The federal court hearing in Florida on whether to count thousands of rejected mail-in and provisional ballots concluded on Wednesday after more than five hours without a decision from Judge Mark Walker.
Florida law requires signatures on vote-by-mail and provisional ballots match the signatures on file for each voter. Attorneys for Democratic Sen. Bill Nelson’s re-election campaign argued that Florida’s signature-match rules violate the US Constitution and called for the judge to invalidate the law. Lawyers representing the state of Florida and the National Republican Senatorial Committee, along with others, argued that the law was valid and constitutional.
Walker did not rule from the bench on Wednesday and gave no timeline for a ruling, but he engaged all the parties in an extensive question and answer session, using lively language and hypotheticals to attempt to puncture each side’s arguments. At times, he appeared skeptical of arguments on both sides.
The judge did indicate that he is unlikely to remove the state signature requirement, which would allow the now-voided ballots to be counted. Instead, he suggested finding a way for voters whose ballots had been rejected because of signature mismatches to address the problem through their local election officials.
Time is, however, of the essence, given a Thursday deadline for state election officials to finish the machine recounts of three statewide races, including Nelson’s bid for re-election against Florida Republican Gov. Rick Scott and a final November 20 certification of all the election results.
The lawsuit is just one part of a broader Democratic effort in Florida to fight certain statutes that have put in dispute ballots they believe should be considered lawfully cast. Democrats, led by top lawyer Marc Elias, have filed at least four lawsuits in federal court, all of which look to either extend the time that counties have to recount votes or to grow the pool of votes that county election officials are legally allowed to consider.
The reason for all the attention is simple: Democrats trail in Florida’s top two statewide races, but party officials believe there is a slim chance that when all votes are counted they could close the gap and emerge victorious.
The most pressing race in question is between Nelson and Scott. Scott led Nelson in the unofficial, pre-recount tally by more than 12,500 votes.
The gubernatorial contest between Republican former Rep. Ron DeSantis and Democratic Tallahassee Mayor Andrew Gillum is a different scenario. DeSantis led Gillum by nearly 34,000 votes, and Florida Democrats are cognizant that margin will probably not be overcome in a recount. Still, Gillum withdrew his election night concession over the weekend with a message that every vote should be counted.
It was disclosed Wednesday that the number of ballots in question is smaller than some Democrats had hoped. Maria Matthews, an official with the secretary of state’s office who was one of two witnesses to testify on Wednesday, told the court that the number of mismatched-signature ballots is slightly more than 3,700 from the 46 counties that had reported numbers to her. Florida’s remaining 21 counties had not yet reported their numbers at the time court was in session.
Both sides agreed, however, that the total number of ballots in question would be around 5,000, similar to the number of mismatched-signature ballots in question after the 2016 election.
Walker said during the hearing that he did not consider the number of ballots to be a sign of fraud, which Matthews agreed with.
The hearing drew more interest than most in the otherwise quiet courthouse, with a mix of journalists, legal watchers and political operatives coming and going. Walker spiced it up at times with references to lawsuits multiplying like “Star Trek” Tribbles, a joke about an argument not passing the smell test being like having his face pushed into a “cow patty” and a gallows-humor reference to his late grandmother.
Hanging over the hearing was the fact that Florida has been here before. The 2000 Bush v. Gore recount and subsequent legal battle that ended in the Supreme Court was mentioned throughout the hearing, often in a somewhat joking matter. But in one instance Walker touted the importance of voting and decisions like the one he is being asked to make, because they essentially decided a presidential election in 2000 that led to wars in Iraq and Afghanistan.
“I don’t think Florida has any problem. Whether we are wide awake or tired, we have plenty of errors in our elections,” Walker said after Mohammad Jazil, a lawyer for Florida’s secretary of state, suggested that a prolonged recount would mean more errors because election officials would be tired.
“I can assure you the more tired person in the room is me,” quipped Walker, who is presiding over at least seven cases related to Florida’s election.