DECISION 2000 / AMERICA WAITS Recusal in Seminole Supported
SCOTT MARTELLE
 
11/26/2000
Los Angeles Times
Home Edition
Page A-18
Copyright 2000 / The Times Mirror Company

Two legal experts said Saturday that a Seminole County judge should withdraw from hearing a lawsuit challenging 17,000 absentee ballots key to deciding the presidential election in Florida.

At issue are revelations that a worker for Circuit Judge Debra Nelson's election campaign this summer had entered voter identification numbers on absentee ballot applications that the campaign sent to individual voters.

Similar acts by two Republican activists lie at the heart of a lawsuit by Harry Jacobs, a Democrat and local personal injury lawyer, against Seminole County's supervisor of elections, Sandy Goard.

Jacobs is asking that all 17,000 of the county's absentee ballots be thrown out because Goard allowed the Republicans, working out of her office, to correct 4,700 Republican absentee ballot requests she had already rejected. The two Republicans spent 10 days filling in missing voter-identification numbers, and the ballot requests were then accepted.

The lawsuit is set to go to trial in Nelson's courtroom Wednesday.

"She should not sit on the case if her campaign was engaged in similar conduct," said Steven Lubet, director of the Program on Advocacy and Professionalism at Northwestern University School of Law. "She would be ruling on the propriety of efforts she herself had made."

Lawsuit Could Be Key to Victory

The case could be crucial to determining who gets Florida's 25 electoral votes, and thus the presidency.

Of the 17,000 absentee ballots returned, 10,006 went to the Republican candidate, Texas Gov. George W. Bush, and 5,209 to his Democratic rival, Vice President Al Gore. If those ballots are thrown out, Gore could take the lead.

Neither Nelson nor Goard's lawyer could be reached Saturday for comment. Nelson earlier had said that she was unaware of the campaign worker's actions.

However, one legal expert said whether Nelson knew what her campaign worker had done is irrelevant under an ethics system in which public perception of a conflict of interest can matter more than actual conflict.

Monroe H. Freedman, the Howard Lichtenstein distinguished professor of legal ethics at Hofstra University School of Law, said court rulings have established that if someone can reasonably question a judge's impartiality, then the judge should step aside from the case.

"It's a very broad standard," Freedman said.

Freedman said a 1988 Supreme Court decision in Liljeberg vs. Health Services laid the groundwork for judges confronted with possible conflicts.

Before that 1988 ruling, he said, judges had wide discretion over whether to remove themselves under a system that encouraged them to find ways to remain on a case. But the decision flipped that over, directing judges to recuse themselves if their role in a case could erode public confidence in the impartiality of the judiciary.

Concerns Over Possible Conflict of Interest

Since then, federal codes and American Bar Assn. guidelines have required that a judge recuse herself without awaiting a request from others.

"It's self-executing," Freedman said. "A judge is not supposed to wait to be asked. . . . There's no doubt in my mind she should recuse herself."

Gerald Richman, the attorney for Jacobs, said he would decide today whether to push the issue and ask Nelson to withdraw.

"We're not certain what we're going to do," Richman said, adding that the possible conflict of interest worries him. "On the other hand, we have a judge with a good reputation for fairness . . . and a firm trial date. And I'm concerned about losing the trial date."

Richman said he also wondered whether the subtle difference between the cases would be enough to remove doubt over Nelson's impartiality. In the pending lawsuit, Republican activists altered ballot requests already received and rejected. In Nelson's case, the campaign worker filled in the voter identification numbers before the requests were mailed out to the voters, who then returned them to receive ballots.

"Still, nobody is supposed to be filling in anything but the elector," Richman said.

In Seminole County, where the Republican elections chief allowed Republican Party workers to correct thousands of flawed absentee ballot applications, new details of the incident have emerged.

Sandra Goard, the supervisor of elections, has been sued by a local Democratic lawyer, who accused her of breaking election law when she let a Republican Party worker use her offices for as long as 10 days to fix the absentee forms.

Ms. Goard, in interviews, had described the area the party worker used as a warehouse. But in depositions Wednesday she said that the room was full of active computer terminals linked to her elections database, and that the Republican Party worker was joined by a second man she could not identify. Both men were allowed to use the room unsupervised, she said.

Gov. George W. Bush gained more than 10,000 absentee votes in heavily Republican Seminole County, compared with about 5,200 for Vice President Al Gore, and the lawsuit is seeking to have all the absentee votes thrown out. Mr. Gore could win Florida, and thus the presidential race, if the lawsuit is successful.

Lawyers for the elections supervisor and the state Republican Party, which also was sued, have said they did nothing wrong. They also stress that only absentee applications, and not ballots, were involved.

The absentee -vote issue arose after the Republican Party blanketed the state with applications for absentee ballots it sent to registered Republicans. The Democrats did the same for its supporters, but the Republicans misprinted many of its forms with stray numerals instead of the voter's identification number.

Florida voter-fraud law places strict rules on how absentee ballots can be obtained, and in 1998 the state elections office ruled that while it was fine for political parties to mail out and even collect absentee applications, voters or their close relatives or guardian must provide their voter registration number. Both parties interpret the law as allowing them to supply the data as a convenience, as long as the voters then sign and return the forms.

In Seminole County, Ms. Goard had rejected the flawed Republican applications as they poured into her office in the days before the election, but then allowed the Republican Party to correct and resubmit the forms without the voters' consent.

Ms. Goard, in her depositions, said a Republican worker, Michael Leach, had brought his own laptop computer with which to add the missing voter identification numbers. She said the room he had used served as her telephone bank and contained 18 terminals linked to a mainframe computer that stored all of her voter elections records. She said that the terminals had password protections, but that Mr. Leach worked there unsupervised.

