The Palm Beach Legal Precedent

No cause for Dem squawking

By Dave Kopel of the Independence Institute

11/09/00 9:00 a.m., National Review Online. More by Kopel on the 2000 election recount.

According to some Florida Democrats, the particular layout of ballots in Palm Beach was confusing to voters, and resulted in mistaken votes for Buchanan which were actually intended for Gore. The Florida judiciary has already addressed the issue of post-election claims about ballot confusion, and the precedent is unfavorable to those who want the election overturned.

In the September 10, 1974, Republican primary in Pinellas County, several losing candidates brought a post-election suit against county election officials. (Pinellas sits on the Gulf Coast, and includes St. Petersburg.)

At issue was the longest ballot in Pinellas County history. To save space so that every candidate and issue could fit on the voting machine, the election officials had created a ballot on which the list of candidates for some offices appeared on two lines. In a particular race, for example, the first three candidates, listed alphabetically, appeared on one line, and the last two candidates, alphabetically, appeared on the next line.

A lawsuit demanding a new election was filed by candidates who appeared on the lower line and lost. The Florida trial court agreed. But on October 15, 1974, the Second District Court of Appeal unanimously overturned the trial judge, and let the original election stand. (Nelson v. Robinson, 301 So.2d 508, Fla. Ct. App. 2d Dist., 1974.)

The Court of Appeal explained:

Keeping in mind that we are talking about a claim made after an election, and not one which may have been enforceable before, if a candidate appears on the ballot in such a position that he can be found by the voters upon a responsible study of the ballot, then such voters have been afforded a full, free and open opportunity to make their choice for or against that particular candidate; and the candidate himself has no constitutional right to a particular spot on the ballot which might make the voters' choice easier. His constitutional rights in the matter end when his name is placed on the ballot. Thereafter, the right is in the voters to have a fair and reasonable opportunity to find it; and as to this, it has been observed that the constitution intended that a voter search for the name of the candidate of his choice and to express his of the candidate of his choice without regard to others on the ballot. Furthermore, it assumes his ability to read and his intelligence to indicate his choice with the degree of care commensurate with the solemnity of the occasion.

The Court of Appeal also cited a U.S. Supreme Court case in which the high Court explicitly and unanimously affirmed a Pennsylvania federal court which had ruled that an unfavorable location on the ballot was not a form of unconstitutional discrimination against a candidate. (Gilhool v. Chairman & Com'rs., Philadelphia Co. Bd. of Elec., 306 F.Supp. 1202 (E.D.Pa.1969), aff'd 397 U.S. 147 (1970).)

In Palm Beach this year, the ballot form was approved beforehand by Democratic Supervisor of Elections Theresa LePore. This fact relates directly to the Florida Court of Appeal's point that "it has often been held that one who does not avail himself of the opportunity to object to irregularities in the ballot prior to the election may not object to them after." 

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