Thursday, October 14, 2004

In '04 Florida, Lawsuits Begin Before Election

The New York Times
October 14, 2004

In '04 Florida, Lawsuits Begin Before Election

MIAMI, Oct. 13 - Not a single ballot has been counted in the presidential election, yet Florida is already teeming with lawsuits charging the state and its county elections supervisors with voter disenfranchisement, a legal muddle likely to grow worse before Election Day.

On Wednesday, the State Supreme Court heard arguments in a lawsuit seeking to require election officials to count provisional ballots - which voters can cast when their names do not appear on precinct rolls - regardless of where they are cast. And on Tuesday, labor unions and voting-rights groups sued to stop the disqualification of more than 10,000 incomplete registration forms in Florida, accusing the state of overly restrictive rules that disproportionately hurt minority voters.

Also on Tuesday, plaintiffs in another suit met with aides to Secretary of State Glenda Hood to discuss how counties with touch-screen voting should conduct manual recounts. The state had banned recounts in such counties, but an administrative law judge, responding to a suit brought by the American Civil Liberties Union and other groups, threw out that rule in August.

"The 2000 election signaled the era of lawsuits in elections," said Susan MacManus, a political science professor at the University of South Florida, "and it's escalated markedly not just in Florida, but everywhere. Both parties are playing the pre-emption game as much as the reactive game this time out."

Alia Faraj, a spokeswoman for Ms. Hood, a Republican who was appointed by Gov. Jeb Bush, said the lawsuits were politically motivated and were eroding voter confidence.

"They are questioning every single law that we are following and that we are complying with, federal or state," Ms. Faraj said. "And I think it's inappropriate for them to be doing this at the 11th hour."

The lawsuit regarding voter registration forms, filed in federal court in Miami, stems from Ms. Hood's recent recommendation to throw out forms on which registrants did not check a box indicating they are American citizens, even if they signed an oath at the bottom of the form swearing that they are.

It charges that while some registrants fixed their incomplete forms before the Oct. 4 deadline, elections officials did not always process them in time, and did not let other registrants know their forms were flawed. It charges Ms. Hood and elections supervisors in Broward, Duval, Miami-Dade and Orange Counties with violating federal election law.

The plaintiff groups - including People for the American Way, the American Federation of State, County and Municipal Employees and the A.F.L.-C.I.O. - all registered thousands of new Florida voters in recent months, often urging them to vote Democratic.

According to the complaint, more than a third of voters who indicated their race on the incomplete forms in Broward and Miami-Dade Counties are black, even though blacks make up only 17 percent of the electorate in Broward and 20 percent in Miami-Dade.

Though the citizenship issue was the first to cause concerns among voting-rights groups - and the subject of another lawsuit, filed by the Florida Democratic Party last week - far more registrants failed to check other boxes on the form, the suit filed Tuesday said. In Miami-Dade County, about 3,050 applicants did not check a box to indicate they were not convicted felons, while 3,550 did not check a box indicating they had not been found mentally incompetent, and were disqualified.

The plaintiffs maintain that checking the three boxes is not legally required. Some elections supervisors have said the incomplete forms came mostly from Democratic advocacy groups, which registered tens of thousands of new voters, turning in box upon box of forms at the last minute. Partly because of their efforts, many supervisors still have thousands of applications to process.

Advocacy groups say this backlog could become fodder for another lawsuit, though Allie Merzer, a spokeswoman for the Florida Democratic Party, urged patience.

"We can sympathize with the enormous amount of paperwork they are probably shuffling right now," Ms. Merzer said.

In Tallahassee on Wednesday, the State Supreme Court heard arguments on whether Florida's new provisional voting law - specifically, the part that bars voters from casting provisional ballots anywhere but their home precinct - is unconstitutional. The law is intended to prevent one of the major problems Florida experienced in 2000, when scores of voters, especially minority voters, were turned away at the polls because their names were not on the rolls. Provisional balloting is subject to verification of registration.

A federal law requires states to offer some form of provisional balloting, but more than a dozen, including Florida, throw out ballots that are cast in the wrong precinct. The plaintiffs in the suit before the State Supreme Court, a group of labor unions, argue that provisional ballots cast outside home precincts should count, not least because many voters are displaced and polling places moved after the recent hurricanes.

Professor MacManus said that since the flurry of lawsuits so close to Election Day was unprecedented, it was impossible to predict their effect.

"Will this make people who are infrequent or new voters just stay home?" she said. "Or will it be an impetus for them to think, 'Hey, people are really watching now so I know my vote won't be lost.' We have no idea which of these opinions will prevail."