A Federal Judge In Florida Has Ruled Ballots That Arrived Too Late In The Mail Won’t Count

FORT LAUDERDALE, Florida — US District Court Chief Judge Mark Walker ruled on Friday evening that Florida election officials can continue to ignore vote-by-mail ballots sent within the United States that arrived after 7 p.m. on Election Day, a deadline set by state law.

The ruling rejects an effort from Democrats who claimed those voters were being unconstitutionally disenfranchised because certain factors, such as late mail delivery, were beyond their control.

“The fact that there might be problems with the mail does not outweigh the state’s important interest in delineating finality in elections,” said an order by US District Court Judge Mark Walker, siding with Republicans who have argued in several cases this week that deadlines must remain rigid. “To hold otherwise could call into question the entirety of the vote-by- mail system itself.”

He added the state must have a “deadline after which vote-by-mail ballots may not be counted.”

The decision further imperils chances for Democrats, who have embarked on a campaign to count as many eligible votes as possible in Florida’s race for US Senator, where Democratic incumbent Sen. Bill Nelson narrowly trails Republican Gov. Rick Scott amid a statewide recount.

Judge Walker has ruled in several cases against Democrats this week, including by refusing to push back the election’s final certification. Scott’s campaign hailed the Friday night decision, saying in a statement, ”There is simply no path for Senator-elect Rick Scott’s insurmountable margin to be overturned.”

The case considers two legal issues. First, it asks if the 7pm Election Day deadline to receive mail-in ballots unduly burdens on the right to vote. Second, it considers if the fact that ballots sent from overseas can be received 10 days after the election, while those sent domestically cannot, creates an unconstitutional form of inequality.

The complaint was filed Monday by VoteVets, a national voter advocacy group of military veterans that claims 40,000 supporters in Florida, along with the Democratic National Committee and the Democratic Senatorial Campaign Committee. They allege the deadline violates First Amendment and Fourteenth Amendment rights, and is also unnecessary, demonstrated by numerous other states that do count mail-in ballots that arrive after Election Day.

“The outright rejection of such ballots, based on arbitrary conditions — namely the timeliness of post office delivery — outside the voter’s control unlawfully infringes upon the fundamental right to vote,” says the complaint, which cites 10 states that accept valid ballots as many as 10 days after the election.

The plaintiffs note that mail delivery can be delayed several reasons, such as when police evacuated a mail distribution center in Miami-Dade county in late October due to a bomb scare. “The 7 p.m. receipt deadline on Election Day for those whose vote by mail ballots are postmarked before Election Day is not justified by any legitimate state interest, let alone any compelling state interest that is narrowly drawn.”

They also say the timeline for delivering first class mail extended from three to five days recently, with little publicity. “Mail delivery can be delayed due to weather emergencies, human error causing bags of mail to be sent to the wrong transfer facility, traffic delays resulting in behind-schedule mail transfers, and understaffing at postal facilities,” the complaint says.

Mohammed Jazil, who is representing the Secretary of State’s Office, said in a phone conference with Judge Walker on Nov. 13 that the deadline for unofficial ballot returns was on Nov. 10, so adding more ballots now would require starting over from scratch. This is because the unofficial returns were already the basis for whether to conduct a recount — changing the underlying numbers after the fact could require or negate the need for a recount.

But Florida law already allows ballots to be counted up to 10 days later if they were sent from overseas, Uzoma N. Nkwonta, a lawyer for the plaintiffs, noted in the hearing, and as such, there’s no reason to ignore ballots sent domestically that arrive in the same timeframe. He said numerous ballots were discovered in Miami-Dade County, apparently the result of a postal problem, and the issue must be addressed urgently in order to avoid disenfranchising those voters.

The plaintiffs asked the court to declare that “all ballots postmarked before November 6 and received by the supervisor of elections within 10 days after Election Day should be counted in the general election,” while suspending state laws with the earlier deadlines.

But Walker said, “The deadline disparity does not deprive domestic voters of the opportunity to vote on equal terms with overseas voters. Just the opposite. The law gives overseas voters the opportunity to vote on equal terms with domestic voters.”

“The state’s regulatory interest is sufficient to justify the deadline,” he added.

