Nelson needs ‘royal flush’ in court cases, but will likely come up short

MIAMI — From changing the rules over divining voter intent in recounts to striking down laws over absentee ballot mail-in deadlines and signature mismatches, the post-Election Day lawsuits filed by Sen. Bill Nelson’s campaign indicate he probably can’t win without the help of the courts.

But even then, experts say, Nelson faces long odds in his bid to flip the results in his Senate race against Gov. Rick Scott. The Republican challenger led by 12,652 votes heading into the contest’s automatic recount, which ends Thursday and will likely lead to a manual recount next.

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Nelson has two major problems, experts say: Nelson’s lawsuits were filed so late and courts generally frown on last-minute post-election changes, and the margin he trails Scott by is so big that even expanding the pool of available ballots to count makes it highly unlikely that Nelson could make up enough ground.

“A royal flush is right on the money. Nelson would have to have a perfect hand,” said Michael Morley, a Florida State University election law professor, echoing two other experts who spoke to POLITICO.

“He would have to win in every case. And even then, it would not seem to be enough to change the outcome,” Morley said. “One study that I’ve seen shows that in the 21st Century, there have only been three statewide races that have had their results changed as a result of a recount. And in each of those races, the margins were in the hundreds, not more than 12,000.”

As of the most recent update, only 7,871 absentee ballots were rejected statewide due to “voter error,” which could include mismatched signatures on the ballots compared with what’s on file with the state. And of them, 35 percent were cast by Republicans, 36 percent by Democrats and 29 percent by independents. Another 10,186 ballots were rejected because their envelopes were unsigned. Of them, 31 percent were cast by Republicans, 44 percent by Democrats and 24 percent by independents.

So if all the ballots were counted, Nelson would have to win 85 percent of them statewide in an election where he couldn’t get 50 percent of the vote so far.

“It’s a rabbit out of a hat. But there’s not enough rabbit,” one Republican lawyer involved in the recount who spoke to POLITICO on the condition of anonymity said of Nelson’s strategy and predicament.

The lawsuit over mismatched signatures for absentee ballots was heard Wednesday in federal court in Tallahassee. Nelson’s campaign has also sued over deadlines for the receipt of absentee ballots, standards for divining voter intent and the deadline to finish the recount.

It’s unclear how many ballots would be counted if Nelson’s lawsuits prevails. For instance, many county election supervisors have not logged absentee ballots that arrived after 7 p.m. on Election Day but were postmarked on Election Day.

The volume of those lawsuits might also pose a problem for Nelson because it just might be too much, Morley said, noting that “the more you’re challenging, the more you’re asking the court to do, and the greater burden you’re bringing on yourself.”

Morley, Ohio State University election law professor Ned Foley and University of California election law professor Rick Hasen all indicated that the strongest defense for the state — which Nelson’s campaign and various Democrats are suing — rests in the timing issue of lawsuits that are simply filed too late, a principle enshrined in a legal principle against “legal ambush” called “laches” and reflected in a U.S. Supreme Court case, Purcell v. Gonzalez.

But it’s not just the law professors who believe suits brought after Election Day are problematic. Nelson’s lead attorney in his cases, Marc Elias, has specifically cited laches and Purcell to argue against a late-filed lawsuit concerning signature mismatches — however that case was in the Arizona Senate race, where the Democrat was ahead and therefore wanted no more ballots to be counted.

Elias and a co-counsel for the Arizona Democratic Party noted in a legal brief that some Arizona counties allow voters to address signature mismatches on early ballots they’ve submitted up to five business days before Election Day but that the Arizona lawsuit wasn’t filed until after the election and voters had no more chance to fix the anomalies.

Scott’s campaign noted the discrepancy in a written statement.

“To put it simply, Democrats in Arizona are using the opposite and contradictory argument to the one they plan to use in court tomorrow in Tallahassee,” the Scott campaign said Tuesday. “For them, this isn’t about following the law, and it isn’t about having a free and fair election. This is about getting rid of Florida laws they don’t like.”

Nelson’s campaign has said he just wants every vote counted.

“Given the closeness of this election, and the fact that the courts have declared signature-matching laws unconstitutional in several states, we expect this issue to be of considerable importance here in Florida,” Nelson said in a written statement. “So I ask each of you — just consider whether or not you would want your ballot thrown out by an untrained, even though well-intentioned, election worker or a volunteer, all because he or she determined that your signature doesn’t look right.”

Hasen, who blogs about election law while teaching at U.C. Irvine, said in a post about Nelson’s suits that he’s “sympathetic to the arguments in general, given my belief that election statutes, when possible should be interpreted to enfranchise voters. But Florida laws were rewritten after the 2000 Bush v. Gore debacle to deal with giving too much discretion to election officials to decide on what counts as a valid vote, and rules that are clear in advance are the best for fair election administration.”

The Senate race had a significant number of undervotes compared to the governor’s race, which is also being recounted, in problematic Broward County.

Ohio State’s Foley said that another case, Roe v. Alabama, by the 11th Circuit Court of Appeals — which oversees Florida — espoused a principle that “ballots must be counted according to the rules for counting ballots at the time those ballots were cast. So even though it’s not the most desirable rule for counting ballots, you can’t change counting rules in the middle of the election itself.”

Still, he said, there’s a general legal principle that voters’ rights to have their ballots counted fairly pervades all election law and that the facts of the cases brought by Nelson will dictate their outcome.

Morley, the FSU professor, said that in the unlikely event Nelson can “run the table” in court, he just can’t see how the Democrat could pull ahead.

“Where are the votes going to come from?” he said.