Decisive lead or not, District 18 unofficial winner Patrick Murphy can expect Allen West to keep sparring with elections officials in court for at least a few weeks, according to a Nova Southeastern University constitutional lawyer.
The Republican Palm Beach Gardens congressman could even stretch it out for months by pleading his case to the U.S. House of Representatives. He could take the battle into 2013 by challenging Murphy's January swearing into Congress.
But ultimately, Bob Jarvis of Nova Southeastern's law school said, neither the courts nor Congress likely will entertain much of West's argument. Any ballot issues affected both candidates, he said, and the House historically doesn't overturn election results.
"Whatever disadvantages (West) was working under, Murphy was working under," Jarvis said. "The court is really only interested when there is obvious bias where it's clear. If one candidate's name is left off the ballot, well then obviously you have a real problem."
After a partial recount Sunday in St. Lucie County, West trailed Murphy by 1,907 votes, or 0.57 percent, across the Martin-St. Lucie-northern Palm Beach district. West lost 132 votes and his Democratic Jupiter opponent dropped 667 with the re-tally of early ballots from Nov. 1 through 3.
Murphy's lead was still large enough to prevent a state-required automatic recount across the entire district. That only occurs when the lead is 0.5 percent or less. A few military and overseas ballots are due to supervisors by Friday and still need to be counted. But the unofficial results Saturday determine if a race is eligible for a recount. If court ordered, a recount could occur Wednesday.
In the first legal defeat, a Palm Beach County Circuit Court judge dismissed West's motion Friday to impound ballots and voting machines for a potential recount. Judge David F. Crow called the request "entirely premature" because unofficial results, which came in Saturday at noon, weren't available at the time. He said West's legal team presented no evidence that Florida election law had been breached, and added that the courts are supposed to stay largely out of elections.
The same motion was filed in St. Lucie County circuit court, but no hearing has been scheduled. Asked if he will keep pursuing legal action in St. Lucie if his motion is denied, West said Saturday, "We have to sit down and talk about it."
West campaign manager Tim Edson called St. Lucie's recount a sham. West's campaign had called into question a different set of ballots from Oct. 27 through 29. Edson also thought the elections office had ordered a recount of all early votes, but instead only a select group were recounted. Additionally, the campaign ordered a comparison of total voter signatures with total ballots counted, to see if the numbers match.
"West for Congress will pursue every legal means necessary to ensure a fair election," Edson said, "not only to ensure (St. Lucie County Supervisor of Elections) Gertrude Walker is held accountable, but also ultimately replaced, so the citizens of St. Lucie County will be ensured fair and accurate elections."
U.S. Rep. Tom Rooney, a Tequesta Republican who represents much of Martin and St. Lucie now, said West had good reason to question results.
"If there's a question out there, put the question to rest and let's move forward with a clear conscience," Rooney said.
With unofficial numbers finalized and results due for certification Friday, West's upcoming legal challenges will likely concern ballot confusion and suppression of the vote, Jarvis said.
But Jarvis said elections officials are required to oversee "reasonably well-run elections," not perfect elections. He added that the 2000 presidential case Bush v. Gore set the standard for this type of challenge.
"With the whole notion of the Palm Beach butterfly ballot, every candidate was disadvantaged," Jarvis said. "That wasn't a ballot that clearly tilted in somebody's favor. ... For the most part, courts do take a very hands-off approach."
A second route is available for West. The congressman can file a challenge with the House when Murphy takes his seat in January, saying he was the winner. That's because Article I of the Constitution give the House or Senate authority to decide a contested election.
But that doesn't mean West has much of a shot, even with the Republican majority House, Jarvis said.
"There have been over a hundred of these challenges in the last century, but they really never succeed," Jarvis said.
Murphy, meanwhile has moved on as the presumptive new District 18 congressman. He appeared Monday on MSNBC's Hardball with Chris Matthews and definitively called himself the victor.