TALLAHASSEE - The state acted properly when it adopted an emergency rule for manual recounts in 15 counties that use touch screen voting machines, a state appeals court panel ruled Thursday, rejecting a Democratic challenge.
The 1st District Court of Appeal is the second court this week to side with the state on the rule imposed Oct. 15 to replace one a state court threw out in August.
But the three-member panel, which voted 2-1 for the ruling, also asked the state Supreme Court to weigh in on the issue.
The issue was whether there was actually an "emergency" as defined by state law, requiring quick adoption of the new rule after the original was thrown out.
Democrats argued that the new "emergency" rule was adopted with no input from interested parties, and that it was essentially the same as the invalidated rule.
The state argued that without the rule there wouldn't be uniform directions on what counties using touch screens should do if a manual recount is required.
When an election result appears closer than a quarter of 1 percent of the votes cast, state law requires a manual recount of ballots thrown out because voters picked more than one candidate - an overvote - or didn't register a vote for any candidate - an undervote.
Counters must determine whether there is a clear indication that the voter tried to choose one candidate or the other. If so, they must count the ballot.
Originally, the state said manual recounts aren't needed in touch screen counties because the machines don't allow overvotes, and if there's an undervote, there's no way to tell whether the voter meant to make a choice.
But an administrative law judge said the Department of State didn't have authority to simply abolish manual recounts for touch screens.
So the agency quickly drafted an "emergency rule" saying how counters should handle undervotes on touch screen machines. It essentially says that if the machine doesn't show a voter chose a candidate in a particular race, the voter is assumed to have meant to skip the race.
While this case was technically only about how the rule was adopted, the DCA did comment that the substance of the rule was recently upheld in another court.
A federal judge in Fort Lauderdale on Monday rejected a challenge to the rule by a congressman claiming the manual recount law requires paper printouts of ballots cast on touch screens.
Department of State spokeswoman Alia Faraj said the judges in both cases have now "clearly outlined that the department has done everything it can to comply with state law as it relates to what a manual recount should be."
