Florida Election Official Illegally Destroyed Ballots in Debbie Wasserman Schultz’s Heated 2016 Primary Race

Judge sides with progressive challenger Tim Canova and journalist seeking public records.

by Steven Rosenfeld / Independent Media Institute

The Florida county election supervisor overseeing one of 2016’s most bitter primary races, pitting the just-resigned Democratic National Committee Chairwoman Debbie Wasserman Schultz against progressive law professor Tim Canova, unlawfully broke federal and state laws by prematurely destroying that election’s ballots.

ruling by Broward County Circuit Court Judge Raag Singhal found Broward County Election Supervisor Brenda Snipes violated the state’s open record laws and federal law when she destroyed the ballots a year after the August 2016 primary, where Wasserman Schultz beat Tim Canova by 6,775 votes, according to the certified results. (Federal law requires election records be saved for 22 months after the general election).

Canova, assisted by television journalist and documentary filmmaker Lulu Friesdat, wanted to verify the 2016 primary’s vote count. But Snipes repeatedly rebuffed their efforts, even telling Friesdat thst she would have to pay nearly $72,000 before the election office in Florida’s second most populous county would produce the primary’s ballots.

“It is undisputed that the original paper ballots cast during primary elections are public records,” Judge Singhal wrote. “Had the ballots not been destroyed [a year after the primary election], the Court would have been required to enforce the Public Records Act and order Defendant [Snipes] to produce the records for inspection and copying ‘while in the custody of the supervisor of elections… at any reasonable time, under reasonable conditions.’”

Singhal went further and chastised Snipes for stonewalling a candidate and the media.

“The [Florida] Constitution grants every person the fundamental right to inspect or copy public records. Whether the public chooses to inspect or copy is not the choice of the governmental agency which has custody of the records,” the ruling said. “The Court finds Defendant’s violation is two-fold: (1) violation of state and federal retention requirements and (2) violation of affirmative responsibility to preserve evidence… Here, Plaintiff [Canova] filed suit to compel the production of the records but the records were destroyed while this case was pending before this Court.”

Singhal ordered Broward County to repay Canova’s court fees. The County election office and its attorneys have not been commenting to the press. But Politico reportedthat Republican Gov. Rick Scott’s administration has said it would send an observer for the upcoming 2018 primary in August and general election in November.

Canova, who is again challenging Wasserman Schultz in 2018—as an Independent—said Scott should remove Snipes and federal officials should open an investigation. Canova said his attorneys have told him that Broward County is likely to appeal the decision.

“So far, our legal fees are $250,000,” he said, adding the prospective appeal could end up costing the county’s taxpayers $1 million, after lawyers on both sides are paid.

What Was Broward County Hiding?

In 2016’s primary, Wasserman Schultz reportedly received 28,298 votes, compared to 21,504 votes for Canova. That primary came weeks after she resigned as DNC chairwoman because her staff had been caught plotting against Bernie Sanders’ campaign for the Democratic nomination. Emails from her staff had been hacked by Russian agents, according to U.S. intelligence officials, and ended up on Wikileaks.

That backdrop, pitting Canova, a Berniecrat progressive, against one of Hillary Clinton’s most ardent supporters and a centrist, attracted national attention. However, Canova lost the primary by 13 points and initially did not seek a recount. After he was contacted by Friesdat, whose team had done a statistical analysis of the race, he began to question the count’s accuracy, he said this week.

The county did provide some data in response to the public records request. With that data, Friesdat was able to compare the number of ballots cast to the number of votes awarded, revealing widespread discrepancies. In some precincts, there were 20 more votes awarded than ballots cast, for a total of 1,000 improperly tallied votes in the election as a whole. In the article she originally published on the subject, Friesdat quotes multiple election experts who said the discrepancies were alarming, showing “massive incompetence” or that the county was “grossly negligent.”

Canova’s campaign had also done internal polling that made him believe the actual primary results were much closer than the officially certified vote total, prompting the ensuing open records request, subsequent court filings in response to the county’s stonewallling, and the Florida Circuit Court ruling in his favor—because Broward County had destroyed the 2016 ballots.

“In this matter, it is undisputed that the original paper ballots were destroyed,” Judge Singhal wrote. “As such, the only remedy available to the Plaintiff is for this Court to grant summary judgment and award attorney’s fees.”

