Experts: Broward’s Elections Chief Broke Law in Destroying Ballots

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This article by Marc Caputo was published December 15, 2017 by Politico.

The election supervisor in Florida’s second-most populous county broke the law by destroying ballots cast in last year’s congressional primary involving Rep. Debbie Wasserman Schultz, according to election-law experts across the political spectrum. The congresswoman’s opponent has sued to get access to the ballots.

The case—-one of three ongoing independent lawsuits plaguing Broward County Elections Supervisor Brenda Snipes’ troubled office—-stems from a June lawsuit filed in circuit court by Democrat Tim Canova. He had wanted to inspect the optical-scan ballots cast in his Aug. 30 primary race against Wasserman Schultz because he had concerns about the integrity of the elections office.

Under longstanding federal law, ballots cast in a congressional race aren’t supposed to be destroyed until 22 months after the election. And under state law, a public record sought in a court case is not supposed to be destroyed without a judge’s order.

Snipes’ office, however, destroyed the paper ballots in question in October—-in the middle of Canova’s lawsuit—-but says it’s lawful because the office made high-quality electronic copies. Canova’s legal team found out after the fact last month.

“The documents were not destroyed because they were maintained in an electronic format,” Snipes’ attorney, Burnadette Norris-Weeks, told POLITICO. “They have the documents. … They did a two-day inspection of the ballots.”

But Canova, a Nova Southeastern University law professor, and his attorney say they wanted originals to make sure they weren’t tampered with. Digital copies can be altered, they said.

Seven election-law lawyers interviewed by POLITICO do not share Snipes’ attorney’s interpretation of the statute. Nor does the Department of Justice’s voting division, which is in charge of enforcing the federal law.

“If it’s a federal election, i.e., there is at least one federal candidate on the ballot, the custodian must keep the ballots for 22 months,” Brett Kappel, a Washington lawyer with Akerman LLP, said in an email to POLITICO. “State law may require a shorter time for retention, but federal law would pre-empt any such state law with regard to ballots cast for federal candidates.”

Kappel said evidence in an active court case should never be unilaterally destroyed. He said actual paper ballots are superior to imaged copies, and he pointed to the legal wrangling over Florida’s now-discarded punch-card ballots that were banned after the disputed 2000 presidential elections in Florida.

“Photocopies would be inferior to the original if it came down to a dispute about how an individual ballot was marked—-remember hanging chads?” Kappel said.

Asked whether federal law allows for electronic storage and the destruction of federal-election ballots before 22 months, a DOJ spokesman pointed to a federal election handbook’s section that says copying is permitted but that “the originals be maintained for the requisite twenty-two month period.”

Snipes’ office is relying, instead, on guidance from a Florida Division of Elections manual that allows a supervisor to make a digital “master” copy of a ballot that would count as an original. Experts say, however, that the state can’t re-define a federal law. A spokeswoman for Florida’s elections division said the matter would have to be decided by a court.

Hans von Spakovsky, an elections expert with the conservative Heritage Foundation, said the ballots must be preserved in paper form for 22 months. He said there’s a simple reason that original ballots are superior to an electronic image: “These electronic systems can be hacked.”

According to Snipes’ office, however, the ballot copies are of high quality for a review. Her attorney also dismissed Canova as a sore loser who’s trying to create a name for himself as he challenges Wasserman Schultz a second time.

“Mr. Canova lost this election,” she said. “He’s been all over Washington and has been trying to do a documentary because he’s upset he lost the election.”

In one hearing, Norris-Weeks insisted that she “certainly could get [a sworn statement]from Debbie Wasserman Schultz” to say that “she knows that they’re preparing a documentary, and they’re running all around talking to different people trying to do that.”

But Canova said the accusation was false.

“I’m not working on a documentary,” he said. “It is unfortunate that counsel for the Supervisor of Elections has to make things up to somehow justify the office’s illegal actions.”

Wasserman Schultz’s office declined to comment, but she has said she looks forward to again facing Canova, whom she beat by 13.6 percentage points last year.

