Supreme Court gets a ballot battle

Legislative remedy is flawed, suit says

By Nancy Cook Lauer

Tallahassee DEMOCRAT   18 August 2004

Tallahassee resident Brett Cotten was in the right building - but the wrong room - when he voted for governor in 2002.

Had he stepped across the hall, the provisional ballot he cast when his name was not found on the voting rolls would have been counted. But there are two precinct voting locations at the Lafayette Park Community Center. Since he was in the wrong one, his ballot was thrown out.

"You figure you go where the polling people tell you, your vote would count," Cotten said.
A coalition of labor unions and civil-rights organizations says this kind of confusion could be avoided if provisional ballots were counted countywide, instead of at individual precincts. The Legislature created the provisional ballot in 2001 to keep voters from being turned away from the polls in error, but advocates say it doesn't go far enough.

Labor unions filed suit against the state Division of Elections and the Leon County Canvassing Board in the Florida Supreme Court on Tuesday to underscore that concern. The unions - including the AFL-CIO and AFSCME, the American Federation of State, County and Municipal Employees - charge that the law is unconstitutional because it denies qualified voters their right to have their vote counted in the county where they are registered.

"This ill-conceived statutory scheme flies in the face of Floridians' fundamental right to have a voice in their government through the ballot box," said AFSCME attorney Alma Gonzalez.

It's unclear whether the Supreme Court will, as is its custom, return the lawsuit to the lower courts for consideration first. It could hear the case if it deems the matter needs to be resolved swiftly. Nor is it clear whether the court will find that the unions have the legal standing to file the lawsuit, unless they can show that one of their members has been disenfranchised by the law.

The unions want the law struck from the books by the Nov.2 general election. The American Civil Liberties Union, People for the American Way and other groups are joining the case as "friends of the court."

The groups have also challenged Florida's touch-screen election equipment in a separate complaint before the Division of Administrative Hearings. Those same groups have also been vocal in their opposition to a felon purge list that was found to be so riddled with errors that Secretary of State Glenda Hood has said it need not be used.

A Hood spokeswoman said the agency's attorneys are reviewing the lawsuit. She added that the Division of Elections is merely following a "very specific" law governing provisional ballots.

The Help America Vote Act, passed by Congress in 2002, mandated provisional ballots to prevent qualified voters from being denied their right to vote if their names do not show up on the voter rolls. But 16 states, including Florida, have put restrictions on the use of the ballots.

Cotten was one of only five Leon County voters in the 2002 election whose ballots were discarded because they were cast in the wrong precinct. Cotten had recently moved two blocks away, and his name was listed on the roll in the room across the hall from where he filled out his provisional ballot.

Leon County Supervisor of Elections Ion Sancho said only 78 provisional ballots were cast in the 2002 election. Forty-nine were rejected, primarily because they were cast by voters who were not registered to vote anywhere in the county.

Sancho and the Leon County Canvassing Board are defendants in the lawsuit, but Sancho had actually lobbied the Legislature for the ballots to be counted countywide. The Senate agreed with Sancho's position but lost to the House's more stringent limits during negotiations over the final elections package.

Sancho said election supervisors around the state have been split on the issue.

"I don't see us taking any central role in this litigation," he said. "It doesn't impact Leon County that much. The more accurate your rolls are, the fewer provisional ballots you have."