Fla. Democrats mount new challenge to disputed ballot count rules

Lawsuit seeks to determine how ballots counted

By GREGORY KRIEG AND DAN MERICA, CNN
Getty Images via CNN

Sen. Bill Nelson (D-FL) speaks during a campaign rally at the International Union of Painters and Allied Trades on Aug.31, 2018, in Orlando, Florida.

(CNN) - Sen. Bill Nelson's campaign and the Democratic Party's Senate campaign arm sued in federal court on Tuesday to lift the deadlines on the statewide recount taking place in Florida, arguing that they are "arbitrary" and "impose a severe burden ... on the right to vote."

If successful, the suit would "extend the deadline for recounting of all the votes statewide in the US Senate race," the campaign said in a statement.

"The lawsuit seeks to allow all local elections officials in the 67 Florida counties the time they say is needed to finish a legally mandated and accurate recount because the race was so close," the campaign said of the suit, which was filed in the US District Court for the Northern District of Florida.

Lawyers for the Democrats argued that the current deadlines -- November 15 by 3 p.m. for machine recounts and November 18 by noon for the hand recounts -- "will result in the disenfranchisement of voters who associate with Plaintiffs, and this serious and immediate harm warrants the issuance of a declaratory judgment."

The new filing -- which comes on top of four earlier lawsuits that are making their way through the legal system -- are the latest salvo in the Democratic effort to ensure through court action that a variety of ballots in question are counted in the three statewide races. Both Nelson, whose efforts have been steered by lawyer Marc Elias, and the campaign of his opponent, Republican Gov. Rick Scott, are increasingly turning to the courts in an effort to shape a broader fight over the scope of the count and, eventually, final recount.

Earlier on Tuesday, the same group of Democrats sued the state over vote-counting practices they say defy constitutional protections.

The lawsuit from Nelson and the Democratic Senatorial Campaign Committee could determine how thousands of currently disputed ballots are counted. If they are successful in this suit, it could further tighten a race that is already in the midst of a machine recount that is expected to tee up a subsequent hand review of disputed votes.

The lawsuit looks to outline how overvotes -- those ballots where a voter marked multiple candidates for one office -- and undervotes -- those ballots where voters marked no one for a given office -- are counted by each county's canvassing board.

Scott leads Nelson in the unofficial, pre-recount tally by more than 12,500 votes. The margin in the governor's race was larger, with Republican former Rep. Ron DeSantis ahead of Democratic Tallahassee Mayor Andrew Gillum by nearly 34,000 votes. In the closest statewide contest, Democratic agriculture commissioner candidate Nikki Fried's advantage stood at 5,326 votes - just .06% - over Republican Matt Caldwell.

"Unless relief is granted, scores of Florida voters will be unconstitutionally disenfranchised because, in deciding whether to count or reject these ballots, local canvassing boards will apply two demonstrably unconstitutional rules for determining a voter's intent on a ballot," the lawyers write in the filing, arguing that the secretary of state's rules "arbitrarily treat similarly situated voters differently and will result in the disproportionate rejection of ballots cast by language minorities and those with limited literacy."

Nelson on Tuesday also renewed Democratic calls for Scott to recuse himself from any official duties related to the recount.

"(Scott has) thrown around words like voter fraud with no proof. He's tried to get the Florida Department of Law Enforcement to intimidate local supervisors of election. Both the Florida Department of Law Enforcement, which Gov. Scott oversees, and the Gov. Scott-appointed Florida Secretary of State have both said that there is no credible evidence of voter fraud," Nelson said during a press conference with Senate Minority Leader Chuck Schumer on Capitol Hill. "It's become obvious that Mr. Scott cannot oversee the process in a fair and impartial way, and he should remove himself from the recount process."

Back in Florida, Nelson's campaign on Tuesday also filed a motion to intervene to dismiss a lawsuit by a local Democratic politician in Palm Beach County who trails a Republican in his House District race by 37 votes. The candidate, James Bonfiglio, sued on Monday to have his race counted first in Palm Beach County and asked for recounts on ballots in three other statewide races to be halted.

"The vote by the board disenfranchises the voters of HD89," Bonfiglio's lawyers wrote, "and this Court should order that the other statewide race recounts be immediately halted and the HD89 race be placed into machine recount to separate the over and under votes to be manually recounted thereafter."

On Tuesday, Nelson's legal team responded, calling the suit "baseless" and asking for it to be thrown out.

The Nelson campaign will "seek to intervene here and participate in this matter to ensure that all lawfully cast ballots from eligible voters throughout the State of Florida are counted," the lawyers wrote, "and to seek the immediate dismissal of this matter so as not to disturb or intentionally delay the work of the office of the Palm Beach County Supervisor of Elections."

The Palm Beach County suit was originally filed by the Democratic candidate running to represent state House District 89 against the Florida Secretary of State, the Palm Beach Canvassing Board and Supervisor of Elections Susan Bucher.

That candidate, Bonfiglio, trails the Republican in his race by only 37 votes. Bonfiglio's race is the last of four -- including the contests for US Senate, governor and state agriculture commissioner -- that would be subject to a recount.

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