Further, the plaintiffs asked the court to find that Secretary of State Ken Detzner must tell county election supervisors that “all vote by mail ballots postmarked before Election Day and received by the supervisor of elections within 10 days of Election Day must be counted” while temporarily delaying a Nov. 15 deadline to count any of those late-arriving ballots.

Lawyers Challenge Matthew Whitaker’s Appointment As Acting Attorney General At The Supreme Court

Lawyers on Friday brought a challenge to the validity of President Donald Trump’s appointment of Acting Attorney General Matthew Whitaker to the Supreme Court in a pending case.

Questions have surrounded the legality of Whitaker’s appointment since the day after the midterm elections when Trump forced out the former attorney general, Jeff Sessions, and announced on Twitter that Whitaker was his choice to be the acting attorney general.

“Because Whitaker’s appointment does not satisfy the Appointments Clause, it is unlawful, and he cannot serve as Acting Attorney General,” the lawyers wrote in Friday evening’s filing.

The issue is being brought to the Supreme Court in Barry Michaels’ pending petition for certiorari in a case challenging the federal law barring possession of a gun by a felon.

In addition to Michael Zapin, Michaels’ lawyer on previous filings, Tom Goldstein and his colleagues at Goldstein Russell joined Friday’s filing challenging Whitaker’s appointment.

Goldstein and the firm earlier this week had joined the Maryland attorney general in challenging Whitaker’s appointment in a different case before a trial judge.

They argued in that filing that the appointment violates both a federal law setting the order of succession at the Justice Department and the Constitution’s Appointments Clause, which requires the Senate to provide advice and consent on principal officers of executive branch departments.

In Friday’s filing at the Supreme Court, the lawyers made similar arguments, specifically raising the issue by asking the court to declare that Deputy Attorney General Rod Rosenstein, and not Whitaker, should be substituted as the respondent in the case for those reasons.

Additionally, the lawyers also ask the justices to take up the case without waiting for lower courts to rule, as it ordinarily would, because the issue is “a pure question of law” and could arise in “thousands” of cases.

Noting the many “personal responsibilities” of the attorney general, they warn, “If this Court declines to resolve this question immediately and instead determines several months in the future that Mr. Whitaker’s appointment was always invalid, then ‘unwinding’ all of those personal orders would be a fraught and disruptive exercise that could embroil the federal courts in innumerable collateral disputes.”

This is a developing story. Please check back at BuzzFeed News for the latest.

Stacey Abrams Has Effectively Ended Her Campaign For Governor In Georgia

Democrat Stacey Abrams effectively ended her campaign for governor in Georgia on Friday night, accepting that Republican Brian Kemp would soon be named the official winner.

“I acknowledge that Brian Kemp will be certified as the victor in the 2018 gubernatorial election,” Abrams said at a press conference. “But to watch an elected official who claims to represent the people in this state baldly pin his hopes for election on the suppression of the people’s democratic right to vote has been truly appalling.”

She refused to call her statement a traditional concession, maintaining that the race was rife with voter suppression and unfair, but that she had limited legal options to proceed further.

“This is not a speech of concession. Because concession means an action is right, true, or proper. As a woman of conscience and faith, I cannot concede that. But my assessment is the law currently allows no further viable remedy,” Abrams said.

Voting rights has been the central issue in the race. Kemp until recently was Georgia’s secretary of state, serving as the state’s top elections official. In that role, his office held over 53,000 voter registration applications — predominantly from black voters, the AP reported — for what it called voter roll maintenance. Abrams campaign has said those efforts and others amounted to voter suppression and called on Kemp to resign as secretary of state, a step he only took last week.

In the first debate of the election, Abrams accused Kemp of creating “an atmosphere of fear” around voting in the state. Kemp refuted the claims, and blamed Abrams and her voter registration organization for “sloppy” voter applications.

National Democrats have backed Abrams up, with some high-profile senators suggesting that the election has been unfairly conducted. “If Stacey Abrams doesn’t win in Georgia, they stole it,” Ohio Sen. Sherrod Brown said this week.

Abrams said Friday that she planned to soon file a “major federal lawsuit” against Georgia “for the gross mismanagement of this election and to protect future elections.”

