I am going to start off with a gigantic disclaimer: I am not a lawyer. I am professionally acquainted with some of the parties to this legal action, but I am not personally involved in this legal proceeding. Any and all opinions presented here are mine, and do not reflect those of my past, present, or future employers.
There are two things that can always be counted on in Florida: sunshine and elections. And just as everyone here stresses out about getting in shape for swimsuit season, the elections officials in Florida ready themselves for election lawsuit season. While 2020 hasn’t been nearly as litigious as 2018, keep in mind that it’s only July. There’s still plenty of time for people to get upset about something. So join me on an odyssey through the complex labyrinth of election technology, statutory requirements, and power balances.
The Controversy
By now, anyone who is still reading is probably like “Get to the point, Genya!” Please. bear with me. This is a legal action that seems simple on the surface, but gets a lot more complicated once the logistics and the timetable for implementation get involved.
On July 1st, Governor Ron DeSantis inadvertently ignited a non-pandemic related controversy when he signed a new law stating that county Supervisors of Elections may use separate digital auditing scanners in conjunction with regular election tabulation devices to help speed up recounts. The next day, July 2nd, a group of activists, voters, candidates and attorneys filed a lawsuit against eight Florida Supervisors of Elections, the Secretary of State, and the head of the Florida Division of Elections.
The Lawsuit
For those of you who don’t feel like slogging through 750 pages of complaints, affidavits, and exhibits, here’s a brief rundown. The lawsuit hinges on whether or not the State of Florida is legally bound to compel all county election offices to preserve digital ballot images of paper ballots. Paper ballots are those originally cast by the voter, which are then fed into a ballot scanner and subsequently tabulated. Under federal and state law, county election supervisors must preserve the paper ballots for 22 months.
The plaintiffs in the suit are asking the Circuit Court to issue a Writ of Mandamus, which would mandate preservation of all ballot images from the August 18th primary election, as well as all future elections, for at least 22 months. Ballot images must also be made available for inspection as part of public record, and Plaintiffs are seeking injunctive relief to prevent ballot images from being deleted or destroyed. Finally, the plaintiffs are seeking a declaratory statement, which specifies the preservation of all digital ballot images from the August primary, as well as all future elections. Yes, it’s asking for the same thing in three different forms. If one prayer for relief doesn’t work, the next one might.
What are ballot scanners, ballot images, and why should anyone care?
A digital optical ballot scanner uses a read head under a glass plate to scan the ballot, while two tiny digital cameras take a picture of both sides of the ballot. The darkened targets marked on the voter’s ballot are compared to the file of the original ballot style, as defined by the Supervisor of Elections and their election management software. The ballot is validated for authenticity, completeness, and the presence of a barcode reader, which in turn creates a bitmap that is compressed to form a readable ballot image. The bitmap image of the ballot is then used to determine what choice the voter selected.
The paper ballot then goes into a collection bin, and the image is saved on a jump drive or internal hard drive along with the other ballots that were cast into the scanner. At the end of the night, the votes are aggregated and tabulated. The unofficial results are transmitted via wireless or modem connection, and the official results are saved on the jump drive which goes back to the election office. For Vote by Mail ballots, the central count scanner does about the same thing, except at a much faster rate, and the ballots get stacked into separate categories (undervotes, overvotes, write-in candidates), while the images of the ballots are saved to an internal 1TB hard drive.
After an election, the ballots are placed into boxes, sealed up, and stored in warehouses. The only time those boxes get opened is if there’s a recount or an audit. There are 67 counties in Florida. 15 currently provide preserved ballot images with a public records request or post all the ballot images on their websites so that voters can verify election results for themselves. The remaining counties either preserve write-in images only or none at all.
What is the justification for not preserving the images?
Technically, there’s nothing in the Florida Election Code or the Florida State Association of Supervisors of Elections Canvassing Guide that directly specifies the preservation of the ballot images from either the precinct-level scanners or the central count scanners if there was no original digital record created in the first place. The key word here is “directly”.
From a public records perspective, the plaintiffs do make a very convincing case for the preservation of the digital ballot images. Florida has an extremely broad public records law, and it clearly states that the laws are to be interpreted as such. Anything created while conducting an election, whether a physical piece of paper, or an electronic record, has the potential to be dragged into court during a trial. And since the ballots cannot be read by the ballot scanner without a ballot image being created in the first place, it makes sense that any digital images created should be preserved and made available as a matter of public record.
Here’s where things get complicated: while the relief requested by the plaintiffs seems quite reasonable, the standing of the plaintiffs to sue may be in question. Two of the plaintiffs do not live in any of the counties currently being sued. The judge is going to bring this up. How do I know this?
A Previous Lawsuit
This isn’t the first time this issue has been brought to the courts. In 2018, four of the plaintiffs in the current suit brought suit against a slightly different group of Florida Election supervisors in Federal Court. The case was dismissed by the Federal District Court with prejudice for the federal claim and without prejudice for the state claim. In other words, the plaintiffs can’t sue the defendants in Federal Court again, but there isn’t anything barring the suit from being introduced in State Court. And guess what? The plaintiffs filed in State Circuit Court. America is awesome.
Florida law is very persnickety when it comes to things like who has legal standing to sue. If someone isn’t a registered voter in a county named as a party to a lawsuit, the judge can remove them as one of the movants. Since this case names specific counties, that scenario is a real possibility. There are still six plaintiffs who do have legal standing, however, so losing a moving party or two shouldn’t affect the proceeding.
Can Florida Do This?
As far as prayers for relief go, the plaintiffs are not asking for the moon by asking that all digital ballot images be saved.. The voting systems in place in all 67 Florida counties absolutely have the capability and storage capacity to create and preserve all of the ballot images.
