Sen. Bill Nelson gets boost in Florida recount as judge orders more time to fix ballots

Jeffrey Schweers | Tallahassee Democrat

Show Caption Hide Caption AP explains: unresolved races in Fla, Georgia AP's Washington Bureau chief Julie Pace explains why outstanding races in Florida and Georgia have become so significant, that even President Donald Trump has taken to twitter about one of them. (Nov. 12)

U.S. Chief Judge Mark Walker issued a preliminary injunction this morning in a lawsuit filed by U.S. Sen. Bill 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 precise issue in this case is whether Florida’s law that allows county election officials to reject vote-by-mail and provisional ballots for mismatched signatures — with no standards, an illusory process to cure, and no process to challenge the rejection — passes constitutional muster," Walker said. "The answer is simple. It does not."

The ruling is a victory for Nelson as he tries to narrow the almost 13,000 vote margin between him and Gov. Rick Scott in a razor-thin Senate race that is currently the subject of multiple lawsuits and is undergoing a machine recount, which will likely progress to a hand recount.

“Today’s decision is a victory for the people of Florida and for the Nelson campaign as we pursue our goal of making sure every legal ballot is counted,' Marc Elias, Nelson's lead recount lawyer, said in a news release. "The court’s ruling impacts thousands of ballots, and that number will likely increase as larger counties like Broward add their ballots to the total pool which can be cured. We are taking several steps to ensure the rights of every Floridian are protected, and this is one major step forward.”

After Walker's order was filed, the National Republican Senatorial Committee filed a notice of appeal to the 11th Circuit.

It's unknown how many discarded ballots are at stake, but it's at least 3,688, elections officials said.

In a 34-page ruling that relies on football metaphors, Walker said Secretary of State Ken Detzner must order supervisors of elections that the state's scheme as it applies to curing mismatched signatures is unconstitutional.

"Consider the game of football. Football fans may quibble about the substance of the rules, but no one quibbles that rules are necessary to play the game," Walker said in the opening lines of his order.

But Nelson and the Democratic Party threw "a red flag," Walker said.

"But this is not football. Rather, this is a case about the precious and fundamental right to vote — the right preservative of all other rights. And it is about the right of a voter to have his or her vote counted."

According to his ruling, supervisors must also require all voters who were belatedly notified that they have mismatched signatures to correct the problem by 5 p.m. Saturday -- the same day that the results of a manual recount are due.

The election results are scheduled to be certified Tuesday by the Florida Cabinet sitting as the Election Canvassing Commission.

Detzner has until 5 p.m. today to notify the court whether he intends to comply with the order. But his appeal may render that deadline moot.

Walker said he recognized that time is of the essence because supervisors have received thousands of vote-by-mail ballots and a recount is underway. He also wanted to make sure defendants had a chance to seek a stay of the order.

The fast-tracked ruling came after more than five hours of testimony and arguments about whether the state's scheme for determining if signatures on mail-in ballots was constitutional or deprived voters of their fundamental rights.

He was particularly perturbed that state elections officials didn't know how many ballots were at stake.

Wednesday afternoon, Division of Elections Director Maria Matthews identified 3,688 vote-by-mail ballots and 93 provisional ballots in 45 counties that were not tabulated because of signature mismatches. She estimated the total could be around 5,000 based on 2016 results.

"It seems to me the people of Florida ought to know if it is 3,000 or 5,000 instead of pulling some magical number out," he said from the bench Wednesday.

Voters whose ballots are delivered by 5 p.m. the day before Election Day can "cure" their ballots if the supervisor of elections reject them because the signature on the envelope didn't match the signature on file with the supervisor of elections.

No such cure is available for ballots postmarked Nov. 6 but delivered after the 7 p.m. election day deadline.

Uzoma Nkwonta, representing Nelson, argued the system was fundamentally flawed because there is no remedy for those people. The statute outlined no process for a voter to challenge a signature rejection, let alone be notified that their ballot was rejected, he argued.

"It's a stacked deck against the voters," Nkwonta said.

Nelson's team filed an affidavit from former congressman Patrick Murphy of Palm Beach County, who said his ballot was rejected because the supervisor said his signature didn't match.

Detzner's attorney Mohammed Jazil argued that there were administrative procedures and deadlines to follow, interests of the state outweighed voter rights.

Walker grilled both legal teams about what they recommend he do to cure what he recognized as a glaring problem with the statute.

More than 2.7 million people voted by mail in the 2016 general election, and 2.6 million in this year's general election, according to Division of Elections results.

In a 2016 case, Walker found that "the Florida statutory scheme that provided an opportunity to cure no-signature ballots, but denied that opportunity to mismatched-signature ballots, was unconstitutional."

In light of that finding, supervisors allowed mismatched signature ballots to be cured the same way provided for non-signature ballots and the Legislature followed up by amending state statutes.

Now, if a signature doesn't match what is in the registration books or on the precinct register, the supervisor is supposed to immediately notify the voter, who has until 5 p.m. the day before the election to submit an affidavit to cure the ballot.

Walker noted a vote-by-mail ballot cannot be submitted after election day. He also said there was a problem when people notified seven days after Election Day were told their ballots were thrown out.

"The opportunity to cure is the last chance a vote-by-mail voter has to save their vote from being rejected and not counted," Walker said in his ruling. "Florida law provides no opportunity for voters to challenge the determination of the canvassing board that their signatures do not match, and their votes do not count."

Follow Jeffrey Schweers on Twitter @jeffschweers.