If Tuesday’s margins are thin, lawyers are ready to fight for every Florida vote

On the final day of voting in this divisive election year, one word is sending shivers through Florida’s political class like a creepy incantation: recount.

The ghost of 2000 hovers over Election Day and people shudder that another razor-thin presidential election in the nation’s largest battleground state could mean weeks of legal challenges as both parties jockey to use the courts to shave votes from their opponent and count every vote for their candidate.

“Everybody is still stinging from 2000,’’ said Barry Richard, the Tallahassee lawyer who represented George W. Bush in the Florida litigation that determined the presidency. “In 2000, we had no history of litigation in presidential elections, and the morning after everyone had to rush and lawyer up.”

Ever since the bitter 36-day legal war over recounting presidential ballots in Florida’s 2000 election, Republicans and Democrats have assembled teams of lawyers ready to drop a court challenge within hours to make sure that every vote for their candidate counts.

And this time the list of grievances is much longer than it was in 2000, when state law allowed Democrat Al Gore, the outgoing vice president, to ask for a recount of ballots in a select number of counties.

Elections experts and lawyers say the potential line of Election Day and post-election lawsuits could involve questions over voters who are turned away from the polls, allegations of voter suppression and intimidation, questions about voter intent and how to interpret marks on the ballot and challenges to people who were not on the rolls but voted anyway.

“Do legal teams on both sides have filings ready to go on Wednesday morning? You betcha,’’ said Dan Smith, chair of the University of Florida Department of Political Science and an elections expert. “We would be naive to think there are not drafts ready to be filed for any number of barriers placed on an individual’s right to vote.”

Smith said other legal challenges could emerge, for example, if a voter can show their ballot never made it to the Miami-Dade Supervisor of Elections office and got stuck in a postal service sorting room or distribution office. A pending lawsuit asks a federal court to order the U.S. Postal Service and the Miami-Dade Supervisor of Elections to expedite the delivery of mail-in ballots

Looking back at challenges

Challenges in the past have also involved delays in the postal service, including the counting of overseas ballots that by law must be postmarked by Election Day but have 10 days to arrive to be counted, he said.

“There’s nothing new with any of those,’’ but this year there are uniquely 2020 challenges, Smith said. Those will involve decisions related to the unprecedented explosion of vote-by-mail ballots, which can be rejected for not having a signature or not having a matching signature. Other challenges could be over questions about whether elections officials gave voters enough notice to fix or “cure” errors on their ballots, and issues related to former felons going to the polls and voting.

Felons could be snagged in the legal wrangling over the implementation of Amendment 4 in 2018, the constitutional amendment that restored voting rights to Florida felons “after they complete all terms of their sentence including parole and probation.”

Daniel Tilley, legal director of the American Civil Liberties Union of Florida, said his focus on Election Day will be to make sure that the 85,000 former felons will be allowed to vote. A 2019 state law implementing the constitutional amendment that required that felons pay fees, fines, costs and restitution associated with their convictions to be eligible to vote.

The American Civil Liberties Union (ACLU) and other voting rights organizations challenged the law, arguing that it amounted to an unconstitutional “poll tax.” The US. Court of Appeals for the 11th Circuit in Atlanta upheld the law in September but also said that 85,000 Floridians whose voter-registration applications had been flagged as felons with outstanding financial obligations should be allowed to vote in the upcoming election.

“I think some supervisors or poll workers might be confused about what is proper and might turn away individuals who are entitled to vote,’’ Tilley said Monday. The ACLU and a coalition of more than 100 progressive groups and voter advocacy organizations has established the Election Protection Coalition with a hotline, 866OurVote, manned by 23,000 volunteer lawyers.

The U.S. Department of Justice, which routinely sends poll watchers to Florida to monitor compliance with the federal Voting Rights Act, announced Monday it is sending observers to six Florida counties, Miami-Dade, Broward, Palm Beach, Hillsborough, Duval, and Orange.

And the campaigns of both President Donald Trump and former Vice President Biden have assembled hundreds of poll watchers to monitor activity at Florida precincts.

“Poll watchers are critical to ensuring the fairness of any election, and President Trump’s volunteer poll watchers will be trained to ensure all rules are applied equally, all valid ballots are counted, and all Democrat rule breaking is called out,’’ said Thea McDonald, deputy national press secretary for the Trump campaign.

Despite the battle to count every vote, recounts also won’t look like they did in 2000 after the state adopted strict statewide recount standards, which were used in three statewide races in 2018. The law requires a machine recount of all ballots if the preliminary results show a difference between the candidates of under 0.5%. If the vote total has a .25% difference, the state law requires a manual recount of ballots.

Each party has created a web site to track election litigation, and they list a total of two cases in Florida this cycle. The goal of Democrats is to both make it easier to vote and limit the restrictions on counting ballots. The goal of the Republican challenges is to focus on claims of fraudulent votes.

The Republican site, protectthevote.com, lists its opposition to two challenges, a lawsuit challenging a state law that requires that candidates of the same political party as the current Florida governor be listed first on all election ballots and another case brought by a coalition of voting rights group against all 67 county supervisors of elections alleging that their vote-by-mail restrictions unfairly burden elderly, low-income and student voters.

The Democratic site, democracydocket.com, lists only Nielsen v. DeSantis, the case relating to the vote-by-mail restrictions. It asked the state to extend its deadline for when ballots could be counted, if they were postmarked by Election Day, and asked the state to allow paid organizers to help voters return their completed mail ballots.

Under a settlement, the coalition agreed to drop the request that mail-in ballots be accepted after 7 p.m. on Election Day and supervisors agreed to provide postage-paid vote-by-mail ballots.

Lawyers on alert

Fred Wermuth, an Orlando attorney who has represented the coalition of voting groups in the Nielsen case, said he will be watching for people turned away from the polls after waiting in line, election officials who fail to issue a voter a provisional ballot, and the inevitable oddities of Election Day.

“What happens when somebody pulls a fire alarm as the polls are about to close and people in line are dispersed?” he asked, noting that happened one year in Winter Park. “I’m not saying any of that is going to come up. We certainly have an environment where it could.”

While some of the lawsuits are aimed at enforcing people’s rights, others are aimed at “manipulating the problem, instead of fixing it,’’ Richard said. “Democrats want to expand voters, and Republicans want to contract them.”

Richard also disputed claims of widespread fraud, made by Trump and his supporters. Florida “has no history of that kind of fraud, ‘’ he said. “We have a history of occasional local fraud, but it would be almost impossible to affect the national election by actual fraud, because this country is too big.”

The same factor that causes delays in voting, the different approaches to counting ballots in each state, “is also one of the things that makes it safe,’’ Richard said. “You would have to have an incredibly organized fraud to be able to do enough to affect the election, and the daunting nature of it is such that it’s not likely anybody would attempt it.”

This story was originally published November 2, 2020 at 7:35 PM.