As the possibility of another close presidential race looms in Florida, elections supervisors in eight large counties have gone to a state appeals court in a dispute about whether they should be required to preserve digital images generated when voters cast ballots.
Duval Elections Supervisor Mike Hogan, along with the supervisors of elections in Broward, Orange, Lee, Hillsborough, Palm Beach, Pinellas and Miami-Dade counties, filed a notice of appeal last week after a Leon County circuit judge refused to dismiss a lawsuit filed by three Democratic lawmakers, the Florida Democratic Party and individual voters.
The lawsuit, filed last month, involves digital images that are generated after voters fill out paper ballots and feed the ballots into scanners. The digital images are used in quickly tabulating votes, but the plaintiffs in the lawsuit contend that many supervisors are violating the state’s public-records law by then discarding the images.
Democrats argue that preserving the images is necessary to ensure the accuracy of vote counts, pointing to instances in which paper ballots have been lost or misplaced in Florida and other states.
“Despite the automatic availability of the digital electronic voting systems to create permanent digital ballot images, some Florida elections officials have refused to preserve or mandate the preservation of the digital ballot images,” the lawsuit said. “This refusal imperils the validity and accuracy of the votes actually cast in every Florida election in which counties are not preserving ballot images, including those on which federal candidates appear.”
But attorneys for Secretary of State Laurel Lee and the supervisors contend that the paper ballots, not the digital images, are the record of how people voted and that supervisors keep those ballots in compliance with public-records laws.
“The plaintiffs’ claims in this case can best be characterized as a solution in search of a problem. The plaintiffs seek to add a redundant additional layer to processes at the state and county level to allegedly ensure election integrity,” attorneys for Lee and state Division of Elections Director Maria Matthews wrote in a court document this month. “The supervisors are already required to retain the paper ballots themselves which constitute the official ballot. On top of this ballot retention requirement, state laws and rules require publicly noticed and publicly conducted pre-election and post-election audits in each election to ensure that voting equipment accurately counted votes and otherwise functioned as rigorously certified by the state.”
The plaintiffs, including state Rep. Joe Geller, D-Aventura, state Rep. Geraldine Thompson, D-Windermere, and state Sen. Victor Torres, D-Orlando, are asking a judge to order elections supervisors to preserve the digital images and to order Lee to create a rule directing preservation of the images. The requests come as Florida, which has a history of close statewide races, prepares to play a key role in the November presidential election.
The eight supervisors, who are described in the lawsuit as being representative of other supervisors in the state, and Lee’s office filed motions to dismiss the case. But Leon County Circuit Judge Charles Dodson denied the motions to dismiss the case against the supervisors and Lee. He dismissed Matthews from the case, calling her involvement “redundant” as she works under Lee.
“Accepting the allegations of the complaint as true, which this court must do on a motion to dismiss, plaintiffs may proceed to attempt to prove this case as a public records case,” Dodson wrote in his Aug. 10 order. “It is not a case appropriate for a motion to dismiss.”
As is common, the notice of appeal filed last week by the supervisors does not detail the arguments they will make at the 1st District Court of Appeal. But in addition to disputing the underlying issues about the ballot images, the supervisors contend that Leon County is an “improper venue” for the lawsuit against supervisors who are from other parts of the state.
In their motion to dismiss the case at the circuit court, attorneys for the supervisors said the process of a machine reading a digital image “takes about a fifth of a second, and once the digital image has been used for that purpose, the digital ballot tabulator automatically clears the image because it no longer serves any purpose.”
“Digital images that exist for a moment merely to allow a machine to read a physical ballot and translate that physical ballot into a vote tally are not public records,” the motion said.
But the plaintiffs’ attorneys disputed such arguments.
“Contrary to (the supervisors of elections’) assertions, digital ballot images have a critical role in assuring that election results are legitimate and that close races have been resolved accurately,” the plaintiffs’ attorneys wrote in a court document this month.
