On Monday morning, Judge Terry Lewis of the 2nd Judicial Circuit Court of Florida effectively narrowed the lead of Rep. Jeff Clemens of Lake Worth over Democratic primary rival Rep. Mack Bernard of West Palm Beach.

Bernard’s suit alleged that at least 40 absentee ballots and nine provisional ballots cast for Bernard were improperly discarded by the Palm Beach County Supervisor of Elections Office headed by Democratic Supervisor of Elections Susan Bucher. The absentee ballots were rejected because of alleged discrepancies between the signatures found on the ballots and those found in voter registration records.

If counted, they would swing the election in favor of Bernard, who otherwise lost the August Democratic primary to Clemens by just 17 votes. Both ran for Florida Senate District 27.

On Monday, Lewis affirmed Palm Beach elections officials’ rejection of the absentee ballots, even as he agreed with Bernard’s lawyers that the provisional ballots should have been counted if they are able to swing the election. Lewis’ decision effectively shrinks Clemens’ lead to just eight votes.

The legal dispute basically boils down to how Lewis should have construed section 102.168(8) of the Florida statutes. The law states that when the “legality” of an absentee ballot is in dispute because of a perceived discrepancy between signatures, a circuit court judge may not consider any other evidence beyond visual comparison of the two signatures.

Bernard’s legal team insisted that this statute, enacted by the Legislature in 2011, was only meant to apply to those cases where a ballot is challenged after its validity has been accepted by elections officials; in those cases where a ballot has not been accepted, but a party is arguing it should be, Bernard’s lawyers said the judge is allowed to consider other evidence, and they produced 32 sworn affidavits from voters testifying to the validity of these ballots.

Bernard’s legal pleadings cite, in support of his position, the text of an amendment rejected by the 2011 Legislature. The rejected amendment explicitly applied the more restrictive standard of judicial ballot review to absentee ballots rejected by elections officials.

Bernard’s attorney, former Rep. J.C. Planas, R-Westchester, insisted that this rejection signaled the intent of the Legislature to make it easier for votes to be counted, and more difficult for them to be rejected.

Lewis rejected that argument, declaring that the same standard of review had to be applied to any ballot whose signatures did not match. Lewis declined to count the contested absentee ballots in Bernard's favor, after finding that a "reasonable person" could find that the signatures on these ballots did not match those on file with the elections office. His decision affirms Clemens’ August victory.

Planas spoke with Sunshine State News after the hearing. He says any number of factors can account for a discrepancy between signatures. In several cases, the absentee voters accidentally printed their names on one form, while signing another. Many of these accidents can be attributed to a language barrier: none of the absentee ballots issued in this year's primary election were published in Creole, and English is a second language for many of the Haitian voters whose ballots are in dispute.

“The purpose of the law is to make sure that these votes belong to the voter, and I believe it does not require that the signature be an exact match if you can othewise prove that it really does beong to the voter,” he said.

He said elections supervisor Bucher’s office did not provide the entire voter registration forms to the court, but only the recorded signatures, so Judge Terry was unable to compare voters' print handwriting.

“I find it extremely troubling that the supervisor of elections, whose job it is to protect the integrity of the votes, far from leading the charge in that regard, is claiming she has no responsibility to make sure these people’s votes are counted,” he said. “When she found the signatures did not match, she could have easily had her office call up the voters and warn them their vote was not going to be counted. She didn’t do that, and I find something wrong with that.”

Planas noted a majority of absentee ballots rejected by Bucher’s office, and a minority of those accepted, came from Bernard’s district. He would not speculate as to why.

A political consultant from one of the state's major bipartisan consulting firms has suggested to Sunshine State News that Bernard and at least one other Haitian legislator might be the victims of a political "ethnic cleansing" by state Democratic Party officials because of the two representatives' voting record in favor of businesses and school choice.

Bucher did not return calls from Sunshine State News before Monday evening.

Planas said he would be appealing Lewis’ decision to the Florida 1st District Court of Appeal.



Reach Eric Giunta at egiunta@sunshinestatenews.com or at (850) 727-0859.