing to pursue the claims....

...n by this Court. We have jurisdiction. Art. V, § 3(b)(5), Fla. Const. This case arises out of the November 5, 1996, Volusia County election in which appellant Gus Beckstrom was an unsuccessful candidate for sheriff. On November 8, 1996, pursuant to section 102.166(11), Florida Statutes (1995), [1] appellant filed in the circuit *722 court a protest of the election returns....

...We do disapprove from the final judgment the statement: "I do not have jurisdiction to set aside this election." The trial court clearly had jurisdiction to consider and decide the issue presented by appellant's complaint in this election contest pursuant to sections 102.166(11) and 102.168, Florida Statutes (1995)....

...Thus, the correct statement is that the trial court found no factual basis for requiring that the election be set aside. Accordingly, we affirm the trial court's decision. It is so ordered. KOGAN, C.J., OVERTON, SHAW, HARDING and ANSTEAD, JJ., and GRIMES, Senior Justice, concur. NOTES [1] Section 102.166(11), Florida Statutes (1995), provides in relevant part: 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...

...Section 102.168(2) sets forth the procedures that must be followed in a contest proceeding, providing that the contestant file a complaint in the circuit court within ten days after certification of the election returns or five days after certification following a protest pursuant to section 102.166(1), Florida Statutes (2000), whichever occurs later....

...Relief that may be granted is varied and can be extensive. No appellate relationship exists between a "protest" and a "contest"; a protest is not a prerequisite for a contest. Cf. Flack v. Carter, 392 So.2d 37 (Fla. 1st DCA 1980) (holding that an election protest under section 102.166 was not a condition precedent to an election contest under section 102.168)....

...Section 102.168(2) sets forth the procedures that must be followed in a contest proceeding, providing that the contestant file a complaint in the circuit court within *1253 ten days after certification of the election returns or five days after certification following a protest pursuant to section 102.166(1), whichever occurs later....

...Esteva, 323 So.2d 259, 263 (Fla.1975) (emphasis added). For example, the Legislature has mandated that no vote shall be ignored "if there is a clear indication of the intent of the voter" on the ballot, unless it is "impossible to determine the elector's choice." § 101.5614(5)-(6) Fla. Stat. (2000). Section 102.166(7), Florida Statutes (2000), also provides that the focus of any manual examination of a ballot shall be to determine the voter's intent....

...id or void if there is a clear indication of the intent of the voter as determined by the canvassing board." Section 101.5614(6) provides, conversely, that any vote in which the board cannot discern the intent of the voter must be discarded. Lastly, section 102.166(7)(b) provides that, "[i]f 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." This legislative emphasis on...

...*1258 The refusal to review approximately 9,000 additional Miami-Dade Ballots, which the counting machine registered as non-votes and which have never been manually reviewed. On November 9, 2000, the Miami-Dade County Democratic Party made a timely request under section 102.166 for a manual recount....

...ppellants have failed to make a threshold showing that "legal votes" were rejected. Although the protest and contest proceedings are separate statutory provisions, when a manual count of ballots has been conducted by the Canvassing Board pursuant to section 102.166, the circuit court in a contest proceeding does not have the obligation de novo to simply repeat an otherwise-proper manual count of the ballots....

...Because the appellants have failed to introduce any evidence to refute the Canvassing Board's determination that the 3300 ballots did not constitute "legal votes," we affirm the trial court's holding as to this issue. This reflects the proper interaction of section 102.166 governing protests and manual recounts and section 102.168 governing election contests....

...HARDING, J., dissents with an opinion, in which SHAW, J., concurs. WELLS, C.J., dissenting. I join Justice Harding's dissenting opinion except as to his conclusions with regard to error by Judge Sauls and his conclusions as to the separateness of sections 102.166 and 102.168, Florida Statutes *1263 (2000)....

...Section 102.168, Florida Statutes, in its present form is a new statute adopted by the Legislature in 1999. I conclude that the present statutory scheme contemplates that protests of returns [24] and requests for manual recounts [25] are first to be presented to the county canvassing boards. See § 102.166, Fla....

...This naturally follows from the fact that, even with the adoption of the 1999 amendments to section 102.168, the only procedures for manual recounts are in the protest statute. Once a protest has been filed, a county canvassing board then has the discretion, in accordance with the procedures set forth in section 102.166(4), Florida Statutes, whether to order a sample limited manual recount. See § 102.166(4)(c), Fla. Stat. (2000). Once the sample recount is complete and the county canvassing board concludes that there was an error in the vote tabulation that could affect the outcome of the election, section 102.166(5) instructs what must then be done. One option is to manually recount all ballots. See § 102.166(5)(c), Fla....

...If there is a protest, a party authorized by the statute to file a contest must file a complaint "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)." § 102.168(2), Fla....

...In Hogan, the Fourth District Court of Appeal reversed the trial court's order granting a manual recount, in contravention of the county canvassing board's decision noting that: Although section 102.168 grants the right of contest, it does not change the discretionary aspect of the review procedures outlined in section 102.166....

...ted. Following this logic to its conclusion would require a circuit court to order partial manual recounts upon the mere filing of a contest. This proposition plainly has no basis in law. As I have stated, I conclude in the case at bar that sections 102.166 and 106.168 must be read in pari materia. My analysis in this regard is bolstered in situations, as here, where there was an initial protest filed in a county pursuant to section 102.166 and a subsequent contest of that same county's return pursuant to section 102.168. It appears logical to me that a circuit judge in a section 102.168 contest should review a county canvassing board's determinations in a section 102.166 protest under an abuse-of-discretion standard. I see no other reason why the county canvassing board would be a party defendant if the circuit court is not intended to evaluate the canvassing board's decisions with respect to manual recount decisions made in a section 102.166 protest. Finally, it is plain to me that it is only in section 102.166 that there are any procedures for manual recounts which address the logistics of a recount, including who is to conduct the count, that it is to take place in public, and what is to be recounted....

...ould not make the November 26, 2000, deadline set by this Court in Harris and that it did not want to jeopardize disenfranchising a segment of its voters. The law does not require futile acts. See Haimovitz v. Robb, 130 Fla. 844, 178 So. 827 (1937). Section 102.166(5)(c) requires that, if there is a manual recount, all of the ballots have to be recounted....

..."Plenary" is defined as "full, entire, complete, absolute, perfect, [and] unqualified." Black's Law Dictionary 1154 (6th ed.1990). The Legislature has given to the county canvassing boards-and only these boards— the authority to ascertain the intent of the voter. See § 102.166(7)(b), Fla....

...been attempting to resolve the issues of this election with an election code which any objective, frank analysis must conclude *1270 never contemplated this circumstance. Only to state a few of the incongruities, the time limits of sections 102.112, 102.166, and 102.168 and 3 U.S.C....

...e judge concluded that the Miami-Dade County Canvassing Board did not abuse its discretion in any of its decisions in the review and recounting process. While abuse of discretion is the proper standard for assessing a canvassing board's actions in a section 102.166 protest proceeding, it is not applicable to this section 102.168 contest proceeding....

...See id., § 1, at 3546. The county canvassing boards have been granted *1271 discretion to authorize a manual recount when requested by a candidate, political party, or political committee who seeks to protest the returns of an election as being erroneous. See § 102.166(4)(c), Fla....

...raises a statewide issue that should be pursued, if at all, only in a statewide contest. " (Emphasis supplied.) Finally the Amended Answer Brief of the Secretary of State asserted that [p]etitioner has confused a pre-certification election protest (section 102.166) with a post-certification contest (section 102.168)....

...rns 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 later....

...ique historical circumstance arising from the presidential election of 2000. We commend those dedicated public servants for attempting to make this election process truly reflect the vote of all Floridians. [23] See discussion supra note 6. [24] See § 102.166(1), Fla. Stat. (2000). [25] See § 102.166(4)(b), Fla....

...e pursuant to the state of the law as it existed on election day. See Bush, 69 U.S.L.W. at 4021, 121 S.Ct. at 474. There is no legislative suggestion that the Florida Legislature did not want to take advantage of this safe harbor provision. [31] See § 102.166(6), Fla....

...[2] The recount resulted in a substantially reduced figure for the overall difference between the two candidates. In light of the closeness of the election, the Florida Democratic Executive Committee on Thursday, November 9, requested that manual recounts be conducted in Broward, Palm Beach, and Volusia Counties pursuant to section 102.166, Florida Statutes (2000). [3] Pursuant to section 102.166(4)(d), the county canvassing boards of these counties conducted a sample manual recount of at least one percent of the ballots cast....

...Based on these recounts, several of the county canvassing boards determined that the manual recounts conducted indicated "an error in the vote tabulation which could affect the outcome of the election." Based on this determination, several canvassing boards voted to conduct countywide manual recounts pursuant to section 102.166(5)(c)....

...This fundamental principle, and our traditional rules of statutory construction, guide our decision today. III. ISSUES The questions before this Court include the following: Under what circumstances may a Board authorize a countywide manual recount pursuant to section 102.166(5); must the Secretary and Commission accept such recounts when the returns are certified and submitted by the Board after the seven day deadline set forth in sections 102.111 and 102.112? [10] IV....

...nd enforcing. [11] Florida courts, however, will not defer to an agency's opinion that is contrary to law. [12] We conclude that the Division's advisory opinion regarding vote tabulation is contrary to law because it contravenes the plain meaning of section 102.166(5). Pursuant to section 102.166(4)(a), a candidate who appears on a ballot, a political committee that supports or opposes an issue that appears on a ballot, or a political party whose candidate's name appeared on the ballot may file a written request with the County Board for a manual recount....

