Another legal challenge has to do with "provisional ballots," which are the ballots voters are allowed to cast in case their names can't be found on the rolls at their polling place on Election Day. Provisional ballots, which were required by the Help America Vote Act, the federal election reform law that President Bush signed in 2002, are meant to alleviate one of the most common problems elections experts see in voting, voters being turned away due to faulty registration rolls. Now, when a poll worker can't find a voter's name in the registration database on Election Day, the voter can cast a ballot provisionally; the state determines later whether to count the ballot. But Florida, unlike most states, has adopted an extremely rigid standard in deciding whether to count a provisional ballot -- a voter has to have cast his ballot at his home precinct in order to have his provisional ballot counted. Simon, of the ACLU, points out that this will cause many votes to go uncounted this year; going to the wrong precinct could be a fairly common mistake voters make. "Miami-Dade alone has added 130 new precincts, and what if you didn't get your card in the mail that told you where to go?" he asks. "Or what if you live in the part of the state that's been hit by hurricanes, and they moved your polling place or it had to be replaced at the last minute?" Just because you go to the wrong precinct, Simons asks, why should your vote for president or senator not be counted? But in Florida, these ballots won't count. In August's primary election, about 2,000 voters cast provisional ballots, and only half of them were counted, according to the Orlando Sentinel.

The outcome of these lawsuits will likely determine the rules of the Florida election game. And if Glenda Hood wins, many Democrats in the state fear, the outcome of the presidential election in Florida could be certain from the start.

The most contentious fight over the rules of the election in Florida occurred during the spring and summer, when Bush and Hood attempted to push through what critics call the racist, error-prone list of names of alleged ex-felons to be disenfranchised at the polls this year. The felon purge list has special sensitivity in Florida. In the 2000 election, tens of thousands of voters, most of them African-Americans, were erroneously included on the list. Numerous investigations of the irregularities on the list, including the first exposé of black voter disenfranchisement in Florida by investigative journalist Greg Palast in Salon as well as the U.S. Commission on Civil rights, have shown that many of the people on the 2000 felon list weren't felons, and were possibly, and probably, model citizens; their only crime was having a name similar to someone else who'd once committed a felony. The Commission on Civil Rights placed blame for the errors squarely on Jeb Bush and Katherine Harris, who it said failed to instruct local elections officials to "protect eligible voters from being erroneously purged from the voter registration rolls." The 2000 list, as it was structured, almost surely cost Gore the election. Since African-Americans vote overwhelmingly for Democrats, and since the list was disproportionately composed of African-Americans, it's reasonable to assume that many of those wrongly purged -- about 20,000 people -- would have voted for Gore. Instead, they were disenfranchised, and Bush squeaked by with a 537-vote margin.

According to Florida election law, people who've been convicted of felonies are permanently barred from voting, even after they've served their time, unless they're granted a formal clemency from the governor. State officials have always maintained that their felon lists are just an attempt to enforce Florida law, and any errors are the result of computer glitches and other malfunctions, and aren't intentional. In 2001, though, the NAACP sued the state for disenfranchising blacks, and in response the state agreed to be much stricter in the methods it uses for drawing up its felon list. The process outlined in the state's agreement with the NAACP goes roughly like this: The state's Division of Elections first collects the names of all felons from the Florida Department of Law Enforcement's central felon database. In order to create a purge list, the Division of Elections matches the names on the FDLE's felon list with names in Election Division's statewide voter-registration database; in order to prevent the false matches that occurred in 2000, the names must match in several fields, including address, Social Security number, date of birth and race. The Division of Elections then runs a similar process using a list of felons who've been granted clemency -- these names are removed from the purge list, since they're eligible to vote.

What's left, after all these processes, is a purge list of thousands of people whose names should be struck from the Florida rolls. Elections in Florida are not run in a centralized way, however; Glenda Hood's office has limited powers in purging voters from the registration database. Instead, state elections officials periodically send updated purge lists to each of Florida's 67 county election officials, and it's these local officials who are charged with contacting voters to let them know they've been purged. On May 5, Ed Kast, who then headed the state's Division of Elections under Hood, sent a memo to local elections officials notifying them of the new 2004 purge list. The list contained almost 48,000 names. "You must follow the notification procedure" to let voters know they may be purged, Kast told elections officials in the memo.

Given Florida's history of flawed lists, civil rights groups demanded that the new list be made public, but the state, citing voters' right to privacy, said that the list had to be kept secret. In a May 12 memo to local elections officials, Kast wrote that the only groups that were allowed to see the lists were political parties and candidates, who would presumably use the lists to determine election strategy. While the list was officially "secret," though, many rights groups did manage to get a peek at it. The Florida ACLU arranged for the Green Party of Florida to hire the group as legal counsel. As the Green Party's attorneys, the ACLU was then given access to the purge list. Meanwhile, attorneys at the Brennan Center for Justice, a civil rights advocacy project at the New York University School of Law, managed to get copies of the list as part of discovery in a related legal action they'd been pursuing.

What the civil rights groups saw of this secret list alarmed them. "At first it was more of a kind of investigative journalism than law," says Jessie Allen, an attorney at the Brennan Center. "We were piecing this together -- 'Look, it looks like 20,000 people are missing here from the clemency database, and some of those people are missing for the following reasons, and others are missing for these reasons ... .'" What the Brennan Center discovered was that thousands of people who'd been granted clemency had never been included in Florida's clemency list because the state lacked a few details about them, such as their Social Security numbers or dates of birth. These people's voting rights had been formally restored, but the state consciously chose to keep them off the list in case other felons who shared their names were possibly misidentified as having received clemency, Allen explains. In other words, the purge list was drawn up as expansively as possible; in order to prevent the small chance that some people ineligible to vote might cast a vote, the state decided to keep thousands who were eligible to vote off the rolls. "The philosophy was, 'When in doubt, keep them out,'" Allen says.

One of these people kept out was Sam Heyward, a 45-year-old African-American man in Tallahassee. When he was 22, Heyward purchased furniture that he says he knew was stolen; in 1981, he was convicted of this petty-sounding crime, and he served about a year in a work camp. Since then, Heyward says, he's lived a clean life. Today, he works at a local church, and while he professes remorse for what he did when he was younger, he says he also knows that he should be allowed to vote. And he's right. In 1986, Heyward was granted clemency by the governor, and he's voted in every major election since the late 1980s. "I've never had a problem voting," he says, even in 2000. But in early summer, Heyward received a call from Andrew Gillum, a Tallahassee city commissioner who had access to the secret list, and whose aide, a friend of Heyward's from church, recognized Heyward's name. "I was shocked," Heyward says. "I've got my papers showing my rights were restored -- and now right here in 2004 my name's on this list." In response, Heyward went to the local media, encouraging others who'd presumed they'd been granted clemency to try to determine whether they'd been placed on the purge list, too. In July, Heyward also testified before the U.S. Commission on Civil Rights. "I've been urging folks, 'Don't take this for granted.'"

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