Copies of electronic ballots not required, state says

By George Bennett, Palm Beach Post Staff Writer
Tuesday, February 17, 2004
Florida's manual recount law was never meant to apply to paperless touch-screen voting systems, the state Division of Elections says in a new opinion that amplifies the position it took after a tight January state House race.

In a close election, the new opinion says, counties that use touch screens are not required to make paper copies of electronic ballot images to try to comply with state recount laws.

The division took a similar position in a letter to the Broward County canvassing board last month. The new opinion is binding on all Florida counties that use touch screens, a spokeswoman for Secretary of State Glenda Hood said Monday.

The recount question clouded a special election for a Broward-Palm Beach County state House seat and prompted a lawsuit by U.S. Rep. Robert Wexler, D-Delray Beach, that a circuit judge dismissed last week.

A Florida statute calls for a "manual recount" in elections decided by less than 0.25 percent of the votes cast. But canvassing boards in Broward and Palm Beach counties were unsure how to comply with the recount law when a Jan. 6 special election was decided by only 12 votes, with 137 voters casting blank ballots on electronic voting machines that produce no tangible ballots.

Both canvassing boards eventually decided to limit their manual recounts to paper absentee ballots.

At the time, Division of Elections Director Edward Kast told the Broward board that the state's recount rules "are not presently definitive," but that rules were being developed that would specify that there is no need to attempt a manual recount of an electronic ballot.

Those final recount rules are expected before the Aug. 31 primaries.

The state's manual recount law calls for a hand examination of all "over-votes," which are ballots marked for more than one candidate, and "under-votes," which are ballots that show no choice for any candidate. The reason for such a manual review, the Division of Elections says, is to determine whether a ballot not counted by tabulating machines might have other marks on it that provide "a clear indication... that a voter has made a definite choice."

Electronic voting machines don't allow over-votes. And with under-votes cast on paperless systems, the division's opinion says, "it is impossible for a voter to make any stray marks on the ballot" that would reveal intent to choose a candidate.

Citing a 2001 report by a state Senate committee, the new Division of Elections opinion says legislators who overhauled state elections laws in 2001 were "fully aware that there would be no manual recount" with new electronic voting systems.

Kast's January letter to Broward's canvassing board said it would be impossible for a voter to make a stray mark on an electronic ballot. But the letter gave the canvassing board the option of printing out ballot images and manually counting them.

The new opinion says such printouts are not authorized because there are no state standards for counting them. The opinion deals only with printouts of ballot images from existing touch-screen systems. It does not address proposals for "voter-verified" paper ballots that voters would review before casting electronic votes.