...he election," the county canvassing board "shall": (a) Correct the error and recount the remaining precincts with the vote tabulation system; (b) Request the Department of State to verify the tabulation software; or (c) Manually recount all ballots. § 102.166(5)(a)-(c), Fla. Stat. (2000) (emphasis added). The issue in dispute here is the meaning of the phrase "error in the vote tabulation" found in section 102.166(5). The Division opines that an "error in the vote tabulation" only means a counting error resulting from incorrect election parameters or an error in the vote tabulating software. We disagree. The plain language of section 102.166(5) refers to an error in the vote tabulation rather than the vote tabulation system....

...On its face, the statute does not include any words of limitation; rather, it provides a remedy for any type of mistake made in tabulating ballots. The Legislature has utilized the phrase "vote tabulation system" and "automatic tabulating equipment" in section 102.166 when it intended to refer to the voting system rather than the vote count. Equating "vote tabulation" with "vote tabulation system" obliterates the distinction created in section 102.166 by the Legislature....

...(2000) (emphasis added). Therefore, an "error in the vote tabulation" includes a discrepancy between the number of votes determined by a voter tabulation system and the number of voters determined by a manual count of a sampling of precincts pursuant to section 102.166(4)....

...n action in circuit court within certain time limits [34] and setting forth specific grounds. [35] VI. STATUTORY AMBIGUITY The provisions of the Code are ambiguous in two significant areas. First, the time frame for conducting a manual recount under section 102.166(4) is in conflict with the time frame for submitting county returns under sections 102.111 and 102.112. Second, the mandatory language in section 102.111 conflicts with the permissive language in 102.112. A. The Recount Conflict Section 102.166(1) states that "[a]ny 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...

...sworn, written protest." The time period for filing a protest is "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." Section 102.166(4)(a), the operative subsection in this case, further provides that, in addition to any protest, "any candidate whose name appeared on the ballot ... or any political party whose candidates' names appeared on the ballot *1232 may file a written request with the county canvassing board for a manual recount" accompanied by the "reason that the manual recount is being requested." Section 102.166(4)(b) further provides that the written request may be made prior to the time the Board certifies the returns or within seventy-two hours after the election, whichever occurs later: [36] (4)(a) Any candidate whose name appeared on the...

...uested. (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. § 102.166, Fla....

...A candidate involved in the race shall not be a member of the counting team. (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. § 102.166, Fla....

...tatute must be read together in order to achieve a consistent whole. Where possible, courts must give effect to all statutory provisions and construe related statutory provisions in harmony with another." In this regard we consider the provisions of section 102.166 and 102.168. Section 102.166 states that a candidate, political committee, or political party may request a manual recount any time before the County Canvassing Board certifies the results to the Department and, if the initial manual recount indicates a significa...

...If a Board fails to meet the deadline, the Secretary is not required to ignore the county's returns but rather is permitted to ignore the returns within the parameters of this statutory scheme. To determine the circumstances under which the Secretary may lawfully ignore returns filed pursuant to the provisions of section 102.166 for a manual recount, it is necessary to examine the interplay between our statutory and constitutional law at both the state and federal levels....

...But to allow the Secretary to summarily disenfranchise innocent electors in an effort to punish dilatory Board members, as she proposes in the present case, misses the constitutional mark. The constitution eschews punishment by proxy. As explained above, the Florida Election Code must be construed as a whole. Section 102.166 governs manual recounts and appears to conflict with sections 102.111 and 102.112, which set a seven day deadline by which County Boards must submit their returns....

...ction laws. [11] See Donato v. American Tel. & Tel.Co., 767 So.2d 1146, 1153 (Fla.2000); Smith v. Crawford, 645 So.2d 513, 521 (Fla. 1st DCA 1994). [12] See Donato, 767 So.2d at 1153; Nikolits v. Nicosia, 682 So.2d 663, 666 (Fla. 4th DCA 1996). [13] § 102.166(4)(b), Fla. Stat. (2000). [14] § 102.166(4)(c), Fla. Stat. (2000). [15] See Broward County Canvassing Bd. v. Hogan, 607 So.2d 508, 510 (Fla. 4th DCA 1992). [16] See § 102.166(4)(d), Fla....

...the commission shall so certify and shall not include the returns in its determination, canvass, and declaration."). [32] § 102.131, Fla. Stat. (2000) ("The Elections Canvassing Commission in determining the true vote shall not have authority to look beyond the county returns."). [33] § 102.166, Fla....

...While discretionary in its application, the provision is not wholly standardless. Rather, the central purpose of the scheme, as evidenced by its plain language, is to remedy `an error in the vote tabulation which could affect the outcome of the election.' Fla. Stat. § 102.166(5)....

...us anomalies in the initial automated count and recount. The state manual recount provision therefore serves important governmental interests. [37] The statute does not set forth any criteria for determining when a manual recount is appropriate. See § 102.166(4)(c), Fla. Stat. (2000) ("The county canvassing board may authorize a manual recount."). [38] § 102.166(4)(d), Fla....

...In that election, Suarez defeated Carollo in both precinct votes and the absentee votes. On November 14, 1997, the results of the November 13, 1997, election were certified and Suarez assumed the position of Mayor of the City of Miami. On the same day, Carollo filed a protest to the run-off election pursuant to Section 102.166, Florida Statutes (1997), as well as the November 4th and November 13th election results, under Section 102.168, Florida Statutes (1997)....

...1st DCA 1974)); see also Bolden v. Potter, 452 So.2d 564 (Fla.1984) (expressly rejecting the contention that invalidating all absentee ballots, in the face of extensive absentee vote buying, was an unjustified disenfranchisement of those voters who cast legal ballots). Section 102.166(11), Florida Statutes (1997), which governs the protest of election returns, provides that "The circuit judge to whom the protest is presented shall have authority to fashion such orders as he or she may deem necessary to ensure that...

...Most important to the issues on appeal, sections 102.071, 102.131, and 102.151 set forth detailed procedures for the canvassing and certification of election results — from how to tabulate and certify votes to when election results must be submitted to the Department of State. Sections 102.141(6) and 102.166 set forth when recounts are required....

...overseas ballots. The SAFE "audits" become a mandatory requirement before any election in Sarasota County can be certified. These audits conflict with the Election Code's provisions, which establish when machine and manual recounts are mandated. See § 102.166....

...request for a manual recount and ordered one to be held. This appeal followed. Any candidate has the right to protest the returns of an election related to their candidacy as being erroneous by filing a protest with the appropriate canvassing board. § 102.166(1), Fla. Stat. (1991). In addition, a candidate whose name appears on the ballot may file a written request for a manual recount with the county canvassing board. § 102.166(4)(a), Fla. Stat. (1991). The request must state the reason for the request. The canvassing board may, but is not obligated to, grant the request. § 102.166(4)(c), Fla....

...This section merely states that nothing in the chapter limits or abrogates any remedy existing under quo warranto. Although section 102.168 grants the right of contest, it does not change the discretionary aspect of the review procedures outlined in section 102.166....

...While we conclude Congressman Wexler did have standing, we nevertheless affirm the dismissal of the complaint. Facts The complaint alleged the following. The defendants share a statutory duty to ensure that each Palm Beach County citizen's vote is accurately recorded and reported, including any recount. Section 102.166(1) and (2), Florida Statutes (2003), specifically require a manual recount....

...The Board of *1279 County Commissioners, after consultation with the Supervisor of Elections, may approve, purchase or procure the use of, an approved voting system. See § 101.5604, Fla. Stat. (2003). Florida's recount procedures are governed by sections 102.141 and 102.166, Florida Statutes (2003), which contain procedures for recounts in two instances....

...tabulators to ensure the total returns on the tabulators equal the overall election return. See § 102.141(6)(b), Fla. Stat. (2003). The second instance in which a recount occurs is when the margin of victory is one-quarter of a percent or less. See § 102.166, Fla. Stat. (2003). In that instance, the board responsible for certifying the results of the vote shall order a manual recount of the overvotes and undervotes cast in the entire geographic jurisdiction of such office or ballot measure. See § 102.166(1), Fla. Stat. (2003). When conducting the manual recount, a vote cast for a candidate or ballot measure shall be counted if there is a clear indication on the ballot that the voter has made a definite choice. See § 102.166(5)(a), Fla. Stat. (2003). The Department of State is tasked with adopting specific rules for each certified voting system prescribing what constitutes a "clear indication on the ballot that the voter has made a definite choice." See § 102.166(5)(b), Fla. Stat. (2003). Pursuant to the mandate of section 102.166(5)(b), the Department of State issued Rule No....

...manual recount of undervotes or overvotes cast on a touchscreen system shall be conducted since these machines do not allow a voter to cast an overvote and since a review of undervotes cannot result in a determination of voter intent as required by Section 102.166(5), F.S....

...would be futile. In essence, the court implied a failure to state a cause of action for declaratory relief. As the election rapidly approaches, the issue of failure to state a cause of action must be addressed. In essence, Congressman Wexler alleged section 102.166, Florida Statutes (2003), mandates a manual recount and the touchscreen system cannot comply with this mandate....

...y *1281 reflect the votes cast. If a ballot is physically damaged so that it cannot be properly counted, there is a procedure in place to take corrective measures to repeat the count. See § 102.141(6)(a), Fla. Stat. (2003). Despite this difference, section 102.166, which applies when the margin of victory is one quarter of a percent or less, continues to mandate manual recounts of overvotes and undervotes. See § 102.166(1) & (2), Fla....

...the certification of each electronic voting system. See § 101.015(1), Fla. Stat. (2003). The Department is further charged to adopt rules for each voting system which it certifies regarding what constitutes a "clear indication" of voter choice, see § 102.166(5)(b), and "detailed rules prescribing additional recount procedures for each certified voting system which shall be uniform to the extent practicable." See § 102.166(6)(d), Fla....

