Judges Let Absentee Votes Stand

The judges agreed that there was a violation of law. They said there was a violation of election policy. And they found there was something untoward about the way two election supervisors allowed the Republican Party to correct absentee ballot applications that would have been thrown out otherwise.

But relying largely on a Florida Supreme Court decision that dates to a 1972 election, two Tallahassee judges said Friday that those actions were not egregious enough to warrant disqualifying thousands of absentee ballots in Seminole and Martin counties.

Republican attorneys successfully argued during simultaneous, two-day trials that the public’s right to vote carries more weight that any technical flaws in the balloting process.

“This was a hypertechnical computer glitch that had not a thing to do with the will of the people,” Bush attorney Daryl Bristow said.

The Democratic activists who sued election officials in the two counties immediately appealed to the Florida Supreme Court, and they are hoping to argue the cases by Monday. Their lawyers had written notices of appeal before the court’s decision was even announced, and they filed the first one eight minutes after the decision.

“They found that this was faulty judgment but was not enough [to find] intentional wrongdoing,” said Gerald F. Richman, the West Palm Beach attorney who is the lead lawyer for Democratic activist Harry Jacobs in the Seminole County case. “But this was illegal. We certainly believe this is above the level of faulty judgment.”

Attorneys Appear to Want to Press Ahead

Vice President Al Gore is not a party to either lawsuit. Asked whether he would drop the appeal if Gore’s campaign asked him to, Jacobs said he would “take it under consideration.” But the attorneys handling the lawsuits did not rule out the idea of pressing forward anyway.

“We were on our own in this case,” Richman said. “[The Republican Party] knew the law. They violated the law. And we intend to take this to the Supreme Court.”

In the weeks after the Nov. 7 election, Democratic activists from the two conservative counties--Seminole, north of Orlando, and Martin, north of West Palm Beach--filed lawsuits accusing election supervisors of colluding with the Republican Party.

The cases focused on postcards the party sent to likely Republican voters before the election. The cards were preprinted applications for absentee ballots, but because of a printing error, they were missing voter identification numbers. That’s one piece of information Florida law requires before a person can receive an absentee ballot.

In Seminole County, election supervisor Sandra Goard conceded that she allowed several GOP officials to use a back room of her office for as long as three weeks to correct the election documents, even though they already had been thrown into a trash bin.

And in Martin County, election supervisor Peggy Robbins went a step further, allowing Republican Party officials to remove the ballot applications from her office for days at a time, then return them when they were fixed.

Both Goard and Robbins are elected Republicans, and Democrats contend the agreements amounted to vote fraud. The lawsuits sought to throw out as many as 25,000 absentee ballots, which could have given Gore, potentially, an 8,000-vote gain.

But Leon County Circuit Judges Nikki Ann Clark, who presided over the Seminole County case, and Terry P. Lewis, who presided in Martin County, declined to throw out any votes.

In the end, the judges found the cases were marked more by what didn’t happen than what did. They pointed out, for example, that the lawsuits didn’t claim that actual votes were tainted, only ballot request forms.

“The persons who signed the request forms in question were duly qualified and registered voters,” Lewis wrote. “There is no evidence of fraud or other irregularities in the actual casting of the ballots or the counting of the ballots. The procedure may have provided an opportunity for fraud, but none has been shown.”

The judges did note, however, that Republican Party officials violated obscure Florida election laws and the policies of the election supervisors, primarily because state law and county policies say absentee ballot applications should be thrown out if they do not include a voter identification number.

The Democratic activists had asked the judges to rely on a package of election reform laws that the Florida Legislature approved in 1998 after voter fraud--including problems with absentee ballots--led to the removal of a Miami mayor. One reform dealt with absentee ballots and established that “the person making the request must disclose” certain information on ballot applications, including voter identification numbers.

But the judges relied instead on a state Supreme Court decision that emerged from a contested election in 1972. In that case, two men were running for a seat on the state appellate court. A St. Petersburg lawyer lost by 250 votes, then contested the election because of problems with more than 1,000 absentee votes.

In a ruling with a striking resemblance to Friday’s decisions, the Supreme Court found in that case that, while there were violations of law, “the primary consideration in an election contest is whether the will of the people has been affected.”

In a joint statement, the Tallahassee judges agreed with that notion Friday, finding that “despite irregularities in the request for absentee ballots . . . the election results reflect the full and fair expression of the will of the voters.”