[EL] ELB News and Commentary 11/16/18

Thu Nov 15 20:53:24 PST 2018

“Miami-Dade launches hand recount of 10,000 uncounted ballots in Scott vs. Nelson”<https://electionlawblog.org/?p=102327>
Posted on November 15, 2018 8:51 pm<https://electionlawblog.org/?p=102327> by Rick Hasen<https://electionlawblog.org/?author=3>

Miami Herald<https://www.miamiherald.com/news/politics-government/election/article221733160.html>:

A room full of Miami-Dade election workers began a hand recount Thursday night of more than 10,000 problematic ballots cast in the U.S. Senate race, joined by a room full of lawyers and volunteers from both campaigns eager to contest votes for the other side.

The county that still hasn’t lived down its chaotic role in the 2000 presidential recount returned to the grueling manual reckoning required under Florida law for a pair of exceptionally close statewide races.

Gov. Rick Scott, a Republican, leads incumbent Bill Nelson by about 12,000 votes statewide in the Senate contest, and Democrat Nikki Fried is ahead by about 5,000 over Republican Matt Caldwell in the race for agriculture commissioner. Miami-Dade plans to start the mandated hand recount of more than 30,000 problematic ballots in the agriculture race after it concludes the review of the Senate ballots.

The Senate recount officially began at 7:31 p.m., when the three-person canvassing board voted to launch the process. But the tedious inspection of 10,039 ballots would need to wait until election workers could re-calibrate ballot scanning machines and then isolate ballots with undervotes or overvotes for the Senate contest.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D102327&title=%E2%80%9CMiami-Dade%20launches%20hand%20recount%20of%2010%2C000%20uncounted%20ballots%20in%20Scott%20vs.%20Nelson%E2%80%9D>
Posted in recounts<https://electionlawblog.org/?cat=50>

“A rush for uncounted votes scrambles unsettled Georgia governor’s race”<https://electionlawblog.org/?p=102325>
Posted on November 15, 2018 8:48 pm<https://electionlawblog.org/?p=102325> by Rick Hasen<https://electionlawblog.org/?author=3>

AJC:<https://www.ajc.com/news/state--regional-govt--politics/rush-for-uncounted-votes-scrambles-unsettled-georgia-governor-race/avbMEXrL6YbS2aj4Ra0XHJ/>

Georgia elections officials scrambled Thursday to count a cache of hundreds of ballots that were previously rejected as they raced to comply with the latest federal ruling in the too-close-to-call contest for governor.

Democrat Stacey Abrams called the judge’s order a major victory to extend her quest to become the nation’s first black female governor, but Republican Brian Kemp said it would hardly dent his “insurmountable lead” in the race for Georgia’s top job.

The latest tally showed Abrams is roughly 55,000 votes behind Kemp — and in need of more than 17,000 votes to force a Dec. 4 runoff. Georgia law requires a runoff if no candidate gets a majority of the vote, which is only a possibility because a third-party contender netted about 1 percent.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D102325&title=%E2%80%9CA%20rush%20for%20uncounted%20votes%20scrambles%20unsettled%20Georgia%20governor%E2%80%99s%20race%E2%80%9D>
Posted in election administration<https://electionlawblog.org/?cat=18>

“Democrat prevails in Maine congressional race that used ranked-choice voting system”<https://electionlawblog.org/?p=102323>
Posted on November 15, 2018 8:45 pm<https://electionlawblog.org/?p=102323> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/democrat-prevails-in-maine-congressional-race-that-used-ranked-choice-voting-system/2018/11/15/e8d81cae-e8ff-11e8-a939-9469f1166f9d_story.html?utm_term=.ef8114126704>

Democratic challenger Jared Golden prevailed Thursday in a Maine<https://www.washingtonpost.com/election-results/maine/?tid=a_inl_auto> congressional contest, defeating a Republican incumbent in the first federal race in the country in which a ranked-choice voting system was used to determine the winner.