Kemp declared the election over soon after Abrams’ remarks, and implored the state to move past “divisive politics.”

Georgia’s election officials have spent the days since last Tuesday’s election trying to count outstanding ballots in the race, where Kemp has consistently held just over 50% of the votes. That margin is crucial: Under state law, if no candidate clears 50%, the race, which featured three candidates, would go to a December two-candidate runoff election.

Abrams had pushed for a runoff since the results came in on Election Day. “If I wasn’t your first choice, or if you didn’t vote, you’re going to have a chance to do a do-over,” she said early last Wednesday morning, hours after Kemp had declared victory.

Abrams on Friday asked her supporters not to be angry, or turn away from politics. “The antidote to injustice is progress,” she said. “The cure to this malpractice is a fight for fairness in every election held, in every law passed, in every decision made.”

The House Freedom Caucus Chairman Has Been Reprimanded By The House Ethics Committee

The House Ethics Committee on Friday reprimanded Rep. Mark Meadows of North Carolina, the chairman of the conservative House Freedom Caucus, for his handling of sexual harassment allegations made by female staffers against his former chief-of-staff, Kenny West.

In its report, the Ethics Committee said Meadows failed to “take appropriate steps to ensure that his House office was free from discrimination and any perception of discrimination.” The committee also said it will require Meadows to reimburse the US Treasury for the “overpayment” of West’s salary, in the amount of $40,625. A spokesperson for Meadows told BuzzFeed News in an email Meadows will pay the amount.

The independent Office of Congressional Ethics’ report, which was passed along to the House Ethics Committee, said multiple female staffers complained about West in October 2014. The women alleged he had engaged in “unwanted touching, inappropriate staring and unprofessional comments.”

The House Ethics Committee, which has no jurisdiction over West, determined that the women were “credible and their testimony was consistent.” They alleged West looked up skirts, down shirts, and engaged in unwanted touching, sexual comments, and inappropriate staring.

According to the committee’s report, Meadows arranged for an independent investigation of the allegations, which was conducted by a senior staffer from Rep. Trey Gowdy’s office. But once it was completed, Meadows ignored the investigator’s recommendation to fire West. Instead, he kept West in his role in the months that followed, which meant his responsibilities and salary did not change.

Meadows, according to the committee, put in place “restrictions” to keep West away from female staff members. But they didn’t work, to the point that a congressman approached Meadows on the House floor to talk about the issue, the report states. It wasn’t until Speaker Paul Ryan’s office got involved in April 2015 that West was removed as chief of staff, but even then he was demoted to a “senior advisor” role and kept the same salary.

The House Ethics Committee, for its part, found the “restrictions” problematic, and noted in its report that an “environment where only male staff have access to the chief of staff risks unequal treatment of employees based solely on sex.”

The committee also acknowledged Meadows took “important immediate steps” in restricting West’s access to congressional offices and keeping him from contacting most female employees, but ultimately concluded “he should have done more to address that behavior and prevent it from occurring again in the future.”

Rather than cooperating with an investigation by the independent Office of Congressional Ethics that started in October 2015 —which Meadows called “a costly and burdensome process”— Meadows wrote to the House Ethics Committee, which is made up of his House peers. In the letter Meadows asked that the committee review his decision to continue paying West in the months following his resignation, noting that the continued payment was a “severance” and that West continued to engage in “legitimate official activity.”

In a statement on Friday, Meadows said he appreciated that the House Ethics Committee acknowledged “the immediate, appropriate, and good faith steps I did take after learning of my staff’s concerns—including immediately separating the chief from the accusers so they never had to interact with him personally during the independent investigation.”

“Making sure my team feels safe and secure in our office is the highest priority for me and I’m truly sorry for any stress or burden this situation caused them,” Meadows added.

Now The Government Says The White Supremacist They Arrested Called The Mail Bombs A “Dry Run,” Not The Pittsburgh Shooting

WASHINGTON — Federal prosecutors in Washington, DC, have walked back a statement in court filings linking a white supremacist arrested on firearms charges with the alleged Pittsburgh synagogue shooter.

