Voters suit now in judge's hands

Plaintiffs hope for a swift ruling in the federal lawsuits, which question the acceptance of overseas absentee ballots in Citrus and other Florida counties.

By JIM ROSS

© St. Petersburg Times, published December 8, 2000

TALLAHASSEE -- Lawyers are filing elections lawsuits so quickly these days, and judges are deciding them so rapidly, that the events at the federal courthouse Thursday almost came as a surprise.

U.S. District Judge Maurice Paul spent three hours listening to arguments in two lawsuits that concern the validity of overseas absentee ballots that Florida's elections supervisors accepted between Election Day and Nov. 17.

Once the final advocate spoke, Paul said he would take the information under advisement. He rose to leave.

One lawyer asked if he should stay close by.

"You can. I'm going home," Paul replied. "Don't call me. I'll call you."

For the plaintiffs, that call can't come soon enough.

They have asked the court to throw out the post-Election Day ballots from all 67 Florida counties, a move that would result in a net gain of 739 votes for Vice President Al Gore. As it stands, Texas Gov. George W. Bush's lead in Florida is 537 votes.

If Paul is going to rule in their favor, the plaintiffs -- and Gore, who is not officially a party to the suits -- would like to know quickly. Likewise, a speedy adverse ruling would give the plaintiffs a meaningful opportunity to file an appeal before the ever-shrinking elections timetable renders their arguments moot.

Two suits were at issue Thursday. One involved plaintiffs who are voters from South Florida. They sued elections officials from 10 counties, including Citrus, alleging that acceptance of ballots after Nov. 7 violated state law.

Also listed as defendants are Bush and his brother, Gov. Jeb Bush, and the state elections board. The second suit, involving plaintiffs from elsewhere in Florida, listed just the state officials as defendants.

The parties agreed that, if the judge rules in the plaintiffs' favor, the votes received between Nov. 7 and Nov. 17 would be void throughout Florida, not just in the 10 counties.

The plaintiffs noted that Florida statutes clearly state that no ballot may be received and counted after 7 p.m. on Election Day, which this year was Nov. 7.

The defendants agreed on the statutory language. But they noted that Florida, since the mid 1980s, has followed a different rule when it comes to overseas absentee voters.

The rule came because the U.S. Justice Department sued Florida, alleging that the Sunshine State wasn't making enough allowances to help its overseas citizens vote. The governments entered into a consent decree that created the 10-day rule, which later became part of the state's administrative code.

But that's not good enough, plaintiffs' lawyer Roger Bernstein, from New York, told the court. He said the 10-day rule was unconstitutional because it calls for votes to be cast (that is, received) after Election Day.

Likewise, he said the lawsuit did not give Florida officials in the 1980s the authority to violate their own law, which remains on the books to this day.

The decree provided a faulty rule. "An ingrained one, but an unlawful one," Bernstein said.

The plaintiffs' attorney in the other suit, Bruce Terris from Washington, D.C., pointed to what he called an irony: When arguing before the U.S. Supreme Court recently, George W. Bush's lawyers said the state Legislature should have the final say on the selection of presidential electors. But in this case, the legal team has said a federal consent decree should trump state election law, which of course is a product of the Legislature.

Bush's lawyer, Ken Sukhia of Tallahassee, noted an irony of his own: Democrats have asked courts to "count every vote," yet in this case they are trying to exclude votes, many of which were sent by military personnel.

Sukhia, the former U.S. attorney for this part of the state, said it was "shocking" that plaintiffs would say the 10-day rule was unconstitutional, since the only reason the state and federal government created it was because the state law was deemed unfair to overseas voters.

Other lawyers for the defense noted that the overseas absentee voters did nothing wrong and should not be disenfranchised.

The plaintiffs once again accused Jeb Bush's lawyer of moving the suit to federal court. They said Bush didn't like his chances in state court, where the presiding judge had expressed concern about the propriety of accepting absentee ballots after Election Day.

Sukhia said the procedural move was based on the law, not politics or "judge shopping."

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