Legislators, Voters, FDP File Lawsuit Challenging Destruction of Election Materials By Florida Officials

TALLAHASSEE – Three Florida legislators running for re-election, along with eight voters and the Florida Democratic Party, have filed a legal action to prevent state and local election officials from continuing to destroy election materials critical for verifying election results.

The lawsuit filed today in state court in Tallahassee asks that the ballot images automatically created by digital voting equipment used throughout Florida be preserved for 22 months as required by federal and state law and be treated as public records available for inspection and production under such laws.

Currently, at least 27 of the state’s county Supervisors of Elections (SOEs) are preserving the ballot images while others are not.

The lawsuit seeks an order requiring Secretary of State Laurel Lee and state Elections Director Maria Matthews to instruct all SOEs of their legal duty to preserve ballot images and that defendant SOEs be enjoined from destroying the images following the August 18 primary and November 3rd general elections and all elections thereafter.

“These records called ballot images will help verify the accuracy of the 2020 presidential election,” said State Representative Joseph S. Geller (D-Aventura).  Geller is joined in the lawsuit by Representative Geraldine Thompson (D-Windermere) and State Senator Victor M. Torres (D-Kissimmee), as well as Dan Helm, a candidate for Supervisor of Elections in Pinellas County. Geller said the destruction of these images is in violation of state and federal law.

Geller pointed out that Governor Ron DeSantis signed a bill into law last week allowing digital ballot images to be used in election recounts. However, the law fails to require that the ballot images be preserved. “This new law adds urgency to the preservation of ballot images as vital election material,” noted Representative Geller.

One of the attorneys in the lawsuit, Chris Sautter, pointed out that not only has Florida been the scene of numerous razor close elections, including the 2000 presidential election decided by just 537 votes and the 2018 U.S. Senate election decided by only 10,033 votes. It is also a state with a reputation for sloppy sometimes negligent election administration.

During the 2018 U.S. Senate statewide recount, for example, Broward County “lost” 2,040 ballots. Sautter noted that the voting machine companies themselves have marketed digital voting equipment that creates ballot images for the ability of such images to help in “auditing and adjudication.” “Had Broward County saved their ballot images in 2018, the mystery of the missing 2,040 ballots could have been solved.”

Local defendants include the Supervisors of Elections in Broward, Miami-Dade, Duval, Orange, Lee, Pinellas, Palm Beach, and Hillsborough Counties. The SOEs in these defendant counties not only admit they are not preserving ballot images, they believe there is no legal obligation to save them.

The attorneys bringing the lawsuit are among the top election attorneys in Florida and in the U.S., including Chris Sautter, Ben Kuehne  and Representative Joseph Geller. Sautter, Kuehne and Geller are all veterans of numerous Florida voting rights efforts and election disputes, including the 2000 and 2018 statewide recounts.

“We believe that local election officials want to follow the law, but they need clear direction from the Secretary of State, who is the chief elections officer for the State of Florida, and the courts” said attorney Chris Sautter, who also serves as counsel to AUDIT Elections USA. Sautter added that SOEs have gotten mixed messages from the state Election Department and misleading information from the Florida Association of Supervisors of Elections about preserving ballot images.  “Ballot images must be preserved under state and federal law because they are an integral part of the chain of custody of the vote,” Sautter said. “Ballot images can no more be destroyed than paper ballots, mail-in ballot envelopes, or ballots that are duplicated because the originals have been torn or damaged and cannot go through the scanner. All are election materials that must be saved for 22 months.”

“The ballot images are a critical component for system diagnostics,” said Ray Lutz, an electrical engineer who is one of the nation’s top experts on ballot images. “If errors or discrepancies are discovered, the images are needed to pinpoint the source of those errors, whether it’s faulty equipment, software bugs, or other external reasons.”

“Ballot images can also be a check on the paper ballots,” Lutz added.  “Paper ballots can be modified with a pen, accidentally destroyed or inappropriately shredded. Having the original image created when the vote is cast protects against modification of the paper ballots.”

Ballot images are public records that can easily allow anyone to verify election results. Some places, such as Dane County, WI, post all the ballot images on their websites so that voters can verify election results for themselves.