Ms. Goard said that the room also contained the desk of her election equipment technician, and that she did not know how often he was present She said Mr. Leach was joined for a while by another man she could not identify, and that she made no effort to check what they brought into or out of her offices.

''Do you know how long that person was there?'' Ms. Goard was asked.

''No,'' she replied, adding that she couldn't describe what he looked like or say what he had done. She said that he simply appeared one day with Mr. Leach.

''Did Mr. Leach ever inform you he was going to bring someone else?'' she was asked.

''Not that I recall,'' Ms. Goard replied.

Republican Party officials have said the second man was Ryan Mitchell, who they identified only as a party volunteer. Mr. Mitchell could not be reached for comment. Mr. Leach has not returned phone messages left for him at Republican headquarters in Tallahassee.

In yet another twist, the circuit judge set to hear the case on Wednesday, Debra Nelson, had her own absentee ballot mix-up during a September primary. Her campaign manager, Robert Lewis, a deputy chief clerk for the Seminole County courts, said Friday that Ms. Nelson's campaign had also left off the voter identification numbers on 60,000 absentee ballot forms that were mailed to potential supporters.

In this case, the 5,000 forms that voters returned were mailed directly to Ms. Nelson's campaign, where a volunteer spent two weeks adding the numbers, Mr. Lewis said. Noting that state law requires voters to supply those numbers, Mr. Lewis said of his decision to fix the forms after voters signed them: ''It does sound like a technicality, but whether it's a fatal error or not, you could argue it both ways.'' Ms. Nelson could not be reached for comment.

SANFORD -- The judge presiding over the presidential absentee ballot case in Seminole County had absentee ballot problems of her own in her campaign this summer.

A campaign worker said Friday that he filled in voter- identification numbers on about 3,000 absentee ballot requests that originated with the campaign of Circuit Judge Debra Nelson.

That is similar to what happened in the absentee ballot lawsuit before her.

In the lawsuit filed Nov. 17, two GOP operatives are accused of setting up shop in the Seminole County supervisor of elections' office and adding voter-ID numbers to about 4,700 absentee requests, salvaging them after Elections Supervisor Sandy Goard declared them invalid.

Most of the requests were from Republicans.

Longwood voter Harry Jacobs, a Democrat, has filed suit against Goard, saying what happened amounted to voter fraud. He is asking that all 15,000 of the county's absentee ballots be junked.

If Nelson agrees, that would mean a 5,000-vote swing in favor of Vice President Al Gore, enough to give him the election.

The difference between what happened in Nelson's campaign and what happened in Goard's office is location.

In Nelson's case, a campaign worker, James Daly III of Longwood, added the numbers while sitting at his dining-room table in Longwood and at a weekend home in Titusville. It was only after he had finished that the forms were delivered to the supervisor of elections.

In the other case, the changes were made at Goard's office.

Nelson, 46, disclosed within the first minute of the first hearing in the Jacobs case that she had used absentee ballots in her campaign. However, she did not say anything about a campaign worker writing in voter-ID numbers.

"I don't know anything about them," she said Friday.

Her campaign manager, Bob Lewis, said he did not tell her about the glitch because it wasn't important.

Lewis said the campaign sent out about 60,000 letters with absentee request forms attached. However, because of a computer error, none of the return cards included the voter-ID number.

Voters sent back about 3,000 absentee requests. The campaign collected them in a post office box. Daly then wrote in the numbers, he said.

Under the law, only a voter, a member of the immediate family or guardian may request an absentee ballot.

Adding the number "I don't believe violated the spirit of the law at all," Lewis said of the Nelson campaign.

News of Nelson's absentee ballot problems caught attorneys in the Jacobs case off guard. Some were uncertain what to do. None, however, said they would ask Nelson to recuse herself.

Gerald Richman, Jacobs' attorney, said Nelson has been fair so far, has a reputation for being fair, and because he doesn't want the trial delayed, probably won't ask her to hand the case to another judge.

Donna McIntosh, Goard's attorney, said the warning Nelson gave at the first hearing was notice enough.

"I don't think it's a problem," she said.

Nelson also disclosed at that hearing that Jacobs had donated $500 to her campaign and that Lewis is a member of the GOP executive committee in Seminole .

After those disclosures, Nelson did a quick survey of attorneys involved in the case and none said he wanted her to step down.

Nelson won her election Sept. 5 by a nearly 3-to-1 ratio over insurance defense attorney Sylvia "Sly" Grunor.

Nelson was first appointed to the bench in May 1999 by Gov. Jeb Bush

Associated Press

Saturday November 25 2:22 PM ET
Judge Had Absentee-Form Problem Too

SANFORD, Fla. (AP) - The Seminole County judge presiding over a Democratic activist's lawsuit to dismiss 4,700 presidential absentee ballots had absentee ballot problems of her own in her campaign this summer.

A campaign worker says he filled in voter-identification numbers on about 3,000 absentee ballot requests that originated with the campaign of Circuit Judge Debra Nelson.

That is similar to what allegedly happened in the absentee ballot dispute that is the subject of the lawsuit before her.

In the lawsuit Harry Jacobs filed Nov. 17, two GOP operatives are accused of altering about 4,700 absentee requests by adding voter-ID numbers, salvaging them after Elections Supervisor Sandy Goard declared them invalid.

Most of the requests were from Republicans.

Jacobs is asking that those ballots be thrown out.

If Nelson agrees, that would mean a 5,000-vote swing in favor of Vice President Al Gore (news - web sites), enough to give him the election.

