Judge Rejects ACLU Suit Over Counting Late Absentees

WKMG-TV   November 9, 2004
MIAMI Election officials will not be forced to count absentee ballots delivered after 7 p.m. on Election Day, regardless of what problems caused late mailings, a federal judge ruled Tuesday in a lawsuit by the American Civil Liberties Union.

The civil liberties group had asked for an emergency order requiring Miami-Dade and Broward election officials to count ballots received after last week's election night cutoff. The absentees, counted or not, would not affect final statewide tallies that counties must submit to the state by Saturday.

"Voters have failed to show the defendants arbitrarily or deliberately delayed in sending" the absentee ballots, U.S. District Judge Alan Gold wrote in a 48-page order. He noted the three voters named in the suit could have requested ballots earlier than "just days before the election."

"It's the result we expected," said Burnadette Norris-Weeks, attorney for Broward County elections supervisor Brenda Snipes. Miami-Dade County attorney Susan Torres said, "We believe that this is the right outcome."

Howard Simon, executive director of the Florida ACLU, said he was disappointed.

"We're disappointed when anybody's right to vote is denied, whether or not the vote has any impact on the election whatsoever," he said. "Basically, the county supervisors have gotten away with some negligence here."

After receiving complaints about undelivered ballots, Broward County ped off 9,000 absentee ballots at a U.S. Postal Service distribution center on the Saturday before Election Day, which meant they would not be delivered until the eve of the election. Voters were told they could return ballots by overnight mail at county expense.

Palm Beach County, which was not covered by the lawsuit, put more than 5,500 absentee ballots in the mail the same weekend.

A University of Central Florida student complained that he received his absentee ballot from Miami-Dade County on Election Day. A Miami-Dade memo noted problems with the vendor hired for absentee mailings Oct. 27.

State law requires absentee ballots to be returned to election offices by the time polls close. Domestic ballots received afterward are not counted. Foreign absentees are granted an extra 10 days by state law.

The judge rejected emergency relief, but the lawsuit stays alive for trial on a request to apply the late-counting rule used for foreign absentees to domestic ballots.

"The state of Florida's legitimate state interests in requiring domestic absentee voters to return their ballots by 7 p.m. on Election Day justify the slight restrictions imposed on the rights of domestic absentee voters to vote," Gold found.

The volume of absentees in this year's election posed a problem in itself. Gov. Jeb Bush offered additional counting machines to Miami-Dade when it looked like it would have trouble counting its absentees in time to report results.

The judge looked at the U.S. Supreme Court reasoning in its decision cutting off Florida's manual recount and handing the 2000 election to President Bush. The nation's high court ruled at that time that the state could not "value one person's vote over that of another."

The request covering only two of Florida's 67 counties would "result in the very granting of greater voting strength to one group over another," violating the one man-one vote principle, Gold wrote. The outcome would be unconstitutional "unequal treatment."

The suit initially extended to Secretary of State Glenda Hood, but the judge noted the ACLU's decision to her as a defendant and limit the lawsuit to two counties "would ensure the unequal application of the law to domestic absentee ballots