Runup to 2022 elections: A court contest that’s really about thwarting the Big Lie

By Noreen Marcus, FloridaBulldog.org

A court challenge to Miami-Dade County’s election chief Christina White marks the early days of a rollicking Florida political season runup to the August primary and November general elections.

On its face, the case filed in Miami last week raises this not-so-sexy issue: Must county election officials save digital ballot images as public records for 22 months, or can they let the images disappear without violating state and federal laws? 

This isn’t the first litigation of its kind and it probably won’t be the last; Broward County’s top election official may be the next defendant. About half of Florida’s 67 counties allegedly flout the law by failing to keep digital ballots, and they can only be sued one by one, thanks to a recent appellate court ruling.

The new round of lawsuits aims to reassure voters that the system is clean and transparent and the results are legitimate, backers say. They’re fighting to preserve not only ballots, but an embattled democracy.

“We hear so much about how public confidence in elections has been shaken,” said State Rep. Joe Geller, D-Aventura, the lead plaintiff. “There are calls for audits. Some of them don’t make sense, but we certainly want to do whatever we can to verify the accuracy and security of our elections.”

UNSAVED DIGITAL BALLOTS ARE LOST

He’s a longtime fan of using E-ballots as a backstop for paper. “It’s another independent method of verification that’s very helpful in the case of a recount but also exists to bolster public confidence in the accuracy, reliability and security of our elections,” Geller said.

Paper ballots are easier to manipulate, voting experts attest. They can be “modified with a pen, accidentally destroyed or inappropriately shredded,” Ray Lutz, founder of the nonprofit Citizens Oversight, has said.

Here’s how the digital method works, according to Susan Pynchon, executive director of the nonprofit Florida Fair Elections Coalition: Every time a paper ballot is scanned, a digital ballot image is automatically created. The votes are counted from that image, not from the paper ballot. Every ballot has a corresponding “cast vote record” that shows how the votes on that ballot were counted.

When election supervisors set up an election they have a choice as to whether they save all the ballot images, only the write-in images, or no images. All Florida counties save the relatively small number of write-ins and about half save everything. If images aren’t saved they disappear, Pynchon said.

Concerns about and enthusiasm for using digital images cut across party lines at the county level. Not so at the state level, where there’s a clear split between Democrats like Geller, who favor it, and Republicans like Secretary of State Laurel Lee, who oppose it, said Chris Sautter, legal counsel to the nonprofit AUDIT Elections USA and a plaintiffs’ lawyer in the Miami case.

PARTISAN DIVIDE AT STATE LEVEL

“These things usually come from the top,” Sautter said, and Republican leaders have given county supervisors of elections (SOEs) what he calls misinformation about delays in reporting election results and greatly increased costs for computer storage.

“The SOEs, many of whom want to do the right thing, believe them over us,” he said.

But Broward County Supervisor of Elections Joe Scott told Florida Bulldog he isn’t swayed by anyone, including the plaintiffs in the digital ballot case. “I feel like they’re being a little bit close-minded in not seeing there’s other ways,” said Scott, a Democrat.

His way is relying more on paper ballots and using a system called Clear Ballot as a backup. “If we have the hand marked paper ballot image and then we have the Clear Ballot image, how much should we spend for a third copy of the same image?” Scott asked.

“Will a third copy of the same image alleviate the very unreasonable concerns [about fraud] that people have because they’ve been lied to? So the solution isn’t to create another unnecessary step in the election system, the solution is for losing candidates not to lie about the fact that they lost,” he said.

LAWSUIT TAKES SOME TURNS

The ongoing effort to make sure digital ballot images are preserved dates to July 2020, when Sautter’s clients sued Lee, Scott, Miami-Dade County’s SOE Christina White and six others in Tallahassee state court.

The plaintiffs claimed a partial victory when the election officials agreed they would keep digital images after the Nov. 3 presidential election.

Some had feared a repeat of the disputed 2000 election in which George W. Bush beat Al Gore in Florida by a razor-thin margin of 537 votes to win the presidency. But on Nov. 3, 2020, then-President Donald Trump won Florida handily.

Back in court, the plaintiffs set their sights on the 2022 election. They lost ground when the First District Court of Appeal ruled last July that government entities must be sued where they’re based.

So for example, SOE White couldn’t be summoned from Miami to Tallahassee – even remotely via Zoom, the way hearings are held during the COVID-19 pandemic – to defend her policy of keeping only write-in digital ballots.

RACE RESUMES IN MIAMI

“It flies in the face of having a uniform system of elections applicable to all counties, but that’s the rule,” Geller said. “In reaction to the First DCA decision we filed our first local lawsuit against Miami-Dade County. Others may follow.”

The lawsuit asks a judge to order White to save all digital ballot images for 22 months. Miami-Dade SOE spokesperson Suzy Trutie said White doesn’t comment on pending litigation.

Now the plaintiffs are racing to meet election deadlines. Sautter said they need a final ruling by late July. With time-consuming appeals, that may not happen.

To him, Geller and the other plaintiffs, the stakes are enormous. “Ballot images can help defeat the cynicism that is undermining our democracy,” Sautter said. “Florida election officials need to enter the digital age.”