All eyes free to count under Florida law
From the Winter 2001 issue of The News Media & The Law, page 4.
By Catherine Cameron
Although the presidential election vote recount in Florida caused tension for the candidates and the country, state law was kind to reporters seeking access to the ballot-counting process and to the ballots after the election was certified.
Florida has access-friendly open records laws, which gave the public the opportunity to see the vote-counting process live and to inspect the ballots once the official count was completed. Had this process happened in a less access-friendly state, the questions surrounding the results of the election might have been less about the validity of court decisions and more about the validity of the actual count.
The real test for the Florida open records laws came when the media looked beyond the election and the recounts to the opportunity for an independent assessment of the ballots. By late November, The Miami Herald, St.Petersburg Times, Los Angeles Times and the government watchdog group Judicial Watch were among the organizations that had filed requests with the Miami-Dade County and Palm Beach County supervisors of elections to look at the ballots. When the supervisors of elections stalled in responding to these requests, two groups filed lawsuits.
On Nov. 21, Palm Beach County Circuit Court Judge Jorge Labarga granted Judicial Watch the right to inspect Palm Beach County ballots. However, he later rejected the group’s request to continue counting ballots when, eight days later, Leon County Circuit Court Judge N. Sanders Sauls directed that the ballots be transferred to Tallahassee. (Judicial Watch, Inc. v. LePore; Gore v. Harris)
In the crusade to access the Miami-Dade ballots, Circuit Judge Alan Postman cleared the way for media access by ordering the county to produce the ballots before Dec. 14 or prove why it could not. Under the open records law, election officials had to comply with requests to inspect the ballots because there is no specific exemption of them, according to Sandra Chance, director of the Brechner Center for Freedom of Information at the University of Florida in Tallahassee.
At the hearing in Miami, county officials agreed to release the ballots to the media once they returned from Tallahassee, but they also voiced concern about the inspection process.
“The county’s problem was ‘what kind of process are we going to use so that this works efficiently,'” said Sandford Bohrer, an attorney representing the media organizations. (Knight Ridder v. Villafana)
Although the Florida public records law supports access to the ballots, it restricts the manner of inspection. Individuals or groups may visually inspect ballots and may record the number of votes cast, but state law permits only the supervisor of elections or an election official to physically handle the ballots.
Florida law also requires the media organizations or others requesting ballot access to pay the expenses involved in access, including employee salaries and equipment costs. Barbara Peterson, executive director of The First Amendment Foundation, said Palm Beach County tried to charge Judicial Watch and the Palm Beach Post $1,100 an hour to inspect ballots. This figure was eventually negotiated down, according to John Bartosek, managing editor for the The Palm Beach Post.
“We got it down to level that we are quite comfortable with paying,” he said.
In a separate count underway in January, the Palm Beach Post, The Miami Herald and the Republican Party have reportedly split the $125-an-hour fee to Palm Beach County.
Miami-Dade County’s supervisor of elections took a different approach, charging $10 an hour to anyone wanting to sit at a table while employees of the supervisor of elections held up ballots for inspection.
In addition to paying the fees, some media organizations have had difficulty obtaining the exact ballots they want to inspect. The Orlando Sentinel, the (Fort Lauderdale) Sun-Sentinel and The New York Times joined in a lawsuit against one county in order to force it to separate the disputed ballots that the media were interested in counting from those they were not.
“We had asked to look at undervotes and overvotes and they refused,” said David Bralow, counsel for The Orlando Sentinel. “They said ‘you can look at all the ballots, and you can decide what an overvote and undervote is.’ There are 70,000 ballots, and the way we calculated it that would take about 73 days.”
The supervisor of elections had purchased software that could separate ballots in anticipation of a Florida Supreme Court ruling requiring them to recount the ballots before the election was certified. According to Bralow, if the county used this software it would only take them one day to separate, and two or three days for the media to inspect the segregated ballots. Circuit Judge Sherra Winesett sided with the media and ordered the county to separate the undervotes and overvotes for the media.
“The court said you’ve got to segregate,” Bralow said. “We have the same issue in Lake County and a few others, but we hope this case will solve those issues.” (The Orlando Sentinel v. Anderson)
In late January, there were two large coalitions of news media inspecting ballots or planning to inspect ballots in the state. An accounting firm working on behalf of The Miami Herald, Los Angeles Times, The New York Times, Time Inc., New York Daily News, and USA Today began looking at all 60,000 undervotes — those ballots that, when read by machine, did not register a vote for any candidate. When the counts started shortly after the new year, the firm projected it would take three weeks to complete.
Meanwhile, The Orlando Sentinel, The New York Times, the Associated Press, The Washington Post, CNN, The Palm Beach Post and St. Petersburg Times are involved in an effort to look at the 180,000 overvotes — those ballots that registered a vote for more than one candidate — and undervotes to begin at the end of January. Additionally, The Palm Beach Post released its review of 10,600 ballots that were not hand-counted by the Miami-Dade canvassing board because the count was terminated prior to completion. In its assessment, the Post reported more than 7,000 ballots had no mark in the presidential column, and, according to one election official, about 2,200 votes were not counted because the voter failed to insert the card properly into the counting machine.
“The media I have talked to have been real clear that they are not going to provide any kind of a recount,” Chance said. “They are going to describe what they saw — this many had marks that are clearly distinguishable and these did not. They are not going to talk about counts.”
The media attention on the votes from the Sunshine State even after Inauguration Day does not diminish the validity of the election, according to Richard Scher, political science professor at the University of Florida. In fact, he said, it only strengthens the validity of the election along with other fundamental principals of democracy.
“I think it is extremely important that these ballots be publicly viewed and noted,” Scher said. “In the absence of airing them publicly it is much too easy to hide or fake or even distort the results. In the long run it might emphasize things people have been hearing about since the third grade, that voting is a fundamentally essential matter of the public’s business. Once people see this and realize that what we are trying to do is to make sure that the public business was accurately and correctly done, that will have the effect of reinforcing in people’s minds that our democracy does in fact work.”
For Scher the events of the election presented the ideal inter-play between government and the press. In this election, the press lived up to its title of the Fourth Estate.
“The media counting is not only a good thing, it is the only thing, because otherwise this election would be signed, sealed and delivered and nobody would ever look at it again,” he said. “This is the most perfect example I could possibly examine. This is, in fact, a textbook version of what the media’s major role is in our politics. What they are doing is absolutely critical.”
Chance said once the sting of a protracted and questionable election subsides, Florida should be less maligned for its voting irregularities and more revered for its good access laws.
“I would like to know which state would have done it better — especially in states that don’t have open access laws. We wouldn’t have had a clue what was going on,” she said. “I think if you would have examined any other state you would have at least as many voting irregularities, but we wouldn’t have known about it.”