Pursuant to Florida Statute §102.166, if the results of an electronic recount “…indicates that a candidate for any office was defeated or eliminated by one-quarter of a percent or less of the votes cast for such office… a manual recount of the overvotes and undervotes cast in the entire geographic jurisdiction of such office or ballot measure shall be ordered…”

By definition, an overvote occurs when a voter “…marks or designates more names than there are persons to be elected to an office or designates more than one answer to a ballot question, and the tabulator records no vote for the office or question.” Fl. Stat. §97.021(25)

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Separately, an undervote occurs when a voter “…does not properly designate any choice for an office or ballot question, and the tabulator records no vote for the office or question.” Fl. Stat. §97.021(39)

In other words, a ballot that indicates a decision to vote for both candidates in a two candidate race is an “overvote” ballot. Equally, a ballot that does not evince a choice of at least one candidate is an “undervote” ballot.

What Causes an Overvote or an Undervote?

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Overvotes can happen for a variety of reasons. A voter may, for reasons only known to that person, choose both candidates. I believe that this is a political statement more often than not, but it is clearly not a vote for one candidate over another and therefore cannot be counted.

In other instances, a voter may choose a candidate, mark the ballot accordingly, but then change their mind and select another candidate. Such a decision may be evinced in ways that the scantron cannot tabulate – such as crossing out the first choice and circling the second one.

Whatever the reason, the scantron machine is just that – a machine. It performs one function: its optical scanner detects opaque marks in bubbles. That is all. It does not interpret or read into voter actions. It reads bubbles and that is it. It does not read lines through names, crossing out of names, circling of names, dots, stray marks, food stains, ink blots, tears, perforations, or other like markings.

The same rule applies to undervotes. In some instances, a voter may be a naturalized citizen voting in their first election and are unfamiliar with scantrons. Alternatively, the voter may have a disability or be infirm and lack the physical ability to properly mark the bubbles corresponding to their choices such that they become legible to a scantron machine.

In other instances, a voter may not bubble in anything at all and express their choices by circling names or by crossing out the ones they don’t want.

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The point is this: Overvotes and undervotes happen because people are human… they may fail to follow instructions, they may lose their grip on a pen and make unintentional marks, and because people use ballots to make statements beyond a voting choice – as I saw from one voter who literally chose every candidate and another voter who chose none.

Whatever the reason, scantron machines are unable to tally undervotes and undervotes because they require a human mind to understand. To address this problem, scantron machines are programmed to identify and separate ballots that reflect an overvote or an undervote.

When a manual recount is triggered by Fl. Stat. §102.166, only the overvotes and undervotes are counted. It is not a recount of every single ballot cast in the election. In fact, the only time overvotes and undervotes are ever counted is when a manual recount is ordered.

Have a Question? Contact Us!

Brian Silber has provided legal counsel to numerous candidates for public office, including multiple members of our judiciary. We are available on a moments notice for any election law issue.

Reach Brian Silber at: 954-462-3636

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