Ten days later, I received scanned copies of each side of my ballot envelope. On one side, there was a Nov. 9 postmark. On the other, the Nov. 14 arrival date. My ballot had spent half a month traveling 10 miles across town. And I was in good company: 3,429 other people in Miami-Dade had sent ballots that were deemed late and thus not tallied, according to the late-ballot log I obtained from the Elections Department. Of those, 2,105 had postmarks on or before Election Day. One was postmarked Oct. 17. Statewide, county supervisors discarded more than 15,000 ballots for lateness, as required by Florida law.
My disenfranchisement that year holds an ominous warning for Florida voters in the upcoming general election: Without fundamental changes in the way we vote by mail, willy-nilly mail delivery will lead to far greater numbers of uncounted ballots come November. But instead of taking action to improve 2018’s dismal record, Florida’s Republican-led government has beaten back two efforts aimed at protecting the rights of people who vote by mail — one waged in federal court and one by county elections administrators.
The story of my ballot lived on in a sprawling federal lawsuit filed in May that aimed to undo the disenfranchising effects of Florida’s vote-by-mail rules. Nine co-plaintiffs and I sued Gov. Ron DeSantis (R), Secretary of State Laurel Lee (R) and Attorney General Ashley Moody (R), as well as all 67 county supervisors of elections, to bind them to any orders the judge might apply.
The plaintiffs were seven concerned citizens, ranging in age from mid-20s to 82, and three advocacy groups: the Florida Alliance for Retired Americans, Alianza for Progress and Priorities USA. We were seeking more safeguards in Florida’s election law so that thousands upon thousands of mail-in ballots — cast by Republicans, Democrats or independents — aren’t discarded in the general election this November.
My ballot represented how delivery problems resulted in disenfranchisement, thanks to a problematic rule: Florida’s 7 p.m. Election Day receipt deadline. Under current law, overseas ballots have a 10-day grace period to arrive and be counted; our complaint asked that this also apply to ballots mailed domestically. Expanding that window could preserve the rights of tens thousands of people statewide. In Wisconsin, for instance, where a judge ordered a six-day grace period for mail ballots to arrive and be counted in the April primary, about 100,000 such ballots were saved from discard bins.
Exhibit 1 in our lawsuit showed just how bad Florida’s mail ballot discard numbers are. About 26,300 Floridians who thought they’d successfully voted by mail in 2018 actually hadn’t, according to a lengthy analysis by Dartmouth government professor Michael Herron. Their ballots were discarded because of lateness, or because the envelope lacked a signature, or because the signature didn’t match the one on file at election headquarters. The discard rate in early 2020 was even worse: In Florida’s presidential primary on March 17, nearly half of voters opted for mail-in ballots (up from one-third in the last cycle). About 16,000 of those ballots went uncounted — 8,980 deemed late, 7,246 with signature problems.
To forecast the 2020 general election, Herron crunched ballot rejection rates and turnout percentages from past elections. In one plausible scenario, if overall turnout matched the 2016 rate of 75 percent, and 70 percent of voters cast ballots by mail (as they did for Wisconsin’s coronavirus-crazed presidential primary in April), then up to 153,000 ballots would probably go untallied in Florida in November. That is more than enough votes to alter a close race. In 2016, Donald Trump beat Hillary Clinton here by 112,911 votes; Barack Obama defeated Mitt Romney in Florida by 73,189 votes; Republican Rick Scott’s margin over Democrat Bill Nelson in the 2018 Senate race was just 10,000 votes.
But the government maintains that Florida election law functioned well. In court briefs, its lawyers argued in dismissive tones that deadlines are deadlines, and the discard numbers were negligible compared with the hundreds of thousands of voters whose mail ballots did count. At my deposition via videoconference in June, an assistant attorney general took a more belligerent approach: “You’ve determined that slow delivery of mail ballots is a systematic issue in South Florida just on one experience?” “You do have the option of voting in person, is that correct?” “Since February have you left your house for any reason?” “How many occasions have you left your home and headed outside?” “How many times have you been to stores other than the grocery store since March 30th?” “How many times have you been to relatives’ homes?” “Have you had any visitors in your home?”
Afterward, I tried to imagine how the defense lawyers would use my responses to these questions in their trial arguments. You left your house to get groceries during the pandemic, so you can vote at a polling place in November, can’t you, sir? Your late mail-in ballot was a fluke, wasn’t it, sir? The defense’s attitude was clear: Delivery issues aren’t the government’s problem, and voting by mail is a convenience, not a necessity — even this year.
Meanwhile, DeSantis was displaying how that indifference would govern this election cycle in Florida. In April, local election supervisors asked the governor for an emergency measure authorizing eight additional early-voting days, more early-voting sites and an allowance to keep those sites open through Election Day (instead of closing them the Sunday evening before, as the law requires). Those extra days would have greatly expanded voter access to drop boxes, which elections supervisors are free to deploy under existing law. On June 17, DeSantis finally responded, rejecting the request. The only leeway he gave supervisors was to let them start tabulating mail ballots earlier.
In their depositions, elections supervisors told our lawyers that they were perplexed about why the governor ignored them but remained mum on his possible motives. A lawyer on our side offered me a theory. Early voting is more convenient than precinct polling for transient, low-income voters — who tend to vote for Democrats — because they can cast ballots at early-voting sites regardless of their voter registration address. In a very close election, those votes (or lack thereof) could be decisive.
The judge’s June 24 pretrial order — opining that Florida could “reasonably decide” to have an Election Day receipt deadline for mail ballots, while other states could “reasonably decide” to have an Election Day postmark rule — suggested which way he’d lean at trial. So the lawyers settled: Our side dropped its court fight, leaving Florida’s vote-by-mail regime intact. In exchange, the Republican secretary of state signed an agreement to undertake a long list of get-out-the-vote activities, including statewide promotion of mail voting, a relief from Trump’s anti-mail antics. Amending state law or the governor’s orders was off the table. But the secretary of state agreed to “encourage” all elections supervisors to make drop boxes available for the maximum 14 days of early voting allowed by Florida law.
Get-out-the-vote campaigns are good; more time to access drop boxes, and a grace period for receiving ballots, would have been better. While some Florida voters may be lax about signing their ballots and mailing them out on time, responsibility for ensuring election integrity ultimately lies with the government. The legislature and the governor have the power to create reasonable flexibility, in the interest of free and fair elections. That was true in 2018, when my ballot was discarded, and it’s even truer now, in a pandemic-challenged election further complicated by upheaval at the Postal Service. And yet, given opportunities to adopt measures that would protect voting rights and access, the governor held back. Why remains a mystery, but I do know that I’ll be delivering my mail ballot to a drop box myself — well before Election Day.