MIAMI _ If Florida steers into recount territory for the presidential election again this year, supervisors of elections in the state's most populous counties, including Miami-Dade and Broward, have agreed to preserve the digital ballot images of all votes cast.
The agreement, filed late Monday in Leon County Circuit Court, also will defer a lawsuit filed by the Democratic Party and a national nonprofit group that advocates for elections security until after the November election. In the meantime, elections officials will save all ballot images obtained automatically from optical scanning machines if a machine recount is ordered for the presidential race.
"Somebody might say, 'What are the odds that lightning will strike twice?' but Florida just seems to defy the odds," said Chris Sautter, legal counsel to AUDIT Elections USA, a national nonprofit group that advocates for elections security and which is one of the plaintiffs.
The lawsuit was filed in Leon County in July by the Democratic Party, AUDIT Elections USA, three legislators _ Rep. Joseph S. Geller, D-Aventura, Rep. Geraldine Thompson, D-Windermere, Sen. Victor M. Torres, D-Kissimmee _ Dan Helm, a candidate for Supervisor of Elections in Pinellas County, as well as eight voters.
State and federal laws require that paper ballots be retained for 22 months, but there is no requirement that the images used to verify the ballots be kept as well. The lawsuit asks that ballot images be treated as public records available for inspection and require the state to order other local election officials to retain the ballot images.
In addition to Miami-Dade and Broward counties, the other defendants to the lawsuit are the Florida Secretary of State and supervisors of elections in Duval, Orange, Lee, Pinellas, Palm Beach and Hillsborough counties.
Supervisors argued that being required to retain images from precinct scanners might delay vote tabulation, especially in populous counties. But plaintiffs argued that two states, Maryland and Arizona, already require all ballot images be preserved and "there is no evidence" it has led to any delays, Sautter said.
He called the settlement agreement reached this week "a milestone in the battle to make elections in Florida verifiable" and will be "important to protect the integrity of any presidential recount."
Sautter added that the ultimate goal of the plaintiffs "is increasing public confidence in our elections."
Florida has earned a national reputation for its close elections since the 2000 presidential election was decided by just 537 votes.
Sautter said that had a rule to retain the ballot images been in place in 2018, when the U.S. Senate election was decided by only 10,033 votes and Broward County "lost" 2,040 ballots during the recount, "the mystery of the missing 2,040 ballots could have been solved.".
He also noted that Broward County officials destroyed all the paper ballots in a 2016 contested congressional primary.
Sautter said the lawsuit will also help to clarify current law and he said local supervisors of elections have gotten mixed messages from the Florida Division of Elections and "misleading information" from the Florida Association of Supervisors of Elections about preserving ballot images.
State and federal law require that all election materials must be preserved as part of the chain of custody of the vote and, the plaintiffs argue the ballot images qualify as election materials that must be saved for 22 months.
In an attempt to address these problems, legislators passed a law that makes it possible for supervisors of elections to use digital imaging software to retain ballot images and use those images for recount purposes but it does not take effect until January. Only one vendor _ ClearAudit digital imaging system from Clear Ballot Group of Boston _ currently provides those services.
