Election '18

Federal courts rule against voter suppression in Florida and Georgia

More ballots need to be counted, but may not be enough for Democrats to prevail.

Photo Credit: Michael Fleshman / Flickr

Federal courts in Georgia—and now Florida, on Thursday—are ordering election officials in both states to count thousands of ballots that previously had been rejected because of how voters signed and dated them.

In the past 24 hours, a fourth federal court ruling was issued in Georgia that will ensure an entire category of ballots must be counted—those cast by mail that had been rejected based on examining the absentee ballot envelope.

“Judge [Steven C.] Jones [of the U.S. District Court for the Northern District of Georgia] is the fourth Federal judge in the past three business days to find that portions of the Secretary of State’s administration of the 2018 election violate the United States Constitution,” a statement from the Democratic gubernatorial campaign of Stacey Abrams said.

Abrams is hoping that as previously uncounted ballots trickle in, she will get enough votes to trigger a recount or a runoff with the GOP candidate who is leading, ex-Georgia Secretary of State Brian Kemp. While Judge Jones has opened the door a bit on counting more absentee ballots, he did not order more leniency on provisional ballots. Those are given to voters not on polling place lists, which was the other pool of uncounted votes eyed by Abrams.

“Hampered by shoddy record keeping as orchestrated by Brian Kemp, counties simply did not maintain the documentation that would have been necessary to ensure that every eligible vote cast was a vote counted,” said the campaign’s statement, which did not note how many additional votes were needed to trigger a recount or runoff.

(The campaign did reply to a request for updating those figures, where the counting will continue through Friday, based on a ruling by U.S. District Judge Amy Totenberg earlier this week.)

First Federal Court Ruling in Florida

As of Thursday, the campaign said it needs 15,437 more votes for a recount and 17,751 votes for a runoff, where the counting will continue through Friday based on a ruling by U.S. District Judge Amy Totenberg earlier this week.

A similar scenario is unfolding in Florida, where Democrats in top races—led by Sen. Bill Nelson, who trails GOP Gov. Rick Scott by 12,500 votes—hope to enlarge the universe of rejected ballots that can be counted.  These absentee and provisional ballots were disqualified because the signatures on their envelopes did not appear to match records from voter registration files or signing pollbooks in past elections.

Early on Thursday, Chief Judge Mark Walker of the U.S. District Court’s Northern District in Florida, ordered the state to allow voters whose absentee or provisional ballots had been rejected to return to county election offices with identifying information to allow those ballots to now be counted. He extended the deadline for this “cure” through Saturday at 5 p.m.

“What this case comes down to is without procedural safeguards, the use of signature matching is not reasonable and may lead to unconstitutional disenfranchisement,” Walker’s injunction said.

“Let this Court be clear: it is NOT ordering county canvassing boards to count every mismatched vote, sight unseen,” the Court order said. “Rather the county supervisors of election are directed to allow these voters who should have had an opportunity to cure these ballots in the first place, to cure their vote by mail and provisional ballots now, before the second official results [from ongoing statewide recounts] are fully counted.”

Walker’s ruling came hours before all Florida counties are slated to finish the first round of three statewide recounts by 3 p.m. Thursday—in races for governor, senator and agriculture commissioner. If the winning margins in any of those races (or other county-level races) are less than 0.25 percent, which will be the case in Nelson’s race, then the recount process goes to round two. There, ballots with no votes for Senate (called under-votes) or multiple votes (over-votes) will be manually examined, to further refine totals until a winner is officially declared.

This first ruling by Walker is very significant because he has more than a half-dozen federal lawsuits before him that challenge details of how Florida is counting its votes. On Wednesday, he held a five-hour-plus hearing that touched on many more issues than whether or not Florida’s signature-matching standards amounted to state-managed voter suppression.

The bottom line for trialing Democrats, however, whether Sen. Nelson or gubernatorial candidate Andrew Gillum, is that there does not appear to be a deep reserve of uncounted ballots—in unopened absentee and provisional ballot envelopes due to signature mismatches—based on figures from top Florida election officials during Wednesday’s hearing.

Maria Matthews, the Florida Division of Election director, said there were 3,688 rejected absentee and 93 rejected provisional ballots in 45 of Florida’s 67 counties. Her data didn’t include some of the most populous counties, namely Miami-Dade and Duval (Jacksonville). Palm Beach County, where there are 31,000 ballots with no votes cast in the Senate race—possibly due to a confusing ballot design—reported 931 rejected ballots.

