Legal decisions and deadlines loom as Florida’s forever midterms enter ‘prayer mode’

Palm Beach County Recounts

Palm Beach County recounts as machines overheated at the Palm Beach County Supervisor of Elections office.
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Palm Beach County recounts as machines overheated at the Palm Beach County Supervisor of Elections office.

Uncertainty reigned over the recount of Florida’s forever midterms Wednesday as elections supervisors rushed to meet a deadline that may not come to pass and campaign attorneys haggled over election laws that may yet change even now, more than a week after the election.

With Palm Beach Supervisor of Elections Susan Bucher all but praying to God to try and finish a crucial recount of nearly 600,000 votes before a 3 p.m. Thursday deadline, attorneys for U.S. Sen. Bill Nelson threw up their own Hail Mary in a Tallahassee court in the hope of injecting thousands of rejected ballots back into the mix in his race against Gov. Rick Scott.

Both situations cast doubt on whether and how the state will move past a mandatory machine recount for a daunting three statewide races to an expected manual recount Thursday for two of them — and potentially put a bow on the state’s elections by a legally set Nov. 20 deadline.

“We’re in prayer mode to finish on time,” Bucher told reporters Wednesday.

Narrow margins in races for U.S. Senate, governor and commissioner of agriculture forced Secretary of State Ken Detzner to order an automatic machine recount in all three races Saturday. Florida’s 67 elections supervisors each have until 3 p.m. Thursday to finish their recounts and submit their new tallies to the state. Some, like Bucher, also have down-ballot races to recount. If a county misses the deadline, its Saturday results stand.

Florida law requires an automatic recount in a race in which the difference in vote totals is half a percent or less. The law requires a manual recount if the difference in the vote totals is 1/4 of a percent or less.

Problems in Palm Beach County — where aging vote-tabulation machines overheated Tuesday and forced a new recount of 175,000 already recounted ballots — have Bucher predicting she’ll miss the deadline. That likelihood underlays two standing federal lawsuits seeking to extend the recount window. The lawsuits are both before U.S. District Judge Mark Walker, who on Wednesday spent hours weighing a separate Nelson campaign lawsuit to validate thousands of rejected absentee and provisional ballots by overturning the state’s process for matching voter signatures.

After five contentious hours in his Tallahassee courtroom, Walker ended the hearing without a decision. He indicated he’d consider giving voters whose mismatched signatures led canvassing boards to reject their ballots more time to resolve the problems. If he does, it could alter the vote count in the three as-yet undecided races, all of which had margins of less than half a percentage point. It could also alter the state’s deadline for elections supervisors to submit their new vote totals.

The lawsuit over rejected ballots is only one of several filed by Nelson’s campaign and its allies to try to tilt the recount in his favor as he trails Scott by more than 12,500 votes. Nelson’s campaign hopes thousands of undervotes and overvotes — ballots where a machine ruled that voters either voted for too many candidates or none at all — will help bridge the gap. But elections experts say it’s unlikely Nelson can pull ahead without successfully altering Florida’s elections laws to broaden the vote pool.

“If you conduct a recount according to the rules on Election Day, the results are going to be almost identical to what you’ve got on Election Day. The only thing that is creating a potential for a bigger effect is not just going to the recount process but simultaneously trying to change the rules and have the courts invalidate the rules after the election is held and after the results are all in,” said Michael T. Morley, an assistant professor of law specializing in elections at Florida State University. “Even then it may be not be enough.”

Walker seemed disinclined Wednesday to legislate from the bench or allow thousands of rejected ballots to stand without further scrutiny. The state explained that more than 3,700 ballots were rejected over mismatched signatures, although that was only from totals provided by 45 counties.

“Why in the world would I say, ‘Count them all,’ without regard for whether they are valid votes?” he asked Nelson’s team of dark-suited attorneys. “My grandfather would say that’s roughly akin to hunting squirrel with a bazooka.”

Walker’s work isn’t done. He is set to hear a Democratic lawsuit Thursday seeking to invalidate the state’s methods for determining “voter intent” on overvotes and undervotes. He’ll also consider a Democratic lawsuit arguing for an extension of Thursday’s 3 p.m. deadline.

“Apparently I’m supposed to re-evaluate the entire election code of the state of Florida, one piece at a time. I’ve got it,” Walker said. “This just seems like a really bad way to do this.”

The lawsuits before Walker are hardly the only legal challenges outstanding. Nelson on Wednesday filed a lawsuit against Bay County’s elections supervisor demanding access to about 150 ballots that were improperly faxed or emailed in. Scott, meanwhile, won an order forcing Hillsborough County’s elections supervisor to allow campaign volunteers to observe the recount from within the room where the machines are tabulating ballots.

Scott already won similar rulings in Palm Beach and Broward counties, where beleaguered supervisors Bucher and Brenda Snipes have been under fire for days over mishaps, confusion and Republican claims of widespread voter fraud. So far, the claims have been far more widespread than the evidence. On Wednesday, The Daily Caller published an exclusive interview with Donald Trump in which the president claimed without elaborating that people were voting, changing their clothes and then voting again.

