The 2020 presidential race could come down to Florida. But unless drastic changes are made, election advocates believe the next presidential vote count in the Sunshine State will be yet another mess.
They say that Florida in 2018 once again served as an example of how not to run an election. Their concerns involve voting machines vulnerabilities and partisan election officials who lack necessary qualifications. And those officials repeatedly demonstrate that winning seems to be more important to them than democracy.
It doesn’t have to be that way, critics say. Florida has laws on the books that would allow it to run clean and transparent elections. They just aren’t being applied.
Election management continues to be a problem and it is lacking uniformity in procedures and practices. The destruction of ballot images during primary and general elections in 2018 and in previous elections in the state is a major issue for concerned Florida voters, who have filed a lawsuit against the state to ensure all Florida voting officials follow the law.
Associate Director Kitty Garber of Florida Fair Elections Coalition believes Florida needs to make fundamental changes to its election system if the state is to avoid another disaster in 2020. First for Garber is the problem of partisan election administrations. Unlike many other states, Florida elects its county supervisors of elections, as well as the secretary of state, who is responsible for running the state’s elections.
“We need to have people who have some credentials and experience running elections instead of just people who are capable of getting elected,” Garber told WhoWhatWhy. “Every time I say that to someone, they say, ‘Well, that’s not happening.’”
Garber acknowledges there are some county supervisors of elections who do a great job running their election departments. Garber considers Volusia County’s supervisor of elections, Lisa Lewis, an outstanding elections supervisor in Florida.
“[Lisa Lewis] is transparent,” Garber said. “She also has qualifications. She worked for the department for a long time before she ran for supervisor of elections.”
During the statewide machine recount, Volusia county came up 240 votes short in six election recounts: Edgewater City Council District 1, Volusia County Council District 1, state representative District 26, the state commissioner of agriculture, governor, and US senator.
“She admitted there was a problem. In other places, they had the same problems, but people didn’t admit it,” Garber said. “She went back and did it right, found out what went wrong.”
During the election recount in Volusia, the DS850 voting machines encountered several malfunctions. After recounting X number of ballots, sometimes the machines read zero. Another problem was simply jamming — ballots weren’t counted, or it appeared they had been counted but had not in reality. Garber said Lewis had the malfunctioning DS850 taken out, and, at one point in time, there were ES&S technicians working on bad machines. A day after a failed recount, the Volusia elections department finished properly and reported its results to the state.
“[Lewis] decided that she wanted them to be accurate,” Garber said.
Uniform Voting Procedures
Garber said the second issue is uniform voting procedures, which she believes is more likely to be addressed. Last year’s midterms made it clear to everyone that the state’s 67 election offices are operating under a hodgepodge of procedures, standards, and policies.
“The problem with the state of Florida is that they want to dictate the details without taking any responsibility for the larger process,” Garber said. “What they want is to just get it over with. They want it done. That’s essentially their goal — done.”
Garber wants to see uniform ballot designs and people who know what they’re doing to design the ballot.
“That means the state needs to develop training programs for county elections staff involved in ballot design,” Garber said. “Proposed ballot designs should undergo usability testing. And the state needs to take responsibility for approving ballot designs.”
Garber noted the standards for ballot design have been long-standing. Both the Brennan Center for Justice and the US Election Assistance Commission published guidelines for ballot design more than a decade ago. The Brennan Center’s 2008 publication, Better Ballots, details issues that occured in 2018 such as poor ballot designs and lost/misrecorded votes. And the center published articles as late as the beginning of 2018, ahead of the midterm, detailing concerns with antiquated voting machines still being used in US election departments.
Garber also said the state should mandate strict, uniform security procedures to be followed by the counties, instead of allowing each county to develop its own. If these issues aren’t addressed, she believes the problems of the past will continue, and the state may once again be “the laughing stock of the world,” as US District Judge Mark Walker said of the state during the recounts.
Verifying Elections Is Possible
John Brakey, director of AUDIT-USA, was pleased to see a tandem system being used to verify elections in Broward County. Unfortunately, this system was abandoned as soon as the recount began.
The idea of a tandem or redundant system would start with election precincts running the paper ballot once — creating the first ballot image, which gets counted for the election results. Next, the paper ballot would get put through another digital scanner that is totally isolated, creating ballot image number two. The end result would be three references for one voter’s decision in an election — a paper ballot and two digital copies. Brakey wants to take that even further.
