Beckstrom v. Volusia County 707 So.2d 720 707 So.2d 720, 23 Fla. L. Weekly S149 (Cite as: 707 So.2d 720) for the scanner to then record the vote. This was the procedure recommended by the manufacturer's representative of the company that sold the optical scanners to Volusia County. The Supervisor of Elections for Leon County testified that this remarking procedure was approved for use in processing absentee ballots by the Division of Elections of the Department of State. FN6. Other vote-counting irregularities alleged by appellant included appellant's claims that absentee ballots were left unattended and accessible at the office of the elections supervisor; that absentee ballots were opened by various persons outside the presence of any member of the canvassing board; that sheriff's deputies had access to and participated in the opening of absentee ballots; that individuals who were not employees of the elections supervisor participated in the opening of absentee ballots; that doors of the elections office were locked and not open to the public when absentee ballots were being opened; that election officials began processing absentee ballots through electronic tabulating equipment at least four days prior to the election; that prior to opening absentee ballot mailing envelopes, election officials failed to compare the signature of the voter on each voter's certificate with the signature of the voter as shown in registration records; that election officials accepted as many as 1463 absentee ballots which were illegal because the voter certificates accompanying them lacked either the voter's signature or the signature and/or address of the witness; that a number of absentee ballots remained absent and unaccounted for; that election officials failed to properly preserve all absentee ballots for which duplicates were made, and a number of duplicate ballots were unaccounted for; that several voters who requested absentee ballots but who had not received them in time for the election were denied the right to vote in person; and that some absentee ballots were changed and/or misplaced, lost, or otherwise not counted as a result of fraud, gross negligence, or intentional wrongdoing. Appellant claimed that Page 4 these alleged irregularities violated subsections of chapter 101, Florida Statutes (1995) (providing requirements for voting methods and procedures), and chapter 102, Florida Statutes (1995) (providing requirements for conducting elections and ascertaining the results). The trial court thereafter entered a detailed final judgment which contained a combination of findings of fact and conclusions of law. The trial court determined that the key issue in the election contest was the re-marking procedure used by election officials on many of the absentee ballots so as to enable those ballots to be counted by an electronic scanner. The trial court found that this re-marking procedure was not in substantial compliance with section 101.5614(5), Florida Statutes (1995), because the procedure provided no reasonable substitute means of verification of the results of the election. The trial court found this noncompliance with procedures mandated by the statute to be gross negligence. The trial court found that this noncompliance created an opportunity for fraud. However, the trial court found that, although there was an opportunity for fraud, no fraud was proven. The trial court applied this Court's decision in Boardman v. Esteva, 323 So.2d 259 (Fla.1975), to these factual findings. The trial court concluded that there was a "full and fair expression of the will of the people. Vogel won it." The court entered judgment for the defendants, thereby affirming the election of Sheriff Vogel. Beckstrom appealed this final judgment to the Fifth District Court of Appeal. In an order certifying the case to this Court, the Fifth District stated: The trial judge ruled that the Canvassing Board acted with gross negligence but that there was no evidence of fraud in the process; thus the election was valid. Relying upon the analysis in Boardman v. Esteva, the trial court held that courts should not decide elections but should condone a "certain level of incompetence" by election officials, unless the level of incompetence, negligence or error reaches an intolerable level. Although the court found that the re-marking process used by election officials in this case irreparably harmed the sanctity and integrity of the election, attempting to apply Boardman, the trial court © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 147