On Monday, the Flagler County Supervisor of Elections discovered that ballots affecting 1,600 voters in three precincts had been misprinted, denying those voters a chance to vote in the race for Seat 3 of the East Flagler Mosquito Control District. This afternoon, Supervisor of Elections Kaiti Lenhart said the problem was worse, affecting six precincts and 2,200 votes.
“That sounds like the worst news, however the amount of voters affected in those splits is very small,” Lenhart said.
The original problem was in precincts 29, 33 and 35, on the Barrier Island. The additional problem ballots are in three so-called “split” precincts, where some voters are included in the mosquito district, and therefore eligible to vote for that seat, and some are not. Those are precincts 9, 27, and 37—First Baptist Church of Bunnell, the Palm Coast Community Center, and Old Kings Elementary. In all, 658 voters who voted early and 1,548 who got their ballot by mail got the wrong ballot as far as the mosquito control race is concerned.
But in an emergency meeting this afternoon, the Flagler County Canvassing Board voted to resolve the problem by issuing what it’s calling a “supplemental ballot” to all affected voters. The supplemental ballot will include an affidavit that affirms the voter’s identity. The ballots will be mailed to all affected voters, including those who have voted in person early, and each voter will be contacted by phone and email, if possible. All affected voters will also have the opportunity to request or turn in the supplemental ballot in person at the supervisor’s office in Bunnell. The turned in ballots will be tabulated by hand the night of the election.
The solution was put forth by Lenhart even though it goes against the recommendation of the state Division of Elections, which recommended that Lenhart do nothing regarding the 658 voters who voted early, and that she provide a new, complete and correct ballot, with all the races from president on down, to those voters who voted by mail with the erroneous ballot.
Lenhart disagreed with both recommendations—the first because she did not want to disenfranchise 658 voters outright from a voice in the mosquito control race. The second because, as advised by Ron Labasky, the supervisor of elections association’s lawyer, a ballot mailed in is a ballot cast, and Florida law forbids the casting of the same ballot twice in the same election: there would be no way to tell if voters who would have voted one way in the first ballot would have voted the same way in the second.
“My stance on this entire thing is there’s no precedent in the law,” Lenhart said. “The affected precincts and voters, they’ve been identified, we have staff, resources and time to offer the reasonable solution. So the only thing we’re headed up against is an email from the division which doesn’t fully authorize that as a solution. In my reading of the law, I’m not an attorney, and that’s why we have several here, in my reading of the law I’m willing to stick my head out for the voters and say hey, I will accept this responsibility, it was my mistake, I did what I can to correct it, because that is my job as supervisor of election. It doesn’t matter what lawsuit I’m facing or what enemy down the road wants to come at the decision made. I can’t base my decision-making by that. I have to err on the side of the voter in every situation, always. Otherwise I’m not doing my job. I know it’s not a pleasant situation for any of us. No one here is really smiling at each other. We’re not enjoying this at all, and I’m sorry. That’s why I want to make it up to the voters.”
A relatively contained problem that may yet have outsized ramifications in a jumpy election season.
If the supervisor’s office was to have been left with two stacks of mailed in ballots from voters by mail, it may also have faced a nightmare of potential litigation, and not just from voters who didn’t get to cast a ballot in the mosquito control race—but from any voter or party that may raise legal issues with the process, none of which is explicitly set out in law. Even so, Flagler elections officials—if not others on the canvassing board—may be praying that Florida does not end up at the center of another 2000-style election where ballot integrity becomes the issue, as Flagler’s problem, justifiably or not, would inevitably draw outsized attention, particularly in the current overheated climate of suspicions (however baseless) about the election process.
“Having potentially two ballots where you have those where if it’s me,” Labaski said, speaking to the canvassing board on a speaker phone from Tallahassee, “I cast the first one, you get it, and you send me a second one, and I’ve now voted for the president twice, obviously keeping track of those ballots would maybe come into question if there was ever a recount or something of that nature, so that would concern me, and I think Kaiti’s solution to me is not foreclosed by the statutes.” In other words, not forbidden by law.
Flagler’s ballot problem affects the mosquito control race featuring candidates Florence Fruehan and Aynne McAvoy. It is usually the sort of race for an office that gets the least attention. Ironically, it may end up getting more attention than many of the races on the ballot over the next 10 days. McAvoy was at the canvassing board today and spoke approvingly of the solution Lenhart put forth.
Neither Lenhart’s solution nor that of the Division of Elections left the canvassing board members comfortable. “On which ship are we safer, the Carpathia or the Titanic?” Nate McLaughlin, the county commissioner and canvassing board member for this cycle, said, referring to the ship that rescued some 700 survivors from the sinking Titanic in 1912, a number not too distant from the lost votes the Division of Elections was recommending be ignored. “So we’ve got two avenues that are both fraught with peril,” McLaughlin continued. “If we do nothing, then somebody is being disenfranchised and I see a suit coming. If we do something, at least those votes can be pulled out should a court say no, but if a court says yes, then the vote is sitting there and can be added in or taken out. I don’t see how we stay out of court with this either way.”
That’s assuming there is litigation.
“My concern,” said Melissa Moore-Stens, the county judge who chairs the canvassing board, “is what Maria Matthews from the Division [of Elections] sent us was that for early voters, there’s nothing that we could do, and just proceed with the results as is and hope that the outcome isn’t affected. That was the recommendation, and from a judicial standpoint, when we request an ethics opinion or something along those lines, if we follow that opinion, it’s presumptive good faith, and if we don’t, obviously it’s not. So to me it’s as though Ms. Matthews at least in her capacity has suggested that we do nothing, and I understand the board’s desire and motivation to have the voters have the ability to cast the vote in this one race that was inadvertently omitted, and I do think we have crafted a solution to the problem and can make that happen. My concern is that Ms. Matthews has already come out and told us not to do that.”
If an issue did arise, Labasky said, then the division’s opinion would be given “great credence.”
Sean Moylan, the attorney for the canvassing board—and an attorney in the county attorney’s office—explained the division’s position: “The statutes, although they don’t forbid her course of action, at the same time do not authorize it, and that she’s without authority to do this. Admittedly, there’s risk in any course we decide to take. The statute seems silent in this situation where there’s a mistake in ballot, as do the rules, the FAC rules, the attorney general’s opinions, the Division of Elections opinions. I haven’t found anything that speaks to this issue. So I guess it boils down to what authority, what do we hang our hat on to do this, aside from the equitable principle of trying to allow everybody to voice their vote.”
Just then, Moylan’s analysis, delivered slowly and carefully, was interrupted by a shriekingly high-pitched and repeated “meow-meow,” as if a cat had just been thrown onto the conference table and frightened into a stutter by the rim of glum creatures around it: it was McAvoy’s cell phone, ringing.
There was no conclusive answer to Molylan’s analysis beyond Labasky’s endorsement of Lenhart’s approach (he stressed that “quality control” in the process would be crucial), leaving it in the hands of Lenhart to fill the gray with the decision she considers more immediately beneficial to voters.
The judge’s trepidation may be why, when McLaughlin motioned to approve the Lenhart plan and Lenhart seconded it, the two of them clearly voted in favor, but the judge remained silent. It was not a vote against, and silence carries the presumption of affirmation in such situations, but the silence also reflected unease.