After Election Day, Golden, a state representative, narrowly trailed Rep. Bruce Poliquin (R) in a four-way race in which no candidate received 50 percent of the vote.

The result flipped Thursday after the rules of the ranked-choice system were applied. The system allows voters to cast ballots for their candidate but also rank other contenders in order of preference. If no one wins more than 50 percent of the vote outright, those choices are factored in.

At noon Thursday, Maine Secretary of State Matthew Dunlap and his office powered up “instant runoff” software while streaming on Facebook Live to announce the results: Golden won with 50.5 percent of the vote to Poliquin’s 49.5 percent.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D102323&title=%E2%80%9CDemocrat%20prevails%20in%20Maine%20congressional%20race%20that%20used%20ranked-choice%20voting%20system%E2%80%9D>
Posted in alternative voting systems<https://electionlawblog.org/?cat=63>

Tonight’s Must-Read from Ron Klain: “What’s the Matter with Florida?”<https://electionlawblog.org/?p=102321>
Posted on November 15, 2018 8:40 pm<https://electionlawblog.org/?p=102321> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo column<https://www.washingtonpost.com/opinions/whats-the-matter-with-florida/2018/11/15/dcca0fdc-e907-11e8-bbdb-72fdbf9d4fed_story.html?utm_term=.d941a7250dc8>:

As the general counsel of Al Gore’s 2000 recount effort in Florida, I’m often asked this question about the Senate and gubernatorial recounts now going on there: Why does “this” keep happening in Florida?

Part of what we are seeing now in Florida, as we did in 2000, is the product of factors specific to the state: persistently weak election administration in key counties, perennially close and hard-fought elections, and a colorful group of political players that seems ripped from the pages of a Carl Hiaasen novel. But the most important thing to know about what’s happening in Florida is that it has little to do specifically with Florida at all.

Take a step back and look at the big issues playing out in Florida, and what you’ll see, instead of Florida’s foibles, are three critical challenges to American democracy as a whole.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D102321&title=Tonight%E2%80%99s%20Must-Read%20from%20Ron%20Klain%3A%20%E2%80%9CWhat%E2%80%99s%20the%20Matter%20with%20Florida%3F%E2%80%9D>
Posted in Bush v. Gore reflections<https://electionlawblog.org/?cat=5>, The Voting Wars<https://electionlawblog.org/?cat=60>

“Florida students overseas skeptical their votes will count”<https://electionlawblog.org/?p=102319>
Posted on November 15, 2018 7:25 pm<https://electionlawblog.org/?p=102319> by Rick Hasen<https://electionlawblog.org/?author=3>

Tampa Bay Times reports. <https://www.tampabay.com/florida-politics/buzz/2018/11/15/florida-students-overseas-skeptical-their-votes-will-count/>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D102319&title=%E2%80%9CFlorida%20students%20overseas%20skeptical%20their%20votes%20will%20count%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Mississippi U.S. Senator Hyde-Smith Suggests Making Voting “Just a Little More Difficult” for “Liberal Folks in Those Other Schools”<https://electionlawblog.org/?p=102316>
Posted on November 15, 2018 4:06 pm<https://electionlawblog.org/?p=102316> by Rick Hasen<https://electionlawblog.org/?author=3>

Video<https://twitter.com/LamarWhiteJr/status/1063192983254822912>:
<https://twitter.com/LamarWhiteJr/status/1063192983254822912>
[Embedded video]<https://twitter.com/LamarWhiteJr/status/1063192983254822912>
[https://pbs.twimg.com/profile_images/891884357287198722/HwO16Hkw_bigger.jpg]<https://twitter.com/LamarWhiteJr>
<https://twitter.com/LamarWhiteJr>
Lamar White, Jr.<https://twitter.com/LamarWhiteJr>
✔@LamarWhiteJr<https://twitter.com/LamarWhiteJr>

