A lawmaker who narrowly lost a Democratic primary election for a Florida Senate seat will appeal a judge's rejection of his challenge Monday, the defeated candidate's lawyer said.
State Rep. Jeff Clemens edged fellow House member Mack Bernard by just 17 votes— out of more than 34,000 cast — in the Aug. 14 primary for the District 27 nomination in Palm Beach County.
Regardless of how the case is finally resolved, Democrats are virtually assured of winning the seat because the only general election opposition is from a write-in candidate.
Circuit Judge Terry Lewis of turned down Bernard's request to order that election officials count 40 unopened absentee ballots that had been rejected by the three-member county Canvassing Board.
Lewis agreed with the board that signatures on the ballots did not match those on file with the office of county Supervisor of Elections Susan Bucher.
"To be honest, there weren't any that were even really that close," Lewis said.
Lewis sat at a table in a Tallahassee courtroom surrounded by Bucher and several lawyers as he examined the signature on each ballot envelope and compared it to the one on file for that voter. In some cases names were printed instead of signed while in others the handwriting simply didn't match.
The judge, though, separately ordered that nine unopened provisional ballots be counted, but he acknowledged those wouldn't be enough to change the results even if all went to Bernard.
The provisional ballots were cast by voters who went to the polls but had various issues that prevented them from immediately being counted. Four of the provisional voters had requested absentee ballots also, two were not on the registration list at their precincts, two didn't have photo identifications and one wanted to change parties.
Those issues later were cleared up, but the nine provisional ballots still were not counted because they failed to indicate party affiliation. Lewis said that was insufficient reason to reject them.
Bernard's lawyer, J.C. Planas, said his client would appeal based on Lewis' refusal to consider testimony from absentee voters. Bernard's campaign has obtained statements from 23 of the absentee voters who swore their signatures were authentic.
Lewis, though, ruled that an election law passed last year by the Republican-controlled Legislature limits his review to comparing signatures.
"Maybe that's something you can take to the Legislature," Lewis told Planas.
While Republicans don't have a candidate in the race, they are involved, starting with Planas. He's a Republican who also once served in the House.
Bernard of Delray Beach also drew support from business groups that usually favor Republicans and stressed his ability to work with the GOP. Clemens of Lake Worth was backed by unions and ran as a progressive.
Planas said many of the absentee voters, like Bernard, are Haitian-Americans and they may have been confused because Bucher stopped publishing ballot instructions in their native language, Creole.
"They should err on the side of the voter," Planas later said. "The right to vote is pretty big."
Neither candidate attended the hearing, but Clemens later said in a telephone conference call with reporters that the decision had gone as he knew it would.
"They want to cherry-pick fraudulent votes that they feel are favorable to them," Clemens said.
His lawyer, Ron Meyer, predicted any appeal would be "dead on arrival" because the law is clear that judges cannot consider any evidence other than the signatures.
Planas also is representing another Haitian-American lawmaker, Rep. John Patrick Julien, who is contesting his primary election defeat in Circuit Court here. Julien of North Miami Beach lost by 13 votes to another incumbent House member, Rep. Barbara Watson of Miami Gardens.
The two Democrats were pitted against each other in House District 107 due to redistricting. As in the Clemens-Bernard Senate race, the winner is the odds-on favorite in November because the only opposition will be from a pair of write-in candidates.