Attorneys for the campaigns are operating under a much different statutory framework than during the election in 2000, when lawyers had to navigate a hodgepodge of statutes that made recounts entirely candidate-driven and allowed candidates to request recounts in just one or a handful of counties.
This time, ballots are standardized across the state and recounts are triggered automatically when a race is within a certain margin.
"Since 2000, Florida has been in a constant state of reform when it comes to election administration," University of Central Florida political science professor Aubrey Jewett said. "We're a little better off than we were two years ago and four years ago."
It's difficult to conceive of a time when presidential campaigns did not have hundreds of attorneys at the ready in the nation's largest swing state, but Stephen Zack of Boies Schiller Flexner LLP in Miami said it wasn't until about 11 p.m. on election night in 2000 that he got a call from the campaign of Vice President Al Gore asking about lining up lawyers in Florida.
"Nobody expected it, nobody knew about it, nobody understood what it meant," Zack said.
Now, the Trump and Biden campaigns have more than 600 attorneys — including Zack — who are supervising the canvassing of ballots and preparing in the event of a recount.
Florida got to put these procedures to the test in the 2018 midterm elections, when three statewide races for governor, agriculture commissioner and U.S. senator went to recounts. Miguel De Grandy of Holland & Knight LLP, who worked in the 2000 recounts and represented the Republican Party of Florida in the 2018 recounts, said that with the exception of a couple of supervisors of election who were slow in recounting votes and certifying results, the process ran smoothly thanks to the reforms implemented in the previous years.
"It streamlines the process, and makes for a much smoother election," he said.
But De Grandy and others say if there are challenges, it'll probably be over the validity of mail ballots, which are more popular than usual this year thanks to the COVID-19 pandemic.
"You're looking at what I believe is an unprecedented election in terms of the number of absentee ballots," De Grandy said. "There are folks that may not have updated their signature in 20 years. In the previous election, that was challenging enough with the volume, but we're talking about potentially tripling or quadrupling the number of mail ballots."
Florida, which has long had a large vote-by-mail operation, is better positioned than many other states to handle the increased volume of mail ballots, according to Susan MacManus, a retired political science professor at the University of South Florida. But the state also has a history of razor-thin election margins, and even a small number of rejected ballots could swing an election.
The margins of victory in the 2018 races for governor, agriculture commissioner and U.S. senator were 32,463, 6,753 and 10,033, respectively.
Meanwhile, 31,969 mail ballots that could have changed the outcomes of at least two of those races went uncounted.
Shortly after the election, Sen. Bill Nelson, the incumbent Democratic candidate for U.S. Senate who ended up narrowly losing, filed suit challenging the state's process for allowing voters to cure deficiencies with their absentee ballots. By law at the time, a voter had to fix any problem with a ballot by 5 p.m. on the day before the election, but mail ballots could be received up until 7 p.m. on Election Day, which meant any voters who got their ballots in just before the deadline had no chance to fix them.
A federal court ordered the state to give voters more time to cure their ballots, and the parties scrambled to chase as many of those votes as possible before the statutory recount deadlines.
Like previous election litigation in Florida, where reform happens after close elections expose issues, Nelson's lawsuit prompted action in the Legislature, which later passed a law giving voters up to two days after the election to fix problems with their ballots. This year, voters will have until 5 p.m. on Nov. 5.
Jewett said the state has also now given county election officials guidance and training on how to match a signature on a ballot with the one in the voter's file to create a more uniform standard for evaluating signatures across Florida's 67 counties.
And there's more awareness in the electorate about the required signature on the ballot envelope, according to MacManus. She said advocacy groups have more effectively targeted young voters and minorities, who are more likely to have their ballots tossed because of technical issues, on how to properly fill out and sign their absentee ballots.
In addition, energized voters are returning mail ballots earlier than in previous elections, giving them more time to cure deficiencies, and online ballot trackers help assure them that their votes are counted. The drop boxes deployed this year by counties around the state that are manned by poll workers should help cut down on late-arriving ballots and unsigned envelopes, according to MacManus.
"I think the drop boxes are the best thing that's happened this election cycle," she said. "They're very popular and they're very accessible. They allay people's fear that it's not going to get there because of something screwy with the mail, but it also enables someone to stay away from crowds."
By law, county election officials can begin processing mail ballots weeks before the election, which means the state will have those results ready for release shortly after polls close in Florida on Tuesday. Suzy Trutie, the deputy supervisor of elections for Miami-Dade County, said inputting those ballots was a simple task.
"We enter it into a computer, and on election night, we tabulate the vote," she said. "It's like hitting the equal sign on a calculator."
Typically, about 1% of mail ballots have been disqualified in recent Florida elections for mismatched or missing signatures or for not arriving in time. If that rate holds statewide, that could mean the disqualification of about 58,000 of the more than 5.8 million mail ballots that have been requested.
If the margin is small enough that those votes could make a difference, expect a mad rush by the campaign to help voters cure those ballots by Nov. 5 and inevitable lawsuits challenging canvassing board decisions.
"I'm sure that both sides have played out every possibility and have prepared pleadings and know where they're going to file those pleadings," Zack said. "There's enough at stake here and there's enough history that I think everybody is preparing themselves in every possible way."
--Editing by Brian Baresch.
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