In a criminal complaint unsealed Nov. 13 in federal district court in Washington, an FBI special agent stated that the defendant, DC resident Jeffrey Clark Jr., posted a photo of alleged Pittsburgh shooter Robert Bowers on the social network Gab, known as a hub for the alt-right, and the comment: “Nah he was BASED! Get used to it libtards. This was a dry run for things to come.”

The agent wrote: “This statement implies that Jeffery Clark did know more about the attack in the Tree-of-Life synagogue, and that there was more to come.”

But at a detention hearing for Clark on Friday, Assistant US Attorney John Cummings Jr. told the judge that the government now believed Clark was referring to the arrest of Cesar Sayoc, the man charged with sending explosive devices to CNN and a number of current and past Democratic officials. Clark had also posted what appeared to be a photo of Sayoc’s van.

Clark’s lawyer David Bos asked US Magistrate Judge G. Michael Harvey to free Clark pending trial, and argued that in light of the government’s change in position about the meaning of Clark’s posts — and after numerous media outlets, including BuzzFeed News, ran stories highlighting Clark’s apparent reference to the synagogue shooting — the judge should be skeptical about the prosecution’s representations now.

Harvey ultimately granted the government’s request to keep Clark held pending trial. He found that given the combination of the evidence against Clark related to his possession of firearms, drug use, and threatening statements online — the judge said it appeared Clark wanted to start a race revolution — Clark posed a danger to the community.

The judge did press Cummings about the shifting interpretations of Clark’s Gab posts. Cummings said that when Clark made his initial appearance in court on Nov. 13, Cummings told the judge that they were continuing to investigate Clark’s statements. Once prosecutors had more information, he said they told Clark’s lawyer, and noted it in the written request for pretrial detention filed the day before the hearing.

Clark, wearing an orange prison uniform, did not speak for most of Friday’s hearing. He did not appear to have a strong reaction when the judge announced he would stay in custody pending trial. Harvey told Clark that he could appeal the judge’s decision with the US district judge taking over the case, and Clark said he understood.

Clark is due back in court before US District Judge Timothy Kelly for a status hearing on Nov. 27.

A federal grand jury returned an indictment against Clark on Thursday, charging the DC resident with unlawfully possessing firearms as the user of a controlled substance, which is a felony; Cummings said there was evidence Clark smoked marijuana, which is legal to possess in Washington, DC, but still illegal under federal law, on a daily basis. He was also charged with possessing a large-capacity ammunition magazine in violation of DC law.

Clark entered a plea of not guilty on Friday. His lawyer hinted at possible future First Amendment and Second Amendment challenges in the case — the judge noted that the federal firearms-plus-drugs charge Clark faced was rarely used.

According to the FBI agent’s affidavit in the original criminal complaint, Clark had posted online that the victims of the Pittsburgh synagogue shooting “deserved exactly what happened to them and so much worse.” After the shooting, two of Clark’s relatives contacted the FBI to express concern that he was a danger to himself and others. When the relatives went to check on Clark, he gave them four boxes of “parts to weapons” that weren’t registered to Clark or to his brother, who committed suicide hours after the Pittsburgh attack, according to the FBI.

Law enforcement recovered multiple firearms — most registered to Clark or his brother, but one gun that was not — as well as evidence of marijuana use, according to Cummings. The FBI agent’s earlier affidavit noted that Clark’s Gab profile included the phrase “Meth-Smoking” as part of his self description, but Cummings said a drug test didn’t find any evidence of methamphetamines.

If convicted of the more serious felony charge, Cummings said on Friday that Clark faced an estimated sentencing range of 15 to 21 months in prison, given his lack of previous criminal history.

Rep. Ruben Kihuen Has Been Reprimanded By The House Ethics Committee After He Was Accused Of Sexual Harassment By Multiple Women

The House Ethics Committee reprimanded outgoing Nevada Rep. Ruben Kihuen on Friday for making “persistent and unwanted advances” toward women required to interact with him for work, but did not recommend any disciplinary action against him.

Kihuen was accused by multiple women of sexual harassment starting last year when BuzzFeed News first reported on allegations of one woman, Sam, who said she left her job working as Kihuen’s campaign finance director because of his repeated harassment.

