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Florida lawyers at the center of Florida’s recounts

Senior Editor Regular News

Florida lawyers at the center of Florida’s recounts

Senior Editor

Florida’s November midterms triggered an unprecedented string of statewide recounts, and the legal conflict that followed helped bolster voter confidence in the outcome.

At least that’s the conclusion of Florida Bar members from both sides of the political aisle who joined the fray when some of the races were initially deemed too close to call.

“I actually believe that recounts are wholly a legal process,” said National Republican Senatorial Campaign general counsel Jessica Furst Johnson. “There’s certainly a very large volunteer component and certainly a large communications component, but they’re wholly legal.”
Jessica Furst Johnson
“I volunteered for the very simple reason that I wanted to see every vote counted,” said Tampa attorney Ashley Bruce Trehan of Buchanan Ingersoll & Rooney and a Democrat who worked on a voter protection team. “I didn’t want to see anybody deprived of the right.”

In Florida, registered Democrats barely outnumber registered Republicans — 4.8 million to 4.6 million. Another 3.5 million voters with no party affiliation make up the fastest growing segment of the electorate. (Some 90,000 voters are aligned with minor parties.)

Ashley Bruce Trehan The close split was clear in the governor’s race soon after the polls closed. Republican Ron DeSantis led Democrat Andrew Gillum, 49.6 percent to 49.2 percent — a margin of less than 33,000 votes in a contest that drew more than 8 million votes.

And in the U.S. Senate race, as well, where Republican challenger Rick Scott led Democrat incumbent Bill Nelson, 50.1 percent to 49.9 percent, or by a mere 13,000 votes.

And it was crystal clear in the statewide Cabinet race for Agriculture Commissioner, where Democratic nominee Nikki Fried led Republican Matt Caldwell by less than 6,000 votes.

Furst Johnson, who is of counsel with the Arlington, Va., firm, Holtzman Vogel Josefiak Torchinsky, quickly cancelled a post-election trip to Disney with her husband and two children.

When she landed in Tallahassee two days after the election, Scott was holding a press conference in front of the governor’s mansion. Scott told reporters, “There may be rampant fraud happening in Palm Beach and Broward counties.”

Two lawsuits filed by Scott and the NRSC accused election supervisors in both counties of violating absentee ballot counting laws. The petitions also sought better access to the Palm Beach County canvassing board and its tallies and demanded faster notification of the Broward count, among other things.

Furst Johnson says her most valuable contribution was hiring the right people. For the Scott/Nelson race, Furst Johnson quarterbacked a team of 100 paid and volunteer attorneys.

“Here, the lawsuits started flying very early,” Furst Johnson said.

Furst Johnson said she was ultimately involved in seven of nine lawsuits.

In the end, the Florida Elections Canvassing Commission, with Scott recusing himself, certified Scott the winner over Nelson by a 10,033-vote margin and DeSantis over Gillum by a 32,463-vote margin. Fried defeated Caldwell by 6,753 votes.

Recounts may offer a glimmer of hope, but they seldom change the outcome, Furst Johnson said.

“In the history of American politics, from all of the research that we could do, there wasn’t one instance of a recount overturning the results of a race when the initial difference on election night between the candidates was more than 1,200 votes,” she said.

Unlike the 2000 presidential recount, the November midterms in Florida didn’t appear to leave widespread doubt or disagreement about the official results.

Lawyers for Democrats and Republicans who participated in the latest recount said, given Florida’s history, it was more important than ever to leave little room for doubt.

Katherine O’Donniley Katherine O’Donniley, a senior counsel with Trenam Law in Tampa who served as lead Hillsborough county counsel for the Democratic Party, knows how public confidence can suffer when an election breaks down.

“The first election I was able to vote in was the 2000 presidential election,” she said. “I voted by absentee ballot. I was very excited to vote, so I saved my Broward County absentee ballot envelope, which I still have today.”

Before she went to law school, O’Donniley worked on the Kerry presidential campaign and after she graduated from law school in 2008, she began working on her party’s voter protection teams for every major election.

O’Donniley trains poll watchers and keeps current on political and legal issues surrounding each election. She spent long hours across the table from the Republican team monitoring the hand recount.

“We had 20 counting tables set up in a very large room and at each counting table there were two staff from the supervisor of elections, and they would present the ballot and determine what to do with them,” O’Donniley said. “On the other side of the same table, you had a representative from each party and a representative from each candidate.”

In a hand recount, only the ballots that were rejected by machines as overvotes or undervotes are recounted.

As the elections officials inspected each ballot, observers from both sides could object to the supervisor’s determination, and that would automatically send the ballot to the canvassing board, O’Donniley said.

Sometimes voter intent was easy to determine, sometimes it wasn’t, she said. Many rejected ballots had a candidate’s name circled instead of the bubble filled in next to the name. Others had both bubbles filled in, and then one crossed out. In both cases, voter intent was easy to discern, O’Donniley said.

But with undervotes, where no mark was made, voter intent was less obvious, O’Donniley said. That’s why participation by people with legal training gives the process more credibility, she said. Recount procedures are designed to rise above partisanship, at least as much as that’s possible in a purely partisan contest, she said.

“Sometimes, when we talk about our specific concerns during the voting process, you’ll perhaps hear a different answer about what those concerns are from each party, but I think we are both really interested in making sure that the process happens the way that it should, that it happens in accordance with Florida law, that it’s transparent and open,” she said.

Ben Gibson Florida’s election laws and administrative code have been overhauled since the 2000 recount, and many lessons were learned, said Ben Gibson, a Tallahassee attorney with Shutts & Bowen who once served as assistant general counsel to Gov. Rick Scott.

“The law today is much more clear in regard to recounts than it was in 2000,” Gibson said. “In 2000 you had to essentially petition the court, as a candidate, for a recount.”

Today, 20 states and the District of Columbia require automatic recounts in close races. In Florida, the threshold is half of a percent or less. An automatic recount that results in a victory margin of a quarter percent or less triggers a manual recount.

But Gibson says attorneys will always play an important role.

“It’s not exactly like being in court,” Gibson says. “But the training that we receive is very valuable in this process.”

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