The difference between what happened in Nelson's campaign and the presidential election is location.

In Nelson's case, a campaign worker, James Daly III, of Longwood, added the numbers while sitting at his dining-room table and at a weekend home in Titusville. It was only after he finished were the forms delivered to the supervisor of elections.

In the presidential election, the Republicans allegedly made changes at Goard's office.

Nelson, 46, disclosed within the first minute of the first hearing in the Jacobs case that she had used absentee ballots in her campaign. However, she did not say anything about a campaign worker writing in voter-identification numbers.

``I don't know anything about them,'' she said Friday.

Her campaign manager, Bob Lewis, said he did not tell her about the glitch because it wasn't important.

Under the law, only a voter, a member of the immediate family or guardian may request an absentee ballot.

Lewis said he did not believe that adding the number ``violated the spirit of the law at all.''

News of Nelson's absentee ballot problems caught attorneys in the Jacobs case off guard, but none said they would ask Nelson to recuse herself.

Nelson, who was first appointed to the bench in May 1999 by Gov. Jeb Bush, won her election Sept. 5 by a nearly 3-to-1 ratio over insurance defense attorney Sylvia ``Sly'' Grunor.

Good Clean Cheating and Dirty Pool
BY RICHARD STENGEL

November 26, 2000

Time.com

Here in America, we make a firm distinction between good old honest cheating and dirty cheating. Honest cheating is the kind of all-American swindling we're comfortable with: Mayor Richard Daley rustling up dead men's votes for John Kennedy; Lyndon Johnson twisting arms and paying out ready cash to win his first Senate election. That's good old-fashioned cheating, the kind that uses money and muscle.

What Americans seem to regard as dirty cheating is clever, high-paid lawyers going into the courts to try to actually force judges to rule on what's legal and what's not, or even to make a little law themselves. Now, that's not fair. We're comfortable with buying or wrestling votes, or busing in mobs of protesters, but trying to use the courts to get people to abide by statutes, or to clear up murky ones, well, that's dirty pool.

Right now, there is a vague presumption among Americans that Gore is the down-and-dirty cheater and Bush is the honest cheater. Bush is using tactics we all are used to, sabre-rattling press conferences and thuggish spokespeople and vague threats to do something really nasty.

It looks like Gore is the one doing the disputing and Bush is doing the Gary Cooper thing of being strong and silent. In fact, of course, it was Bush who first went to the federal courts and first to the U.S. Supreme Court. For Bush, who has made a mantra of local control, this is like trashing the big bully behind his back and then enlisting his services when you get in a brawl. You'll notice that the Bush campaign called the Florida Supreme Court an "instrument of the Democratic party" when it agreed to let the manual count continue, but were silent about the court's bias when it rejected Gore's emergency appeal to force Miami-Dade to resume its recount.

People vaguely feel Gore is cheating because they vaguely think George Bush has already won. And why shouldn't they think that? Gore did, too. The networks told everyone that "fact" on the morning of November 8, and Gore nearly conceded as a result. I figure that if you voted for Tom Dewey in 1948 and picked up your morning paper saying your guy had won, you probably thought Harry Truman subsequently stole the whole thing.

There's been a general sense that Bush has been "out-lawyered." The implication is that out-lawyering is downright un-American. Issues shouldn't be decided by the craftiest lawyers but on their merits. Hip hip hooray. But I've found that people who lose cases on their merits often complain that they've been "out-lawyered." I'm growing a little weary of the Bush campaign's constant cry that Gore's lawyers changed the rules in the middle of the game. Fine, but if the rules are wrong or don't reflect the will of the voter, don't you want to change them? A foolish consistency remains the hobgoblin of little minds. Especially those on television.

There's a perception out there that lawyers and courts work to subvert the "will of the people." And, of course, sometimes they do. But did lawyers and courts work to thwart the "will of the people" during the elimination of the poll tax or in allowing the integration of Little Rock High School?

And why Americans don't regard the electoral college itself as an example of legal pettifoggery — dirty cheating, if you will — by a handful of men in wigs in Philadelphia in 1787, I'll never know.

Seminole faces charge of double voting

By Rene Stutzman and Kevin Connolly
of the Sentinel Staff

Published in The Orlando Sentinel on November 23, 2000

"Do we have any evidence of that? Absolutely none."
-- Judge John Sloop
chairman of canvassing board

SANFORD -- New accusations of voting irregularities, including possible double voting, emerged Wednesday in Seminole County, as attorneys battling to throw out all 15,000 of the county`s absentee ballots began an investigation.

The new allegations, like the old, center on absentee ballots.

Gerald Richman, an attorney challenging presidential returns here, said it is possible some people voted twice -- once by absentee and a second time on Election Day.

A statistical analysis of returns from Precinct 28 in Longwood were "grossly" abnormal, he said.

After the Seminole County Canvassing Board finished recounting ballots countywide, George W. Bush made a net gain of 98 votes. Precinct 28 accounted for 88 of them.

"I think it means there were improprieties or double voting or something else," Richman said.

Sandy Goard, supervisor of elections, was not available for comment Wednesday. However, her attorney, Donna McIntosh, said there is no evidence to support any of those allegations.

She said poll workers had a roster of registered voters, and it showed each person who had already voted absentee. There was no evidence anyone tried to vote a second time Nov. 7.

Said County Judge John Sloop, chairman of the county`s canvassing board, "Do we have any evidence of that? Absolutely none."

The new allegations popped up after Goard began giving a sworn statement to attorneys about the issue at the heart of the vote dispute here.

