Vote counts: In Florida, recount fuels widening electoral distrust

Joe Cavaretta /South Florida Sun-Sentinel/AP
Broward County Supervisor of Elections Brenda Snipes (l.) and Judge Betsy Benson of the election canvassing board confer at the Broward Supervisor of Elections office in Lauderhill, Fla.
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Here we go again. Eighteen years after being riveted – and riven – by the spectacle of “hanging chads” in Florida, Americans are again watching a critical recount unfold in the Sunshine State, while Democrats are hoping to force another one in neighboring Georgia. At stake are not only key Senate and gubernatorial seats – but also Americans’ overall faith in the electoral process, which polls show has been wavering in recent years. Already, the partisan rhetoric has been sharp: Republicans are accusing Democrats of committing (or turning a blind eye to) potential fraud. Democrats are accusing Republicans of deliberately preventing a full counting of votes. Both sides have seeming irregularities they can point to; both are giving their voters reason to believe that the election, if it doesn’t go their way in the end, was stolen. If there’s a silver lining, it’s the prospect that all the scrutiny could help hasten some much-needed changes around voting – to make the process both more accessible and more transparent. “Faith in the integrity of election systems is a must for democracy,” says Susan MacManus, a veteran analyst of Florida politics. “When that starts to erode, there needs to be some quick attention to it.”

Why We Wrote This

Confidence that elections are being conducted fairly is a cornerstone of a functioning democracy. As Florida undertakes a highly contentious recount, partisan accusations on both sides could have a far-reaching impact.

There are 27,195 reasons why Republicans in Florida distrust Brenda Snipes. And there are at least the same number of reasons Democrats are standing by her.

Broward County’s supervisor of elections has been at the center of a number of election controversies in her 15 years on the job. But there has never been anything quite like this.

On election night, Gov. Rick Scott (R) appeared headed for victory in his bid to oust incumbent Sen. Bill Nelson (D).

Why We Wrote This

Confidence that elections are being conducted fairly is a cornerstone of a functioning democracy. As Florida undertakes a highly contentious recount, partisan accusations on both sides could have a far-reaching impact.

Then something unusual started to happen.

In the days after the election, a steady influx of votes from heavily Democratic Broward County began to appear in the Scott-Nelson race. By Friday, the influx totaled 27,195 more votes for Senator Nelson. Scott’s lead in the race diminished to fewer than 13,000 votes. 

A similar tightening took place in the closely watched gubernatorial contest between Tallahassee Mayor Andrew Gillum (D) and former Rep. Ron DeSantis (R).

The influx of votes prompted charges of corruption and election fraud from Governor Scott and President Trump, though there is no direct evidence of that – at least so far. Nonetheless, a small army of Republican lawyers has been sent here to gather evidence for investigations and potential lawsuits.

At the same time, Democrats mobilized their own legal SWAT team, plotting a counter-strategy in the unfolding election drama.

A mandatory statewide machine recount of all votes is currently under way in both the Senate and governor’s races. A hand recount of ballots will be ordered if the margin of victory is within a quarter of 1 percent.

The good news in all of this is that there is no suggestion that Russian President Vladimir Putin and his military intelligence officers played any role in the Florida election controversy.

The bad news is that hyperpartisan tactics and super-heated rhetoric alleging rigged voting is widening the political divide in the United States and may substantially undermine public confidence that American elections are transparent and fair. Ironically, that’s an outcome that Mr. Putin himself might have sought.

Here at ground zero of the Florida election dispute, lawyers on both sides are gearing up to use whatever means possible to help their candidates win an election. In the process, voters may be losing something far more precious.

“Faith in the integrity of election systems is a must for democracy,” says Susan MacManus, a veteran analyst of Florida politics. “When that starts to erode, there needs to be some quick attention to it.”

For Democrats, the problem is inflammatory rhetoric from the White House and governor’s mansion alleging corruption and fraud.

For Republicans, the problem is Dr. Snipes.

Florida law requires that election results – to the greatest extent possible – be reported within 30 minutes of polls closing on Election night.

Joe Cavaretta /South Florida Sun-Sentinel/AP
Election workers place ballots into electronic counting machines, Sunday, Nov. 11, 2018, at the Broward Supervisor of Elections office in Lauderhill, Fla. The Florida recount began Sunday morning.

Many Republicans want to know how the vast majority of Florida’s 67 counties were able to report election results without controversy – but not Broward and neighboring Palm Beach County. Both counties tilt strongly Democratic. Any Democrat running for statewide office must win with substantial margins in both counties to offset Republican strongholds elsewhere in the state.

For her part, Snipes says her office has been working diligently to count more than 700,000 ballots. She says the effort was complicated because votes are cast in early voting, during Election Day, and by mail.

Critics argue that neighboring Miami-Dade, Florida’s largest county, managed to comply fully with the requirement, as did other large counties in Florida.

Former Gov. Jeb Bush (R), who appointed Snipes in 2003, has called for her removal. “There is no question that … Snipes failed to comply with Florida law on multiple counts, undermining Floridians’ confidence in our electoral process,” Mr. Bush wrote Sunday in a tweet. “Supervisor Snipes should be removed from her office following the recount.”

