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Florida’s Vote Counting Controversy Spells Trouble for 2020

10 minute read

The midterm elections are not yet over, and neither is the acrimony.

With extremely close statewide races for governor and senator in Florida, frustration has grown over the fact that two of its largest urban counties have lagged behind the rest of the state in counting votes, with implications for the 2020 presidential election.

The trouble started when the Florida Senate race between Democratic incumbent Sen. Bill Nelson and Republican Rick Scott, the current governor, remained too close to call on Election Night. As officials continued to count votes over the next few days, Scott’s lead over Nelson narrowed to 15,000 votes. This put the outcome well within the .25% margin that would require a hand recount under Florida law.

In the race for governor, Democrat Andrew Gillum conceded to Republican Ron DeSantis on Tuesday night, but when votes counted after Election Day brought the victory margin down to .44%, that put it within the margin needed for a machine recount. DeSantis led Gillum by just over 36,000 votes on Friday.

But the narrow margins were far from the only problems. Election experts say there are several aspects to Florida’s 2018 midterms that have created confusion.

First is that the two counties at the center of the controversy — Broward County and Palm Beach County — have histories of being slow to count votes. Broward in particular has frequently been accused of making mistakes, and its heavily Democratic population means that its votes can have a significant impact in tight races.

The county played a key role in the famous 2000 presidential election, when the close race between George W. Bush and Al Gore went all the way to the U.S. Supreme Court in part because of reports that “hanging chads” on some paper ballots meant that votes may have been incorrectly disqualified. The Court ultimately stopped the recount of ballots in Broward and three other counties, making Bush president.

Since then, Broward also saw issues when it lost some absentee ballots during the 2004 presidential election, according to the Washington Post. More recently, the office of Broward County Elections Supervisor Brenda Snipes destroyed physical ballots after the 2016 election while saving digital copies — a move that a court ruled violated Florida law.

While Broward County has had problems, Michael McDonald, an elections expert and professor of political science at the University of Florida, cautioned against judging the votes before everything is counted.

“Yes these places have had problems in the past but they’re not directly related to counting of the ballots,” he said. “There is no allegation that these counties have incorrectly counted ballots.”

McDonald also said that some counties like Broward may have taken longer to tabulate votes because they had longer physical ballots due to local amendments, so the machines may have taken a longer time to read each one.

Another concern with this election has been a discrepancy between the number of votes for the Senate race compared with those for the gubernatorial race. In Broward County, far fewer votes are being tallied in the Senate race than in the gubernatorial one. This could mean be due to the design of the ballot that some think may have caused voters to accidentally skip the Senate race, but it could also mean that voting machines made a mistake. In that case, those votes may be recovered during a recount and could change the outcome of the election.

Even with all of these issues, though, elections experts stress that taking days to count votes is actually very normal.

“That’s not unusual at all,” David Becker, executive director and founder of the Center for Election Innovation and Research, told TIME. “These are ballots that were cast and there’s a reason that the results are announced on Election Night are unofficial and have no legal effect. That’s because it takes time to actually count the ballots and make sure you have it right.”

But Scott doesn’t see it that way. The incumbent governor took a particularly aggressive tack at a press conference from the governor’s resident Thursday evening, arguing without evidence that the delays might be evidence of fraud.

“The people of Florida deserve fairness and transparency, and the supervisors are failing to give it to us,” Scott told reporters on Thursday night. “Every Floridian should be concerned there may be rampant fraud happening in Palm Beach and Broward Counties.”

He announced he was suing election officials in Palm Beach and Broward counties — both of whom are Democrats —and ordered the Florida Department of Law Enforcement to investigate Snipes in Broward.

“I will not sit idly by while unethical liberals try to steal this election from the great people of Florida,” Scott said.

The next day, the Florida Department of Law Enforcement said Scott had not submitted his request in writing, that no allegations of voter fraud had been made and that department was not investigating Snipes.

Still, President Donald Trump picked up Scott’s rhetoric with enthusiasm. He told reporters on Friday, again without evidence, that “there’s a lot of crooked stuff going on” in the Florida election. While the President was in a plane on his way to France, he continued weighing in, repeatedly arguing without evidence that local officials were “finding” votes in Florida and Georgia and suggesting that “fraud” and “corruption” were likely explanations for the changing margins as votes continued to be counted.

