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It’s not quite like a battle in Game of Thrones, but armies of lawyers and other volunteers for the Biden and Trump campaigns are being deployed across Florida as they brace for the distinct possibility of another legal clash in what could prove a razor-thin presidential election.
In Miami-Dade County, the election department released a list of registered poll watchers associated with the two presidential campaigns and the Democratic and Republican parties. There are 1,421 of them in a county with 859 precincts. And that’s just one county.
Ever since the bitter 36-day legal war over recounts of presidential ballots in Florida’s 2000 election, which wound up decided by just 537 votes, both the political parties and voters have been dreading a sequel but also planning for one. Two years ago, it almost happened again, though the recount disputes that played out in South Florida were over state races for governor, the U.S. Senate and agriculture commissioner — not to become the leader of the free world. This year, tightening polls suggest they might get it.
Veterans of Florida recounts mostly agree that a surge of mail-in ballots — propelled by the coronavirus pandemic — will likely be the front line of any legal battle between the presidential campaigns and the Democratic and Republican parties in the run-up to and aftermath of Election Day, Nov. 3.
“Every mail-in ballot is [potentially] subject to a challenge, so it could get pretty messy in a close election,” said Joe Klock, a prominent Miami lawyer, who represented Florida Secretary of State Katherine Harris in successful arguments before the Florida Supreme Court and the U.S. Supreme Court during the 2000 election recount.
If the presidential race is tight, he said, “you’re going to have a whole bunch of narcissistic lawyers trying to make a name for themselves, narcissistic politicians trying to make a name for themselves, and narcissistic judges trying to make a name for themselves.”
History shows what being on the winning side can mean for ambitious legal minds. U.S. Supreme Court Chief Justice John Roberts, Associate Justice Brett Kavanaugh and Trump’s latest nominee Amy Coney Barrett all reached the top of their profession after playing supporting roles on the legal team for Texas Gov. George W. Bush against Vice President Al Gore in the Florida 2000 presidential recount.
In that now-notorious election, hanging chads — an oblong bit of paper in a punch-card ballot — were literally put under the magnifying glass by election canvassing boards in South Florida trying to determine voter intent.
Twenty years later, issues over whether millions of mail-in ballots are properly signed, sealed and delivered on time — or rejected for infractions — will likely be the focus of legal fighting at supervisor of elections offices and before canvassing boards in Florida. Thousands of lawyers and other volunteers will also be stationed as poll watchers to catch possible irregularities at precincts during early voting starting Monday and on Election Day, Nov. 3.
No one — whether they’re supporters of GOP President Donald Trump or Democrat Joe Biden — wants the race to be too close to call, but both sides have been preparing all year for an agonizing 2000 replay.
“It could happen again,” said Miami attorney Ben Kuehne, a Biden poll watcher who worked on Gore’s legal team in the 2000 recount battle with Bush.
“That’s why the issue of suppressing the vote is so important, because if you limit voting it’s going to affect the outcome of the election,” said Kuehne, who is training brigades of lawyers and volunteers in “voter protection” for the Biden campaign. “The vote by mail could be sabotaged by massive challenges.”
Kuehne said Trump, who along with his wife votes absentee, has stirred up widespread distrust of mail-in voting by suggesting the process is infected with fraud and that the presidential election won’t be legitimate. Yet the president and his wife have used absentee ballots and arranged for them to be hand-delivered to the Palm Beach County elections office in recent elections.
Kuehne pointed out that absentee voting has been around for decades in Florida and other parts of the country with many of the reforms adopted by both Republican and Democratic lawmakers.
“Now a person with a megaphone [Trump] is saying it’s not the same — it’s not valid,” Kuehne said. “Would they say the same thing if the numbers helped them? Of course not.”
But lawyers working for the Republican Party and Trump campaign counter that the Democrats have a chronic habit of crying “voter suppression” every election season.
“It’s a dog whistle, and it’s just not true,” said Nelson Diaz, a lawyer and chairman of the Republican Party in Miami-Dade, who is also a poll watcher. “They’re lying and they know it. I know the Democrats would like the supervisor of elections to knock on every door and pick up the absentee ballots. But that’s not legal.”
Diaz’s counterpart in Broward County is George R. Moraitis Jr., a lawyer and chairman of the local GOP. He said the Trump campaign’s biggest worry is the potential “harvesting” of ballots by people who collect mail-in votes and deliver them to the local elections office. That is not allowed under state law.
