New lawsuit questions state's election recount rule

By Staff and wire reports
July 8, 2004

TALLAHASSEE — A group sued the state Wednesday, hoping to reverse a Division of Elections rule that tells elections supervisors they don't have to include touchscreen ballots, such as those used in Collier and Lee counties, in manual recounts.

The rule ignores the fact that machines can malfunction or be tampered with, according to the suit filed by a group calling itself the Voter Protection Coalition Round Table.

"The prohibition of a manual recount does in fact cover up — perhaps not intentionally or maliciously — malfunctioning machines and ... covers up when there is malicious tampering involved," said Alma Gonzalez, a lawyer representing the group.

Elections officials in Collier and Lee counties were frustrated at the latest Florida election development and said such attacks on voting equipment reliability shakes voter confidence and makes their voter education job tougher.

"I stand by our voting system," Collier Supervisor of Elections Jennifer Edwards said Wednesday. "It is an accurate, secure voting system, and the many controls and procedures that are in place are in place for the entire election process, reinforcing that confidence that I have in the system."

Jo Ann Beaumont, spokeswoman for Lee County Supervisor of Elections Sharon Harrington, said Wednesday the audit function in question that likely helped bring on the suit against Florida's recount rules has nothing to do with vote counts.

Collier and Lee counties are among 15 of Florida's 67 counties that use electronic voting machines. The 15 counties account for more than half the state's voting population.

Problems with the post-election audit function on the iVotronic machines in use in 11 of the 15 counties led voting activists to wonder if there might be other problems as well in the event a close election in August or November demands a recount.

Beaumont said the function where the glitch occurred simply counts how many voters used the machine and how often someone walked away and failed to hit the "vote" button.

"There's nothing wrong with the equipment, and they want something to be wrong with it, and they are trying to manufacture something," she said.

While touchscreen ballot images can be printed, the Department of State told elections supervisors in April that they aren't authorized to do so during a recount. Then-Division of Elections Director Ed Kast determined that the touchscreen ballots don't fall into the state's recount laws because they leave no question about how voters intended to vote.

Because the law states that the purpose of a recount is to determine whether there was a "clear indication on the ballot that the voter has made a definite choice," there is no need to review touchscreen ballots, Kast said in letter to elections supervisors.

It is impossible to vote for too many candidates on a touchscreen ballot, and Kast said a "review of undervotes cannot result in a determination of voter intent as required by" Florida law.

"You certainly cannot ride on the premise that all machines are infallible and that they will never make a mistake and there will never be a computer glitch and that there will never be a programming error. These things happen," Gonzalez said. "That's why the law allows for a manual recount because the Legislature knows machines are not infallible."

The lawsuit was filed with the Division of Administrative Hearings in Tallahassee. The Department of State wouldn't comment on it Wednesday, saying it hadn't received the suit.

But department spokeswoman Nicole de Lara said Florida law states the purpose of a recount is to determine voter intent.

"With touchscreen machines, voter intent isn't at question," she said.

Pasco County Supervisor of Elections Kurt Browning agreed.

"In Florida law you only recount overvotes and undervotes and you can do that on a paper ballot," he said. "There's no overvotes because the system prohibits overvotes. On an undervote, there's no vote, so how do you manually recount something that doesn't exist?"

Organizations participating in the lawsuit are the American Civil Liberties Union, Southwest Voter Registration Education Project, Common Cause Florida, Florida Southern Christian Leadership Conference and the Florida Voters League.

Florida Democratic Party Chairman Scott Maddox agrees with the groups that the rule is flawed, saying it isn't backed up by Florida law and it is unconstitutional because some counties will have authority to conduct recounts and others won't.

"I'm glad to see these groups file suit and I think they will prevail," he said.