Longwood Democrat Harry Jacobs is suing Goard, accusing her of colluding with the GOP in a get-out-the-vote campaign. If he prevails, all 15,000 absentee ballots cast in Seminole will be thrown out, enough to swing the election to Vice President Al Gore.

Goard has admitted allowing two Republican operatives to add missing voter-identification numbers to 4,700 absentee ballot requests, forms she had earlier disallowed as incomplete. The requests were from mostly GOP voters.

That suit, set for trial Wednesday, accuses the GOP of voter fraud and Goard of collusion.

Canvassing board attorney Jim Hattaway says Goard did nothing wrong.

At a hearing Wednesday, Richman, who represents Jacobs, asked a judge to order Goard to surrender more records.

Among the things he requested -- and won -- was access to the Election Day book signed by voters in Precinct 28 when they got their ballots. Richman said he wanted to compare them with other signatures on file with the supervisor of elections office.

He also asked for access to Goard`s computer system, saying he wanted to check whether it showed more people had voted absentee than had requested absentee ballots.

Circuit Judge Debra Nelson ordered Goard to surrender a list of names of everyone who requested absentee ballots as well as those to whom the office sent one. She then imposed a gag order prohibiting the disclosure of those names.

Posted Nov 22 2000 9:00PM

By MIKE BRANOM, Associated Press Writer

SANFORD, Fla. (AP) - Accusing Republicans of illegally tampering with thousands of absentee ballot applications, Democrats are asking a Seminole County court to throw out the disputed ballots, a move that would shift 4,700 votes away from George W. Bush (news - web sites).

Bush received 10,006 absentee votes in Seminole, compared to 5,209 for Al Gore (news - web sites).

The lawsuit was filed Nov. 17 by Democratic attorney Harry Jacobs, who said all absentee ballots in the county should be thrown out if the disputed absentee votes can't be identified and dismissed.

The suit was headed to court Monday, when Republicans will ask to have the case dismissed.

Florida GOP Vice Chairman Jim Stelling, who has been following the lawsuit, said: ``I'd be lying if I said I wasn't nervous.'' Stelling, also the county Republican chairman, declined to reveal anything about the GOP's grounds for requesting the dismissal.

The suit follows efforts by parties to get absentee ballots into the hands of voters. The GOP mailed tens of thousands of absentee requests to registered Republicans, telling them to sign the form and return it to their local supervisor of elections.

Seminole County elections chief Sandra Goard, a Republican, rejected requests because voters omitted their identification numbers. According to the lawsuit, she then accepted some 4,700 applications after allowing two GOP workers to add the ID numbers.

Goard said the GOP asked whether a staff member could add the IDs and she agreed. Two Republican staffers spent days at the county elections office with a laptop computer, matching ballot requests to names and writing the identification numbers on the requests.

``The Republican Party asked if they could resolve that situation,'' Goard said. ``They had an individual who had a database. We provided a chair - that's all.''

``Where we have misconduct, wrongdoing sufficient to influence the outcome of an election, then the Florida courts have decided that this is even more important than the individual ballot submitted by an absentee voter,'' Jacobs said.

State law allows only voters, members of their immediate family or their legal guardians to request absentee ballots. It does not specifically address the handling of absentee requests.

What happened in Seminole County appears to be illegal, said Joseph Little, professor of law at the Levin College of Law at the University of Florida. However, he said dismissing 15,000 absentee ballots for a ``technical violation'' would be overkill.

``I don't think there is any wrongdoing on the part of the people voting,'' he said.

SANFORD, Fla. (Reuters) - A lawsuit seeking to throw out 15,000 absentee ballots cast in Florida's Seminole County was transferred on Monday to the state court in Tallahassee handling other challenges in Florida's presidential election, a court official said.

Throwing out those votes in Seminole could swing the state from Republican George W. Bush (news - web sites) to Democrat Al Gore (news - web sites).

The case had been set to go to trial on Wednesday in the Seminole County Circuit Court in east-central Florida. It was moved to the Leon County Circuit Court in the state capital of Tallahassee by agreement of all parties involved, Deputy Court Administrator Kate Leach said.

Bush was certified by state election officials on Sunday as the winner in Florida by 537 votes, giving him enough electoral votes to claim the presidency if the results withstand a flurry of legal challenges.

Bush won 10,006 absentee votes in Seminole County to Gore's 5,209.

A Seminole County Democrat, Harry Jacobs, sued on Nov. 17 to disqualify all of the county's absentee ballots, something that could throw Florida to Gore.

Jacobs alleged that the county election supervisor, a Republican, broke the law by allowing Republican party volunteers to fill in missing data on about 4,700 absentee ballot requests that might otherwise would have been rejected as incomplete.

Applicants were supposed to list their voter identification numbers on the ballot request forms, but many did not and the Republican Party workers filled them in at the election supervisor's office, Jacobs' lawsuit alleged.

Florida's Republican Party and several absentee voters joined the lawsuit and asked Seminole County Circuit Court Judge Debra Nelson to dismiss it. Jacobs asked that it be reassigned to another judge.

Nelson held a brief hearing to discuss those requests on Monday and during a recess ``both sides got together and agreed for the entire case to be moved to Leon County,'' Leach said.

The court in the state capital often hears complaints contesting Florida election results, even if they arise from other judicial districts.

Gore's lawyers filed documents in that court on Monday contesting presidential elections in three other Florida counties, Miami-Dade, Nassau and Palm Beach, saying thousands of votes there were not counted and could have changed the outcome of the election in Gore's favor.

SANFORD -- Seminole County's supervisor of elections, who is under fire for allowing Republican operatives to work out of her office, has no manual that spells out office procedures and no training program for new employees.

