Federal Judge Robert Hinkle did not rule on Senator Nelson’s request to extend Saturday’s noon deadline for counties to submit unofficial election results to the state, thereby denying his request.
TALLAHASSEE — As the furor over an impending recount escalates, U.S. Sen. Bill Nelson’s lawyers are asking a federal judge to strike down a Florida law requiring elections supervisors to toss out provisional and mail-in ballots if voters’ signatures don’t match the ones on file.
Nelson filed the federal lawsuit Thursday in Tallahassee, as Gov. Rick Scott’s lead over the incumbent Democrat continued to shrink in the race for Nelson’s seat. The lead dwindled from more than 56,000 votes on election night to less than 15,000 votes Friday.
Under state law, county elections supervisors have until noon Saturday to submit preliminary election results to the state. The unofficial tallies will determine whether the Senate candidates are separated by a margin of 0.5 percent or less, triggering a mandatory machine recount. The race between Nelson and Scott appeared all but certain to meet the machine recount requirement, according to unofficial results posted on the state Division of Elections website Friday evening.
But in the court filing, Nelson’s lawyers argued that “tens of thousands” of Florida voters are “at risk of disenfranchisement” due to the “standardless signature matching process” unless U.S. District Judge Robert Hinkle blocks the mid-day Saturday deadline from going into effect.
The “entirely standardless, inconsistent, and unreliable signature matching process” has “a disparate impact on people of color and young, first-time voters” and violates a constitutional prohibition against undue burdens on the right to vote, lawyers for Nelson’s campaign and the Democratic Executive Committee of Florida wrote in the 21-page complaint.
Hinkle held an emergency hearing by telephone late Friday afternoon, in which more than a dozen lawyers — representing Nelson’s campaign, Florida Secretary of State Ken Detzner, the National Republican Senatorial Committee and Attorney General Pam Bondi — participated.
But the federal judge seemed wary of granting Nelson’s request to delay the Saturday deadline.
“Why does noon tomorrow matter?” Hinkle asked Nelson campaign lawyer Uzoma Nkwonta. “It seems to me that noon tomorrow is a deadline for one thing to happen but doesn’t really interfere with the substance of what we’re dealing with.”
Nkwonta said the deadline will have a “significant effect on the process going forward” because the ballots would not only be used in a recount but also “will be used to determine whether there will be a recount.”
But Hinkle seemed unpersuaded.
“If I decide next Tuesday, Wednesday, Thursday, whenever, that you’re right, that there’s been a constitutional violation and that not counting these ballots would be unconstitutional, do you really think then that the answer is, oh, too late, you didn’t do it by noon Saturday, just keep going. That’s just not going to happen, is it?” he asked.
The judge didn’t rule but scheduled oral arguments for 1 p.m. Wednesday in Tallahassee.
In their court filing, the Democratic lawyers argued that the signature-matching process also “subjects Florida voters to disparate treatment and inconsistent standards” that violate constitutional equal-protection guarantees.
The signature requirement is not an unconstitutional infringement on the right to vote, lawyers for the National Republican Senatorial Committee, which intervened in the case, wrote in a response filed Friday.
“It is a rational, facially neutral, and widely accepted way of protecting the integrity of elections by ensuring that the person who casts the vote is in fact the person whose vote is recorded,” lawyers for the Republicans wrote.
Granting the plaintiffs’ request would “throw the election process into what would almost certainly be months of political chaos by suspending the reporting deadline statewide,” they added.
It’s not the first time that signature matching has been the subject of federal litigation in Florida.
Two years ago, Democrats filed a similar lawsuit, challenging the signature-matching requirements for vote-by-mail ballots. Siding with the Florida Democratic Party and the Democratic National Committee in 2016, U.S. District Judge Mark Walker ordered Detzner to come up with a way to allow voters to “cure” ballots that were rejected. Walker called the state law “indefensible” and said it threatened to disenfranchise voters.
In the lawsuit filed Thursday, the Democrats argued that rejection rates for vote-by-mail ballots “vary significantly” across the state, and county supervisors use different methods to determine whether signatures match, according to the complaint.
Previous election results showed wide discrepancies in the rejection rates among counties. For example, in the 2012 general election, elections officials in Seminole and Alachua counties were 10 times more likely than those in Sarasota, Hillsborough and Leon counties to reject mail-in ballots as illegal due to signature mismatches, the lawyers wrote.
The Florida signature-matching process “imposes a severe burden — disenfranchisement — on the right to vote,” the Democratic lawyers argued.
“Rejecting these voters’ ballots based solely on the alleged signature mismatch on their ballot envelopes does not serve any legitimate, let alone compelling, state interest, particularly where the state has already otherwise verified their eligibility to vote,” they wrote.
The Senate race likely is headed to a manual recount, which is required for races that have a 0.25 percent margin or less. The governor’s race, in which Democrat Andrew Gillum conceded to Republican Ron DeSantis on election night, could also fall within the 0.5 percent machine-recount margin. And the race for agriculture commissioner also appears destined for a recount. Republican Matt Caldwell led Democrat Nikki Fried by more than 40,000 votes on election night, but, as of Friday, Fried was ahead by more than 3,000 votes.
And the federal lawsuit isn’t the only legal challenge in the contest between Scott and Nelson.
The Republican’s campaign filed lawsuits against Broward County Supervisor of Elections Brenda Snipes and Palm Beach County Supervisor of Elections Susan Bucher, seeking more access by party members to the canvassing process. The Florida Democratic Party also sued Bucher over access to voter information.
According to The Palm Beach Post, Palm Beach County Circuit Judge Krista Marx on Friday sided with Scott and the Democrats, ordering Bucher to provide voting information to the plaintiffs. And the Sun Sentinel reported that a Fort Lauderdale judge ordered Snipes to produce public records of voting activity sought by Scott’s campaign.