With a machine recount in the rearview mirror and a manual recount underway, the legal challenges over Florida’s elections are piled up.
In two rulings late Thursday, U.S. District Judge Mark Walker shot down an attempt to keep Republican Gov. Rick Scott from interfering in the recount process and nixed another challenge focused on the way county canvassing boards decide which ballots should be tossed.
The rulings, issued hours after Walker held hearings in a mash-up of cases, followed machine recounts in which Scott maintained a narrow lead of less than 13,000 votes over Democratic incumbent Bill Nelson in their race for the U.S. Senate. That lead was well within the 0.25 percent margin requiring a manual recount. Results of the manual recount are due to the state by noon Sunday.
In the days following the Nov. 6 election, Scott and his supporters repeatedly castigated elections chiefs in Broward and Palm Beach counties as ballots in the heavily Democratic regions continued to be tallied and Scott’s advantage over Nelson shrank.
Standing outside the governor’s mansion two days after the election, Scott held a press conference accusing Broward County Supervisor of Elections Brenda Snipes and her Palm Beach County counterpart, Susan Bucher, of ineptitude and fraud. The governor also said he was asking the Florida Department of Law Enforcement to investigate. His campaign Twitter account later urged Florida sheriffs to be on guard for election irregularities.
Scott’s comments prompted the League of Women Voters of Florida and Common Cause Florida to ask the federal court to remove the Republican governor and U.S. Senate candidate from the elections process.
One of Scott’s lawyers told Walker the governor intends to recuse himself from the state Elections Canvassing Commission, which is set to certify election results at 9 a.m. Tuesday.
But during a Thursday hearing, Larry Robbins, a lawyer for the voting-rights groups, told Walker that Scott should also be stripped of his authority to remove members of county canvassing boards, comprised of elections supervisors, county commissioners and judges.
By urging “the cops to go out and see what these unethical liberals are doing,” Scott has showed a bias against Palm Beach, Broward and possibly other counties, Robbins argued.
But, in a ruling later Thursday, Walker said there’s a difference between “typical campaign-trail puffery” — which he called “increasingly bombastic, imprudent, and not necessarily rooted in objective facts” — and what a public official says and does in his official capacity.
“Here, Scott has toed the line between imprudent campaign-trail rhetoric and problematic state action. But he has not crossed the line,” Walker wrote.
Scott, as a candidate, has the right to make speeches outside the mansion. But the governor can’t “undercut the count and mandatory recounts from his perch of public official,” the judge wrote, noting that Scott’s most “questionable conduct” occurred in his capacity as a candidate, not as governor.
In a separate lawsuit, Walker also refused to block state elections rules that outline the way ballots should be counted during manual recounts.
In a manual recount, county canvassing boards examine ballots with “undervotes” and “overvotes” that could not be tallied during a machine recount and determine which ones should be counted.
A rule from Secretary of State Ken Detzner requires a voter to have marked all contests in the same manner for a ballot flagged as an undervote or overvote to be counted. That means that, if a voter circles a candidate in one race but uses an “x” to indicate her preference in another race, her ballot wouldn’t be counted, according to the lawsuit filed Tuesday.
Another rule provides that a voter who fills in a selection for a candidate, crosses it out and indicates with “magic words” that he or she made a mistake will have the ballot counted. But ballots in which voters did not give any written instructions indicating how they intended to vote will be rejected, under the rule.
“Without relief from this court, these voters will be deprived of their right to vote, and to have their vote counted, in the November election,” Democrats argued in the case.
But, siding with the Scott administration, Walker found that the “reasonable and neutral rules” are constitutional.
“Indeed, without such rules, it would be impossible to determine the result of an election,” Walker wrote. “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, a “neutral, reasonable, standard practice,” such as the consistency and “magic words” rule, is not a burden, the judge decided, noting that the manual recount is already underway.
“Canvassing boards have been trained and used these procedures in prior manual recounts. The rules are clear and provide examples. To enjoin the use of the rules at this point would likely create a bigger problem,” Walker wrote.
The two cases that resulted in Walker’s Thursday orders are among at least eight election-related federal lawsuits.
Siding with Nelson’s campaign and national Democrats in one case, Walker early Thursday gave voters until 5 p.m. Saturday to fix ballots that were rejected because of mismatched signatures.
During a lengthy hearing Wednesday, Florida Division of Elections Director Maria Matthews testified that 45 counties tossed a total of 3,668 mail-in ballots and 93 provisional ballots due to mismatched signatures. Two large counties — Duval and Miami-Dade — had not reported their results, and Walker estimated about 5,000 ballots statewide would have been rejected.
Walker’s ruling Thursday requires county supervisors to allow voters who were “belatedly notified that they had a mismatched-signature ballot to cure their ballots” by 5 p.m. Saturday. It is unclear how many of the estimated 5,000 voters whose ballots were rejected would be affected.
Scott’s campaign, through the National Republican Senatorial Committee, quickly appealed Walker’s ruling, but the 11th U.S. Circuit Court of Appeals rejected the appeal, meaning Walker’s ruling continues to be in force.