The Duval County Canvassing Board will not make any changes to its procedures adopted earlier this month, despite an argument from a Duval Democratic Party attorney asking for a pair of changes to be made.
Attorney Chris Hand argued that the canvassing meetings should be livestreamed, citing Broward, Miami-Dade and Alachua Counties as regions where that option is available.
“This is the people's process,” Hand said. “The people have the right to participate in this process, so just as a general matter, we would urge the board to look for a virtual platform of some kind.”
“That’s three out of 67 counties,” said Board Member and County Judge Brent Shore.
The procedures adopted by the Canvassing Board on October 9 prohibit “cameras, video cameras and cellphone cameras” from being used during the canvassing process.
“Boards cannot ban the use of non-obtrusive recording devices in board meetings that are covered by the Sunshine Law,” Hand argued.
However, the board - which included Shore (board member Gary Flower was not in attendance), City Councilman Michael Boylan, and Duval Supervisor of Elections Mike Hogan - cited the Office of General Counsel’s concerns over voter information privacy as reasons to keep camera prohibition active.
The board implemented an overhead projector so the public physically attending the meeting are able to see the ballots the members are analyzing.
“The decision was made to put that on the overhead because members of the public... we were accommodating members of the public, so that they had a right to see what the canvassing board would see,” said Jason Teal with the OGC. “Conversely, you can't have it both ways.”
Teal said that Hand’s memo sent to the canvassing board failed to point to any legal authority that specifically related to broadcasting canvassing board meetings.
“While [Hand is] correct that the law requires the ability to to unobtrusively record what happens at public meetings, there are special exemptions as far as public records laws that exempt certain privacy information that the board has access to that actually gets displayed on the overhead projector, such as signatures,” Teal said.
Ed Birk, an attorney for WJCT News partner News4Jax, said he would help the canvassing board to create a live streaming process that would be safe and keep information private, but the board made no indication they were willing to try it out.
With the rule remaining in place, Shore stopped the canvassing board’s work and ordered TV news outlets to stop recording with their cameras. The cameras were ordered to be removed from the room.
Hand also criticized another rule created by the board, which says “observers may only challenge vote by mail ballots where they believe the ballot is illegal due to a defect on the voter’s certificate or cure affidavit.”
“That limitation contravenes what is the bedrock principle behind Florida election law, which is the priority and the determination of voter intent,” Hand said.
Overall, Hand argued that there needed to be more options for the public to challenge the decisions made by the canvassing board.
“If the board were to make an erroneous decision as to voter intent - we certainly hope that won't happen - but if that were to be made, it deprives the voter of the right to have his or her ballot counted in the way they want it, and deprives the candidate of the benefit of having the vote counted in his or her favor,” Hand said.
To combat that, Teal said the board asked for clarification from the Department State Division of Elections, and that they were told an observer has a very limited ability to file a challenge on the board’s decisions for voter intent.
Teal said one of the only ways to legally do so is if “there are receipts of a number of illegal votes or rejection of a number of legal votes sufficient to change or to place in doubt the result of the election.”
According to Teal, “If an observer wants to tally up the ones that they have a contest or a challenge about, they can keep track of every valid number that they have a problem with,” adding, “If that accumulated is enough to place in doubt the outcome of the election, they can request that those ballots be pulled and presented to a reviewing court to be able to determine whether or not there was sufficient illegality there to contest the election.”
Ultimately, the board sided with the legal opinion of the Office of General Counsel.
“We don’t see any reason to change it, especially based on the opinion of our legal counsel,” Shore said.
The board will continue its canvassing process next week at 9 a.m. The public is welcome to attend the process, although social distancing measures are in place that will limit the number of people able to attend.
Sky Lebron can be reached at slebron@wjct.org, 904-358-6319 or on Twitter at @SkylerLebron.
