AUGUST 4 UPDATE – A Pinellas County Judge ruled in favor of the Pinellas County Supervisor of Elections on Tuesday. You can read the latest here.

PREVIOUS

PINELLAS COUNTY, Fla. -- The Florida Democratic Party says that the Pinellas County Supervisor of Elections violated state law when they refused to initially provide them with the names and contact information for 68 voters who had to cast a provisional ballot in the March 17 presidential primary election.

A virtual judicial hearing in the case took place before Pinellas County Circuit Judge George M. Jirotka last week. Officials involved in the case hope he makes his decision before the August 18 primary.

Provisional ballots are given to voters at the polls when there is uncertainty about their eligibility. They’re kept separate from other ballots until after the election, when a canvassing board meets to determine if the vote was cast by a registered voter.

According to legal briefs filed by the Florida Democratic Party, the Pinellas SOE’s office, led by then Supervisor of Elections Deborah Clark, rejected the request for information on the voters who cast provisional ballots the day after the presidential primary, saying that those names were exempt from disclosure. 

The Democratic Party then filed a court order calling for Clark to release the requested records. Ultimately, she did provide the information that evening, less than 24 hours before the deadline to correct those provisional ballots (which was at 5 p.m. on Thursday, March 19, 46 hours after the polls close). 

“Clark’s failure to timely provide the requested public records resulted in an irreparable injury to the FDP,” the suit claims.

Attorneys for the Pinellas County office say that provisional ballot information is exempt from public records disclosure, adding that they ultimately fulfilled the request within 48 hours by providing the Democrats redacted copies of provisional ballots, making the lawsuit moot.

Not true, claim the Democrats.

The suit says that “without a declaration of the FDP’s rights to receive the requested public records and Clark’s mandatory obligations to provide the requested records, Clark’s unlawful conduct is capable of repetition in the upcoming 2020 primary scheduled for August and the 2020 general election scheduled for November.”

A similar situation with third-party groups being denied information about voters casting provisional ballots took place during the 2018 election, according to the Orlando Weekly.

Clearwater-based attorney Ryan Barack says that the Democrats are within their legal rights, because they are not requesting access to the actual ballots.

“What we’re trying to do is to ensure that voters who had issues, and were forced to vote a provisional ballot, are given the opportunity to correct that, and we want to be able to help them correct those issues, so that their vote is counted,” he said on Friday. “We don’t want to see the ballots. “

The lawsuit was filed in April naming Clark as the defendant. She announced in February that after 20 years on the job, she would be stepping down after the March primary. In that letter, she recommended to Gov. Ron DeSantis that her chief deputy, Julie Marcus, succeed her. 

DeSantis did appoint Marcus, a Republican, as Clark’s replacement in May. She is now running for a four-year term this November against Democrat Dan Helm.

Congress created provisional ballots as part of the 2002 federal Help America Vote Act, which was a result in part of Florida’s flawed presidential election in 2000, when a number of registered voters were purged from the polls incorrectly, says Ohio State University law professor Edward Foley.

Foley, who directs the election law program at Ohio State, says that provisional ballots overall have a “mixed” record since they became an option in 2002.

“They’re essential, so it’s good that we have them,” he says. “But they have some collateral consequences which are challenging.”

They certainly are significant in close elections, which tends to happen frequently in the Sunshine State.

During the recount for the U.S. Senate seat in 2018, Democrat Bill Nelson filed a lawsuit to count thousands of mail-in and provisional ballots in his race that were not counted because voters’ signatures did not match state records.

From 2006 to 2016, 79 percent of midterm provisional ballots and 69 percent of presidential provisional ballots were counted, according to the U.S. Election Assistance Commission.

Attorneys for the Pinellas County Supervisor of Elections said that they would not comment to Spectrum Bay News 9 because of the pending litigation. 

“I, as did my predecessor, strive to balance open access to records with the constitutional right to a secret ballot and other election laws, while simultaneously promoting voter participation,” Marcus wrote in an affidavit submitted in the case.

While both sides hope that Judge Jirotka rules before the August 18 primary election, the Democrats want this case resolved well in advance of the November election, in which Florida is expected to be critical to President Donald Trump’s reelection chances.