Florida is one of three states with unresolved major statewide races one week after the 2018 midterms. The close Senate race in Arizona was called Monday night for Democrat Kyrsten Sinema, leaving the hotly disputed Georgia governor’s race and a Senate runoff in Mississippi as the only two major statewide races outside Florida still unsettled.

South Florida has a well-earned reputation for election foul-ups. In 2000, the year of Bush v. Gore, Broward County was at the center of the dispute over “hanging chads” in a presidential race that came down to 537 votes in Florida. Punch card voting is now banned here, but that hasn’t eliminated controversy.

What’s the matter with Florida?

The big picture in Florida politics hasn’t changed much since 2000.

Now the third most populous state, Florida remains the nation’s biggest electoral battleground, and thus it commands national attention – and presents lessons for both parties.

The state is as diverse as ever, “America in miniature,” says Brad Coker, the Jacksonville, Fla.-based managing director of Mason-Dixon polling. “Black vote, Hispanic vote, white vote, blue-collar vote, retirees, white-collar country clubbers – you’ve got a little bit of everything down here.”  

Northern Florida votes like the American South, the middle of the state is more like the Midwest, and the southeast corner – where Broward County is located – votes like the Northeastern US.

Since 2000, statewide elections have often produced close results. Former President Barack Obama eked out victories here twice – in 2012, by less than 1 percentage point. Scott won his two gubernatorial elections by roughly 1 percentage point each time.

By 2018, as Florida’s statewide races barreled toward November, political observers could see the nail-biters coming.

“I was predicting some 1 percenters,” says Ms. MacManus, a recently retired political scientist at the University of South Florida in Tampa. “Little did I know they’d be even closer.”

Close enough, in fact, to require a statewide recount in three races – for Senate, governor, and agriculture commissioner. All three produced vote totals with margins under one-half of 1 percent, triggering a machine recount, which is to finish by 3 p.m. Thursday. After that, any races with a vote margin under one-quarter of 1 percent will face a hand recount of ballots that show either “undervotes” (no candidate apparently chosen) or “overvotes” (too many candidates apparently chosen).

Before the machine recount, Scott led by 12,562 votes, or 0.15 percent, out of more than 8 million cast. In the governor’s race, Mr.  DeSantis led Mayor Gillum by 33,684 votes, or 0.41 percent. The margin in the race for agriculture commissioner had the Democrat ahead by just 0.06 percent.

In Broward County, one oddity is the “undervotes” in the Senate race – about 25,000 fewer than were cast for governor. Some observers blame the ballot design, with the Senate race tucked under the voting instructions and easy to miss. Bad ballot design is another echo of Florida 2000, when the so-called “butterfly ballot” of Palm Beach County was thought to have cost Democrat Al Gore a significant number of votes. In 2018, both Democrats and Republicans signed off on Broward’s ballot design.

Voter signatures represent another problematic aspect of Florida elections. On an absentee ballot, a voter’s signature across the envelope’s seal must match the signature on file. But determining a “match” is subjective, and hundreds of thousands of ballots are rejected nationally. In some cases, voters are able to contest the rejection and get their vote counted.

As vote-by-mail and the use of absentee ballots grow in availability and popularity around the country, the signature question is gaining attention. Even former Florida Rep. Patrick Murphy (D) says his ballot was rejected due to a signature mismatch.

“This problem can be addressed by having everyone update their signature every year,” says MacManus, noting that signatures can change over time. “My guess is the state legislature will take up the issue.”

One idea is to use fingerprints for verification, though that raises privacy concerns, and thus could be problematic in its own way.

The view from Broward

Lawyers involved in the post-election efforts are not immune from the harsh rhetoric and heated protests.

“It is painful to watch what is happening to our country and the divisiveness,” says Leonard Samuels of Fort Lauderdale, who is representing the Florida Democratic Party.

He admits he is somewhat worried about what might happen after the election when winners and losers are declared.

“We have courts. We have a democracy. We don’t decide these things out in the streets,” Mr. Samuels says. “I can’t speak to how the public is going to react to this. Let’s see how it plays out, and let’s hope that leadership on both sides works toward uniting our country and not dividing it.”

William Scherer, a Fort Lauderdale lawyer representing Scott, said he is not concerned that allegations about fraud and corruption might undermine voter confidence in elections.

“I am concerned with the actual fraud that is overlooked,” he says. “I am concerned with not following the rule of law.”

Mr. Scherer said what he is most concerned with is a failure by election officials to follow correct procedures. “That undermines the whole process, and that is going to lead to anarchy,” he says. “If our elections are not fair and they cannot be fairly administered, God help us.”

Snipes was a school administrator in 2003 when then-Governor Bush appointed her to replace Miriam Oliphant, who was removed as supervisor of elections for incompetence.

Snipes, a Democrat, has won reelection to the office four times, most recently in 2016 when she fielded 657,167 votes – more than any other candidate on the ballot in Broward. In fact, Snipes won 103,800 more votes in her county than the person at the top of the Democratic ticket that year, Hillary Clinton.

