FL election is on a fast and furious train of lawsuits and stakes are high. When will it end? At the U.S. Supreme Court?

By: , and - November 13, 2018 7:00 am
Supreme Court

Empty courtroom of the Supreme Court of the United States. Credit U.S. Supreme Court website.

Recount logoFlorida’s general election is now on a split trajectory, with counties still tallying recount ballots while a mounting legal battle ensues, spanning cases in both federal and state courts that raise questions about conflicts of interest and questionable intervention in the voting process.

In the federal cases, Constitutional issues are at stake that could tip the balance of who wins pivotal races, and some counties likely won’t be able to finish the counting given the state’s deadlines –which could spawn even more lawsuits.

The legal arena also includes at least one complaint against Gov. Rick Scott involving the state’s ethics commission, and what critics say is troubling action by Florida Attorney General Pam Bondi.

Bondi sent two separate letters Sunday to the Florida Department of Law Enforcement and Secretary of State Ken Detzner. In both cases, she sought to make sure the agencies were hyper-vigilant about any potential voting irregularities.

Addressing FDLE, Bondi said, “Your duty to investigate this matter is clear. I am directing you to take the necessary steps to promote public safety and to assure that our state will guarantee integrity in our elections process.”

Brian Tannebaum, a Miami criminal defense attorney with expertise in ethics cases, says, “In certain situations, (prosecutors) may give (the police) guidance as to how they could handle a case, but (the prosecutor’s) role and the role of police is separate.”

He adds, “For the Attorney General to even be encouraging FDLE to conduct themselves in a certain matter, appears to be conflicting.”

Tallahassee Attorney Mark Herron, who has expertise in ethics and elections, said Bondi “has the same potential issues as the governor in terms of misusing her position” – meaning, calling on the FDLE to investigate when there has been no evidence thus far of any voter fraud or irregularities.

“I don’t’ think it is within her duties and responsibility to use her office to get a political result for her ally the governor,” Herron said.

Florida Phoenix asked Bondi’s spokesman about the Attorney General’s role in the election process. But he could not be reached for comment.

And the lawsuits begin

Within days of the Nov. 6 election, attorneys filed several circuit court cases, mostly on behalf of Gov. Scott, in Broward and Palm Beach Counties.

A judge on Monday refused to impound Broward County voting machines at the request of Scott and his campaign for U.S. Senate. Instead the judge decided to provide additional sheriff deputies to monitor procedures in the Broward Supervisor of Elections office.

Broward, a Democratic stronghold, has been in the epicenter of debate over whether all votes will be considered fairly and accurately counted.

Republican Gov. Scott has a slim lead over incumbent Democratic U.S. Senator Bill Nelson.

The federal courts get involved

At last count, there were at least three federal lawsuits in the U.S. District Court for the Northern District of Florida.

Attorney Herron, who was the Democratic Party counsel in the Bush-Gore drama of 2000, said “there’s a chance” those federal lawsuits could travel up to the U.S. Supreme Court, because some of the Constitutional-related issues in the lawsuits of 2018 are similar to those in 2000.

The first federal case filed following Election Day was Democratic U.S. Sen. Bill Nelson and the Democratic Executive Committee of Florida against Ken Detzner, Florida’s Secretary of State.

That federal lawsuit asks for an extension of time for vote counting, and also asks that the Court ensure that all signed absentee and provisional ballots are counted and included in vote totals, to avoid disenfranchising voters. A hearing is scheduled Wednesday on that case.

Nelson’s lawyer, Marc Elias, is concerned about not having enough time to count votes.

The Florida Secretary of State’s office says if counties can’t get their recounts done in time they must revert to unofficial numbers reported on Saturday. However, Elias hinted he’s going to court if some counties can’t finish their machine or hand recounts later this week:

“If they haven’t finished by Thursday…they ought to continue that machine recount…and then if they can’t make the Sunday deadline, then that Sunday deadline ought to be extended.  And ought to be extended to ensure that everyone’s vote is counted,” Elias said.

Elias is involved in a second federal lawsuit against Secretary of State Ken Detzner, just filed by the VoteVets Action Fund, the Democratic Senatorial Campaign Committee and the Democratic National Committee.

That lawsuit relates to “potentially thousands of Florida voters who lawfully mailed their ballots before November 6, 2018, but whose ballots were not received by the supervisor of elections by 7 p.m. on Election Day and therefore were not counted.”

