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Florida judges prepare to release rulings in absentee ballot cases

TALLAHASSEE, Florida (CNN) -- A pair of Florida judges are expected to announce Friday whether almost 25,000 absentee ballots cast in the November 7 presidential election in Seminole and Martin counties will be thrown out.

Democratic activists in the two counties filed lawsuits claiming that election officials violated election laws by allowing GOP volunteers to fill in missing information on thousands of absentee ballot applications.

VIDEO The Boardman case on the will of the voter is the guiding principal in absentee ballot cases. CNN's Charles Bierbauer explains (December 7) Play video (QuickTime, Real or Windows Media)

TRANSCRIPT • Emory Law School's Robert Schapiro answers questions on Seminole County and Martin County cases • Attorney Gary Farmer: Martin County Florida absentee ballot trial

DOCUMENTS Documents in Jacobs v. Seminole County Canvassing Board and Taylor v. Martin County Canvassing Board

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The lawsuits ask to have all or part of the Seminole County's 15,215 absentee ballots or Martin County's 9,773 ballots discarded, because it is impossible to tell which ballots went with the altered applications.

Texas Gov. George W. Bush, the Republican Party candidate, has been certified the winner of Florida's 25 electoral votes by just 537 votes, so a ruling to throw out the ballots in either county would give the lead to Vice President Al Gore, the Democratic Party candidate.

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

Leon County Circuit Court Judge Nikki Clark, who heard the Seminole County case, and Judge Terry Lewis, who heard the Martin County case, had planned to release their rulings together at 12:30 p.m. EST, but that was pushed back to 2:15 p.m. EST because Clark did needed more time.

The Martin County case

In the Martin County case, Elections Supervisor Peggy Robbins testified that her office did nothing wrong by allowing a Republican official to add missing voter identification numbers to absentee ballot applications.

Robbins said the numbers were missing from request forms sent in by GOP voters after a mass mailing from the state Republican Party. She said a state GOP official was allowed to remove those forms and add the numbers to make the forms complete.

The goal, Robbins said, was to ensure no voter was disenfranchised because "they assumed that they had correctly requested an absentee ballot."

The same opportunity would have been given to Democrats, she said, but was not necessary because all forms sent in by Democratic voters were complete and needed no additions.

Democratic voters complained in their lawsuit that they received unequal treatment. They are asking that all the absentee ballots cast in the county be thrown out because it is not possible now to identify those that Robbins allowed the GOP to correct.

Plaintiffs' attorney Ed Stafman contended adding the numbers was illegal and therefore the voters cast ballots unlawfully.

Bush campaign attorney Daryl Bristow argued voter identification numbers were not a requirement for the request forms, and therefore adding them was not against the law.

"All the other information that the voter had supplied under this purely directive, and not mandatory, provision was right," he said.

The Seminole County case

Gerald Richman, lawyer for a Democratic activist who sued Seminole County Supervisor of Elections Sandra Goard and other Republicans, urged Clark to throw out all the ballots because, he said, Goard tainted the election by allowing GOP workers to fill in missing voter registration numbers in ballot applications.

He also said Goard, who initially rejected the applications because the voters failed to include their registration numbers as required by law, broke the state election code by allowing only Republican Party workers to add those numbers to the applications so the voters could receive the ballots.

Goard, a Republican, refused to let Democratic Party workers amend ballot applications from Democratic voters and covered up the fact that she was playing partisan politics, Richman alleged.

Since the voters would not have voted if they had not received the ballots illegally, the election process itself was tainted, he argued.

"We believe, under the law, the only remedy in this case is the entire absentee ballot pool must be thrown out," he said. "We didn't create the problem; the Republican Party of Florida did, and the supervisor of elections did."

Richman argued that a 1976 Florida Supreme Court decision says judges have broad discretion to invalidate all absentee ballots in a particular county, including votes cast legally, if there is evidence that elections officials did not substantially comply with the state election code.

He also said a 1997 case involving the Miami mayor's race, where the entire absentee ballot pool was thrown out because some ballots were fraudulently cast, provides Clark with the legal basis for invalidating all the absentee votes in Seminole County.

"This is not a case involving a technicality," he added. "This is a case where 15,000 ballots must be thrown out."

If Clark did not want to throw out all ballots, she could throw out portions of the vote --close to 2,000 votes for each Bush and Gore -- because statistical analysis shows that is the likely number of voters who received the tainted ballots, Richman said.

The Republican counter-arguments

Terry Young, attorney for the Seminole County Canvassing Board, argued that the Democrats did not ask Goard for access to the ballot applications because all Democratic ballot applications contained the voter registration numbers.

He also said throwing out the 15,000 ballots would disenfranchise all absentee voters in Seminole County and would be a needless step because Richman did not allege that the voters themselves committed fraud, the standard under state law for deciding whether an election was tainted.

"There is no evidence in this case that the ballots were ever compromised. And if the ballots weren't compromised, the election wasn't compromised," said Bush campaign attorney Barry Richard, drawing a distinction between fraudulent voting and possible problems with the way the ballot applications were handled.

"This court, if it were to invalidate any of the ballots, would have to invalidate all the ballots," he said, rejecting arguments by the other side that a portion of the ballots could be rejected under the law. "I would urge the court not to do so."

Background of the cases

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

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

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

Judges hear oral arguments in Florida absentee-ballot applications cases
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December 5, 2000

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Palm Beach County government

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