But for the first time, the Florida Department of State has released information related to possible wrongdoing in the elections process. In a letter released to the Herald/Times Tallahassee Bureau and first reported by POLITCO, the department’s general counsel, Bradley McVay, requested that federal prosecutors investigate faulty forms sent to voters in at least four counties that may have caused them to miss the deadline for fixing problems with their mail-in ballots.

Emails released by the department show that the forms appear to have been sent by the state Democratic Party.

Voters in at least four counties — Broward, Citrus, Okaloosa and Santa Rosa — received “cure affidavits,” or forms used to fix defects in the mail-in ballots, such as a missing or mismatched signature on the original ballot. But those forms listed the wrong due date: Thursday, Nov. 8, instead of Monday, Nov. 5. Email threads from elections officials in the four counties show that they received forms from voters on Nov. 8 who thought they still had time to fix their ballots to make them count. But it was already too late.

“Please pass the word to the FDP that they can’t arbitrarily add their own deadline to your form for VBM [vote-by-mail] cures!” wrote Paul Lux, Okaloosa County Supervisor of Elections, in one email. “This is crazy!!”

The state sent four voter affidavits to federal prosecutors, all of which belonged to Democrats. Scott’s campaign, though, was quick to question whether there was a scheme afoot, writing in an email blast that “an influx of Democratic voters trying to cast their ballots after the deadline could make it easier for Democrats and liberal groups to play games with the legal process and ultimately fight to change the law — just like they are doing right now.”

Scott, himself, wasn’t wrapped up in the turmoil of the day. As his campaign and attorneys fought before judges and canvassing boards, Florida’s governor spent the day in Washington with Senate Majority Leader Mitch McConnell and other newly elected senators — even though his election is still in some doubt.

What isn’t in doubt any longer: whether Scott will take any role in certifying the results of his own election. On Wednesday, his attorney, Daniel Nordby, said Scott will step away from his position on Florida’s elections canvassing commission, which by law is set to certify the results of the election on Nov. 20.

Scott’s role in that process was the subject of yet another lawsuit filed by the League of Women Voters and Common Cause seeking to block the governor — who has twice sought state police involvement in South Florida’s ballot-counting — from taking any official role in overseeing Florida’s recount. The lawsuit is one of nearly a dozen related to the recount so far.

Morley, the elections law professor, said the possibly insurmountable gap between Scott and Nelson could be the reason for the multitude of lawsuits.

“Each of these lawsuits only affect a certain number of ballots,” he said. “As best I can tell, it looks like [Nelson] would pretty much have to run the board and have the courts strike down several provisions of Florida law in order to have enough ballots in play to change the outcome.”

But for now, simply finding out the outcome of the recount seems challenging enough.

While most of Florida’s 67 counties have finished their machine recounts, most larger counties were hoping to either finish late Wednesday or Thursday morning. Only Bucher in Palm Beach expected to miss the deadline.

Bucher told reporters that her staff worked through the night Wednesday to recount about 175,000 early votes. The county brought in technicians to repair the machines on Tuesday, and Bucher said the equipment had worked well overnight. But unlike ballot-counting machines in Miami-Dade and Broward counties, where elections staff expect to finish on time, Palm Beach’s decade-old ballot-counting machines can only recount one race at a time.

Democratic state House candidate Jim Bonfiglio filed a lawsuit Monday in an effort to extend the deadline for Palm Beach County’s recount after losing to a Republican candidate for a Palm Beach County state House seat by just 37 votes. The case was moved to federal court on Tuesday and was still pending Wednesday afternoon.

Bucher said that for now her deadline is still Nov. 15 at 3 p.m., which she called “unreasonable.”

“We’re trying to meet a deadline that really, reasonably shouldn’t be there,” she said.

In Broward, Snipes’ staff said they expected to complete the count of more than 700,000 ballots by about 5 a.m. Thursday.

Snipes’ office got off to a late start due to problems calibrating her machines and the sheer volume of ballots needing to be separated in order to hold a recount. But Broward County officials say the department’s high-speed tabulators have the ability to process 68,000 ballots per hour with machines operating at optimum capacity, putting the county on track to finish its recount.

But Snipes continues to have problems dispersing information.

Snipes’ attorneys told the press this weekend that her office had submitted a stack of 205 provisional ballots as part of Broward’s unofficial Saturday vote tally to the state. But Snipes went on CNN late Tuesday night and said that, actually, they didn’t.

“They were never counted,” she told CNN host Chris Cuomo. “Those ballots had been separated, they’ve been isolated. They have not been counted to date.”

Which is true? That’s about as hard to determine as how Judge Walker will rule Thursday on the various lawsuits before him, and whether Florida will hold firm to its recount deadlines.

Tampa Bay Times reporter Kirby Wilson, Herald/Times Tallahassee Bureau reporter Lawrence Mower, McClatchy reporters Alex Daugherty and Caitlin Ostroff, and Miami Herald reporters Sarah Blaskey, Joey Flechas, Alex Harris and Martin Vassolo contributed to this report.

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