What in the World is Happening In Florida: Part One

By Zack Damron

Like the recount debacle in 2000, Florida is at the center of controversy this election cycle. Only this time, it isn’t the Presidential race. The Senate race between Republican (and current Governor) Rick Scott and incumbent Democrat Bill Nelson has focused on two counties, Broward and Palm Beach Counties. (There are other recounts in Florida for other races, which we will explore in future posts.)

This isn’t the first time that Broward County and its election supervisor, Dr. Brenda Snipes, has been in the spotlight…and not in a good way. During the 2016 Congressional race, the Florida State Department found that workers in the county impermissibly destroyed ballots before they were told to, and while there were suits going on.

There are competing lawsuits filed by both candidates regarding the counting of ballots in the state. Governor Rick Scott filed suit in Broward and Palm Beach Counties asking for information regarding the ballots. Incumbent Bill Nelson has also filed suit in Federal District Court claiming that counties are improperly rejecting vote-by-mail and provisional ballots on the basis of a signature mismatch.

As ballots continue to pour in from these two counties, Gov. Scott has asked for public records detailing who voted, how many ballots have been authenticated, and how many ballots are left. Both counties declined to produce this information, leading Gov. Scott to file a lawsuit based on state public record laws for the disclosure of the information sought. Gov. Scott stated in his complaint that “the lack of transparency raises substantial concerns about the validity of the election process.” Broward County Judge Carol-Lisa Phillips recently ordered the county to turn the requested information over to Gov. Scott after emergency hearings were held Friday afternoon.

In Palm Beach County, Gov. Scott requested that his representatives be allowed to inspect “potentially damaged” mailed-in ballots from overseas, and he claimed that Supervisor of Elections Susan Bucher and her staff are impermissibly determining validity of the ballots without oversight of the Canvassing Board. In his second win in as many days, Judge Krista Marx ordered that the Supervisor of Elections staff must have the canvassing board verify the ballots, and ordered the staff to provide Gov. Scott with a list of everyone who voted by provisional ballot.

Incumbent Bill Nelson also filed suit in Federal District Court to “count every vote.” The statute at issue here, Fla. Stat. 101.68(1) dictates that vote-by-mail ballots will be counted only if the signature on the voter’s certification matches the signature on the books. A voter may cure a so-called “mismatch” by submitting an affidavit that cures the mismatch by 5 p.m. on Election Day (can be lengthened to 7 p.m.), the signature on the affidavit matches the registration books, and the canvasser is able to confirm the identity of the voter. According to the ACLU, in 2016, approximately 1% of all vote-by-mail ballots were rejected. Senator Nelson seeks to force the counties to count every vote-by-mail ballot. He suggests that without court intervention, the counties will be left on their own and that will cause “arbitrary and standardless” processes for counting these ballots using the signature matching requirement. The same exact process is used for counting provisional ballots, and Sen. Nelson is seeking the same recourse. Fla. Stat. 101.048(2)(b)(1). With both forms of voting, Sen. Nelson emphasizes that the variance across counties is extremely troubling, and he seeks more uniformity in the way the statute is enforced. Those who remember Bush v. Gore, with differing standards between how votes were cast based on the “intent of the voter,” will see echoes in this year’s dispute.

A recount in this race has been ordered to begin, as of yesterday. In Florida, the deadline for all counties to have unofficial returns submitted is November 10. If the returns show that the candidates are within 0.5% of each other, the Secretary of State is required to perform a machine recount. The second set of returns are due by November 15, and if the candidates are within 0.25% of each other after the second returns are submitted, then the State can order a manual recount of all ballots. A manual recount only looks for undervote ballots (those with no vote or fewer than the number of choices on the ballot) and overvote ballots (those who voted for more than were supposed to). As of Nov. 9, in Broward County, there were 26,000 ballots that did not vote in the Senate race, but did vote in the gubernatorial race (3.7% difference).  It is not clear if the large number of undervotes is due to machine error, the design of the ballot (causing voters to miss the Senate race), or something else. The recount can be cancelled by any candidate at any time, or if the number of under- or overvotes is less than the amount of ballots needed to change the election result. On November 16, all overseas and military ballots are counted. Official results from each county must be submitted by November 18, with the official results certified by the Secretary of State by November 20.

Needless to say, we haven’t heard the last from Florida.