The Resolution of Election Disputes: Legal Principles that Control Election Challenges
323 So.2d 259.
323 So.2d 259
(Cite as: 323 So.2d 259)
Page 9
[9][10][11][12][13] As to the actual validity of the ballots
whose return envelopes are missing, we first point out that
as a general rule elected officials are presumed to perform
their duties in a proper and lawful manner in the absence of
a sufficient showing to the contrary, City of Miami Beach v.
Kaiser, 213 So.2d 449, 453 (Fla.App.3d, 1958), and also
that there is a presumption that returns certified by election
officials are presumed to be correct. Burke v. Beasley, 75
So.2d 7 (Fla.1954). This is because the canvassing of returns, including absentee ballots, is vested in canvassing
boards in the respective counties who make judgments on
the validity of the ballots. When the voters have done all
that the statute has required them to do, they will not be disfranchised solely on the basis of the failure of the election
officials to observe directory statutory instructions. Titus v.
Peacock, supra. It is not contended by respondent that the
absentee ballots in question were illegally cast or that they
were cast by voters who were unqualified to vote absentee.
The burden is clearly on the contestor to establish that the
ballots have been irregularly cast. Burke, supra. There is
nothing in the record to indicate that the absentee ballots in
question were not cast by qualified registered voters who
were entitled to vote absentee, therefore, the presumption of
the correctness of the election officials' returns stands.[FN5]
FN5. We agree with the trial court's observations
that:
'. . . The election process is subject to legislative
prescription and constitutional command and is
committed to the executive branch of government
through duly designated officials all charged with
specific duties. The canvassing of returns, including absentee ballots, is vested in canvassing boards
in the respective counties who make judgments on
the validity of the ballots. Those judgments are entitled to be regarded by the courts as presumptively
correct and if rational and not clearly outside legal
requirements should be upheld rather than substituted by the impression a particular judge or panel
of judges might deem more appropriate. It is certainly the intent of the constitution and the legislature that the results of elections are to be efficiently, honestly and promptly ascertained by election officials to whom some latitude of judgment is
162
accorded, and that courts are to overturn such determinations only for compelling reasons when
there are clear, substantial departures partures from
essential requirements of law. Such is not the case
here and this Court deems action by it to change
the result which the proper officers have reached
would be meddlesome interference not sanctioned
by proper judicial functions.' Final Summary Judgment, Esteva v. Hindman, Case No. 72--1481,
opinion filed October 2, 1973, Second Judicial Circuit.
*269 [14][15][16][17] Turning to the question whether the
procedure utilized in canvassing and counting the absentee
ballots in Hillsborough County violates the requirement of
secrecy, thus invalidating all the absentee ballots cast in that
county, we hold that it does not. It has long been recognized
in this State that by voting absentee the elector waives the
secrecy of his ballot Hutchins, supra. Likewise in McDonald
v. Miller, supra, we held that the privilege of secrecy is personal to the voter, and if he so desires may waive it. Although we do not suggest that there has been a personal
waiver of an individual voter's right to secrecy here, we
make the following two observations. First, it is not contended that the privilege of secrecy was violated in the actual
casting of the ballots by the voters. Rather, it is contended
that the order entered by the Hillsborough County Circuit
Court in Levine, et al. v. Falsone, et al., Case No. 213299,
opinion filed October 7, 1972, requiring the Hillsborough
County Canvassing Board to assign a number to each absentee elector for purposes of maintaining the integrity of
the ballots and votes for purposes of judicial review, which
order was entered subsequent to the actual casting of the absentee ballots on October 3, 1972, enabled the election officials to determine which voter voted for which candidate.
We emphasize that it has not been contended that the voters
were in any way influenced in their voting by the order in
question or that they even were aware of it. Nor is there any
allegation that a violation of secrecy has actually occurred.
This was nothing more than an honest attempt to preserve
the integrity of the ballot in case the election was contested.
Our second observation is that we are not at all convinced
that either petitioner or respondent has standing to raise the
issue of violation of secrecy of the ballot. Being personal to
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