Her staff's computers are not networked, and the 23-year employee has sent e-mail from her office only three times.

That information comes from a sworn statement that the supervisor, Sandy Goard , made last week to attorneys who are suing her over the handling of absentee ballots from the Nov. 7 election.

Goard referred questions about office management to her attorney, Donna McIntosh, and her second-in-command, Dennis Joyner. On Sunday, they described the office as a small operation where Goard is more comfortable talking directly to her 13 employees rather than issuing manuals, memos or e-mail.

Goard receives a good bit of e-mail, McIntosh said. She simply prefers to respond by sending notes written on paper.

Only four people in the office have personal computers, Joyner said, and three of them sit in adjoining offices, not 15 feet apart, Joyner said. They prefer to talk directly to each other.

As for having no formal training program for new employees, Joyner said the office typically has a new employee work directly with an experienced one for three to five weeks. It's more beneficial, Joyner said, "to get hands-on training with an individual who's done it."

Goard 's questioning by attorneys is to continue today. Meanwhile, her attorney and the Florida Republican Party are scheduled to ask Circuit Judge Debra S. Nelson to throw out the suit that's behind it all.

Longwood Democrat Harry Jacobs sued Goard on Nov. 17, accusing her of opening her office to two GOP operatives. Both sides agree the two Republicans wrote missing voter identification numbers on about 4,700 absentee -ballot request forms -- forms that had been sent out by the Republican Party -- so that voters would get their ballots. Goard had declared the ballot requests invalid because of the missing information.

The suit accuses the two GOP operatives of voter fraud, a felony, and Goard of collusion.

Jacobs is asking that all 15,000 Seminole absentee ballots be thrown out. If that happens, Vice President Al Gore would see a 5,000- vote swing in his favor, enough to put him into the White House.

Florida GOP attorney Ken Wright said none of them did anything wrong. What's more, Wright insists that the lawsuit is moot now that Florida Secretary of State Katherine Harris has certified the presidential vote and declared Texas Gov. George W. Bush the winner in Florida. If not thrown out, the lawsuit should at least be transferred to Tallahassee, Wright said.

Neither Jacobs nor any other voter has a right to challenge the outcome of the election, he said.

"I think the only person who can bring suit is Al Gore," Wright said.

Last Monday, the judge ruled that Jacobs did have the right to sue.

Election 2000:
A Lawsuit in Florida Could Be a Sleeper
---
Changes to Absentee Ballots
Form Basis of Challenge
With Possible Precedent
By Jess Bravin
 
11/27/2000
The Wall Street Journal
Page A22
(Copyright (c) 2000, Dow Jones & Company, Inc.)

All eyes will be on the Supreme Court in Washington this week, but the sleeper challenge to George W. Bush's slim lead in the Sunshine State could well emerge on North Park Avenue in Sanford, Fla.

A lawsuit filed there in the Seminole County Courthouse could yield a gain of 4,797 votes for Al Gore -- far more than the Democrat needs to overtake Mr. Bush's lead in Florida, even if the Supreme Court disqualifies manual recounts from Broward and Palm Beach counties.

The lawsuit, slated to go before a state circuit judge on Wednesday, alleges that Seminole County's Republican elections supervisor "corrupted the integrity" of the Nov. 7 vote, by letting GOP operatives correct absentee -ballot applications that had been rejected because they lacked the required voter identification numbers.

The suit was brought and financed by Democratic voter Harry Jacobs, a personal-injury lawyer and former Altamonte Springs city commissioner. Because ballots that have been cast are anonymous, those resulting from "defective" applications can't be distinguished from others. So Mr. Jacobs wants a severe remedy: disqualification of all 15,000 Seminole absentee ballots, which broke for Mr. Bush by nearly 2 to 1.

Republicans say they will try today to get the Jacobs suit dismissed on procedural grounds. But even if that happens, the Gore campaign, which has been following the case closely, says the issues it raises may be included in the broader election-contest suit the Democrats plan to file today in Tallahassee.

Seminole Elections Supervisor Sandra Goard has denied wrongdoing, but declined to comment more specifically. Jim Stelling, vice chairman of the Florida Republican Party and head of the Seminole County GOP, calls the suit a "desperate" attempt to overthrow the election.

Elsewhere in Florida, Mr. Stelling says, elections supervisors processed applications without voter-ID numbers because "the will of the voter" was paramount. Ms. Goard, on the other hand, was a "stickler" for the law and insisted that each application include the numbers. Mr. Stelling sees no harm in her allowing GOP workers to correct applications after they already had been signed by voters.

The suit was filed under Florida law, but Democratic lawyers say it has echoes of an Alabama election that ultimately was resolved through a federal lawsuit.

"One of the greatest ironies," says David Boies, Mr. Gore's top lawyer in Florida, is that the Republicans relied heavily on the case of Roe vs. Alabama in trying to persuade federal judges to stop manual recounts in Broward and Palm Beach counties on constitutional grounds. That argument failed -- the U.S. Supreme Court accepted the case on narrower terms -- but Mr. Boies says the facts of Roe vs. Alabama may prove "extremely helpful" to the Democrats in Seminole County.

The Alabama case also involved the technical rules of absentee voting. Alabama law required that absentee voters have their ballot envelopes notarized or signed by two witnesses in order to be counted. During the election for chief justice of the Alabama Supreme Court in 1994, absentee ballots that arrived in elections offices without the signatures weren't opened or counted -- except in Washington County. Election officials there announced plans to ignore the requirement and count 2,000 improperly cast ballots that were expected to give the margin of victory to the Democratic incumbent, Ernest C. "Sonny" Hornsby. The Alabama Supreme Court later approved that action.

