Rep. Mack Bernard will appeal a ruling by a Leon County judge Monday upholding the rejection of 40 absentee ballots in his 17-vote loss to fellow Democrat Jeff Clemens in a race for a Palm Beach County Senate seat.

Bernard’s attorney, former Republican state Rep. J.C. Planas, said Circuit Judge Terry Lewis was wrong in denying his motion Monday to take testimony from the mostly Haitian-American voters whose ballots were cast aside by county elections officials.

Lewis reviewed the 40 absentees Monday in his courtroom and agreed that signatures on the ballot envelopes did not match those on file with the Palm Beach County Elections Supervisor’s office.

Lewis said state law allows him only to determine whether the county’s canvassing board was reasonable in making its determination, but Planas said the court can do more fact-finding.

“We believe that the law does not prohibit the court from looking at the voters’ testimony and looking beyond just the signatures,” Planas said. “We believe that the Legislature drafted that language to make it more difficult for ballots that had been deemed legal to be thrown out, rather than, as in this case, ballots that were deemed illegal…the right to vote is pretty big.”

Lewis said he will likely issue an order late Monday. Planas said he will challenge that to the First District Court of Appeal in Tallahassee.

The judge, however, did side with the Bernard campaign in saying that nine provisional ballots cast in the election could be counted.

Palm Beach County Elections Supervisor Susan Bucher, who brought 49 disputed ballots to Tallahassee by car over the weekend, testified Monday that the provisionals had been rejected because they failed to include the partisan registration of the voters.

Lewis agreed with Planas that they should be counted because the Bernard-Clemens race was a Democratic primary, and those who cast ballots were likely registered Democrats. Still, even if Bernard captures all nine disputed provisional ballots, he’d fall short of overturning Clemens’ victory.

“As far as we’re concerned, this election is over,” Clemens said in a teleconference with reporters following the hearing. “And it was over three-and-a-half weeks ago. And everybody believes it is over except Mack and Mack’s attorney.”