While Canova and election transparency activists hailed the ruling, Canova said there was tremendous pressure from election officials and Democratic Party to drop the matter and not verify the vote. Until Singhal’s ruling, he was treated as an unwelcome gadfly citing federal law that said election records had to be saved for 22 months and Florida law saying they had to be made available for inspection and copying.

“I think what prevents people [from verifying the vote] is this culture of shaming,” he said. “Candidates are told, ‘Don’t be sore losers. You’ll never have another chance to run.’”

Background on Tim Canova v. Brenda Snipes, in her official capacity as Broward County Supervisor of Elections

After the results of Tim Canova’s August 2016 primary against Rep. Debbie Wasserman Schultz, a number of election-integrity experts found the certified results problematic. Lulu Friesdat, a journalist and documentary filmmaker who has investigated election issues for over a decade, worked with a team of data analysts, and they found statistical red flags in the results.

Canova wanted to inspect the ballots, initially in about a dozen precincts, under Florida’s public records law. By inspecting the ballots, Canova, a Nova Southeastern University law professor, sought to verify the vote, which he hoped would put people’s concerns and suspicions to rest.

In November of 2016, Friesdat filed two public records requests with the Broward County Supervisor of Elections Office. The office did not comply fully with the public records requests, and falsely stated that they “do not capture Ballot Image Files.” In March of 2017, Canova and Friesdat filed a third public records request with the office. In June of 2017, after the Broward Supervisor continued to stonewall the requests, Canova filed a lawsuit to gain access to the ballots.

On September 1, 2017, while the lawsuit was pending, and prior to allowing any inspection, Brenda Snipes, the Broward Supervisor of Elections, personally signed off on the illegal destruction of all of the ballots and accompanying documentation in the race. Even after Snipes destroyed the ballots, she concealed the fact, until forced to disclose the illegal destruction during the discovery phase of our lawsuit. As the court suggested in its May 11, 2018 order granting Canova summary judgment, even after Snipes admitted to the destruction of ballots, she continued to act in bad faith by litigating for another eight months, thereby harming Broward County taxpayers by needlessly driving up the litigation costs for both sides.

Without the original paper ballots, and using only digital scanned images, elections experts that were consulted say it is impossible to verify the results of our primary against Wasserman Schultz. There are an unfortunately large number of ways that the process could produce an incorrect ballot count. Ballots could have been lost or replaced before the scanning; ballot on demand machines could have produced extra ballots; some digital images could have been either accidentally or deliberately repeated numerous times. Digital images themselves can be altered, and there is no convincing chain-of-custody evidence for these digital images. The process of creating them involved using third-party proprietary software, as well as assistance from a third-party vendor, Clear Ballot. Even the chain-of-custody documents for the original paper ballots were not filled out fully.

When Ms. Friesdat’s data team was able to review some of the information from the election, they found large and unexplained discrepancies between the number of voters who voted and the number of cast ballots. In all, there were more than 1,000 discrepancies, and out of 211 precincts only 19 had the same number of voters and ballots. These irregularities were highly concerning to election experts.

Duncan Buell, a professor of computer science at the University of South Carolina, said, “I see what I would call a high likelihood of massive incompetence. Either that or there is fraud. I don’t think you should see numbers this big in this many precincts.” Buell has examined election records extensively in South Carolina.

Douglas Jones, a computer science professor at the University of Iowa stated that the county ought to be reconciling the number of voters with ballots and if they’re not doing it, “they’re grossly negligent.” Jones served on the Election Assistance Commission’s Technical Guidelines Development Committee for four years, but said “I’ve never seen a county that looks like this.”

The large discrepancies between the number of voters and the cast ballots, plus the inability or refusal of the Supervisor of Elections’ office to produce the original ballots, all raise questions about what the true totals for the race may have been. The experts we spoke with concurred that the certified results must be considered suspect. “They destroyed the evidence,” said Karen McKim, a member of the Wisconsin Election Integrity Action Team and a veteran of hand-counts in that state. “They can’t defend their results.”