...The rule does not require a recount of overvotes, because the system does not permit them. As to undervotes, where a voter has not cast a recognized vote in a particular race or ballot measure, the rule requires no manual recount "since a review of undervotes cannot result in a determination of voter intent as required by Section 102.166(5), F.S." Fla....

...The Plaintiffs sued members of the Florida Elections Canvassing Commission, Florida's Secretary of State, and members of the County Canvassing Boards of Volusia, Palm Beach, Broward and Miami-Dade Counties (hereinafter "Defendants") alleging the unconstitutionality of Florida Statute 102.166(4) (West Supp....

...§ 102.141(2). It is their responsibility to judge the accuracy of vote counts. In addition, a county canvassing board, on its own initiative, may order mechanical recounts "[i]f there is a discrepancy which could affect the outcome of an election." Fla. Stat. § 102.166(3)(c)....

...lection are certified. See Fla. Stat. § 102.141(6). Using these reports, the Secretary of State may issue advisory opinions. See id.; see also Fla. Admin. Code 1 S-2.010. Candidates or voters can promptly protest "erroneous" returns. See Fla. Stat. § 102.166(1)-(2). Candidates and political parties also can request manual recounts. See Fla. Stat. § 102.166(4). The procedures for such manual recounts are described in the pertinent statutory provisions. See Fla. Stat. § 102.166(4)-(10)....

..., whichever is greater. If the results of the initial manual recount indicate a disparity with the machine count which could affect the outcome of the election, the canvassing board "shall" undertake a manual recount of all precincts. See Fla. Stat. § 102.166(5). In this case, the Florida Democratic Party filed requests for manual recounts in Broward, Miami-Dade, Palm Beach, and Volusia Counties within seventy-two hours as required by Florida Statutes, § 102.166(4)(b)....

...As a result of that recount, Vice President Gore received an additional 43 votes and Governor Bush received an additional 44 votes. On November 9, 2000, within 72 hours after midnight on the date the election was held, the Broward County Democratic Party filed a request for a manual recount pursuant to Florida Statutes, § 102.166(4)....

...The Broward County *1046 Republican Party appeared and participated at the hearing. The Broward Canvassing Board authorized a manual recount in three of Broward County's precincts, comprising at least one percent of the total votes cast for Vice President Gore. Pursuant to Florida Statutes, § 102.166(4)(d), the Broward County Democratic Party chose the three precincts subject to the manual recount. The one percent recount has not been completed and will continue Monday, November 13, 2000. Miami-Dade The Canvassing Board received a request from the Miami-Dade Democratic Party on November 9, 2000 pursuant to Florida Statutes, § 102.166(4), to conduct a recount....

...Palm Beach On November 11, 2000, when the manual recount of one percent of Palm Beach voters established a net gain of nineteen votes for Vice President Gore, the Palm Beach Canvassing Board, by a 2-1 vote, directed a manual recount of all precincts in the county. That decision adhered to Florida Statutes, § 102.166(5)(c), requiring a full recount when the one percent result shows that the election outcome could be changed by a fall manual recount....

...[3] However, while this power is broad, "these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution." Id. Here, Plaintiffs assert that Florida Statutes, § 102.166(4) violates the First and Fourteenth Amendments....

...It is within this framework that we address the specifics of Plaintiffs' claims. [5] Florida law outlines a structural process by which a candidate or political party "may file a written request with the county canvassing board for a manual recount." Fla. Stat. § 102.166(4)(a)....

...Such a 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." Fla. Stat. § 102.166(4)(b)....

...Once a request is made, "[t]he 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." Fla.Stat. § 102.166(4)(c)....

...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." Fla. Stat. § 102.166(4)(d)....

..."If the manual recount indicates an error in the vote tabulation which could affect the outcome of the election," the statute authorizes the canvassing board to undertake a variety of remedial measures, including the manual recount of all ballots. Fla. Stat. § 102.166(5). [6] The state law also provides that "any manual recount shall be open to the public," and outlines the procedures by which a manual recount must take place. Fla. Stat. § 102.166(6)-(10)....

...While discretionary in its application, the provision is not wholly standardless. Rather, the central purpose of the scheme, as evidenced by its plain language, is to remedy "an error in the vote tabulation which could affect the outcome of the election." Fla. Stat. § 102.166(5)....

...Lazan, 488 So.2d at 671, we likewise hold that November 27, 1987, the Friday after Thanksgiving, was a legal holiday under Rule 1.090(a), Fla.R. Civ.P. (1987). There is no conflict between this holding and our previous decision in Flack v. Carter . Flack involved an election protest filed under section 102.166, Florida Statutes (1977)....

...reat public importance. The Department is responsible for examining and certifying electronic and electromechanical voting systems in Florida. § 101.5605, Fla. Stat. (2004). Florida's election recount procedures are governed by sections 102.141 and 102.166, Florida Statutes (2004), which create a two-stage process for recounts....

...A machine recount is triggered if the margin of victory is one-half of a percent or less. § 102.141(6). If the margin of victory is one-quarter of a percent or less, "a manual recount of the overvotes and undervotes cast in the entire geographic jurisdiction of such office or ballot measure" shall be conducted. § 102.166(1). "A vote cast for a candidate or ballot measure shall be counted if there is a clear indication on the ballot that the voter has made a definite choice." § 102.166(5)(a)....

...tutes a `clear indication on the ballot that the voter has made a definite choice,'" and also shall "adopt detailed rules prescribing additional recount procedures for each certified voting system which shall be uniform to the extent practicable." §§ 102.166(5)(b) & (6)(d)....

...manual recount of undervotes and overvotes cast on a touchscreen system shall be conducted since these machines do not allow a voter to cast an overvote and since a review of undervotes cannot result in a determination of voter intent as required by Section 102.166(5), F.S....

...On August 27, 2004, Administrative Law Judge (ALJ) Susan Kirkland found that the rule was an invalid exercise of delegated legislative authority, concluding that the Department did not have the authority to abolish manual recounts for touchscreen voting machines, because section 102.166(5)(b) required the Department to "adopt specific rules for each certified voting system prescribing what constitutes a `clear indication on the ballot that the voter has made a definite choice.'" The Department did not appeal that order....

...The absence of a rule with applicable standards and procedures will have an adverse effect on the conduct of elections in the State of Florida. In the event that the results of a machine recount under section 102.141, Florida Statutes, trigger the requirement for a manual recount under section 102.166, Florida Statutes, counties with touchscreen voting systems would have to conduct a manual recount without applicable standards or procedures, unless an emergency rule is immediately adopted....

...Plaintiffs use the word[s] intent and choice interchangeably. Yet, the Court finds them to be different. Prior to the 2001 amendments to the election statutes, a legal vote was determined by a clear indication of the intent of the voter. The prior version of the statute, at section 102.166(7)(b), read as follows: "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 to determine the voter's intent." See Senate Bill 1118, at 1272. Under the current standard, a legal vote is determined by a "clear indication on the ballot that the voter has made a definite choice." See id. at 1272; see also Fla. Stat. § 102.166(5)(a). When the Legislature makes a change in the statute, it is presumed to mean something by that change. The earlier "intent" standard of section 102.166(7)(b) attempted to discern, ex post, a voter's state of mind; the amended standard instead looks to whether the ballot indicates that the voter has made a definite selection....

...The absence of uniform standards was not caused by Judge Kirkland's order. To the contrary, the judge's order merely enforced an existing statutory mandate to establish manual recount procedures. In 2001, the Florida Legislature enacted a revised version of section 102.166, the statute that provides for manual recounts of undervotes and overvotes in certain situations. This statute requires the Department to "adopt specific rules for each certified voting system prescribing what constitutes a `clear indication on the ballot that the voter has made a definite choice.'" § 102.166(5)(b), Fla....

...e under state law. The petitioner has raised a serious argument that the emergency rule is not a valid exercise of authority delegated by the Legislature. In fact, it appears to me that the rule undermines the very point of the enabling legislation. Section 102.166(5), Florida Statutes requires the Department to "adopt specific rules for each certified voting system prescribing what constitutes a clear indication on the ballot that the voter has made a definite choice." There is no ambiguity her...

...with the Florida law. See § 101.5606, Fla. Stat. (2002). If the touch screen voting machines at the center of this controversy are incapable of producing a ballot or ballot image that can be recounted under the manual recount procedure required by section 102.166, they should not have been approved for use in the first instance....

...ure of an intermediate order. The emergency rule will expire by operation of law after 90 days, see § 120.54(4)(c), but the Department will still have a statutory obligation to adopt a permanent rule establishing procedures for manual recounts. See § 102.166(5)(b)....

...y, after consultation with the supervisor of elections, may approve, purchase, or procure the use of said voting system. Fla. Stat. § 101.5604; see also Fla. Stat § 101.294. Florida's recount procedures are in turn governed by sections 102.141 and 102.166 of the Florida statutes, which create a two-stage process for recounts....

...on the precinct tabulators to ensure that the total returns on the tabulators equals the overall election return. § 101.141(b). The second stage of the recount process occurs if the margin of victory is one-quarter of a percent or less. Fla. Stat. § 102.166....

...§ 101.166(5)(a). The statute further dictates that the "Department of State shall adopt specific rules for each certified voting system prescribing what constitutes a `clear indication on the ballot that the voter has made a definite choice,'" Fla. Stat. § 102.166(5)(b), and also "adopt detailed rules prescribing additional recount procedures for each certified voting system which shall be uniform to the extent practicable." Fla. Stat. § 102.166(6)(d)....

...o manual recount of undervotes and overvotes cast on a touchscreen system shall be conducted since these machines do not allow a voter to cast an overvote and since review of undervotes cannot result in a determination of voter intent as required by Section 102.166(5)." (Complaint, Exhibit E, Rule 1S-2.031(7))....

...he Sequoia AVC Edge Voting System Release 3.1 should never have been approved and certified for use in Palm Beach County because it is a paperless voting system and as such, does not allow for a manual recount as specified under sections 102.141 and 102.166 of the Florida statutes....

