Chapter 3 The Florida Supreme Court then reviewed the law as it stood prior to the Boardman decision and the public policy reasons for allowing people who could not get to their polling place on election day to cast a ballot absentee. Then the Florida Supreme Court said, In developing a rule regarding how far irregularities in absentee ballots will affect the result of the election, a fundamental inquiry should be whether or not the irregularity complained of has prevented a full, fair and free expression of the public will. Unless the absentee voting laws which have been violated in the casting of the vote expressly declared that the particular act is essential to the validity of the ballot, or that its omission will cause the ballot not to be counted, the statute should be treated as directory, not mandatory, provided such irregularity is not calculated to affect the integrity of the ballot or election. At 265 (emphasis supplied). Mandatory procedures in a statute must be followed. If mandatory procedures in a statute are not followed, the act allowed by the statute, such as casting a ballot, is void. Directory procedures in a statute should be followed. If directory procedures in a statute are not followed, the act allowed by the statute is not void.56 Accordingly, the statement of the Florida Supreme Court in Boardman is an extremely broad and concise statement of when a court will follow a legislative dictate and when it will not. The impact of this statement on Mr. Esteva’s burden of proof illustrates the decisive practical effect it has in cases challenging elections. The Florida Supreme Court said that technical irregularities committed by election officials were incapable of outweighing the peoples’ right to a free and fair expression of their will if the voters are qualified voters. So Mr. Esteva, having proven that the irregularities happened, now had to show that the voters themselves were not eligible to cast their absentee ballots, not just that their ballots were not cast according to the rules.57 Mr. Esteva was left with what looked like an impossible burden of proof. And it was. When the Florida Supreme Court reviewed the facts that bore on the question of whether the voters were legitimate voters, it found that the counties involved were small, where the election officials personally knew many of the voters who cast the ballots that were found to have irregularities. The supreme court found that other voters, whose ballots also were found to have irregularities, filled out their applications for absentee ballots and then voted the ballots while they were in the election officials’ office, and that the election officials knew many of those voters. One can see the direction in which the supreme court was going. The election officials knew the voters. Therefore, the election officials knew that the voters satisfied the requirements for absentee voting. Therefore, the officials did not err in allowing those people to vote by absentee ballots. Therefore, the ballots were not invalid and should have been counted. Under these circumstances, Mr. Esteva had not shouldered his burden of proof—he had not overcome the presumption that the election officials’ actions were correct.58 The failure to void an act that was taken incorrectly does not mean that people can violate directory statutes with impunity. A violation of a directory statute simply means that the election result will not be overturned. That violation, however, can result in corrective action or punishment imposed on the person who failed to correctly follow the direction, ranging from a job-related reprimand, retraining or disciplinary proceeding to criminal prosecution. 57 The statute containing the absentee balloting requirements did not say that the failure to strictly adhere to the procedures would cause a ballot to be invalid, void or illegal. 58 The string of presumptions in Boardman seem perilously close to the string of inferences that Mirlisena v. Fellerhoff, 463 N.E.2d 115 (Ohio 1984), taught us courts were not supposed to make. The difference is that the Florida Supreme Court’s conclusions in Boardman are based on the principle that officials’ actions are presumed to be valid, and those presumptions can only be overcome by specific proof. The plaintiff in Mirlisena tried to overcome those presumptions based on a series of inferences upon inferences rather than specific evidence. Boardman and Mirlisena both illustrate once again that meeting a plaintiff ’s burden of proof in election dispute cases is very difficult. 56 53