According to U.S. intelligence agencies, there are serious risks to the integrity of our elections from hacking or other electronic manipulation. Those risks could be from either foreign or domestic sources. The ease of hacking into electronic voting machines – even those not ordinarily connected to the internet – was recently reported in a New York Times Magazine article by Kim Zetter entitled “The Myth of the Hacker-Proof Voting Machine” (Feb. 21, 2018).

It is incumbent on us all to protect our democracy, and to make sure that we fully verify the accuracy of our elections.

Tim Canova v. Brenda Snipes, Broward County Supervisor of Elections

After the results of Tim Canova’s August 2016 primary against Rep. Debbie Wasserman Schultz, a number of election-integrity experts found the certified results problematic. Lulu Friesdat, a journalist and documentary filmmaker who has investigated election issues for over a decade, worked with a team of data analysts, and they found statistical red flags in the results.

Canova wanted to inspect the ballots, initially in about a dozen precincts, under Florida’s public records law. By inspecting the ballots, Canova, a Nova Southeastern University law professor, sought to verify the vote, which he hoped would put people’s concerns and suspicions to rest.

In November of 2016, Friesdat filed two public records requests with the Broward County Supervisor of Elections Office. The office did not comply fully with the public records requests, and falsely stated that they “do not capture Ballot Image Files.” In March of 2017, Canova and Friesdat filed a third public records request with the office. In June of 2017, after the Broward Supervisor continued to stonewall the requests, Canova filed a lawsuit to gain access to the ballots.

On September 1, 2017, while the lawsuit was pending, and prior to allowing any inspection, Brenda Snipes, the Broward Supervisor of Elections, personally signed off on the illegal destruction of all of the ballots and accompanying documentation in the race. Even after Snipes destroyed the ballots, she concealed the fact, until forced to disclose the illegal destruction during the discovery phase of our lawsuit. As the court suggested in its May 11, 2018 order granting Canova summary judgment, even after Snipes admitted to the destruction of ballots, she continued to act in bad faith by litigating for another eight months, thereby harming Broward County taxpayers by needlessly driving up the litigation costs for both sides.

Without the original paper ballots, and using only digital scanned images, elections experts that were consulted say it is impossible to verify the results of our primary against Wasserman Schultz. There are an unfortunately large number of ways that the process could produce an incorrect ballot count. Ballots could have been lost or replaced before the scanning; ballot on demand machines could have produced extra ballots; some digital images could have been either accidentally or deliberately repeated numerous times. Digital images themselves can be altered, and there is no convincing chain-of-custody evidence for these digital images. The process of creating them involved using third-party proprietary software, as well as assistance from a third-party vendor, Clear Ballot. Even the chain-of-custody documents for the original paper ballots were not filled out fully.

When Ms. Friesdat’s data team was able to review some of the information from the election, they found large and unexplained discrepancies between the number of voters who voted and the number of cast ballots. In all, there were more than 1,000 discrepancies, and out of 211 precincts only 19 had the same number of voters and ballots. These irregularities were highly concerning to election experts.

Duncan Buell, a professor of computer science at the University of South Carolina, said, “I see what I would call a high likelihood of massive incompetence. Either that or there is fraud. I don’t think you should see numbers this big in this many precincts.” Buell has examined election records extensively in South Carolina.

Douglas Jones, a computer science professor at the University of Iowa stated that the county ought to be reconciling the number of voters with ballots and if they’re not doing it, “they’re grossly negligent.” Jones served on the Election Assistance Commission’s Technical Guidelines Development Committee for four years, but said “I’ve never seen a county that looks like this.”

The large discrepancies between the number of voters and the cast ballots, plus the inability or refusal of the Supervisor of Elections’ office to produce the original ballots, all raise questions about what the true totals for the race may have been. The experts we spoke with concurred that the certified results must be considered suspect. “They destroyed the evidence,” said Karen McKim, a member of the Wisconsin Election Integrity Action Team and a veteran of hand-counts in that state. “They can’t defend their results.”

According to U.S. intelligence agencies, there are serious risks to the integrity of our elections from hacking or other electronic manipulation. Those risks could be from either foreign or domestic sources. The ease of hacking into electronic voting machines – even those not ordinarily connected to the internet – was recently reported in a New York Times Magazine article by Kim Zetter entitled “The Myth of the Hacker-Proof Voting Machine” (Feb. 21, 2018).

It is incumbent on us all to protect our democracy, and to make sure that we fully verify the accuracy of our elections.

