Court fight over fate of digital ballot images looks to 2022 Florida election

By Noreen Marcus, FloridaBulldog.org

A lawsuit aimed at making Florida voting more secure and transparent took a breather for last year’s elections but is active again – in time to figure into the 2022 Senate and governor races, activists hope.

The wonky focus of their concern is digital ballot imagery, an electronic footprint that’s automatically created with each vote cast on a scanner. The images provide a backstop for paper ballots, one that’s probably less susceptible to human error than, say, ballots dripping with hanging chads (see Bush/Gore presidential recount of 2000).

Digital ballot images can come in handy for recounts. Therein lies the problem: state law requires generating, but not keeping, them for future reference. And it’s been a common practice to destroy the images after elections.

“How can the law say that you can use them but there’s no right to have them preserved? That’s a ridiculous contradiction,” said Chris Sautter, legal counsel to the nonprofit AUDIT Elections USA and a plaintiffs’ lawyer in the lawsuit on appeal in Tallahassee.

“If it’s clear that ballot images are important enough to be used in a recount, then they should qualify as an important enough record to be preserved,” Sautter said.

Joe Scott inherits a lawsuit

About half of Florida counties are free to deep-six the digital ballot images; the other half follow the federal rule for election materials by keeping them around for 22 months. Among the largest counties with no retention policy are Miami-Dade and Broward.

When Joe Scott became Broward’s supervisor of elections in January, he stepped into the six-month-old lawsuit as one of eight county defendants. The Florida Democratic Party, three Democratic legislators and a handful of voters — one’s a registered Republican — are trying to force Florida Secretary of State Laurel Lee to order all county supervisors of elections to keep digital images for 22 months.

According to Democrat Scott, who worked in the tech industry before winning office, he’s little more than a nominal adversary in the lawsuit. He said he wants the same things the voting rights activists want – transparency, accuracy and public oversight.

He just has a different approach to reaching those goals. He wants to rely on an auditing system called Clear Ballot to back up digital ballots, as opposed to auditing paper ballots with digital ones that he fears could be hacked.

Scott noted that a purpose of a recount is to determine voter intent. “Do we want a machine to be the final decision-maker on the voter’s intent, or do we want a human being?” he asked.

Broward SOE: ‘Let me handle it’

“I guess that the people behind this lawsuit sort of see this one solution and they don’t see there are other ways to solve a problem,” Scott said. “They’re trying to force their solution as opposed to letting some other people like me come up with a better solution, and they should let me handle it.”

But to Sautter and his clients, letting various election supervisors implement their favorite approaches creates a greater problem: no uniformity. After the 2000 election the U.S. Supreme Court decided in Bush v. Gore that Florida’s system of allowing counties to use different standards for recounting votes violated the Equal Protection Clause of the 14^th Amendment of the U.S. Constitution.

“The most important argument is the need for consistency in the laws, that the election laws be unified,” Sautter said. “If there’s a recount and one of the parties wants to use ballot images but there are counties that don’t preserve them, that automatically destroy them, they’re denied that right.”

Before last year’s primary, the plaintiffs in the Tallahassee state court lawsuit agreed to pause the proceedings if election officials would agree to retain digital images after the Nov. 3 presidential election. They did.

The plaintiffs’ angst-inducing model was, of course, the 2000 election in which George W. Bush beat Al Gore in Florida by a still-contested margin of 537 votes and became president. But on Nov. 3, then-President Donald Trump won big enough in Florida to avoid a recount.

2018 Senate race redux?

Now the plaintiffs worry about a repeat of the 2018 Senate election fiasco in Broward County when Rick Scott beat incumbent Bill Nelson by 10,033 votes statewide.

During the subsequent recount, Broward County election officials said they lost 2,040 paper ballots. If a digital trail had been available, it could have solved that mystery, Sautter argued.

Next year Gov. Ron DeSantis and Sen. Marco Rubio, both Republicans, are up for reelection. In order to impact the 2022 election, some kind of legal resolution must occur by late this summer, Sautter said, adding he hopes the First District Court of Appeal fast-tracks the case back to the trial court.

So if both sides want the same things, why continue the expensive litigation? Is there some partisan ulterior motive? Does Clear Ballot have the best lobbyists but maybe not the best system? Are the parties so invested and entrenched that they can’t negotiate a one-size-fits-all solution without judicial referees?

Settling the case is still possible, Sautter said. “Hopefully it won’t have to be tried, but we’re prepared to try it.”