Some argue that the ballots these groups are trying to count are not legal votes because they were not counted by the machines. The logic here is that legal votes are only those counted by the machines, and anything not counted by the machines are illegal votes. However, there is not a court in the country that has ever summarily classified such votes as illegal and Florida legal precedence has never considered machine readability as the litmus test for ballot legality. More importantly, Florida Law does not classify such ballots as illegal, the Florida Supreme Court did not classify such ballots as illegal, and the US Supreme Court did not classify them as illegal. Only two people consider such votes illegal: the Bush campaign and the Florida Secretary of State (these are actually the same entity, since she is one of Bush's Florida campaign managers). Harris only declared such votes as "illegal" after election day. However, a plain reading of Florida law suggests that such ballots are supposed to be canvassed. Section 101.5614 (5) states: “If any paper ballot is damaged or defective so that it cannot be counted properly by the automatic tabulating equipment, the ballot shall be counted manually at the counting center by the canvassing board…No vote shall be declared invalid or void if there is a clear indication of the intent of the voter as determined by the canvassing board.”
During the automatic recount and prior to the completion of manual recounts in Volusia, Broward, and Palm Beach Counties, at least 10 other counties (7 of which were carried by Bush) presumably used this provision to canvass ballots rejected by the machines (click here for more details). Harris accepted the results of these counties "illegal" counts without objection. This Sunshine Count will simply canvass the machine unreadable ballots that many counties did not bother to inspect.
Naturally, the Bush campaign does not see it that way. According
to the Orlando Sentinel, Bush spokesman Tucker Eskew accused that paper
of engaging in "mischief making" by treating "illegal votes" as legal votes.
But the paper points out: "ballots exactly like those rejected in Lake
-- and now called "illegal" by Eskew -- werre counted by canvassing boards
in places such as Orange and Seminole counties and are now part of the
certified totals."
http://orlandosentinel.com/news/local/lake/orl-recount-12192000-story.story?coll=orl%2Dhome%2Dheadlines
Although the Bush folks will claim that the US Supreme Court considered these votes illegal, that is definitely not the case. The High Court did not decide what constitutes a legal or illegal ballot, they simply said that a manual recount of the undervotes without a uniform standard would raise constitutional problems. They did not, however, decide that machine unreadable ballots should never be counted.
As reported in an ABC news article:
http://abcnews.go.com/sections/politics/DailyNews/rerecounts001218.html
Jon Gould, a professor of law and politics at George Mason University,
points out that in its controversial ruling barring manual recounts in
Florida, the U.S. Supreme Court did not question the legality of a recount
in general. “The decision did not say it was unconstitutional to count
the votes. They said there were no uniform standards and there wasn’t
enough time to come up
with such standards,” he says.
Click here for more information about what constitutes a legal vote in Florida.