As elections go digital, Democratic legislators want state to preserve the images

Should Florida keep a digital image of every ballot that gets recorded on vote scanning machines?

That is the question three Florida Democratic legislators want a judge to decide in a lawsuit filed Wednesday in Leon County Circuit Court. They say it’s time the state stop the practice of destroying digital images of ballots after an election, especially with the state’s reputation for razor-thin election margins.

The lawsuit, by Rep. Joseph S. Geller, D-Aventura, Rep. Geraldine Thompson, D-Windermere, Sen. Victor M. Torres, D-Kissimmee, Dan Helm, a candidate for Supervisor of Elections in Pinellas County, as well as eight voters and the Florida Democratic Party, asks a judge to require the state to order local election officials to retain the ballot images from optical scanning machines for 22 months.

State and federal laws require that paper ballots be retained, but there is no requirement that the images used to verify the ballots be kept as well. The lawsuit asks that ballot images be treated as public records available for inspection and production.

“We believe that local election officials want to follow the law, but they need clear direction from the Secretary of State, who is the chief elections officer for the State of Florida, and the courts,” said attorney Chris Sautter, who also serves as counsel to AUDIT Elections USA. The complaint was filed in the Second Judicial Circuit in Leon County.

Currently, at least 27 of the state’s county supervisors of elections are preserving the ballot images but at least eight, including Miami-Dade, Broward, Hillsborough and five other counties that comprise 58% of the Florida electorate, do not, Geller said.

The lawsuit asks the court to order Secretary of State Laurel Lee and state Elections Director Maria Matthews to instruct all supervisors to preserve ballot images and to prevent the eight counties from destroying the images starting with the Aug. 18 primary and the Nov. 3 general election.

It also asks the court to order supervisors of elections in Broward, Miami-Dade, Duval, Orange, Lee, Pinellas, Palm Beach, and Hillsborough counties to be required to preserve ballot images because their position is they have no obligation to do so.

If the 2020 presidential election is close in Florida, ballot images currently can be used to verify the accuracy of the vote, Geller said, but if counties destroy the original copies, the state loses another tool to guarantee confidence in its elections.

Muddled messaging

Sautter said local supervisors of elections have gotten mixed messages from the Florida Division of Elections and “misleading information” from the Florida Association of Supervisors of Elections about preserving ballot images.

“Ballot images must be preserved under state and federal law because they are an integral part of the chain of custody of the vote,” he said. “Ballot images can no more be destroyed than paper ballots, mail-in ballot envelopes, or ballots that are duplicated because the originals have been torn or damaged and cannot go through the scanner. All are election materials that must be saved for 22 months.”

Florida has earned a national reputation for its close elections since the 2000 presidential election was decided by just 537 votes. Sautter said that had a rule been in place in 2018, when the U.S. Senate election was decided by only 10,033 votes and Broward County “lost” 2,040 ballots during the recount, “the mystery of the missing 2,040 ballots could have been solved.”

The ruling is especially needed after Gov. Ron DeSantis last week signed into law a bill that makes it possible for supervisors of elections to use digital imaging software to retain ballot images and use those images for recount purposes. Only one vendor — ClearAudit digital imaging system from Clear Ballot Group of Boston — currently provides those services.

“This new law adds urgency to the preservation of ballot images as vital election material,” Geller said.

HB 1005 would allow counties to expedite recounts — like the ones that characterized the U.S. Senate, governor and agriculture commissioner’s races in 2018 — by purchasing proprietary software available only from a single vendor starting in 2021.

Both Common Cause and the League of Women Voters have said the technology offers promise as a way to give supervisors of elections another tool to store and track paper ballots, but they are not comfortable allowing counties to rely on digital images entirely.

Worries over sole vendor

To help pass the legislation, Clear Ballot hired lobbyist Carol Bracy of Ballard Partners, who sent talking points about the issue to the bill’s sponsor, Rep. Cord Byrd. In several emails obtained by the watchdog organization, American Oversight, Bracy and Byrd’s legislative assistant, Katherine Woodby, coordinated advocacy for the bill and with the governor’s office.

“Floridians should be worried that the integrity of their elections may come down to the quality of a single voting machine vendor who was selected because of its powerful lobbyists over its merit,” said Austin Evers, executive director of American Oversight, a non-partisan, 501(c)(3) nonprofit ethics watchdog focused on conflicts of interest, abuse of power and voter suppression.

Geller and Sautter noted that the law allows other vendors to become certified to offer digital images to expedite recounts but, because no other vendors offer the service in Florida, Clear Ballot has the advantage.

“Clear Ballot has a very good reputation,’’ said Sautter, who said he has observed how Maryland uses its digital imaging software as part of the state’s canvass to reach certified results. “But my view is monopolies are rarely a good thing.”

Ray Lutz, an electrical engineer who is one of the nation’s top experts on ballot images, said states should be using ballot images as an important check on paper ballots. Some places such as Dane County, Wisconsin, post all the ballot images on its websites so that voters can verify election results for themselves.

“Paper ballots can be modified with a pen, accidentally destroyed or inappropriately shredded,’’ Lutz said. “Having the original image created when the vote is cast protects against modification of the paper ballots.”

Mary Ellen Klas can be reached at meklas@miamiherald.com and @MaryEllenKlas