Wrong + Wrong = The Right to Vote

Lewis and Clark explore new legal territory

In the Seminole and Martin cases, Republican voters who did not comply with the absentee ballot application requirements and who illegally received absentee ballots through the commission of a third degree felony (per 104.047(2))  in the office of the supervisor of elections, were permitted to have their votes count fully in this election, despite the fact that the number of illegally issued ballots was more than sufficient to elect the wrong candidate. Democratic voters who had the same level of non-compliance with the law, were denied ballots. This is analogous to a Republican poll worker who allows only Republicans to vote after the polls close. 

Courts are supposed to interpret the law when it is not clear, not make new law. The legislature in 1998 was explicitly trying to reduce absentee ballot fraud. Where the legislature clearly and explicitly wrote "MUST," Justices Lewis and Clark interpreted it as they really meant "SHOULD" (unless the legislature has noted that such an item is "essential") citing a court decision made 25 years ago (Boardman v. Esteva).

There are six reasons why this interpretation of "MUST" as "SHOULD" is not correct:

  • The legislature sought to toughen absentee voting laws. The word "must" was deliberate.

  • Nowhere in Boardman did the court cite a statute with "must" in it interpreted as being directive. 

  • Virtually all language in election law is already "shall" including when the polls close! Must is infrequently used. 

  • The word "essential" never appears, even once in Section 101 (Voting Methods and Procedures).

  • Strict compliance with 101.62(1)(b) was required for all Democratic voters who voted absentee.

  • Strict compliance with 101.62(1)(b) had been the standard up until now. And there have been no complaints until now that strict compliance unfairly prevented anyone from voting, including those people who filled out the entire forms themselves!

  • Up until 2 weeks ago, everyone thought the law was clear, unambiguous, and reasonable, and that strict compliance was the standard. If they hadn't thought that, the Republican operatives would never have bothered to go to the effort of doing what they did. Yet now we have a decision that tells us everyone goofed.

  • Normally, a state court must follow a state constitution. But, it is arguable that in presidential elections, the United States Supreme Court indicated, federal constitutional and statutory law make the state legislature the supreme authority, so that statutory requirements must be strictly complied with. The state courts have no power to depart from the legislature's commands on the basis of either equity or the state's constitution.

Let's hope that the Florida Supreme Court agrees that when the legislature wrote "MUST" that they weren't joking. Otherwise, if the decisions by Lewis and Clark are not overturned, the implications could be staggering:

  • You would be able to get an absentee ballot just by calling in and requesting it. In the Martin and Seminole cases, election workers issued ballots without even looking at the applications, so it's clear that absentee ballot applications are not really essential anymore for your ballot to fully count.

  • You would no longer need to register to vote in advance since that is not essential. You could just show up on election day with mostly correct documentation showing that you are qualified to receive a ballot.

  • You would no longer have to vote in your assigned polling place since that is not essential if you promised not to vote twice (this could be checked after the fact).

  • You wouldn't need to arrive before the polls close. If there are workers still there who would let you vote, go for it. There would be no essential reason that the polls have to close exactly on time since workers are there and other states are still voting anyway.

  • You wouldn't have to vote on election day at all since it really isn't essential that this occur. What's the harm in voting one or two days later when you can see the outcome so far? The final results aren't going to be tallied until 10 days anyway because you have to wait for overseas ballots. So what's the rush? Besides, it's really unfair that Florida voters don't get to see how voters in other states voted whereas California voters do. So we should allow people to drop off their ballots the next day at the canvassing board office.

Lastly, and more importantly, if the ruling of Justices Lewis and Clark was correct, then that means that thousands of VALID absentee ballot requests of Democratic voters statewide were improperly rejected because everyone was following the wrong interpretation of the law!  Those Democratic voters were improperly disenfranchised through no fault of their own. Why didn't the judges order a remedy for this mass disenfranchisement?

The net effect of the Lewis and Clark rulings is equivalent to adding 8 new statutes to the books:

104.234 Absentee ballot cheating is now allowed. As we clearly stated in chapter 101.62(1)(b), if you do NOT supply ALL the REQUIRED 9 items at the time you SUBMIT your application for an absentee ballot, an absentee ballot will NOT be issued. However, there is an exception: if the election officials (or operatives with your political party) commit a third-degree FELONY and ILLEGALLY issue you a ballot against your incomplete (and thus VOID) application, then your vote WILL count, and the election officials will be admonished. Therefore, your vote will count if everyone complies with the law OR if nobody complies with the law. The intent of this new law is to encourage people either to be completely law-abiding or completely lawless. Either is acceptable for your vote to fully count in Florida.