What is unreasonable is the timetable that the plaintiffs requested at the time of the filing. Earlier I noted that the date the lawsuit was filed in Leon County Circuit Court was July 2nd, 2020. The defendants were served between July 3rd and July 21st, and they have 20 days after service of process to respond to the court. In their prayer for relief, the plaintiffs ask the courts to mandate each county preserve all digital ballot images for the August 18th primary election – including the ballots cast during the Early Voting period and Vote By Mail. The judge has been asked to rule on the case prior to the start of mandatory pre-election Logic and Accuracy testing on July 29th. Did I mention that Early Voting begins on August 3rd?
The plaintiffs cannot reasonably expect any resolution or injunctive relief for the August primary within a 30 day time period, especially during a pandemic when the courts are backlogged. They are 100% justified in asking for a uniform ballot record retention standard that is clearly defined and applied equally to all 67 counties.
But were I Judge Dodson, the first question I would ask is why, if this was so important, wasn’t a petition for a Writ of Mandamus and injunctive relief filed well before July? This is the kind of legal battle that needed to be initiated in 2019, or prior to the March Presidential Preference Primary, not 30 days before the start of Early Voting and weeks after ballots were sent to military and overseas voters. Case in point: the case management hearing was conducted via phone on July 24. That was the same day that multiple counties (including Hillsborough) conducted their public L&A testing. The remaining counties will run their L&A testing through July 29th.
Why does the L&A test date matter? Can’t the Supervisor of Elections just push a button to change the settings to “Preserve All Images”?
There are a couple of very important reasons that the test date matters: first, it’s the last chance for the IT and equipment departments to troubleshoot, patch, update, and repair or replace any election system components that will be deployed during the election period prior to supply and equipment issue. Failing Logic and Accuracy testing means that a specific component cannot be used during the voting period. Equipment is always in short supply, and multiple ballot scanners or ballot marking devices being decommissioned can spell an Election Day disaster for voters and election officials alike.
The second reason the test date matters is because under the new law, the Supervisor Of Elections office may start tabulating Vote By Mail ballots the same day that L&A testing has been completed. Historically, VBM ballots could not begin tabulation until 22 days before Election Day. An extra week to tabulate VBM is a godsend for Election Supervisors anticipating a tsunami of incoming ballots. But with the benefit comes a drawback: after L&A, ballot scanners must continue to use the specific settings that the scanner was programmed and calibrated to use during the pre-election run-up. By law, nothing can be recalibrated, reprogrammed, adjusted, updated or disabled/enabled once the testing is completed. It’s not unlike when an officiant at a wedding warns guests to “speak now, or forever hold your peace”.
Even if election officials wanted to change the scanner settings to “Preserve All Images” before Election Day, they would be barred from doing so by law. Changing that one setting isn’t an easy fix. The Election Supervisor and their staff would need to go into their election management software and change multiple settings that allow for the creation and storage of digital ballot images. They would need to specify the file type, its storage location, and program each scanner in the warehouse to create or store all of the images, which would in turn save to either a formatted USB drive, or to a dedicated internal hard drive.
These are some pretty large files. Even if they’re plain black and white, high resolution digital images eat up disk space. And during any federal record retention period, that media storage device cannot be reused to store future ballot images for the following 22 months, after which the preserved images can be transferred to a (preferably) dedicated non-cloud based server or backed up onto CD or DVD. Jump drives used in elections are proprietary to each vendor, and they’re definitely not cheap.
Record retention and transmission are the most tedious part of any government official’s job. Scanning a million high resolution PDF files and making sure they match the corresponding Cast Vote Record takes time. Adjudicating write-in candidates, over votes, under votes, damaged ballots, and stray marks takes even more time. Recounts or contested results must be conducted in a strict time frame, and in Florida, the recounts are done manually. In theory, it would benefit the election supervisors and the canvassing board to have images of the ballots to compare to the original paper ballots. In practice, only 15 Florida counties retain and reference ballot images during post-election audits.
What is the current outlook for this lawsuit?
Unfortunately for the plaintiffs, Logic and Accuracy testing concluded this week for the counties named in the suit. The Supervisor of Elections offices are now green-lit to begin ballot tabulation, and Early Voting begins on August 3rd. It is too late to reconfigure the tabulation units, and even if settings changes were permitted, it would mean that some voters would have saved ballot images, while others would not. Is that fair to the voters who returned their ballots early? Since more than 60% of Florida voters vote prior to Election Day, it’s difficult to imagine any judge would issue a Writ of Mandamus or declaratory injunction that would only affect the voters who voted in person on August 18th.
For November, it’s a different story. There’s an 8-week lead time to define the election parameters, to reprogram the machine settings, and to acquire enough storage media before the general election in November. But if the plaintiffs prevail, the judge needs to make a ruling very soon to allow time for the defendants to appeal the decision. It will be interesting to see how strictly the public records laws apply to digital images that have not yet been created, but certainly have the potential to be preserved.
The latest update from the Leon County Circuit Court
After a hearing conducted via Zoom on July 24th, a few developments have taken place. Judge Dodson issued a scheduling order that runs tighter than the grip of a Burmese python. The defendants need to have all of their responses and documentation for their Motion to Dismiss filed by August 3rd, and ready for a hearing on August 7th. The plaintiffs need to have their responsive pleadings for this hearing filed by August 6th. A final hearing for the requests of the plaintiffs for injunctive relief is scheduled for August 13th. Clearly, the judge recognizes the future implications of this case, and would like to get this out of the courts as soon as possible. Stay tuned for future updates.