Florida's voting system was called into question again after several high-profile recounts in the midterm elections. Florida will undoubtedly be a battleground in the 2020 presidential election, and the state will have work to do to improve the way it handles voting.
From old ballot-processing machines to high levels of partisanship exhibited by election officials, there were a slew of problems with how voting was managed in Florida this year, according to Edward Foley, director of the election law program at Ohio State University's Moritz College of Law (@OSU_Law).
What happened this year in Florida's elections that worries Foley the most ahead of 2020, though? Overheated rhetoric.
"The rhetoric jumped to conclusions that were out of proportion to the reality in a way that we didn't even see back in 2000, and that's not a good situation when both sides want to win a race," Foley tells Here & Now's Jeremy Hobson.
“These races in Florida were close, but they were still 10,000 votes apart," he says, "not a hundred votes or a thousand votes, and there wasn't evidence in existence which suggests that the system was rigged or being stolen."
On what he believes the two biggest problems are with Florida’s voting system
“Well, partisanship. You had partisanship at the local level, at the state level, and it's hard for voters to trust the system if they think the people in charge are rooting for one team or the other.
"I mean, there were other problems. There was infrastructure issues on the ground. You had old machines that didn't work properly, that overheated during the recount. You had a process for verifying absentee votes that, again, is antiquated given the way signatures work in American society.
“But I would say the biggest issue is how we run competitive elections. You want elections to be competitive in a democracy — both parties are entitled to fight hard to win — but in any competitive situation, you need umpires or referees that aren't rooting for one side or the other.”
"There's a slogan in the election law world: 'Don't assume evil when it could be incompetence at work.' "Edward Foley
On why ballot designs are not standard nationwide
“Elections are run in America at ... not just at the state level, but at the local level, so you have every county designing its own ballots because there are local races as well as statewide races on the ballot. Unfortunately, you can't have a perfect election. It's a human process, and we're humans — we're imperfect. So we cannot inoculate ourselves from a bad ballot design, and it's terrible because it means that voters sort of overlooked a race that you presume that they wanted to vote for.”
On whether he thinks Florida ballots were designed to be complicated this year to prevent people from voting
“No. I think that's an example of just administrative error. There's a slogan in the election law world: 'Don't assume evil when it could be incompetence at work.' So I think I would attribute that to human values.”
"We allow partisans to run the system both in the front end of the process and at the back end, and this is particularly problematic at the back end when you have a close election."Edward Foley
On why the ballot-counting process takes so long in places like Broward County, Florida
“I think we're used to, or we were conditioned in the 20th century, to think that we would get results on election night. We've put in reforms since 2000 that are good reforms, but they have the collateral consequence of delaying the process. So we have provisional ballots, which cannot be counted on election night because of their provisional nature — you have to review them to see if they're eligible — and now, we rely so much more on absentee ballots than we used to. As long as they're postmarked by Election Day, they're eligible to be counted.
“Some states out west, like Washington and California, will count them up to 10 days or two weeks after Election Day. We saw the Arizona race this year change from election night result to the eventual winner being of the opposite party because of having to count mail-in votes. So, these are two important reforms, but they have the consequence that we in a close race, we're not going to know the answer on election night.”
On what he thinks needs to be done ahead of the 2020 presidential election to improve Florida’s voting system
“Come up with an institution that both sides can trust, particularly for the counting process. Most democracies around the world have moved to a nonpartisan election administration. So Britain and Canada and Australia — other countries that we share our legal heritage from coming from Britain — they want to take partisanship out of the voting process. We allow partisans to run the system both in the front end of the process and at the back end, and this is particularly problematic at the back end when you have a close election and you want to be able to trust the institution that counts the votes."
Julia Corcoran produced and edited this interview for broadcast. Jackson Cote adapted it for the web.
This segment aired on November 19, 2018.