Suit filed against state over voting paper trail

By Jim Ash, Palm Beach Post Capital Bureau
Thursday, July 8, 2004

TALLAHASSEE The Florida Department of State has no right to cancel manual recounts for touch-screen voting machines, a rule that covers residents of Palm Beach and 14 other counties, or nearly half of all voters in the state, civil rights activists charged Wednesday.

A suit filed against the department in Tallahassee asks a state hearing officer to strike down the rule, adopted in April, which the civil rights groups say contradicts existing laws that require manual recounts in elections where the margin of victory is between one-quarter and one-half percent.

"We believe that undermines the integrity of the elections process," said Alma Gonzalez, an attorney with the group Voter Protection Coalition Roundtable. "The administration must follow the law."

The groups challenging the rule, including the American Civil Liberties Union and Common Cause of Florida, hope to get the same results as U.S. Rep. Robert Wexler, D-Delray Beach, who has gone to federal court arguing that touch-screen machines should produce a paper printout to allow manual recounts.

A spokeswoman for Secretary of State Glenda Hood said she had no comment Wednesday.

Gonzalez said there is still enough time before the September primary to require touch-screen voting systems to be fitted with printers and produce a paper trail that can be recounted by hand if the election results are contested.

"It's a question of programming. It's a question of whether we want it done," Gonzalez said. "We stand by to assist them with any technical assistance they may need."

Former Division of Elections Director Ed Kast, in a Feb. 12 opinion requested by election supervisors using touch-screen machines, pointed out that the legislature never intended to require manual recounts for touch-screen machines because such systems leave no trace of actual voter intent.

This spring, the legislature failed to adopt a proposal by Sen. Anna Cowin, R-Leesburg, that would have taken most of Kast's opinion and made it Florida law.

However, in 2003, the legislature adopted a statute that says: "The Department of State shall adopt detailed rules prescribing additional recount procedures for each certified voting system, which shall be uniform to the extent practicable."

A state hearing officer will have to decide whether the department violated the Administrative Procedures Act, which prohibits state agencies from imposing rules that exceed the authority granted them by the legislature and state law.

"What we see here was commonplace in the 1960s and 1970s," ACLU lobbyist Larry Spalding said. "If an agency didn't like a statute, it wrote a rule to contradict it. The legislature had the opportunity to change the law, but they didn't do so."