Panel Cites Voter Error, Not Software, in Loss of Votes

By CHRISTOPHER DREW

Left, Rob Mattson for The New York Times; Right, Rob Mattson/Herald-Tribune

Christine Jennings, left, last fall contested the results of a Congressional race in which Vern Buchanan was declared the winner by 369 votes.

Florida election officials announced yesterday that an examination of voting software did not find any malfunctions that could have caused up to 18,000 votes to be lost in a disputed Congressional race in Sarasota County, and they suggested that voter confusion over a poor ballot design was mainly to blame.

The finding, reached unanimously by a team of computer experts from several universities, could finally settle last fall’s closest federal election. The Republican candidate, Vern Buchanan, was declared the winner by 369 votes, but the Democrat, Christine Jennings, formally contested the results, claiming that the touch-screen voting machines must have malfunctioned.

Legal precedents make it difficult to win a lawsuit over ballot design, but a substantial error in the software might have been grounds for a new election.

The questions about the electronic machines arose because many voters complained that they had had trouble getting their votes to register for Ms. Jennings, and the machines did not have a back-up paper trail that might have provided clues about any problems. The report said some voters might have accidentally touched the screen twice, thus negating their votes, while most of the others probably overlooked the race on the flawed ballot.

Still, the difficulty in resolving these complaints has helped fuel a drive in Congress to ban the paperless machines. Voting experts said the audit of the software code also was the first time any state had gone to such lengths to resolve a close election.

While some voters in Sarasota bristled yesterday at the idea that they had done anything wrong in casting their votes, or that nearly 13 percent of all voters could have failed to spot the race on the ballot, members of the investigative team said that those remained the only plausible theories.

The report acknowledged that the huge undervote — in which voters cast a ballot in other races but not for the Congressional seat — was both “abnormal and unexpected.” But it said that all eight members of the investigative team, including some experts who have long been skeptical about the paperless machines, agreed that the basic programming “did not cause or contribute to” the loss of votes.

The study suggested instead that the confusion over the ballot design, which had also drawn complaints from voters, probably accounted for the bulk of the problem, much as the infamous “butterfly ballot” distorted the vote in Palm Beach County, Fla., during the 2000 presidential election.

In the Sarasota race, the names of Mr. Buchanan and Ms. Jennings were sandwiched between larger lists of candidates for the United States Senate and for governor. The House race was also squeezed in at the top of a ballot screen, and it lacked the kind of colorful headings that highlighted the other races.

Ms. Jennings said in an interview yesterday that further investigation should still be done. Hayden Dempsey, a lawyer for Mr. Buchanan, who was seated in the House last month pending the outcome of the challenges, said the state had now “looked at every aspect of the election and found nothing wrong.”

Clare Ward-Jenkins, a Sarasota resident who had trouble registering her vote, said she felt insulted by the report’s implication that “we’re too stupid to know how to vote.”

Ms. Ward-Jenkins and more than 100 other voters contacted The Sarasota Herald-Tribune shortly after the election to complain that even though an “X” appeared on the touchscreen when they pressed the box for Ms. Jennings, their votes had disappeared by the time they got to a final screen for reviewing their choices. Ms. Ward-Jenkins and most of the others said they had to go through the process at least one more time to make their votes stick, raising concerns in the Jennings camp that other voters might have failed to notice similar problems that voided their ballots.

The report also left open the possibility that aging hardware could have caused isolated problems. But the investigative team leader, Alec Yasinsac, a computer science professor at Florida State University, and David Wagner, a professor at the University of California, Berkeley, both said in interviews that if there had been any widespread problems, they would have affected other races as well.

“I’m persuaded that this wasn’t caused by machine failure,” Professor Wagner said.

But other voting experts said that because the machines used in the election have been sequestered by a court, only a portion of them have been examined closely.

The software experts said they also found several security vulnerabilities in the programming for the voting machines, made by Election Systems and Software in Omaha. But the report said there was no evidence that any of them had affected the Sarasota race.

Edward W. Felten, a Princeton University computer scientist, wrote last night that the security weaknesses need to be fixed before this type of machine is used again. He also wrote: “The study claims to have ruled out reliability problems as a cause of the undervotes, but their evidence on this point is weak, and I think the jury is still out on whether voting machine malfunctions could be a significant cause of the undervotes.”

David Dill, a Stanford University professor who has been critical of the machines, added that the study “is an admirable, but limited, piece of work” and could not rule out all possible errors.