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Many absentee ballots that have not been counted were rejected for legitimate reasons. Some were cast by voters who showed up to vote in person on Election Day. Others were not signed. It is unlikely that absentee ballots with serious flaws like these will be counted. Perhaps most difficult are the unknown number of absentee ballots thrown out because rushed election workers could not read the handwriting or decided that the signature on the absentee ballot did not match one on file in the election records.
The Democrats have an absentee-ballot challenge of their own. In Seminole County, a Republican election official allowed Republican functionaries to work out of the election office, adding required information on thousands of absentee-ballot applications that had not been provided by the voters. Democrats have gone to court to challenge all 15,000 absentee votes cast in the county.
THE CONTEST PHASE
--What is a candidate's recourse once the votes have been certified?
Florida law allows the losing side to "contest" the results of an election only after they are certified. At this stage, the disputes move from the local canvassing board to the courts. The procedure calls for holding a hearing in circuit court, at which witnesses can testify and evidence can be presented. If the Democrats contest, they could present testimony ranging from Palm Beach voters saying they were confused by the butterfly ballot to members of the Miami-Dade canvassing board saying they were intimidated into dropping their manual recount. Democrats could also present statisticians to argue that some of the reported results--like the number of votes for Pat Buchanan in Palm Beach County or the number of voters who did not make a choice for President--are statistically unlikely.
The judge hearing the case may investigate the allegations and "provide any relief appropriate under the circumstances." That appears to be broad authority, but it is unclear what a judge would actually do at this point. A separate Palm Beach County lawsuit asking for a new election there has already been denied, and in any case, there would be little time for one. Similarly, the claims by black voters that they were impeded in voting would be difficult to address at this point without ordering a new election. A court might be more likely to take action with respect to existing ballots, such as ordering that the 156 votes already counted in Miami-Dade be added to the totals.
If the Democrats contest the election as planned, the halted recount in Miami-Dade County will be a central part of their case. The intimidation claim gives them what they see as the moral high ground. They believe they can recover a large number of votes in Miami-Dade if the recount goes forward. If a court finds that the canvassing board was illegally intimidated, it can order that those ballots be counted, either by directing the board to do so or by appointing a special master to take charge. The Democrats may also challenge the Nassau County canvassing board's decision to certify results from election night rather than from a machine recount that gave Gore an additional 52 votes.
THE LEGISLATURE'S ROLE
--Can the Florida legislature choose which electors to send to the Electoral College?