A voter sued in federal court, claiming that elections officials violated the Constitution by discriminating against would-be voters who weren't aware that they didn't have to comply with the absentee -ballot rules; the suit argued they might have cast ballots had they known that.

The Atlanta-based 11th U.S. Circuit Court of Appeals, whose jurisdiction includes Florida, agreed. It ordered the disputed ballots thrown out, and 11 months after the election, Republican Perry O. Hooper Sr. won by 262 votes.

In Roe vs. Alabama, "there really were potential voters who were discouraged from casting ballots because they found the requirements onerous," says Mark Brown, a law professor at Stetson University in St. Petersburg, Fla., who studies ballot-access procedures. He suggests that Democrats have an argument that some Florida voters also were discriminated against: those who didn't submit absentee -ballot applications because they didn't know their voter numbers, or who submitted incomplete applications that weren't corrected by Republican operatives.

Orlando lawyer Ken W. Wright, who represents the Florida GOP in the Seminole case, says there is no comparison. "This case is not about any irregularities with the ballot," he says, just with the ballot application.

In Florida, where a state judge overturned the 1997 Miami mayoral election after widespread charges of absentee -ballot fraud -- and threw out all 5,000 absentee ballots -- there are stiff requirements for getting such ballots.

Earlier this year, as part of an effort to increase absentee -voter turnout, the Florida Republican Party hired a mail vendor to send completed application forms to GOP voters for their signatures. Mr. Stelling says a "software glitch" left off the required ID numbers on many of the forms.

Applications from Seminole County voters who mailed the forms without adding the numbers were tossed in a reject box. Mr. Stelling says a Republican voter discovered the problem when he called the elections office to ask why he hadn't received a ballot. The voter notified party headquarters, which in mid-October telephoned Ms. Goard to ask if GOP workers could come over to fill in the missing numbers on the Republican applications.

Ms. Goard testified in a deposition on Wednesday that she wouldn't let the workers take forms from her office, but allowed them to add the information there. For about two weeks, one or two GOP workers were given unsupervised access to a nonpublic elections-office room where the applications were kept. Ms. Goard testified that in the 23 years she has overseen Seminole 's election records, she knew of no other occasion where such activity had been allowed.

Democrat Tests Seminole 's Absentee Vote
George Lardner Jr.
 
11/28/2000
The Washington Post
FINAL
Page A13
Copyright 2000, The Washington Post Co. All Rights Reserved

SANFORD, Fla., Nov. 27 -- Lawyers for Republican election officials today assailed a lawsuit that could cost Texas Gov. George W. Bush his margin of victory in Florida--and then some--by invalidating all the absentee ballots cast Nov. 7 in Seminole County.

Absentee voters in this suburban GOP stronghold north of Orlando gave Bush an edge of almost 5,000 votes over Vice President Gore. Both parties encouraged absentee balloting across the state, but in Seminole County, it was no contest. Bush drew 10,006 absentee votes, while Gore collected 5,209.

Secretary of State Katherine Harris certified Sunday that Bush had won Florida's electoral votes, and the presidency, by 537 votes. The litigation filed here Nov. 17 seeks to toss out almost nine times that many ballots for Bush.

Democrat Harry N. Jacobs, a resident of Longwood, Fla., charged in the suit that Republican supervisor of elections Sandra Goard "corrupted the integrity of the electoral process in Seminole County" by letting GOP workers sit in her office for about 10 days in October so they could "alter" application forms for absentee ballots from Republicans that had been rejected because they did not contain the required voter identification numbers.

Goard, the lawsuit said, "denied Democratic candidates similar access or support." Campaign managers for two Democratic candidates for the state Legislature said in separate affidavits that Goard told them in August that she would not accept absentee ballot requests without voter ID numbers. One of the managers said he asked Goard how he could get the voter ID numbers, and she replied that her office "does not give [them] out."

Lawyers for Goard contend she was merely making public records available to the GOP workers, as required by law, and that they only added information to the absentee forms, rather than "altering" them.

Speaking for Goard and the canvassing board, Orlando lawyer Terry C. Young said Goard had been more "persnickety" than other supervisors of elections in the state by insisting on the voter ID numbers. He said he understood that her counterparts in Orlando (Orange County) and Tallahassee (Leon County) had waived that requirement as long as the forms contained other key information, such as the voter's signature and the last four digits of his or her Social Security number.

What the Republican workers did with the absentee ballot request forms, Young argued, was no more than what Democrats had done before mailing out request forms to Democratic voters. While the Democrats provided voter ID numbers on the forms they printed up, Young said, a "software" glitch omitted that information from 80 percent of the forms the GOP mailed out.

Jacobs has estimated that Republican workers added the voter identification numbers to about 4,700 absentee ballot request forms. Goard then accepted the revised applications and mailed out the ballots. Jacobs says this violated a 1998 law enacted by a GOP-controlled Legislature to counter widespread ballot fraud in Miami. Under that law, only the voter, an immediate family member or legal guardian can fill out an application for an absentee ballot.

The lawsuit charged that Goard's "misconduct and collusion" with Republican workers tainted the election, and it requested that the courts throw out all 15,000 absentee ballots, since it is impossible to identify the ones that resulted from "altered" request forms.

The "illegal votes cast by absentee ballot in Seminole County," the lawsuit declared, "are sufficient to change the outcome of the election in the state of Florida for President of the United States, or, at a minimum, place the result . . . in serious doubt." Bush, running mate Richard B. Cheney and the Florida Republican Party were named as defendants.

