A federal judge in Florida late Thursday rejected a constitutional challenge by Sen. Bill Nelson and Florida Democrats to state rules that govern how counters in a recount determine what candidate a voter meant to choose on their ballot. The decision on the so-called “magic words” and “consistency” rules came as Florida officials undertake on a hand recount in the close US Senate race between Nelson and Republican Gov. Rick Scott. Nelson’s lawyers argued that the rules could unconstitutionally imperil the votes of thousands of Floridians. US District Chief Judge Mark Walker held that they were “neutral, reasonable, standard” practices. “They are uniform, nondifferential standards that provide a reasonable procedure to determine the intent of voters. This is not to say the rules are perfect or the best way to do things. But they are constitutional,” Walker wrote in his opinion. Under the “consistency requirement,” a vote won’t be counted if the voter didn’t mark their preference in the same way throughout their ballot. For instance, if a voter filled in a box in one place, and wrote a check mark in another place, those votes wouldn’t be counted.
Under the “magic words” rule, a voter who mistakenly marked the ballot for one candidate and then crossed it out to mark another wouldn’t have their vote counted unless they also wrote certain words, such as “wrong,” “not this”, or “ignore this,” to explicitly signal their intent.
Walker, who is handling the litany of election-related litigation filed in federal court in Tallahassee, wrote in his opinion that the state had an interest in adopting rules for how to determine a voter’s intent when they didn’t follow the instructions for how to mark their ballot.
“If a voter fails to follow reasonable rules — and having to fill in an oval is reasonable — the state has not burdened the right to vote. Similarly, when the state applies a neutral, reasonable, standard practice — like the consistency and magic words rules — to try to determine the intent of a voter, when the voter has not followed instructions, the state has not burdened the right to vote,” Walker wrote.