“These things could be put online by precinct to audit,” Brakey said. “That would be like a third system. That would be great redundancy.”
On top of that, Brakey believes Florida is perfectly set up to allow for audits using public records; as Brakey says, voting is a secret process and counting is a public process. That is why he believes it’s a voter’s right to have an election system that is transparent, trackable, and publicly verified when it comes to the results.
Any voter can go to his or her election department and make public records requests for the results of the election, and the department should give the time frame it needs to provide materials and how much the records request will cost. This is stipulated in the Florida Statutes and applies to any form of public records request in Florida. Brakey believes if more voters did this, election departments would make it available online rather than through request.
But, until that happens, voters and organizations like AUDIT-USA find election departments in the state continue to violate Florida law — whether supervisors realize it or not. The ballot images created during an election must be saved for 22 months after an election, but most of the results gathered in 2018 from the primary and general election have already been destroyed. This was discovered by concerned voters after making public records requests and speaking directly to elections supervisors. The goal for Brakey and concerned voters is to preserve the Florida recount now.
“Now, after learning that at least [64 percent] of ballot images in Florida for the November 6 election were destroyed … we are trying to facilitate the public verification of elections. We have filed a new record request going after the recount’s ballot images in Broward County and are amending our lawsuit with more hard facts,” Brakey said. “After all, that’s how cases are won — with facts.”
Assuming ballot images and public records for the election are preserved, Brakey’s vision involves all cast vote records (CVR) to be available in a list of vote records (LVR). These already exist in some Florida counties. The LVR is all CVRs taken from ballot images and compiled in a digital spreadsheet that becomes easily sortable and would allow for verification of an election.
Vote-by-Mail vs. In-person Voting
During the 2018 recount, many people became aware for the first time of the hazards associated with voting by mail, a method of voting that both the political parties and elections supervisors have pushed for years. It became clear in the recount that thousands of vote-by-mail ballots were, for a variety of reasons, not counted. Sometimes the voter forgot to sign, sometimes the signature didn’t match the one on file, and sometimes the ballot didn’t arrive on time at the elections office.
For more than a decade, Garber has been encouraging Florida voters to vote in person, either at early voting locations or at their designated precincts. She believes vote-by-mail ballots should only be an option if people truly are unable to be present for an election. The political parties on both sides like to see more vote-by-mail ballots used by voters because the parties believe it increases voter turnout, she added.
“But, our feeling is, ‘Yeah, but a lot of people’s votes aren’t going to count,’” Garber said. “Maybe their calculation is, ‘Sure, but if I get 50 more people to vote, even if I lose 10 of those, I’m still ahead.’ Well, that’s not good though for the 10 people whose votes didn’t count.”
With the issues that persist in the state, Garber believes eliminating the amount of vote-by-mail ballots that need to be processed by election departments will ensure that fewer votes are discarded.
“I want to explain to people that when you put your ballot in the scanner, that machine has certain features that alert you to certain kinds of mistakes,” Garber said. “Voting in person is the way to go. We have early voting in Florida, and early voting is great.”
A group of voters underrepresented in the state were the hundreds of thousands of Puerto Rican voters who came to Florida after their homes were destroyed by Hurricane Maria in 2017. These US citizens may have intended to vote but were not familiar with the process in Florida. Plus, many county elections offices did not provide Spanish-language materials.
Jennifer Edwards, Collier County supervisor of elections, was not required to provide Spanish-language materials. After the 2013 US Supreme Court case Shelby County v. Holder, certain counties in Florida, including Collier County, no longer had to provide ballot materials in Spanish. This did not stop Edwards from serving voters in her county.
“We are not subject to the requirements to provide them based on the formula in that section of the Voting Rights Act,” Edwards said. “We feel that we will meet the requirement of the formula in the future, so I do not see any point in taking it away and then bringing it back.”
She said it is her duty to provide transparency and access to voters as part of the election process.
“It’s a good community service,” Edwards said. “Because we do have registered Spanish-speaking voters, and we wanted to continue to provide that service to those voters.”
Edwards and her staff provide more than sample ballots to Spanish-speaking voters in Collier. “Everything we provide, we provide it in Spanish,” Edwards said. “Our website has a Spanish selection. They can select a different language. We even have our business cards — one side English, one side Spanish.”
