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) and approved by the state Division of Elections. To comply with the statute, ballots which were defectively marked and thus unreadable by the scanner had to be hand-counted or duplicated before being re-marked so that the original ballot marking could be preserved for verification. We agree with the trial court that the re-marking process was an opportunity for fraud. Our review of the record of evidence presented at the nonjury trial causes us to conclude, however, that the trial court was within its discretion in determining that, although the re-marking process was an opportunity for fraud, fraud did not occur. The trial court's specific findings were: There are several allegations or assertions of fraud. The first is that somebody overmarked an undervote; basically, placed a mark on a blank ballot. I am not persuaded that that happened as a result of fraud because of the undervote statistics. The undervote statistics are not disputed and we have a greater undervote in the overmarked ballots than we had in the good pencil ballots. The difference in the undervote was really quite marked. We would expect statistical evidence to be the opposite if this had been happening in a systematic manner. The next would be to overvote a Beckstrom vote by simply deliberately marking the Vogel oval in addition to the Beckstrom oval thereby inducing the reader to cancel the vote. If this had occurred, the overvote statistic would certainly be far greater than it is. It is minuscule at this time and I am not persuaded that this occurred on any systematic basis. The next is the replacement of ballots cast by electors with the new ballots prepared through fraud. There is no inference--no evidence from which an inference can be drawn that this occurred. The next method would have been simple erasure, simply erase the Beckstrom ballot and pencil in a Vogel ballot. The ballots were examined. The examiners looked at them and did not pull any out and point the finger of guilt at erasures. I did not notice any significant level of erasures in the absentee ballots. Many ballots were returned in very messy condition. I can draw no inference from their condition that there were erasures that were evident. There being no evidence of that, I am not persuaded that it occurred. The next is simply not marking over a Beckstrom vote, simply leaving that as one that the reader did not read and 150 Page 7 marking over other races on the ballot. This occurred on some occasions during the course of the election. I am not persuaded it occurred on a systematic basis. I am more comfortable with this thinking because the clerk's count of the votes would have detected this and counted all of those votes, so it could not have caused any harm. I do not think that the machines rejected the ballots on a random basis. The statisticians agreed that a random selection is one in which each member of the class has an equal chance of selection. That was not the case here. Because of the nature of the automatic tabulating equipment, a ballot that had been improperly marked had a greater chance of selection than a ballot that was not improperly marked. So I do not find this to have a random selection of ballots. The twenty-five ballots that were selected by the plaintiff for examination and as evidence of the interference of fraud lend themselves to an inference of fraud, but I find that they lend themselves equally to an inference of negligence in the overmarking process. I have examined large numbers of these ballots and these twenty-five were not the only ballots that were marked incorrectly. There were numerous *727 ballots that had not been selected for presentation that were also marked incorrectly and there are incorrect markings on virtually every single race. I have examined ballots in which the back side of the ballot was not marked at all or numerous ballots inconsistently mismarked. I cannot draw an inference of fraud from that. I can, however, draw an inference of negligence in the marking process. I choose to draw the latter inference. [9] We approve the trial court's findings in respect to fraud. We construe the trial court's finding of gross negligence in this instance to be a measurement of the culpability of the election officials but not a finding that the election failed to express the will of the voters. Therefore, we conclude that the trial court was within its discretion in determining from the evidence that the election was a "full and fair expression of the will of the people. Vogel won it." [10] Based upon the foregoing analysis and upon our review of the record, we find no basis for reversal of the trial court's final judgment based upon appellant's issues one and two. Therefore, we affirm the final judgment of the trial court. © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.