<https://twitter.com/LamarWhiteJr/status/1063192983254822912>

Cindy Hyde-Smith on voter suppression: "And then they remind me, that there's a lot of liberal folks in those other schools who that maybe we don't want to vote. Maybe we want to make it just a little more difficult. And I think that's a great idea." Nov 2nd in Columbus, MS.
<https://twitter.com/intent/like?tweet_id=1063192983254822912>
9,924<https://twitter.com/intent/like?tweet_id=1063192983254822912>
2:12 PM - Nov 15, 2018<https://twitter.com/LamarWhiteJr/status/1063192983254822912>
<https://twitter.com/LamarWhiteJr/status/1063192983254822912>
11.6K people are talking about this<https://twitter.com/LamarWhiteJr/status/1063192983254822912>

Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D102316&title=Mississippi%20U.S.%20Senator%20Hyde-Smith%20Suggests%20Making%20Voting%20%E2%80%9CJust%20a%20Little%20More%20Difficult%E2%80%9D%20for%20%E2%80%9CLiberal%20Folks%20in%20Those%20Other%20Schools%E2%80%9D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Wisconsin Republicans Try to Game Election Timing to Help Conservative Justice Get Reelected to State Supreme Court in 2020<https://electionlawblog.org/?p=102314>
Posted on November 15, 2018 3:42 pm<https://electionlawblog.org/?p=102314> by Rick Hasen<https://electionlawblog.org/?author=3>

Lame duck shenanigans<https://www.jsonline.com/story/news/politics/elections/2018/11/15/gop-lawmakers-considering-helping-conservative-justice-before-tony-evers-sworn/2015150002/>.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D102314&title=Wisconsin%20Republicans%20Try%20to%20Game%20Election%20Timing%20to%20Help%20Conservative%20Justice%20Get%20Reelected%20to%20State%20Supreme%20Court%20in%202020>
Posted in chicanery<https://electionlawblog.org/?cat=12>

Florida Senate Race Going to Hand Recount; Appears that Nelson’s Best Hope is That Broward Ballot-Counting Machines, Rather Than Ballot Design, Responsible for Large Undervote in Senate Race<https://electionlawblog.org/?p=102312>
Posted on November 15, 2018 3:38 pm<https://electionlawblog.org/?p=102312> by Rick Hasen<https://electionlawblog.org/?author=3>

Tampa Bay Times<http://www.tampabay.com/florida-politics/buzz/2018/11/15/florida-recount-results-bill-nelson-still-in-hunt-for-us-senate-ron-desantis-to-win-governor/>:

With the 3 p.m. deadline for elections supervisors to submit new vote tallies to the state having now passed in Florida’s Panhandle, new totals show that Gov. Scott leads U.S. Sen. Nelson by 12,603 votes out of more than 8.1 million cast. That margin — of 0.15 percent — falls within the margins that trigger an automatic hand recount under Florida law. Secretary of State Ken Detzner, Florida’s top elections officials, ordered a hand recount this afternoon.

Dan Smith<https://twitter.com/electionsmith/status/1063203863019311104>:
[https://pbs.twimg.com/profile_images/1027236869476573184/PFqQJu6__bigger.jpg]<https://twitter.com/rickhasen>
<https://twitter.com/rickhasen>
Rick Hasen<https://twitter.com/rickhasen>
✔@rickhasen<https://twitter.com/rickhasen>

 · 7h<https://twitter.com/rickhasen/status/1063184945374363653>
<https://twitter.com/rickhasen/status/1063184945374363653>

I see that Broward finished the recounts on time, https://www.miamiherald.com/news/politics-government/election/article221709445.html …<https://t.co/fk74Dnco52> but I don't see any report about whether those "missing" 24K votes in Senate race reappeared, or if there were other differences in that race. Anyone have info?
<https://t.co/fk74Dnco52>
[https://pbs.twimg.com/card_img/1063158643309379586/8xRcOt4T?format=jpg&name=600x314]<https://t.co/fk74Dnco52>
Broward County finishes machine recount with minutes to spare<https://t.co/fk74Dnco52>