Because of the allegations, the congressman — once seen as a rising star in the Democratic caucus — chose not to run for reelection. The allegations led to the Ethics Committee investigation, but its report, which includes a decision to “reprove” Kihuen, was not made public until Friday.

Reproval by the committee is “intended to be a clear public statement of rebuke of a Member’s conduct issued by a body of that Member’s peers.” The report states that the could have “sought harsher sanctions” but found reproval to be the “appropriate” step. The committee would have lost jurisdiction over Kihuen when he is officially no longer a member of Congress.

In the course of its investigation of the allegations against Kihuen, the committee interviewed three women who said he sexually harassed them, including Sam.

“I definitely feel very relieved because, I mean, I probably shouldn’t have done this, but I read comments that people posted online,” Sam told BuzzFeed News on Friday after the Ethics Committee’s report came out. She added some of the comments had questioned whether she was telling the truth. “I think it’s important for the Ethics Committee to say, yes we believe these women, and no, we don’t think this behavior is OK.”

“I mostly just feel very relieved.”

Sam said that the Ethics Committee had not reached out to her to let her know the investigation had reached its conclusion and that she first learned about it from BuzzFeed News.

The committee’s report on Kihuen noted similarities in the allegations “[bolstered] the credibility of the complainants.” None of the women were named in the report, but Sam, who was identified as “Campaign Staffer,” and another woman identified as a “Nevada Lobbyist” both testified that Kihuen touched their thighs while in a car with him, according to the report.

Among the report’s other findings:

  • Sam and the “Nevada Lobbyist” testified that Kihuen grabbed their thighs or buttocks while alone with Kihuen in an office.

  • The “DC Firm Employee” and “Nevada Lobbyist” testified “and/or produced evidence” that Kihuen brought up their work and career advancement while making sexual advances.

In a statement on Friday after the report was made public, Kihuen said he recognized that “regardless of the fact that I never intended to make anyone feel uncomfortable or disrespected, what matters is how my actions were perceived by the women who came forward. It saddens me greatly to think I made any woman feel that way due to my own immaturity and overconfidence. I extend my sincere apologies to each of these women.”

He went on to say that he does “not agree with aspects of the Report.”

Trump Administration Again Considering Ways To Force People To Wait In Mexico For Their Immigration Cases

US immigration officials met this week to discuss a proposal to send those who arrive at the US-Mexico border to Mexico while their immigration cases are being processed in the United States, according to sources close to the administration.

The meeting, which included officials from US Citizenship and Immigration Services, Immigration and Customs Enforcement and US Customs and Border Protection, was meant so officials could consider a potential regulation that would apply immediately to individuals at the US-Mexico border, including asylum applicants.

Such a proposal would forgo the normally deliberative system that allows for public comment before a new rule is implemented. The ACLU recently sued the administration for following such a process when it instituted major changes to asylum applications at the border.

It’s unclear how the Mexican government would react to such a proposal. The discussions appear to be a renewed effort to discuss a proposal first raised in an executive order signed by Trump in 2017. The Mexican government previously publicly rejected those plans, and the Trump administration made no effort to implement the president’s instructions.

An administration source said that discussions with the Mexican government are ongoing.

“Implementing this policy without prior approval from Mexico would be extremely detrimental for the US’s relationship with the new Mexican administration,” said Sarah Pierce, an analyst at Migration Policy Institute. “If they move forward with this, it could result in Central American asylum seekers waiting in Mexico for months or even years.”

Trump administration officials have long complained that limited detention space forces them to release migrants who then live in the country for months or years as they wait for their case to be heard in immigration courts.

The Trump administration has recently imposed a series of new policies intended to limit asylum as an avenue for entering the United States, including a recent move to block asylum for those who cross the U.S.-Mexico border illegally.

The Supreme Court Will Hear Arguments Over What Evidence Can Be Used In The Census Citizenship Question Case

The Supreme Court will hear arguments in February over what evidence should be allowed in a legal challenge to the Census citizenship question.

If the Justice Department is successful in its arguments, those challenging agency actions of all stripes could face additional limits on how they can make their cases in the future.