“It is 3,000? Is it 50,000? The people of Florida ought to know,” Walker asked from the bench, frustrated that the state officials did not have more complete figures. While lawyers for Florida’s Attorney General and its Secretary of State told Walker they would file updated numbers, his Thursday ruling did not include that accounting—which would be a revealing lens into the likelihood of Democrats prevailing.

“It would be nice if people actually know what we were talking about,” the judge said in his closing remarks to the Republican lawyers after a five-hour hearing. “We hear all kinds of misinformation that undermines faith in our democracy.”

What Next in Florida?

Walker’s ruling—which Republicans said they would appeal—suggested that he would only intervene when there are specific vote-counting practices that prevent all eligible voters from casting ballots that count.

“Here, the injury [to voters] is the deprivation of the right to vote based on a standardless determination made by laypeople that the signature on a voter’s vote by mail or provisional ballot does not match the signature on file with the supervisor of elections,” he wrote. “There are dozens of reasons a signature mismatch may occur, even when the individual signing is in fact the voter. Disenfranchisement of approximately 5,000 voters based on signature mismatch is a substantial burden.”

What Walker would not do was upend the state’s vote-counting timetable, even though Nelson’s lawyers argued that the process should be delayed for at least several weeks. (In response, the Republicans said that could leave the state without a new governor in January 2019.) Walker looked past the hyperbole from both sides to see where small adjustments could be made.

“I don’t understand how a handful of people in 67 counties can’t show up with proof in the next few days, can’t show up with proof and cast a ballot,” Walker replied to the GOP lawyers’ concerns and objections to making any change in the current process. “You are counting military ballots anyway.”

Walker is referring to civilian and military ballots from overseas, which federal law allows to be counted up to 10 days after Election Day—as long as they are postmarked by November 6. Just like rejected absentee and provisional ballots, they are segregated and handled separately, which is not a big administrative burden.

But most telling, Walker repeatedly raised the shadow of the 2000 Florida presidential recount, where the U.S. Supreme Court changed the rules in the middle of the process—to stop the count—and declare George W. Bush the winner in its infamous Bush v. Gore ruling.

He repeatedly asked Democrats if they wanted a federal court to tear apart and rewrite Florida’s vote counting laws in the middle of close elections—a clear reference to other lawsuits on his desk filed by Nelson’s campaign and other interest groups.

“Isn’t it a bad idea to have a federal judge rewrite the entire election code as the votes are being counted?” he asked. “This just seems like a really bad way to do this… Years ago, we were choosing the leader of the free world. Now we are choosing a senator and a governor? What do you say to that, Mr. [Uzoma] Nkwonta (the lead lawyer arguing for Democrats)?”

Walker’s subsequent ruling showed his Court was sensitive to ensuring that as many uncounted ballots as possible be vetted and counted—while putting some of that burden on voters to return to county election boards to “cure” whatever identity verification issues prompted their ballots to be rejected.

While adding potentially several thousand more votes to Florida’s totals on Saturday may not be enough to re-elect an incumbent U.S. senator or a new Democratic governor, Walker’s ruling suggested he would order Florida election officials to make small adjustments to their counting timetable.

“You all have these competing interests, but when is the error [in not counting votes] big enough that it is a structural problem?” he asked in Wednesday’s hearing. “Last time I checked, 500 votes selected the leader of the free world… sent troops into Afghanistan.”

Outside the courtroom, Walker’s ruling will set in motion a scramble by the Democrats to identify and urge their absentee and provisional voters to see if their ballots were rejected, and, if so, go to county offices with needed IDs. That chase is exactly what the Georgia Democratic Party and Abrams campaign has been doing for days.

In both states, the federal courts are opening the door for more votes to be counted. But whether that will be sufficient to elect Democrats is not just an open question. So far, based on the available data on uncounted votes, the odds of success appear to be steep for Democrats in both states.

Nonetheless, federal courts are ruling that these two GOP-run states have election rules that are suppressing votes.

This article was produced by Voting Booth, a project of the Independent Media Institute.

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Steven Rosenfeld is a senior writing fellow of the Independent Media Institute, where he covers national political issues. He is the author of several books on elections, most recently Democracy Betrayed: How Superdelegates, Redistricting, Party Insiders, and the Electoral College Rigged the 2016 Election (March 2018, Hot Books).