Broward County finished its recount minutes before deadline<https://t.co/fk74Dnco52>
miamiherald.com<https://t.co/fk74Dnco52>

[https://pbs.twimg.com/profile_images/3349582707/50a85fffe8d12d7c0510fb3b5d5f6c86_bigger.jpeg]<https://twitter.com/electionsmith>
<https://twitter.com/electionsmith>
daniel a. smith at electionsmith<https://twitter.com/electionsmith>

They won't show until a hand recount; the machine recount should closely mirror what came through the first process. A hand recount might reveal a machine error, specifically a bubble scanning calibration issue due to the fact that there was no FL24 race below US Senate
<https://twitter.com/intent/like?tweet_id=1063203863019311104>
9<https://twitter.com/intent/like?tweet_id=1063203863019311104>
2:55 PM - Nov 15, 2018<https://twitter.com/electionsmith/status/1063203863019311104>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
<https://twitter.com/electionsmith>
See daniel a. smith's other Tweets<https://twitter.com/electionsmith>

Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>

Sam Levine<https://twitter.com/srl/status/1063201379555131392>:
[https://pbs.twimg.com/profile_images/843962466539208704/JM49BrmS_bigger.jpg]<https://twitter.com/srl>
<https://twitter.com/srl>
Sam Levine<https://twitter.com/srl>
✔@srl<https://twitter.com/srl>

<https://twitter.com/srl/status/1063201379555131392>

. at marceelias<https://twitter.com/marceelias> lays out 3 places where he believes Nelson could narrow and eventually flip margin. which is around 12,600

1) Signature Mismatch ballots
2) Mail ballots cast before election day but not delivered before 7 p.m. deadline
3) Hand recount (overvotes & undervotes).
<https://twitter.com/intent/like?tweet_id=1063201379555131392>
8<https://twitter.com/intent/like?tweet_id=1063201379555131392>
2:45 PM - Nov 15, 2018<https://twitter.com/srl/status/1063201379555131392>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
<https://twitter.com/srl>
See Sam Levine's other Tweets<https://twitter.com/srl>

Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D102312&title=Florida%20Senate%20Race%20Going%20to%20Hand%20Recount%3B%20Appears%20that%20Nelson%E2%80%99s%20Best%20Hope%20is%20That%20Broward%20Ballot-Counting%20Machines%2C%20Rather%20Than%20Ballot%20Design%2C%20Responsible%20for%20Large%20Undervote%20in%20Senate%20Race>
Posted in recounts<https://electionlawblog.org/?cat=50>

The Absurdity of Florida’s Election Administration<https://electionlawblog.org/?p=102310>
Posted on November 15, 2018 3:33 pm<https://electionlawblog.org/?p=102310> by Rick Hasen<https://electionlawblog.org/?author=3>
[https://pbs.twimg.com/profile_images/587029223186903040/bVK3wDfa_bigger.jpg]<https://twitter.com/pemalevy>
<https://twitter.com/pemalevy>
Pema Levy<https://twitter.com/pemalevy>
✔@pemalevy<https://twitter.com/pemalevy>

 · 8h<https://twitter.com/pemalevy/status/1063165971844751361>
<https://twitter.com/pemalevy/status/1063165971844751361>

Replying to @pemalevy<https://twitter.com/_/status/1063161591036870657>

Broward official just read out latest recount results. There is still a significant undervote between Senate and governor totals, meaning the votes Nelson needs to win didn’t appear on the machines, or at least not enough. Tomorrow’s hand recount will determine if they exist.
[https://pbs.twimg.com/profile_images/587029223186903040/bVK3wDfa_bigger.jpg]<https://twitter.com/pemalevy>
<https://twitter.com/pemalevy>
Pema Levy<https://twitter.com/pemalevy>
✔@pemalevy<https://twitter.com/pemalevy>

