Hand recount ordered in Florida Senate race, but not governor race where margin is too wide

John McCarthy | Florida Today

Show Caption Hide Caption Brevard voting recount begins in Viera Brevard County Supervisor of Elections Lori Scott describes the recount process that began Tuesday morning.

TALLAHASSEE – The state-mandated recount of more than 8 million Florida ballots has been completed with little change in three contested statewide races.

That means the U.S. Senate and agriculture commissioner's race are now headed toward hand recounts.

The race for governor, where the contest between Democratic Tallahassee Mayor Andrew Gillum and former GOP Congressman Ron DeSantis drew a national spotlight, could be all but over.

DeSantis maintained his narrow lead following the machine recount but Gillum has yet to concede, hoping pending lawsuits that seek to allow more votes to be counted still might give him a path to victory.

The state released the revised totals after a federal judge denied a request to extend the deadline in the statewide recount, even though Palm Beach County, the state's third-largest county, was unable to meet the 3 p.m. Eastern Standard Time deadline. Due to a late start and machines that overheated, county officials were unable to compete its recount of some 584,000 ballots in time.

With the machine recount finished, the Florida secretary of state ordered a hand recount of thousands of questionable ballots in the two remaining contested races that have tiny margins: U.S. Senate (where GOP Gov. Rick Scott leads incumbent Democrat Bill Nelson by 12,603 votes) and agriculture commissioner (where Democrat Nikki Fried leads Republican Matt Caldwell by 5.307 votes).

In a six-page order filed Thursday afternoon, U.S. District Chief Judge Mark Walker said he would not extend could not offer relief because of "a complete dearth of evidence" concerning the progress or expected completion of the recounts in Palm Beach County.

"This Court must be able to craft a remedy with knowledge that it will not prove futile. It cannot do so on this record," Walker wrote. "This Court does not and will not fashion a remedy in the dark."

In addition, Walker said state law only allows for the extension of an election reporting deadline in the case of an "emergency."

"The emergency exception does not apply in this case, where the delay is a result of outdated and malfunctioning vote-counting technology," he wrote.

If a county is unable to submit results by the recount deadline then its previous tally stands and becomes official. That, however, could open legal challenges to the results centered on voter disenfranchisement and violation of the Equal Protection Clause of the Constitution.

“When these timelines were put in place, no one envisioned having to do three statewide recounts all at the same time while also having to do a local race recount and a local and a legislative recount,” said Paul Lux, the Okaloosa County supervisor of elections and president of the statewide Supervisor of Elections Association.

All 67 Florida counties conducted a machine recount of three races – governor, U.S. Senate, and agriculture commissioner – because they all fell within a half-percentage point margin between the top two finishers, which triggers an automatic recount.

Palm Beach Elections Supervisor of Elections Susan Bucher said the county gave it "our best shot," but blamed the problem on old, faulty equipment.

"It was not for lack of human effort," she said Thursday morning before the deadline arrived. "The human effort was there.”

Bucher said she takes “full responsibility” for the missed deadline.

After the judge did not give Palm Beach County extra time to finish, Marc Elias, a lawyer for Nelson, promptly sued Palm Beach County and Florida Secretary of State Ken Dentzer to require a hand count of all ballots in the county, not just the questionable ones.

BREAKING: We have sued Palm Beach County and the Florida Sec of State to require a hand count of all ballots in the county due to systematic machine failure during the machine recount. — Marc E. Elias (@marceelias) November 15, 2018

Nelson got some bad news Thursday when the recount of the vote in Broward County, a Democratic stronghold where he had hoped to gain votes, found that he had actually lost some ground.

The original results released Saturday in the Senate race showed Democratic incumbent Bill Nelson with 471,334 votes, compared to Republican Gov. Rick Scott's 211,119. After the recount the candidates lost votes – Nelson had 469,949 votes and Scott had 210,513 votes. So Nelson lost 1,385 votes while Scott lost 606.

With so much at stake, the legal wrangling over the election has intensified.

Judge Walker issued a preliminary injunction Thursday morning in a lawsuit filed by Nelson over ballots thrown out because of mismatched signatures – declaring a state law unconstitutional and offering a middle path to give voters a few days to correct their ballots.

The ruling deals with cases where election officials rejected ballots because they believed the signature submitted with the ballots didn't match voter signatures they had on file.

Walker said voters whose ballots were rejected should have until 5 p.m. Eastern on Saturday to go to their local elections office to verify that they, in fact, had signed the ballots.

Lawyers representing Scott immediately filed a notice of appeal with the 11th Circuit Court of Appeals in Atlanta.

Meanwhile, state election officials have asked federal prosecutors to investigate efforts to have people attempt to challenge signature mismatch problems after the deadline had passed.

State law says voters whose mail-in ballots had been rejected because of signature mismatches had until 5 p.m. the day before the election to file an affidavit with local elections offices verifying that was their signature on the ballot.

But Democrats shared emails after Election Day telling voters they had until 5.p.m. Nov. 8, to submit such affidavits, known as "cure forms." In fact, that was the deadline for submitting cure forms for provisional ballots cast at polling places on Election Day.

State election officials said altering an official document, as was the case when the deadline date was changed in the affidavit circulated by some Democrats, is illegal.

In any case, those affidavits could only effect vote totals if Walker's decision to extend the deadline to file cure forms until Saturday stands.

Brevard County Canvassing Board discusses troublesome ballots Brevard County Canvassing Board checks over provisional ballots the Friday after Election Day at the Government Center in Viera.







Contributing: Jeffrey Schweers and James Call of the Tallahassee Democrat, Ali Schmitz of Treasure Coast Newspapers, Ana Ceballos of the Naples Daily News, Ledyard King of USA TODAY