Despite her electoral success, Snipes’ tenure has been rocky.

Last year, she was named in a lawsuit by an unsuccessful congressional candidate, Tim Canova, who was seeking to analyze the votes in his Democratic primary race against incumbent Rep. Debbie Wasserman Schultz. An initial statistical analysis of the race suggested potential problems in several voting precincts.

Florida law makes clear that ballots are public records that must be made available for public inspection upon request. Rather than complying with that requirement, Snipes appears to have stalled the records request for months. In September 2017, with a lawsuit pending to examine the ballots, Snipes ordered all the paper ballots destroyed.

Florida law requires retention of all ballots in federal elections for 22 months. In addition, the law prohibits destruction of any records that are the subject of a pending lawsuit.

Election watchdog groups have long complained that Snipes and officials in her office are notoriously uncooperative when responding to requests for records and information related to elections in Broward.

Indeed, last week lawyers for Scott asked a state judge in an emergency motion to order Snipes to provide routine election information to the public. They wanted to know how many ballots were cast in Broward, how many ballots had been counted, and how many ballots remained to be counted.

The judge ordered Snipes to comply. But it remains unclear why such a request – and judicial intervention – was necessary to obtain such basic information about the election.

In addition, Snipes is currently operating under an injunction issued in August by a state circuit court judge, who ordered her not to open mail-in ballots outside the presence of the canvassing board.

The injunction was issued as a result of a January 2017 lawsuit filed by the Republican Party of Florida asking a state judge to order Snipes to follow the vote-counting procedure required by state law.

Snipes insisted in court filings that she had the authority to open and process all mail-in ballots outside the presence of the full canvassing board.

In his decision, Circuit Judge Raag Singhal notes that Snipes “admitted to misunderstanding the meaning of the word ‘canvass’ as set out in [Florida election law.]” He ruled that the correct procedure that must be followed by her office is that elections officials can compare the signature on the outside of a mail-in ballot to the signature on file in the voter registration database. But he said the elections office must keep those ballots unopened until they are presented to the entire three-person county canvassing board.

After the judge issued his injunction, Snipes sought to stay the ruling pending an appeal. The judge denied the requested stay.

Despite this legal activity in August and October, it is unclear what procedure Snipes used to handle the county’s mail-in votes. This is not a minor issue. Of the 714,000 votes cast in Broward County, 189,000 were cast as mail-in ballots.

At one point during legal challenges before the county’s canvassing board, Republican lawyers questioned the validity of a batch of ballots because they said they had been spoiled by the supervisor of elections because she opened them outside the presence of the canvassing board.

“We don’t know what is going on. There is no transparency here,” says Scherer. “Everything makes us suspicious.”

Lawyers for various Democratic candidates and the Democratic Party of Florida disputed the Republicans’ contention that the ballots were spoiled, saying there is case law that supports counting such votes.

An election warehouse becomes ground zero

In the days following the election, ground zero became a room in the county’s election warehouse, jammed with a scrum of lawyers and an assortment of news reporters, where the canvassing board was set to meet. It is the canvassing board’s job to decide whether disputed ballots will be counted or not.

As the board went from contested ballot to contested ballot, Republican lawyers saw potential fraud or corruption behind each one, offering frequent and vociferous objections.

Democratic lawyers were just as insistent that they wanted every vote counted, even if some ballot requirements weren’t followed to the letter of the law.

Occasionally, the tense atmosphere in the room was punctuated by noise from a couple hundred angry demonstrators outside in the parking lot, waving signs while hurling taunts at each other.

At one point a chant rose up among Republican protesters: “Lock her up! Lock her up! Lock her up!” They were not referring to Mrs. Clinton. This time, the target was Snipes.

At another point, the canvassing board displayed a disputed ballot on a large screen in the meeting room. The voter clearly disobeyed instructions to fill in the bubble on the ballot with a black mark. Instead, this person placed an X across each bubble.

What made it interesting is that the voter placed the Xs beside Republican candidates Scott and DeSantis.

Republican lawyers representing both had been objecting to any ballot that looked even slightly amiss.

“You gonna object to that one?” canvass board member Deborah Carpenter-Toye asked the phalanx of Republican legal talent.

The room erupted in laughter. It was a rare and refreshing break from what had become an increasingly tense standoff between opposing political forces.

For the record, the Republicans stuck to principle and argued that the ballot should be rejected.

Likewise, a lawyer for the Nelson campaign also stuck to the principles Democratic lawyers had been advocating. It was clear the voter wanted to cast votes for Scott and DeSantis. So, he said, the votes should count.

Resolving the problems in the election mechanics of Broward County is important not just for this election but also for 2020 campaign, when Mr. Trump intends to be on the ballot again.

Mr. Coker, the Florida-based pollster, expects another tight presidential race in his state. “That means millions of dollars of TV commercials, reporters coming in and out of here. Florida, Florida, Florida,” he says.

And if Trump has a harder time winning Michigan and Wisconsin, based on the statewide Democratic victories there last week, that will make winning the Sunshine State essential.

“It’s going to be a repeat,” Coker says. “Because next time around, Trump can’t win without Florida.”

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