This just happened: Broward failed to make the 3pm deadline. Election planning director uploaded results 2 minutes late due to "unfamiliarity" with the state's website. State did not accept recount numbers. "Basically, I just worked my ass off for nothing," the official said.
<https://twitter.com/intent/like?tweet_id=1063207458188025856>
274<https://twitter.com/intent/like?tweet_id=1063207458188025856>
3:09 PM - Nov 15, 2018<https://twitter.com/pemalevy/status/1063207458188025856>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
<https://twitter.com/pemalevy/status/1063207458188025856>
341 people are talking about this<https://twitter.com/pemalevy/status/1063207458188025856>

Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D102310&title=The%20Absurdity%20of%20Florida%E2%80%99s%20Election%20Administration>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

11th Circuit Panel 2-1 Denies Motion To Stay Court Order Giving Florida Signature Mismatch Residents a Few Extra Days to Try to Cure [Corrected Headline]<https://electionlawblog.org/?p=102305>
Posted on November 15, 2018 2:36 pm<https://electionlawblog.org/?p=102305> by Rick Hasen<https://electionlawblog.org/?author=3>
View image on Twitter<https://twitter.com/ZoeTillman/status/1063198687835422720/photo/1>
[View image on Twitter]<https://twitter.com/ZoeTillman/status/1063198687835422720/photo/1>
[https://pbs.twimg.com/profile_images/1849163545/Zoe_Tillman_photo1_bigger.jpg]<https://twitter.com/ZoeTillman>
<https://twitter.com/ZoeTillman>
Zoe Tillman<https://twitter.com/ZoeTillman>
✔@ZoeTillman<https://twitter.com/ZoeTillman>

<https://twitter.com/ZoeTillman/status/1063198687835422720>

NEW: 11th Circuit has denied a request by Republicans to delay an order entered this morning giving Florida voters more time to fix problems with signatures on their ballots: https://assets.documentcloud.org/documents/5130416/11-15-18-11th-Circuit-Order-Florida-Dems.pdf …<https://t.co/X2i8Qc9lx0> Previously from @dominicholden<https://twitter.com/dominicholden>: https://www.buzzfeednews.com/article/dominicholden/florida-recount-senate-judge-fix-ballots-scott-nelson …<https://t.co/wvMC0w0fyL>
<https://twitter.com/intent/like?tweet_id=1063198687835422720>
116<https://twitter.com/intent/like?tweet_id=1063198687835422720>
2:34 PM - Nov 15, 2018<https://twitter.com/ZoeTillman/status/1063198687835422720>
<https://twitter.com/ZoeTillman/status/1063198687835422720>
88 people are talking about this<https://twitter.com/ZoeTillman/status/1063198687835422720>

Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D102305&title=11th%20Circuit%20Panel%202-1%20Denies%20Motion%20To%20Stay%20Court%20Order%20Giving%20Florida%20Signature%20Mismatch%20Residents%20a%20Few%20Extra%20Days%20to%20Try%20to%20Cure%20%5BCorrected%20Headline%5D>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

After Long Delay, Tom Farr’s Nomination Coming to Senate Floor<https://electionlawblog.org/?p=102303>
Posted on November 15, 2018 1:53 pm<https://electionlawblog.org/?p=102303> by Rick Hasen<https://electionlawblog.org/?author=3>
[https://pbs.twimg.com/profile_images/620936967493062656/T8-PD1xU_bigger.jpg]<https://twitter.com/StewSays>
<https://twitter.com/StewSays>
STEW [🇺🇸] [🐶]  [⚾️] @StewSays<https://twitter.com/StewSays>

