On Thursday night, two days after Election Day, Florida Gov. Rick Scott (R) stood on the steps of the governor’s mansion in Tallahassee and unleashed a nuclear bomb aimed at the very foundation of democracy. Scott suggested there was “rampant fraud” in the state. “No ragtag group of liberal activists or lawyers from D.C.” was going to steal the election from Floridians, the governor said.
When Scott made his comments, Florida hadn’t even hit the deadline to submit unofficial election results to the state. Scott asked the state’s law enforcement agency to investigate his allegations, but the agency quickly said there was nothing to investigate.
That hasn’t stopped President Donald Trump from continuing to insist that there was fraud in the state. There is no evidence of fraud to support his claim.
Scott’s election night lead over Nelson has shrunk significantly, and the margin is now so slim that the state is in the midst of a legally required recount. But election experts say there’s nothing unusual or nefarious about vote tallies changing days after an election. Instead of letting election officials count the ballots as usual, the comments from Scott and Trump amount to an effort to undermine normal election processes.
Steven Huefner, a law professor at Ohio State University, wrote that it was “beyond unseemly” and “downright destructive of public trust in our elections” for election officials to attribute changing vote totals to nefarious actions.
Florida allows voters to cast ballots by mail and accepts them until 7 p.m. on Election Day. Election officials then have to verify signatures on the ballots in addition to determining whether provisional ballots cast on Election Day can count. That process can take time, which is why Florida and other states give counties time to conduct what’s called a canvass and review the votes. In Florida, the deadline for counties to submit unofficial results to the state was Saturday and the deadline for official results is Nov. 18.
“Results on election night, it’s actually never been final on election night. Ever in the history of our country. There’s always been this continuation of calculating the results and all that,” said Amber McReynolds, the former top elections official in Denver who is now the executive director of the National Vote at Home Institute, a group that advocates for voting by mail. “This is not new. Florida’s doing exactly what other states are doing right now. California has even more to count. But in California, there’s not a Republican that might win, so it’s not getting any attention.”
Charles Stewart, the director of the MIT Election Lab, noted that, in addition to trying to deal with mailed-in ballots, counties also had to tally their early votes. Florida law doesn’t allow officials to count early votes until after the polls have closed. Different counties may also tally at different speeds because of the equipment available, the kinds of ballots they receive and staffing, experts say.
Scott has complained that Brenda Snipes, the supervisor of elections in Broward County, refused to turn over information about how many ballots still needed to be tallied. He secured a court order on Friday requiring her to hand over the information.
Ned Foley, a law professor at Ohio State University, has studied the way that vote totals change during a canvass after Election Day. Those shifts tend to benefit Democrats and are a “relatively new phenomenon,” he said, because more people are voting by mail and Congress passed a law in 2002 requiring officials to offer provisional ballots.
“Both of those things have the effect of having ballots eligible to be counted but not available for counting on election night,” he said. “For demographic reasons, groups that tend to vote Democratic Party ― students, younger voters, more mobile voters ― you’re more likely to get caught up in the need for a provisional ballot if you’re just a more transient population.”
Usually, shifts in vote counts after Election Day go unnoticed because they aren’t enough to overcome the initially reported margin of victory. But in Florida, the changing tally is getting scrutinized because the margin separating the candidates is so thin, Foley said. A similar process is playing out in Arizona, where election officials are still counting the ballots in close races for U.S. Senate and secretary of state.
“California has even more to count. But in California, there’s not a Republican that might win, so it’s not getting any attention.”
Trump tweeted Monday that Florida shouldn’t consider any of the votes tallied after election night, a move that would disenfranchise military voters whose ballots can be accepted until Nov. 16. Scott’s campaign is also suing in state court to block officials in Broward County, a key bastion of Democratic votes, from officially counting any ballots that weren’t tallied by the state’s Saturday deadline for unofficial results.
Foley said the allegations of fraud and election stealing in Florida were particularly worrisome because there could be shifts of tens of thousands of votes during a presidential election. The allegations in Florida could serve as a prelude for a candidate to undermine the results in 2020. A key part of democracies, he said, is that the candidates accept the results of elections as legitimate.
“Every election has a winner and a loser, and the loser has to accept defeat,” he said. The loser “has to think that, even though they really wanted to win and thought they should have won ― or maybe even thought the vote-counting process was inaccurate in some respects ― that we can accept it.”
The talk of fraud got the attention of the chief state judge in Broward County, who urged lawyers for both campaigns who were in court Monday to “ramp down the rhetoric” about voter fraud.
Richard Hasen, a law professor at the University of California, Irvine, who specializes in elections, wrote in Slate that that kind of questioning of election results could lay the foundation for a constitutional crisis.
“If President 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,” Hasen wrote. “We don’t know if he would even vacate his office in such a scenario, triggering the possibility of a real constitutional crisis.”