Meanwhile, Judge Walker required 32 counties in the state to have the bare minimum in the form of sample ballots, just so voters could review the candidates in Spanish before they voted during the November election, as well as use a Spanish sample ballot as a reference while they were in the voting booth
When asked about Haitian-Creole voters, who are another group that may need greater representation in the state for future elections, Edwards said she does not speculate on when that time might be but is ready to assist voters in her county if it is clear there is a need.
“It may occur in the future,” Edwards said. “And when it does, and we’re required to provide it, of course, we will.”
Passing Amendment 4 Was a Historic Victory
In the Sunshine State, a major win for voters by voters was the passage of Amendment 4. Amendment 4, of course, was the Voting Rights Restoration for Felons Initiative. WhoWhatWhy spoke to groups instrumental in championing and litigating the amendment, stressing the human issue behind it. It restored the right to vote for people with prior felony convictions — except those convicted of murder or felony sexual offenses — upon completion of their sentence (including prison, parole, and probation).
Attorney Jon Sherman is senior counsel with the Fair Elections Center (formerly Fair Elections Legal Network) based in Washington, DC. Sherman represented the former felons who filed the class action lawsuit against Florida and won in February 2018. He said this is a historic victory for the approximated 1.6 million voters disenfranchised in the state and a victory for democracy.
Prior to the amendment passing, clemency laws in the state dictated these millions of voters’ rights on a case-by-case decision from the state.
“We represent people regardless of their partisan affiliation,” Sherman said. “Our case against the arbitrary restoration process in Florida was [that this policy] was … unconstitutional on first amendment grounds under Democratic and Republican governors.”
“No state official should have arbitrary unchecked power to decide which felons could be restored to their rights and which shouldn’t,” Sherman said. “All of our lawsuits are brought irrespective or regardless of how someone votes.”
Moving forward, Sherman is confident in the voters he represented to take advantage of the victory and immediately participate in the election process as voters.
“There is every incentive to get on the phone, knock on their doors, get them to participate in the process because they’re new voters,” Sherman said. “Many of them are already motivated to do so without encouragement.”
Additionally, Amendment 4 is a policy that is nonpartisan and is an example of policy that will help to strengthen democracy in Florida’s elections while setting a precedent for other state’s voters who still grapple with arbitrary voter laws.
The League of Women Voters of Florida (LWVFL) was a major supporter of the voter ballot initiative overall, and of Amendment 4. LWVFL President Patricia Brigham was encouraged by the number of voters who participated in the election. The group continues to champion voter participation in Florida.
“We want people to vote, and people got out and voted. We would always want more,” Brigham said. “The League is going to be focusing on what type of election reform we do need in Florida because we do need it.”
Even after the passing of Amendment 4, advocacy and implementation of it can grow stagnant after an election year. Brigham said with the number of overall issues that must be tended to in the state, advocates can’t wait long before they continue to work toward improving issues in Florida.
“We are going to have to be relentless in the pace of our work to advocate for election reform to make sure Amendment 4 is implemented correctly and to identify all of those voters who have been disenfranchised on ex-felons voting,” Brigham said.
With a victory in Florida, it sets the tone for states that still have disenfranchised voters in states that Sherman mentioned — Iowa, Kentucky, and Tennessee — limiting voters’ constitutional rights.
“The felon disenfranchisement problem is not solved nationwide. This was a historic victory and one of the largest enfranchisements of a group of people in American history,” Sherman said. “So, the struggle will go on in other places. Florida is largely resolved now that the constitution is amended in this way; but other places, the fight goes on.”
Garber wants to remind all voters that elections belong to them, not the administrators and politicians.
“The law in Florida actually says you have the right to vote, and you have the right to have your vote counted accurately,” Garber said. “It’s not a favor, and some people say it’s a privilege. It’s not a privilege. It’s a right.”
Florida voters can go to the opening and closing of the polls and have the right to observe the canvassing of the ballots. She suggests that more voters do just that.
“You have the right to participate in the process,” Garber said. “You have the right to demand accountability from the people running your elections.”
Related front page panorama photo credit: Adapted by WhoWhatWhy from ballots (OSCE Parliamentary Assembly / Flickr – CC BY-SA 2.0).
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