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Overseas ballots now federal case

The plaintiffs want ballots received after Election Day, including 40 counted in Citrus County, to be thrown out.

By JIM ROSS

© St. Petersburg Times, published December 7, 2000


TALLAHASSEE -- A federal judge on Wednesday decided that he, not his counterpart in state court, would oversee a lawsuit challenging the validity of overseas absentee ballots that Citrus and nine other Florida counties included in their presidential vote tallies.

U.S. District Judge Maurice Paul could rule as soon as today. He told lawyers to be back in his courtroom at 1 p.m. to argue their cases.

County Attorney Larry Haag will be part of that legal group. He represents Supervisor of Elections Susan Gill and the county Canvassing Board, which were among the many defendants.

By day's end, the parties seemed to agree that the case primarily involved state election laws and rules more than anything a single canvassing board or elections supervisor did. Still, since Citrus parties technically remained defendants, Haag will be back in court today.

Gill probably will not be. She was the only elections supervisor of the 10 to attend Wednesday.

"It's a big legal issue that you need to be a lawyer to understand," she said.

Gill understands the elections policies involved, of course. But the steady stream of legal terms and case citations were difficult to follow. And Gill long ago lost any curiosity about being part of a statewide drama that is receiving national attention.

"I'd rather be home," Gill said.

At issue are more than 1,500 overseas absentee ballots that the counties included in their final vote certifications. In Citrus, the tally included 34 votes for George W. Bush and six for Al Gore. All told, 68 percent of the ballots in those 10 counties went for Bush.

The plaintiffs want the judge to throw out the votes. They say legal principle, not anti-Bush sentiments, motivate them.

The 10 sets of elections officials -- not to mention the other defendants, including Bush and his brother, Florida Gov. Jeb Bush -- say the votes are valid.

Gill and her counterparts statewide operated pursuant to a Florida administrative rule that requires them to accept and count such ballots up to 10 days after Election Day.

That rule is in effect because, during the early 1980s, Florida and the U.S. Justice Department entered into a consent decree designed to make election practices more fair for overseas voters, many of whom are military personnel. The decree was a way to end a lawsuit the federal government had brought against the Sunshine State.

The plaintiffs -- a small group of registered voters from Miami-Dade and Palm Beach counties -- have argued that neither the consent decree nor the administrative rule it spawned are superior to state law, which clearly says that ballots received after 7 p.m. on Election Day are void.

In fact, they said the current policy is unconstitutional.

Before he could even address the merits, Judge Paul on Wednesday had to make certain his was the correct court for the discussion.

The plaintiffs, who filed their action in state Circuit Court, didn't think so.

"These are all state law questions," said Roger Bernstein, a New York lawyer serving as co-counsel for the defendants.

Outside of court, Bernstein noted that the state circuit judge originally assigned to hear his case, L. Ralph Smith, was the same judge who questioned the validity of overseas absentee ballots when he addressed a separate election suit that Bush brought.

That suit, which sought to include more overseas absentee ballots, was withdrawn and then refiled later in federal court.

Bernstein called that "reverse judge shopping" on Bush's part. What did Bernstein think when Jeb Bush asked the federal court to take over this case?

"It must be logically related to their withdrawal of their prior case before Judge Smith, when they apparently concluded Judge Smith was going to apply federal law," he said.

Jeb Bush's attorney, George Meros, said he wanted a federal court to handle the suit because it involved the validity of a state rule that is directly based on a federal consent decree.

Meros said the plaintiffs were incorrect to argue that the matter hinged only on state statute. The federal consent decree, and the rule that stemmed from it, are in place because the state law requiring overseas absentee ballots to be in by 7 p.m. Election Day was deemed unfair.

"You cannot avoid the fact that this is derived from the federal law," Meros told the court.

Also in court today will be a Quincy lawyer who on Tuesday filed a similar lawsuit seeking dismissal of all overseas absentee ballots received after Election Day. The judge decided to consider the cases together.

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