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Court appears skeptical of Bernard's Florida House primary appeal

From the News Service of Florida:

UPDATE: The News Service of Florida corrected a mistake in the third paragraph of this report, clarifying that if 40 absentee ballots were thrown out in the case it potentially could put Rep. Mack Bernard over the top in the race. Initially, the report said that the action would put Bernard in the lead.

Democratic Senate candidate Mack Bernard's quest to overturn his 17-vote primary loss in August met a trio of skeptical appellate judges on Thursday, as they seemed unwilling to second-guess a lower court's decision rejecting the challenge.

A three judge panel of the 1st District Court of Appeal heard arguments in a case pitting Bernard against fellow Democrat Jeff Clemens to see who will represent the strongly Democratic Senate District 27 in Palm Beach County.

Though they didn't rule, the judges said they would be hard-pressed to overturn a decision last month by Leon County Circuit Judge Terry Lewis. The circuit judge let stand a Palm Beach County canvassing board decision to throw out nearly 40 absentee ballots that, if accepted, could potentially have put Bernard over the top in the tight race.

Citing a 2011 state election law, appeals-court Judge Nikki Clark seemed to echo the sentiments of her colleagues that Lewis appeared to fulfill a clearly defined obligation to compare the signatures on questionable ballots with those on voter registration records and determine if the canvassing board had abused its discretion by invalidating the votes.

Referring to transcripts of Lewis' September hearing, Clark said he appeared to do just that for each of the questionable ballots.

"I don't know how you get around the language of this statute," Clark said during questioning of Bernard's attorney, former Republican lawmaker J.C. Planas.

Lewis ruled in September that Palm Beach County election officials were justified in rejecting the 40 absentee ballots. Signatures on the ballots, the board concluded, did not match registration records.

In his ruling, Lewis said that the 2011 election law strictly limited his review to whether the canvassing board's decisions on whether signatures matched or not seemed reasonable.

On Thursday Planas argued that the board -- and Lewis -- should have looked at more information to determine whether the absentee ballots were indeed signed by the voters in question, including affidavits from voters who said they filled out the ballots.

"Our argument is the canvassing board had many tools to properly identify that this was the voter," Planas said. "They did not take advantage of those tools to the detriment of the voter. And we believe the trial court, when evaluating the issue, should say the canvassing board should use all tools available."

Clemens' attorney, Ron Meyer, said he was confident the court would reject the appeal. He pointed to Lewis' comments during the September hearing that showed the judge was thoroughly convinced that the signatures in question were not the same.

"What I'm saying is that Helen Keller could have seen that these ballots didn't match up with signatures on the registration record," Meyer said. "They were not even close."