A legal stipulation preserves the images, which could become evidence proving who won the presidential election in a major battleground state.

In November 2018, Florida faced its biggest recount nightmare since the 2000 presidential election. There were three statewide races to simultaneously recount, including a U.S. Senate race with a vexing problem. Days after the election, Sen. Bill Nelson, the Democratic incumbent, was trailing Republican Gov. Rick Scott by 12,500 votes. It looked like 30,000 voters in reliably blue Broward County had not voted in that high-stakes race. The missing votes seemed implausible.

Every Florida county, including Broward, used large ballot scanners to start their recount. Under state law, only a subset of ballots was hand-counted. The scanners set aside ballots with more than one vote, or no vote at all, from the closest races for manual examination. Even though the scanners were creating a crisp digital image of the ballot card from every race being recounted, state law barred that library from being used to assess what had happened in Broward County.

Across the state in Tallahassee, Mark Earley, the Leon County supervisor of elections, shook his head when asked about the missing votes. For several years, Leon County had been using a digital ballot image-based system to unofficially verify its results. Leon County, too, could not use it for 2018’s official recounts, frustrating Earley. But unlike his peers in Broward County, Earley did not have dozens of rowdy Republicans massing outside his office windows and attacking the recount’s credibility as it slowly and laboriously proceeded.

When asked how long it would have taken ballot image technology—which Broward had—to solve the missing vote mystery, Earley bluntly replied, “A matter of minutes.”

“You can search where those needles in the haystack are and present them to the public at large through the digital image process,” he said. “If you need to pull the paper [ballots to review], you can do it.”

The Senate race, it turned out, was on the bottom corner of one page in Broward’s multi-column ballot, leading voters to overlook it—a design flaw. But nearly two years later, the use of ballot images to verify elections had resurfaced in Florida, only this time it concerned the 2020 presidential election.

This spring, partly in reaction to 2018’s messy recounts, Florida’s Republican-led legislature unanimously passed and its Republican governor signed into law a bill allowing counties to use digital ballot images in recounts starting in 2021. But a coalition of election transparency activists led by Audit USA didn’t want to wait.

In July, several Florida voters, three Democratic legislators, the Florida Democratic Party and election transparency advocates sued Florida’s top statewide election officials and supervisors of elections (SOE) in its eight most populous counties, including Broward, to force them to preserve the ballot images in the August 18 primary and November 3 general elections. The complaint said state and federal law required the images be saved as public records and election materials.

At first glance, the litigation might look like a clash between government public records laws that were written in a paper-based era, such as the federal Civil Rights Act of 1960 that requires that all election records be preserved for 22 months, and today’s world of digitized documents and files. That clash of 20th-century laws and 21st-century technology is real, but there’s more at issue.

Ballot images are not just another computer file, the plaintiffs argued. The newest voting systems in Florida and across America scan every ballot and create digital images of every card, which are then analyzed to detect ink marks and count votes. While paper ballots must be saved under Florida and federal law, the plaintiffs argued that the ballot image files also must be saved because they are the link between every ballot and the overall tally—the cast vote record’s data set.

“The digital ballot images, the unique digital ballot images; they are not copies” of the hand-marked or machine-marked paper ballots, Benedict Kuehne, the plaintiff’s lead attorney, said at a mid-August court hearing, responding to an argument by the defendants’ attorneys that sought to minimize their role by calling them copies. “They’re not photocopies. They are the vote-counting basis for the determination of the election.”

“The counting of the actual vote is what is the requirement of the Florida law, the First Amendment, every election law—counting the true vote of the voter,” Kuehne said. “That’s the very reason to have and maintain documents, to be able to recast, recount, or verify the ballots and the vote, if put into question.”

On the opposing side were attorneys for Florida Secretary of State, Division of Elections and elections supervisors led by Nathaniel A. Klitsberg of the Broward County Attorney’s Office. He aggressively argued the case should be dismissed, that the ballot images served no public-interest purpose, that they were not protected by state public records law, and the entire lawsuit was “dragging SOEs” into court and threatened to disrupt the 2020 presidential elections.

“Judge, it is the supervisor of elections’ view that the copies of the original ballots, that are digitally created in the machines that are used to tabulate those votes, do not constitute a public record under Florida law and therefore are not required to be maintained,” Klitsberg said during the same hearing where Kuehne spoke.

While half of Florida’s 67 counties save ballot images, according to documents filed in the case, the populous counties being sued did not want to be forced to do so for the August 18 primary and November 3 general election. (They set their scanners to delete the ballot images once the tabulation has finished.)

Klitsberg did not contest that the ballot images were a pivotal part of the vote-counting sequence. But saving the images would slow down polling place operations and voters, his legal team argued, because the USB flash memory drives installed on precinct scanners made by Election Systems and Software (model DS200) would fill up as the voting proceeded.