104.235 Re-definition of “MUST.” In Title IX, Chapter 101 (Voting Methods and Procedure), all occurrences of the word MUST are to be replaced by SHOULD. Therefore, strict compliance with voting laws is no longer required unless the courts, not the legislature, determine such compliance is essential or the word "essential" is added before the word MUST. You can now get an absentee ballot by making an honest attempt at filling out just your name and address. The other 7 things the legislature tried to require are now ruled completely optional. The information doesn’t even have to be accurate as long as your political party has people illegally working out of the election supervisor’s office who make an honest (but still illegal) attempt to try to correct it. Even though the completed application may still have erroneous data, you will can be issued a ballot which, if voted in substantial compliance with the law, will fully count and withstand court challenges. Even when the number of ballots with erroneous data on file is sufficient to show the wrong candidate was elected, your vote will fully count.

104.236 Cheaters always prosper. If one political party commits a third degree felony and biases the result of the election, any illegally issued ballots will fully count as if they are legal ballots. No illegal votes shall be reversed, even if it affects the outcome of the election. That means that, from now on, there is no reason for political parties not to cheat. Intentional wrongdoing and cheating will always help you win, even if you are caught red-handed and and even if you admit it in court. The ruling of the court is that the intent of the legislature in enacting the tougher absentee ballot voting laws in 1998 after the Miami absentee ballot scandal in 1997 was to make cheating easier and to ensure that illegally-issued ballots fully count.

104.237 Preferential treatment for Republican voters. Republican voters are henceforth allowed to substantially comply with the law if they specifically ask for an exception, but strict compliance is required for Democrats. So, for example, incomplete absentee ballot applications from Republicans must be accepted, while incomplete applications from Democrats must be discarded. If a Republican voter arrives 30 minutes late at the polls, they must still be allowed to vote and have their vote counted if they have a good excuse where it clearly wasn't their fault or or an excuse that shows that they thought they were in substantial compliance. Specifically authorized excuses include one or more of the following: "a Democrat set my watch back 30 minutes," "heavy traffic," "my boss kept me late,"  "I thought the poll closing time printed on the sample ballot was Pacific time zone," and "my watch stopped so I thought the polls were still open." However, strict compliance with the statutes is required for Democratic voters. Democratic voters who arrive late at the polls must be turned away.

104.238 Two wrongs make a right. If you aren't qualified to get a ballot (such as not complying with the statute, being underage, etc) and you get a ballot by a clerical mistake and use it to vote, your vote obviously won't be counted. However, if there was intentional fraud in issuing your ballot, then your ballot will fully count and cannot be challenged in court. This is because the two wrongs cancel each other out and make a right.

104.239 "MUST" must add "essential" if you really mean MUST. Because MUST is permanently re-defined to be "should," if you want to say MUST, it is essential that you also add the word "essential." Even using MUST and specifying that violation is a third-degree felony is not sufficient to indicate to the courts that a directive is mandatory. Because of the Boardman decision 25 years ago, all compliance to voting law henceforth shall be substantial compliance using essential information, not strict compliance, no matter what the legislature has explicitly specified in the statutes unless they used the words "essential." 

104.240 Illegal votes will count if we don't have to do math. Ballots issued illegally will count, but ballots issued legally may not, even where voter intent can be clearly determined. For example, in Palm Beach, where we can accurately (well within the margin of victory) recover voter intent (in aggregate) from the double punched ballots that were spoiled due to a confusing ballot design that was not the fault of the voter, those ballots will never be counted because it requires statistical techniques. But in Seminole, where illegally issued ballots were voted, those will count because it doesn't require math to recover the voter intent.

10.241 We can change the definition of words in the statute after the election without violating federal election law. Changing the meaning of the word "MUST" to "SHOULD" is OK to do after the election is held. This doesn't violate federal law because it was never determined in the past by the courts that MUST really meant MUST in this particular section. So this really isn't a change in the law since MUST in this section had always meant SHOULD, it's just that nobody on the entire planet Earth realized it until now (including the people who perpetrated the fraud in the Martin and Seminole cases who also thought it was illegal).

The facts on the Seminole case

The remedy that the courts should have ordered (and why)

Who really won?  

Seminole decision

Martin decision

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