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A Judge Just Ruled That Florida Must Finish Its Hand Recount By Sunday

Counting millions of ballots by hand — between Thursday night and Sunday morning — has widely been considered impossible for large, Democrat-dominated counties.

Posted on November 16, 2018, at 9:38 a.m. ET

Joe Skipper / Reuters

A federal judge in Florida ruled late Thursday that an imminent deadline to recount more than 8 million ballots by hand must remain intact. The decision is a blow for Democrats, who have argued it may be impossible for election workers in one of the largest, left-leaning counties to visually inspect hundreds of thousands ballots between Thursday night and Sunday morning.

Republicans, however, had insisted election officials must adhere to a timeline spelled out by state law.

US District Court Judge Mark Walker noted that deadlines may be extended for an emergency, such as human harm or damage to property, according to Florida state law. But the current problems don’t qualify. “The emergency exception does not apply in this case, where the delay is the result of outdated and malfunctioning vote-counting technology.”

He also considered the disparate impact that the deadlines could have on voters in Palm Beach County, where officials say they cannot finish a hand recount in time, thereby raising constitutional questions about unequal treatment of those voters.

But Walker says “there is a complete dearth of evidence” about “the status, progress, or expected completion of the ordered recounts” in Palm Beach County, so he’s unable to gauge the risk of harms. “This Court must be able to craft a remedy with knowledge that it will not prove futile. It cannot do so on this record.”

Florida launched a mandatory hand recount for the US Senate race on Thursday, after the results of mechanical recount showed the race was close to tied. The recount by hand — which could identify votes that were missed by electronic scanners — may prove a windfall for incumbent Democratic Sen. Bill Nelson, who trails his Republican challenger, Republican Gov. Rick Scott, by fewer than 12,603 votes, or 0.15%.

But some election officials, including in Palm Beach County, have indicated they lack the resources to visually re-inspect the the deluge of midterm votes in just a few days.

State law dictates that if county election officials can’t complete the tally of ballots on time, the state may only consider the previous, unofficial returns. For counties that fail to meet the Sunday deadline for a hand recount, their results won’t be included in totals submitted to the state and certified on Nov. 20.

Democrats have been alarmed that votes cast by registered voters and submitted on time will be ignored due to a labyrinth of state rules, while Republicans have made a full court press to contend that it’s critical to obey state election law, even if it that requires ignoring votes cast legally, but delivered late or left out of recounts.

A complaint filed Tuesday by the Democratic Senatorial Campaign Committee and Nelson says cutting short the hand recount would violate constitutional rights for votes to be counted. They sought an injunction to defer the timeline.

Perhaps the greatest concern around cutting short a manual recount is that the final results would fail to examine “undervotes” — in which no candidate is selected on a ballot in a given race. About 25,000 ballots in Broward County, for example, showed votes in the governor’s race but not the Senate race, according to preliminary returns. Machines may have simply failed to register votes, while a human inspector could see the voter’s intent. Lacking sufficient time to visually review them could mean thousands of votes for Nelson aren’t included when the election is certified.

“Because only some counties — given their size or other relevant factors — will be unable to meet the deadlines, voters will either have their vote counted during a recount or rejected based on the accident of where they reside,” the Democrats’ brief says. “Arbitrary application of an unreasonable deadline violates the prohibition against undue burdens on the right to vote, enshrined under the First and Fourteenth Amendments to the U.S. Constitution, and subjects Florida voters to disparate treatment and inconsistent standards in violation of the Fourteenth Amendment’s Equal Protection Clause.”

The lead defendant in the case is Florida Secretary of State Ken Detzner. The National Republican Senatorial Committee intervened to buttress the state’s arguments. Republicans have argued in a host of related lawsuits that inflexible deadlines, and strict adherence to laws drawn by the state legislature, must reign supreme — even if that means certain votes aren’t tallied.

“All the Constitution requires is fair elections, not perfect elections,” the NRSC said in a brief. “To have a fair and orderly election — and a fair and orderly recount, if a State exercises its discretion to have recounts — there necessarily must be deadlines.”

“The Florida Legislature reasonably concluded that having orderly elections with fixed deadlines is better than providing discretion,” the Republicans’ brief adds, saying a rigid timeline is better than “permitting courts to override the mandates and decisions of elected officials in the heat of an election contest once partisan lines have been drawn.”

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