Judge Sets `Tough Standard' for Democrats in Trial (Update2)
By James Rowley
Tallahassee, Florida, Dec. 6 (Bloomberg) -- A Florida judge hearing a lawsuit challenging thousands of absentee ballots set a ``tough standard'' for Democrats to prove their case, an election- law expert said.
Leon County Circuit Judge Nikki Ann Clark said Democrats must show that Republicans undermined the ``sanctity'' of individual ballots by correcting or filling in voter-identification numbers on absentee ballot applications in Seminole County.
``The issue for the judge will be ``can tampering with the application process ever amount to interference with the sanctity of the ballot?'' said Floyd Feeney, who specializes in election law at the University of California at Davis law school.
Clark's remarks came as absentee-ballot application tampering cases involving two counties went to trial. Though Vice President Al Gore is not a party to the Seminole case or a similar one involving Martin County, a ruling to throw out ballots in either may deliver him a victory in Florida and put the Democrat in the White House.
The Seminole suit, brought by a Democratic activist, seeks to throw out all of the county's 15,000 absentee ballots. The Martin County suit seeks to invalidate 9,773 absentee ballots.
Tossing out all the absentee ballots in Seminole County would net Gore 4,800 votes; rejecting them in Martin County would net the vice president 2,815. A machine recount put Bush's lead at 930 votes. Selected hand recounts put his lead at 537 votes.
Gerald F. Richman, the lawyer for the Democratic activist pushing the Seminole County suit, said invalidating all 15,000 absentee ballots ``is the remedy under Florida law.'' Alternatively, he proposed invalidating ballots in proportion to the number of allegedly illegal applications -- more than 2,000.
Republican lawyer Daryl Bristow said the remedies sought by the Democrats are inappropriate.
``To punish 15,000 voters who had nothing to do with the issue complained of is improper, disparate treatment,'' Bristow said.
Disparate Treatment?
Clark said her analysis would focus on ``whether the addition or completion of voter registration identification numbers is sufficient to invalidate ballots.''
The judge would also consider ``whether the Democratic and Republican parties were treated differently'' to a degree that compromised the election's integrity, she said.
Harry Jacobs, the Democratic lawyer who filed the Seminole County lawsuit, claims election officials gave a Florida Republican Party official, Michael Leach, unprecedented access to their offices to add identification numbers to applications.
County election officials refused similar access to Democratic campaign workers seeking to correct absentee-ballot applications they had collected, Jacobs alleges.
Culling Through Ballots
Richman bolstered his client's claim that Republicans got preferential treatment by describing how Leach, for at least 15 days, sat in a warehouse culling through several thousand rejected absentee-ballot request forms.
Using a laptop computer, Leach looked up missing voter identification numbers and filled in by hand about 2,130 forms, according to court papers and testimony.
``You got a Republican party operative who has access to everything in the office because he is unsupervised,'' Richman said in his opening remarks. ``No one from any party had been allowed to come in and do what this gentlemen did.''
Richman sought to cast the Seminole County elections office as tainted by partisans. He called as a witness Dean Ray, a self- employed appliance repairman has lost races running as a Democrat for the Seminole County Commission and for city council and the mayor's office in Sanford, Florida.
Ray testified that Sandra Goard, Seminole County's elections supervisor, wouldn't let him access 125 rejected voter signature cards he gathered to waive his filing fees in the county commission race.
Remedy
Richman asked witness J. Bradford DeLong, a statistician, to recommend an alternative to throwing out all 15,000 absentee ballots.
DeLong, a former Treasury Department official and professor at University of California at Berkeley, said his analysis of exit polling data supported throwing out up to 1,709 absentee votes for Bush.
DeLong's testimony inspired cross-examination from four Republican lawyers. Under this questioning, DeLong said he had no data on absentee ballots to support his conclusion.
``Did you obtain exit-poll data from Seminole County?'' said Republican lawyer Terry Young.
``I couldn't find it,'' DeLong replied.
DeLong also said he had ``no reason to think'' that someone other than a voter filling in identification numbers on ballot applications would affect the ballots themselves.
Judge Clark set aside 2 1/2 hours for closing arguments tomorrow.
Computer Flaw
The two cases are rooted in a computer software flaw that affected the ballots of registered Republicans.
The Republican Party sent computerized absentee ballot applications to every registered Republican in Florida, according to the deposition of Todd Schnick, political director of the Republican Party of Florida.
The applications were filled out in advance for the voters, but in thousands of cases, the voter identification numbers were either missing or incorrect. Democrats sent out pre-printed absentee ballot requests without encountering computer problems.
The flawed applications first surfaced in Seminole County in mid-October, when local elections official Goard said she would reject them. A similar problem arose in Martin County.
In a separate development, the 11th U.S. Circuit Court of Appeals in Atlanta rejected Bush's bid to throw out hand recounts conducted in several Florida counties, finding that ``plaintiffs cannot demonstrate a threat of continuing irreparable harm.''
``It is wholly speculative as to whether the results of those recounts may eventually place Vice President Gore ahead,'' the 12- judge panel ruled.
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