How does an election recount work?
Palm Beach County, Florida’s third largest county and ground zero for the historic 2000 electoral crisis that led the state to overhaul its troubled vote-counting process, may not make the deadline for recounting votes in at least two tightly contested races.
Elections Supervisor Susan Bucher said Monday her office expects to complete a machine recount in the critical U.S. Senate race, in which Gov. Rick Scott has seen his lead over incumbent Bill Nelson shrinking and likely to trigger a manual recount. But the decade-old machines, which can only tally one race at a time, won’t be able to process a recount in the races for governor or commissioner of agriculture by the 3 p.m. Thursday deadline, Bucher said. So does that mean the count is over?
“There’s no way it’s done,” said University of Florida political scientist and voting expert Dan Smith, who said overseas and military ballots have until Nov. 16 to arrive. “The idea that we’re going to have a recount even before there’s a count is rather absurd.”
But it’s sure to set off legal wrangling over what constitutes an extension of the deadline to send the state the results of the recount, which Secretary of State Ken Detzner says by law he’s not allowed to grant.
“If they don’t meet the deadline Thursday we’re going to have a lot of very upset people filing more lawsuits and litigation,” said Palm Beach County Republican party chairman Michael Barnett.
The scramble to meet the Thursday deadline has once again put the county on the hot seat in an explosive election and Bucher, who became elections supervisor in 2009, under scrutiny. Scott, joined by President Donald Trump and Sen. Marco Rubio, have accused Democrats of vote fraud, even though none has been found by state police or monitors sent by the state’s election office. Barnett also complained that Bucher, a Democrat sued by Scott last week to allow Republican Party reps to witness recounts, should have anticipated problems with the outdated machines and prepared a back-up plan.
“She says this is a scenario nobody could have anticipated. But the other 66 supervisors met and anticipated the needs,” he said. “Whether it’s the fault of the secretary of state [who certifies voting machines] or the supervisor, something should have been done a long time ago.”
On Sunday, Bucher said it looked unlikely that the machines would finish any recounts. But Monday, she said round-the-clock work had cleared the backlog of early and mail-in votes. Races will be recounted following the descending order on the ballot, she said. The U.S. Senate race was first.
“The way they have been working overnight I didn’t anticipate that everybody would be able to get through all those ballots and they’ve been extremely successful,″ she told the Palm Beach Post.
By law, elections with a margin of 0.5 percent or less must be recounted by machine. If the margin is less than .25 percent, votes must be hand-tallied. Following Saturday’s preliminary count, the Senate and agriculture commissioner race met the threshold, with Scott ahead of Nelson by .15 percent and Democrat Nikki Fried leading Republican Matt Caldwell by .06 percent. But in the governor’s race, the split between Republican Ron DeSantis over Democrat Andrew Gillum was .41 percent.
So what happens if the elections office blows the deadline?
According to Florida laws that govern recounts, if Palm Beach County can’t finish the machine recount, it must submit its original count with an explanation for why it failed to meet the deadline. But the law also instructs canvassing boards to continue and complete the machine recount.
The machine count also sorts ballots where voters over-voted by casting too many votes for a candidate, or under-voted by indicating none, which are targeted for closer scrutiny during manual recounts. So it’s not clear how those ballots will be identified if the machine counts end.
A spokeswoman for Detzner, who responded to voice mail and email requests for clarification, did not directly answer the question, but said earlier in the week that state laws don’t give the secretary of state the authority to grant extensions.
But attorney Kendall Coffey, who represented former Vice President Al Gore in the 2000 legal challenge, said election law revisions were intended to keep the count going until it’s completed.
“You don’t give up just because you missed the first deadline and stop,” he said.
In 2000, George W. Bush narrowly led Gore at the end of election night, unleashing a round of challenges that gave the world the hanging chad and butterfly ballot. After candidate Pat Buchanan, who had never campaigned in Palm Beach, unexpectedly captured a large number of votes, a closer look at the ballot revealed that many voters had voted twice, possibly confused by the side-by-side punch card butterfly lay-out.
The Republican-controlled Legislature fought to end the count, but the Florida Supreme Court sided with the ongoing recount and supported extensions.
“We spent a lot of time on this 18 years ago. The Florida Supreme Court said yes. The U.S. Supreme Court rejected that decision and said you have to go back and do a better job of explaining why you think you need to extend these deadlines,” Coffey said.
In the years since, laws were overhauled, including the law defining the recount. But they have so far not been tested like the fight now brewing, he said.
If Detzner orders the recount to stop after the deadline at 3 p.m. Thursday, Coffey expects Gillum’s supporters to take legal action.
But at least some Republicans think that would be pointless.
“Anybody who would hope to contest the results of an election solely on the votes they would have gained in Palm Beach is going to be out of luck because statistically those votes are not going to be there,” said Juan-Carlos “J.C.” Planas, a Republican campaign strategist and former Republican state representative.