Fair elections lawyer questions Florida recount on signature matches and late mail ballots

Election Day 2018 Tampa, Florida
Election Day 2018. By Seán Kinane / WMNF News.
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Sign outside early vote location in West Tampa. By Seán Kinane / WMNF News (October 2012).

Last week Bill Nelson sued the Florida Secretary of State to demand that the Florida recount tally all ballots that were disqualified because it was determined that they had a signature mismatch; and this week, Nelson sued the state to count vote-by-mail ballots that were postmarked before  but not delivered before polls closed on Election Day.

To find out about what’s fair and what’s the law when it comes to questions like this, WMNF News spoke with David O’Brien, a staff attorney with FairVote, a non-partisan nonprofit advocating for fair elections.

“You’re right, we aren’t involved in any of the lawsuits at all. Our interest in recounts is more from an academic perspective. We’ve done some studies and reports on recounts in the past. And just sort of looking at how often recounts lead to a reversal and things like that.

“But as to your question, yeah, Florida has one of the stricter mail-in and absentee ballot rules. California, for example, requires ballots to be postmarked by Election Day. But they’ll accept ballots up to three days later. Florida, it has to be the day of the election.

“And, honestly, the fair thing to do would depend on if there is actually serious delays in the mail – something that’s out of the voter’s control. And they put their ballots in the mail with what should have been enough time to get it in, then I don’t think it’s unreasonable to say that those ballots should be counted.

“But, of course, that depends on all the details and what’s going on in the case, specifically.”


Another concern that’s come up in Florida is: some ballots are being thrown out, at least initially, because the person who looks at it says the signature doesn’t match. And I don’t think that there’s a set standard across the state and also I don’t think that all the people looking at it are signature experts, if there is such a thing. What are your thoughts about whether a ballot should be thrown out because of a mismatched signature?

“Yeah, that’s also concerning. And you’ve also been seeing similar things like that in Georgia, too.

“I don’t think any of us has a totally consistent signature every single time we sign. And, like you said, the people who are reviewing the ballots aren’t handwriting experts. There’s no way we could get enough handwriting experts to do this. Elections require a lot of people to count.

“And, yeah, just throwing away someone’s vote on the basis of that alone – one person glances at it and thinks it doesn’t match with something on file – doesn’t seem fair at all. And as to your other point about the lack of consistency across counties, that’s pretty concerning.

“If we go all the way back to 2000, one of the big issues in the Supreme Court case, Bush v. Gore, was that the different counties were using different standards to review ballots. And you almost have a similar situation right here.”

[Note: shortly after this interview was conducted, a “circuit judge has ruled that recounts in [Palm Beach County in] all state races in question be extended to Nov. 20, about five days after the original 3 p.m. Thursday deadline.”]

All 67 counties in Florida are doing what are called ‘machine recounts’ right now. They have to meet a deadline of Thursday at 3:00 [p.m.] And a lot of the counties say that they’re on track to do that. But there is some indication that there may be at least one county, and maybe more, where at 3:00 on Thursday they have not finished the legally-required machine recount. And so, now, do you pay more attention to the deadline or to the requirement that you have to do a full recount? What are your thoughts on which one is more important?

“I do understand that It’s important to have a deadline. This thing can’t drag on indefinitely. But Thursday’s kind of an arbitrary date. It seems like a lot of the issues are like insufficient voting machines to do the recount or problems with resources, other things.

“The important thing is that everyone’s vote gets fairly counted. I think that’s more important than just, sort of, meeting some hard deadline that was put in statute for whatever reason.”

So, in this situation – in a hypothetical situation in which a county is not finished doing its machine recount by Thursday — you would say the fair thing to do would be to continue until that’s finished?

“Yeah, I think so.”


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