Less than 48 hours after Election Day, the Democrats’ super election recount lawyer Marc Elias made it abundantly clear he wasn’t coming to Florida to get all the votes counted. He was coming to win an election.
At the time, Democrats trailed in the U.S. Senate race by more than 17,000 votes. But Florida’s second-most-populous county was still counting early votes cast more than four days earlier. And contrary to Florida law, they refused to update their count for the public at least every 45 minutes.
As one longtime Florida reporter observed in the New York Times, our state is “legendary for its wafer-thin voting margins,” and “veteran Florida politicians accustomed to tight electoral margins could shrug off the state’s whiplash-like results.”
[Opinion: Incompetence and lawlessness in Broward isn’t fraud, but it has a cost]
Our state’s election laws are built on our experience with close elections. In 65 of our state’s 67 counties, these laws were followed, and they worked. But two counties are guilty of gross incompetence, opening the way for partisan lawyers to try and override our state’s election laws.
No one is surprised that Broward County Supervisor of Elections Brenda Snipes, who has a long history of incompetence and improper activity, is at the center of the current debacle. She has shown herself to be incapable of conducting a large and important election in a way that inspires public confidence and trust.
Many in media and political circles outside of Florida are willfully ignorant of just how badly Snipes has handled our latest close election. And that ignorance is reflected in their inaccurate and misleading reporting and commentary.
Florida has a very strict set of rules when it comes to counting votes. Those rules increase transparency, which is necessary to have confidence in our election system.
So far, in this election, the most relevant of these rules is that each county canvassing board must file preliminary election results with the Department of State within 30 minutes after polls close. Thereafter, they are required to update those results in 45-minute increments until reporting concludes for all Election Day ballots, early voting ballots, and vote-by-mail ballots (except for overseas ballots).
Broward and Palm Beach counties refused to comply with this requirement.
In fact, more than 40 hours after the last polls closed, these two counties were still counting votes, but they were not reporting updated results regularly, much less in the 45-minute increments required by law.
Further compounding matters was that this lack of transparency occurred while the results of the race for agriculture commissioner flipped and Gov. Rick Scott’s lead in the Senate race continued to dwindle, from 54,000 votes to around 17,000.
At the same time, local media were uncovering other instances of incompetence and violations of the law. Boxes labeled “Provisional Ballots” left behind at a polling place. Illegal opening and counting of mail ballots not reviewed by the canvassing board. Voters sent too many ballot pages. And in Palm Beach County, election officials filled out new ballots to replace damaged ones, without allowing campaign representatives to witness the process of creating the new ballot, as required by Florida law.
The blatant lack of transparency is the original sin, which taints and politicizes everything else. And now, it has the potential to get much worse.
Democratic election lawyers are asking judges to force Florida to ignore its own election laws. They want a court to order the state not to enforce the requirement that voter signatures on mail ballots match the signature on file for the voter and to count ballots with signatures that do not match.
And they want a court to order Florida to ignore its laws on determining voter intent during manual recounts of “overvotes” and “undervotes.”
If granted, this order provides lawyers with the greatest opportunity for mischief. Under Florida law, voter intent is broadly defined, but all the markings on a ballot must be consistent. In other words, a circle on a candidate and a scribble next to another is not consistent. If a judge throws out that rule, it will be up to human beings serving on counting teams and canvassing boards to decide. In essence, Florida would be back to the days of hanging-chad-style decisions where human beings had to determine voter intent while being targeted by manipulation and persuasion efforts coming from lawyers on both sides.
I agree wholeheartedly that every vote cast in accordance with Florida’s law should be counted. But that is not at issue here. What is at issue is whether the outcome of this election or any election should hinge on which side can get the courts to change the laws after the fact.
Elections are how our nation peacefully settles political disputes. For all of the mudslinging and acrimony surrounding our campaigns, elections are a source of strength for our nation. But for elections to matter, voters must have confidence in their integrity.
That’s why I helped reform Florida’s voting laws after the 2000 presidential election. It’s why I was adamant about not giving credence to the WikiLeaks hacks against Hillary Clinton in 2016. It’s why I will not downplay the gross incompetence and illegal activity in Broward County. And it’s why we must not allow elections to be decided by changes to the rules after the fact.
No election win and no partisan outcome is more important than the preservation of the credibility of our democratic system.
Marco Rubio is Florida’s junior U.S. Senator.