Canova didn’t want to comment about his specific motivations for the suit, but acknowledged he has concerns about the race against Wasserman Schultz. Canova’s interest in the ballots was piqued by Lulu Friesdat, a documentary filmmaker, who filed the first records request to inspect or copy the ballots.

A month later, Snipes’ office responded to the records request by saying it would cost $71,868.87 to sort and produce the ballots for inspection. Canova soon got involved with his attorney, Leonard Collins, and eventually they negotiated a price reduction that brought the cost down to about $3,000. But relations soured, and Canova sued in June.

Snipes’ office, meanwhile, is involved in two other lawsuits and has been plagued by errors and controversies over public records and paperwork.

Before the election last year, her office mistakenly sent out some absentee ballots to voters that failed to list a popular medical marijuana measure that ultimately passed by wide margins, but not before the office was sued by the Florida chapter of the National Organization for the Reform of Marijuana Laws. In another case during the election, the office mailed out about 1,700 ballots that had the word “no” in Creole where it should have said “wi” for “yes.”

Right before the general election, the Republican Party of Florida threatened to sue Snipes for the way in which her office handled the opening of absentee ballots. The matter was settled promptly, but the party filed a lawsuit this year to get a court order enforcing ballot-handling procedures. That case is ongoing.

Meanwhile, Snipes is defending herself in another lawsuit over the way the office removes ineligible voters from the rolls. That case, filed in federal court in South Florida by the conservative American Civil Rights Union, alleges Broward had more registered voters than voting-age population. Snipes office denies the charges and says ACRU is using outdated census information. Progressive groups say ACRU’s goal is to suppress minority votes, an accusation the group denies.

Broward County has the most registered Democrats in Florida, 593,000. And the 254,000 Republicans are outnumbered by the more than 333,000 voters who are registered in neither major political party.

Problems in Broward’s elections office preceded Snipes, who was appointed to the post in 2003 by then-Gov. Jeb Bush after her predecessor, Miriam Oliphant, was removed from office after she botched an election in 2002.

While on the witness stand in the federal case, Snipes admitted that some ineligible noncitizens had been on the rolls and that “a few of them had voted, yes.” Her legal team also didn’t dispute the testimony of a citizen activist who found that the rolls listed voters whose birth dates were listed as 1886 and 1889.

During the trial, Snipes’ office also botched producing a voter-roll maintenance manual it was supposed to furnish after the suit was filed. The manual was found four days before trial, but the office didn’t produce it until the morning of the second day of trial. The following day, Snipes’ office admitted that a portion of the manual, concerning the process of removing voters, was missing.

The federal judge in that case repeatedly expressed “concerns” about the way the office was handling records and discovery.

“They are the Keystone Kops of elections,” said ACRU’s lead attorney, J. Christian Adams. “It’s complete incompetence.”

Adams said his experience in court with the manual sounds similar to what happened to Canova’s attorney, Collins, when he learned in November that the documents he wanted to inspect had been destroyed.

Collins said he couldn’t believe the ballots were destroyed in the case. Not only is the law clear, he said, but so are the internal documents in Broward’s elections office. On Sept. 1, Snipes personally signed a “records disposition document” that says “further retention is not required for any litigation pending or imminent.” At the time, the lawsuit was three months old.

Of the state’s 67 county elections officials, Bay County Elections Supervisor Mark Andersen is recognized as one of the most high-tech. He said he relies on state law allowing him to destroy paper ballots after making high-quality images of the records. But, he says, there’s “no way” he would destroy ballots that are the subject of a lawsuit. Other elections supervisors said they, too, would never destroy the hard copy of ballots in a lawsuit.

If Florida elections supervisors are destroying ballots cast in federal races before 22 months, they’re breaking the law, said Priscilla Duncan, an Alabama attorney who was fighting to make sure that her state’s elections officials preserved images of ballots in the just-ended Senate race.

“The law is pretty simple. It’s pretty straightforward. You can’t destroy the ballots,” she said. “When I worked years ago in elections, we would save the trash just in case.”

For Canova’s lawyer, Collins, the case is just “bizarre.”

“You’re not supposed to destroy these ballots within 22 months,” Collins said. “They did. You can’t destroy public records in an ongoing court case. They did,” he said. “I’ve never seen anything like this.”

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