Skeptical judges hear arguments in Bernard appeal of Senate District 27 electionby Dara Kam | October 18th, 2012
A three-judge panel appeared skeptical Thursday of state Rep. Mack Bernard’s appeal of a lower court decision affirming his Democratic opponent Jeff Clemens as the winner in a Palm Beach County state senate race.
Bernard appealed Leon County Circuit Judge Terry Lewis’s ruling that the Palm Beach County Canvassing Board was correct in rejecting 40 ballots in the District 27 race that Clemens won by 17 votes.
The canvassing board rejected the ballots because the signatures did not match the voters’ official signatures in the voter registration file, indicating they may have been fraudulent.
Representing Bernard, former state Rep. J.C. Planas argued during a hearing before the 1st District Court of Appeal on Thursday that Lewis should looked beyond just the signatures to determine whether the ballots were valid. Lewis rejected Planas’ request to introduce affidavits of the voters, many of whom are Haitian-American. Planas also said Thursday Lewis should have looked at the entire voter registration forms to determine whether the writing on the absentee ballots was made by the same person.
And, Planas argued, Lewis should have examined the ballots the canvassing board accepted as well as the ones they rejected to ensure that they were consistent.
But the three judges appeared unconvinced, saying that a new Florida law passed last year severely restricted Lewis’s ability to examine anything other than the signatures on the ballots and the signature in the voter registration file. The law was intended to limit protracted legal challenges over absentee ballots in elections.
“It’s almost like you’re asking us to rewrite the statute,” Judge Nikki Ann Clark said shortly after oral arguments began.
Clemens’s lawyer Ron Meyer said Lewis followed what the unambiguous law instructed him to do.
“I don’t know how it could be any more clear,” he said.
Ashley Davis, assistant general counsel for Secretary of State Ken Detzner who is also being sued by Bernard and other plaintiffs, agreed.
The law “doesn’t give license to look at anything other than just the signatures,” she said.
But Planas insisted that elections laws are aimed at allowing votes that are not fraudulent to count and that as much information as possible should be considered before tossing ballots.
“Are we creating a statutory scheme that is designed to disenfranchise voters?” he asked.
“I appreciate your concern about fraud. I’ve worked election cases before. But I don’t know how you get around the language of the statute,” Judge Clark said. As a Leon County circuit judge, Clark ruled on one of the numerous cases related to the 2000 presidential recount.
Bernard did not attend the hearing. Clemens, who did, told reporters the judges were right to be skeptical.
“The reason you can only look at the signature of the ballot and the registration is for this very reason. The legislature and the courts don’t want people coming back and counting fraudulent ballots. We just heard this attorney yesterday argue that we should toss fraudulent ballots out and come back today and say we should count fraudulent ballots. It’s an irony,” Clemens said.
Planas represented state Rep. John Julien, a North Miami candidate who alleged fraud in his primary election loss to state Rep. Barbara Watson, D-Miami Gardens. Leon County Chief Circuit Judge Charles Francis on Wednesday dismissed the case, ruling in Watson’s favor.
Planas did not say whether Bernard and the other plaintiffs would appeal to the Florida Supreme Court if they lose the appeal.
But he did say the court needs to clear up the law before the Nov. 6 presidential election.
“I think everyone should be worried that in what is about to be a very tight election we could have a scenario by which we are trying to, rather than creating one where most votes should count, creating something where votes could be eliminated because a signature changed or because someone forgot whether they printed their name on the ballot rather than in cursive,” Planas said.
But Meyer said there was no question that the signatures on the rejected ballots did not even closely resemble the signatures on file. He said he expected the court to rule quickly.
“Helen Keller could have seen that these ballots did not match,” Meyer said.