That means, “Unless relief is granted, local canvassing boards will have unconstitutionally rejected ballots that were postmarked before Election Day but, for reasons outside the voters’ control, were not delivered to the supervisor of elections by 7 p.m. on November 6, 2018. The outright rejection of such ballots, based on arbitrary conditions—namely the timeliness of post office delivery—outside the voter’s control unlawfully infringes upon the fundamental right to vote. “

Gov. Scott gets slapped with a federal lawsuit and an ethics complaint

Late Monday afternoon, another federal lawsuit was filed, this time against Gov. Rick Scott, by the League of Women Voters of Florida, Common Cause Florida and Joanne Lynch Aye, a Broward voter who voted in the 2018 election.

That lawsuit alleges that Scott “used the official powers of his office to interfere in the election to benefit himself and his political party and to intimidate the local officials and volunteers conducting the vote count. In light of the pervasive opportunities for the Defendant Scott to improperly exercise power over the U.S. Senate race, his continued interventions in the race violate the basic notion fairness that no man should be a judge in his own cause.”

The lawsuit says that Scott has violated the constitutional rights of the plaintiffs as well as Florida voters, and “suffers from a substantial conflict of interest.”

Therefore, “This Court should not permit Defendant Scott to use the power of his office in any manner related to the Florida’s 2018 Senate race as long as he remains a candidate,” the lawsuit states.

The lawsuit cites several instances of Scott’s actions as governor, including using the taxpayer-funded Governor’s Mansion to hold a news conference for the U.S. Senate race and continuing to raise tensions by saying South Florida counties were “trying to steal the election.”

Most alarmingly, according to the lawsuit, Scott called on FDLE to investigate Broward and Palm Beach County for “rampant fraud” though “Scott has produced no evidence of alleged fraud.”

The allegations in this latest federal lawsuit are similar to an ethics complaint submitted Friday to the Florida Commission on Ethics. It is expected to be formally filed Tuesday.

An attorney and co-founders of a political action committee called The Democratic Coalition, are filing the ethics complaint against Gov. Scott.

Among other allegations, the complaint states: “Rick Scott (“Scott”), current Governor of Florida and candidate for United States Senate, corruptly used and attempted to use his official position and the property and resources of the State of Florida, including but not limited to the Governor’s mansion and the personnel, property and resources of the Florida Department of Law Enforcement, to corruptly interfere with and influence the election being conducted to select a United States Senator for the State of Florida, to secure a special privilege, benefit or exemption for himself in violation of Florida Statute…and other laws of Florida and the United States.”

As to the federal court cases, one thing is for sure: Those lawsuits will likely move fast on the legal front, says attorney Tannebaum.

“What happens is, you have a suit filed in federal district court – the trial court – they will make a decision fairly quickly. These lawsuits are basically being decided in a day or two, and then the party that loses has the right to appeal to take that to the Eleventh Circuit Court of Appeals and they will determine what the briefing schedule is.”

Following appeal court action, the next step is the U.S. Supreme Court, which can decide to accept the case or not, says Tannebaum.

One Facebook participant — observing that another federal lawsuit was filed Monday against Scott, on top of an ethics complaint — said: “This is going to get intensely interesting.”


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Diane Rado
Diane Rado

Diane Rado has covered state and local government and public schools in six states over some 30 years, focusing on policy and investigative stories as well as legislative and political reporting. She is married to a journalist and has three adult children.

CD Davidson-Hiers
CD Davidson-Hiers

CD Davidson-Hiers is a 2017 summa cum laude graduate of Florida State University with a degree in Creative Writing and French. She is a member of Phi Beta Kappa and Golden Key honors societies, and has received multiple writing awards for fiction, nonfiction and poetry. Prior to joining the Florida Phoenix, CD worked at the Tallahassee Democrat and has bylines in Tallahassee Magazine. She is a native of Pensacola and currently lives in Tallahassee with her tabby cat, Faulkner.

Mitch Perry
Mitch Perry

Mitch Perry has covered politics and government in Florida for more than two decades. Most recently he is the former politics reporter for Bay News 9. He has also worked at Florida Politics, Creative Loafing and WMNF Radio in Tampa. He was also part of the original staff when the Florida Phoenix was created in 2018.