Lawsuit attacks rule on recounts

Touchscreen voting machines are illegally excluded from manual recounts, the suit contends.

By ALISA ULFERTS
Published July 8, 2004

TALLAHASSEE - With the Aug. 31 primary elections looming, a coalition of groups sued state elections officials Wednesday to overturn a rule excluding touchscreen voting machines from manual recounts.

The rule violates state law requiring manual recounts in elections in which the margin of victory is less than one-fourth of 1 percent, the coalition argued in papers filed with the state Division of Administrative Hearings.

State elections officials can't write a rule to avoid complying with a law they don't like, said Alma Gonzalez, a spokeswoman for the Voter Protection Coalition Roundtable, which includes the Florida chapters of the American Civil Liberties Union and Common Cause.

The rule ignores the fact that machines can malfunction and are susceptible to tampering, Gonzalez said.

"You certainly cannot ride on the premise that all machines are infallible and that they will never make a mistake and there will never be a computer glitch," Gonzalez said.

The rule applies to 15 Florida counties that use touchscreen voting machines, including Pinellas, Hillsborough and Pasco.

The state Division of Elections maintains that manual recounts are not necessary for touchscreen machines because voter intent is never in doubt. "They don't allow you to overvote," said department spokeswoman Nicole de Lara.

But the machines do allow undervotes, when a ballot includes votes for some offices but not others. During a special election in South Florida earlier this year, some ballots were cast with no votes, even though only one office was on the ballot.

Because state law says the purpose of a recount is to determine whether there was a "clear indication on the ballot that the voter has made a definite choice," there is no need to review touchscreen ballots, former Elections Director Ed Kast wrote in a letter to elections supervisors in April.

It is impossible to vote for too many candidates on a touchscreen ballot, and Kast said a "review of undervotes cannot result in a determination of voter intent as required by" Florida law.

Pasco County Supervisor of Elections Kurt Browning said he agrees with the state's position.

"In Florida law you only recount overvotes and undervotes and you can do that on a paper ballot," he said. "There's no overvotes because the system prohibits overvotes. On an undervote, there's no vote, so how do you manually recount something that doesn't exist?"

Florida's 2000 presidential recount sparked a national movement to replace punch card machines with electronic touch screens. But critics say the new machines have created a new problem because no paper ballot trail is created.

Touchscreen ballot images can be printed, but the state told local elections supervisors in April not to use them during recounts.

The voter coalition says the state needs to find a way to manually recount the electronic ballots, even if it means trying to duplicate the totals each machine reported to the county supervisors of elections.

"The question is, are we going to follow the law?" Gonzalez said. "It is not our desire to dictate to the secretary of state how she upholds the law. We know there are a variety of options available to do this."

In January, a state House race in Broward and Palm Beach counties was decided by 12 votes, but 137 ballots did not have any votes.

Democrats have pushed for a paper trail for all touchscreen machines but have failed to win support among Republicans. Florida Democratic U.S. Sen. Bob Graham filed legislation requiring a paper backup by the November election, but the bill has stalled.

But elections officials say paper receipts aren't without problems.

They point out that there is little consensus about how such receipts would be handled, buying and operating printers for every voting booth would be expensive and no printers have been certified for voter use. They also say a paper receipt wouldn't explain if someone intentionally undervoted or not.

- Information from the Associated Press was included in this report.

[Last modified July 8, 2004, 01:00:34]