The Resolution of Election Disputes: Legal Principles that Control Election Challenges Mr. Boardman then appealed to the Florida Supreme Court. There was no disagreement about whether the irregularities happened—they did—or about whether they actually were irregularities (meaning departures from state requirements)—they were. The supreme court had to decide which of the two lower courts, the trial court or the appellate court, was correct in its assessment of whether the irregularities that were proven made the ballots illegal. The Florida Supreme Court agreed with the trial court, not the appellate court. The supreme court’s analysis of the underlying issues provides a wonderful recitation of the reasons courts make the distinction between mandatory and directory statutory language in election challenges. To begin, the court announced the issue: “At issue is whether the absentee voting law requires absolute strict compliance with all its provisions, or whether substantial compliance is sufficient to give validity to the ballot.” At 262. Then the court defined its approach to the facts and law of this case in broad terms. We first take note that the real parties in interest here, not in the legal sense but in realistic terms, are the voters. They are possessed of the ultimate interest and it is they whom we must give primary consideration. The contestants have direct interests certainly, but the office they seek is one of high public service and of utmost importance to the people, thus subordinating their interests to that of the people…By refusing to recognize an otherwise valid exercise of the right to a citizen to vote for the sake of sacred, unyielding adherence to statutory scripture, we would in effect nullify that right. At 263. B.1. Procedural violations will not defeat the will of the electorate. The Florida Supreme Court made very clear what was not involved in the case: “Notably existent in this dispute is the complete absence of any allegation of fraud, gross negligence or even the hint of intentional wrongdoing.” And then the court set out the idea that serves as the foundation upon which the remainder of its remarkable decision is based. It noted that if the voters who cast absentee ballots in the election were “qualified, registered electors, who were otherwise entitled to vote absentee, notwithstanding the alleged defects,” then a majority of the voters in the judicial district wanted Mr. Boardman to win. At 263 (emphasis supplied). This approach to the facts is crucial to understanding the way that the courts—all courts, not just the Florida courts—read the statutes that govern elections. This approach proceeds from the definition of “the electorate” as the legitimate voters who cast ballots in a particular election. The principle that evolves from this approach, therefore, is if the voters are legitimate voters, then any decision that their ballots should not be counted will change the will of the electorate. This is the fundamental principle underlying the approach of the courts to statutory interpretation in election dispute resolution. In Boardman, the supreme court also made clear the corollary of this principle: that there is no legitimately expressed will of the electorate if the ballots are not legitimate and the election has been tainted.55 This must not be overlooked. If we are to counteance [sic] a different result, one contrary to the apparent will of the people, then we must do so on the basis that the sanctity of the ballot and the integrity of the election were not maintained, and not merely on the theory that the absentee ballots cast were in technical violation of the law. At 263. 55 Note the similarity of this statement to the result in Green v. Reyes, 836 S.W.2d 203 (Tex. App. Houston 1992), discussed in Chapter 2. 52