Understanding the 2018 election recounts & the lawsuits challenging the Supervisor of Elections in Broward & Palm Beach Counties from a trusted legal expert

Understanding 2018 election recounts Written by Michael Morley, Esq., Law Professor Florida State University specializing in Florida election law. Source: Professor’s Twitter Account, Dated Nov 9, 2018


Florida’s voting laws are designed to assure maximum transparency throughout the process. Supervisors of Election and other election officials are required to provide accurate, timely information to both the public and candidates, and allow candidates to observe all key steps. The lawsuits filed yesterday by @FLGovScott provide detailed allegations and evidence that the Supervisors of Elections for Broward and Palm Beach Counties are materially violating state law and/or the Florida Constitution by operating in secret rather than transparently. The 1st case is against Broward County Supervisor of Elections Brenda Snipes (link below). A federal court already held Dr. Snipes illegally destroyed ballots from Rep. Wasserman-Schulz’s 2016 primary in the midst of a case over access to them.

Just a few months ago, another court held Dr. Snipes processed mail-in ballots illegally, and apparently not in accord with state transparency requirements.

Florida Governor Rick Scott’s current lawsuit alleges that Dr. Snipes violate state public records laws by refusing to reveal the number of ballots cast, counted, and left to be counted in response to his specific, written request.

In my experience, having done election day operations work in other jurisdictions, such a blanket, unexplained refusal is bizarre. At a minimum, one of the most important facts an election supervisor must keep track of, and knows, is the number of ballots her office has. The number may fluctuate, especially as military/overseas ballots arrive (the deadline for them hasn’t passed), but such changes or fluctuations must be explained. Refusing to divulge the total number of ballots that have been cast creates unnecessary opportunities for problems. What kinds of problems? Many progressive commentators oppose voter ID laws on the grounds that in-person voter impersonation at polling places is rare. When election fraud occurs, they contend, it is almost always through paper absentee ballots. http://blogs.reuters.com/great-debate/2014/04/30/exorcising-the-voter-fraud-ghost/

Just a few days ago, a large locked box labeled “provisional ballots” was “found” in the cafeteria Sunshine Elementary School in Miramar, Broward County. (link below) Election officials deny it contained cast ballots. Either way, events like that are very troubling.

If certain Supervisors of Elections refuse to be transparent – as required by state law – about the most basic facts concerning the electoral process like the number of ballots cast and/or remaining to be counted, events like the Sunshine Ballot Box are exacerbated. @FLGovScott attorney also alleges the Broward County Supervisor of Elections refused his public records request for copies of the supervisor’s daily reports to the Secretary of State about the number of absentee and mail-in ballots counted each day. Needless secrecy & lack of transparency undermines public faith in the integrity of the process. Such secrecy might even violate the broad injunction a federal court entered against Dr. Snipes just a few months ago.
https://www.politico.com/f/?id=00000165-3001-d296-a16f-f3355fd30000 (see p. 17)

@FLGovScott lawsuit against Palm Beach County Supervisor of Elections Susan Bucher – supported by a verified complaint (i.e., sworn under penalty of perjury) – provides evidence of far more serious wrongdoing.  https://media.local10.com/document_dev/2018/11/08/Complaint_13724789_ver1.0.pdf

State law provides that, if a paper ballot is physically damaged in a way that prevents it from being read by an automated tabulation machine, election officials may make a replacement ballot to be run through the machine instead. That is an *extremely serious power.* To prevent people from being disenfranchised (potentially due to ballot handling beyond their control), state law lets election officials create replacement ballots to be automatically tabulated instead of the original vote. In other words, election officials, quite literally, create new ballots to be counted. Obviously, the law requires them to fill out the replacement ballots the same way, for the same candidates, as the original damaged ballots they’re replacing. The process creates a real, immediate opportunity for fraud that could change an election’s results. If a damaged ballot were cast for @FLGovScott, for example, a hyper-partisan or corrupt official could be tempted to fill out a replacement ballot for Sen Nelson, or vice versa.

State law *recognizes* that the literal creation of new ballots to be counted is one of the most sensitive and vulnerable steps in the process. That’s why it requires the creation of replacement ballots must occur “in the presence of witnesses.” Fla. Stat. 101.5614(4)(a). @FLGovScott lawsuit provides sworn evidence that the Palm Beach County Supervisor of Elections prohibited his campaign’s reps from monitoring the creation of replacement ballots. Election officials are filling out new ballots, but the candidate’s reps apparently couldn’t see. Secrecy and apparent violations of state law are inexcusable when millions of people’s fundamental right to vote at stake. The entire process must be completely transparent.