A South Florida law professor, running to unseat Congresswoman Debbie Wasserman Schultz, is calling for a federal investigation into the destruction of all ballots cast in the August 2016 Democratic primary in Broward County.
The challenger, Tim Canova, has made repeated public-records requests and filed a lawsuit seeking access to paper ballots cast in his unsuccessful race last year against the former Democratic National Committee chair in Florida’s 23rd congressional district.
A statistical analysis of the primary conducted last year suggested the election results were “potentially implausible.”
Over the past year, the Broward supervisor of elections, Brenda Snipes, has taken no action on requests by Mr. Canova and journalist and documentary filmmaker Lulu Friesdat to examine the ballots. Instead, Dr. Snipes has urged a judge to throw Canova’s lawsuit out.
Despite the pending records requests and the ongoing litigation, Snipes ordered the ballots and other election documents destroyed, according to papers filed in circuit court here.
“When something like this happens where all the ballots are destroyed, it completely undermines people’s faith in the system,” Canova says in an interview.
“What is the Broward supervisor of elections hiding?” he asks.
The Monitor reached out to Snipes and to her lawyer. They did not respond to requests for comment.
Congresswoman Wasserman Schultz’s office offered no statement on the issue.
The supervisor’s destruction of the documents comes at a time of intense public alarm over potential attempts by Russia and other foreign powers to hack into American election systems. One safeguard against such efforts is the ability to conduct robust audit procedures based on a close examination of paper ballots cast by voters.
Election experts agree that the lack of a paper trail verifying voter choices undercuts the ability to identify systemic election fraud and might make such fraud impossible to detect.
The Aug. 30 Democratic primary in Broward was being closely watched across the country. A month earlier, amid bitter controversy, Wasserman Schultz was ousted as chairwoman of the DNC. She was removed over allegations that she and other party officials had rigged the Democratic presidential primary process to favor Hillary Clinton over Bernie Sanders. The pro-Clinton fix was first divulged in DNC emails allegedly obtained by Russia-backed hackers and released to the public in the months leading up to the election.
Wasserman Schultz is a Clinton ally. Canova is a Sanders ally.
The Democratic primary in Florida’s 23rd district was seen by some as an opportunity for enraged Sanders supporters and other voters to fight back against DNC favoritism – by voting for Canova.
Nonetheless, Wasserman Schultz defeated Canova, winning 26,608 votes (56.48 percent) versus Canova’s 20,504 votes (43.53 percent). The seven-term incumbent’s margin of victory was 6,104 votes.
Florida's regulations on ballots
After the election Canova did not contest the result, but later contacted the election supervisor’s office seeking to examine the ballots. Two initial public-records requests were submitted in November 2016 by Ms. Friesdat. She submitted a third request in March under Florida's Public Records Act. Canova later joined the requests and in June, filed a lawsuit asking a state judge to order Snipes to show the ballots.
Snipes’s order to destroy the requested documents is dated Sept. 1, 2017. It authorized the destruction of 106 boxes containing vote-by-mail certificates.
In addition, the order authorized the destruction of 505 boxes of in-person cast ballots and 40 boxes of early-voting ballots.
In total, the destruction order called for election department officials to locate and dispose of 688 boxes containing 894 cubic feet of documents, according to a copy of the order.
Under Florida law, ballots and other election documents are public records that must be made available for inspection by members of the public “at any reasonable time, under reasonable conditions.”
One limiting factor is that only the supervisor of elections or designated staff members are permitted to physically handle the ballots. But the law establishes that ballots are public documents and members of the public are entitled to see and examine them.
In addition, Florida regulations require retention of records related to a federal election for 22 months. That would mean that documents from the August 2016 Democratic primary election would not become eligible for routine destruction until late June 2018.
Florida regulations also prohibit destroying records that are the subject of a public-records request or lawsuit. “When a public agency has been notified that a potential cause of action is pending or underway, that agency should immediately place a hold on disposition of any and all records related to that cause,” the regulations say. (The added emphasis is written into the regulations.)
Dispute over scanning ballots
Friesdat's and Canova’s requests for access to the ballots bogged down in a dispute over whether each ballot could be “scanned” into a digital system by Canova’s team for analysis. Snipes and her lawyer refused to allow the documents to be scanned, insisting that use of such technology was not part of their public-records procedure.