<https://twitter.com/StewSays/status/1063184661831172096>

. at senatemajldr<https://twitter.com/senatemajldr> filed cloture on:
-Stephen Vaden, General Counsel @USDA<https://twitter.com/USDA>
-Karen Dunn Kelley, Dep. Secretary @CommerceGov<https://twitter.com/CommerceGov>
-Thomas Farr, U.S. District Judge (Eastern District of NC)
-Jonathan A. Kobes, U.S. Circuit Judge for (8th Circuit).
- Kathleen Laura Kraninge, Director, @CFPB<https://twitter.com/CFPB>
<https://twitter.com/intent/like?tweet_id=1063184661831172096>
9<https://twitter.com/intent/like?tweet_id=1063184661831172096>
1:39 PM - Nov 15, 2018<https://twitter.com/StewSays/status/1063184661831172096>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
<https://twitter.com/StewSays/status/1063184661831172096>
15 people are talking about this<https://twitter.com/StewSays/status/1063184661831172096>

Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D102303&title=After%20Long%20Delay%2C%20Tom%20Farr%E2%80%99s%20Nomination%20Coming%20to%20Senate%20Floor>
Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Ohio Democrats nearly match Republicans in Statehouse votes, but will remain in the deep minority; what’s ahead for gerrymandering”<https://electionlawblog.org/?p=102301>
Posted on November 15, 2018 1:51 pm<https://electionlawblog.org/?p=102301> by Rick Hasen<https://electionlawblog.org/?author=3>

Plain Dealer<https://www.cleveland.com/expo/news/erry-2018/11/0f32e762411182/ohio-democrats-outpolled-repub.html>:

As Ohio Republicans won the race for every statewide executive job from the governor on down this year, something different happened in lower-profile races.

The Democrats ran much more competitive in total votes for the 116 Ohio House and Senate elections across the state, cleveland.com found in tabulating the unofficial returns.

It’s a takeaway from Election 2018 that isn’t the usual headline grabber.  More importantly, in terms of controlling Ohio’s government, the GOP won 73 of the 116 Statehouse races.

But the Republicans scored their wins for 63 percent of the seats while collecting just over 50 percent of the total vote.

This is a lot like what happened in Ohio’s 16 congressional districts, where Republicans won 75 percent of the seats with just 52 percent of the overall vote.

These are two fresh examples of how skillfully gerrymandered legislative districts can sway the balance of power – especially when one party is in full control of drawing the maps as was the case for the current districts.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D102301&title=%E2%80%9COhio%20Democrats%20nearly%20match%20Republicans%20in%20Statehouse%20votes%2C%20but%20will%20remain%20in%20the%20deep%20minority%3B%20what%E2%80%99s%20ahead%20for%20gerrymandering%E2%80%9D>
Posted in redistricting<https://electionlawblog.org/?cat=6>

Federal Court Declines to Extend Florida Recount Deadlines Due to Lack of Evidence Before It, But Suggests Bush v. Gore Would Bar Recounts Included in Vote Totals from Only Selected Counties<https://electionlawblog.org/?p=102299>
Posted on November 15, 2018 11:50 am<https://electionlawblog.org/?p=102299> by Rick Hasen<https://electionlawblog.org/?author=3>

From the Court’s opinion:<https://www.courtlistener.com/recap/gov.uscourts.flnd.101496/gov.uscourts.flnd.101496.36.0.pdf>

By cosmic coincidence (or curse), it is Bush v. Gore that is most instructive in this Florida recount dispute. It is a foundational tenet of our democracy that “[t]he right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush v. Gore, 531 U.S. 98, 104–05 (2000). The Supreme Court emphasized the necessity of a “minimum requirement for nonarbitrary treatment of voters necessary to secure the fundamental right” to vote. Id. at 105. The Florida Supreme Court’s recount ruling—which created a patchwork quilt of recount standards—was “inconsistent with the minimum procedures necessary” to avoid an equal protection violation. Id. at 109.

