Appeals court mulling paperless ballot lawsuit

By George Bennett, Palm Beach Post Staff Writer
Friday, July 2, 2004

WEST PALM BEACH An appeals judge on Thursday raised questions about a lower court's ruling that U.S. Rep. Robert Wexler lacked proper standing to file a lawsuit challenging the paperless voting systems used in Palm Beach County and 14 other Florida counties.

There was no ruling Thursday from a three-judge panel of the 4th District Court of Appeals. The judges spent little time discussing the merits of touch-screen voting while hearing arguments over whether Wexler's suit should be sent back to circuit court for reconsideration.

Wexler sued Florida Secretary of State Glenda Hood and Palm Beach County Elections Supervisor Theresa LePore in January, claiming that paperless voting is illegal because it does not allow a manual recount in a close election as required by Florida law.

Palm Beach County Circuit Judge Karen Miller tossed the suit in February. She ruled that Wexler, D-Delray Beach, lacked proper standing to sue because he did not claim to have been harmed by paperless voting machines, but merely speculated that he could be injured in a future election.

Miller's ruling went on to say that, even if Wexler had standing to sue, the issue of whether to require paper ballots is one for legislators and not the courts.

At Thursday's hearing, the most pointed questioning came from Judge Martha Warner. When George Waas, an assistant attorney general representing Hood, said Wexler needed to allege a specific injury before suing, Warner asked whether that standard would prevent a voter from challenging even a clear violation of law until after an election.

"Are you saying because all of us have an interest (in voting) that none of us can challenge because we don't have a particularized injury?" Warner asked. "Who would be able to challenge it? In your analysis, nobody."

Should Wexler's case be revived, the appeals judges Thursday questioned whether LePore should be a defendant in a case that centers on state policies and whether the case belonged in West Palm Beach or Tallahassee.

Wexler, who was not present Thursday, had a similar lawsuit rejected by a federal judge in May. That case is also being appealed.