Beckstrom v. Volusia County 707 So.2d 720 707 So.2d 720, 23 Fla. L. Weekly S149 (Cite as: 707 So.2d 720) that it thwarts the will of the people. [7] Elections 227(1) 144k227(1) Most Cited Cases Court should not frustrate the will of voters by voiding election if failure by election officials to perform official election duties is unintentional wrongdoing and the will of the voters can be determined. [8] Elections 216.1 144k216.1 Most Cited Cases County process of re-marking defectively marked and thus unreadable ballots was not in substantial compliance with election statutes, even though process was widely used, recommended by manufacturer's representative, and approved by state Division of Elections. West's F.S.A. § 101.5614(5). [9] Elections 300 144k300 Most Cited Cases Trial court's finding of "gross negligence" on part of election officials, that re-marking of defective and unreadable ballots was not in compliance with election statutes and was opportunity for fraud, was measurement of culpability of election officials but was not finding that election failed to express the will of the voters; therefore, trial court was within its discretion in determining from evidence that election was a full and fair expression of the will of the people. [10] Elections 298(1) 144k298(1) Most Cited Cases Trial court had jurisdiction to consider and decide issue presented in election contest by unsuccessful sheriff candidate alleging fraud and substantial failure by county election officials to comply with requirements of election laws pertaining to absentee ballots. West's F.S.A. §§ 102.166(11), 102.168. *721 Donald W. Weidner and Jeanine H. Coris of Weidner & Wortelboer, Jacksonville, for Appellant. Daniel D. Eckert, Volusia County Attorney, and James R. Clayton, DeLand, for Appellees. WELLS, Justice. We have for review a final judgment of the Circuit Court of the Seventh Judicial Circuit in Volusia County, which judg- Page 2 ment has been certified by the Fifth District Court of Appeal as presenting an issue of great public importance, having a great effect on the proper administration of justice throughout the state, and requiring immediate resolution by this Court. We have jurisdiction. Art. V, § 3(b)(5), Fla. Const. This case arises out of the November 5, 1996, Volusia County election in which appellant Gus Beckstrom was an unsuccessful candidate for sheriff. On November 8, 1996, pursuant to section 102.166(11), Florida Statutes (1995), [FN1] appellant filed in the circuit *722 court a protest of the election returns. The protest was based on allegations of fraud in the counting of absentee ballots by the staff of the Volusia County Supervisor of Elections. County election officials had tabulated the votes, and appellee Volusia County Canvassing Board [FN2] had subsequently certified the result to the Department of State, which declared incumbent Sheriff Robert L. Vogel, Jr. to be the winner of the election. FN1. Section 102.166(11), Florida Statutes (1995), provides in relevant part: Any candidate for nomination or election, or any elector qualified to vote in the election related to such candidacy, shall have the right to protest the returns of the election or the practices attendant thereto as being fraudulent by presenting to any circuit judge of the circuit wherein such fraud is alleged to have occurred a sworn, written protest. FN2. A county canvassing board is composed of the county supervisor of elections, a county court judge, and the chair of the board of county commissioners. § 102.141(1), Fla. Stat. (1995). One month after filing the initial protest, appellant moved the court to order a manual re-count of the absentee ballots. The court granted the motion, and the clerk of the circuit court conducted a re-count, which was observed by representatives for both candidates. The clerk's re-count revealed that, despite miscounts in the initial ballot count, Vogel was the winner of the election. The re-count showed 79,902 total votes for Vogel and 77,012 total votes for Beckstrom. [FN3] FN3. According to the vote counts initially tabu- © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 145