Should these ballots be counted?

“Democratic U.S. Sen. Bill Nelson is suing the Florida Department of State in an effort to count vote-by-mail ballots that were postmarked before Election Day but not delivered before polls closed.

“Nelson’s attorney, Marc Elias, filed the lawsuit Monday, saying voters should not be disenfranchised because of mail delivery delays that aren’t their fault. … As an example, he cited the Miami-Dade County postal facility that was evacuated when because explosive devices sent to prominent Democrats were processed there.

“‘Florida’s 7 p.m. Election Day receipt deadline for vote by mail ballots burdens the right to vote of eligible voters,’ the suit said. Elias wants all ballots postmarked before Nov. 6 to be counted if they are received within 10 days of the election.”

In another Florida case,

“Election officials in a Florida county battered by Hurricane Michael last month allowed about 150 displaced voters to cast ballots by email, even though it’s not allowed under state law. … Bay County Supervisor of Elections Mark Andersen defended that decision Monday. Andersen told [a] newspaper that parts of the county remained shut off by law enforcement, preventing people from reaching their homes. The displaced voters were allowed to scan and email their ballots to the elections office. Andersen said all the ballots were verified by signature.

“Hurricane Michael hit the Florida Panhandle Oct. 10 as a devastating Category 4 storm. On Oct. 18, Gov. Rick Scott issued an executive order extending early voting and designating more voting locations in the eight counties, including Bay. A statement that accompanied the order specifically prohibited votes being returned by email or fax.”

(Read story here)

What do you think? Should a judge order these votes counted? This is possible because a judge can make exceptions to state laws by exercising what is known as the equity authority of the court in order to remedy unfair results caused by a strict application of the laws. This involves an equitable balancing of the interests of the parties (in this case the state and the affected voters). Post your comments.

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  1. Mark Adams #

    Depends on how the statute is written. If notice has been provided to voters. If public officials announced some extra time mat affect how a judge may rule. Generally Florida judges are a conservative bunch, and any judge in this case knows it will be appealed up to the Florida and Supreme Courts. I suspect a Florida trial judge will bounce the law suit or rule against, and the appeals will deny review as will the Supreme court of Florida. And even if appealed to the US appeals it will be denied review, though if the matter has not already been settled in that US circuit the appeals court will grant review, only to rule against on the merits based on precedent at the US Supreme Court.

  2. Roger Rabbit #

    Well actually, Mark, it doesn’t depend on how the statute is written when you ask a court for an exception to the statute under its equitable powers. The wording of the statute could, however, influence the judge when weighing equities. A judge is more likely to grant an equitable exception if he perceives the statute to be unfair, and is less likely to fashion a judicial remedy if the statute itself provides remedies for exceptional situations, so you aren’t entirely wrong about that.