...In that election, Suarez defected Carollo in both precinct votes and absentee votes. On November 14, 1997, those results were certified and Suarez assumed the position of Mayor of the City of Miami. Three Miami voters brought an in rem state lawsuit challenging the vote count in the first election pursuant to Section 102.166, Fla....

...On Friday, November 17, 2000, the Canvassing Board exercised its discretion to begin a manual recount of all ballots cast in Miami-Dade County in the Presidential election held on November 2, 2000. The Canvassing Board had previously conducted a "sample" manual recount of ballots from three of its precincts pursuant to section 102.166(4)(d), Fla....

...Stat. (1999). The results of that sample recount showed "an error in the vote tabulation which could effect the outcome of the election[,]" thus triggering the Canvassing Board's mandatory obligation to recount all of the ballots in the county. See § 102.166(5)(c), Fla....

...This ruling is without prejudice to the petitioners to seek relief in the Florida Supreme Court from the court-ordered deadline and to ask the Supreme Court to *1181 fashion an equitable remedy tailored to the conditions of Miami-Dade County. Mandamus denied. NOTES [1] Section 102.166 provides in pertinent part: (5) If the manual recount indicates an error in the vote tabulation which could effect the outcome of the election, the county canvassing board shall: * * * (c) Manually recount all ballots. § 102.166(5)(c), Fla....

...untles of Volusia, Palm Beach, Broward, and Miami-Dade, the members of the Florida Elections Canvassing Commission, and the Secretary of the Florida Department of State. In their complaint, Plaintiffs challenge the constitutionality of section *1056 102.166(4) of the Florida Statutes, asserting that the statute violates their rights under the Equal Protection and Due Process Clauses of the Fourteenth Amendment, Based on these claims, Plaintiffs seek an order from this Court stopping the manual recount of votes in these counties....

...[4] Plaintiffs contend that the selective manual recounts in these four apparently largely Democratic counties, unconstitutionally dilute their votes because the manual recounts are likely to result in an increase in the number of votes counted for the Democratic candidate. Plaintiffs contend that section 102.166(4), Florida Statutes, violates their equal protection and due process rights both on its face and as applied. Specifically, Plaintiffs argue that section 102.166(4) has enabled Vice President Gore to selectively seek and effectuate a manual recount only in heavily populated, predominantly Democratic counties....

...an candidate cast in a predominantly Republican county where a recount was not requested. This, according to Plaintiffs, is contrary to guarantees of the Fourteenth Amendment. Plaintiffs also assert that the manual recount process established within section 102.166(4) lacks due process protections. First, Plaintiffs assert that section 102.166(4) is enabling Vice President Gore to gain a disproportionate number of total "undervotes" by selecting a manual recount in counties with a majority of Democratic voters. According to Plaintiffs, the Florida law does not afford due process because it falls to establish safeguards that would prevent a candidate from using the manual recount mechanism to mine for votes. Second, Plaintiffs contend that section 102.166(4) fails to provide procedural due process because it grants county canvassing boards absolute discretionary authority as to whether to grant or deny a manual recount while failing to establish standards that are sufficient to guard against arbitrary and capricious decisions. Third, Plaintiffs contend that section 102.166(4)'s lack of standards for delineating when to recognize a valid ballot during a manual recount results in the application of inconsistent rules and subjective evaluations. Plaintiffs claim that section 102.166(4) enables county canvassing boards to develop, on an ad hoc basis, vague, subjective, arbitrary and capricious standards to count ballots when voters have not completed the casting of his or her vote by sufficiently punching the chad on the ballot. Fourth, Plaintiffs claim that section 102.166(4) fails to provide notice and an opportunity to be heard to an opposing candidate when a manual recount has been proposed by a candidate or is being considered by a canvassing board. In addition, Plaintiffs argue that section 102.166 enables a candidate in a statewide election to use the manual recount mechanism to selectively cause the ballots in some counties to be recounted while ignoring similarly situated valid ballots in other counties....

...Article II, section 1 of the United States Constitution provides that the states will, according to the manner established by their respective legislatures, appoint electors who will then elect the President. Florida has enacted laws as to how this responsibility should be carried out, including section 102.166, which gives county canvassing boards under certain circumstances the discretion to grant requests for manual recounts of the ballots....

...[5] But, in the absence of "`systematically discriminatory laws, isolated events that adversely affect individuals are not presumed to be [constitutional violations]'." Curry, 802 F.2d at 1314 (quoting Gamza v. Aguirre, 619 F.2d 449, 453 (5th Cir.1980)). Section 102.166 is facially neutral and nondiscriminatory....

...was defeated or eliminated by one-half of a percent or less of the votes cast for such office ... the board responsible for certifying the results of the vote on such race or measure shall order a recount of the votes cast for such office ...." [3] Section 102.166(4) provides: (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....

...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 the three precincts to be recounted, and, if other precincts are recounted, the county canvassing board shall select the additional precincts. Additionally, section 102.166(5) provides that "[i]f the manual recount indicates an error in the vote tabulation which could affect the outcome of the election, the county canvassing board shall: (a) Correct the error and recount the remaining precincts with the vote tabulation system; (b) Request the Department of State to verify the tabulation software; or (c) Manually recount all ballots." Moreover, "[a]ny manual recount shall be open to the public." § 102.166(6), Fla....

...A candidate involved in the race shall not be a member of a counting team. (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. § 102.166(7), Fla....

...e to amend the complaint to include an assertion that challenges to the Voter Certificates were made prior to ballots being removed from the mailing envelopes; failure to exhaust available administrative remedies; lack of jurisdiction; and estoppel. Section 102.166, Florida Statutes (1977), provides: (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....

...as a legal holiday on November 11. The fact that the office of the Clerk of the Circuit Court in and for Wakulla County was closed on the 10th does not, without more, make the 10th a legal holiday. We conclude, therefore, that Flack's protest under § 102.166 was untimely. Having decided that protest was untimely, we next turn our attention to the issue of whether compliance with § 102.166 is a condition precedent to an election contest under § 102.168, Florida Statutes (1977). We find no Florida cases so holding and in absence of authority to the contrary we are not inclined to read into the statute such a condition. Section 102.166, Florida Statutes (1977), appears to be geared exclusively to the protest of election returns....

...8 County canvassing boards are responsible for counting the votes given to each candidate, Fla. Stat. 102.141, and they may, sua sponte, order mechanical recounts "[i]f there is a discrepancy which could affect the outcome of an election." Fla. Stat. 102.166(3)(c)....

...After all the counties have certified election returns to the Department of State, the Elections Canvassing Commission has the power to "certify the returns of the election and determine and declare who has been elected for each office." Fla. Stat. 102.111(1). 13 Florida Statute section 102.166(4)(a)-(b) authorizes a candidate or his political party-but not a voter-to request a county canvassing board to conduct a "manual recount," provided that the request is made "prior to the time the canvassing board certifies the [election] results ......

...or within 72 hours after midnight of the date the election was held, whichever occurs later." When presented with a manual recount request, the canvassing board has unrestricted discretion to grant or deny a sample manual recount of three precincts. Fla. Stat. 102.166(4)(c)-(d); see Broward County Canvassing Bd....

...nty canvassing board shall: 15 (a) Correct the error and recount the remaining precincts with the vote tabulation system; 16 (b) Request the Department of State to verify the tabulation software; or 17 (c) Manually recount all ballots. 18 Fla. Stat. 102.166(5). 3. 19 Unsatisfied with the results of the initial vote count, the Florida Democratic Party, pursuant to Fla. Stat. 102.166(4)(a), requested manual recounts in four selected counties: Broward, Miami-Dade, Palm Beach, and Volusia....

...ases the votes cast in the latter counties, and in particular the votes cast by plaintiffs and those similarly situated. Plaintiffs also allege that the lack of standards to guide the canvassing boards in determining "the voter's intent," Fla. Stat. 102.166(7)(b), in a manual recount unconstitutionally debases votes by permitting the canvassing boards to speculate as to a voter's intent and thereby erroneously conclude that a voter cast a ballot in behalf of a particular candidate. Plaintiffs seek a judicial declaration that Fla. Stat. 102.166(4) is unconstitutional (both on its face and as applied) because it debases their votes and the votes of those similarly situated and thereby denies them rights guaranteed by the Fourteenth Amendment....

...lection system) is to allow a candidate or his party to request human verification that the vote tabulating machine functioned properly. This construction of the manual recount provision explains why a canvassing board is given three alternatives in section 102.166(5) in the event that it grants a manual recount request and the three-precinct sample manual recount reveals "an error in the vote tabulation." 21 The first two options permitted under section 102.166(5) do not require a complete manual recount of votes county-wide, but rather involve making repairs to the machine tabulating system so that it properly counts the votes....

...erly punched their ballots-that is inadequate as a tabulating device because it fails to count all valid votes. 40 If the vote tabulating machines serve merely as a screening device in counting valid votes, then the legislature, in enacting sections 102.166(4)-(7), inaptly refers to the process of manually counting dimple votes as a "recount." In fact, a county's initial vote count (including the automatic recount) is not complete until all ballots containing non-votes in any race have been examined manually. Nevertheless, section 102.166(4) provides that such a manual examination of ballots will be conducted only at a candidate or political party's request, and only in those specific counties chosen by the candidate or political party....

...36 Thus, a candidate is more likely to have his request for a manual count granted, and to receive favorable interpretations of voter intent, in counties where the candidate shares a political party affiliation with the majority of the canvassing board. 43 As discussed above, section 102.166(5) allows the county canvassing board to conduct a recount 37 only if the results of the recount "could affect the outcome of the election." Seemingly, the candidate who received the most votes state-wide according to the machine tabu...