Florida Sen. Marco Rubio echoed these sentiments in tweets in the days following the election. He expressed frustration over the continued counting of ballots and also claimed without evidence that Broward County’s actions had opened the door for Democratic lawyers to “steal” a seat in the U.S. Senate.

The National Republican Senatorial Committee joined Scott’s lawsuit against Broward’s Snipes and put out communications accusing Democrats of tricks to unfairly take the election.

“If you thought Democrats couldn’t become more unhinged, think again. They are now trying to steal an election for Bill Nelson,” read a post on the NRSC website on Thursday.

Democrats have focused on calling for every vote to be counted over the last week. Gillum, who ran against DeSantis for the governorship, has tweeted once at Scott and once at Trump over the past few days, saying he believes every vote should be counted.

Nelson’s campaign sued the Florida Secretary of State over the signature matching process used to validate vote-by-mail and provisional ballots, calling it “disenfranchisement.” The Senator also issued a statement criticizing Scott’s behavior and saying that the governor was “impeding the democratic process.”

Election law experts say the allegations of fraud misunderstand how American elections work.

“It is irresponsible for politicians to assert that following the rules as they exist is inappropriate. The election officials who count votes are supposed to follow the rules,” Edward Foley, director of the election law program at the Ohio State University’s Moritz College of Law, told TIME.

He added there are specific explanations for why counting votes takes as long as it has this week. Part of the reason, he said, is because U.S. elections are run at the county level and so local officials are allowed to manage their counting differently. Another major reason has to do with reforms intended to ensure that every person’s vote counts.

“Since 2000, the phenomenon has developed of what we call the overtime vote,” Foley said. “We rely more on ballots that get counted not on Election Night but as part of the canvassing of returns much more than we did in the 20th century. It’s an accidental byproduct of positive reforms that were put in place after the 2000 presidential election.”

These reforms, according to Foley, include an increase in provisional ballots, which are inherently counted after Election Day once officials determine whether a voter is valid, and more common absentee or mail ballots, which can sometimes be turned in days after an election, or in Florida’s case, up until 7 p.m. on Election Day.

“There is nothing inherently nefarious. It’s built into the system. In fact it’s disconcerting that anyone would suggest that anyone the normal operation of this process is wrongful,” Foley said.

The Florida fight echoes similar claims that President Trump has made in the past.

When he lost the Iowa caucus to Sen. Ted Cruz during the 2016 presidential primaries, Trump said Cruz “illegally stole” the victory. And in the fall of 2016 as polls showed Trump more likely to lose the general election to Hillary Clinton, he issued dire warnings that the election would be “rigged” and suggested he might not concede to Clinton if he did not consider the results legitimate. In the final presidential debate, he declined to promise he would accept the results and instead said: “I’ll keep you in suspense.”

Even after Trump won the 2016 election, he trumpeted the baseless claim that “millions” of people voted illegally. Despite a lack of evidence of widespread voter fraud, set up a commission to examine voter fraud anyway. The committee did not find any significant evidence of voter fraud and many state election officials criticized it before it was disbanded in January.

As the Florida controversy raged this week, votes were also still being counted in Arizona’s close Senate race between Democrat Kyrsten Sinema and Republican Martha McSally. The Arizona Republican Party filed a lawsuit alleging inconsistency in how the state matches signatures for mail-in votes.

By the end of the week, Trump was tweeting about this too and calling it “electoral corruption”—again without evidence. The NRSC joined in there too, saying “AZ Dems try to squash voters.”

Once the counties do turn in their initial vote counts at noon on Saturday, the state will determine how many of the races need recounts, and then each county will need to begin again. But analysts are already worried that the heated rhetoric about the initial vote counting could damage not only the public’s trust in any recount effort but also trust in other elections going forward.

“It’s really damaging. This idea that elections are just a political game to be played by adversaries is not healthy for democracy,” Becker said. “I would hope that participants in our democracy that rely on that democracy would think about the long-term impact of their words and actions. This is not ultimately going to be just about this race. This is going to be about something much bigger.”

Correction, Nov. 13

The original version of this story misstated Andrew Gillum’s opponent in the Florida gubernatorial race. It is Ron DeSantis, not Rick Scott.

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Write to Abigail Abrams at abigail.abrams@time.com