The inverse is at issue here. The state’s recount provision will lead to votes and election results in one county being “ignored” while other counties’ vote and results will not be. § 102.112(3), Fla. Stat. This disparate treatment arguably runs afoul of the Equal Protection Clause because it is an arbitrary distinction based on a voter’s location. See Reynolds v. Sims, 377 U.S. 533, 563 (1964) (“Weighting the votes of citizens differently, by any method or means, merely because of where they happen to reside hardly seems justifiable.”); seealso Florida State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1185– 86 (11th Cir. 2008) (Barkett, J., concurring in part, dissenting in part) (explaining equal protection violation when “Florida’s matching scheme results in the arbitrary and disparate treatment of its citizens based on their county of residence”).

“When a state adopts an electoral system, the Equal Protection Clause of the Fourteenth Amendment guarantees qualified voters a substantive right to participate equally with other qualified voters in the electoral process.” Id. at 1185 (emphasis in original) (citing Reynolds, 377 U.S. at 566 and Harper v. Va. Bd. of Elections, 383 U.S. 663, 665 (1966)). “Having granted its citizens the right to vote, Florida must not only allow qualified voters to participate equally in elections, it must also ensure that qualified voters are given an equal opportunity to participate in elections.” Id. (emphasis in original). This same logic likely extends to post-election processes. Florida grants its citizens the right to vote and have their votes recounted under certain circumstances—but it also permits certain votes from being “ignored” when arbitrary deadlines pass. § 102.112(3), Fla. Stat. This statutory authorization to “ignore” certain results, despite mandatory recounts, arguably denies voters an equal opportunity to participate in the full electoral process due to unknowable vagaries like, for example, faulty machines.

In short, the Florida recount deadline seemingly “value[s] one person’s vote over that of another,” Bush, 531 U.S. at 104, because it arbitrarily and disparately treats some voters differently because of their location and without taking into account the unpredictable circumstances of each election cycle.

But this Court does not need to reach this constitutional analysis because, as noted on the record during this morning’s hearing, there is a complete dearth of evidence before this Court concerning the status, progress, or expected completion of the ordered recounts in Palm Beach County. In considering whether to grant the extraordinary relief of a preliminary injunction, the Court is required to balance the equities. Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc) (detailing the four elements required for a preliminary injunction). This balancing is effectively impossible without an understanding of the state and limitations of the current ongoing process. This Court must be able to craft a remedy with knowledge that it will not prove futile. It cannot do so on this record. This Court does not and will not fashion a remedy in the dark.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D102299&title=Federal%20Court%20Declines%20to%20Extend%20Florida%20Recount%20Deadlines%20Due%20to%20Lack%20of%20Evidence%20Before%20It%2C%20But%20Suggests%20Bush%20v.%20Gore%20Would%20Bar%20Recounts%20Included%20in%20Vote%20Totals%20from%20Only%20Selected%20Counties>
Posted in Bush v. Gore reflections<https://electionlawblog.org/?cat=5>, election administration<https://electionlawblog.org/?cat=18>

“Florida Dems planned to use altered forms to fix mail ballots across state after deadline”<https://electionlawblog.org/?p=102295>
Posted on November 15, 2018 11:40 am<https://electionlawblog.org/?p=102295> by Rick Hasen<https://electionlawblog.org/?author=3>

Naples Daily News:<https://www.naplesnews.com/story/news/politics/2018/11/15/florida-recount-democrats-launch-plan-altered-state-form-fix-ballots/2009178002/>

A day after Florida’s election left top state races too close to call, a Democratic party leader directed staffers and volunteers to share altered election forms with voters to fix signature problems on absentee ballots after the state’s deadline.

The altered forms surfaced in Broward, Santa Rosa, Citrus and Okaloosa counties and were reported to federal prosecutors to review for possible election fraud as Florida counties complete a required recount in three top races.

But an email obtained by the USA TODAY NETWORK-Florida shows that Florida Democrats were organizing a broader statewide effort beyond those counties to give voters the altered forms to fix improper absentee ballots after the Nov. 5 deadline. Democratic party leaders provided staffers with copies of a form, known as a “cure affidavit<https://www.documentcloud.org/documents/5130053-Altered-form-Affidavit-vote-by-mail-ballot-cure.html>,” that had been modified to include an inaccurate Nov. 8 deadline….

