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Primary Defeat Appeal Not Looking Good for Democratic Rep. Mack Bernard

October 17, 2012 - 6:00pm

A three-judge panel of the Florida 1st District Court of Appeal heard oral arguments Thursday afternoon in Democratic state Rep. Mack Bernards continued challenge of his narrow August primary election defeat.

Bernards suit alleges that at least 40 absentee ballots and nine provisional ballots cast in his favor 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 his primary to Rep. Jeff Clemens of Lake Worth by just 17 votes. Both ran for Florida Senate District 27.

Judges Nikki Clark, Simone Marstiller, and Scott Makar each appeared more reluctant to overturn circuit court judge Terry Lewis Sept. 17 dismissal of Bernards case.

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.

Bernards lawyer, former Republican state Rep. J.C. Planas, insists 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, Planas says the judge is allowed to consider other evidence.

Bernards legal pleadings cite, in support of this 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. Planas says 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.

The judges Thursday seemed likely to uphold that ruling.

"I don't know how you get around the language of this statute," Clark said during her questioning of Planas.

Talking to reporters after the court adjourned, Planas conceded his client is facing something of an uphill battle.

The court is always going to be skeptical when they have to review the wording of a statute, because in a free society the legislature has the right to decide the law, he said. And I like the fact that the court is going to tread very lightly on whether or not they are going to invalidate [these absentee ballots].

This is an issue of what the Legislature [has intended], he continued. Our argument is. the canvassing board had many tools to properly identify that this was the voter. They did not take advantage of those tools to the detriment of the voter. And we believe the ... court, when evaluating the issue, should say the canvassing board should use all tools available."

Palm Beach County is no stranger to election kerfuffles; for at least the last 12 years, the countys Democrat-managed elections office has distinguished itself for being among the nations most notoriously scandal-ridden.

Weeks ago, a political consultant from one of Floridas major bipartisan consulting firms suggested to Sunshine State News that Mack Bernard and two other Haitian-born state legislators might be the victims of a political ethnic cleansing" by state Democratic Party officials in retaliation for their voting records in favor of businesses and school choice.

Reach Eric Giunta at egiunta@sunshinestatenews or at 954-235-9116.

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