Judge allows reshuffling recount order

November 16, 2018

By Dara Kam, News Service Florida

TALLAHASSEE --- Two out of four ain’t bad, or at least it’s better than one out of four.

That’s what a federal judge essentially told Palm Beach County elections officials, who said there’s no way they can complete recounts in three statewide races and a state House contest by a noon deadline Sunday.

U.S. District Judge Mark Walker on Friday said the county can conduct the recounts in any order it wishes, to ensure that two of the races that warrant recounts can be completed in time.

Democrat Jim Bonfiglio trails Republican Mike Caruso by 37 votes in the House District 89 race to replace state Rep. Bill Hager, a Republican who was unable to seek re-election due to term limits.

Under state law, counties that cannot meet recount deadlines have to submit results from their last official tally to the state. That process would ensure Caruso is the winner in the tight race.

The Palm Beach County Canvassing Board chose the order for Supervisor of Elections Susan Bucher to conduct the recounts, putting the District 89 matchup at the bottom of the list.

The canvassing board was unsure if it had the authority to reorder the recounts. Walker’s ruling cleared up any confusion.

The order of conducting recounts “appears to fall within the sound discretion of the PBC Canvassing Board,” Walker wrote in Friday’s nine-page order, noting that no one had objected to allowing the board to change the order.

Bonfiglio sued the state, seeking to extend the state-imposed deadline to ensure a recount could be conducted in his race. The state Elections Canvassing Commission will certify election results at 9 a.m. Tuesday, the same day new legislators will be sworn into office.

During a hearing Thursday, Bucher told Walker her office likely won’t be able to finish a mandatory hand recount in the state House contest until mid- to late-December, due to mechanical failures and an exhausted staff that’s been working around-the-clock since the Nov. 6 election.

Secretary of State Ken Detzner last Saturday ordered machine recounts in races for the U.S. Senate, governor, and agriculture commissioner, as well as the District 89 race and two other legislative contests, all of which fell within a 0.50 percent margin that requires recounts.

But due to antiquated equipment, Bucher, a former Democratic state representative, said her office was able to perform only one recount at a time. She missed a 3 p.m. Thursday deadline to complete the machine recount in the race between Democratic U.S. Sen. Bill Nelson and Republican Gov. Rick Scott, who holds a slim lead of fewer than 13,000 votes.

After the Thursday deadline, Detzner ordered manual, or hand, recounts in the U.S. Senate, agriculture commissioner and legislative races because their margins were 0.25 percent or less.

Appearing by telephone during a hearing in Bonfiglio’s case Thursday, Bucher blamed the decrepit tabulating machines, acquired before she took office a decade ago, for her inability to meet the deadlines.

She said the equipment had heated up and malfunctioned after being run continuously to conduct the machine recount. She estimated it took about five days to finish the machine recount in the Senate race.

But, under questioning from Walker, Bucher said she did not believe her staff would be able to maintain that pace.

"We have been operating at a pace of 24 hours a day, seven days a week, and we are not going to be able to sustain that going forward," she told the judge.

Bucher estimated she would be able to complete machine recounts for the governor's race by Nov. 22 and the agriculture commissioner race by Nov. 27, “if our staff can hold out.”

“They’re pretty tired right now,” she said. “They haven’t eaten. … We’re really at limited functionability right now.”

Walker questioned the need for prioritizing a machine recount in the race for governor, in which Republican Ron DeSantis held a decisive, 33,683-vote lead over Tallahassee Mayor Andrew Gillum after the machine recount was completed in the rest of the state.

A recount in the DeSantis-Gillum race is a “pointless exercise,” Walker noted.

When asked for a realistic view of when she could complete recounts in all of the races, Bucher said an "optimistic" estimate would be around Dec. 15, but a more certain time frame would be the "latter part of December."

But, she said, it would take a “very substantially shorter” period to conduct the House recount, which encompasses only 98 of the county’s 871 precincts.

The District 89 race would take between five and eight hours, Bucher predicted.

“If the board does not vote and reorder the races as suggested, plaintiffs may inform this court so that the case can be addressed on the merits,” Walker concluded.

The Bonfiglio lawsuit is one of at least eight election-related challenges filed in federal court following the Nov. 6 election.

In other action Friday, Walker tossed a lawsuit challenging the way more than a dozen elections supervisors preserve digital ballot images.