Democrats Gain Ground in Absentee Application Case

Democratic lawyers resuscitated Al Gore’s dark-horse court battle Thursday when a second election official was forced to concede that she had allowed the state Republican Party to remove flawed absentee ballot applications from her office--and that her arrangement with the GOP may have violated state law.

Minutes later, a mathematician and statistician testified that the decision by Republican Martin County election supervisor Peggy S. Robbins to allow the GOP to correct ballot requests that already had been declared invalid gave George W. Bush an extra 558 votes. The estimate by Boston University professor Arlene Ash is 21 votes more than the Texas governor’s lead of 537 in Florida.

In fact, if the Democrats are successful in their two lawsuits--the one from Martin and another from Seminole County--alleging that election officials colluded with the GOP to fix the ballot requests, it could put Gore more than 8,000 votes ahead of Bush.

Both trials came to a close Thursday in Leon County Circuit Court here, and the two judges involved are expected to deliver their verdicts today.

Both sides immediately declared victory following their final arguments.

In their closing statements, Republicans argued that throwing out the absentee ballots--as the Democrats are asking--would be “draconian.” They said the allegations in both lawsuits are based on technicalities and that judges repeatedly have sided with the public’s right to cast votes over minor flaws in the balloting process. (Many of the voters never even knew that their applications had been corrected.)

“I don’t tend to speak in hyperbole, but the fact is that these cases are utterly without substance,” Bush attorney Barry Richard said in the rotunda of the Leon County Courthouse. “It’s just crystal clear.”

The cases are considered legally problematic, and most experts consider them longshots. But the Democrats’ case appeared, at a minimum, to intrigue the two judges presiding over the trials.

Circuit Judge Nikki Ann Clark, who is hearing the Seminole County case, said Thursday that she cannot “simply ignore” Democrats’ allegations that Republicans were colluding to alter absentee ballot application forms.

The Seminole election office--where several GOP employees, the election supervisor there earlier admitted, were allowed to use a back room to correct more than 2,000 flawed ballot forms--”was turned into an agent or an arm of one political party,” said Gerald F. Richman, a lawyer representing the Democratic activist who brought the lawsuit. “And the law says you cannot do that.”

In his closing argument, Richman cited the deposition of Michael Alan Leach, the Republican Party’s North Florida regional director and the primary official allowed to use the Seminole County office to correct the applications.

Leach, who spent two years in the Air Force after high school, said he merely was following the chain of command when the Republican Party dispatched him to correct the documents. “I’m a military man,” Leach said last week in the deposition. “I follow orders.”

“And the orders in this case were to violate the law,” Richman told Clark.

After an epidemic of problems, including fraudulent absentee voting, helped remove a Miami mayor from office in 1997, the state Legislature enacted election law reforms. Lawmakers laid out--among other things--the information that voters must provide before they can receive absentee ballots.

Among the information: voter identification numbers.

Before the Nov. 7 presidential election, Republicans moved to increase turnout by sending postcards to likely Bush voters, preprinted absentee ballot application forms that were supposed to require only voters’ signatures.

But the identification numbers, because of a printing error, were either missing or scrambled on more than 750 cards sent in to the Martin County election office. Those request forms were declared invalid until GOP officials realized their mistake and persuaded Robbins that they should be allowed to remove the ballots from the office, correct them and return them.

“The mistake was made by the Republican Party,” Robbins testified Thursday. “It only seemed logical to allow the Republican Party to correct that mistake.”

Republicans agree that under Florida law only a voter, a voter’s relative or a voter’s guardian can submit absentee ballot applications. But the law does not specifically say that a third party cannot correct the forms once they have arrived. That potentially is a fatal flaw in the Seminole County suit, because Republicans there are accused of using the election office to alter the forms, not of removing the forms.

Democrats believe that the moment Republicans walked back in the door of the Martin County election office with the corrected forms, they were effectively resubmitting them. That’s a critical difference between the two cases, Democrats say.

Gary Kohlman, one of the attorneys representing a Democratic activist who brought the Martin County lawsuit, pointed out that the election reform law--in terms of absentee ballot application requirements--gives voter identification numbers the same weight as a voter’s signature. Surely, Kohlman argued, Robbins would not have allowed anyone to correct a voter’s signature on any election document.

“Would I sign your name for you? No, I wouldn’t,” Robbins said.

“And you wouldn’t want the Republican Party to do that either, would you?” Kohlman asked.

“No,” she said quietly.

“Why haven’t we gotten the full truth from these people about what happened?” Edward Stafman, the lead attorney for the Democratic plaintiff in the Martin County lawsuit, asked in his closing argument. “This is clearly a case of intentional misconduct. And it went right to the top of the Republican Party of Florida.”

Republicans argued that the reform law is not a “mandatory statute” but merely a “directive”--a legal term that means it is designed to help election officials, not act as a strict rule that would eliminate votes if it weren’t followed to the letter.

But Leon County Circuit Judge Terry P. Lewis, who is presiding over the Martin County case, suggested he disagreed. He pointed out that the law specifically says “the person making the request must disclose” all of the required information, including the voter identification number.