Democrats see a series of lawsuits in Florida’s bitter recount fight between Sen. Bill Nelson (D-Fla.) and Gov. Rick Scott (R) as an opportunity to achieve a years-long goal: reshaping how ballots are evaluated and counted in the nation’s largest swing state in 2020 and beyond.
While most of the lawsuits are centered around the recount, some Democrats see the effort as a chance to change some of the standards governing how ballots are assessed in the Sunshine State, potentially widening the pool of countable votes.
{mosads}That could carry implications for future elections by forcing local and state officials to tally votes they otherwise would invalidate under current standards — an outcome they hope will improve their electoral chances in a must-win state known for its unpredictable politics.
“A lot of these lawsuits might not even be primarily motivated by the Senate race. If you look across the board, it looks very unlikely that there are even enough ballots at play,” said Michael Morley, an assistant professor at the Florida State University College of Law.
“Even if Sen. Nelson were to run the table and win all the lawsuits, I don’t think there are enough ballots here to change the outcome,” he added. “I think a lot of this is clearing the underbrush for the 2020 election.”
To be sure, Democrats still see a win by Nelson as necessary in their bid to limit Republican gains in the Senate ahead of 2020, when the GOP is expected to face a less favorable electoral map.
Scott currently leads Nelson by only 0.15 percentage points after a machine recount, throwing the race into a manual recount that must be completed by Sunday.
But multiple Democrats privately acknowledged the three-term incumbent likely faces long odds in toppling Scott in the final recount.
The lawsuits filed by Nelson and his allies, however, could have implications beyond the 2018 contest.
Most of the litigation pursued by Democrats seeks to include tens of thousands of ballots that risk being rejected under Florida’s existing standards and procedures.
So far, the lawsuits have seen limited success in court.
U.S. District Judge Mark Walker, who’s overseeing most of the cases, sided in part with attorneys for Nelson and the Democratic Executive Committee of Florida on Thursday, granting some voters who had their mail-in or provisional ballots rejected because of mismatched signatures an additional two days to fix the errors.
But he stopped short of granting Democrats’ broader request to invalidate Florida’s signature-matching requirement and order that all ballots with mismatched signatures be tallied.
The most prominent is a Democratic suit that seeks to invalidate Florida’s current rules requiring an exact match of the signature in the ballot.
Nelson’s campaign has claimed that tens of thousands of lawfully cast votes were thrown out in recent elections after workers at the polls determined that the signature on the ballot did not match the one on an individual’s voter file.
Those evaluations are often made by “untrained, even though well-intentioned,” election officials or volunteers, Nelson said in a recent statement.
Nelson’s camp also argued that the signature rule disproportionately impacts minorities and young voters — both groups that tend to vote in higher numbers for Democrats.
Meanwhile, in another lawsuit filed this week, Nelson’s campaign and the Democratic Senatorial Campaign Committee asked a court to throw out parts of the state’s current standards for determining voter intent on ballots that may have been filled out in unconventional ways.
Those standards will be used to evaluate overvoted and undervoted ballots — ballots on which the number of selections either exceed or fall below the maximum number allowed — in a closely watched hand recount ordered Thursday by Florida Secretary of State Ken Detzner.
Walker rejected their request for a preliminary injunction, ruling late Thursday that the state’s voter intent standards are constitutional.
He acknowledged in his order that “there are situations where voter intent is likely clear but not valid under the rules,” but said that the current standards “guide officials in counting votes that would not have otherwise been counted.”
A third lawsuit brought in federal court on Monday by the liberal group VoteVets and a handful of Democratic Party committees is seeking to throw out current state deadlines that invalidate mail-in ballots postmarked before an election but received after 7 p.m. on Election Day.
The suit seeks to loosen the restrictions, forcing local election officials to count ballots received within 10 days after Election Day, as long as they were postmarked before the polling date.
But in a ruling issued Friday, Walker rejected the request to toss out the deadlines, writing in an order that the current rules are intended to allow overseas voters to cast ballots “on equal terms with domestic voters” and that doing away with the standards would “perhaps undermine the electoral process.”
The wide net of the Democratic lawsuits contrasts with the Republican-led litigation, which has focused more on issues like gaining access to vote tallies or asking courts to impound ballots and voting machines when not in use.
“One broad distinction is that most of the Democratic lawsuits have been about challenging the rules of the process,” Morley said. “The Republicans lawsuits haven’t been about changing the rules and striking down the rules.”
Trying to change the rules governing elections could have a wider impact on Florida beyond the outcome of the Senate race, in a state that in 2000 was also the site of one of the most contested recounts in U.S. electoral history.
The Sunshine State is also shaping up to play a critical role in determining whether to give President Trump a second term in the White House. The president won Florida by a single point in 2016 and his allies consider a victory there crucial if he hopes to stay in the White House.
Democrats have spent the days since Election Day casting their legal proceedings in the recount as an effort to ensure that lawfully cast ballots are counted in the face of stringent election requirements largely pushed by Republicans that they believe are intended to suppress unfavorable votes.
Alex Padilla, the secretary of state of California and the president of the Democratic Association of Secretaries of State, said that the lawsuits in Florida are a necessary response to state laws that inherently make it more difficult for people to cast their ballots while seeking to ensure that more ballots are counted.
“Litigation is absolutely appropriate,” Padilla said in an interview. “It’s not just a defense of voting rights in 2018, but for future elections.”
“It’s not a political play. It’s a voting rights play,” he added. “We’re fighting for the right of every eligible American to be able to cast their ballot and have their vote be counted. Period.”