Their August 7 brief said that reporting the precinct results at the end of the night could take hours because their USB flash drives (one, four or eight gigabytes in size) would take 15 minutes to electronically transmit 1,500 ballot images, which fills three-quarters of a 1 GB drive. Buying 8 GB drives for thousands of scanners would cost “millions,” they said, as ES&S charges $210 per drive. Beyond these assertions, which the plaintiffs contested, Klitsberg kept returning to what he said was the foremost issue: Florida law did not yet specify that digital ballot images were a public record.

“The issue of whether something is or is not a public record is a matter of law. It is not a matter of fact. It is not a matter of opinion,” Klitsberg said at the hearing. “The manufacturer’s intention is irrelevant. The [plaintiff’s] election, quote, experts, from whom they have obtained affidavits; their opinions on the wisdom of keeping these copies, is similarly irrelevant.”

Neither Klitsberg nor the other attorneys for the defendants replied to follow-up emails asking what was behind the stridency of their arguments. Their communications’ contractor sent their latest briefs, which said the lawsuit was needlessly dragging SEOs into court, and asserted that the precinct scanners had what could be seen as a major defect: they were incapable of saving digital files linking an individual voter’s ballot to the tabulated results without impeding the voting process. The briefs said that ordering the counties to save the images would interfere with running an orderly presidential election.

The plaintiffs’ lawyers challenged these assertions. They cited ES&S manuals stating that the scanners had enough memory to save the ballot images and not interfere with voting operations. Their August 11 brief noted that “32 Florida counties currently save ballot images. These SEOs have posed no problems or concerns arising from their digital ballot preservation.” They noted that counties like Broward lost thousands of paper ballots in 2018, which meant that the images were a valuable backup. And, in comments to the press, they cited Maryland’s practice of using ES&S ballot images to independently verify the unofficial election results across the state before certifying winners.

On August 24, after Florida Circuit Court Judge Charles Dodson had rejected motions to dismiss the lawsuit, both sides agreed to a temporary compromise. The trial would be postponed until after the 2020 election. Meanwhile, the eight largest Florida counties would save their digital ballot images if there was a presidential recount this fall. (The counties would be using larger ballot scanners with built-in hard drives, not precinct scanners with thumb drives, if that recount occurred.)

Joseph Geller, a Democratic state legislator, plaintiff and attorney in the suit, and veteran of Florida’s 2000 presidential recount, was gratified by the agreement. Geller said the stipulation could lead to using the ballot images if Florida had a presidential recount, even if that meant returning to court to assert the images would be additional evidence to verify the result.

“If there’s a recount, there may be judicial involvement,” he said. “If some judge says, ‘Oh, good, you’ve saved these. I want to see them,’ or something like that, we know they’re saved. If we think just in the recount process that we want to resort to them, they’ve agreed that, for the purposes of this presidential recount, if it occurs, that these are public records.”

“Saving ballot images will serve to verify that mail-in votes have been accurately counted and help to quell any claims that election results were altered,” said Susan Pynchon, another plaintiff and Florida Fair Elections Coalition founder and executive director. “The possibility of Trump fighting election results is all too real.”

Vote Count Evidence

This lawsuit’s resolution will reverberate long after the 2020 election. At its heart is the issue of what evidence will be used to verify votes on the nation’s latest generation of voting systems if the first unofficial results of elections are so close that a recount ensues. (Every state has election laws that trigger recounts if the margin is less than a certain percentage, though the thresholds vary.)

Recounts are not the same as audits, which generally are held after the official winners have been certified. While some states have adopted what is called a “risk-limiting” audit before certification, that statistical process is designed to estimate the overall accuracy of results based on a random sample of ballots from one race. Image audits, in contrast, are a more complete accounting of all of the votes cast and more expeditious. That’s because all of the ballots are indexed, which allows officials to retrieve problematic ballots to judge voter intent.

However, just as most state public records laws were written in the 20th century’s paper-based era and did not anticipate computers and digital files, most recount laws and procedures also were written for older voting systems—including technology not necessarily in use today. Thus, whatever precedents emerge from the Florida litigation could have a wider application.

If Florida’s presidential election triggers a recount, the status of digital ballot images would be back in court in their highest-profile context yet. But Geller said that 2020 was not 2000, when presidential recounts were unknown nationally and when voting system technology was barely scrutinized.

“In 2000, there was no roadmap,” Geller said. “In 2000, we dealt with an antiquated voting system and inadequate machines that suffered both operational difficulties and design flaws. After a couple of tries [of Florida acquiring entirely new voting systems], the technology was drastically improved.”

“The punch cards are no more. Trying to figure out if something was dimpled or hanging, as an expression of voter intent, is no more,” he continued. “The electronic machines that we first switched to that had a lot of design problems and difficulty in verification are no more. And we even passed the optical scan system that was used for a while, and now we have this digital scan system [creating an image of each ballot card]. So unlike in 2000, we now have very sophisticated technology that’s designed to help with audits and recounts. Both systems now used in Florida, [made by] ES&S and Dominion, are designed that way.”

“We simply need the will to take advantage of the advanced technological designs features that are here to help with recounts and audits,” Geller said. “We can have a much more verifiable product [election results], which can be recounted in a much more timely fashion.”

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This article was produced by Voting Booth, a project of the Independent Media Institute.