Gore's legal victory helps Bush in absentia

The ruling gave election supervisors a reason to reconsider rejected absentee ballots.

By STEPHEN HEGARTY

© St. Petersburg Times, published November 28, 2000

The lawsuit filed by the Bush camp got the election supervisors' attention, but it was legal action by the Gore camp that opened the door to add dozens of previously rejected overseas ballots to George W. Bush's vote total.

Al Gore's legal team went before Florida's Supreme Court last week attempting to buy time and allow for the inclusion of recount votes from South Florida. It accomplished both goals. The court said the recount totals should be included in the vote certification on Sunday.

But that same ruling on Nov. 21 also prompted elections officials to take a second look at overseas ballots -- many of them from military voters -- they had rejected days earlier. And, in yet another bizarre twist in an election full of twists, Gore's legal action led to more votes for Bush.

"I think it's odd that they filed the lawsuit trying to buy some time and add some votes and it ended up backfiring," said Bob Brooks, a Washington-based lawyer for the Republican National Committee who has been in Palm Beach for the recounts. "This was a public relations disaster for them all along, to challenge all those military ballots."

The Associated Press estimated that Bush gained 90 or more votes when overseas ballot totals were amended over the weekend.

Why were ballots rejected one day and allowed days later?

For one thing, last week's Supreme Court decision gave elections officials a chance to rethink their positions at a time when many of them were being threatened with lawsuits.

More significantly, the Supreme Court justices directed attention to a 1975 court decision that ordered elections officials to accept absentee ballots that were "in substantial compliance with the absentee voting laws."

"When we met on the 17th (to count overseas ballots), we made our decisions according to our interpretation of federal and state law," said Pasco County Supervisor of Elections Kurt Browning. "The following Wednesday, the Supreme Court decision clarified some things, and we looked at some of those ballots differently."

Said Browning: "The Supreme Court really pointed to Boardman."

Browning was referring to a case commonly known as "the Boardman case," named after Judge Edward F. Boardman, who won a seat on Florida's 2nd District Court of Appeal thanks to absentee ballots. Boardman's win in the 1972 election was contested by St. Petersburg lawyer Henry Esteva, who was ahead until the absentee ballots were counted.

In siding with Boardman, the Florida Supreme Court rejected strict compliance with laws pertaining to absentee ballots. The court wrote that requiring "sacred, unyielding adherences to statutory scripture" would compromise voters' rights. "Absolute strict compliance could reach absurd proportions."

With the Boardman case pointing the way to a more liberal handling of overseas absentee ballots, elections officials in several counties allowed votes they had previously rejected.

Not all elections supervisors reconsidered their stance on overseas ballots. Hillsborough County elections officials face a lawsuit, and they were urged to reconvene the canvassing board. But Hillsborough is sticking with the decisions made on Nov. 17, when overseas ballots were first counted. "We did our job right the first time," said Hillsborough Supervisor of Elections Pam Iorio.

In Brevard County, Bush picked up a net gain of eight votes when 20 previously rejected overseas ballots were added to the vote totals. Eleven had been rejected because they lacked postmarks, as required by Florida law. Nine had been rejected due to "questionable postmarks," such as an overseas ballot with a domestic postmark.

"I thought we should have included those ballots the first time," said Brevard Supervisor of Elections Fred Galey. "We included them this time based strictly upon the Supreme Court decision."

In Pasco County, the canvassing board held an emergency meeting Sunday morning and the reconsideration of overseas ballots netted six votes for Bush. Several ballots had been rejected because they had not been requested. Browning said that with the Boardman standard in mind, that did not seem to be a fatal mistake. One overseas ballot that bore a New Jersey postmark was reconsidered as well.

"We counted it," Browning said. "As goofy as things are, we're not sure that it wasn't mailed overseas and then somehow got a U.S. postmark. Including it did no harm to anyone."

-- Times staff writer David Karp contributed to this report.

The issue

Florida Statute 101.62 (1) (b) states:

"The supervisor may accept a written or telephonic request for an absentee ballot from the elector, or, if directly instructed by the elector, a member of the elector's immediate family, or the elector's legal guardian. For purposes of this section, the term "immediate family' has the same meaning as specified in paragraph (4) (b). The person making the request must disclose: 1. The name of the elector for whom the ballot is requested; 2. The elector's address; 3. The last four digits of the elector's Social Security number; 4. The registration number on the elector's registration identification card; 5. The requester's name; 6. The requester's address; 7. The requester's Social Security number and, if available, driver's license number; 8. The requester's relationship to the elector; and 9. The requester's signature (written requests only)."

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