Keith told the USA TODAY NETWORK-Florida that she was aware the deadline to submit those forms had expired even though she was telling them there was still time to fix their absentee ballots. She then directed people to email Katharine Priegues, a field organizer with the Florida Democratic Party, with the subject line “I want to help” for instructions on what to do.

“I was trying to show that if given notice, voters would try to fix their ballots,” Keith said. “I was putting the word out because I was anticipating a challenge of that deadline (in court).”

Keith knew that because the deadline had passed, it was almost guaranteed forms submitted by voters on Nov. 8 would be rejected by election supervisors, who were under “no obligation to accept the affidavits.”

“But better to have evidence in hand,” Keith said.

That evidence would be a record of emails sent by voters who wanted to fix their absentee ballots but couldn’t do so because they couldn’t meet the state-imposed deadline.

She said she doesn’t consider what she was doing election fraud.

“It is not fraud to try and correct something. There’s nothing fraudulent about that,” she said.

After Walker’s ruling to allow voters more time to fix signature problems on absentee ballots, Keith said the actions that she and other Democrats took to help voters with the altered forms was justified.

“The deadline wasn’t ‘wrong,’ per se. It was functionally meaningless and arbitrary,” Keith said. “Most people never get notice, and many ballots weren’t even looked at until the deadline had passed.”

The Department of State, which oversees elections, raised concerns about the altered forms, arguing that making changes to state forms is a criminal offense in Florida. The forms were forwarded on Friday to federal prosecutors.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D102295&title=%E2%80%9CFlorida%20Dems%20planned%20to%20use%20altered%20forms%20to%20fix%20mail%20ballots%20across%20state%20after%20deadline%E2%80%9D>
Posted in chicanery<https://electionlawblog.org/?cat=12>, election administration<https://electionlawblog.org/?cat=18>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>
[signature_1666591822]
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20181116/7401bfec/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 2021 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20181116/7401bfec/attachment.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.jpg
Type: image/jpeg
Size: 127233 bytes
Desc: image002.jpg
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20181116/7401bfec/attachment.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image003.jpg
Type: image/jpeg
Size: 3507 bytes
Desc: image003.jpg
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20181116/7401bfec/attachment-0001.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image004.jpg
Type: image/jpeg
Size: 2973 bytes
Desc: image004.jpg
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20181116/7401bfec/attachment-0002.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image005.jpg
Type: image/jpeg
Size: 29323 bytes
Desc: image005.jpg
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20181116/7401bfec/attachment-0003.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image006.jpg
Type: image/jpeg
Size: 1794 bytes
Desc: image006.jpg
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20181116/7401bfec/attachment-0004.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image007.jpg
Type: image/jpeg
Size: 2795 bytes
Desc: image007.jpg
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20181116/7401bfec/attachment-0005.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image008.jpg
Type: image/jpeg
Size: 2439 bytes
Desc: image008.jpg
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20181116/7401bfec/attachment-0006.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image009.jpg
Type: image/jpeg
Size: 103082 bytes
Desc: image009.jpg
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20181116/7401bfec/attachment-0007.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image010.jpg
Type: image/jpeg
Size: 16298 bytes
Desc: image010.jpg
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20181116/7401bfec/attachment-0008.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image011.jpg
Type: image/jpeg
Size: 2261 bytes
Desc: image011.jpg
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20181116/7401bfec/attachment-0009.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image012.png
Type: image/png
Size: 350 bytes
Desc: image012.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20181116/7401bfec/attachment-0001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image013.png
Type: image/png
Size: 1048 bytes
Desc: image013.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20181116/7401bfec/attachment-0002.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image014.png
Type: image/png
Size: 1228 bytes
Desc: image014.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20181116/7401bfec/attachment-0003.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image015.png
Type: image/png
Size: 25207 bytes
Desc: image015.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20181116/7401bfec/attachment-0004.png>