Broward County Canvassing Bd. v. Hogan, 92-0034
| Decision Date | 12 November 1992 |
| Docket Number | No. 92-0034,92-0034 |
| Citation | 607 So.2d 508 |
| Parties | 17 Fla. L. Week. D2542 BROWARD COUNTY CANVASSING BOARD, Appellant, v. Alfred S. HOGAN, Appellee. |
| Court | Florida District Court of Appeals |
John J. Copelan, Jr., County Atty., and Robert E. Hone, Asst. County Atty., Fort Lauderdale, for appellant.
Steven D. Rowe, Fort Lauderdale, for appellee.
This is a timely appeal of the trial court's final order directing appellant, Broward County Canvassing Board, to conduct a manual recount of the results of the March 12, 1991 election for City Commission of Oakland Park. We reverse and remand.
On March 12, 1991, appellee, Alfred S. Hogan lost an election for a council seat on the City Council of Oakland Park in Broward County, Florida. In the election, Douglas P. Johnson was the winning candidate. A total of 2,609 votes were cast, which included fifty-eight overvotes and forty-two undervotes. On first count, the election resulted in appellee receiving 1,016 votes and his opponent, Johnson, receiving 1,019 votes.
On the same evening as the original computer count, a computer recount was obtained, in which appellee received 1,014 votes and his opponent, Johnson, received 1,019 votes. The total votes cast remained 2,609; however, two votes previously cast in favor of appellee in one precinct were this time classified as overvotes thereby causing appellee to lose by five votes. The result of the recount was certified by the appellant, Broward County Canvassing Board.
The following day, appellee requested a hearing to contest the results and requested a manual recount of the election results. The request for a hearing was granted. The minutes of the hearing reveal that appellee stated that he wanted a recount because of the closeness of the election and the differences between the two machine counts. Appellant explained that voter errors in the piercing of computer ballot cards created loose or hanging paper chads which, although present on the first count, subsequently fall away on a recount, thereby causing the difference in count. Such voter errors, the board explained, are caused by hesitant piercing, no piercing, or intentional or unintentional multiple piercing of computer ballot cards, creating what are referred to as overvotes and undervotes. The board thereupon denied appellee's request for a recount.
Appellee timely filed this action in the circuit court pursuant to section 102.168, Florida Statutes (1991). Although there was no evidence adduced that the machines were malfunctioning, improperly used, or improperly calibrated, nor any evidence adduced that there was fraud or impropriety in the manner in which the election was held, nonetheless, the trial court reversed the denial of appellee's 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. Sec. 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. Sec. 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. Sec. 102.166(4)(c), Fla.Stat. (1991). In addition, the candidate may also challenge a certification of the results of an election by filing a complaint in circuit court. Sec. 102.168, Fla.Stat. (1991).
A companion to the contest statute is section 102.1682, which enumerates the remedies available for the successful challenger under section 102.168. In relevant part, section 102.1682, Florida Statutes (1991), states:
102.1682 Judgment of ouster; revocation of commission; judgment setting aside referendum.--
(1) If the contestant is found to be entitled to the office, if on the findings a judgment to that effect is entered, and if the...
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