In addition, they took the position that the Canova team could view each ballot as it was held up by an office staff member, but they would not be permitted to videotape the process or have a court reporter produce a transcript during that review process.
In April, Snipes’s office advised the Canova team its request to view the election records would cost $71,868.87 in government fees, according to court documents.
Susan Pynchon of Florida Fair Elections Coalition, an elections watchdog group, says Broward County is famously uncooperative.
“We’ve always had an impossible time dealing with Broward County,” she says. “It is very difficult to get records from them.”
She noted that during the August 2016 primary, Broward County’s election results were posted online too early, causing some county websites to crash.
Ms. Pynchon says that an election vendor set up a special webpage to allow the Broward elections office to monitor the primary election results as they were being collected. Such an arrangement is unusual, she says.
“This horrifies me, the thought of them having these results streamed to them online ahead of the final results,” Pynchon said.
Lawsuit still pending
As supervisor of elections, Snipes is an elected official.
In November, Snipes herself was on the ballot as an unopposed Democrat seeking her fourth term as elections supervisor.
She received more votes than any other candidate on the ballot in Broward County – 657,167 votes, or 96.71 percent of votes cast. That is nearly 104,000 votes more than Mrs. Clinton received in Broward.
Canova’s lawsuit is pending before Broward Circuit Judge Raag Singhal. The judge has yet to rule on whether Canova is entitled to examine the ballots and, if so, under what circumstances.
Snipes’s lawyer filed a motion in July urging Judge Singhal to throw the case out. A hearing on that motion was held in October – a month after the documents were already destroyed.
Canova’s lawyer and the judge were not informed of the destruction of the ballots until a Nov. 6 hearing, according to court documents.
“The defendant’s counsel told the court and [Canova’s] counsel that [Canova] could inspect and copy the public records during the October 3, 2017 hearing…, but failed to advise the court or [Canova] that records were destroyed on September 1, 2017 – resulting in [Canova] spending significant sums of money to inspect and copy records that no longer exist,” Canova’s lawyer, Leonard Collins, wrote in a motion to the court.
“It is beyond perplexing,” Canova says. “Why would somebody commit felonies and risk criminal liability to prevent turning over ballots?”
He adds: “The public-records law is very clear. These are public records.”
The value of paper
The primary purpose of maintaining paper ballots after an election is to facilitate a reliable audit of election results.
Election security experts warn that computerized ballot tabulators – such as those used in Broward County – can be hacked and reprogrammed to award more votes to one candidate and withhold votes from another.
The safeguard against such hacking is to use paper ballots. If necessary, the paper ballots can be counted by hand and the hand-counted vote totals compared to those recorded on computerized tabulators.
If the tabulators were hacked or malfunctioned, the paper ballots would provide a reliable paper trail to determine the correct outcome of the election, security experts say.
Canova says the elections office has retained its own scanned, electronic copies of the ballots from the 2016 primary. But computerized images don’t offer the same high level of protection as paper ballots, he says. Computerized images can be manipulated in ways that paper ballots cannot, he adds.
“We are left dependent on scanned ballot images created and sorted by scanning software that requires inspection by software experts,” Canova says. “But the scanning software is considered proprietary software and is routinely protected from such independent inspection and analysis.”
'We'll schedule a time'
Although Snipes did not respond to requests for an interview for this article, she was asked about Canova’s request for access to the ballots during an earlier interview with the Monitor in October.
She was asked why it was necessary for Canova to file a lawsuit simply to view election ballots.
“It has to be scheduled,” she said. “We get it on the schedule and arrange the staff and then he can come in and review the ballots.”
The Monitor: “But they sued to have that [access.] And you are fighting them.”
Snipes: “Absolutely not. As long as it is a public-records request he can have the ability to come in and look at the ballots. We are not fighting Tim Canova. We’ve been working with them for a very long time. But we are not fighting them.”
She said the Canova team wanted to video record the ballot examination process. They wanted to make it into a “big production,” Snipes said. “A public-records request is not a big production.”
Then Snipes added: “We’ll see where it goes, but we’ll schedule a time for them to come in and see the ballots.”
The comments were made Oct. 19, more than a month and a half after Snipes signed the order to have the ballots destroyed.