TALLAHASSEE --- A legal fight about whether elections supervisors in eight large counties should be required to preserve digital ballot images will be put on hold until after the November elections, but the images would be available if Florida needs a recount in the race between President Donald Trump and Democratic presidential nominee Joe Biden.
Attorneys for Democratic plaintiffs in the case announced Tuesday an agreement to temporarily halt the dispute involving elections supervisors in Broward, Orange, Lee, Duval, Hillsborough, Palm Beach, Pinellas and Miami-Dade counties. The announcement came after the supervisors last week filed a notice of appeal following a Leon County circuit judge’s refusal to dismiss the lawsuit.
The case, filed in July, involves digital images that are generated after voters fill out paper ballots and feed the ballots into scanners. The digital images are used in quickly tabulating votes, but the plaintiffs in the lawsuit contend that many supervisors are violating the state’s public-records law by then discarding the images.
Democrats argue that preserving the images is necessary to ensure the accuracy of vote counts, pointing to instances in which paper ballots have been lost or misplaced in Florida and other states. But attorneys for Secretary of State Laurel Lee and the supervisors contend that the paper ballots --- not the digital images --- are the record of how people voted and that supervisors keep those ballots in compliance with public-records laws.
The agreement calls for the case to be put on hold until Nov. 17 or until a presidential recount is finished, if needed. The supervisors would make available digital images for such a recount.
“All parties to the action jointly stipulate and agree that it is of the utmost importance that the November 3, 2020 General Election be efficiently administered so that all voters in Florida can have their vote counted,” the agreement said. “All parties have agreed that proceeding with this action at the present time may not be helpful to the administration of the 2020 General Election and, accordingly, have agreed to a stay and abatement.”
The agreement made clear the two sides have not changed their underlying positions on the use of the ballot images. But state Rep. Joe Geller, an Aventura Democrat who is a plaintiff and attorney in the lawsuit, issued a statement that pointed to the importance of having digital ballot images available in case of a presidential recount in the battleground state. Geller also cited the 2000 recount that decided the presidential race between Republican George W. Bush and Democrat Al Gore.
“As a veteran of the 2000 recount, I am immensely gratified that both sides have agreed to the preservation of these ballot images in the event of a presidential recount,” Geller said. “Nothing could be more important than getting the presidential election right.”
Other plaintiffs in the case include state Rep. Geraldine Thompson, D-Windermere, state Sen. Victor Torres, D-Orlando, the Florida Democratic Party and individual voters.
The agreement came after Leon County Circuit Judge Charles Dodson this month denied motions to dismiss the case, prompting the supervisors to file the notice of appeal at the 1st District Court of Appeal.
The plaintiffs have contended that the digital images are a public record and, as a result, must be preserved by elections supervisors. The announcement of the agreement Tuesday said 32 of the state’s 67 counties routinely preserve such images.
“Contrary to (the supervisors of elections’) assertions, digital ballot images have a critical role in assuring that election results are legitimate and that close races have been resolved accurately,” the plaintiffs’ attorneys wrote in a court document this month.
But in seeking the dismissal, attorneys for the supervisors argued, in part, that Leon County is an “improper venue” for the lawsuit involving supervisors from other parts of the state. They also argued that the process of a machine reading a digital image “takes about a fifth of a second, and once the digital image has been used for that purpose, the digital ballot tabulator automatically clears the image because it no longer serves any purpose.”
“Digital images that exist for a moment merely to allow a machine to read a physical ballot and translate that physical ballot into a vote tally are not public records,” a motion for dismissal said.