Moraitis, a former state representative, said that absentee voting has generally become part of the political landscape in Florida. “There is a lot of confidence in the system,” he said. “But there is concern about ballot harvesting, and we want to make sure no one is taking advantage of that. We’re on the lookout for that.”
Moraitis, who will be volunteering as a poll watcher along with hundreds of others in Broward, said the Trump campaign’s other focus will be at precincts to ensure that no voters are improperly casting a ballot. Among the concerns: unregistered voters showing up at the precincts or registered voters having someone help them fill out their ballot.
In Broward, Moraitis said, the elections office has dramatically improved its handling of vote recounts since the Bush v. Gore battle — when those hanging chads on ballots were in hot dispute. He said the more recent recounts in the 2018 election involving close races for governor, the U.S. Senate and agricultural commissioner showed that the system worked better, though the process was still untidy because thousands of mail-in ballots had not been counted on election night.
State law allows elections staffers to open and scan mail-in ballots before Election Day, but the results are locked away in tabulation equipment until the polls close. In 2018, however, the Broward elections staff didn’t keep up with the vote-by-mail ballots received before Election Day, a backlog that put the office way behind.
By the time the polls closed on election night, there were about 70,000 mail-in ballots that needed tabulation. It took days to finish, resulting in “untimely reporting of election results, and compromised voter confidence,” according to a Broward government audit.
But during the heat of the counting and recounting, Florida’s governor Rick Scott, who was running in a still-contested U.S. Senate race, made repeated and unfounded claims of possible fraud — allegations that were nonetheless echoed by Trump, GOP leaders and hosts on Fox News.
“For all I know, they’re still counting ballots for Al Gore back there!” said U.S. Rep. Matt Gaetz, a Panhandle Republican who traveled to Broward during the recounts two years ago. He stood in the back of a rental truck filled with boxes labeled “ballots,” meant to symbolize the large number of votes that were counted long after Election Day in Broward.
In the end, as the vote tally tightened, no fraud was found — though Broward supervisor of elections, Brenda Snipes, was suspended from her job by Scott and replaced by one of his political allies, who still holds the post going into the 2020 presidential election. Scott narrowly defeated Democratic incumbent Bill Nelson for the U.S. Senate seat and Republican Ron DeSantis beat Democratic Tallahassee Mayor Andrew Gillum for Florida’s governor. But Democrat Nikki Fried came from behind during the recount to win the agriculture commissioner’s race against GOP state Rep. Matt Caldwell.
“One of the things that scared us in the 2018 election is what happened in Broward and Palm Beach counties,” said Diaz, the Republican Party chairman in Miami-Dade. “If our lawyers had not shown up at the Broward supervisor of election’s office, Andrew Gillum might be governor today.”
Cynthia Busch, chairwoman of the Broward Democratic Party, said that while the vote-counting system had problems two years ago, it ultimately concluded with integrity. Most ballots cast in a timely way but not initially counted by the elections office ended up being included in the final tally, she said.
Busch said that even before the coronavirus pandemic struck Florida in March, the Democratic Party was preparing for a large-scale mail-in voting strategy because it has gained in popularity over the past decade. She said that because some voters, especially the elderly, might be frightened to go to the polls during the pandemic, absentee voting has become the logical alternative.
“We’ve done it before but not at this scale,” Busch said. “We have a lot of people who are voting that way for the first time, so we’re making sure that the process has integrity and that their vote is counted.
“The best thing that can happen is that we’re processing the ballots daily and we’re not falling behind,” she said, crediting a more efficient elections office in Broward. “That’s where we had so much trouble two years ago.”
But the surging mail-in vote can lead to other snafus that can result in contested ballots, warned Steve Simeonidis, a lawyer who is chairman of the Democratic Party in Miami-Dade. He said the Biden campaign’s biggest concerns are twofold: Voters failing to sign the outside envelope containing the absentee ballot and not delivering it on time by 7 p.m. on Election Day.
“I view it as a problem because a lot of folks tend to procrastinate,” Simeonidis said. “Now is not the time to do that. If you have an absentee ballot, mail it right now. And if there is an issue, there is ample time to correct it.”
Otherwise, the Republicans will be sure to challenge the ballot’s legitimacy, he said.
“Voter protection is one of the most important things in the upcoming election,” Simeonidis said, accusing the Republicans of “voter suppression” for political gain, including their disenfranchising hundreds of thousands of Florida felons who served their prison terms but still can’t vote.
“We fully expect Joe Biden to win,” he said. “But if a recount is necessary, we have an army of lawyers at the ready to ensure every ballot cast is counted.”