Election transparency advocates are worried that numerous states may be breaking the law by not preserving ballot images and not following proper chain-of-custody rules.
Election integrity activists are worried that various counties in the crucial state of Florida could defy federal law by destroying crucial documents required for election audits and recounts after the midterms.
Specifically, Americans United for Democracy, Integrity, and Transparency in Elections (AUDIT-USA) believes that county supervisors of elections in Florida are either not retaining ballot images or are destroying ballot images that are required by law to be kept for 22 months after a state or federal election.
“Most of the counties down there are destroying the ballot images,” said John Brakey, director of the nonpartisan group.
A major incident involving destruction of ballot images occurred in Florida’s Broward County during the 2016 primary election. Brenda Snipes, Broward County supervisor of elections, destroyed both paper ballots and ballot images after congressional candidate Tim Canova filed a records request and eventual lawsuit against Snipes. This followed the Democratic primary that pitted Canova against incumbent Debbie Wasserman Schultz.
Brakey noted that a chain of custody that Florida and other states, including Virginia and Michigan, are supposed to follow is being bypassed and broken by local elections departments.
“Chain of custody is everything in an election,” Brakey said. “Our ultimate goal is to get the images because we know that those images could be used to verify [elections].”
In this case, the digital ballots are in the chain of custody. When the digital voter machine counts a ballot, it counts the digital image, not the paper ballot. The digital image is a front-to-back duplicate of the original paper ballot. Supervisors of elections offices are required to preserve both the original copy and duplicate ballot image for 22 months.
AUDIT-USA seeks to bring this issue to the public’s attention in order for elections to become “transparent, trackable and publicly verified,” Brakey told WhoWhatWhy.
Many of the states in which ballot images are destroyed are also those that use various methods of suppressing votes, said Tim White, lead researcher at AUDIT-USA. He added there is an informal impunity that allows local jurisdictions to continue to disregard the law governing elections in the state. However, he also believes Florida is special because it has a system that can work if used properly and as required by written law.
“Florida can be this model for the whole country of verification transparency if they follow the law,” White said.
The full chain of custody for the ballot records in Florida includes the original paper ballot, the duplicate ballot images, the cast vote record, and a list of vote records. The cast vote record (CVR) is a list of all the ballot info. That is then compiled in a text file. Those records are then put into a larger spreadsheet that becomes the list of vote records (LVR). All this information is available by records request at county supervisor offices in Florida.
“All those four records need to correspond. Florida allows that under the law. That would enable them to check anything,” White said. “Each one of those is a chain of custody that has to be checked … I can see the day in Florida when the paper ballot, ballot image, cast vote record, list of vote records and certified returns are all publicly displayed and the same.”
Some officials seem to make the case that ballot images are not required, noted Chris Sautter — an attorney, election law professor, and author. However, even if that were the case, it would still be irrelevant.
“One of the things that we hear is ‘Well, we have the paper ballots, we don’t need the images,’” Sautter said. “But, they don’t have the authority to pick and choose what election materials they may or may not preserve. They have to preserve all of them for 22 months, and it’s up to a court or whomever to decide what might be relevant should there be an action.”
During a time in which Americans are worried about the security and integrity of elections, Sautter argued, the retention of ballot images is critical to verify elections, especially with national concern that voter machines are hackable.
“Were there to be any recounts, the ballot images could be matched against the paper ballots, and you would know almost … instantly whether or not there had been any tampering with the machines,” Sautter said.
Brakey noted that the problems and concerns that exist with the digital voter images will evolve. In the future, he said, new voting machines will mark the ballot for the voter, which would be easy to counterfeit. These machines, rather than generating ballot images, would create a hard copy with a barcode.
“If we don’t fix this thing by 2020, we’re in terrible trouble because the next cycle of gerrymandering and microtargeting will be in place,” Brakey added. “We’re running out of time, and we can fix it now.”
Related front page panorama photo credit: Adapted by WhoWhatWhy from ballots (immortalpoet / Flickr – CC BY-SA 2.0) and Brenda Snipes (Broward County, FL).