Press Release: We Just Defeated the Supervisor of Elections in Court!

Press Release, Monday, May 14th

 Deborah Dion 305-213-3165

Tim Canova wins lawsuit against Brenda Snipes,

Broward County Supervisor of Elections, for the illegal destruction of all original paper ballots in his August 2016 Democratic primary against Rep. Debbie Wasserman Schultz

On Friday, May 11th, Circuit Court Judge Raag Singhal ruled that it was illegal for Brenda Snipes, the Broward County Supervisor of Elections, to destroy the original paper ballots cast in the August 30, 2016 primary between Tim Canova, a Nova Southeastern University law professor, and Rep. Debbie Wasserman Schultz, in Florida’s 23rd Congressional District.

The court’s ruling makes clear that Snipes’ destruction of ballots was illegal on several separate counts:

  1. By federal and Florida statute, ballots in a federal election must be preserved for 22 months. The ballots were destroyed after only 12 months. Violations of the statute are punishable by up to a year in prison.
  2. Documents that are the subject of legal proceedings cannot be destroyed without permission from the court. Mr. Canova filed a lawsuit on June 7, 2017 requesting to inspect and scan or copy the ballots. The ballots were destroyed on September 1, 2017, while this litigation was pending.
  3. Canova had sought to inspect the original paper ballots under Florida’s public records law, as permitted for any citizen under the Florida Constitution. After three public records requests by election security journalist Lulu Friesdat, and months of stonewalling by Snipes, Canova joined the public records requests and filed suit. The court ruled that it was illegal for Snipes to refuse to produce the original paper ballots for inspection as public records and to refuse to allow copying and/or scanning of those ballots.

Snipes argued for a view of a political culture that is closed and anti-democratic — a view that has been soundly rejected by the court. The ruling condemned Snipes’ misconduct and stated that her defenses were “without substance in fact or law.”

This judgment affirms the important role of public records requests “to allow Florida’s citizens to discover the actions of their government.”  As the court made clear, the Florida Constitution grants every person “the fundamental right” to inspect and copy public records and that this right is a “cornerstone of our political culture.”

The court’s order in Tim Canova v. Brenda Snipes, is attached. For background information on the case, please see: www.timcanova.com. For background information on Lulu Friesdat, please see: http://www.hollerbackfilm.com/team

Without the original paper ballots, and using only digital scanned images, elections experts we consulted say it is impossible to verify the results of our primary against Wasserman Schultz. There are an unfortunately large number of ways that the process could produce an incorrect ballot count. Ballots could have been lost or replaced before the scanning; ballot on demand machines could have produced extra ballots; some digital images could either accidentally or deliberately been repeated numerous times. Digital images themselves can be altered, and there is no convincing chain-of-custody evidence for these digital images. The process of creating them involved using third-party proprietary software, as well as assistance from a third-party vendor, Clear Ballot. Even the chain-of-custody documents for the original paper ballots were not filled out fully.

It is my view that the only lasting remedy requires legislation and a cultural shift: a reformed election system based on 100% paper ballots counted by hand in public would be one way to ensure truly transparent and verifiable elections. The original ballots could be scanned using open source software as a permanent backup, with ballot images and software open to public inspection. It is imperative that we improve chain-of-custody protocols. Ideally it would be best if elections are administered by non-partisan or trans-partisan officials.

I would like to thank the thousands of people in my district, the state of Florida, and around the country who have supported our efforts to inspect the ballots and prosecute this lawsuit in big and small ways. I am grateful for the many small donations to our campaign and for the support of those who have kept me in their thoughts and prayers and shared news of our fight during these challenging times.

This victory is not the end of this case. The court must still assess the damages in terms of legal costs and fees that were caused by the Supervisor’s illegal conduct.

We all need to be concerned about the ability of the Broward Supervisor to administer our elections accurately, securely, according to the law, and with the required transparency to give all voters confidence in the election results. We must demand integrity and transparency in our elections. I trust that the Florida Secretary of State’s ongoing investigation of the Broward Supervisor’s destruction of ballots will be concluded swiftly now that the court has reached a conclusive finding of illegal conduct and bad faith by Brenda Snipes, the Broward County Supervisor of Elections.

Paid For By Tim Canova For Congress