Jurisprudence

What’s Happening in Florida Is a Nightmare. 2020 Could Be So Much Worse.

Various protesters hold up signs in support of Ron DeSantis, Rick Scott, and Andrew Gillum.
Protesters gather Saturday outside the Supervisor of Elections Office in Broward County, Florida, where a recount is taking place for the governor and senator elections.
Photo by Emilee McGovern/SOPA Images/LightRocket via Getty Images

With Florida set this week to undertake a massive and massively politicized recount in the critical races for governor and senator, the way that election fight has played out so far has been an absolute nightmare. Perhaps most terrifyingly of all, the 2018 Florida elections have demonstrated the real possibility that President Donald Trump might attempt to ignore an unfavorable 2020 election outcome if the result is a slim loss by the president, a possibility that should give us all chills.

There’s no mincing words: We are entering into a dangerous new phase in the voting wars. Last week, various election calamities were fueled by incendiary and unsupported claims by Trump and others of fraud, by pockets of incompetence of election administration, by partisanship in election administration, and by continued fundamental defects in how our elections are conducted.

The new voting wars threaten to undermine the very foundation of American democracy: that election officials can fairly and accurately count ballots and that they can declare a winner whom the losers will accept as legitimate. Recent developments portend a very rocky 2020 election. If Trump is ahead in his re-election bid on the night of the election, only to lose that lead as more ballots in larger—mostly Democratic—counties are counted through a normal process in the days and weeks after Election Day, it seems reasonable to be concerned that he will contest such a legitimate vote. We don’t know if he would even vacate his office in such a scenario, triggering the possibility of a real constitutional crisis.

The current controversies in Florida laid bare the continued basic problems in election administration that first became evident during the disputed 2000 presidential election, leading to a recount in Florida, which twice ended up before the U.S. Supreme Court. The same pathologies I wrote about in my 2012 book, The Voting Wars, have been laid bare once again: highly decentralized election administration, with some election administrators, especially in big Democratic cities, underfunded and occasionally lacking in basic competence; partisanship in the administration of elections; poor ballot design and aging voting machinery; and poorly written electoral laws that allow for lawsuits aimed at changing the results in razor-thin elections.

Three statewide races in Florida, including those for U.S. Senate and governor, are so close that they have triggered provisions in Florida law for an automatic recounting of votes. Republican Rick Scott is ahead of incumbent Sen. Bill Nelson in the Senate race, and Republican Ron DeSantis is ahead of Democrat Andrew Gillum in the race for Florida governor. The races were close on election night, but they became much closer as large Florida counties, some with substantial Democratic majorities, engaged in their usual vote counting of hundreds of thousands of ballots in the days after Election Day.

It is no surprise that Democrats gain votes later in the counting process in part because big cities tend to contain lots of Democratic votes, and given their population, cities take much longer to count. This is why in Arizona Democratic U.S. Senate candidate Kyrsten Sinema has overtaken Republican candidate Martha McSally as votes continue to be counted in Maricopa County and elsewhere. All seems above board despite wholly unsupported Republican claims that Democratic election officials are “cooking the books.” Democrats continue to make gains in House races in California’s Orange County as well, in an orderly and fair process being conducted by a Republican elected official with a stellar reputation.

There is also a Democratic skew in ballots that need extra checking to count. As the careful work of professor Ned Foley has shown, in close election races that involve the counting of contested and provisional ballots, there now tends to be a “big blue shift” toward Democrats at the end of the count. That’s because, for a variety of reasons Foley has described, these ballots are more likely to be cast in heavily Democratic counties.

Although nerve-wracking, there’s nothing at all nefarious about any of this protracted counting. But that has not stopped extremely irresponsible and unsupported claims by Trump and others about “stealing elections.” Trump has tweeted that the counts on election night are the ones to be accepted and claimed that elections are “infected” when later vote counts are included. And Trump is not alone: Rick Scott, for example, has claimed without any evidence that there has been fraud in Broward County and that Democrats are trying to steal the election from him. Trump appears upset that Republicans in Arizona have not piled on to claims of vote fraud.

