UPDATE: Judge Mark Walker has ruled Florida's system for curing issues with mail-in ballots is being applied unconstitutionally. Walker is giving voters that have problems with their mail-in ballots until 5 p.m. on Saturday, Nov. 17, to correct the issue.
The new deadline is just hours before manual recounts for the statewide races of Senate and Commissioner of Agriculture are due. Manual recounts must be finished by noon on Nov. 18.
The National Republican Senatorial Committee has filed an appeal with the Eleventh Circuit Court of Appeals to stop the motion, and a spokesman for Gov. Rick Scott's (R) Senate campaign indicates it will appeal the ruling as well.
The continuing saga of lawsuits following this year's midterm elections played out in a federal courtroom as Sen. Bill Nelson's (D) campaign asked federal judge Mark E. Walker of Florida's Northern District Court to count all mail-in ballots that were tossed out due to miss-matched signatures.
The Nelson campaign contends Florida's signature matching process disenfranchises voters, and the state must allow the votes to be counted. A lawyer on behalf of the campaign argued it's a flawed process and asked the judge to rule the law unconstituional.
Lawyers for the plaintiff, Secretary of State Ken Detzner, strongly opposed accepting any of the ballots or making any changes to the vote-by-mail system. Backed by Florida Attorney General Pam Bondi's office and the National Republican Senatorial Campaign, Detzner's office argued the case should be thrown out.
They argued Nelson should've filed the lawsuit prior to the election, and it's therefore not a timely challenege. Lawyers also argued if forced to count the ballots, the delays in recounts and certifying election results would be enormous and could push the state past it's required deadlines to report results. Voting by mail is not a constituitonally protected right, argued Detzner's office, but rather a convenience provided to Floridians.
Judge Walker called in Leon County Supervisor of Elections Mark Earley for testimony. Earley explained how mail-in and provisional ballots are processed and counted. When asked by Nelson's lawyers how much signature matching training Supervisors of Elections and members of canvassing boards get, he said they receive no formal training from the state.
Earley said Florida law gives canvassing boards a lot of discretion, including for signature matching and accepting ballots. The United States Postal Service held a number of Leon County cure affidavits until after the deadline had passed, and Earley told the judge the canvassing board voted to review them anyway.
The Detzner camp pointed out the leniency afforded to Supervisors of Elections favors accepting ballots, and argued it's not disenfranchising voters.
The court also heard testimony from Maria Matthews, the director of Florida's election division. So far, 93 provisional ballots and 3,688 mail-in ballots have been rejected by 45 counties, according to Matthews. Duval and Miami-Dade are among the 22 counties who haven't reported yet, so the total number of rejected ballots is estimated to be around 5,000.
The Detzner camp pointed out voters can ask the court to review mail-in ballots that are tossed out if they feel they've negated in error. But Nelson's lawyers pushed back, pointing out the court can only compare the voter's signature on the registration to the signature on the ballot. Thus, this process doesn't provide any additional relief.
Each of the 67 Florida counties' Supervisors of Elections evaluate mail-in ballots and determine if the signature on the ballot matches the one on file. If there's a dispute, the ballot is presented to a canvassing board which makes the final decision to keep, or toss, the vote.
Supervisors of Elections are supposed to let voters know when there's a problem with a ballot, like a mismatched or missing signature. Voters have until 5:30 p.m. the day before Election Day to "cure" the ballot. This includes fixing signatures or proving identities. But Judge Walker pointed out mail-in ballots received on Election Day have no way of being cured.
Judge Walker struggled with rewriting Florida's election law from the bench. He faces a number of lawsuits challenging various parts of the state's electoral system. But Walker said he thinks "there are a great many things undermining the people's faith in the electoral process."
Walker made it clear he doesn't want all tossed out mail-in ballots counted, like the Nelson campaign is asking for. He acknowledged, though, voters may need additional time to fix problems with mail-in ballots and discussed allowing another "cure" process through Nov. 18, when overseas mail-in ballots are due.