The Republicans contend that it would be "absurd" to throw out all 15,000 absentee ballots when nothing has been alleged other than "substantial compliance" with voting laws.

"There is nothing wrong, nothing felonious, no fraud, no corruption in supplying that little piece of information," Young told reporters. "The Democrats say they want every vote counted but, in this case, they want 15,000 votes uncounted."

Goard, Young said, did no more than give the Republicans, who came equipped with their own database of voter ID numbers, a chair to sit in. He said she would have done the same if the Democrats had requested assistance. Asked about the Democratic affidavits contradicting that claim, Young, who just entered the case in place of another lawyer, said he had not seen them.

The case had been set for a full-dress hearing Wednesday before Circuit Judge Debra Nelson, but Goard and the canvassing board won a preliminary skirmish this morning by getting a transfer of the case to Tallahassee and agreement that a new complaint would be filed there. Young said Florida law does not permit a statewide election result to be contested on a county-by-county basis. Rather, the law requires any such complaints to be filed in Leon County, where the state capital is located.

He also said the complaint had been filed prematurely since a statewide election can be challenged only after certification of the results. The plaintiffs agreed to file fresh litigation in Tallahassee this week.

A Sleeper Case in Seminole County
By MIKE SCHNEIDER
 
11/29/2000
AP Online
Copyright 2000 The Associated Press. All Rights Reserved.

SANFORD, Fla. (AP) - Nearly a month before Election Day, the elections supervisor in Seminole County allowed a fellow Republican to spend more than a week correcting thousands of absentee ballot applications she had set aside because of a computer error.

The decision by Supervisor Sandra Goard and the unsupervised work done by Michael Leach of the Florida Republican Party are at the heart of a lawsuit that would, if successful, give Democrat Al Gore nearly 4,800 additional votes - more than enough to claim Florida and the presidency.

During a hearing Tuesday in Tallahassee, Circuit Court Judge Nikki Clark refused to consolidate the case with an overall election contest, and instead set up a fast-paced schedule scheduled to begin Wednesday.

Gore attorneys have kept their distance from the lawsuit because they are arguing in other cases that every vote should count. The suit in this wealthy, fast-growing suburban county northeast of Orlando instead asks that thousands of ballots be thrown out.

Behind the problem are the thousands of absentee ballot applications mailed out statewide by Florida's political parties. A printing glitch in a printer used by Republicans stripped the required voter-identification number from about 80 percent of the ballot applications the party mailed out in Seminole County.

According to the lawsuit, Goard 's staffers set aside the applications missing voter IDs so they could destroyed later. But sometime in October, a GOP official called and asked if someone could come in and add the voter IDs to the applications.

Goard agreed. Leach showed up at her office shortly afterward with a laptop computer, added the numbers and turned them in. The applications were processed and absentee ballots were mailed out.

Democrats are outraged, saying Goard had never before allowed anyone outside her office to add voter IDs. A state law passed after Miami's fraudulent 1997 mayoral race says only the voter, an immediate family member or legal guardian may fill out an absentee ballot request.

Democrats also say they were never notified about the arrangement and weren't given the same opportunity. There was no indication any ballot applications sent out by Democrats were missing voter ID numbers.

"The Republicans call this a hypertechnicality," said Bob Poe, chairman of the Florida Democratic Party. "This is not a hypertechnicality. This is about any party of Republicans or Democrats going into an election supervisor's office, which is supposed to be a neutral zone, and tampering with the files."

The lawsuit asks that all 15,000 absentee ballots cast in Seminole County be thrown out because there is no way to tell which ones involved applications handled by Leach. GOP candidate George W. Bush received 4,797 more absentee ballots than Gore in the predominantly Republican county. If the lawsuit is successful, the vice president would easily surpass Bush's 537-vote margin in the overall state tally.

Republicans and Goard 's attorneys say they didn't break the law.

"Any person can assist the voter in filling it out and can present the application to the supervisor's office," said Barry Richard, an attorney for Seminole County.

Goard 's office referred calls to her attorney. Her assistant supervisor, Dennis Joyner, said he couldn't comment on the specifics of the case but denied any wrongdoing.

"We were in the position of trying to make sure as many people as possible received a ballot," Joyner said.

In a deposition, Goard said Leach provided no identification to prove who he was and neither did a second worker, identified in the lawsuit as Ryan Mitchell. Reached at his office at state GOP headquarters in Tallahassee, Leach declined to comment. Mitchell could not be located.

The room where the work was done contained 18 computers linked to a database containing voter registration records, boxes containing materials from previous elections and the desk and computer of Michael Masciani, the elections equipment technician.

Goard said it would have been impossible for the GOP workers to access the database without a password, so there was no need for a worker from her office to keep an eye on them.

"We provided them with a chair. They sat at a table with their laptop computer. They took the card and placed the voter registration number on that document," she said in a deposition. "I did not station an individual to be there at every moment that he was there."

In Martin County, election supervisor Peggy Robbins acknowledged Tuesday she also gave permission for a Republican Party official to remove "several hundred" incomplete absentee ballot applications sent from Republican voters from her office. The official returned them filled out with corrected voter identification numbers and other information, said Robbins, a Republican.

In another development Tuesday, state officials confirmed that Judge Clark, was among eight judges nominated in September for a vacancy on the 1st District Court of Appeal. Gov. Jeb Bush selected Joseph Lewis, Jr. Clark and Lewis were the only blacks nominated for the vacancy in the only appeals court in the state without a minority judge.

SANFORD, Fla. -- The supervisor of elections in Seminole County has conceded that she allowed two Republican Party operatives to correct 4,700 Republican absentee ballot applications so they would not be thrown out, court documents revealed Monday.

