WEST PALM BEACH — Two weeks after he upheld incumbent Jack McDonald’s one-vote victory in a Palm Beach mayor’s race, Judge David Crow today listened to another 30 minutes of arguments on whether he should reconsider his decision.

Crow said he will issue an order “shortly” in a case that is being watched closely by elections officials around the state because it could ultimately set a new legal precedent for the way absentee ballots are handled.

However Crow rules, attorneys on the losing side are likely to file an appeal.

During today’s proceeding, Crow revisited arguments over whether McDonald’s challenger or the Palm Beach County elections office has the burden of proving whether disputed absentee ballots were “received” in time to be counted.

McDonald defeated challenger Gerry Goldsmith by one vote in a Feb. 17 runoff. Goldsmith filed a lawsuit arguing that nine rejected absentee ballots should have been counted. Goldsmith claimed the ballots reached a post office box rented by the elections office by 7 p.m. on election day and therefore satisfied a state law that says absentee ballots must be “received” by the supervisor by 7 p.m.

In the original trial, elections officials testified — and Crow agreed — that Goldsmith failed to prove the ballots reached the P.O. box at the post office on Summit Boulevard by 7 p.m.

Goldsmith’s attorneys argued they could not meet that burden because elections officials admitted they did not check the box after 5 p.m. on election day.

Elections officials testified they checked the P.O. box at about 10 a.m. on election day and retrieved 79 ballots. A postal manager testified that only one delivery is made to the box each day. An elections staffer said he checked the box again at about 5 p.m. on election day and found no ballots.

Goldsmith argued that the fact the box wasn’t checked after 5 p.m. meant it was possible new ballots could have been put in the box after 5 p.m. but before the deadline.

Crow’s April 6 ruling said it would have been “better procedure” for the elections office to check the box at 7 p.m. And Crow agreed that “while highly unlikely, and not standard practice, it is not impossible that mail could have been placed in a post office box” later in the day.

But Crow’s ruling also said that Goldsmith “failed to meet his burden” of proving any ballots were delivered to the box before the deadline.

Today, however, Crow was willing to entertain new arguments about the burden question.

At today’s hearing, McDonald attorney Jennifer Blohm said an absentee voter takes a risk that, even if he or she mails a ballot several days before an election, it might not be delivered on time by the U.S. Postal Service. That is beyond the control of the elections supervisor, Blohm said.

“Are you going to make the supervisor responsible for the vagaries of the post office?” Blohm asked.

“Are you going to make the voter responsible for the vagaries of the supervisor?” Crow replied.

Later, attorney Jay LaVia, representing the county elections office, echoed Blohm’s argument that an absentee voter risks having the post office fail to deliver the ballot on time.

“I think (Goldsmith’s) position is that they’re willing to accept that risk,” Crow said. “But what they’re not willing to accept is the risk that your client didn’t check the box.”

Tags: Palm Beach, recount

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