Florida Judge Cites 2000 to Stress Import of Close Votes

(Bloomberg) -- A Florida judge lamented being asked to choose between tweaking the state’s election laws more than a week after Election Day or ignoring the votes of thousands of people whose mail-in ballots may have been wrongfully rejected over allegedly mismatched signatures.

During a five-hour hearing in Tallahassee on Wednesday, U.S. District Judge Mark Walker was urged by a lawyer for Democratic Senator Bill Nelson to count an estimated 5,000 affected ballots, while a lawyer for the Florida Secretary of State said the suit was filed too late and the law must be respected.

Nelson aims to overcome a razor-thin vote deficit in the recount for his U.S. Senate race with Republican Governor Rick Scott, one of the most closely watched in the U.S. The margin forced an automatic recount, which triggered a spate of separate lawsuits in state courts further south.

Walker, whose musings during the hearing touched on slavery, the Civil War, women’s suffrage and the invasion of Iraq, ended the proceeding without ruling on Nelson’s request for a court order requiring that the recount include all mail-in ballots rejected over signatures.

‘Smell Test’

The theme of Walker’s questioning focused on how easy it is for county officials without statewide standards to reject ballots based on signature mismatches, while it’s far more difficult to challenge the decision. After 5 p.m. the day before the election, there is no appeal.

“Doesn’t that strike you as problematic that you can strike my vote and there’s nothing I can do about it?” Walker asked. The judge also signaled it was an issue that many signatures on ballot envelopes are compared by election workers to digital signatures on record.

“It’s patently absurd to suggest that my pen signature would ever look like my digital signature with a stylus,” he said. “That doesn’t pass the smell test. When I heard that it was like my head being shoved in a cow patty.”

Walker also knocked a suggestion by Jordan Pratt, a lawyer for Florida Attorney General Pam Bondi, that a federal judge shouldn’t weigh in on state law in the manner being requested in the lawsuit.

“If that’s your theory, we would still have segregated schools in Florida,” the judge said.

Machine Recounts

Meanwhile, a series of legal actions continued to swirl around the recount.

A Hillsborough County judge ruled Wednesday that Scott representatives should be granted access to observe machine recounts there. The campaign filed a lawsuit because it wasn’t allowed inside the room.

In the Panhandle region of Bay County, Nelson’s campaign sued Supervisor of Elections Mark Andersen, who told an NBC affiliate that he took 147 ballots by email from voters who were displaced by Hurricane Michael. (While an executive order made certain allowances for hurricane-victim voters, the order specifically stated: “Voting by fax or email is not an option.") Nelson sued to demand records relating to emailed and faxed vote-by-mail ballots.

And the Florida Department of State, which is under Scott’s government, disclosed it had asked federal prosecutors to look into official forms -- intended to cure defective vote-by-mail ballots -- on which the date had seemingly been improperly changed. An email chain shared with Bloomberg News and other media outlets appeared to trace at least one such form back to a Democratic Party volunteer. Florida Democratic Party spokeswoman Caroline Rowland didn’t immediately respond to a request for comment.

Other Remedies

Judge Walker suggested repeatedly that he may order some other kind of remedy to appease Nelson, such as giving voters whose ballots were rejected another chance to “cure” their disenfranchisement by proving their identities in some other way.

Still, Walker was skeptical of the idea that a judge should order thousands of ballots to be counted after they’d been deemed non-compliant, even if some of them were cast by qualified voters.

“Isn’t this just a bad idea to have a federal judge essentially rewrite the statute while the votes are being counted?” Walker asked Nelson’s lawyer. “This just seems like a really bad way to do this.”

Walker agreed, however, that even small numbers of uncounted ballots may make a big difference, “since 500 votes determined the leader of the free world” in Florida in 2000, when a 537-vote margin handed the presidency to George W. Bush over Al Gore.

Scott leads Nelson by fewer than 12,600 votes, out of more than 8.2 million cast in the state. The case is one of several playing out after Democrats retook control of the House while Republicans held on to their Senate majority. The Florida recount will decide the fate of the Senate seat and a governorship in a state that will be pivotal in the 2020 presidential contest.

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