...injury. I contend that the injury to the voters in the instant case occurred once the time limit for requesting manual recounts had expired, and at least one but not all counties had certified results containing manual recounts conducted pursuant to 102.166....

...87 I would direct the district court to enjoin the Secretary of State and/or Elections Canvassing Commission to issue amended vote certifications under Fla. Stat. 102.121 and 103.011 that do not contain the results of manual recounts conducted in response to a candidate or political party's request under Fla. Stat. 102.166 (namely Volusia, Broward, Miami-Dade and Palm Beach Counties). I would further enjoin the Secretary of State and/or the Elections Canvassing Commission from issuing any future certification that includes manual recounts requested by a candidate or political party in select counties pursuant to Fla. Stat. 102.166....

...er the first count by one-half of one percent or less. Fla. Stat. 102.141(4). Since this recount is a non-discretionary repeat of the initial count, I deem it to be nothing more than a re-do of the first machine count. The protest provision found in section 102.166(1)-(2) permits any candidate or voter to file a protest with the appropriate canvassing board, but does not provide any process or remedy for such a protest....

...not made according to the directions for casting a proper vote. Such improper markings are not read by the vote tabulating machines, but may be construed by some people as giving insight into the voter's intent upon manual inspection. 29 Fla. Stat. 102.166(4) ("Any candidate whose name appeared on the ballot [or his political party] ......

...otes if he requests that dimple votes be counted. In a county where 10,000 total ballots were cast, a candidate will likely have 500 ballots from which he can hope to pick up additional votes by requesting that dimple votes be counted. 35 Fla. Stat. 102.166(4)(c) (providing no standards for determining whether a candidate's request for a manual recount should be granted, but rather stating simply that "[t]he county canvassing board may authorize a manual recount"). 36 Section 102.166(7) describes the procedures to be followed in the conduct of a "manual recount" of ballots and provides simply that the canvassing board's objective in evaluating ballots is "to determine the voter's intent." Fla. Stat. 102.166(7)(b)....

...andidate's request. 47 This model for "recounting" votes in certain counties not only relies on candidates to select the counties, but it effectively restricts the candidates who may obtain a recount to the major party candidates. This is so because section 102.166(5) only permits manual counts if the board finds that it "could affect the outcome of the election." Third party candidates for whom vote totals are critical if they wish to obtain federal funds for their party in the next election ar...

...48 The front-runner, on the other hand, is seemingly unable to get a county-wide manual count under the selective dimple model, as he could never show that an additional number of votes for him "could affect the outcome of the election." Fla. Stat. 102.166(5). 49 As noted in my description of the manual count statute, a full manual count should only occur when the sampling of precincts shows "an error in vote tabulation that could affect the outcome of the election." Fla. Stat. 102.166(5)....

...ated except through an appropriate representative before the Court."). 51 Indeed, as I have noted, Bush's requests would likely have been futile-no amount of dimple votes in his favor "could [have] affect[ed] the outcome of the election." Fla. Stat. 102.166(5)....

...ecount statute. Florida's statutory election scheme envisions hand recounts to be an integral part of the process, providing a check when there are "error[s] in the vote tabulation which could affect the outcome of the election." See Fla. Stat. Ann. 102.166(5)....

...We have done our best so that they can do their best. NOTES: 1 See Moore v. Ogilvie, 394 U.S. 814, 818-19 , 89 S.Ct. 1493, 1496 , 23 L.Ed.2d 1 (1969) (discussing the applicability of the Fourteenth Amendment to the nominating process for presidential candidates). 2 See Fl. Stat. Ann. 102.166 (West 1989)....

...plaint has been filed in the circuit court by an unsuccessful candidate or nominee. Here, the election results have not been certified so there is no "unsuccessful candidate." The circuit court's jurisdiction could have been invoked here pursuant to Section 102.166 only by a protest alleging fraud filed by a "candidate for nomination or election, or any elector qualified to vote in the election related to such candidacy." The protest must be (1) filed in approved form, (2) sworn to as having a factual basis, and (3) presented to the circuit court....

...ectromechanical voting system approved by the Department of State in all or a portion of the election precincts of that county." Fla. Stat. § 101.5604; see also Fla. Stat § 101.294. Florida's recount procedures are governed by sections 102.141 and 102.166 of the Florida statutes, which create a twostage process for recounts....

...ecinct tabulators to ensure that the total returns on the tabulators equals the overall election return. Fla. Stat. § 101.141(b). The second stage of the recount process occurs if the margin of victory is onequarter of a percent or less. Fla. Stat. § 102.166....

...office or ballot measure" shall be conducted. Id. When conducting the manual recount, a "vote cast for a candidate or ballot measure shall be counted if there is a clear indication on the ballot that the voter has made a definite choice." Fla. Stat. § 102.166(5)(a)....

...a `clear indication on the ballot that the voter has made a definite choice,'" and also "adopt detailed rules prescribing additional recount procedures for each certified voting system which shall be uniform to the extent practicable." Fla. Stat. §§ 102.166(5)(b) & (6)(d)....

...ifying the voter at least once that he/she has not selected a candidate for a particular race as well as giving the voter an opportunity to review the selections before casting his/her ballot. C. Emergency Rule Pursuant to the mandates of Fla. Stat. § 102.166, the Department of State issued Rule 1S-2.031 pertaining to recount procedures....

...manual recount of undervotes and overvotes cast on a touchscreen system shall be conducted since these machines do not allow a voter to cast an overvote and since a review of undervotes cannot result in a determination of voter intent as required by Section 102.166(5), F.S....

...27, 2004). In concluding that the Department of State exceeded its grant of rulemaking authority, Judge Kirkland stated as follows: [The Department of State] has the authority to promulgate procedures for manual recounts in addition to those set forth in section 102.166, Florida Statutes (2004), and is required to address minimum areas in those rules, but it does not have the authority to abolish manual recounts for certain types of voting equipment....

...Specifically, the state complaint asserts that the Sequoia AVC Edge Voting System Release 3.1 should never have been approved and certified for use in Palm Beach County because as a paperless voting system, it does not allow for a manual recount as specified under sections 102.141 and 102.166 of the Florida statutes....

...at 106, 121 S.Ct. 525. Based on this conclusion, the question currently before the Court is whether the State has established standards for conducting a manual recount that comport with equal protection. B. Current Manual Recount Standards Pursuant to section 102.166 of the Florida Statutes, the Department of State is given the responsibility to "adopt specific rules for each certified voting system prescribing what constitutes a `clear indication on the ballot that the voter has made a definite choice,'" as well as to "adopt detailed rules prescribing additional recount procedures for each certified voting system which shall be uniform to the extent practicable." Fla. Stat. § 102.166(5)(b) & (6)(d)....

...at 108, 121 S.Ct. 525. Vote counts based on these variant standards also violated equal protection. In response to the election problems of 2000, the Florida legislature revised Florida's election laws in 2001. As part of that reform, the manual recount statute, 102.166, was amended to specify that a manual recount be conducted of both the overvotes and undervotes....

...Irregularities of the 2000 Presidential Election, Report Number 2001-201, at 38, Plaintiffs Exhibit 7. The Statute was also amended to delete the section that allowed the candidate requesting a manual recount to select which precincts to be counted. Section 102.166(4)(d) previously prescribed that the manual recount had to include at least three precincts and "the person who requested the recount shall choose three precincts to be recounted." [14] See Senate Bill 1118 at *1108 1272. Under the current statute, a manual recount includes "the entire geographic jurisdiction of such office or ballot measure." Fla. Stat. § 102.166(2)(a). Most importantly, as discussed above, the amendments also added language directing the Department of State to adopt specific rules for each certified voting system, prescribing what constitutes a voter's definite choice. See Fla. Stat. § 102.166(5)b)....

...Plaintiffs use the word intent and choice interchangeably. Yet, the Court finds them to be different. Prior to the 2001 amendments to the election statutes, a legal vote was determined by a clear indication of the intent of the voter. The prior version of the statute, at section 102.166(7)(b), read as follows: "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 to determine the voter's intent." See Senate Bill 1118, at 1272. Under the current standard, a legal vote is determined by a "clear indication on the ballot that the voter has made a definite choice." See id. at 1272; see also Fla. Stat. § 102.166(5)(a). When the Legislature makes a change in the statute, it is presumed to mean something by that change. [17] The earlier "intent" standard of section 102.166(7)(b) attempted to discern, ex post, a voter's state of mind; the amended standard instead looks to whether the ballot indicates that the voter has made a definite selection....

...NOTES [1] To the extent any of these Findings of Fact constitute Conclusions of Law, they are hereby adopted as both. [2] A candidate has the right to demand a manual recount if the margin is between onequarter and one-half of a percent. Fla. Stat. § 102.166(2)(a)....

...This can result in a skewed sample not representative of the other precincts in the county... This standard is ineffectual." Review of Voting Irregularities of the 2000 Presidential Election, Report Number 2001-201, at 37-38. Plaintiff's Exhibit 7. [15] Fla. Stat. § 102.166(5)(a) states that "[a] vote for a candidate or ballot measure shall be counted if there is a clear indication on the ballot that the voter has made a definite choice." [16] Plaintiffs' complaint did not assert claims based upon any alleged...

...[18] Thus, one of the issues that should be considered in any future study of Florida's Election Code is whether such a procedure should have been in place. Instead of a procedure for requesting a statewide manual recount, the statutes in place as of November 7, 2000, provided that a candidate had the option pursuant to section 102.166(4), Florida Statutes (2000), to request a manual recount from an individual county canvassing board. Based upon the express language in section 102.166, however, the individual county canvassing board is vested with discretion to conduct the initial manual recount of at least three precincts....

...[19] Once the initial sampling shows an "error in the vote tabulation which could affect the outcome of the election," the county canvassing board is required to exercise one of three options, with the third option being a manual recount of all ballots. § 102.166(5)(a)(c), Fla....

