Both Campaigns See Causes for Litigation in Florida
New York Lawyer. November 3, 2004
By the Staff of Miami Daily Business Review

As South Florida polling places neared closing time Tuesday, lawyers who monitored the election for the presidential campaigns of Sen. John Kerry and President George Bush said there were few problems that obstructed the path to a fair vote. But several issues loomed, particularly questions over absentee and provisional ballots that could become a focal point for post-election litigation.

By late afternoon, election lawyers had identified a number of possible voting problems even though some early glitches had been resolved and county election supervisors and Florida Secretary of State Glenda Hood said the voting went smoothly.

But Lida Rodriguez-Taseff, chair of the Miami-Dade Election Reform Coalition, a nonpartisan watchdog group, disagreed with the assessment that the election went well. "It's a slow bleed," she said. She predicted that a variety of problems would emerge after the polls closed.

A late afternoon dispute broke out in several predominantly black Miami-Dade precincts over demands by Republican poll watchers that voters show two forms of identification. Observers from the U.S. Department of Justice were summoned and the reform coalition planned to intervene as well.

The ACLU of Florida Foundation filed a lawsuit in the U.S. District Court in Miami late Tuesday on behalf of voters in both Miami-Dade and Broward counties. The group alleged that supervisors of elections failed to send out absentee ballots in time.

The office of Miami-Dade Supervisor of Elections Constance A. Kaplan said it sent out about 128,000 absentee ballots, of which slightly more than 90,000 had been returned by Monday. Provisional and absentee ballots will only be counted if the statewide vote margin between President Bush and Kerry is smaller than the total number of provisional and absentee ballots cast. If that situation occurs, experts expect a ferocious battle over the validity of each and every one of those ballots.

Lawyers for independent watchdog groups and the Kerry/Edwards campaign identified alleged problems with absentee ballots not being sent to out-of-state voters, improper Republican challenges of voters and malfunctioning touch-screen voting machines in Palm Beach County.

They also said long lines in some precincts may have discouraged people from staying and voting, and that this was the result of poor planning by election officials.

Disputes over challenges

On the Republican side, attorneys for the Bush/Cheney campaign complained that Republican poll watchers were blocked from entering as many as 10 percent of the polling places in Broward County.

In Miami-Dade, Democratic lawyers accused Republicans of aggressively and improperly challenging voters on the basis that they either were felons or were not residents of the precinct where they were trying to vote. Alan Greer, a Kerry/Edwards attorney, said he and his colleagues generally persuaded the election judges to allow the challenged voters to file an affidavit and cast a ballot.

At the St. Matthew's Free Will Baptist Church in the Little Haiti neighborhood of Miami, Kerry/Edwards lawyer Ronald S. Lowy said election officials refused to let several voters cast ballots on the grounds that they were on a felon voter list provided by election officials. He said he took the rejected voters aside, explained the situation, and they left without any problems.

On the other hand, Republican poll watchers complained that at precinct 10A, a predominantly black precinct in Deerfield Beach, election officials allowed challenged voters to cast their ballots on touch-screen machines. The GOP watchers had wanted to have them cast provisional ballots, with the county canvassing board later determining their eligibility.

Technical difficulties

There were scattered reports of technical voting machine problems as well. In a largely black precinct 5028 in Boynton Beach, Election Protection, the nonpartisan national watchdog group, reported that one touch-screen machine went dead, was rebooted, and 39 votes were lost. But the office of Palm Beach County Supervisor of Elections Theresa LePore said the votes were stored on the machine's electronic memory and were not lost.

In at least two Palm Beach County precincts, 7124 in Boynton Beach and 7054 in West Palm Beach, voters said they tried to press John Kerry for president and instead found their vote going to George W. Bush, according to Election Protection. But LePore's office said those incidents probably involved human error.

Compared with four years ago, lawyers for the presidential candidates and various election watchdog groups were jumping on voting problems in South Florida much more quickly. In 2000, many of the most serious problems, such as Palm Beach County's infamous butterfly ballot, weren't widely known until after the polls had closed. Secretary of State Hood, who has faced a barrage of criticism over the past six months for her handling of the preparation and rule making for the election, said in an interview at noon Tuesday that "everything is going smoothly."

Still, there were glitches. In Palm Beach County, for example, Turia Hayden, a spokeswoman for Election Protection, said some voters, particularly in African-American neighborhoods, had problems locating their correct polling place because some voting sites were relocated in the wake of the recent hurricanes. When they showed up to vote at the old location, they found no signs or other assistance to help them find the new polling place.

In Broward County, the efforts of Republican election lawyers focused on ensuring that GOP pollwatchers got into polling places to observe the voting and to challenge voters they believed to be ineligible.

Early on Tuesday, Bush/Cheney attorney Edward J. Pozzuoli said that his team had heard from about a dozen pollwatchers who claimed that employees of Broward Supervisor of Elections Brenda Snipes expelled them from precincts.

Problems arose, Pozzuoli said, when some officials demanded to see letters of authorization from Snipes. But Snipes, an appointee of Gov. Jeb Bush, had never issued such letters. By early afternoon, Pozzouli said, poll watcher access issues were a problem in "five to 10 percent" of Broward's precincts. He did not offer any estimate of the number of voter challenges made by GOP poll watchers. Broward Republicans stationed poll watchers in 650 of the county's 772 precincts, Pozzuoli said.

Also, 52 heavily Democratic precincts were targeted for even closer monitoring by party lawyers on the lookout for possible vote fraud. Those precincts included senior strongholds such as Sunrise Lakes and Century Village in Deerfield Beach.

Republican lawyers gathered in the GOP election war room at Pozzuoli's law firm, Tripp Scott in Fort Lauderdale, also were monitoring whether Snipes' office was living up to a promise that Snipes' lawyer made Monday night in Broward Circuit Court. The lawyer, Bernadette Norris-Weeks, had promised to immediately her office's list of people who voted early, to prevent people from illegally voting again on Tuesday.

The Republicans had raised the issue in a lawsuit filed Monday afternoon. Broward Circuit Judge David Krathen dismissed the suit after Norris-Weeks said the election office would the list.

Review staff writers Dan Christensen, Steve Ellman, Julie Kay, Oscar Pedro Musibay and Jessica Walker provided reporting for this article.