County sued over absentee vote tally

But Supervisor of Elections Susan Gill contends her office followed the law.

By JIM ROSS

© St. Petersburg Times, published December 5, 2000

INVERNESS -- Add a new legal twist to the ever-expanding election battle.

A group of Florida residents has sued elections officers in Citrus and nine other Florida counties where George W. Bush scored big gains in the count of overseas absentee ballots that arrived in elections offices between Election Day and Nov. 17.

The plaintiffs allege that elections officials violated state and federal law when they counted the ballots because all ballots that arrive after Election Day are void.

The proposed remedy: throw out the votes.

"That rule is unambiguous," said Randy Weber, the Miami lawyer who prepared the lawsuit. The plaintiffs are Florida residents, but they appear to be from South Florida.

Supervisor of Elections Susan Gill said the accusation confused her.

"We followed the law and did what we were supposed to do," Gill said on Monday.

In the 10 counties named as defendants, Bush won 1,172 absentee ballots while Al Gore scored only 469, state figures showed. The Citrus total included 34 for Bush and six for Gore.

But Weber insisted that legal principle, not politics, was fueling the lawsuit.

"This is not in connection with any party. It is not funded by any party. It is funded predominately by the lawyers in the case," he said. His co-counsel was listed as Roger J. Bernstein of New York City.

The goal, Weber said, was "ensuring that the laws of our state are not trampled on for the sake of any candidate."

Gill and the Citrus Canvassing Board's two other members, County Judge Mark Yerman and County Commissioner Jim Fowler, are scheduled to meet at 3 p.m. today to review records and prepare answers the plaintiffs have posed. The meeting will be in Gill's office, 122 N Apopka Ave., Inverness, and will be open to the public.

Gill and a representative from the County Attorney's Office will travel to Tallahassee on Wednesday, where the presiding judge has scheduled a 1 p.m. emergency case management conference.

Like her counterparts statewide, Gill sent her office's election totals to the secretary of state's office immediately after the election. That count included overseas absentee ballots received on or before Election Day.

In that Citrus count, Bush received 4,243 more votes than Gore.

Because the presidential vote was so close in Florida, all 67 counties conducted a legally required machine recount. In Citrus, Gore picked up a net two votes.

After sending that set of results to Tallahassee, Gill had only one task remaining: to count overseas absentee ballots.

The state Division of Elections, as it has done in the past, instructed elections supervisors this year to accept and hold overseas absentee ballots received between Election Day and the 10th day following the election. The Canvassing Board then would count the ballots and tabulate the results, provided the ballots met legal requirements concerning postmark, voter signature and witness signature.

The process, which applies only to votes for federal offices, typically receives little or no attention. Circumstances obviously were different this time, and the process received intense scrutiny.

Some counties were criticized for rejecting too many ballots, many of them from overseas military people, because of legal technicalities. The Citrus Canvassing Board took a more relaxed stand, voiding only nine of the 53 ballots.

This lawsuit doesn't quibble with technicalities: It says the defendant counties shouldn't have counted any of the overseas absentee ballots they received after Election Day.

The lawsuit cites Article II, Section 1 of the U.S. Constitution and Title 3, Section 1 of the federal code, as well as Florida statutes. According to the lawsuit, those legal authorities prohibit the elections officials from counting any vote for president or vice president that is received after Election Day.

But Gill has some authority of her own to cite: rule 1S-2.013 from the Division of Elections, which says properly prepared absentee ballots from overseas are valid as long as elections supervisors receive them within the 10-day schedule.

She also points to a consent decree that Florida and the federal government struck during the 1980s. That legal agreement spelled out how the Sunshine State must expand its rules to be more fair to overseas absentee voters.

The lawsuit names Gill and the Citrus Canvassing Board as defendants. Also named are the elections supervisors and canvassing boards in Bay, Brevard, Clay, Duval, Escambia, Manatee, Okaloosa, Santa Rosa and Seminole counties.

Weber, the lawyer, said logistics prevented him from naming as defendants all counties where elections workers accepted ballots between Election Day and Nov. 17. He said he selected these counties because they are where a majority of the questionable ballots arrived.

State records showed that Bush and Gore combined received 2,411 votes in the overseas absentee ballots that arrived between Election Day and Nov. 17. Of those ballots, 1,641 -- or 68 percent -- were tallied in the 10 counties.

The lawsuit, filed late Friday in Tallahassee, also names Secretary of State Katherine Harris, the state Elections Canvassing Commission and Gov. Jeb Bush as defendants.

- Times researcher Kitty Bennett contributed to this report.

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