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Court watchers disagree on how judges hearing absentee-vote lawsuits would rule

By Raju Chebium
CNN.com Correspondent

WASHINGTON (CNN) -- Florida election-law scholars disagree on how state judges hearing two Democratic lawsuits seeking to throw out absentee vote totals in Seminole and Martin counties would rule.

They agreed that the elections supervisors of the two counties broke the law by allowing Florida Republican Party workers to tamper with the ballot applications, making it possible for thousands of absentee voters to cast their ballots when they should have been barred from participating in the 2000 presidential election.

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TRANSCRIPT Attorney Gary Farmer: Martin County Florida absentee ballot trial

DOCUMENTS Documents in Jacobs v. Seminole County Canvassing Board

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Terence Anderson, a law professor at the University of Miami, said the violations were egregious enough to constitute "fraud," and the judges have leeway under a 1999 statute to throw out Seminole County's 15,215 absentee ballots and Martin County's 9,773 ballots.

But Johnny Burris, who teaches at Nova Southeastern University's law school, argued that the illegal actions of Sandra Goard, Seminole County's elections supervisor, and Peggy Robbins, Martin County's elections supervisor, do not constitute "voter fraud" under state law and a similar case decided in 1998.

Jon Mills, dean of the University of Florida's law school and former speaker of the state House of Representatives, said the judges would have to base their decisions on whether the improprieties "affect the results of the balloting" under state law.

"I guess you could argue that the voters themselves didn't do anything wrong and the ballots themselves expressed the voters' will. That would be argument not to throw out the ballots," he said. "The argument to throw out the ballots would be the misconduct caused the ballots to be cast that otherwise would not have been cast."

"I think the burden is on the plaintiff" to prove that Goard's and Robbins' illegal actions constitute "fraud," and the absentee ballots in the two counties must be discarded, Mills said.

Details of the two cases

Jacobs v. Seminole County Canvassing Board and Taylor v. Martin County Canvassing Board were filed by Henry Jacobs and Ronald Taylor, two Democrats living in Seminole and Martin counties, respectively.

Leon County Circuit Judge Nikki Clark heard the Seminole County case Wednesday, while fellow Leon County Judge Terry Lewis heard the Martin County matter in the same building in Tallahassee, Florida's state capital.

Both lawsuits allege that thousands of absentee voters sent in incomplete applications to receive the ballots from election officials.

After initially rejecting the applications for lacking the voter registration numbers as required by Florida law, Goard and Robbins illegally allowed Republican Party workers to include the registration numbers, according to the similarly worded lawsuits.

Under Florida law, only voters, their legal guardians or immediate family members may request ballot applications, according to the lawsuits.

By allowing GOP workers to amend the applications, Goard and Robbins allowed absentee voters to cast their ballots when they should have been barred from doing so, the lawsuits allege.

Jacobs' lawsuit says Goard, a Republican, and other officials "gave the Republican Party unfettered, unsupervised access to office space, records and equipment for ten days" so that two party workers could amend the ballot applications to allow voters to receive the ballots.

Taylor's lawsuit says Robbins and other officials "allowed the Republican Party to remove from public offices, and any official supervision, absentee ballot forms" allowing party workers to "alter signed Republican absentee ballot request forms by inserting voter identification numbers and/or other data."

The Florida Democratic Party was denied the chance to amend the ballot applications, the lawsuits allege.

Republican presidential candidate George W. Bush won the absentee vote in both counties -- by 10,006 votes in Seminole and 6,294 votes in Martin, the lawsuits said. Democrat Al Gore received 5,000 votes in Seminole and 3,479 in Martin.

Gore's legal team has said it played no role in Jacobs' and Taylor's lawsuits. Gore has not joined the lawsuits but has expressed support.

Why cases are important for a Gore victory

By throwing out all absentee ballots in the two counties, Gore would win the statewide election because Bush would have a larger number of votes deleted from his column, Anderson said.

The November 26 statewide vote certification showed Bush defeating Gore by 537 votes. If Bush has more votes taken away, then Gore would emerge victorious in Florida, win the state's crucial 25 electoral votes and move into the White House in January.

"I think the two absentee ballot cases are his best hope. Not just because they have legal merit, but because of the remedy -- they do not require recounting," Anderson said.

Monday, Gore lost his legal fight for a manual recount of all non-absentee votes cast on November 7 in Palm Beach and Miami-Dade counties.

Leon County Circuit Judge Sanders Sauls ruled that Gore had not sufficiently proven that manually recounting the votes cast in those two counties would affect the outcome of the presidential election. Gore has appealed that decision to the Florida Supreme Court.

Conventional wisdom is that the manual recounting of millions of votes could not be finished by December 12, the date when the Republican-controlled Florida Legislature apparently can step in and award electors to the candidate of its choosing. The logical choice would be Bush, the GOP nominee.

Anderson's view that Gore's best chance lies with the absentee-vote lawsuits is rooted in this scenario: If Clark or Lewis throw out the absentee ballots -- and higher courts approve --then the absentee totals would be deleted from the final vote totals in Seminole and Martin counties.

Judge Sauls decided that manually recounting non-absentee votes cast in Palm Beach and Miami-Dade counties would not effect the outcome of the election

Therefore, time is saved and the statewide vote could be re-certified before December 12. Anderson has said that if the controversy over the popular vote has been resolved before December 12, the Florida legislature must award the electors to the winning candidate. And if Gore wins the popular vote, the Republican-controlled legislature has no choice but to award the electors to Gore, Anderson said.

Anderson, who said he voted for Gore, said election officials clearly violated the law by allowing GOP workers to tamper with ballot applications. He said a 1999 state law gives judges "broad authority" to remedy voter fraud -- including throwing out the absentee ballot counts in individual counties.

Why judges cannot throw out absentee ballots

Burris argued that Florida law would not allow Clark or Lewis to disenfranchise tens of thousands of absentee ballots because the voters themselves did not commit fraud. Under his reading of Florida election code, "fraud" refers to illegal voting practices by voters, not by election officials or some other party.

"What (Goard and Robbins) did was improper under Florida law. Whether you need a remedy, that's a different question," Burris said.

He said the most applicable prior Florida case supports his view. In the 1998 Miami mayoral race, a circuit judge found there were pervasive problems such as absentee ballots returned in the names of dead people. The judge nullified all absentee ballots.

The crux of the cases involving Seminole and Martin counties is that the absentee votes themselves were not illegitimate, though the way they received the votes was illegal.

The key question before Clark and Lewis is whether the officials' violations "really make a substantial portion of the absentee ballots illegitimate," he added.

It is "highly probable" that the judges could throw out the lawsuits and some other legal authority, such as the state attorney, the Florida Ethics Commission or even the U.S. Department of Justice, could investigate Goard and Robbins and impose criminal sanctions, he said. And punishing Goard and Robbins would have no impact on the election outcome.

"I voted for Gore, but the law's the law," Burris said.

Election battle returns to Florida Supreme Court
December 5, 2000
Bush attorneys argue against manual recounts before federal judges in Atlanta
December 5, 2000

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