Key legal battles to unfold as Florida races toward recount deadline
Posted November 14, 2018 6:01 a.m. EST
(CNN) — Democrats and Republicans have fought for days in the court of public opinion over the hotly contested recounts in Florida's Senate and gubernatorial contests.
On Wednesday, that fight culminates in a set of major legal battles, with the two sides meeting in a federal court room in Tallahassee.
In what both sides admit will be the most consequential ruling to date in the fight over vote counting in Florida, Democrats are asking US District Judge Mark Walker to invalidate a statute that requires voter signatures on provisional and mail ballots to match those on file. Republicans, on the other hand, will seek to keep the statute in place.
The lawsuit is just one part of a broader Democratic effort in Florida to fight against certain statutes that have put in dispute ballots they believe should be considered lawfully cast. Democrats, led by top lawyer Marc Elias, have filed at least four lawsuits in federal court, all of which look to either extend the time counties need to recount votes or grow the pool of votes that are legally allowed to be considered by county election officials.
"All of these cases attempt to bring some common sense to the administration of a recount code that was passed after 2000," Elias told reporters on Tuesday, referencing the prolonged presidential recount between Al Gore and George W. Bush.
The reason for this attention is simple: Democrats trail in the state's top two statewide races, but party officials believe there is a slim chance when all votes are counted they could close the gap and emerge victorious.
The most pressing race in question is between Democratic Sen. Bill Nelson and challenger Rick Scott, the Republican governor. Scott led Nelson in the unofficial, pre-recount tally by more than 12,500 votes.
The gubernatorial contest between Republican former Rep. Ron DeSantis and Democratic Tallahassee Mayor Andrew Gillum is a different scenario. DeSantis led Gillum by nearly 34,000 votes, and Democrats in the state are cognizant that margin will probably not be overcome in a recount. Still, Gillum withdrew his election night concession over the weekend with a message that every vote should be counted.
Elias and Democratic lawyers will argue on Wednesday that more votes need to be considered, telling the judge that Florida's signature match law disenfranchises the ill and elderly, people of color and young voters. And, in a preview of what could be the heart of the argument on Wednesday, Elias told reporters on Tuesday that the people judging the signatures are not experts and that there are a host of reasons people have different signatures.
"There are any number of reason why signatures don't match from one to another," he said, citing whether people use a middle name, nicknames, went slow or fast or used a maiden name vs. married name.
"When you look at those laws and you look at the affect they have, they are not effective anti-fraud measures, what they are is disenfranchisement measures," he said.
Republicans, for their part, have long believed that the Democratic strategy on the recount was to turn this process into a legal battle.
Republican lawyers are expected to go after Elias on Wednesday, particularly on whether he is making one argument in Florida that conflicts with one he is making in Arizona, where Democrats are also litigating similar laws on mail in ballots and signatures.
"Democrats in Arizona are using the opposite and contradictory argument to the one they plan to use in court tomorrow in Tallahassee," Scott's campaign said in a statement on Tuesday. "For them, this isn't about following the law and it isn't about having a free and fair election. This is about getting rid of Florida laws they don't like."
Members of the Scott campaign are frustrated because they feel like they are playing by Florida's rules. These laws were purposely re-written and hashed out in the wake of the 2000 presidential election recount. They argue the legal strategy by Elias and company is specifically designed to undo Florida law, piece by piece.
In addition to the signature match lawsuit that will be heard Wednesday, Elias and Democrats have filed three other legal challenges that are making their way through the federal legal system in Florida.
Nelson's campaign and the Democratic Party's Senate campaign arm sued in federal court on Tuesday to lift the deadlines on the statewide recount taking place in Florida, arguing that they are "arbitrary" and "impose a severe burden ... on the right to vote."
If successful, the suit would do away with the Thursday deadline for the machine recount to provide counties with enough time to recount all votes.
"We have asked the federal courts to take the common-sense steps to ensure that every county has a chance to complete those phases of a recount without interruption," Elias said.
There are signs at least some counties may not finish the recount by the Thursday deadline. Late on Tuesday, old and overheated vote counting machines in Palm Beach forced election officials there to start over their count of early vote ballots, erasing more than a day's worth of work.
"We're disappointed by the mechanical problems that are going to cause a further delay in the recount," Elections Supervisor Susan Bucher told reporters Tuesday night. "It became evident through the vigorous pace of counting that the machines used for the recount were starting to get stressed."
Bucher said that 179,000 early voting ballots did not tabulate properly and must be counted once more. She did not specify how long this would set back the county's timetable, but the set back is almost certain to dampen confidence Bucher had in finishing at least the Senate portion of the count by Thursday.
Democrats have also filed suit to ensure vote-by-mail ballots postmarked before Election Day that didn't make it to election officials on time are counted.
"It is not reasonable for peoples' votes to be taken away from them and for them to be disenfranchised based on the speed with which the US Postal Service can deliver these ballots," Elias said. "There is no reason why a Floridian in Ottawa ought to have their ballot counted when a retired veteran in Pensacola who mailed the ballot on the same day and it didn't get here in time shouldn't."
Another suit seeks to clarify how a voter's intent is judged when they incorrectly fill out a ballot.
The crux of Elias' case seeking to clarify a voter's intent is twofold: The lawyer is partly questioning how people mark their ballots, especially in those cases where they are either deemed to have marked too many names or those where they marked too few, and how they note they made a mistake and want to change their vote.
"We can't deny people a right to vote because they choose to put Xs in some, oval, circle some names or fill in some ovals," Elias said before decrying the fact that Florida law requires people to write on their ballot that they made a mistake in voting, not just crossing out a vote.
"It says you can't cross out an errant vote with some marking, you have to use words," he said. "A rule that says you can't cross out an errant vote and you have to use words is simply nonsensical."
Elias argued that these laws are "discriminatory" and unfairly impact people who don't use English as a primary language and people who are illiterate.
All of this has clearly annoyed Scott's team, who have taken an aggressive posture on Democrats broadly, but on Elias in particular.
Aides close to Scott believe that Democrats are attempting to re-write the rule book. That frustration has turned into accusations of possible fraud.
Scott aides often make it clear that Scott himself has never directly claimed there is fraud, but instead has said there is a "possibility that fraud exists." They firmly believe that these lawsuits have the potential to change Florida law in a way that opens the door to problems down the road.
The Scott campaign hopes that argument resonates with voters as well.
"While Bill Nelson and his D.C. lawyer continue to file frivolous lawsuits attacking Florida's laws," Chris Hartline, a Scott campaign spokesman, said Tuesday, "Senator-elect Rick Scott will remain focused on actually respecting the will of the voters."