...(2000). In counting the ballots manually, the statute provides that if the "counting team is unable to determine a voter's intent in casting a ballot, that ballot shall be presented to the county canvassing board for it to determine the voter's intent." § 102.166(7)(b), Fla....

...specific standards to govern the exercise of county canvassing boards' discretionary authority in a statewide election. Further, questions have been raised about the unequal treatment of voters in counties where recounts were not requested. Because section 102.166(4) provides that only a political party or a candidate may request a manual recount under section 102.166(4), there are additional issues regarding the potential for unequal treatment of voters in those counties in which a *534 manual recount is neither requested by the candidate nor conducted by the canvassing board....

...n code enacted by the Florida Legislature and has been consistently applied by this Court in resolving elections disputes." Id. at 1253. Thus, any comprehensive review of the Election Code should address both the scope of the manual recount statute, section 102.166, to allow for statewide manual recounts, and the scope of the contest statute, section 102.168, to fashion appropriate relief on a statewide basis....

...nd in the determination of voters' intent when dealing with similar *535 voting systems. [27] The Failure to Count Undervotes: Throughout this litigation, both the Secretary of State and President-Elect Bush asserted that the manual recount statute, section 102.166, was never intended to apply to allow for the counting of undervotes. [28] Florida's Election Code currently provides for a manual recount where there is an "error in the vote tabulation which could affect the outcome of the election." § 102.166(5)....

...e protest or contest provisions of Florida's Election Code. The implication of these dual positions would be that voters who cast votes that were incapable of being read by the machine would not be counted through a manual recount either pursuant to section 102.166 or section 102.168— even if upon a manual review the voter's *536 intent was clearly ascertainable....

...estic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. U.S. Const. pmbl. [5] See § 102.166, Fla.Stat....

...Neither candidate requested such an opportunity." Palm Beach Canvassing Bd., 772 So.2d 1273, at 1290 n. 21 (Fla.2000). [19] The current statute does not set forth any criteria to guide the determination of when the decision to conduct a preliminary manual recount is appropriate. See § 102.166(4)(c), Fla.Stat....

...[25] Neither candidate raised the constitutionality of Florida's election laws as an issue on appeal to this Court. See Palm Beach County Canvassing Board v. Harris, 772 So.2d 1273 n. 7 (Fla.2000). Instead, President Elect Bush chose to bring a separate challenge to the constitutionality of section 102.166 in federal court....

...See § 102.131(1), § 102.141(2), Fla.Stat. (2000). [28] Initially, their position in this Court had been that any attack on the problems with punchcard ballots and the increased percentage of undervotes should not be raised under the protest provisions of section 102.166(4), but in the contest provisions of section 102.168....

...The *1132 Plaintiffs sued members of the Florida Elections Canvassing Commission, Florida’s Secretary of State, and members of the County Canvassing Boards of Volusia, Palm Beach, Broward and Miami-Dade Counties (hereinafter “Defendants”) alleging the unconstitutionality of Florida Statute § 102.166(4) (West Supp.2000)....

SO ORDERED on November 15, 2018.

Even so, Scott's request to state law enforcement must be viewed in the context of Scott's other contemporaneous public statements. "I will not sit idly by," Scott said outside the Governor's mansion, "while unethical liberals try to steal this election." Pl.'s Ex. 1-4. Later on television, after noting his order to state law enforcement, Scott declared "we're gonna fight this and we're gonna win." Pl.'s Ex. 1-5. He also explained "we're gonna do everything we can," "we're gonna fight this and we're

...ach, Florida 33401 Dear Judge Burton: On behalf of the Palm Beach County Canvassing Board, you have asked this office's opinion as to the meaning of "error in voting tabulation which could affect the outcome of" an election as that phrase is used in section 102.166 (5), Florida Statutes. I am answering your request fully mindful that just yesterday the Division of Elections rendered Division of Elections Opinion 00-11 to the Chairman of the Republican Party, interpreting the duties of a county canvassing board pursuant to section 102.166 (5), Florida Statutes....

...1 Because the Division of Elections opinion is so clearly at variance with the existing Florida statutes and case law, and because of the immediate impact this erroneous opinion could have on the on-going recount process, I am issuing this advisory opinion. Section 102.166 (4), Florida Statutes, permits a local canvassing board, upon request of a candidate or political party, to authorize a manual recount to include at least three precincts and at least 1 percent of the total votes cast for such candidate. 2 Section 102.166 (5), Florida Statutes, provides "[i]f the manual recount indicates an error in vote tabulation which could affect the outcome of the election, the county canvassing board shall" among other options, manually recount all ballots. Division of Election Opinion 00-11 concludes that the language "error in the vote tabulation" in section 102.166 (5), Florida Statutes, refers only to a counting error in the vote tabulation system....

...The opinion ignores the plain language of the statute which refers not to an error in the vote tabulation system but to an error in the vote tabulation. The Legislature has used the terms "vote tabulation system" and "automatic tabulating equipment" elsewhere in section 102.166 , Florida Statutes, when it intended to refer to the system rather than the vote count. Yet the division, by reading "vote tabulation" and "vote tabulation system" as synonymous, blurs the distinctions that the Legislature clearly delineated in section 102.166 ....

...the vote counting system, but the error might also result from the failure of a properly functioning mechanical system to discern the choices of the voters as revealed by the ballots. The fact that both possibilities are contemplated is evidenced by section 102.166 (7) and (8), Florida Statutes....

...While subsection (8) addresses verification of tabulation software, subsection (7) provides procedures for an examination of the ballot by the canvassing board and counting teams to determine the voter's intent. The division's opinion, without authority or support, effectively nullifies the language of section 102.166 (7), Florida Statutes. Nothing in subsection (7) limits its application to the recount of all ballots. Rather, the procedures for a manual recount in subsection (7) equally apply to the initial sampling manual recount authorized in section 102.166 (4)(d). Section 102.166 (7)(b) states: 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....

...Yet under the division's interpretation, such language is rendered superfluous. It is fundamental principle of statutory construction that statutory language is not to be assumed to be surplusage; rather a statute is to be construed to give meaning to all words and phrases contained within statute. 4 Section 102.166 (7) clearly recognizes that an examination by a person of the ballot will occur to determine whether the voter complied with the statutory requirement, i.e., marked the marksense or punched the punchcard ballot....

...651 ." The Florida Statutes contemplate that where electronic or electromechanical voting systems are used, no vote is to be declared invalid or void if there is a clear indication of the intent of the voter as determined by the county canvassing board. 9 In light of the plain language of section 102.166 (5), Florida Statutes, authorizing a manual recount of all ballots when the sampling manual recount indicates an error in vote tabulation which could affect the outcome of the election and the general principles of election law, I mus...

...Rather I am of the opinion that the term "error in voter tabulation" encompasses a discrepancy between the number of votes determined by a voter tabulation system and the number of votes determined by a manual count of a sampling of precincts pursuant to section 102.166 (4), Florida Statutes....

...arty relating to actions such party has taken or proposes to take. Division of Elections Opinion 00-11, however, erroneously seeks to advise a political party about the responsibilities of the supervisor of elections and local canvassing board under section 102.166 (5). 2 See, s. 102.166 (4)(d), Fla....

...However, Jackson submits the Fourth District Court of Appeals decision in Matter of Finno, 546 So. 2d 805, 806-07 (Fla. 4th DCA 1989), which we find particularly instructive, as the Fourth District Court of Appeal interpreted the meaning of “presents” with respect to section 102.166, Florida Statutes (1987). In Finno, the plaintiff filed an election protest action pursuant to section 102.166(2). At a hearing before the trial court, the court stated that plaintiff had not “presented the protest to a circuit judge within five days of midnight of the date the election occurred” as provided in section 102.166(2)(a) and therefore dismissed plaintiff’s claim. In determining the issue of whether plaintiff had “presented” his claim to a circuit judge within the time-period set out in the statute, the Fourth District Court of Appeal stated: 15  The question before us is whether or not Finno “presented” his election protest to a circuit judge within the time period prescribed by section 102.166, Florida Statutes (1987)....

...rns 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 later. In its order granting the motion to dismiss, the trial court held that “[b]eeause the protest filed by the [appellants] in the instant action was filed pursuant to § 102.166(1), the aforesaid 5 day rule governs.” This is an incorrect application of the statute....

...t to be accorded the highly deferential “abuse of discretion” standard of review during a contest proceeding. Id. at 1252 (citations omitted). Thus, a contest and when it can be filed is not contingent on whether or not a protest is filed. Under section 102.166, Florida Statutes (1999), which includes the procedure for filing a protest of election returns with the canvassing board, subsection (2) provides: 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 five days after midnight of the date the election is held, whichever occurs later. Section 102.166 indicates that a protest can actually be filed after an election is certified if the election was certified within the five days after the election is held....

...On Monday, March 6, 1967, the chairman of the Board advised the plaintiff, by letter, that the Canvassing Board had completed its work; certified the election results to the proper authorities, and adjourned before noon on March 2, 1967, and that under Section 102.166, Florida Statutes, F.S.A., it was necessary for the protest to be filed with the Board prior to the time it adjourned; and that the protest was filed too late....

...Harris, 772 So.2d 1243 (Fla.2000), rev’d on other grounds, Bush v. Gore, 531 U.S. 98 , 121 S.Ct. 525 , 148 L.Ed.2d 388 (2000), held: Although the protest and contest proceedings are separate statutory provisions, when a manual count of ballots has been conducted by the Canvassing Board pursuant to section 102.166, the circuit court in a contest proceeding does not have the obligation de novo to simply repeat an otherwise-proper manual count of the ballots....