A 132-page deposition taken of Elections Supervisor Sandra Goard paints a picture of an informal small-town voting operation with few security checks or paper trails--though the office, near Orlando, Fla., could play a key role in deciding the outcome of the presidential election.

In the deposition, Goard, an elected Republican who has held office since 1983, acknowledged that two representatives of the state Republican Party used a back room in her office for 10 days to correct the ballot applications.

Goard conceded that no one ever was allowed to correct applications in the past, and that her staff assisted the GOP representatives by sorting Republican applications from Democratic applications--something else that never had been done before.

According to the documents, Goard said her office didn't check the identification of one of the two men, and she told attorneys that she still has no idea who he is. The men were not supervised while they worked, she said.

"It's like putting two people in a bank vault, unsupervised, and saying: 'Don't touch anything,' " said Harry Jacobs, an Orlando-area attorney and a Democrat who has filed a lawsuit against Goard and other Republicans. "It's a very cozy relationship they had with the Republican Party."

The disclosures came through a lawsuit that, if successful, would throw out all of Seminole County's absentee ballots--at least 15,000.

About two-thirds of those ballots were cast for Texas Gov. George W. Bush, the GOP nominee. If they were thrown out--still a legal longshot--it would be more than enough to overcome Bush's minute lead in Florida and to hand the election to Democratic candidate Vice President Al Gore.

Printing Error on Postcards

The lawsuit, which could be one of Gore's best shots at winning the White House after a series of legal setbacks, was moved Monday from Seminole County to Tallahassee, Fla., the capital, after both sides agreed to the change.

Weeks before the election, realizing the Florida election would be close and pivotal to the presidential race, local leaders from both parties here sent postcards to voters. The cards offered a simple, pre-printed application for absentee ballots. All voters needed to do was sign the card and send it back, and they would receive a ballot in the mail.

But the Republican version of the postcard--sent to voters who were likely to vote for Bush if they responded--contained an error. A contractor had printed prospective voters' birth dates in a spot reserved for voter identification numbers, said Jamie Wilson, executive director of the Republican Party of Florida.

Under Florida law, that made the ballot applications invalid--unless they were corrected.

Republicans, realizing the mistake, called Goard in late October to ask if they could take the cards from her elections office to correct them. She refused, but when they asked if they could send representatives to her office, armed with laptop computers that contained voter identification numbers, she agreed. They corrected the 4,700 incomplete ballot applications before the end of October and mailed them out.

"You told them, as long as they came in with information from their database, they could fill the information in, correct?" asked Gerald F. Richman, a West Palm Beach attorney who is the lead lawyer for the Democrats, during the deposition. "Yes," Goard replied.

Though the ballot applications already had been rejected and placed in a warehouse, Goard's staff members fetched the Republican postcards out of storage and placed them in a separate box for the GOP representatives. More than 4,500 ballot applications were corrected and ballots were sent to those Republican voters. It is unclear how many of those absentee ballots actually were returned as votes.

Some Democratic ballot applications also apparently arrived without some of the required information, but they were thrown out and Democrats were not provided the same opportunity to make them comply, Democratic attorneys say.

Goard did not accept phone calls placed to her office Monday seeking comment. But Wilson said in an interview that "there was nothing wrong there."

"This was an agreement between the Republican Party of Florida and the supervisor to put the code" on the postcards, Wilson said. "There was just a printing error."

Ken Wright, a state Republican Party attorney, said the lawsuit is the height of hypocrisy. Gore is not a party to the suit, but Wright noted that Democrats are fighting for the inclusion of votes in Democratic strongholds such as Palm Beach County, but are fighting for votes to be thrown out in Seminole County, a Republican stronghold.

"Mr. Gore's fingerprints are all over this," Wright said. "The only reason he's not a party to the case is that he can't be speaking out of both sides of his mouth."

Wright said requiring voter identification numbers on absentee ballot applications is "hyper-technical."

Technical or not, it was an important piece of a get-tough election reform package approved by the state in the wake of Miami's infamous 1997 mayoral election. That election was tarnished by widespread fraud that eventually forced the removal of Miami Mayor Xavier Suarez from office.

The law says that only the voter, the voter's legal guardian or a family member--not a third party--can complete application forms for absentee ballots.

Goard acknowledged that law during her deposition.

"A representative of the Republican Party was the one who was going ahead and resubmitting [ballots] after having added information to those cards, without the knowledge of the Democratic Party, and without any provision of the statute that says they could do so. Isn't that correct?" Richman asked in the deposition.

"Yes," Goard said, over the objections of her lawyers.

Democratic attorneys say the actions of election officials in Seminole County raise troubling questions.

For example, the two men representing the Republican Party worked for more than a week in a room that also houses 18 computers that are linked to the election office's mainframe computer--its voting database.

GOP attorneys say that doesn't matter, because as far as anyone knows, the two men did not have the passwords to those computers.

No System of Checks and Balances

Lawyers challenging the presidential vote also point out that the elections office has no records confirming that the two men even corrected the absentee ballot applications with the right numbers.

And the attorneys raise the possibility that some Republicans in Seminole County voted twice, once by absentee and a second time in person.

While they so far have no proof of that, Richman cited "statistically unbelievable" returns in three precincts. For example, a recount of ballots conducted last week in Seminole County resulted in a net gain of 98 votes for Bush. According to Richman, 88 of those 98 came from a single precinct, suggesting, he claimed, further impropriety.

Republicans deny that there is any evidence of double voting.

But the county's handling of the Republican absentee ballots "is clearly an illegal action," attorney Richman said. "It is just plain cheating."