It is possible here for two things to be true at the same time: There’s no evidence of fraud in the counting of votes in Florida, and the incompetence of Broward County Supervisor of Elections Brenda Snipes is deeply troubling. First, on the fraud, state election officials in Florida, Florida’s state police, and a Florida judge have said there is absolutely no evidence of voter fraud. Nonetheless, Snipes’ history as an election administrator prior to this week’s problems is a national embarrassment: She’s destroyed ballots she should not have, delayed voting results, and mixed up provisional ballots with regular ballots. In this election, Scott had to (rightfully) sue to get Snipes to reveal information last week about how many ballots remained to be counted. The lack of transparency and record of incompetence make it puzzling why Scott did not remove Snipes from office, as he had the power to do, or otherwise reform Florida’s election system during his eight years as Florida governor.

On top of all this, there is a surprising undervote for U.S. Senate in Broward County. It’s possible that there was a problem with the machinery counting those ballots. A perhaps more plausible claim is that many voters simply skipped the race because of poor ballot design. A lot has been done to improve ballot design since the 2000 Florida debacle—there are no more butterfly ballots, for instance—but it appears Broward did not take advantage of these improvements.

Meanwhile, the Florida timetable for counts and recounts is draconian. Scott has sued to prevent votes from Broward County that were counted late from being included in vote totals, and Palm Beach County has said it is “impossible” to get three recounts done by the Thursday deadline. If they are not complete in time, recount results will not be included in the count (unless a court later orders them to be included).

Of course, using partisan election officials for all this makes things worse. Snipes is an elected Democrat originally appointed by Jeb Bush. Rick Scott, candidate for U.S. Senate, is the current Florida governor who not only appoints the secretary of state; he also was the one who “requested” that Florida police look into Broward County. And this problem extends beyond Florida to much of the country. I recently wrote about how Georgia gubernatorial candidate Brian Kemp engaged in the single most brazen act of partisanship in election administration I’ve seen while as secretary of state, accusing Democrats without evidence of committing cyberhacking and placing a notice to that effect on the official secretary of state website voters used to get information about voting on Election Day.

Meanwhile, the Democratic gubernatorial candidate in Georgia, Stacey Abrams, has filed suit to try to get more ballots counted there to try to force Kemp into a runoff, and Nelson has filed suit to argue for voters to get a chance to cure ballots rejected for lack of a signature match. Nelson’s lawsuit raises some good points about the likely unfairness of how counties conduct signature matching, but it may come too late. We have known for a long time that signature matching is not science and that changes need to be made to fix long-standing problems. Signature match laws in Georgia and New Hampshire were tossed out prior to this election by federal judges who have recognized that these policies are tainted by arbitrariness.

Put all of these obvious voting issues together, and it’s a toxic and volatile mix. Thanks to Trump and others, Republicans are skeptical of vote totals that come in on and after Election Day in what used to be an unremarkable and mostly orderly process. Thanks to incompetence and lack of transparency of people like Snipes, people have reason to worry about the accuracy of results. Hyperpolarization, decentralization, late litigation, outside attempted hacking of voter registration databases, and lack of adequate funding for machine upgrades add to concerns about the fairness and legitimacy of the process.

The potential for Trump to use his current playbook to try to stay in power even if a fair count would show he has lost should be clear at this point. It’s not too late, however, to make a number of fixes before 2020. Lots could be done to make vote results go faster in large counties, but it would take considerable resources. Bad election officials need to be removed. And unsupported incendiary claims of voter fraud need to be condemned by both sides of the aisle.

I’m not holding my breath, because I and others have been sounding this alarm since 2000, and not nearly enough has changed. Without more changes, the voting wars next time could endanger our very democracy itself.