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October 25, 2004

Judge Tosses Fla. E-Voting Paper Trail Suit

By Adrian Sainz

MIAMI -- Florida does not need to create a paper record for touch-screen voting machines in case recounts are needed in tight races, a federal judge ruled Monday, upholding the state's emergency rule that set standards for e-voting recounts.

Touch-screen machines "provide sufficient safeguards" of constitutional rights by warning voters when they have not cast votes in individual races and allowing them to make a final review of their ballots, U.S. District Judge James Cohn ruled.

Rep. Robert Wexler, a Democrat, had sought either a paper record for manual recounts in close elections like the contentious 2000 presidential race or an order switching voters in 15 counties from touch-screens to optically scanned paper ballots by 2006. He wanted a way to help determine voter intent when no votes were recorded, known as "undervotes."

The judge found there was no constitutional violation in a touch-screen recount rule issued by the state Oct. 15. That rule replaced one thrown out in August by a state judge.

The current requirement is to determine "voter choice," which the state maintains is whatever is recorded on a touch-screen machine when a voter presses the final button.

Wexler said he planned an appeal to the 11th U.S. Circuit Court of Appeals in Atlanta.

Cohn, who heard three days of testimony last week, concluded that "the preferential method of casting a ballot" would include a paper printout allowing voters to make sure their selections are correct, but he said he was limited to determining "whether the current procedures and standards comport with equal protection."

Wexler called that a partial victory but said he disagrees with the judge's conclusion that the voting machines meet the requirement in state law for manual recounts.

He said he believes the judge was reluctant to make "drastic changes" in voting systems since early voting already is under way.

"Gov. (Jeb) Bush successfully ran the clock out on the ability to improve the election process for 2004," Wexler said.

Wexler's attorney, Jeff Liggio, argued the machines have no way to deal with malfunctions or distinguish between voter mistakes and intentional decisions to skip ballot items. The judge said the question of malfunctions was a state rather than a federal issue.

The office of Secretary of State Glenda Hood said the machines have a successful track record since they were introduced to the state in 2002, following the fallout from confusion over the punch-card ballots used in the last presidential election. Bush won the state by 537 votes.

"Florida voters should have complete confidence in the voter systems we're using, and for Congressman Wexler to try to erode the voter confidence or put doubt in the voter's mind does a real disservice to the voters of Florida," Hood spokeswoman Jenny Nash said.

Ron Labasky, an attorney for county election chiefs, claimed in court that Wexler was just trying to find a way to "squeeze one more vote out" and "regress" to the confusion of 2000.

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