In a deal that would delay a legal battle until after November’s general election, voting officials in eight large counties — including Hillsborough and Pinellas — have agreed to preserve records of digital ballot images in case they’re needed to confirm the results of the 2020 presidential race if there’s a recount.
Elections supervisors in the eight counties have been fighting a lawsuit that contends that digital images generated when paper ballots are scanned into voting machines must be maintained as public records. The counties have asserted that paper ballots are the actual record, not the images that are briefly created when the paper ballots are scanned into the machines.
But the plaintiffs, including the Florida Democratic Party and a national nonprofit that advocates for election security, say not retaining the images violates Florida’s public records law and that keeping the images is important in verifying the accuracy of vote totals.
In an agreement filed late Monday in Leon County Circuit Court, the two sides agreed to defer the continuation of the lawsuit until after the all-important November general election, with the stipulation that the counties would save the images if a machine recount is ordered for the presidential race.
A machine recount is triggered if there is a margin of victory of 0.5 percent or less.
Florida counties, by law, already preserve the original paper ballots from each election for at least 22 months. Some counties already also routinely save digital ballot images, while others do not.
The eight counties in the lawsuit — Pinellas, Hillsborough, Miami-Dade, Broward, Orange, Lee, Duval and Palm Beach — have voting equipment that is capable of retaining the ballot images, but do not have the equipment set up to do so.
Attorneys for the eight supervisors of elections and Secretary of State Laurel Lee’s office, which oversees the state’s voting systems, had previously filed motions to dismiss the case, but Leon County Circuit Judge Charles Dodson denied the motion. The defendants filed a notice of appeal to the First District Court of Appeal last week.
Chris Sautter, an attorney to AUDIT Elections USA, which is spearheading the lawsuit, said Tuesday that the appeal would have meant that the case likely would not have been heard before the November election anyway.
The plaintiffs can renew prosecution of the case after Nov. 17, according to the agreement, which Judge Dodson approved Tuesday.
The Florida Democratic Party, three state legislators who are up for re-election and Dan Helm, a Democrat running for Pinellas County Supervisor of Elections, are among the plaintiffs.
In a statement, AUDIT Elections USA said that 32 of Florida’s 67 counties already routinely preserve ballot images.
Sautter said keeping the images is important for Florida, which has seen its share of controversial elections over the years. He pointed to an instance in 2018 when Broward elections workers allegedly misfiled more than 2,000 paper ballots during a recount.
“While AUDIT Elections USA does not agree with claims by the eight (elections supervisors) that preserving ballot images will interfere with smooth election administration, our ultimate goal is increasing public confidence in our elections,” Sautter said in a statement.
He said the plaintiffs decided that resolution of the lawsuit could wait “until after the most important election of our time.”