The case out of New York — in which governments and immigrant organizations challenge Commerce Secretary Wilbur Ross’s decision to include a question about citizenship in the once-a-decade count — has already been before the justices repeatedly.

The Justice Department first asked the justices to halt depositions that US District Judge Jesse Furman ordered of two officials and stop expanded discovery in the case, but the court only put one of the depositions, that of Ross, on hold.

The department then returned to the justices, asking them to halt a trial that was scheduled to start on Nov. 5. The Supreme Court denied the request.

Ross announced earlier this year that the question would be included in the forms that collect information for the census. The challenges have raised questions about Ross’s motives, the Justice Department’s role in that decision, and whether others — including the White House and outside figures — influenced the move. The addition of the question, which has not been included in the census since 1950, has been opposed not only by immigrant groups and Democrats but also by former directors of the census under presidents of both parties and the agency’s own scientists.

The trial itself went forward, and it is now — with the exception of Ross’s sought testimony and closing arguments — done. Closing arguments are set for Nov. 27, but it was not immediately clear how Friday’s Supreme Court order will affect the closing arguments or Furman’s resolution of the trial.

The question before the justices in the case accepted on Friday, however, could complicate that. The justices will consider the Justice Department’s argument about what evidence should be allowed in the case, a challenge under the Administrative Procedure Act.

Ordinarily, the evidence in such cases is limited to the administrative record prepared by the agency — essentially a collection of documents involving the decision in question, the reasons the agency gave for the decision, and certain related documents. There are exceptions, however, including if the court finds “a strong showing of bad faith or improper behavior” on the part of the decisionmaker.

In this case, the district court had ordered additional evidence sought by the challengers outside of the administrative record because it had found a strong showing of bad faith on the part of the Commerce Department. Specifically, Furman ordered the additional discovery due to questions about Ross’s stated reason for including the citizenship question, which was, he said, to assist the Justice Department with meeting its obligations under the Voting Rights Act.

Although Ross’s March decision initially was presented as having been generated from a request made by the Justice Department, information made public since then showed that the efforts regarding the question’s inclusion came first from the Commerce Department itself — which sought the Justice Department’s assistance in justifying the addition of the question. (The then-head of the Justice Department’s Civil Rights Division, John Gore, was the second deposition sought in the case. He had drafted the letter later sent to the Commerce Department. His deposition was not halted by the Supreme Court and took place before the trial began.)

Further information suggested that Ross and the Commerce Department had, in turn, received information about the issue from a White House-prompted discussion between Ross and then-Kansas Secretary of State Kris Kobach — a “voter fraud” hardliner who has had his claims rejected in court. Kobach had been in communication with the Commerce Department, per an email made public earlier this year, “on the direction of Steve Bannon” — the former senior strategist to Trump. The Justice Department later acknowledged even further entanglement, stating in a court filing in October that Ross “recalls” that Bannon had called him in the early months of the Trump administration and asked if he would be willing to talk with Kobach about the issue.

The Justice Department argued that the Supreme Court should hear the challenge because, it argues, the additional evidence, including the attempt to depose Ross, amounts to an effort “to probe the mental processes of the agency decisionmaker.”

New York and the other states challenging the question’s inclusion opposed the Justice Department’s request for the Supreme Court to hear the case, arguing that the standards for allowing evidence in administrative action challenges outside of the administrative record are well established and were adhered to by the district court in this case.

The Justice Department counters that “as long as the decisionmaker sincerely believes the stated grounds on which he ultimately bases his decision, and does not irreversibly prejudge the decision or act on a legally forbidden basis, neither initial inclinations nor additional subjective motives constitute bad faith or improper bias” that would allow the court to order additional evidence be added to the record.

Briefing in the case will take place on an expedited schedule ordered by the court on Friday, with the Justice Department’s opening brief due Dec. 17, the challengers’ responses due on Jan. 17, and the department’s reply due on Feb. 4. The oral argument in the case is scheduled for Feb. 19.

Here’s What’s Happening In The Florida Senate Race — And Why The Republican Will Probably Win

Everyone has kept an eye on the goings on in the Sunshine State since election night, and for good reason: several state-side contests eroded into recount territory.

