After Lessons of Bush v Gore, Do Bill Nelson’s Lawsuits Go Too Far in Trying to Change Florida Election Law?

I get it. Rick Scott is ahead in the Florida Senate race and so he wants the counting to end while he is ahead. He’s not only sued to try to get the counting done; he’s raised bogus claims of election fraud and stolen elections. I’m not a fan of either his litigation or PR strategy.

And I get Bill Nelson’s strategy too. He’s behind in the Florida Senate race and wants to have every vote counted. Makes total sense to push for a full recount, and get to the bottom of the undervote problem in Broward County (my money is on poor ballot design rather than machine counting error, but we’ll see.)

But now Nelson’s filed three lawsuits in addition to one already filed, and I’m less comfortable.

Among other things, Nelson is arguing for a chance for voters to cure absentee ballots tossed because of a signature mismatch; to extended the tight deadlines for the recounting and certification of votes; and to require election officials doing any manual recount to take into account a broader sense of the voters’ intent in marking the ballot than are allowed under current state law

I’m 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. And the complaints about the rules for dealing with signature mismatches or deadlines are not new. Perhaps it is too late to start bringing these challenges now, when the very outcome of the election hinges on what the courts do. (I’ve been arguing for this aggressive application of laches in election cases for some time, in those cases where the problems were evident before the election but lawyers did not sue before the election to get a cure.)

I understand the mantra of counting every vote, and I like rules that enfranchise voters. But one lesson of Bush v Gore is that there are countervailing concerns, such as having clear rules in advance and avoiding having courts decide the outcome of elections.

I’m still open to some persuasion, but I thing Nelson’s suits may go too far.

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