Lawsuit challenges paperless voting system

By George Bennett, Palm Beach Post Staff Writer
Tuesday, March 9, 2004

WEST PALM BEACH After being rejected in state court last month, U.S. Rep. Robert Wexler turned to federal court Monday and filed another lawsuit challenging the paperless electronic voting systems used by Palm Beach County and 14 other Florida counties.

Wexler, D-Delray Beach, claims paperless voting violates the equal protection clause of the U.S. Constitution and flies in the face of the U.S. Supreme Court's Bush vs. Gore ruling because voters in some counties can have their votes manually recounted while voters in other counties cannot.

The suit names Palm Beach County Elections Supervisor Theresa LePore, Florida Secretary of State Glenda Hood and Indian River County Elections Supervisor Kay Clem as defendants. Clem heads the state association of elections supervisors. Joining Wexler as plaintiffs are Democratic County Commissioners Burt Aaronson and Addie Greene and Tony Fransetta, a Democratic activist who heads the Florida Alliance of Retired Americans.

A 2001 federal suit in California also challenged paperless voting on equal-protection grounds. That suit was dismissed, and an appeals court upheld the dismissal in October, ruling that elected officials are within their rights to choose touch-screen voting machines and should be "free from judicial second-guessing."

But Wexler's attorney, Jeffrey Liggio, said the California case didn't address the question of manual recounts. Florida law requires hand recounts for elections decided by less than 0.5 percent.

Liggio instead pointed to a 2002 ruling by a federal court in Illinois which said that, under Bush vs. Gore, voters who used punch-card ballots could claim a violation of equal protection rights if they proved there were "greatly varying accuracy rates" between punch cards and other systems. The Wexler suit claims the accuracy of touch-screen voting is in doubt without the ability to conduct a manual recount.

"It's a stretch, but it's an argument that can be made in good faith that shouldn't be laughed out of court. It's an uphill battle," said elections law expert Richard Hasen of Loyola Law School in Los Angeles.

Wexler is on the host committee for a fund-raiser this month for Arthur Anderson, who is challenging LePore in the elections supervisor's race. But Wexler said politics are not a factor in his litigation.

"I have been involved in this issue for about a year and a half," Wexler said. "This issue is so much bigger than Theresa LePore or Robert Wexler."

In addition to the federal suit, Wexler Monday filed an appeal of last month's Palm Beach County Circuit Court ruling.