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According to some Florida Democrats, the particular
layout of ballots in Palm Beach was confusing to
voters, and resulted in mistaken votes for Buchanan
which were actually intended for Gore. The Florida
judiciary has already addressed the issue of
post-election claims about ballot confusion, and the
precedent is unfavorable to those who want the
election overturned.
In the September 10, 1974, Republican primary in
Pinellas County, several losing candidates brought a
post-election suit against county election officials.
(Pinellas sits on the Gulf Coast, and includes St.
Petersburg.)
At issue was the longest ballot in Pinellas County
history. To save space so that every candidate and
issue could fit on the voting machine, the election
officials had created a ballot on which the list of
candidates for some offices appeared on two lines. In a
particular race, for example, the first three candidates,
listed alphabetically, appeared on one line, and the last
two candidates, alphabetically, appeared on the next
line.
A lawsuit demanding a new election was filed by
candidates who appeared on the lower line and lost.
The Florida trial court agreed. But on October 15,
1974, the Second District Court of Appeal unanimously
overturned the trial judge, and let the original election
stand. (Nelson v. Robinson, 301 So.2d 508, Fla. Ct.
App. 2d Dist., 1974.)
The Court of Appeal explained:
Keeping in mind that we are talking about a claim
made after an election, and not one which may have
been enforceable before, if a candidate appears on the
ballot in such a position that he can be found by the
voters upon a responsible study of the ballot, then such
voters have been afforded a full, free and open
opportunity to make their choice for or against that
particular candidate; and the candidate himself has no
constitutional right to a particular spot on the ballot
which might make the voters' choice easier. His
constitutional rights in the matter end when his name is
placed on the ballot. Thereafter, the right is in the
voters to have a fair and reasonable opportunity to find
it; and as to this, it has been observed that the
constitution intended that a voter search for the name of
the candidate of his choice and to express his of the
candidate of his choice without regard to others on the
ballot. Furthermore, it assumes his ability to read and
his intelligence to indicate his choice with the degree
of care commensurate with the solemnity of the
occasion.
The Court of Appeal also cited a U.S. Supreme Court
case in which the high Court explicitly and
unanimously affirmed a Pennsylvania federal court
which had ruled that an unfavorable location on the
ballot was not a form of unconstitutional discrimination
against a candidate. (Gilhool v. Chairman & Com'rs.,
Philadelphia Co. Bd. of Elec., 306 F.Supp. 1202
(E.D.Pa.1969), affluffied 397 U.S. 147 (1970).)
In Palm Beach this year, the ballot form was approved
beforehand by Democratic Supervisor of Elections
Theresa LePore. This fact relates directly to the
Florida Court of Appeal's point that "it has often been
held that one who does not avail himself of the
opportunity to object to irregularities in the ballot prior
to the election may not object to them after."
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