Beckstrom v. Volusia County 707 So.2d 720 707 So.2d 720, 23 Fla. L. Weekly S149 (Cite as: 707 So.2d 720) sidered in determining the effect of absentee ballot irregularities: (a) the presence or absence of fraud, gross negligence, or intentional wrongdoing; (b) whether there has been substantial compliance with the essential requirements of the absentee voting law; and (c) whether the irregularities complained of adversely affect the sanctity of the ballot and the integrity of the election. Id. at 269 (emphasis added). [1][2] The Fifth District and appellant question whether, under our holding in Boardman, the trial court could find gross negligence but no fraud and still sustain the election result. We recognize that underlying this question is the direct fundamental issue as to whether a trial court can sustain a certified election result after the court has found substantial noncompliance with the election statutes, but the court has also found that this result reflects the will of the people despite the substantial noncompliance. We answer the question in the affirmative. [3] We stress, however, that we are not holding that a court lacks authority to void an election if the court has found substantial unintentional failure to comply with statutory election procedures. To the contrary, if a court finds substantial noncompliance with statutory election procedures and also makes a factual determination that reasonable doubt exists as to whether a certified election expressed the will of the voters, then the court in an election contest brought pursuant to section 102.168, Florida Statutes (1997), is to void the contested election even in the absence of fraud or intentional wrongdoing. [4][5] We hold that there is a necessary distinction between an election contest with a judicial determination of fraud and an election contest with a judicial determination of substantial noncompliance with statutory election procedures, even if the noncompliance is determined to be a result of gross negligence by election officials. Such a distinction is required in order to respect the fundamental principle upon which we based our decision in Boardman. As the trial court in this case recognized, the essence of our Boardman decision is that a trial court's factual determination that a contested certified election reliably reflects the will of the Page 6 voters outweighs the court's determination of unintentional wrongdoing by election officials in order to allow the real parties in interest--the voters--to prevail. By unintentional wrongdoing, we mean noncompliance with statutorily mandated election procedures in situations in which the noncompliance results from incompetence, lack of care, or, as we find occurred in this election, the election officials' erroneous understanding of the statutory requirements. In sum, we hold that even in a situation in which a trial court finds substantial noncompliance caused by unintentional wrongdoing as we have defined it, the court is to void the election only if it finds that the substantial noncompliance resulted in doubt as to whether a certified election reflected the will of the voters. [6] In direct answer to the district court's request for "guidance concerning the kind or degree of negligence that will warrant judicial intervention, absent fraud," we clarify that the term gross negligence as used in Boardman is not, as in a tort action, a measurement of the degree of care by election officials. Rather, in this context, gross negligence means negligence that is so pervasive that it thwarts the will of the people. [7] We expressly state that our decision in Boardman is not to be read as condoning anything less than strict adherence by election officials to the statutorily mandated election procedures. Such adherence is vital to safeguarding our representative form of government, which directly depends upon election officials' faithful performance of their duties. Neither Boardman nor this case concerns potential sanctions for election officials who fail to faithfully perform their duties. It is for the legislature to specify what sanction should be available for enforcement against election officials who fail to *726 faithfully perform their duties. We simply conclude that the court should not frustrate the will of the voters if the failure to perform official election duties is unintentional wrongdoing and the will of the voters can be determined. [8] Turning to this issue in this case, we agree with the trial court that the Volusia County process of re-marking ballots was not in substantial compliance with section 101.5614(5), Florida Statutes (1995), even though the process was widely used, recommended by the manufacturer's representative, © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 149