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The 11th Circuit Court of Appeals upheld an order by U.S. Chief Judge Mark Walker to allow Florida voters a chance to "cure" their ballots that were rejected because the signatures didn't match what supervisors of elections had on file.
"I think we can take it from here there will be a cure process," said Marc Elias, the lead attorney for U.S. Sen. Bill Nelson in the myriad recount cases working their way through state and federal courtrooms. "This should give pause to Republicans who want to gum things up. The 11th Circuit sided with disenfranchised voters."
Lawyers for Gov. Rick Scott, who watched his lead over Nelson erode from almost 60,000 votes to a little more than 12,000 votes, called the lawsuit frivolous and Walker's rationale for his decision "meritless."
Walker issued a preliminary injunction this morning in Nelson's lawsuit over ballots thrown out because of mismatched signatures — declaring a state law unconstitutional and ordering the state to give voters until 5 p.m. Saturday to cure the problem.
"The precise issue in this case is whether Florida’s law that allows county election officials to reject vote-by-mail and provisional ballots for mismatched signatures — with no standards, an illusory process to cure, and no process to challenge the rejection — passes constitutional muster," Walker said. "The answer is simple. It does not."
In a 2-1 ruling, the appellate court denied the request from Secretary of State Ken Detzner and the National Republican Senatorial Committee to stay Walker's order issued earlier today. The terse three-page ruling said, "Appellant has not made the requisite showing."
The court rejected Detzner's concerns about the difficulties in fulfilling Walker's court order. The apellate court also found that there was no cure mechanism for provisional voters whose votes were rejected for mismatched signatures.
Detzner gave notice of compliance with Walker's order this afternoon, ordering all 67 supervisors of elections to allow supervisors and voters to clear up the mismatch.
The ruling is a victory for Nelson as he tries to narrow the almost 13,000 vote margin in a razor-thin Senate race that is currently the subject of multiple lawsuits. Walker also dealt Nelson a setback Thursday when he refused to extend the machine recount deadline for struggling counties.
The votes in the race underwent a machine recount that ended today, except in Palm Beach County where major mechanical malfunctions kept them from hitting the deadline. Broward County finished recounting ballots in three top Florida races Thursday, but failed to send the totals to the state before the deadline.
The county missed the 3 p.m. deadline to submit the recount totals to the agency by two minutes. The state instead accepted the vote totals Broward sent on Saturday.
More:Meet Judge Mark Walker in recount case: Florida native, 'Double Gator,' quotable jurist
'Red flags and football metaphors'
It's unknown how many discarded ballots are at stake over mismatched signatures, but it's at least 3,688, elections officials said. Lawyers for Nelson filed a motion to force the state to produce the names of all the people whose mail-in and provisional ballots were thrown out, but Walker rejected it from the bench, saying he would not become a tool of either party.
In his 34-page ruling that relies on football metaphors, Walker said Detzner must order supervisors of elections that the state's scheme as it applies to curing mismatched signatures is unconstitutional.
"Consider the game of football. Football fans may quibble about the substance of the rules, but no one quibbles that rules are necessary to play the game," Walker said in the opening lines of his order.
The latest on the Florida recounts:
All eyes on Tallahassee federal judge Mark Walker after Florida recount hearing
President of election supervisors: Palm Beach recount timeline 'a physical impossibility'
After intercepting 'spooky ballot,' Leon County gets through recount without a hitch
Florida Gov. Rick Scott will recuse himself from certifying results in his U.S. Senate race
Democrat Bill Nelson sues for access to Fla ballots submitted illegally in GOP-rich county
FL agency asks U.S. prosecutors to investigate possible election fraud tied to Democrats
But Nelson and the Democratic Party threw "a red flag," Walker said.
"But this is not football. Rather, this is a case about the precious and fundamental right to vote — the right preservative of all other rights. And it is about the right of a voter to have his or her vote counted."
According to his ruling, supervisors must also require all voters who were belatedly notified that they have mismatched signatures to correct the problem by 5 p.m. Saturday -- the same day that the results of a manual recount are due.
The election results are scheduled to be certified Tuesday by the Florida Cabinet sitting as the Election Canvassing Commission.
Walker said he recognized that time is of the essence because supervisors have received thousands of vote-by-mail ballots and a recount is underway. He also wanted to make sure defendants had a chance to seek a stay of the order.
The fast-tracked ruling came after more than five hours of testimony and arguments about whether the state's scheme for determining if signatures on mail-in ballots was constitutional or deprived voters of their fundamental rights.
He was particularly perturbed that state elections officials didn't know how many ballots were at stake.
Wednesday afternoon, Division of Elections Director Maria Matthews identified 3,688 vote-by-mail ballots and 93 provisional ballots in 45 counties that were not tabulated because of signature mismatches. She estimated the total could be around 5,000 based on 2016 results.
"It seems to me the people of Florida ought to know if it is 3,000 or 5,000 instead of pulling some magical number out," he said from the bench Wednesday.
Voters whose ballots are delivered by 5 p.m. the day before Election Day can "cure" their ballots if the supervisor of elections reject them because the signature on the envelope didn't match the signature on file with the supervisor of elections.
No such cure is available for ballots postmarked Nov. 6 but delivered after the 7 p.m. election day deadline.
'A stacked deck against voters'
Uzoma Nkwonta, representing Nelson, argued the system was fundamentally flawed because there is no remedy for those people. The statute outlined no process for a voter to challenge a signature rejection, let alone be notified that their ballot was rejected, he argued.
"It's a stacked deck against the voters," Nkwonta said.
Nelson's team filed an affidavit from former congressman Patrick Murphy of Palm Beach County, who said his ballot was rejected because the supervisor said his signature didn't match.
Related:I'm a former Florida congressman and my vote was rejected over a signature 'mismatch'
Detzner's attorney Mohammed Jazil argued that there were administrative procedures and deadlines to follow, and interests of the state outweighed voter rights.
Walker grilled both legal teams about what they recommend he do to cure what he recognized as a glaring problem with the statute.
More than 2.7 million people voted by mail in the 2016 general election, and 2.6 million in this year's general election, according to Division of Elections results.
In a 2016 case, Walker found that "the Florida statutory scheme that provided an opportunity to cure no-signature ballots, but denied that opportunity to mismatched-signature ballots, was unconstitutional."
In light of that finding, supervisors allowed mismatched signature ballots to be cured the same way provided for non-signature ballots and the Legislature followed up by amending state statutes.
Now, if a signature doesn't match what is in the registration books or on the precinct register, the supervisor is supposed to immediately notify the voter, who has until 5  p.m. the day before the election to submit an affidavit to cure the ballot.
Walker noted a vote-by-mail ballot cannot be submitted after election day. He also said there was a problem when people notified seven days after Election Day were told their ballots were thrown out.
"The opportunity to cure is the last chance a vote-by-mail voter has to save their vote from being rejected and not counted," Walker said in his ruling. "Florida law provides no opportunity for voters to challenge the determination of the canvassing board that their signatures do not match, and their votes do not count."
This is a breaking story. Check back for updates.
Contact Schweers at jschweers@tallahassee.com. Follow him on Twitter @jeffschweers.
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