Let’s set aside all the assumed conspiratorial nonsense about stolen votes and get down to what we know went wrong in one particular county and how it may be impacting the closest statewide race of national interest, the U.S. Senate contest between incumbent Democratic Senator Bill Nelson and current Governor Rick Scott.

Election night discrepancies

All counties are required to report their early (that’s in-person early) vote by 7:30pm EDT on Election Day. Sixty-six counties in the state compiled, but Broward, per the Florida Secretary of State’s tracker late into the week, failed to do so. There has been some back and forth on Twitter as to the letter of the law, perhaps giving some wiggle room to Broward, but whatever the excuses, every other county found a way to comply with this reporting deadline.

Vote count changes after election day

Absentee and provisional ballots, along with some early votes in Broward, were added to the reported totals over the next 96 hours. Scott went from a 50,000+ vote edge to just over 12,500 with these updates, enough to push the contest well beyond machine into hand recount territory.

Let’s sue everyone

Scott attempted to force the impoundment of ballots and voting machines in Broward County, a motion rejected by a judge on Monday, and a similar motion involving Palm Beach County was rejected Tuesday. A Broward County judge sided with Scott on the matter of voter information (ballots cast, counted and yet to be counted) in a suit against the county’s Elections Supervisor Brenda Snipes. Scott also won a suit against Hillsborough County that had alleged observers were not being allowed into the recount room (in violation of state law). It wouldn’t be a Florida recount without additional lawsuits, of course: Common Cause and the League of Women Voters filed a suit earlier this week to block Scott from involvement in the recount. The governor has since recused himself from the certification process.

Bad ballot design cost Nelson (and Scott!) thousands of votes

The ballot design across the county placed the Senate contest directly underneath of the ballot instructions. If this sounds bad, well, it is: the U.S. Election Assistance Commission urges election officials not to do this, but Broward went ahead and did so anyway.

A strong theory floated by Democratic consultant Matt Isbell argues that busy voters missed the race entirely because of this ballot placement. The other argument, pushed by Nelson’s lawyers, is that this undervote is actually a machine error, one that could be revealed in a hand recount.

But the results from the hand recount, trickled out by the press Friday, proved Isbell’s theory to be the correct one: Few people in the undervote ballots cast for Senate.

Deadlines, deadlines, deadlines

The machine recount had been completed and reported to the state 3pm EST on Thursday, November 15th. Both Palm Beach AND Broward missed the machine recount deadlines, so their original counts were reported as part of the machine recount (PBC still has a few days to report a final machine recount for state records). A manual recount of the overvotes and undervotes set-aside from the machine recount must be completed by November 18th.

What this all likely means

The confirmation of genuine undervoting in Broward has basically assured Rick Scott his victory in this tight race. Nelson was delivered a blow perhaps as fatal as Broward’s phantom votes Thursday: U.S. District Judge Mark Walker rejected Nelson’s challenge to the hand recount rules.

The math simply isn’t there for Nelson — he needed that undervote to have been missed votes and sympathetic court rulings to allow for extensions on provisional ballot confirmations and on what constitutes valid signatures and ballots and for those provisional and rejected mail-in ballots to exceed his current deficit.

Trump Chooses New Permanent EPA Chief: Former Coal Lobbyist Andrew Wheeler

President Donald Trump on Friday said he’s going to nominate Andrew Wheeler to formally take over the Environmental Protection Agency.

Wheeler has been the acting head of the agency since July, when Scott Pruitt stepped down from the role amid multiple ethics scandals. Under Wheeler’s watch, the EPA announced it is rolling back car emission standards and proposed a weaker replacement to the Obama-era Clean Power Plan, which regulated coal pollution.

Wheeler’s nomination had been rumored for weeks. As the nominee, he will have to go through another Senate confirmation, which he already passed when he became deputy administrator earlier this year.

Trump said Wheeler has “done a fantastic job” and “is going to be made permanent.”

Before joining Trump’s EPA earlier this year, Wheeler led the energy and environment portfolio at Faegre Baker Daniels, a consulting law firm. In that role, he lobbied for the coal mining company Murray Energy Corporation on environmental regulations.

This is a developing story.