Thousands of Florida ballots may not be counted until after election night (and that’s okay)

Still, many expect Florida will know before the sun rises on Nov. 4 whether Donald Trump or Democratic nominee Joe Biden has won the state.
Judge Betsy Benson, canvassing board chair, left, and Judge Deborah Carpenter-Toye, canvassing board member, examine a damaged ballot as the election recount continues in Broward County on Wednesday, Nov. 14, 2018
Judge Betsy Benson, canvassing board chair, left, and Judge Deborah Carpenter-Toye, canvassing board member, examine a damaged ballot as the election recount continues in Broward County on Wednesday, Nov. 14, 2018 [ PATRICK FARRELL | Miami Herald ]
Published Sept. 30, 2020|Updated Sept. 30, 2020

A mail voting surge in Florida — a must-win battleground state for President Donald Trump — could lead to tense days after the Nov. 3 election, during which thousands of ballots may remain uncounted and the outcome of the presidential race unknown.

And that’s okay.

While Election Day is often treated like the Super Bowl, as if the winner will certainly emerge before bedtime, Florida law gives local elections officials several days to submit unofficial results. During that time, they are allowed to continue processing ballots — including the scores of 11th-hour mail ballots expected to arrive during the final hours before the close of polls, especially in large, left-leaning counties where hundreds of thousands of voters have requested mail ballots.

“There is a possibility that we’ll still be tabulating ballots on Wednesday,” said Miami-Dade Supervisor of Elections Christina White, who oversees elections in a county of 1.5 million voters, more than a third of whom have requested mail ballots. “It’s not attributed to any breakdown in the process. It’s simply the time-consuming task of processing tens of thousands of ballots after 7 p.m. on election night.”

Florida lawmakers have encouraged elections officials to submit results as early as possible. Supervisors can begin counting mail ballots more than three weeks before Election Day, and are required to submit totals for mail ballots and in-person early voting — which runs for two weeks prior to Election Day — to the secretary of state within a half-hour of polls closing. Votes cast on Election Day at the polls must be submitted by 2 a.m.

For those reasons, many expect Florida will know before the sun rises on Nov. 4 whether Trump or Democratic nominee Joe Biden has won the state — and whether Trump’s path to reelection remains open.

“If the margin is relatively large, I would say Florida voters and the nation should know who won Florida’s Electoral College votes sometime late on election night,” said David Becker, founder of the Washington-based think tank Center for Election Innovation & Research.

But Florida’s elections often come down to narrow margins, amplifying the importance of each vote and increasing the scrutiny on the post-election processes. And with an unprecedented 5.1 million voters requesting mail ballots this year, in the midst of a pandemic, there’s a greater possibility that a significant number of mail ballots will arrive on Election Day, creating a significant amount of work for supervisors offices.

“It is a process,” said White, whose staff will be at a postal distribution center in Opa-locka on election night to secure the last legal ballots that arrive before the 7 p.m. deadline to count in the election. “We have to run them through the system, do signature verification, work with the canvassing board, open them, tabulate them, and post the results on the website. All of that takes hours to do, depending upon the volume.”

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Once Florida’s elections offices report their first results to the state, they’re required to update those tallies every 45 minutes, or explain why they are unable to meet those periodic requirements. From that point onward, elections officials are given until noon on the fourth day after the election to continue counting votes and working with voters to correct any problems that may have led ballots to be rejected.

If a recount is needed, a second set of unofficial results are due by noon on the ninth day after the election. Final, certified results are due on the 12th day. Two days later, the state’s elections canvassing commission will certify the results of the state’s elections. Other states have different rules for counting ballots and different timelines. Florida’s deadlines are among the earliest.

“We should trust the process,” said Becker.

But over the last two decades, protests and politicians have tried to disrupt efforts to accurately count votes in tight Florida races.

Twenty years ago, when the Florida presidential race came down to 537 votes, an angry mob led to believe ballots were being forged at Miami-Dade County Hall rushed the facilities and forced the shutdown of the county’s recount. And as recently as 2018, when three statewide races wound up so close they required automatic recounts, the belated counting of tens of thousands of mail ballots in deep blue South Florida led Republicans to cry foul as Democratic candidates gained ground on Republican frontrunners during the three days following the election.

Having already declared victory, then-Gov. Rick Scott called a news conference at the governor’s mansion about 48 hours after the polls closed and suggested “rampant fraud” was occurring in Broward and Palm Beach counties. Miami Republican Sen. Marco Rubio said Democratic attorneys were trying to “steal” the election. On the White House lawn, Trump claimed that, in Broward and Palm Beach counties, “they are finding votes out of nowhere.”

The claims were baseless. The Florida Department of Law Enforcement, run by a Scott appointee, investigated and determined there was no evidence of voter fraud. In Broward, another Scott appointee conducted a post-mortem of the office’s handling of the 2018 elections and likewise found no proof of fraud. A Broward county audit came to a similar conclusion, determining that poor management — including the failure to process nearly 50,000 mail ballots that arrived before Election Day — led to problems experienced during the 2018 election and recount.

But the episode could be a precursor to what awaits Florida this November as Trump continues to rail against the counting of mail ballots after Election Day, claiming without evidence that Democrats are planning to “rig” the election. Trump has cooled his rhetoric about mail voting in Florida, due to concerns about depressing Republican turnout. But increasing the likelihood of politically motivated attacks, a massive surge in Florida mail ballot requests has been driven by Democrats, raising the possibility that a majority of any mail ballots left uncounted on Nov. 4 would be stacked in Biden’s favor.

Scott, now in the U.S. Senate, filed a bill last week that would require all ballots in the country to be counted within 24 hours of polls closing. “I think everybody would like to have an answer on election night,” said Scott.

Scott’s proposal, however, ignores that federal law affords overseas voters and military families 10 days after the election to get their mail ballots returned. It also conflicts with the processes that Scott oversaw for eight years as governor that give elections officials several days to help voters fix flawed ballot signatures, process damaged ballots and review late-breaking mail votes.

“Before the partisans come out firing to delegitimize democracy, we should let the process play out,” Becker said.

Becker’s concerns are shared by the FBI, which last week warned that foreign actors could try to use the rise in mail voting across the country and the time it takes to count those ballots to sow distrust in the results of the election.

“State and local officials typically require several days to weeks to certify elections' final results in order to ensure every legally cast vote is accurately counted,” the FBI stated in a recent public service announcement. “The increased use of mail-in ballots due to COVID-19 protocols could leave officials with incomplete results on election night. Foreign actors and cybercriminals could exploit the time required to certify and announce elections' results by disseminating disinformation that includes reports of voter suppression, cyber attacks targeting election infrastructure, voter or ballot fraud, and other problems intended to convince the public of the elections' illegitimacy.”

To prevent that situation, elections officials and candidates are encouraging voters to turn in their ballots as early as possible. Miami-Dade County won’t mail out vote-by-mail ballots to the 530,000 voters who requested them until Thursday. But already some 14,000 Broward voters have returned their mail ballots, according to Steve Vancore, a spokesman for the Broward Supervisor of Elections.

Still, Broward is bracing for as many as 30,000 mail ballots to come in on Election Day, and Miami-Dade expects they’ll likely see at least the same 16,000 that came in at the last minute in 2018.

More than “530,000 people will have their [mail] ballots over a month prior to Election Day. Vote it and mail it back to us as quickly as possible,” White said. “If you get them in early and we don’t have that flood of ballots late on Election Day, that will assist us in reporting results earlier.”

Miami Herald staff writer Aaron Leibowitz and McClatchy DC correspondent Alex Daugherty contributed to this report.