The Resolution of Election Disputes: Legal Principles that Control Election Challenges 707 So.2d 720 707 So.2d 720, 23 Fla. L. Weekly S149 (Cite as: 707 So.2d 720) Page 3 lated by the elections supervisor's staff and certified by the canvassing board, Beckstrom received 52 percent of the precinct vote but just 40 percent of the absentee vote. According to the re-count, Beckstrom received 41 percent of the uncontested absentee votes and 37 percent of the contested overmarked absentee votes. Thus, Beckstrom received close to 40 percent of the total absentee votes in both the initial count and in the re-count. As appellant points out, the difference between the percentage of Vogel's precinct vote total and the percentage of his absentee vote total was 11 percentage points. However, we note that Vogel was not alone in receiving a significantly larger percentage of absentee votes than percentage of precinct votes. In the United States presidential election held the same day, another Republican Party candidate, Dole, showed a 9-percent margin between his percentage of absentee votes and percentage of precinct votes, and Republican Party congressional candidate Fields had a 15-percent margin between absentee and precinct vote percentage totals. A statistical expert who testified on behalf of Volusia County presented demographic explanations for the absentee voting percentage discrepancies. similarly marked, but it was impossible to determine whether they were marked over or newly marked. [FN5] Appellant alleged that this *723 process of re-marking with black markers was tainted with potential fraud. [FN6] The circuit court held a nonjury trial in which testimony was presented for seven days and argument of counsel was presented for one day. On the same day appellant filed his motion for a re-count, he filed a second amended protest and complaint, again alleging fraud and adding allegations of substantial failure on the part of Volusia County election officials to comply with the requirements of the election laws pertaining to absentee ballots. The absentee ballots were of crucial importance in the sheriff's election because, although appellant received more votes than Vogel in the precincts, Vogel received a sufficient majority in the absentee votes to overcome appellant's precinct vote margin of victory. Appellant asked the court to declare all of the absentee votes to be invalid and to declare him the winner based on the precinct vote alone. Appellant argued that absentee ballots were tampered with and modified in violation of section 101.5614(5), Florida Statutes (1995), [FN4] in that at least 6500 absentee ballots contained votes which were marked over with a black felttip marker; and an additional 1000 absentee ballots were FN5. The method of counting absentee ballots used in Volusia County for the 1996 election was called "Accu-Vote," which is an optical scan tabulating system. Five other Florida counties also used this type of optical scan system. In using this system, absentee voters were instructed to mark their ballots with number two pencils. The optical scanner rejected ballots which were marked with instruments other than number two pencils. Election supervisors in three other counties (Leon, Putnam, and Monroe Counties) using this type of optical scanner testified that their procedures in respect to rejected ballots was the same as the procedure used in Volusia County. The procedure was to use a black felt-tip marker to re-mark ballots that the scanner could not read. The re-mark was placed on top of the voter's original mark, making it possible 146 FN4. Section 101.5614(5), Florida Statutes (1995), provides in relevant part: If any ballot card ... is damaged or defective so that it cannot properly be counted by the automatic tabulating equipment, a true duplicate copy shall be made of the damaged ballot card in the presence of witnesses and substituted for the damaged ballot.... If any paper ballot is damaged or defective so that it cannot be counted properly by the automatic tabulating equipment, the ballot shall be counted manually at the counting center by the canvassing board.... After duplicating a ballot, the defective ballot shall be placed in an envelope provided for that purpose, and the duplicate ballot shall be tallied with the other ballots for that precinct. We construe "defective ballot" to include a ballot which is marked in a manner such that it cannot be read by a scanner. © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.