This legal victory stems from multiple detailed public records requests that I made, and one that Canova and I made together. I wanted to examine the ballots in this race because I worked with a team of data analysts, and they found statistical red flags in the results. Not only did the court rule convincingly that the Supervisor of Elections Office acted illegally, Politico is reporting that Florida Governor's Scott will have her office monitored.
This is a major step for election transparency. In conjunction with other recent rulings in New York, Alabama and Arizona that digital ballot images must be preserved, this ruling highlights an emerging path that candidates and citizens can use to confirm election results. It clearly demonstrates their right to do so, and the important place that public records requests, and the review and verification of election documents play in the process. The public has a right to have full confidence in our elections and to be provided with evidence that the results as certified are accurate. This ruling moves us forward toward that goal.
From Tim Canova's press release:
(Some of this release borrows - with my permission - from my article on the investigation into the results of this race.)
On Friday, May 11th, Circuit Court Judge Raag Singhal ruled that it was illegal for Brenda Snipes, the Broward County Supervisor of Elections, to destroy the original paper ballots cast in the August 30, 2016 primary between Tim Canova, a Nova Southeastern University law professor, and Rep. Debbie Wasserman Schultz, in Florida’s 23rd Congressional District.
The court’s ruling makes clear that Snipes’ destruction of ballots was illegal on several separate counts:
(1) By federal and Florida statute, ballots in a federal election must be preserved for 22 months. The ballots were destroyed after only 12 months. Violations of the statute are punishable by up to a year in prison.
(2) Documents that are the subject of legal proceedings cannot be destroyed without permission from the court. Mr. Canova filed a lawsuit on June 7, 2017 requesting to inspect and scan or copy the ballots. The ballots were destroyed on September 1, 2017, while this litigation was pending.
(3) Canova had sought to inspect the original paper ballots under Florida’s public records law, as permitted for any citizen under the Florida Constitution. After three public records requests by election security journalist Lulu Friesdat, and months of stonewalling by Snipes, Canova joined the public records requests and filed suit. The court ruled that it was illegal for Snipes to refuse to produce the original paper ballots for inspection as public records and to refuse to allow copying and/or scanning of those ballots.
Snipes argued for a view of a political culture that is closed and anti-democratic -- a view that has been soundly rejected by the court. The ruling condemned Snipes’ misconduct and stated that her defenses were “without substance in fact or law.”
This judgment affirms the important role of public records requests “to allow Florida’s citizens to discover the actions of their government.” As the court made clear, the Florida Constitution grants every person “the fundamental right” to inspect and copy public records and that this right is a “cornerstone of our political culture.”
Without the original paper ballots, and using only digital scanned images, elections experts that were consulted say it is impossible to verify the results of our primary against Wasserman Schultz. There are an unfortunately large number of ways that the process could produce an incorrect ballot count. Ballots could have been lost or replaced before the scanning; ballot on demand machines could have produced extra ballots; some digital images could either accidentally or deliberately been repeated numerous times. Digital images themselves can be altered, and there is no convincing chain-of-custody evidence for these digital images. The process of creating them involved using third-party proprietary software, as well as assistance from a third-party vendor, Clear Ballot. Even the chain-of-custody documents for the original paper ballots were not filled out fully
When Friesdat’s data team was able to review some of the information from the election, they found large and unexplained discrepancies between the number of voters who voted and the number of cast ballots. In all, there were more than 1,000 discrepancies, and out of 211 precincts only 19 had the same number of voters and ballots. These irregularities were highly concerning to election experts.
Duncan Buell, a professor of computer science at the University of South Carolina, said, “I see what I would call a high likelihood of massive incompetence. Either that or there is fraud. I don’t think you should see numbers this big in this many precincts.” Buell has examined election records extensively in South Carolina.
Douglas Jones, a computer science professor at the University of Iowa stated that the county ought to be reconciling the number of voters with ballots and if they’re not doing it, “they’re grossly negligent.” Jones served on the Election Assistance Commission’s Technical Guidelines Development Committee for four years, but said “I’ve never seen a county that looks like this.”
The large discrepancies between the number of voters and the cast ballots, plus the inability or refusal of the Supervisor of Elections’ office to produce the original ballots, all raise questions about what the true totals for the race may have been. The experts we spoke with concurred that the certified results must be considered suspect. “They destroyed the evidence,” said Karen McKim, a member of the Wisconsin Election Integrity Action Team and a veteran of hand-counts in that state. “They can’t defend their results.”
It is my view that the only lasting remedy requires legislation and a cultural shift: a reformed election system based on 100% paper ballots counted by hand in public would be one way to ensure truly transparent and verifiable elections. The original ballots could be scanned using open source software as a permanent backup, with ballot images and software open to public inspection. It is imperative that we improve chain-of-custody protocols. Ideally it would be best if elections are administered by non-partisan or trans-partisan officials.