...County canvassing boards are responsible for counting the votes given to each candidate, Fla. Stat. § 102.141, and they may, sua sponte, order mechanical recounts “[i]f there is a discrepancy which could affect the outcome of an election.” Fla. Stat. § 102.166(3)(c)....

...certified election returns to the Department of State, the Elections Canvassing Commission has the power to “certify the returns of the election and determine and declare who has been elected for each office.” Fla. Stat. § 102.111(1). Florida Statute section 102.166(4)(a)-(b) authorizes a candidate or his political party – but not a voter – to request a county canvassing board to conduct a “manual recount,” provided that the request is made “prior to the time the canvassing board certifies the [election] results ....

...or within 72 hours after midnight of the date the election was held, whichever occurs later.” When presented with a manual recount request, the canvassing board has unrestricted discretion to grant or deny a sample manual recount of three precincts. Fla. Stat. § 102.166(4)(c)-(d); see Broward County Canvassing Bd....

...tabulation system; (b) Request the Department of State to verify the tabulation software; or election record. Fla. Stat.§ 102.141(6). 9  (c) Manually recount all ballots. Fl. Stat. § 102.166(5). 3. Unsatisfied with the results of the initial vote count, the Florida Democratic Party, pursuant to Fla. Stat. § 102.166(4)(a), requested manual recounts in four selected counties: Broward, Miami-Dade, Palm Beach, and Volusia....

...We granted the motion. 11 votes cast in the latter counties, and in particular the votes cast by plaintiffs and those similarly situated. Plaintiffs also allege that the lack of standards to guide the canvassing boards in determining “the voter’s intent,” Fla. Stat. § 102.166(7)(b), in a manual recount unconstitutionally debases votes by permitting the canvassing boards to speculate as to a voter’s intent and thereby erroneously conclude that a voter cast a ballot in behalf of a particular candidate. Plaintiffs seek a judicial declaration that Fla. Stat. § 102.166(4) is unconstitutional (both on its face and as applied) because it debases their votes and the votes of those similarly situated and thereby denies them rights guaranteed by the Fourteenth Amendment. Plaintiffs therefore asked th...

...after the first count by one-half of one percent or less. Fla. Stat. § 102.141(4). Since this recount is a non-discretionary repeat of the initial count, I deem it to be nothing more than a re-do of the first machine count. The protest provision found in section 102.166(1)-(2) permits any candidate or voter to file a protest with the appropriate canvassing board, but does not provide any process or remedy for such a protest....

...failsafe in the statutory election system) is to allow a candidate or his party to request human verification that the vote tabulating machine functioned properly. This construction of the manual recount provision explains why a canvassing board is given three alternatives in section 102.166(5) in the event that it grants a manual recount request and the three-precinct sample manual recount reveals “an error in the vote tabulation.”21 The first two options permitted under section 102.166(5) do not require a complete manual recount of votes county-wide, but rather involve making repairs to the machine tabulating system so that it properly counts the votes....

...ng insight into the voter’s intent upon manual inspection. 25  If the vote tabulating machines serve merely as a screening device in counting valid votes, then the legislature, in enacting sections 102.166(4)-(7), inaptly refers to the process of manually counting dimple votes as a “recount.” In fact, a county’s initial vote count (including the automatic recount) is not complete until all ballots containing non-votes in any race have been examined manually. Nevertheless, section 102.166(4) provides that such a manual examination of ballots will be conducted only at a candidate or political party’s request, and only in those specific counties chosen by the candidate or political party.29 In other words, while Har...

...�� is requested are simply not counted. Under the selective dimple model, the standard of evaluating voter intent (i.e., what constitutes a valid vote) in a manual recount will differ from the standard applied 29 Fl. Stat. § 102.166(4) (“Any candidate whose name appeared on the ballot [or his political party] ....

...uests that dimple votes be counted. In a county where 10,000 total ballots were cast, a candidate will likely have 500 ballots from which he can hope to pick up additional votes by requesting that dimple votes be counted. 35 Fla. Stat. § 102.166(4)(c) (providing no standards for determining whether a candidate’s request for a manual recount should be granted, but rather stating simply that “[t]he county canvassing board may authorize a manual recount”). 36 Section 102.166(7) describes the procedures to be followed in the conduct of a “manual recount” of ballots and provides simply that the canvassing board’s objective in evaluating ballots is “to determine the voter’s intent.” Fla. Stat. § 102.166(7)(b)....

...vote party line. 28 to receive favorable interpretations of voter intent, in counties where the candidate shares a political party affiliation with the majority of the canvassing board. As discussed above, section 102.166(5) allows the county canvassing board to conduct a recount37 only if the results of the recount “could affect the outcome of the election.” Seemingly, the candidate who received the most votes state-wide according to the mach...

...47 This model for “recounting” votes in certain counties not only relies on candidates to select the counties, but it effectively restricts the candidates who may obtain a recount to the major party candidates. This is so because section 102.166(5) only permits manual counts if the board finds that it “could affect the outcome of the election.” Third party candidates for whom vote totals are critical if they wish to obtain federal funds for their party in the next electio...

...The frontrunner, on the other hand, is seemingly unable to get a county- wide manual count under the selective dimple model, as he could never show that an additional number of votes for him “could affect the outcome of the election.” Fla. Stat. § 102.166(5). 44 will turn, naturally, to those counties in which he believes he can make up the difference....

...tected 49 As noted in my description of the manual count statute, a full manual count should only occur when the sampling of precincts shows “an error in vote tabulation that could affect the outcome of the election.” Fla. Stat. § 102.166(5). The number of dimpled ballots generated in a sparsely populated county will almost certainly never be enough to make the requisite showing, thus the voters in small Florida counties – like the kid with two left feet – will never be...

...National Democratic Party, 508 F.2d 770, 777 (5th Cir. 1975) (“Any interference with the 51 Indeed, as I have noted, Bush’s requests would likely have been futile – no amount of dimple votes in his favor “could [have] affect[ed] the outcome of the election.” Fla. Stat. § 102.166(5). 49 freedom of a party is simultaneously an interference with the freedom of its adherents.”)....

...I contend that the injury to the voters in the instant case occurred once the time limit for requesting manual recounts had expired, and at least 57 one but not all counties had certified results containing manual recounts conducted pursuant to § 102.166.55 It was at that moment we could be sure that some voters had been disenfranchised, while others had suffered a debasement of their vote by the selective addition of dimpled votes to the total....

...Elections Canvassing Commission to issue amended vote certifications under Fla. Stat. §§ 102.121 and 103.011 that do not contain the results of manual recounts conducted in response to a candidate or political party’s request under Fla. Stat. § 102.166 (namely Volusia, Broward, Miami-Dade and Palm Beach Counties). I would further enjoin the Secretary of State and/or the Elections Canvassing Commission from issuing any future certification that includes manual recounts requested by a candidate or political party in select counties pursuant to Fla. Stat. § 102.166. I respectfully dissent. 63 BIRCH, Circuit Judge, dissenting; in which TJOFLAT and DUBINA, Circuit Judges, join: While I concur in the dissenting opinions by my colleagues, J...

...recount statute. Florida’s statutory election scheme envisions hand recounts to be an integral part of the process, providing a check when there are “error[s] in the vote tabulation which could affect the outcome of the election.” See Fla. Stat. Ann. § 102.166(5)....

...The effect of such an unguided, standardless, subjective evaluation of ballots to ascertain voter intent is to cause votes to be counted (or not to be counted) based only upon the disparate and unguided subjective opinion of a partisan (two members are elected in partisan voting) 2 See Fl. Stat. Ann. § 102.166 (West 1989)....

...Under Florida law, a manual recount may be requested by any candidate whose name appeared on the ballot, a political committee that supports or opposes an issue that appeared on the ballot, or a political party whose candidates’ names appeared on the ballot. See Fla. Stat. § 102.166(4)(a). Such a request must be filed with the canvassing board within 72 hours after midnight of the date the election was held, or before the canvassing board has certified the challenged results, whichever is later. See id. § 102.166(4)(b). The canvassing board may, but is not required to, grant the request. See id. § 102.166(4)(c); Broward County Canvassing Bd....

...separately by each county’s canvassing board. 3  Once authorized by a county canvassing board, a manual recount must include “at least three precincts and at least 1 percent of the total votes cast for such candidate.” Id. § 102.166(4)(d)....

...outcome of the election, the county canvassing board shall: (a) Correct the error and recount the remaining precincts with the vote tabulation system; (b) Request the Department of State to verify the tabulation software; or (c) Manually recount all ballots.” Id. § 102.166(5). Florida law specifies the procedures for a manual recount. Section 102.166(7) of the Florida Statutes provides that: (a) The county canvassing board shall appoint as many counting teams of at least two electors as is necessary to manually recount the ballots....

...Plaintiffs’ prayer for relief in their Complaint included the following: (a) Declaring that Defendants may not subject any vote totals to manual recounts; (b) In the alternative, declaring that Florida Statute § 102.166(4) is unconstitutional to the extent it does not limit the discretion of Defendants to conduct manual recounts in this case; (c) Declaring that Defendants should certify and release forthwith all vote to...

...V. This is an appeal from the denial of a preliminary injunction. Plaintiffs state two main claims. First, Plaintiffs argue that Florida’s manual recount scheme, and 17 particularly Fla. Stat. § 102.166(7), is unconstitutional because it contains no standards for when a ballot not read by the machine may be counted....

...isan decision-making, exacerbates the potential for unequal treatment of ballots, and thus warrants a federal court’s intervention. Second, Plaintiffs assert that they are denied due process and equal protection because, under Fla. Stat. § 102.166(4), ballots in one county may be manually recounted while ballots in another county are not....

...The canvassing board’s discretion is not standardless, but rather is guided by a statutory purpose of determining the intention of voters and correcting “an error in the vote tabulation which could affect the outcome of the election.” Id. §102.166(5)....

