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Judge weighs Palm Beach problems as deadline nears

Almost two decades after Florida’s protracted and historic presidential recount, Palm Beach County was once again in the election crosshairs Thursday.

This time, it’s not a faulty “butterfly ballot” or “hanging chads” that have made Palm Beach County the target of lawsuits. Instead, county Supervisor of Elections Susan Bucher blames antiquated equipment for her inability to meet a Thursday deadline to complete machine recounts in the U.S. Senate race between Democratic incumbent Bill Nelson and Gov. Rick Scott and contests for Governor, Agriculture Commissioner and a Palm Beach County state House seat.

Under Florida law, elections results that aren’t updated in time for recount deadlines default to the last numbers submitted to the state. Numbers from the Thursday afternoon deadline for machine recounts determine whether further manual recounts are needed.

The machine recount deadline was slated for 3 p.m. Thursday, while a manual recount deadline is noon Sunday.

But Nelson’s campaign and the Democratic Senatorial Campaign Committee on Thursday asked U.S. District Judge Mark Walker to extend the deadlines, arguing that voters in Palm Beach County — and possibly others — will be unconstitutionally subjected to different standards than other voters, based on where they live.

The Democrats’ lawyers argued that county canvassing boards won’t have time to decide whether ballots that were improperly rejected, such as damaged ballots, on Election Day should be counted.

And canvassing boards in Palm Beach and Broward counties may not have time to conduct the manual recount of “overvotes” and “undervotes” before the Sunday deadline, lawyer Uzoma Nkwonta told Walker during a telephone hearing Thursday morning.

In a recent filing in a separate lawsuit, Bucher’s lawyers said they would likely be unable to complete the machine and manual recounts before Dec. 1.

But during Thursday’s hearing, Nkownta was unable to say how long Bucher needed to finalize the recounts, frustrating the judge, who is handling six other election-related cases.

“I try to be practical. I try to understand that this is an election. It seems like everybody’s working on overtime to diminish our faith in our institutions. My order would just say do it until you get it done and let us know?” Walker asked.

Later, Walker scolded, “You literally have blindfolded me, shoved me in a room, turned all the lights out and said, judge, you’re supposed to fashion a remedy that impacts an issue as weighty” as who Florida’s next U.S. Senator and Governor will be.

Nkwonta said even an extra two days would help.

With more time, more ballots get counted, “that’s not a futile remedy,” he said.

If the judge is “unable to fashion relief that the court is certain will alleviate all the harm imposed,” he can still “ensure that enough votes get counted or additional votes get counted,” Nkownta said.

“The answer is not zero,” he said.

But lawyers representing Florida Secretary of State Ken Detzner, who was appointed by Scott, the National Republican Senatorial Committee and Attorney General Pam Bondi disagreed.

The deadlines are there for a reason, they said. For example, Florida’s Constitution requires that the new Legislature be sworn in on Tuesday. U.S. senators are sworn in on Jan. 3, and the new Governor will take office on Jan. 8.

Mohammad Jazil, a lawyer representing Detzner, said the statutory deadlines regarding elections results should matter.

“That statutory deadline seems to work for 66 of the 67 counties,” he said. “We believe it’s good enough.”

Jazil drew Walker’s wrath by suggesting that one way of ensuring a uniform recount method throughout the state would be to have no recount at all.

“I’d expect to hear that from the National Republican Senatorial Committee, but I’m shocked to hear that from the secretary of state. But maybe they’re one and the same,” Walker said.

Jazil later apologized.

Walker also chided Palm Beach County for failing to have “adequate systems” to run elections.

“It is inconceivable to me that we just had a presidential election with one of the highest voter turnouts in the state in 2016. Florida has had razor-thin elections over and over and over again, so we don’t locally allocate the funds to provide adequate equipment to do this,” he said.

Florida law only allows for exceptions to the deadlines in cases of natural disasters or war, meaning that the Legislature did not include an emergency provision for mechanical failures or other equipment-related problems, Walker noted.

“We have been the laughingstock of the world in election after election. I get all that. … We’re still going to go to a default where we don’t count every vote,” Walker, obviously irked by the dilemma, said.

Jonathan Cohn, who represents the Republican senatorial committee, said that there is no unequal treatment between the counties.

“The same rules apply to everyone, all 67 counties. The same deadlines apply,” Cohn said. “Palm Beach simply chose not to obtain those new machines, but each county certainly had the same opportunity.”

The Thursday morning hearing was one of a series in legal battles stemming from the Nov. 6 elections. Before starting the hearing, Walker issued a ruling in another case, giving voters until 5 p.m. Saturday to fix ballots that were rejected because of mismatched signatures. Scott’s campaign immediately appealed that ruling to the 11th U.S. Circuit Court of Appeals.

Scott led Nelson by about 56,000 votes on election night, but the lead dwindled to less than 13,000 votes as ballots continued to be counted. That narrow margin triggered an automatic recount.

Once the machine recount results are in, the Scott-Nelson race and the contest for state agriculture commissioner between Democrat Nikki Fried and Republican Matt Caldwell will almost certainly fall within a margin of 0.25 percent or less. That would require manual recounts, with final results slated to be certified by the state Elections Canvassing Commission on Tuesday.

The News Service of Florida provides journalists, lobbyists, government officials and other civic leaders with comprehensive, objective information about the activities of state government year-round.

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