...ndidates can select particular counties, but also relevant to the Plaintiffs’ concern about the discretion of canvassing boards, any candidate has an equal right and an equal opportunity to request manual recounts in any county. See Fla. Stat. §102.166(4)(a)....

...safeguards relevant to both of the Plaintiffs’ concerns include: the fact that both the request and decision must be guided by the statutory standards of determining voters’ intent and correcting error which could affect the outcome, see id. §102.166(5), (7)(b); the fact that the decision is made, not by an ad hoc board, but by an existing board composed of statutorily designated officials, including a county judge, who are not active participants in the candidacy of any candidate, see id. §102.141; the fact that canvassing board meetings and any manual recounts must be open to the public, see id. §§ 102.166(6), 286.0105(1); and the fact that a canvassing board’s decision 6 The Plaintiffs do not claim to have lacked timely actual notice that manual recounts were requested by the Florida Democratic Party in the four counties at issue in this case....

...As provided by the plain language of the statute, the manual recount provisions are designed to remedy errors in the vote tabulation “which could affect the outcome of the election” and to arrive at the true “voters’ intent.” Fla. Stat. §§ 102.166(5), 42 (7)(b)....

...In fact, the manual recount statute mandates procedures to ensure fairness and accuracy in the conduct of any manual recount. Any manual recount must include at least one percent of the total votes cast and at least three precincts. See Fla.Stat. §102.166(4)(d). A manual recount must be open to the public, and 54 counting teams must have at least two members who are, when possible, members of at least two political parties. See id. § 102.166(6), (7)(a). Determination of the voter’s intent is the statutory standard. See id. § 102.166(7)(b)....

...See Beckstrom v. Volusia County Canvassing Bd., 707 So. 2d 720 (Fla. 1998); Boardman v. Esteva, 323 So.2d 259 (Fla. 1975). State courts have authority to review election challenges, whether brought by a candidate or party as a protest under Fla. Stat. § 102.166, or brought by a candidate, qualified voter, or taxpayer as a contest under Fla....

...manual recount statute. Florida’s statutory election scheme envisions hand recounts to be an integral part of the process, providing a check when there are “error[s] in the vote tabulation which could affect the outcome of the election.” See Fla. Stat. Ann. § 102.166(5)....

...The effect of such an unguided, standardless, subjective evaluation of ballots to ascertain voter intent is to cause votes to be counted (or not to be counted) based only upon the disparate and unguided subjective opinion of a partisan (two 2 See Fl. Stat. Ann. § 102.166 (West 1989)....

...78 not be detected by machine, and it has put in the record numerous affidavits supporting that view. The Florida Supreme Court seems to have embraced the theory as well by interpreting “error in the vote tabulation” in Fla. Stat. § 102.166(5) to include a discrepancy between a machine count and a sample manual recount in a punch card county....

...al scan counties, that would not lessen the violation of the Equal Protection Clause that occurred when the Florida Democratic Party selected 3 of the 24 punch card counties for manual recounts. 86 102.166(4), the Democratic Party filed written requests for manual recounts in Broward, Palm Beach, and Miami-Dade Counties, and no other punch card counties....

...st in the county has been conducted, the county canvassing board can manually recount all the ballots only “[i]f the manual recount [sample] indicates an error in the vote tabulation which could affect the outcome of the election.” Fla. Stat. § 102.166(5). Of course, the larger the number of votes in a county the greater the likelihood that a complete manual recount in that county alone will affect the election, and under § 102.166(5) that appears to be the measuring rod for undertaking a complete manual recount....

...complete manual recount in many of the punch card counties, regardless of which candidate the voters in that county favored.10 It may be that the Florida Democratic Party would have chosen the 3 punch card counties it did even without the requirement in Fla. Stat. § 102.166(5) that the sample recount conducted in each county show that the outcome of the election 10 The discrimination that results from making a manual recount dependent upon whether the recount difference in the county cou...

...Suppose further that in each of the 17 punch card counties that voted for Bush over Gore a sample manual recount showed that conducting a full manual recount would result in net gains for Bush of 25 to 100 votes in each of those 17 counties for a combined total net gain of 900 votes for Bush. As Fla. Stat. § 102.166(5) is written, it appears that complete manual recounts could not occur in those 17 less-populated counties, because the projected change in none of them, standing alone, would be enough to alter the statewide result, even though the combi...

...809, 819 (1953) (white primary case) (“[A]ny part of the machinery for choosing officials becomes subject to the Constitution’s restraints.”) (citations and 98 quotations omitted). The manual recount provision contained in Fla. Stat. § 102.166(4), and the selectivity it encourages or permits political parties to exercise in bringing about recounts, is an integral part of the election process in Florida, as we have seen in recent days, and the Supreme Court has held that “[a...

...the charges of discrimination or of abridgement of the right to vote.” Moore v. Ogilvie, 394 U.S. 814, 818, 89 S.Ct. 1493, 1495 - 96 (1969). The Florida manual recount statute gives government officials some discretion over whether to conduct a manual recount, see Fla. Stat. § 102.166(4)(c) (“The county canvassing board may authorize a manual recount”), and government officials are intimately involved in the actual recount procedure itself....

...moved from the statute that Florida does have. As I have previously pointed out, the statute appears to permit a full manual recount only if the sample recount indicates that a full recount in that county could affect the election result. Fla. Stat. § 102.166(5) (the county canvassing board can manually recount all the ballots only “[i]f the manual recount [sample] indicates an error in the vote tabulation which could affect the outcome of the election”)....

...The Butterworth letter does speak of the different treatment being a result of “differing behavior of official canvassing boards,” but it was the Florida Democratic Party that chose which county canvassing boards could undertake a manual recount pursuant to Fla. Stat. § 102.166(4)....

...defendants also argue that Florida law permits any political party with a candidate on the ballot, or any candidate whose name appears on the ballot, to file a written request with the county canvassing board for a manual recount. See Fla. Stat. § 102.166(4)(a)....

...could have requested a manual recount in any of Florida’s counties, the statute permits full manual recounts in only those counties in which a sample manual recount indicates “an error in the vote tabulation which could affect the outcome of the election.” Fla. Stat. § 102.166(5). Some of the punch card counties are so sparsely populated, so vote poor, that even if a manual recount had been requested and a sample recount conducted as provided in Fla. Stat. § 102.166(4)(d), the result of that sample recount would not have indicated that a full manual recount in the The opinion in Roudebush does observe that Indiana, along with many other states, had found that the availability of a recount wa...

...The constitutional rights involved are those of the voters in the other punch card counties. It is their votes and their constitutional rights at stake. The voters whose constitutional rights are being violated are not permitted to request a manual recount. See Fla. Stat. § 102.166(4)(a)....

...counties but not others, a fortnight later filed a brief in this Court telling us there is nothing to worry about after all. According to Attorney General Butterworth’s latest position on the subject, manual recounts can be requested or granted under Fla. Stat. 102.166(4)(a) - (c) in as selective or discriminatory a way as the human mind can imagine without running afoul of the Constitution....

...a party or candidate must meet in order to institute an election contest. A request filed by a political party or candidate before the results are certified merely has to set out grounds for a manual recount, and the county canvassing board can grant it. Fla. Stat. § 102.166(4)....

...Const.; Rule 9.125, Fla.R.App.P. After appellee James Ward was voted into the District 5 seat of Florida's House of Representatives on November 6, 1984, appellant Robert Harden challenged in the circuit court the validity and conduct of the election under sections 102.166 and 102.168, Florida Statutes (1983)....

...An examination of the statutory remedies under which appellant formulated his complaint and the procedural path which this case took indicate the wisdom of judicial deference to a legislative resolution in such a situation. Petitioner originally filed an election protest under section 102.166, Florida Statutes (1983), and an election contest under section 102.168, Florida Statutes (1983)....

...Jim Deckinger were the candidates in that election. Deck-inger was the winner of this election. On Saturday, October 8, 1988, Finno called Judge Robert Scott, the circuit judge in Broward County on weekend call, and told him about the protest he wished to file pursuant to section 102.166(2), Florida Statutes (1987)....

...earing on the protest for October 18, 1988 before Judge Barbara Bridge. At that hearing Judge Bridge held that Finno had not “presented the protest to a circuit judge within five days of midnight of the date the election occurred” as provided in section 102.166(2)(a), Florida Statutes (1987) and therefore dismissed the election protest. The question before us is whether or not Finno “presented” his election protest to a circuit judge within the time period prescribed by section 102.166, Florida Statutes (1987)....

...The appellant states that he seeks whatever other appropriate relief to which he is entitled under the allegations made. We thus reverse the order of the trial court for further proceedings including consideration of the mootness of any relief requested. ANSTEAD and GUNTHER, JJ., concur. . Prior to 1977, section 102.166, Florida Statutes (1965) provided in pertinent part: (2) Whenever any elector or candidate believes election returns are fraudulent he shall have a right to have an immediate hearing on proper affidavit before a circuit judge sitting in the county wherein it is alleged that there exist fraudulent returns....

...in such county wherein such fraud is alleged to have occurred. (a) The protest shall be presented to a circuit judge prior to the time the canvassing board adjourns or within 5 days of midnight of the date the election occurs, whichever last occurs. Section 102.166, Florida Statutes (1979). . Section 102.166(2)(b), Florida Statutes (1979) provides: The circuit judge to whom the protest is presented shall have authority to fashion such orders as he may deem necessary to insure that such allegation is investigated, examined, or checked; to...

...February 17, 2009." The trial court held the procedures employed by the supervisor complied with the statutes. That decision is amply supported by the law and the record on appeal. Affirmed. GROSS, C.J., and CIKLIN, J., concur. NOTES [1] See § 102.141(7), Fla. Stat. (2008). [2] See § 102.166, Fla....